Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (148 of 2018)

Schedule 1   Industry assistance

Part 1   Amendments

Telecommunications Act 1997

7   After Part 14

Insert:

Part 15 - Industry assistance

Division 1 - Introduction

317A Simplified outline of this Part

• The Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer of an interception agency may give a technical assistance request to a designated communications provider.

• A technical assistance request may ask the provider to do acts or things on a voluntary basis that are directed towards ensuring that the provider is capable of giving certain types of help to ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate or an interception agency in relation to:

(a) in the case of ASIO - safeguarding national security; or

(b) in the case of the Australian Secret Intelligence Service - the interests of Australia's national security, the interests of Australia's foreign relations or the interests of Australia's national economic well-being; or

(c) in the case of the Australian Signals Directorate - providing material, advice and other assistance on matters relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means; or

(d) in the case of an interception agency - enforcing the criminal law, so far as it relates to serious Australian offences; or

(e) in the case of an interception agency - assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences.

• A technical assistance request may ask the provider to give help to ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate or an interception agency on a voluntary basis in relation to:

(a) in the case of ASIO - safeguarding national security; or

(b) in the case of the Australian Secret Intelligence Service - the interests of Australia's national security, the interests of Australia's foreign relations or the interests of Australia's national economic well-being; or

(c) in the case of the Australian Signals Directorate - providing material, advice and other assistance on matters relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means; or

(d) in the case of an interception agency - enforcing the criminal law, so far as it relates to serious Australian offences; or

(e) in the case of an interception agency - assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences.

• The Director-General of Security or the chief officer of an interception agency may give a designated communications provider a notice, to be known as a technical assistance notice, that requires the provider to do acts or things by way of giving certain types of help to ASIO or the agency in relation to:

(a) enforcing the criminal law, so far as it relates to serious Australian offences; or

(b) assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or

(c) safeguarding national security.

• The Attorney-General may give a designated communications provider a notice, to be known as a technical capability notice.

• A technical capability notice may require the provider to do acts or things directed towards ensuring that the provider is capable of giving certain types of help to ASIO or an interception agency in relation to:

(a) enforcing the criminal law, so far as it relates to serious Australian offences; or

(b) assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or

(c) safeguarding national security.

• A technical capability notice may require the provider to do acts or things by way of giving certain types of help to ASIO or an interception agency in relation to:

(a) enforcing the criminal law, so far as it relates to serious Australian offences; or

(b) assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or

(c) safeguarding national security.

317B Definitions

In this Part:

access , when used in relation to material,includes:

(a) access that is subject to a pre-condition (for example, the use of a password); and

(b) access by way of push technology; and

(c) access by way of a standing request.

ASIO affiliate has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

ASIO employee has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

chief officer of an interception agency has the meaning given by section 317ZM.

contracted service provider , in relation to a designated communications provider, means a person who performs services for or on behalf of the provider, but does not include a person who performs such services in the capacity of an employee of the provider.

designated communications provider has the meaning given by section 317C.

electronic protection includes:

(a) authentication; and

(b) encryption.

electronic service has the meaning given by section 317D.

eligible activities of a designated communications provider has the meaning given by section 317C.

entrusted ASD person means a person who:

(a) is a staff member of the Australian Signals Directorate; or

(b) has entered into a contract, agreement or arrangement with the Australian Signals Directorate; or

(c) is an employee or agent of a person who has entered into a contract, agreement or arrangement with the Australian Signals Directorate.

entrusted ASIO person means an entrusted person (within the meaning of the Australian Security Intelligence Organisation Act 1979).

entrusted ASIS person means a person who:

(a) is a staff member or agent of the Australian Secret Intelligence Service; or

(b) has entered into a contract, agreement or arrangement with the Australian Secret Intelligence Service; or

(c) is an employee or agent of a person who has entered into a contract, agreement or arrangement with the Australian Secret Intelligence Service.

giving help :

(a) when used in relation to ASIO - includes giving help to an ASIO employee or an ASIO affiliate; or

(b) when used in relation to the Australian Secret Intelligence Service - includes giving help to a staff member of the Australian Secret Intelligence Service; or

(c) when used in relation to the Australian Signals Directorate - includes giving help to a staff member of the Australian Signals Directorate; or

(d) when used in relation to an interception agency - includes giving help to an officer of the agency.

Home Affairs Minister means the Minister administering the Telecommunications (Interception and Access) Act 1979.

IGIS official has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

interception agency means:

(a) the Australian Federal Police; or

(b) the Australian Crime Commission; or

(c) the Police Force of a State or the Northern Territory.

listed act or thing has the meaning given by section 317E.

material means material:

(a) whether in the form of text; or

(b) whether in the form of data; or

(c) whether in the form of speech, music or other sounds; or

(d) whether in the form of visual images (moving or otherwise); or

(e) whether in any other form; or

(f) whether in any combination of forms.

officer of an interception agency has the meaning given by section 317ZM.

Ombudsman official means:

(a) the Commonwealth Ombudsman; or

(b) a Deputy Commonwealth Ombudsman; or

(c) a person who is a member of the staff referred to in subsection 31(1) of the Ombudsman Act 1976.

serious Australian offence means an offence against a law of the Commonwealth, a State or a Territory that is punishable by a maximum term of imprisonment of 3 years or more or for life.

serious foreign offence means an offence against a law in force in a foreign country that is punishable by a maximum term of imprisonment of 3 years or more or for life.

staff member , when used in relation to the Australian Secret Intelligence Service or the Australian Signals Directorate, has the same meaning as in the Intelligence Services Act 2001.

State or Territory inspecting authority , in relation to an interception agency of a State or Territory, means the authority that, under the law of the State or Territory concerned, has the function of making inspections of a similar kind to those provided for in section 55 of the Surveillance Devices Act 2004 when the interception agency is exercising powers under the law of that State or Territory that is of a similar nature to that Act.

supply :

(a) when used in relation to:

(i) a facility; or

(ii) customer equipment; or

(iii) a component;

includes supply (including re-supply) by way of sale, exchange, lease, hire or hire-purchase; and

(b) when used in relation to software - includes provide, grant or confer rights, privileges or benefits.

systemic vulnerability means a vulnerability that affects a whole class of technology, but does not include a vulnerability that is selectively introduced to one or more target technologies that are connected with a particular person. For this purpose, it is immaterial whether the person can be identified.

systemic weakness means a weakness that affects a whole class of technology, but does not include a weakness that is selectively introduced to one or more target technologies that are connected with a particular person. For this purpose, it is immaterial whether the person can be identified.

target technology :

(a) for the purposes of this Part, a particular carriage service, so far as the service is used, or is likely to be used, (whether directly or indirectly) by a particular person, is a target technology that is connected with that person; and

(b) for the purposes of this Part, a particular electronic service, so far as the service is used, or is likely to be used, (whether directly or indirectly) by a particular person, is a target technology that is connected with that person; and

(c) for the purposes of this Part, particular software installed, or to be installed, on:

(i) a particular computer; or

(ii) a particular item of equipment;

used, or likely to be used, (whether directly or indirectly) by a particular person is a target technology that is connected with that person; and

(d) for the purposes of this Part, a particular update of software that has been installed on:

(i) a particular computer; or

(ii) a particular item of equipment;

used, or likely to be used, (whether directly or indirectly) by a particular person is a target technology that is connected with that person; and

(e) for the purposes of this Part, a particular item of customer equipment used, or likely to be used, (whether directly or indirectly) by a particular person is a target technology that is connected with that person; and

(f) for the purposes of this Part, a particular data processing device used, or likely to be used, (whether directly or indirectly) by a particular person is a target technology that is connected with that person.

For the purposes of paragraphs (a), (b), (c), (d), (e) and (f), it is immaterial whether the person can be identified.

technical assistance notice means a notice given under section 317L.

technical assistance notice information means:

(a) information about any of the following:

(i) the giving of a technical assistance notice;

(ia) consultation relating to the giving of a technical assistance notice;

(ii) the existence or non-existence of a technical assistance notice;

(iii) the variation of a technical assistance notice;

(iv) the revocation of a technical assistance notice;

(v) the requirements imposed by a technical assistance notice;

(vi) any act or thing done in compliance with a technical assistance notice; or

(b) any other information about a technical assistance notice.

technical assistance request means a request under paragraph 317G(1)(a).

technical assistance request information means:

(a) information about any of the following:

(i) the giving of a technical assistance request;

(ii) the existence or non-existence of a technical assistance request;

(iii) the acts or things covered by a technical assistance request;

(iv) any act or thing done in accordance with a technical assistance request; or

(b) any other information about a technical assistance request.

technical capability notice means a notice given under section 317T.

technical capability notice information means:

(a) information about any of the following:

(i) the giving of a technical capability notice;

(ii) consultation relating to the giving of a technical capability notice;

(iii) the existence or non-existence of a technical capability notice;

(iv) the variation of a technical capability notice;

(iva) consultation relating to the variation of a technical capability notice;

(v) the revocation of a technical capability notice;

(vi) the requirements imposed by a technical capability notice;

(vii) any act or thing done in compliance with a technical capability notice; or

(b) any other information about a technical capability notice.

317C Designated communications provider etc.

For the purposes of this Part, the following table defines:

(a) designated communications provider ; and

(b) the eligible activities of a designated communications provider.

Note 1: See also sections 317HAA, 317MAA and 317TAA (provision of advice to designated communications providers).

Note 2: See also section 317ZT (alternative constitutional basis).

317D Electronic service

(1) For the purposes of this Part, electronic service means:

(a) a service that allows end-users to access material using a carriage service; or

(b) a service that delivers material to persons having equipment appropriate for receiving that material, where the delivery of the service is by means of a carriage service;

but does not include:

(c) a broadcasting service; or

(d) a datacasting service (within the meaning of the Broadcasting Services Act 1992).

(2) For the purposes of subsection (1), service includes a website.

(3) For the purposes of this Part, a person does not provide an electronic service merely because the person supplies a carriage service that enables material to be accessed or delivered.

(4) For the purposes of this Part, a person does not provide an electronic service merely because the person provides a billing service, or a fee collection service, in relation to an electronic service.

(5) A reference in this section to the use of a thing is a reference to the use of the thing either:

(a) in isolation; or

(b) in conjunction with one or more other things.

317E Listed acts or things

(1) For the purposes of the application of this Part to a designated communications provider, listed act or thing means:

(a) removing one or more forms of electronic protection that are or were applied by, or on behalf of, the provider; or

(b) providing technical information; or

(c) installing, maintaining, testing or using software or equipment; or

(d) ensuring that information obtained in connection with the execution of a warrant or authorisation is given in a particular format; or

(da) an act or thing done to assist in, or facilitate:

(i) giving effect to a warrant or authorisation under a law of the Commonwealth, a State or a Territory; or

(ii) the effective receipt of information in connection with a warrant or authorisation under a law of the Commonwealth, a State or a Territory; or

(e) facilitating or assisting access to whichever of the following are the subject of eligible activities of the provider:

(i) a facility;

(ii) customer equipment;

(iii) a data processing device;

(iv) a listed carriage service;

(v) a service that facilitates, or is ancillary or incidental to, the supply of a listed carriage service;

(vi) an electronic service;

(vii) a service that facilitates, or is ancillary or incidental to, the provision of an electronic service;

(viii) software used, for use, or likely to be used, in connection with a listed carriage service;

(ix) software used, for use, or likely to be used, in connection with an electronic service;

(x) software that is capable of being installed on a computer, or other equipment, that is, or is likely to be, connected to a telecommunications network; or

(f) assisting with the testing, modification, development or maintenance of a technology or capability; or

(g) notifying particular kinds of changes to, or developments affecting, eligible activities of the designated communications provider, if the changes are relevant to the execution of a warrant or authorisation; or

(h) modifying, or facilitating the modification of, any of the characteristics of a service provided by the designated communications provider; or

(i) substituting, or facilitating the substitution of, a service provided by the designated communications provider for:

(i) another service provided by the provider; or

(ii) a service provided by another designated communications provider; or

(j) an act or thing done to conceal the fact that any thing has been done covertly in the performance of a function, or the exercise of a power, conferred by a law of the Commonwealth, a State or a Territory, so far as the function or power relates to:

(i) enforcing the criminal law, so far as it relates to serious Australian offences; or

(ii) assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or

(iii) the interests of Australia's national security, the interests of Australia's foreign relations or the interests of Australia's national economic well-being.

