Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP)OUTLINE
1. The main purpose of this Bill is to make amendments necessary to facilitate Australia's accession to the Council of Europe Convention on Cybercrime (the Convention). The Bill amends the Telecommunications (Interception and Access) Act 1979 (the TIA Act), the Criminal Code Act 1995 (the Criminal Code), the Mutual Assistance in Criminal Matters Act 1987 (the MA Act) and the Telecommunications Act 1997 to ensure that Australian legislation meets all the Convention's requirements, subject to certain reservations. Only after Australian legislation is compliant can Australia accede to the Convention.
2. Cyber crime is a growing threat to Australian consumers, businesses and government. The international nature of cyber crime is such that no nation alone can effectively combat the problem. It is essential that Australia has in place appropriate arrangements, both domestically and internationally, to be in the best possible position to combat cyber crime.
3. The Convention is the first international treaty on crimes committed either against or via computer networks, dealing particularly with online fraud, offences related to child pornography and unauthorised access, use or modification of data stored on computers. The Convention's main objective is to pursue a common criminal policy aimed at the protection of society against cyber crime, especially by adopting appropriate legislation and fostering international co-operation. The Convention also contains a series of powers and procedures relating to accessing important evidence of cyber crimes, including by way of mutual assistance.
4. An explanatory report, prepared by the Council of Europe, accompanies the Convention. Where this Bill is enacting a requirement of the Cybercrime Convention, the Bill should be interpreted as operating in a way consistent with the Convention. To that extent, the explanatory report may be valuable in interpreting this Bill.
5. Australia is mostly compliant with the Convention's obligations, including the requisite cyber crime offences, the majority of police powers such as interception and access to stored communications and data and most elements of international cooperation. The Bill makes the following amendments to existing powers which ensure full compliance with the Convention's obligations:
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- requires carriers and carriage service providers (C/CSPs) to preserve the stored communications and telecommunications data for specific persons when requested by certain domestic agencies or when requested by Australian Federal Police on behalf of certain foreign countries
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- ensures Australian agencies are able to obtain and disclose telecommunications data and stored communications for the purposes of a foreign investigation
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- provides for the extraterritorial operation of certain offences in the TIA Act
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- amends the computer crime offences in the Criminal Code Act 1995 so that they have adequate scope, and
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- creates confidentiality requirements in relation to authorisations to disclose telecommunications data.