House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP)

SCHEDULE 5 - MISCELLANEOUS

Telecommunications (Interception and Access) Act 1979

Schedule 5 amends the Telecommunications (Interception and Access) Act 1979 (the TIA Act) to expand the geographical jurisdiction of offences against subsection 7(1) and section 63 of the TIA Act. These sections relate to unlawful interception and dealing with intercept related information respectively.

The amendment to jurisdiction implements a requirement of the Council of Europe Convention on Cybercrime (the Convention) in Article 22 that offences established under the Convention must cover circumstances where the conduct occurred on board a ship flying the flag of that party, on board an aircraft registered under the laws of that party and by one of the Party's nationals, if the offence is punishable under a criminal law where it was committed or if the offence is committed outside the territorial jurisdiction of any State.

Schedule 5 also amends the TIA Act to expand the offences for which authorisations for access to prospective information or documents are available. This amendment implements a requirement in Article 14 of the Convention. Article 14 requires that the range of offences or categories of offences for which real-time access to traffic data is available is not more restrictive than the range of offences or categories of offences for which interception of content data is available.

Item 1 - At the end of section 105

New subsection 105(5) adds a reference to Section15.1 (standard geographical jurisdiction - Category A) of the Criminal Code. The change implements a requirement under Article 22 of the Convention on Cybercrime.

Extended geographical jurisdiction means that a person does not commit the offence unless the relevant conduct occurs wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship or, if the relevant conduct occurs wholly outside Australia, the person is an Australian citizen or a body corporate incorporated under Australian law.

Item 2 - Application of amendment

Item 2 clarifies that the change to the offences in subsection 7(1) and section 63 or apply after Schedule 5 comes into force. Schedule 5 does not retrospectively criminalise any activity.

Item 3 - Subsection 180(4)

Item 3 amends subsection 180(4) to include serious offence in addition to 'an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for at least 3 years'. Serious offence is defined in section 5D of the TIA Act and details the offences for which interception agencies can obtain warrants for the interception of communications.

Inserting a reference to serious offence into section 180(4) of the TIA Act ensures that real-time access to traffic data is available at least in all circumstances where inception of content data is available. The change guarantees compliance with Article 14 of the Convention.