(2) Paragraph (1)(j) does not apply to:

(a) making a false or misleading statement; or

(b) engaging in dishonest conduct.

317F Extension to external Territories

This Part extends to every external Territory.

Division 2 - Voluntary technical assistance

317G Voluntary technical assistance provided to ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate or an interception agency

(1) If:

(a) any of the following persons:

(i) the Director-General of Security;

(ii) the Director-General of the Australian Secret Intelligence Service;

(iii) the Director-General of the Australian Signals Directorate;

(iv) the chief officer of an interception agency;

requests a designated communications provider to do one or more specified acts or things that:

(v) are in connection with any or all of the eligible activities of the provider; and

(vi) are covered by subsection (2); and

(b) the provider does an act or thing:

(i) in accordance with the request; or

(ii) in good faith purportedly in accordance with the request;

then:

(c) the provider is not subject to any civil liability for, or in relation to, the act or thing mentioned in paragraph (b); and

(d) an officer, employee or agent of the provider is not subject to any civil liability for, or in relation to, an act or thing done by the officer, employee or agent in connection with the act or thing mentioned in paragraph (b).

(2) The specified acts or things must:

(a) be directed towards ensuring that the designated communications provider is capable of giving help to:

(i) in a case where the request is made by the Director-General of Security - ASIO; or

(ii) in a case where the request is made by the Director-General of the Australian Secret Intelligence Service - the Australian Secret Intelligence Service; or

(iii) in a case where the request is made by the Director-General of the Australian Signals Directorate - the Australian Signals Directorate; or

(iv) in a case where the request is made by the chief officer of an interception agency - the agency;

in relation to:

(v) the performance of a function, or the exercise of a power, conferred by or under a law of the Commonwealth, a State or a Territory, so far as the function or power relates to a relevant objective; or

(vi) a matter that facilitates, or is ancillary or incidental to, a matter covered by subparagraph (v); or

(b) be by way of giving help to:

(i) in a case where the request is made by the Director-General of Security - ASIO; or

(ii) in a case where the request is made by the Director-General of the Australian Secret Intelligence Service - the Australian Secret Intelligence Service; or

(iii) in a case where the request is made by the Director-General of the Australian Signals Directorate - the Australian Signals Directorate; or

(iv) in a case where the request is made by the chief officer of an interception agency - the agency;

in relation to:

(v) the performance of a function, or the exercise of a power, conferred by or under a law of the Commonwealth, a State or a Territory, so far as the function or power relates to a relevant objective; or

(vi) a matter that facilitates, or is ancillary or incidental to, a matter covered by subparagraph (v).

(3) A request under paragraph (1)(a) is to be known as a technical assistance request .

(4) Subparagraph (1)(b)(ii) does not apply to an act or thing done by a designated communications provider unless the act or thing is in connection with any or all of the eligible activities of the provider.

Relevant objective

(5) For the purposes of this section, relevant objective means:

(a) in relation to a technical assistance request given by the Director-General of Security - safeguarding national security; or

(b) in relation to a technical assistance request given by the Director-General of the Australian Secret Intelligence Service - the interests of Australia's national security, the interests of Australia's foreign relations or the interests of Australia's national economic well-being; or

(c) in relation to a technical assistance request given by the Director-General of the Australian Signals Directorate - providing material, advice and other assistance to a person or body mentioned in subsection 7(2) of the Intelligence Services Act 2001 on matters relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means; or

(d) in relation to a technical assistance request given by the chief officer of an interception agency:

(i) enforcing the criminal law, so far as it relates to serious Australian offences; or

(ii) assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences.

Listed acts or things

(6) The acts or things that may be specified in a technical assistance request given to a designated communications provider include (but are not limited to) listed acts or things, so long as those acts or things:

(a) are in connection with any or all of the eligible activities of the provider; and

(b) are covered by subsection (2).

Note: For listed acts or things , see section 317E.

317H Form of technical assistance request

(1) A technical assistance request may be given:

(a) orally; or

(b) in writing.

(2) A technical assistance request must not be given orally unless:

(a) an imminent risk of serious harm to a person or substantial damage to property exists; and

(b) the technical assistance request is necessary for the purpose of dealing with that risk; and

(c) it is not practicable in the circumstances to give the technical assistance request in writing.

(3) If a technical assistance request is given orally by:

(a) the Director-General of Security; or

(b) the Director-General of the Australian Secret Intelligence Service; or

(c) the Director-General of the Australian Signals Directorate; or

(d) the chief officer of an interception agency;

the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, must:

(e) make a written record of the request; and

(f) do so within 48 hours after the request was given.

(4) If, under subsection (3):

(a) the Director-General of Security; or

(b) the Director-General of the Australian Secret Intelligence Service; or

(c) the Director-General of the Australian Signals Directorate; or

(d) the chief officer of an interception agency;

makes a written record of a technical assistance request, the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, must:

(e) give a copy of the record to the designated communications provider concerned; and

(f) do so as soon as practicable after the record was made.

(5) If, under subsection (3):

(a) the Director-General of Security; or

(b) the Director-General of the Australian Secret Intelligence Service; or

(c) the Director-General of the Australian Signals Directorate; or

(d) the chief officer of an interception agency;

makes a written record of a technical assistance request, the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, must retain the record while the request is in force.

317HAA Provision of advice to designated communications providers

(1) If the Director-General of Security gives a technical assistance request to a designated communications provider, the Director-General of Security must advise the provider that compliance with the request is voluntary.

(2) If the Director-General of the Australian Secret Intelligence Service gives a technical assistance request to a designated communications provider, the Director-General of the Australian Secret Intelligence Service must advise the provider that compliance with the request is voluntary.

(3) If the Director-General of the Australian Signals Directorate gives a technical assistance request to a designated communications provider, the Director-General of the Australian Signals Directorate must advise the provider that compliance with the request is voluntary.

(4) If the chief officer of an interception agency gives a technical assistance request to a designated communications provider, the chief officer must advise the provider that compliance with the request is voluntary.

Form of advice

(5) Advice under subsection (1), (2), (3) or (4) may be given:

(a) orally; or

(b) in writing.

(6) If advice under subsection (1), (2), (3) or (4) is given orally by:

(a) the Director-General of Security; or

(b) the Director-General of the Australian Secret Intelligence Service; or

(c) the Director-General of the Australian Signals Directorate; or

(d) the chief officer of an interception agency;

the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, must:

(e) make a written record of the advice; and

(f) do so within 48 hours after the advice was given.

317HAB Notification obligations

(1) If the Director-General of Security gives a technical assistance request, the Director-General of Security must, within 7 days after the request is given, notify the Inspector-General of Intelligence and Security that the request has been given.

(2) If the Director-General of the Australian Secret Intelligence Service gives a technical assistance request, the Director-General of the Australian Secret Intelligence Service must, within 7 days after the request is given, notify the Inspector-General of Intelligence and Security that the request has been given.

(3) If the Director-General of the Australian Signals Directorate gives a technical assistance request, the Director-General of the Australian Signals Directorate must, within 7 days after the request is given, notify the Inspector-General of Intelligence and Security that the request has been given.

(4) If the chief officer of an interception agency gives a technical assistance request, the chief officer must, within 7 days after the request is given, notify the Commonwealth Ombudsman that the request has been given.

(5) A failure to comply with subsection (1), (2), (3) or (4) does not affect the validity of a technical assistance request.

317HA Duration of technical assistance request

(1) A technical assistance request:

(a) comes in force:

(i) when it is given; or

(ii) if a later time is specified in the request - at that later time; and

(b) unless sooner revoked, remains in force:

(i) if an expiry date is specified in the request - until the start of the expiry date; or

(ii) otherwise - at end of the 90-day period beginning when the request was given.

(2) If a technical assistance request expires, this Part does not prevent the giving of a fresh technical assistance request in the same terms as the expired technical assistance request.

317J Specified period etc.

(1) A technical assistance request may include a request that a specified act or thing be done within a specified period.

(2) A technical assistance request may include a request that a specified act or thing be done:

(a) in a specified manner; or

(b) in a way that meets one or more specified conditions.

(3) Subsections (1) and (2) of this section do not limit subsections 317G(1) and (2).

317JAA Decision-making criteria

(1) The Director-General of Security must not give a technical assistance request to a designated communications provider unless the Director-General of Security is satisfied that:

(a) the request is reasonable and proportionate; and

(b) compliance with the request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

(2) The Director-General of the Australian Secret Intelligence Service must not give a technical assistance request to a designated communications provider unless the Director-General of the Australian Secret Intelligence Service is satisfied that:

(a) the request is reasonable and proportionate; and

(b) compliance with the request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

(3) The Director-General of the Australian Signals Directorate must not give a technical assistance request to a designated communications provider unless the Director-General of the Australian Signals Directorate is satisfied that:

(a) the request is reasonable and proportionate; and

(b) compliance with the request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

(4) The chief officer of an interception agency must not give a technical assistance request to a designated communications provider unless the chief officer is satisfied that:

(a) the request is reasonable and proportionate; and

(b) compliance with the request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

317JA Variation of technical assistance requests

(1) If a technical assistance request has been given to a designated communications provider by the Director-General of Security, the Director-General of Security may vary the request.

(2) If a technical assistance request has been given to a designated communications provider by the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Secret Intelligence Service may vary the request.

(3) If a technical assistance request has been given to a designated communications provider by the Director-General of the Australian Signals Directorate, the Director-General of the Australian Signals Directorate may vary the request.

(4) If a technical assistance request has been given to a designated communications provider by the chief officer of an interception agency, the chief officer may vary the request.

Form of variation

(5) A variation may be made:

(a) orally; or

(b) in writing.

(6) A variation must not be made orally unless:

(a) an imminent risk of serious harm to a person or substantial damage to property exists; and

(b) the variation is necessary for the purpose of dealing with that risk; and

(c) it is not practicable in the circumstances to make the variation in writing.

(7) If a variation is made orally by:

(a) the Director-General of Security; or

(b) the Director-General of the Australian Secret Intelligence Service; or

(c) the Director-General of the Australian Signals Directorate; or

(d) the chief officer of an interception agency;

the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, must:

(e) make a written record of the variation; and

(f) do so within 48 hours after the variation was made.

(8) If, under subsection (7):

(a) the Director-General of Security; or

(b) the Director-General of the Australian Secret Intelligence Service; or

(c) the Director-General of the Australian Signals Directorate; or

(d) the chief officer of an interception agency;

makes a written record of a variation, the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, must:

(e) give a copy of the record to the designated communications provider concerned; and

(f) do so as soon as practicable after the record was made.

Acts or things specified in a varied technical assistance request

(9) The acts or things specified in a varied technical assistance request must be:

(a) in connection with any or all of the eligible activities of the designated communications provider concerned; and

(b) covered by subsection 317G(2).

(10) The acts or things that may be specified in a varied technical assistance request include (but are not limited to) listed acts or things, so long as those acts or things:

(a) are in connection with any or all of the eligible activities of the designated communications provider concerned; and

(b) are covered by subsection 317G(2).

Note: For listed acts or things , see section 317E.

Decision-making criteria

(11) The Director-General of Security must not vary a technical assistance request unless the Director-General of Security is satisfied that:

(a) the varied request is reasonable and proportionate; and

(b) compliance with the varied request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

(12) The Director-General of the Australian Secret Intelligence Service must not vary a technical assistance request unless the Director-General of the Australian Secret Intelligence Service is satisfied that:

(a) the varied request is reasonable and proportionate; and

(b) compliance with the varied request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

(13) The Director-General of the Australian Signals Directorate must not vary a technical assistance request unless the Director-General of the Australian Signals Directorate is satisfied that:

(a) the varied request is reasonable and proportionate; and

(b) compliance with the varied request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

(14) The chief officer of an interception agency must not vary a technical assistance request unless the chief officer is satisfied that:

(a) the varied request is reasonable and proportionate; and

(b) compliance with the varied request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

Notification obligations

(15) If the Director-General of Security varies a technical assistance request, the Director-General of Security must, within 7 days after varying the request, notify the Inspector-General of Intelligence and Security that the request has been varied.

(16) If the Director-General of the Australian Secret Intelligence Service varies a technical assistance request, the Director-General of the Australian Secret Intelligence Service must, within 7 days after varying the request, notify the Inspector-General of Intelligence and Security that the request has been varied.

(17) If the Director-General of the Australian Signals Directorate varies a technical assistance request, the Director-General of the Australian Signals Directorate must, within 7 days after varying the request, notify the Inspector-General of Intelligence and Security that the request has been varied.

(18) If the chief officer of an interception agency varies a technical assistance request, the chief officer must, within 7 days after varying the request, notify the Commonwealth Ombudsman that the request has been varied.

(19) A failure to comply with subsection (15), (16), (17) or (18) does not affect the validity of a variation of a technical assistance request.

317JB Revocation of technical assistance requests

(1) If a technical assistance request has been given to a person by the Director-General of Security, the Director-General of Security may, by written notice given to the person, revoke the request.

(1A) If a technical assistance request has been given to a person by the Director-General of Security, and the Director-General of Security is satisfied that:

(a) the request is not reasonable and proportionate; or

(b) compliance with the request is not:

(i) practicable; and

(ii) technically feasible;

the Director-General of Security must, by written notice given to the person, revoke the request.

(2) If a technical assistance request has been given to a person by the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Secret Intelligence Service may, by written notice given to the person, revoke the request.

(2A) If a technical assistance request has been given to a person by the Director-General of the Australian Secret Intelligence Service, and the Director-General of the Australian Secret Intelligence Service is satisfied that:

(a) the request is not reasonable and proportionate; or

(b) compliance with the request is not:

(i) practicable; and

(ii) technically feasible;

the Director-General of the Australian Secret Intelligence Service must, by written notice given to the person, revoke the request.

(3) If a technical assistance request has been given to a person by the Director-General of the Australian Signals Directorate, the Director-General of the Australian Signals Directorate may, by written notice given to the person, revoke the request.

(3A) If a technical assistance request has been given to a person by the Director-General of the Australian Signals Directorate, and the Director-General of the Australian Signals Directorate is satisfied that:

(a) the request is not reasonable and proportionate; or

(b) compliance with the request is not:

(i) practicable; and

(ii) technically feasible;

the Director-General of the Australian Signals Directorate must, by written notice given to the person, revoke the request.

(4) If a technical assistance request has been given to a person by the chief officer of an interception agency, the chief officer may, by written notice given to the person, revoke the request.

(5) If a technical assistance request has been given to a person by the chief officer of an interception agency, and the chief officer is satisfied that:

(a) the request is not reasonable and proportionate; or

(b) compliance with the request is not:

(i) practicable; and

(ii) technically feasible;

the chief officer must, by written notice given to the person, revoke the request.

Notification obligations

(6) If the Director-General of Security revokes a technical assistance request, the Director-General of Security must, within 7 days after revoking the request, notify the Inspector-General of Intelligence and Security that the request has been revoked.

(7) If the Director-General of the Australian Secret Intelligence Service revokes a technical assistance request, the Director-General of the Australian Secret Intelligence Service must, within 7 days after revoking the request, notify the Inspector-General of Intelligence and Security that the request has been revoked.

(8) If the Director-General of the Australian Signals Directorate revokes a technical assistance request, the Director-General of the Australian Signals Directorate must, within 7 days after revoking the request, notify the Inspector-General of Intelligence and Security that the request has been revoked.

(9) If the chief officer of an interception agency revokes a technical assistance request, the chief officer must, within 7 days after revoking the request, notify the Commonwealth Ombudsman that the request has been revoked.

(10) A failure to comply with subsection (6), (7), (8) or (9) does not affect the validity of a revocation of a technical assistance request.

317JC Whether a technical assistance request is reasonable and proportionate

In considering whether a technical assistance request or a varied technical assistance request is reasonable and proportionate, the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer of an interception agency, as the case requires, must have regard to the following matters:

(a) the interests of national security;

(b) the interests of law enforcement;

(c) the legitimate interests of the designated communications provider to whom the request relates;

(d) the objectives of the request;

(e) the availability of other means to achieve the objectives of the request;

(f) whether the request, when compared to other forms of industry assistance known to the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, is the least intrusive form of industry assistance so far as the following persons are concerned:

(i) persons whose activities are not of interest to ASIO;

(ii) persons whose activities are not of interest to the Australian Secret Intelligence Service;

(iii) persons whose activities are not of interest to the Australian Signals Directorate;

(iv) persons whose activities are not of interest to interception agencies;

(g) whether the request is necessary;

(h) the legitimate expectations of the Australian community relating to privacy and cybersecurity;

(i) such other matters (if any) as the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, considers relevant.

317K Contract etc.

Any of the following persons:

(a) the Director-General of Security;

(b) the Director-General of the Australian Secret Intelligence Service;

(c) the Director-General of the Australian Signals Directorate;

(d) the chief officer of an interception agency;

may enter into a contract, agreement or arrangement with a designated communications provider in relation to acts or things done by the provider in accordance with a technical assistance request.

Division 3 - Technical assistance notices

317L Technical assistance notices

(1) The Director-General of Security or the chief officer of an interception agency may give a designated communications provider a notice, to be known as a technical assistance notice, that requires the provider to do one or more specified acts or things that:

(a) are in connection with any or all of the eligible activities of the provider; and

(b) are covered by subsection (2).

Note: Section 317ZK deals with the terms and conditions on which such a requirement is to be complied with.

(2) The specified acts or things must be by way of giving help to:

(a) in a case where the technical assistance notice is given by the Director-General of Security - ASIO; or

(b) in a case where the technical assistance notice is given by the chief officer of an interception agency - the agency;

in relation to:

(c) the performance of a function, or the exercise of a power, conferred by or under a law of the Commonwealth, a State or a Territory, so far as the function or power relates to:

(i) enforcing the criminal law, so far as it relates to serious Australian offences; or

(ii) assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or

(iii) safeguarding national security; or

(d) a matter that facilitates, or is ancillary or incidental to, a matter covered by paragraph (c).

(2A) The specified acts or things must not be directed towards ensuring that a designated communications provider is capable of giving help to ASIO or an interception agency.

Listed acts or things

(3) The acts or things specified in a technical assistance notice given to a designated communications provider must be listed acts or things, so long as those acts or things:

(a) are in connection with any or all of the eligible activities of the provider; and

(b) are covered by subsection (2).

Note: For listed acts or things , see section 317E.

317LA Approval of technical assistance notices given by the chief officer of an interception agency of a State or Territory

(1) The chief officer of an interception agency of a State or Territory must not give a technical assistance notice to a designated communications provider unless:

(a) the chief officer has given the AFP Commissioner a written notice setting out a proposal to give the technical assistance notice; and

(b) the AFP Commissioner has approved the giving of the technical assistance notice.

(2) An approval under paragraph (1)(b) may be given:

(a) orally; or

(b) in writing.

(3) If an approval under paragraph (1)(b) is given orally, the AFP Commissioner must:

(a) make a written record of the approval; and

(b) do so within 48 hours after the approval was given.

(4) For the purposes of this section, AFP Commissioner means the Commissioner (within the meaning of the Australian Federal Police Act 1979).

317M Form of technical assistance notice

(1) A technical assistance notice may be given:

(a) orally; or

(b) in writing.

(2) A technical assistance notice must not be given orally unless:

(a) an imminent risk of serious harm to a person or substantial damage to property exists; and

(b) the technical assistance notice is necessary for the purpose of dealing with that risk; and

(c) it is not practicable in the circumstances to give the technical assistance notice in writing.

(3) If a technical assistance notice is given orally by the Director-General of Security or the chief officer of an interception agency, the Director-General of Security or the chief officer, as the case requires, must:

(a) make a written record of the notice; and

(b) do so within 48 hours after the notice was given.

(4) If, under subsection (3), the Director-General of Security or the chief officer of an interception agency makes a written record of a technical assistance notice, the Director-General of Security or the chief officer, as the case requires, must:

(a) give a copy of the record to the designated communications provider concerned; and

(b) do so as soon as practicable after the record was made.

(5) If, under subsection (3), the Director-General of Security or the chief officer of an interception agency makes a written record of a technical assistance notice, the Director-General of Security or the chief officer, as the case requires, must retain the record while the notice is in force.

317MAA Provision of advice to designated communications providers

(1) If the Director-General of Security gives a technical assistance notice to a designated communications provider, the Director-General of Security must give the provider advice relating to the provider's obligations under whichever of sections 317ZA and 317ZB is applicable, so far as those obligations relate to the notice.

(2) If the chief officer of an interception agency gives a technical assistance notice to a designated communications provider, the chief officer must give the provider advice relating to the provider's obligations under whichever of sections 317ZA and 317ZB is applicable, so far as those obligations relate to the notice.

(3) If the Director-General of Security gives a technical assistance notice to a designated communications provider, the Director-General of Security must notify the provider of the provider's right to make a complaint about the notice to the Inspector-General of Intelligence and Security under the Inspector-General of Intelligence and Security Act 1986.

(4) If:

(a) the chief officer of an interception agency gives a technical assistance notice to a designated communications provider; and

(b) the provider has a right to make a complaint about the conduct of the chief officer, or the interception agency, in relation to the notice to:

(i) the Commonwealth Ombudsman; or

(ii) an authority that is the State or Territory inspecting agency in relation to the interception agency;

the chief officer must notify the provider of the provider's right to make such a complaint.

Form of advice or notification

(5) Advice under subsection (1) or (2), or notification under subsection (3) or (4), may be given:

(a) orally; or

(b) in writing.

(6) If advice under subsection (1) or (2), or notification under subsection (3) or (4), is given orally by the Director-General of Security or the chief officer of an interception agency, the Director-General of Security or the chief officer, as the case requires, must:

(a) make a written record of the advice or notification; and

(b) do so within 48 hours after the advice or notification was given.

317MAB Notification obligations

(1) If the Director-General of Security gives a technical assistance notice, the Director-General of Security must, within 7 days after the notice is given, notify the Inspector-General of Intelligence and Security that the notice has been given.

(2) If the chief officer of an interception agency gives a technical assistance notice, the chief officer must, within 7 days after the notice is given, notify the Commonwealth Ombudsman that the notice has been given.

(3) A failure to comply with subsection (1) or (2) does not affect the validity of a technical assistance notice.

317MA Duration of technical assistance notice

(1) A technical assistance notice:

(a) comes in force:

(i) when it is given; or

(ii) if a later time is specified in the notice - at that later time; and

(b) unless sooner revoked, remains in force:

(i) if an expiry date is specified in the notice - until the start of the expiry date; or

(ii) otherwise - at end of the 90-day period beginning when the notice was given.

(1A) An expiry date specified in a technical assistance notice must not be later than 12 months after the notice was given.

(1B) Paragraph (1)(b) has effect subject to subsections (1C) and (1D).

(1C) If the Director-General of Security has given a technical assistance notice to a designated communications provider, the Director-General of Security may, with the agreement of the provider, extend for a further period (not exceeding 12 months) or further periods (not exceeding 12 months in each case) the period for which the technical assistance notice is in force.

(1D) If the chief officer of an interception agency has given a technical assistance notice to a designated communications provider, the chief officer may, with the agreement of the provider, extend for a further period (not exceeding 12 months) or further periods (not exceeding 12 months in each case) the period for which the technical assistance notice is in force.

(1E) If the Director-General of Security extends the period for which a technical assistance notice is in force, the Director-General of Security must, within 7 days after extending the period, notify the Inspector-General of Intelligence and Security of the extension.

(1F) If the chief officer of an interception agency extends the period for which a technical assistance notice is in force, the chief officer must, within 7 days after extending the period, notify the Commonwealth Ombudsman of the extension.

(1G) A failure to comply with subsection (1E) or (1F) does not affect the validity of an extension of a technical assistance notice.

(2) If a technical assistance notice expires, this Part does not prevent the giving of a fresh technical assistance notice in the same terms as the expired technical assistance notice.

317N Compliance period etc.

(1) A technical assistance notice may require a specified act or thing to be done within a specified period.

(2) A technical assistance notice may require a specified act or thing to be done:

(a) in a specified manner; or

(b) in a way that meets one or more specified conditions.

(3) Subsections (1) and (2) of this section do not limit subsections 317L(1) and (2).

317P Decision-making criteria

The Director-General of Security or the chief officer of an interception agency must not give a technical assistance notice to a designated communications provider unless the Director-General of Security or the chief officer, as the case requires, is satisfied that:

(a) the requirements imposed by the notice are reasonable and proportionate; and

(b) compliance with the notice is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317RA.

317PA Consultation about a proposal to give a technical assistance notice

(1) Before giving a technical assistance notice to a designated communications provider, the Director-General of Security or the chief officer of an interception agency, as the case requires, must consult the provider.

(2) The rule in subsection (1) does not apply to a technical assistance notice given to a designated communications provider by the Director-General of Security if:

(a) the Director-General of Security is satisfied that the technical assistance notice should be given as a matter of urgency; or

(b) the provider waives compliance with subsection (1).

(3) The rule in subsection (1) does not apply to a technical assistance notice given to a designated communications provider by the chief officer of an interception agency if:

(a) the chief officer is satisfied that the technical assistance notice should be given as a matter of urgency; or

(b) the provider waives compliance with subsection (1).

317Q Variation of technical assistance notices

(1) If a technical assistance notice has been given to a designated communications provider by the Director-General of Security, the Director-General of Security may vary the notice.

(2) If a technical assistance notice has been given to a designated communications provider by the chief officer of an interception agency, the chief officer may vary the notice.

Form of variation

(3) A variation may be made:

(a) orally; or

(b) in writing.

(4) A variation must not be made orally unless:

(a) an imminent risk of serious harm to a person or substantial damage to property exists; and

(b) the variation is necessary for the purpose of dealing with that risk; and

(c) it is not practicable in the circumstances to make the variation in writing.

(5) If a variation is made orally by the Director-General of Security or the chief officer of an interception agency, the Director-General of Security or the chief officer, as the case requires, must:

(a) make a written record of the variation; and

(b) do so within 48 hours after the variation was made.

(6) If, under subsection (5), the Director-General of Security or the chief officer of an interception agency makes a written record of a variation, the Director-General of Security or the chief officer, as the case requires, must:

(a) give a copy of the record to the designated communications provider concerned; and

(b) do so as soon as practicable after the record was made.

(7) If a variation is made in writing by the Director-General of Security or the chief officer of an interception agency, the Director-General of Security or the chief officer, as the case requires, must:

(a) give a copy of the variation to the designated communications provider concerned; and

(b) do so as soon as practicable after the variation was made.

Acts or things specified in a varied technical assistance notice

(8) The acts or things specified in a varied technical assistance notice must be:

(a) in connection with any or all of the eligible activities of the designated communications provider concerned; and

(b) covered by subsection 317L(2).

(9) The acts or things specified in a varied technical assistance notice must be listed acts or things, so long as those acts or things:

(a) are in connection with any or all of the eligible activities of the designated communications provider concerned; and

(b) are covered by subsection 317L(2).

Note: For listed acts or things , see section 317E.

Decision-making criteria

(10) The Director-General of Security or the chief officer of an interception agency must not vary a technical assistance notice unless the Director-General of Security or the chief officer, as the case requires, is satisfied that:

(a) the requirements imposed by the varied notice are reasonable and proportionate; and

(b) compliance with the varied notice is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317RA.

Variation must not extend duration of technical assistance notice

(11) A variation of a technical assistance notice must not extend the period for which the notice is in force.

Notification obligations

(12) If the Director-General of Security varies a technical assistance notice, the Director-General of Security must, within 7 days after varying the notice, notify the Inspector-General of Intelligence and Security that the notice has been varied.

(13) If the chief officer of an interception agency varies a technical assistance notice, the chief officer must, within 7 days after varying the notice, notify the Commonwealth Ombudsman that the notice has been varied.

(14) A failure to comply with subsection (12) or (13) does not affect the validity of a variation of a technical assistance notice.

317R Revocation of technical assistance notices

(1) If a technical assistance notice has been given to a person by the Director-General of Security, the Director-General of Security may, by written notice given to the person, revoke the notice.

(2) If a technical assistance notice has been given to a person by the Director-General of Security, and the Director-General of Security is satisfied that:

(a) the requirements imposed by the notice are not reasonable and proportionate; or

(b) compliance with the notice is not:

(i) practicable; and

(ii) technically feasible;

the Director-General of Security must, by written notice given to the person, revoke the notice.

(3) If a technical assistance notice has been given to a person by the chief officer of an interception agency, the chief officer may, by written notice given to the person, revoke the notice.

(4) If a technical assistance notice has been given to a person by the chief officer of an interception agency, and the chief officer is satisfied that:

(a) the requirements imposed by the notice are not reasonable and proportionate; or

(b) compliance with the notice is not:

(i) practicable; and

(ii) technically feasible;

the chief officer must, by written notice given to the person, revoke the notice.

Notification obligations

(5) If the Director-General of Security revokes a technical assistance notice, the Director-General of Security must, within 7 days after revoking the notice, notify the Inspector-General of Intelligence and Security that the notice has been revoked.

(6) If the chief officer of an interception agency revokes a technical assistance notice, the chief officer must, within 7 days after revoking the notice, notify the Commonwealth Ombudsman that the notice has been revoked.

(7) A failure to comply with subsection (5) or (6) does not affect the validity of a revocation of a technical assistance notice.

317RA Whether requirements imposed by a technical assistance notice are reasonable and proportionate

In considering whether the requirements imposed by a technical assistance notice or a varied technical assistance notice are reasonable and proportionate, the Director-General of Security or the chief officer of an interception agency, as the case requires, must have regard to the following matters:

(a) the interests of national security;

(b) the interests of law enforcement;

(c) the legitimate interests of the designated communications provider to whom the notice relates;

(d) the objectives of the notice;

(e) the availability of other means to achieve the objectives of the notice;

(ea) whether the requirements, when compared to other forms of industry assistance known to the Director-General of Security or the chief officer, as the case requires, are the least intrusive form of industry assistance so far as the following persons are concerned:

(i) persons whose activities are not of interest to ASIO;

(ii) persons whose activities are not of interest to interception agencies;

(eb) whether the requirements are necessary;

(f) the legitimate expectations of the Australian community relating to privacy and cybersecurity;

(g) such other matters (if any) as the Director-General of Security or the chief officer, as the case requires, considers relevant.

Division 4 - Technical capability notices

317S Attorney-General may determine procedures and arrangements relating to requests for technical capability notices

(1) The Attorney-General may, by writing, determine procedures and arrangements to be followed in relation to the making of requests for technical capability notices.

(2) A procedure or arrangement determined under subsection (1) may require that the agreement of a person or body must be obtained before a request is made for a technical capability notice.

(3) A failure to comply with a determination under subsection (1) does not affect the validity of a technical capability notice.

(4) A determination under subsection (1) is not a legislative instrument.

317T Technical capability notices

(1) The Attorney-General may, in accordance with a request made by the Director-General of Security or the chief officer of an interception agency, give a designated communications provider a written notice, to be known as a technical capability notice, that requires the provider to do one or more specified acts or things that:

(a) are in connection with any or all of the eligible activities of the provider; and

(b) are covered by subsection (2).

Note: Section 317ZK deals with the terms and conditions on which such a requirement is to be complied with.

(2) The specified acts or things must:

(a) be directed towards ensuring that the designated communications provider is capable of giving listed help to ASIO, or an interception agency, in relation to:

(i) the performance of a function, or the exercise of a power, conferred by or under a law of the Commonwealth, a State or a Territory, so far as the function or power relates to a relevant objective; or

(ii) a matter that facilitates, or is ancillary or incidental to, a matter covered by subparagraph (i); or

(b) be by way of giving help to ASIO, or an interception agency, in relation to:

(i) the performance of a function, or the exercise of a power, conferred by or under a law of the Commonwealth, a State or a Territory, so far as the function or power relates to a relevant objective; or

(ii) a matter that facilitates, or is ancillary or incidental to, a matter covered by subparagraph (i).

Relevant objective

(3) For the purposes of this section, relevant objective means:

(a) enforcing the criminal law, so far as it relates to serious Australian offences; or

(b) assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or

(c) safeguarding national security.

Listed help

(4) For the purposes of the application of this section to a designated communications provider, if one or more acts or things done by the provider:

(a) are by way of giving help to ASIO or an interception agency; and

(b) are in connection with any or all of the eligible activities of the provider; and

(c) consist of either or both of the following:

(i) one or more listed acts or things (other than an act or thing covered by paragraph 317E(1)(a));

(ii) one or more acts or things of a kind determined under subsection (5);

that help is listed help .

Note: For listed acts or things , see section 317E.

(5) The Home Affairs Minister may, by legislative instrument, determine one or more kinds of acts or things for the purposes of subparagraph (4)(c)(ii).

(6) In making a determination under subsection (5), the Home Affairs Minister must have regard to the following matters:

(a) the interests of law enforcement;

(b) the interests of national security;

(c) the objects of this Act;

(d) the likely impact of the determination on designated communications providers;

(e) such other matters (if any) as the Home Affairs Minister considers relevant.

Listed acts or things

(7) The acts or things specified in a technical capability notice given to a designated communications provider in accordance with paragraph (2)(b) must be listed acts or things, so long as those acts or things:

(a) are in connection with any or all of the eligible activities of the provider; and

(b) are covered by subsection (2), so far as that subsection relates to paragraph (2)(b).

Applicable costs negotiator

(12) A technical capability notice must specify a person as the applicable costs negotiator for the notice.

Note: See section 317ZK.

(13) A person may be specified under subsection (12):

(a) by name; or

(b) as any person from time to time holding, occupying, or performing the duties of, a specified office or position.

317TAAA Approval of technical capability notice

(1) The Attorney-General must not give a technical capability notice to a designated communications provider unless:

(a) the Attorney-General has given the Minister a written notice setting out a proposal to give the technical capability notice; and

(b) the Minister has approved the giving of the technical capability notice.

(2) An approval under paragraph (1)(b) may be given:

(a) orally; or

(b) in writing.

(3) If an approval under paragraph (1)(b) is given orally, the Minister must:

(a) make a written record of the approval; and

(b) do so within 48 hours after the approval was given.

(4) The Attorney-General may make a representation to the Minister about the proposal to give the technical capability notice.

(5) A representation may deal with:

(a) any of the matters set out in section 317ZAA; and

(b) such other matters (if any) as the Attorney-General considers relevant.

(6) In considering whether to approve the giving of the technical capability notice, the Minister must have regard to the following matters:

(a) the objectives of the notice;

(b) the legitimate interests of the designated communications provider to whom the notice relates;

(c) the impact of the notice on the efficiency and international competitiveness of the Australian telecommunications industry;

(d) the representation (if any) that was made under subsection (4);

(e) such other matters (if any) as the Minister considers relevant.

317TAA Provision of advice to designated communications providers

(1) If the Attorney-General gives a technical capability notice to a designated communications provider, the Attorney-General must give the provider advice relating to the provider's obligations under whichever of sections 317ZA and 317ZB is applicable, so far as those obligations relate to the notice.

Form of advice

(2) Advice under subsection (1) may be given:

(a) orally; or

(b) in writing.

(3) If advice under subsection (1) is given orally, the Attorney-General must:

(a) make a written record of the advice; and

(b) do so within 48 hours after the advice was given.

317TAB Notification obligations

(1) If:

(a) the Attorney-General gives a technical capability notice; and

(b) the acts or things specified in the notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to ASIO in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);

the Attorney-General must, within 7 days after the notice is given, notify the Inspector-General of Intelligence and Security that the notice has been given.

(2) If:

(a) the Attorney-General gives a technical capability notice; and

(b) the acts or things specified in the notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to an interception agency in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);

the Attorney-General must, within 7 days after the notice is given, notify the Commonwealth Ombudsman that the notice has been given.

(3) A failure to comply with subsection (1) or (2) does not affect the validity of a technical capability notice.

317TA Duration of technical capability notice

(1) A technical capability notice:

(a) comes in force:

(i) when it is given; or

(ii) if a later time is specified in the notice - at that later time; and

(b) unless sooner revoked, remains in force:

(i) if an expiry date is specified in the notice - until the start of the expiry date; or

(ii) otherwise - at end of the 180-day period beginning when the notice was given.

(1A) An expiry date specified in a technical capability notice must not be later than 12 months after the notice was given.

(1B) Paragraph (1)(b) has effect subject to subsection (1C).

(1C) If the Attorney-General has given a technical capability notice to a designated communications provider, the Attorney-General may, with the agreement of the provider, extend for a further period (not exceeding 12 months) or further periods (not exceeding 12 months in each case) the period for which the technical capability notice is in force.

(1D) If:

(a) the Attorney-General extends the period for which a technical capability notice is in force; and

(b) the acts or things specified in the notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to ASIO in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);

the Attorney-General must, within 7 days after extending the period, notify the Inspector-General of Intelligence and Security of the extension.

(1E) If:

(a) the Attorney-General extends the period for which a technical capability notice is in force; and

(b) the acts or things specified in the notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to an interception agency in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);

the Attorney-General must, within 7 days after extending the period, notify the Commonwealth Ombudsman of the extension.

(1F) A failure to comply with subsection (1D) or (1E) does not affect the validity of an extension of a technical capability notice.

(2) If a technical capability notice expires, this Part does not prevent the giving of a fresh technical capability notice in the same terms as the expired technical capability notice.

317U Compliance period etc.

(1) A technical capability notice may require a specified act or thing to be done within a specified period.

(2) A technical capability notice may require a specified act or thing to be done:

(a) in a specified manner; or

(b) in a way that meets one or more specified conditions.

(3) Subsections (1) and (2) of this section do not limit subsections 317T(1) and (2).

317V Decision-making criteria

The Attorney-General must not give a technical capability notice to a designated communications provider unless:

(a) the Attorney-General is satisfied that the requirements imposed by the notice are reasonable and proportionate; and

(b) the Attorney-General is satisfied that compliance with the notice is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317ZAA.

317W Consultation about a proposal to give a technical capability notice

(1) The Attorney-General must not give a technical capability notice to a designated communications provider unless the Attorney-General has first:

(a) given the provider a written notice (the consultation notice ):

(i) setting out a proposal to give the technical capability notice; and

(ii) inviting the provider to make a submission to the Attorney-General on the proposed technical capability notice; and

(b) considered any submission that was received within the time limit specified in the consultation notice.

(2) A time limit specified in a consultation notice must run for at least 28 days.

(3) The rule in subsection (2) does not apply to a technical capability notice given to a designated communications provider if:

(a) the Attorney-General is satisfied that the technical capability notice should be given as a matter of urgency; or

(b) compliance with subsection (2) is impracticable; or

(c) the provider waives compliance with subsection (2).

(4) For the purposes of paragraph (3)(c), a designated communications provider may waive compliance:

(a) orally; or

(b) in writing.

(5) If compliance is waived orally by a designated communications provider, the provider must:

(a) make a written record of the waiver; and

(b) do so within 48 hours after the waiver was made.

(6) If, under subsection (5), a designated communications provider makes a written record of the waiver, the provider must:

(a) give a copy of the record to the Attorney-General; and

(b) do so as soon as practicable after the record was made.

(7) Subsection (1) does not apply to a technical capability notice proposed to be given to a designated communications provider if:

(a) the requirements imposed by the proposed technical capability notice are the same, or substantially the same, as the requirements imposed by another technical capability notice that has previously been given to the provider; and

(b) the proposed technical capability notice is to come into force immediately after the expiry of the other technical capability notice.

Special consultation requirements for replacement technical capability notices

(8) Before giving a designated communications provider a technical capability notice that satisfies the following conditions:

(a) the requirements imposed by the technical capability notice are the same, or substantially the same, as the requirements imposed by another technical capability notice that has previously been given to the provider;

(b) the first-mentioned technical capability notice is to come into force immediately after the expiry of the other technical capability notice;

the Attorney-General must consult the provider.

(9) The rule in subsection (8) does not apply to a technical capability notice given to a designated communications provider if the provider waives compliance with subsection (8).

317WA Assessment and report

Designated communications provider may request carrying out of assessment

(1) If a consultation notice is given to a designated communications provider under subsection 317W(1) in relation to a proposed technical capability notice, the provider may, within the time limit specified in the consultation notice, give the Attorney-General a written notice requesting the carrying out of an assessment of whether the proposed technical capability notice should be given.

Attorney-General must appoint assessors

(2) If a designated communications provider gives the Attorney-General a notice under subsection (1) in relation to a proposed technical capability notice, the Attorney-General must appoint 2 persons to carry out an assessment of whether the proposed technical capability notice should be given.

(3) For the purposes of this section, the persons appointed under subsection (2) are to be known as the assessors .

(4) One of the assessors must be a person who:

(a) has knowledge that would enable the person to assess whether proposed technical capability notices would contravene section 317ZG; and

(b) is cleared for security purposes to:

(i) the highest level required by staff members of ASIO; or

(ii) such lower level as the Attorney-General approves.

(5) One of the assessors must be a person who:

(a) has served as a judge in one or more prescribed courts for a period of 5 years; and

(b) no longer holds a commission as a judge of a prescribed court.

Assessment and report by assessors

(6) As soon as practicable after being appointed under subsection (2), the assessors must:

(a) carry out an assessment of whether the proposed technical capability notice should be given; and

(b) prepare a report of the assessment; and

(c) give a copy of the report to:

(i) the Attorney-General; and

(ii) the designated communications provider concerned; and

(d) if the acts or things specified in the proposed technical capability notice:

(i) are directed towards ensuring that the designated communications provider is capable of giving listed help (within the meaning of section 317T) to ASIO in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);

give a copy of the report to the Inspector-General of Intelligence and Security; and

(e) if the acts or things specified in the proposed technical capability notice:

(i) are directed towards ensuring that the designated communications provider is capable of giving listed help (within the meaning of section 317T) to an interception agency in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);

give a copy of the report to the Commonwealth Ombudsman.

(7) In carrying out an assessment under paragraph (6)(a) in relation to a technical capability notice proposed to be given to a designated communications provider, the assessors must:

(a) consider:

(i) whether the proposed technical capability notice would contravene section 317ZG; and

(ii) whether the requirements imposed by the proposed technical capability notice are reasonable and proportionate; and

(iii) whether compliance with the proposed technical capability notice is practicable; and

(iv) whether compliance with the proposed technical capability notice is technically feasible; and

(v) whether the proposed technical capability notice is the least intrusive measure that would be effective in achieving the legitimate objective of the proposed technical capability notice; and

(b) give the greatest weight to the matter mentioned in subparagraph (a)(i).

(8) In carrying out an assessment under paragraph (6)(a) in relation to a technical capability notice proposed to be given to a designated communications provider, the assessors must consult:

(a) the provider; and

(b) if the acts or things specified in the proposed technical capability notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to ASIO in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);

the Director-General of Security; and

(c) if the acts or things specified in the proposed technical capability notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to an interception agency in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);

the chief officer of the interception agency.

(9) If:

(a) the assessors have begun to carry out an assessment under paragraph (6)(a) in relation to a technical capability notice proposed to be given to a designated communications provider; and

(b) the provider informs the Attorney-General that the provider no longer wants the assessment to be carried out;

then:

(c) the Attorney-General must direct the assessors to cease carrying out the assessment; and

(d) the assessors must comply with the direction.

(10) If:

(a) the assessors have begun to carry out an assessment under paragraph (6)(a); and

(b) the Attorney-General withdraws the proposed technical capability notice to which the assessment relates;

then:

(c) the Attorney-General must direct the assessors to cease carrying out the assessment; and

(d) the assessors must comply with the direction.

Attorney-General must have regard to the report of the assessment

(11) If:

(a) a notice is given under subsection (1) in relation to a technical capability notice proposed to be given to a designated communications provider; and

(b) a copy of the report relating to the proposed technical capability notice is given to the Attorney-General under subsection (6);

the Attorney-General, in considering whether to proceed to give the technical capability notice, must have regard to the copy of the report.

Technical capability notice information

(12) For the purposes of this Part:

(a) information about the carrying out of an assessment under subsection (6); or

(b) information contained in a report prepared under subsection (6);

is taken to be information about consultation relating to the giving of a technical capability notice.

Prescribed court

(13) For the purposes of this section, prescribed court means:

(a) the High Court; or

(b) the Federal Court of Australia; or

(c) the Supreme Court of a State or Territory; or

(d) the District Court (or equivalent) of a State or Territory.

317X Variation of technical capability notices

(1) If a technical capability notice has been given to a designated communications provider, the Attorney-General may, by written notice given to the provider, vary the notice.

Acts or things specified in a varied technical capability notice

(2) The acts or things specified in a varied technical capability notice must be:

(a) in connection with any or all of the eligible activities of the designated communications provider concerned; and

(b) covered by subsection 317T(2).

(3) The acts or things specified in a varied technical capability notice in accordance with paragraph 317T(2)(b) must be listed acts or things, so long as those acts or things:

(a) are in connection with any or all of the eligible activities of the designated communications provider concerned; and

(b) are covered by subsection 317T(2), so far as that subsection relates to paragraph 317T(2)(b).

Note: For listed acts or things , see section 317E.

Decision-making criteria

(4) The Attorney-General must not vary a technical capability notice unless the Attorney-General is satisfied that:

(a) the requirements imposed by the varied notice are reasonable and proportionate; and

(b) compliance with the varied notice is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317ZAA.

Variation must not extend duration of technical capability notice

(5) A variation of a technical capability notice must not extend the period for which the notice is in force.

Notification obligations

(6) If:

(a) the Attorney-General varies a technical capability notice; and

(b) the acts or things specified in the varied notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to ASIO in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);

the Attorney-General must, within 7 days after varying the notice, notify the Inspector-General of Intelligence and Security that the notice has been varied.

(7) If:

(a) the Attorney-General varies a technical capability notice; and

(b) the acts or things specified in the varied notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to an interception agency in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);

the Attorney-General must, within 7 days after varying the notice, notify the Commonwealth Ombudsman that the notice has been varied.

(8) A failure to comply with subsection (6) or (7) does not affect the validity of a variation of a technical capability notice.

317XA Approval of variation of technical capability notice

(1) If a technical capability notice has been given to a designated communications provider, the Attorney-General must not vary the notice unless:

(a) both:

(i) the Attorney-General has given the Minister a written notice setting out a proposal to vary the technical capability notice; and

(ii) the Minister has approved the variation of the technical capability notice; or

(b) the provider has waived compliance with subsection 317Y(2) in relation to the variation of the technical capability notice.

(2) An approval under subparagraph (1)(a)(ii) may be given:

(a) orally; or

(b) in writing.

(3) If an approval under subparagraph (1)(a)(ii) is given orally, the Minister must:

(a) make a written record of the approval; and

(b) do so within 48 hours after the approval was given.

(4) The Attorney-General may make a representation to the Minister about the proposal to vary the technical capability notice.

(5) A representation may deal with:

(a) any of the matters set out in section 317ZAA; and

(b) such other matters (if any) as the Attorney-General considers relevant.

(6) In considering whether to approve the variation of the technical capability notice, the Minister must have regard to the following matters:

(a) the objectives of the notice as proposed to be varied;

(b) the legitimate interests of the designated communications provider to whom the notice relates;

(c) the impact of the notice as proposed to be varied on the efficiency and international competitiveness of the Australian telecommunications industry;

(d) the representation (if any) that was made under subsection (4);

(e) such other matters (if any) as the Minister considers relevant.

317Y Consultation about a proposal to vary a technical capability notice

(1) If a technical capability notice has been given to a designated communications provider, the Attorney-General must not vary the notice unless the Attorney-General has first:

(a) given the provider a written notice (the consultation notice) :

(i) setting out a proposal to vary the technical capability notice; and

(ii) inviting the provider to make a submission to the Attorney-General on the proposed variation; and

(b) considered any submission that was received within the time limit specified in the consultation notice.

(2) A time limit specified in a consultation notice must run for at least 28 days.

(3) If a technical capability notice has been given to a designated communications provider, the rule in subsection (2) does not apply to a variation of the notice if:

(a) the Attorney-General is satisfied that the technical capability notice should be varied as a matter of urgency; or

(b) compliance with subsection (2) is impracticable; or

(c) the provider waives compliance with subsection (2).

(4) For the purposes of paragraph (3)(c), a designated communications provider may waive compliance:

(a) orally; or

(b) in writing.

(5) If compliance is waived orally by a designated communications provider, the provider must:

(a) make a written record of the waiver; and

(b) do so within 48 hours after the waiver was made.

(6) If, under subsection (5), a designated communications provider makes a written record of the waiver, the provider must:

(a) give a copy of the record to the Attorney-General; and

(b) do so as soon as practicable after the record was made.

317YA Assessment and report

Designated communications provider may request carrying out of assessment

(1) If:

(a) a consultation notice is given to a designated communications provider under subsection 317Y(1) in relation to a proposed variation of a technical capability notice; and

(b) the variation is not of a minor nature;

the provider may, within the time limit specified in the consultation notice, give the Attorney-General a written notice requesting the carrying out of an assessment of whether the technical capability notice as proposed to be varied would contravene section 317ZG.

Attorney-General must appoint assessors

(2) If a designated communications provider gives the Attorney-General a notice under subsection (1) in relation to a technical capability notice as proposed to be varied, the Attorney-General must appoint 2 persons to carry out an assessment of whether the technical capability notice as proposed to be varied would contravene section 317ZG.

(3) For the purposes of this section, the persons appointed under subsection (2) are to be known as the assessors .

(4) One of the assessors must be a person who:

(a) has knowledge that would enable the person to assess whether proposed technical capability notices would contravene section 317ZG; and

(b) is cleared for security purposes to:

(i) the highest level required by staff members of ASIO; or

(ii) such lower level as the Attorney-General approves.

(5) One of the assessors must be a person who:

(a) has served as a judge in one or more prescribed courts for a period of 5 years; and

(b) no longer holds a commission as a judge of a prescribed court.

Assessment and report by assessors

(6) As soon as practicable after being appointed under subsection (2), the assessors must:

(a) carry out an assessment of whether the technical capability notice as proposed to be varied would contravene section 317ZG; and

(b) prepare a report of the assessment; and

(c) give a copy of the report to:

(i) the Attorney-General; and

(ii) the designated communications provider concerned; and

(d) if the acts or things specified in the technical capability notice as proposed to be varied:

(i) are directed towards ensuring that the designated communications provider is capable of giving listed help (within the meaning of section 317T) to ASIO in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);

give a copy of the report to the Inspector-General of Intelligence and Security; and

(e) if the acts or things specified in the technical capability notice as proposed to be varied:

(i) are directed towards ensuring that the designated communications provider is capable of giving listed help (within the meaning of section 317T) to an interception agency in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);

give a copy of the report to the Commonwealth Ombudsman.

(7) In carrying out an assessment under paragraph (6)(a) in relation to a technical capability notice as proposed to be varied, the assessors must consult:

(a) the designated communications provider concerned; and

(b) if the acts or things specified in the technical capability notice as proposed to be varied:

(i) are directed towards ensuring that the designated communications provider is capable of giving listed help (within the meaning of section 317T) to ASIO in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);

the Director-General of Security; and

(c) if the acts or things specified in the technical capability notice as proposed to be varied:

(i) are directed towards ensuring that the designated communications provider is capable of giving listed help (within the meaning of section 317T) to an interception agency in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);

the chief officer of the interception agency.

(8) If:

(a) the assessors have begun to carry out an assessment under paragraph (6)(a) in relation to the technical capability notice as proposed to be varied; and

(b) the designated communications provider concerned informs the Attorney-General that the provider no longer wants the assessment to be carried out;

then:

(c) the Attorney-General must direct the assessors to cease carrying out the assessment; and

(d) the assessors must comply with the direction.

(9) If:

(a) the assessors have begun to carry out an assessment under paragraph (6)(a); and

(b) the Attorney-General withdraws the proposed variation of the technical capability notice concerned;

then:

(c) the Attorney-General must direct the assessors to cease carrying out the assessment; and

(d) the assessors must comply with the direction.

Attorney-General must have regard to the report of the assessment

(10) If:

(a) a notice is given under subsection (1) in relation to a proposed variation of a technical capability notice; and

(b) a copy of the report relating to the technical capability notice as proposed to be varied is given to the Attorney-General under subsection (6);

the Attorney-General, in considering whether to proceed to vary the technical capability notice, must have regard to the copy of the report.

Technical capability notice information

(11) For the purposes of this Part:

(a) information about the carrying out of an assessment under subsection (6); or

(b) information contained in a report prepared under subsection (6);

is taken to be information about consultation relating to the variation of a technical capability notice.

Prescribed court

(12) For the purposes of this section, prescribed court means:

(a) the High Court; or

(b) the Federal Court of Australia; or

(c) the Supreme Court of a State or Territory; or

(d) the District Court (or equivalent) of a State or Territory.

317Z Revocation of technical capability notices

(1) If a technical capability notice has been given to a person, the Attorney-General may, by written notice given to the person, revoke the notice.

(2) If a technical capability notice has been given to a person, and the Attorney-General is satisfied that:

(a) the requirements imposed by the notice are not reasonable and proportionate; or

(b) compliance with the notice is not:

(i) practicable; and

(ii) technically feasible;

the Attorney-General must, by written notice given to the person, revoke the notice.

Notification obligations

(3) If:

(a) the Attorney-General revokes a technical capability notice; and

(b) the acts or things specified in the revoked notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to ASIO in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);

the Attorney-General must, within 7 days after revoking the notice, notify the Inspector-General of Intelligence and Security that the notice has been revoked.

(4) If:

(a) the Attorney-General revokes a technical capability notice; and

(b) the acts or things specified in the revoked notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to an interception agency in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);

the Attorney-General must, within 7 days after revoking the notice, notify the Commonwealth Ombudsman that the notice has been revoked.

(5) A failure to comply with subsection (3) or (4) does not affect the validity of a revocation of a technical capability notice.

317ZAA Whether requirements imposed by a technical capability notice are reasonable and proportionate

In considering whether the requirements imposed by a technical capability notice or a varied technical capability notice are reasonable and proportionate, the Attorney-General must have regard to the following matters:

(a) the interests of national security;

(b) the interests of law enforcement;

(c) the legitimate interests of the designated communications provider to whom the notice relates;

(d) the objectives of the notice;

(e) the availability of other means to achieve the objectives of the notice;

(ea) whether the requirements, when compared to other forms of industry assistance known to the Attorney-General, are the least intrusive form of industry assistance so far as the following persons are concerned:

(i) persons whose activities are not of interest to ASIO;

(ii) persons whose activities are not of interest to interception agencies;

(eb) whether the requirements are necessary;

(f) the legitimate expectations of the Australian community relating to privacy and cybersecurity;

(g) such other matters (if any) as the Attorney-General considers relevant.

Division 5 - Compliance and enforcement

317ZA Compliance with notices - carriers and carriage service providers

(1) A carrier or carriage service provider must comply with a requirement under:

(a) a technical assistance notice; or

(b) a technical capability notice;

to the extent that the carrier or provider is capable of doing so.

(2) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (1); or

(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

(d) conspire with others to effect a contravention of subsection (1).

(3) Subsections (1) and (2) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

317ZB Compliance with notices - designated communications provider (other than a carrier or carriage service provider)

(1) A designated communications provider (other than a carrier or carriage service provider) must comply with a requirement under:

(a) a technical assistance notice; or

(b) a technical capability notice;

to the extent that the provider is capable of doing so.

Civil penalty:

(a) if the provider is a body corporate - 47,619 penalty units; or

(b) if the provider is not a body corporate - 238 penalty units.

(2) The pecuniary penalty for a contravention by a designated communications provider of subsection (1) must not be more than:

(a) if the provider is a body corporate - 47,619 penalty units; or

(b) if the provider is not a body corporate - 238 penalty units.

(3) Subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 does not apply to a contravention of subsection (1) of this section.

(4) Sections 564 and 572B do not apply to a contravention of subsection (1) of this section.

(5) In proceedings for a civil penalty order against a designated communications provider for a contravention of subsection (1) in relation to:

(a) a requirement under a technical assistance notice to do an act or thing in a foreign country; or

(b) a requirement under a technical capability notice to do an act or thing in a foreign country;

it is a defence if the provider proves that compliance with the requirement in the foreign country would contravene a law of the foreign country.

317ZC Civil penalty provision

Enforceable civil penalty provision

(1) Section 317ZB of this Act is enforceable under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014.

Note: Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

Authorised applicant

(2) For the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014, the Communications Access Co-ordinator is an authorised applicant in relation to section 317ZB of this Act.

Relevant courts

(3) For the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014, the Federal Court and the Federal Circuit Court of Australia are relevant courts in relation to section 317ZB of this Act.

Extension to external Territories etc.

(4) Part 4 of the Regulatory Powers (Standard Provisions) Act 2014, as it applies in relation to section 317ZB of this Act, extends to:

(a) every external Territory; and

(b) acts, omissions, matters and things outside Australia.

317ZD Enforceable undertakings

Enforceable provision

(1) Section 317ZB of this Act is enforceable under Part 6 of the Regulatory Powers (Standard Provisions) Act 2014.

Authorised person

(2) The Communications Access Co-ordinator is an authorised person in relation to section 317ZB of this Act for the purposes of Part 6 of the Regulatory Powers (Standard Provisions) Act 2014.

Relevant courts

(3) The Federal Court and the Federal Circuit Court of Australia are relevant courts in relation to section 317ZB of this Act for the purposes of Part 6 of the Regulatory Powers (Standard Provisions) Act 2014.

Extension to external Territories etc.

(4) Part 6 of the Regulatory Powers (Standard Provisions) Act 2014, as it applies in relation to section 317ZB of this Act, extends to:

(a) every external Territory; and

(b) acts, omissions, matters and things outside Australia.

317ZE Injunctions

Enforceable provision

(1) Section 317ZB of this Act is enforceable under Part 7 of the Regulatory Powers (Standard Provisions) Act 2014.

Authorised person

(2) The Communications Access Co-ordinator is an authorised person in relation to section 317ZB of this Act for the purposes of Part 7 of the Regulatory Powers (Standard Provisions) Act 2014.

Relevant courts

(3) The Federal Court and the Federal Circuit Court of Australia are relevant courts in relation to section 317ZB of this Act for the purposes of Part 7 of the Regulatory Powers (Standard Provisions) Act 2014.

Extension to external Territories etc.

(4) Part 7 of the Regulatory Powers (Standard Provisions) Act 2014, as it applies in relation to section 317ZB of this Act, extends to:

(a) every external Territory; and

(b) acts, omissions, matters and things outside Australia.

Division 6 - Unauthorised disclosure of information etc.

317ZF Unauthorised disclosure of information

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the person is or was:

(i) a designated communications provider; or

(ii) an employee of a designated communications provider; or

(iii) a contracted service provider of a designated communications provider; or

(iv) an employee of a contracted service provider of a designated communications provider; or

(v) an entrusted ASIO person; or

(vi) an entrusted ASIS person; or

(vii) an entrusted ASD person; or

(viii) an officer of an interception agency; or

(ix) an officer or employee of the Commonwealth, a State or a Territory; or

(x) a person appointed under subsection 317WA(2); or

(xa) a person appointed under subsection 317YA(2); or

(xi) an arbitrator appointed under section 317ZK; and

(c) the information:

(i) is technical assistance notice information; or

(ii) is technical capability notice information; or

(iii) is technical assistance request information; or

(iv) was obtained in accordance with a technical assistance notice; or

(v) was obtained in accordance with a technical capability notice; or

(vi) was obtained in accordance with a technical assistance request; and

(d) if the information is covered by subparagraph (c)(i), (ii) or (iii) - the information has come to the person's knowledge, or into the person's possession:

(i) if the person is or was a designated communications provider - in connection with the person's capacity as such a provider; or

(ii) if the person is or was an employee of a designated communications provider - because the person is or was employed by the provider in connection with its business as such a provider; or

(iii) if the person is or was a contracted service provider of a designated communications provider - in connection with the person's business as such a contracted service provider; or

(iv) if the person is or was an employee of a contracted service provider of a designated communications provider - because the person is or was employed by the contractor in connection with its business as such a contracted service provider; or

(v) if the person is or was an entrusted ASIO person - in the person's capacity as such an entrusted ASIO person; or

(vi) if the person is or was an entrusted ASIS person - in the person's capacity as such an entrusted ASIS person; or

(vii) if the person is or was an entrusted ASD person - in the person's capacity as such an entrusted ASD person; or

(viii) if the person is or was an officer of an interception agency - in the person's capacity as such an officer; or

(ix) if the person is or was an officer or employee of the Commonwealth, a State or a Territory - in the person's capacity as such an officer or employee; or

(ixa) if the person is or was a person appointed under subsection 317WA(2) - in the person's capacity as such an appointee; or

(ixb) if the person is or was a person appointed under subsection 317YA(2) - in the person's capacity as such an appointee; or

(x) if the person is or was an arbitrator appointed under section 317ZK - in the person's capacity as such an arbitrator; and

(e) if the information is covered by subparagraph (c)(iv), (v) or (vi) - the information has come to the person's knowledge, or into the person's possession:

(i) if the person is or was an entrusted ASIO person - in the person's capacity as such an entrusted ASIO person; or

(ii) if the person is or was an entrusted ASIS person - in the person's capacity as such an entrusted ASIS person; or

(iii) if the person is or was an entrusted ASD person - in the person's capacity as such an entrusted ASD person; or

(iv) if the person is or was an officer of an interception agency - in the person's capacity as such an officer; or

(v) if the person is or was an officer or employee of the Commonwealth, a State or a Territory - in the person's capacity as such an officer or employee; or

(vi) if the person is or was an arbitrator appointed under section 317ZK - in the person's capacity as such an arbitrator.

Penalty: Imprisonment for 5 years.

Exceptions

(2) Subsection (1) does not apply if the disclosure was authorised under subsection (3), (5), (5A), (5B), (5C), (6), (7), (8), (9), (10), (11), (12A), (12B), (12C), (12D), (13), (14), (15) or (16).

Note: Except as provided by subsection (2A) or (2B), a defendant bears an evidential burden in relation to the matters in this subsection - see subsection 13.3(3) of the Criminal Code.

(2A) Despite subsection 13.3(3) of the Criminal Code, in a prosecution for an offence against subsection (1) of this section, an IGIS official does not bear an evidential burden in relation to the matters in subsection (2) of this section, to the extent to which that subsection relates to subsection (5) of this section.

(2B) Despite subsection 13.3(3) of the Criminal Code, in a prosecution for an offence against subsection (1) of this section, an Ombudsman official does not bear an evidential burden in relation to the matters in subsection (2) of this section, to the extent to which that subsection relates to subsection (5A), (5B) or (5C) of this section.

Authorised disclosures - general

(3) A person covered by paragraph (1)(b) may disclose technical assistance notice information, technical capability notice information or technical assistance request information:

(a) in connection with the administration or execution of this Part; or

(b) for the purposes of any legal proceedings arising out of or otherwise related to this Part or of any report of any such proceedings; or

(c) in accordance with any requirement imposed by a law of the Commonwealth, a State or a Territory; or

(d) in connection with the performance of functions, or the exercise of powers, by:

(i) ASIO; or

(ii) the Australian Secret Intelligence Service; or

(iii) the Australian Signals Directorate; or

(iv) an interception agency; or

(e) for the purpose of obtaining legal advice in relation to this Part; or

(f) to an IGIS official for the purpose of exercising powers, or performing functions or duties, as an IGIS official; or

(g) to an Ombudsman official for the purpose of exercising powers, or performing functions or duties, as an Ombudsman official.

(4) For the purposes of subsection (3), this Part includes:

(a) any other provision of this Act, so far as that other provision relates to this Part; and

(b) the Regulatory Powers (Standard Provisions) Act 2014, so far as that Act relates to this Part.

Authorised disclosures - IGIS official

(5) An IGIS official may disclose:

(a) technical assistance notice information; or

(b) technical capability notice information; or

(c) technical assistance request information;

in connection with the IGIS official exercising powers, or performing functions or duties, as an IGIS official.

Authorised disclosures - Ombudsman official

(5A) An Ombudsman official may disclose:

(a) technical assistance notice information; or

(b) technical capability notice information; or

(c) technical assistance request information;

in connection with the Ombudsman official exercising powers, or performing functions or duties, as an Ombudsman official.

(5B) If a technical assistance notice is given by the chief officer of an interception agency of a State or Territory, an Ombudsman official may disclose technical assistance notice information that relates to the notice to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.

(5C) If a technical assistance request is given by the chief officer of an interception agency of a State or Territory, an Ombudsman official may disclose technical assistance request information that relates to the request to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.

Authorised disclosures - information sharing

(6) The Director-General of Security or the Communications Access Co-ordinator may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

(c) technical assistance request information;

to the chief officer of an interception agency for purposes relating to the performance of functions, or the exercise of powers, by the interception agency.

(7) The chief officer of an interception agency may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

(c) technical assistance request information;

to the chief officer of another interception agency for purposes relating to the performance of functions, or the exercise of powers, by the other interception agency.

(8) The Director-General of Security, the Director-General of the Australian Signals Directorate or the chief officer of an interception agency may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

(c) technical assistance request information;

to the Director-General of the Australian Secret Intelligence Service for purposes relating to the performance of functions, or the exercise of powers, by the Australian Secret Intelligence Service.

(9) The Director-General of Security, the Director-General of the Australian Secret Intelligence Service or the chief officer of an interception agency may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

(c) technical assistance request information;

to the Director-General of the Australian Signals Directorate for purposes relating to the performance of functions, or the exercise of powers, by the Australian Signals Directorate.

(10) The Communications Access Co-ordinator, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer of an interception agency may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

(c) technical assistance request information;

to the Director-General of Security for purposes relating to the performance of functions, or the exercise of powers, by ASIO.

(11) The Director-General of Security or the chief officer of an interception agency may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

(c) technical assistance request information;

to the Communications Access Co-ordinator for purposes relating to the performance of functions, or the exercise of powers, by the Communications Access Co-ordinator.

(12) Before disclosing information under subsection (6), (7), (8), (9) or (10), the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer of an interception agency, as the case requires, must notify the Communications Access Co-ordinator of the proposed disclosure.

Authorised disclosures - Communications Access Co-ordinator

(12A) If:

(a) the Attorney-General has given a technical capability notice; and

(b) the acts or things specified in the notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to an interception agency of a State or Territory in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency of a State or Territory in relation to a matter covered by paragraph 317T(2)(b);

the Communications Access Co-ordinator may disclose technical capability notice information that relates to the notice to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.

Authorised disclosures - State or Territory inspecting authority

(12B) If a technical assistance notice has been given to a designated communications provider by the chief officer of an interception agency of a State or Territory:

(a) the designated communications provider; or

(b) an employee of the designated communications provider; or

(c) a contracted service provider of the designated communications provider; or

(d) an employee of a contracted service provider of the designated communications provider;

may disclose technical assistance notice information that relates to the notice to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.

(12C) If a technical assistance request has been given to a designated communications provider by the chief officer of an interception agency of a State or Territory:

(a) the designated communications provider; or

(b) an employee of the designated communications provider; or

(c) a contracted service provider of the designated communications provider; or

(d) an employee of a contracted service provider of the designated communications provider;

may disclose technical assistance request information that relates to the request to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.

(12D) If:

(a) technical assistance notice information is disclosed under subsection (12B); or

(b) technical assistance request information is disclosed under subsection (12C);

to an officer or employee of an authority that is the State or Territory inspecting authority in relation to an interception agency, the officer or employee may disclose the information in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.

Authorised disclosures - statistics

(13) A person who is:

(a) a designated communications provider; or

(b) an employee of a designated communications provider; or

(c) a contracted service provider of a designated communications provider; or

(d) an employee of a contracted service provider of a designated communications provider;

may, in the person's capacity as such a provider or employee, disclose:

(e) the total number of technical assistance notices given to the provider during a period of at least 6 months; or

(f) the total number of technical capability notices given to the provider during a period of at least 6 months; or

(g) the total number of technical assistance requests given to the provider during a period of at least 6 months.

Note: This subsection authorises the disclosure of aggregate statistical information. That information cannot be broken down:

(a) by agency; or

(b) in any other way.

Other authorised disclosures

(14) If a technical assistance notice has been given to a designated communications provider by the Director-General of Security, the Director-General of Security may, if requested to do so by the designated communications provider, authorise:

(a) the designated communications provider; or

(b) a specified employee of the designated communications provider; or

(c) a specified contracted service provider of the designated communications provider; or

(d) a specified employee of a contracted service provider of the designated communications provider;

to disclose, in accordance with the conditions specified in the authorisation, specified technical assistance notice information that relates to the notice.

(15) If a technical assistance notice has been given to a designated communications provider by the chief officer of an interception agency, the chief officer may, if requested to do so by the designated communications provider, authorise:

(a) the designated communications provider; or

(b) a specified employee of the designated communications provider; or

(c) a specified contracted service provider of the designated communications provider; or

(d) a specified employee of a contracted service provider of the designated communications provider;

to disclose, in accordance with the conditions specified in the authorisation, specified technical assistance notice information that relates to the notice.

(16) If a technical capability notice has been given to a designated communications provider, the Attorney-General may, if requested to do so by the designated communications provider, authorise:

(a) the designated communications provider; or

(b) a specified employee of the designated communications provider; or

(c) a specified contracted service provider of the designated communications provider; or

(d) a specified employee of a contracted service provider of the designated communications provider;

to disclose, in accordance with the conditions specified in the authorisation, specified technical capability notice information that relates to the notice.

(17) An authorisation under subsection (14), (15) or (16) must be in writing.

317ZFA Powers of a court

(1) In a proceeding under, or arising out of:

(a) this Part; or

(b) any other provision of this Act, so far as that other provision relates to this Part; or

(c) the Regulatory Powers (Standard Provisions) Act 2014, so far as that Act relates to this Part;

a court may make such orders as the court considers appropriate in relation to the disclosure, protection, storage, handling or destruction, in the proceeding, of:

(d) technical assistance notice information; or

(e) technical capability notice information; or

(f) technical assistance request information;

if the court is satisfied that it is in the public interest to make such orders.

(2) The powers conferred on a court by subsection (1) are in addition to any other powers of the court.

Division 7 - Limitations

317ZG Designated communications provider must not be requested or required to implement or build a systemic weakness or systemic vulnerability etc.

(1) A technical assistance request, technical assistance notice or technical capability notice must not have the effect of:

(a) requesting or requiring a designated communications provider to implement or build a systemic weakness, or a systemic vulnerability, into a form of electronic protection; or

(b) preventing a designated communications provider from rectifying a systemic weakness, or a systemic vulnerability, in a form of electronic protection.

(2) The reference in paragraph (1)(a) to implement or build a systemic weakness, or a systemic vulnerability, into a form of electronic protection includes a reference to implement or build a new decryption capability in relation to a form of electronic protection.

(3) The reference in paragraph (1)(a) to implement or build a systemic weakness, or a systemic vulnerability, into a form of electronic protection includes a reference to one or more actions that would render systemic methods of authentication or encryption less effective.

(4) Subsections (2) and (3) are enacted for the avoidance of doubt.

(4A) In a case where a weakness is selectively introduced to one or more target technologies that are connected with a particular person, the reference in paragraph (1)(a) to implement or build a systemic weakness into a form of electronic protection includes a reference to any act or thing that will, or is likely to, jeopardise the security of any information held by any other person.

(4B) In a case where a vulnerability is selectively introduced to one or more target technologies that are connected with a particular person, the reference in paragraph (1)(a) to implement or build a systemic vulnerability into a form of electronic protection includes a reference to any act or thing that will, or is likely to, jeopardise the security of any information held by any other person.

(4C) For the purposes of subsections (4A) and (4B), an act or thing will, or is likely to, jeopardise the security of information if the act or thing creates a material risk that otherwise secure information can be accessed by an unauthorised third party.

(5) A technical assistance request, technical assistance notice or technical capability notice has no effect to the extent (if any) to which it would have an effect covered by paragraph (1)(a) or (b).

317ZGA Limits on technical capability notices

(1) If:

(a) a designated communications provider supplies a particular kind of telecommunications service; and

(b) the service involves, or will involve, the use of a telecommunications system;

a technical capability notice has no effect to the extent (if any) to which it requires the provider to ensure that the kind of service, or the system:

(c) has the capability to enable a communication passing over the system to be intercepted in accordance with an interception warrant; or

(d) has the capability to transmit lawfully intercepted information to the delivery points applicable in respect of that kind of service; or

(e) has a delivery capability.

Note 1: Part 5-3 of the Telecommunications (Interception and Access) Act 1979 deals with interception capability.

Note 2: Part 5-5 of the Telecommunications (Interception and Access) Act 1979 deals with delivery capability.

(2) For the purposes of subsection (1), ensuring that a kind of service or a system has a particular capability includes ensuring that the capability is developed, installed and maintained.

(3) A technical capability notice has no effect to the extent (if any) to which it requires a designated communications provider to keep, or cause to be kept:

(a) information of a kind specified in or under section 187AA of the Telecommunications (Interception and Access) Act 1979; or

(b) documents containing information of that kind;

relating to any communication carried by means of a service to which Part 5-1A of the Telecommunications (Interception and Access) Act 1979 applies.

Note: Part 5-1A of the Telecommunications (Interception and Access) Act 1979 deals with data retention.

(4) A technical capability notice has no effect to the extent (if any) to which it requires a designated communications provider to keep, or cause to be kept, information that:

(a) states an address to which a communication was sent on the internet, from a telecommunications device, using an internet access service provided by the provider; and

(b) was obtained by the provider only as a result of providing the service.

Note: This subsection ensures that a technical capability notice cannot require a designated communications provider to keep information about subscribers' web browsing history.

(5) An expression used in this section and in Chapter 5 of the Telecommunications (Interception and Access) Act 1979 has the same meaning in this section as it has in that Chapter.

317ZH General limits on technical assistance requests, technical assistance notices and technical capability notices

(1) A technical assistance request that relates to an agency, or a technical assistance notice that relates to an agency, or a technical capability notice that relates to an agency, has no effect to the extent (if any) to which it would request or require a designated communications provider to do an act or thing for which the agency, or an officer of the agency, would be required to have or obtain a warrant or authorisation under any of the following laws:

(a) the Telecommunications (Interception and Access) Act 1979;

(b) the Surveillance Devices Act 2004;

(c) the Crimes Act 1914;

(d) the Australian Security Intelligence Organisation Act 1979;

(f) a law of the Commonwealth (other than this Part) that is not covered by paragraph (a), (b), (c) or (d);

(g) a law of a State or Territory.

(2) For the purposes of subsection (1):

(a) assume that each law mentioned in that subsection applied both within and outside Australia; and

(b) assume that each reference in Part 13 to a carriage service provider included a reference to a designated communications provider.

(3) A technical assistance request, technical assistance notice or technical capability notice has no effect to the extent (if any) to which it would request or require a designated communications provider to:

(a) use a surveillance device (within the meaning of the Surveillance Devices Act 2004); or

(b) access data held in a computer (within the meaning of the Surveillance Devices Act 2004);

if a law of a State or Territory requires a warrant or authorisation for that use or access.

(4) To avoid doubt, subsection (1) or (3) does not prevent a technical assistance request, technical assistance notice or technical capability notice from requesting or requiring a designated communications provider to do an act or thing by way of giving help to:

(a) ASIO; or

(b) an interception agency;

in relation to:

(ca) in the case of a technical assistance request - a matter covered by subparagraph 317G(2)(b)(v) or (vi); or

(c) in the case of a technical assistance notice - a matter covered by paragraph 317L(2)(c) or (d); or

(d) in the case of a technical capability notice - a matter covered by subparagraph 317T(2)(b)(i) or (ii);

if the doing of the act or thing would:

(e) assist in, or facilitate, giving effect to a warrant or authorisation under a law of the Commonwealth, a State or a Territory; or

(f) give effect to a warrant or authorisation under a law of the Commonwealth.

(5) To avoid doubt, subsection (1) or (3) does not prevent a technical capability notice from requiring a designated communications provider to do an act or thing directed towards ensuring that the provider is capable of giving listed help (within the meaning of section 317T) to:

(a) ASIO; or

(b) an interception agency;

in relation to a matter covered by subparagraph 317T(2)(a)(i) or (ii), if the doing of the act or thing would:

(c) assist in, or facilitate, giving effect to a warrant or authorisation under a law of the Commonwealth, a State or a Territory; or

(d) give effect to a warrant or authorisation under a law of the Commonwealth.

Interpretation

(6) For the purposes of this section, a technical assistance request relates to an agency if:

(a) if the agency is ASIO - the request was given by the Director-General of Security; or

(b) if the agency is the Australian Secret Intelligence Service - the request was given by the Director-General of the Australian Secret Intelligence Service; or

(c) if the agency is the Australian Signals Directorate - the request was given by the Director-General of the Australian Signals Directorate; or

(d) if the agency is an interception agency - the request was given by the chief officer of the interception agency.

(7) For the purposes of this section, a technical assistance notice relates to an agency if:

(a) if the agency is ASIO - the notice was given by the Director-General of Security; or

(b) if the agency is an interception agency - the notice was given by the chief officer of the interception agency.

(8) For the purposes of this section, a technical capability notice relates to an agency if:

(a) if the agency is ASIO - the acts or things specified in the notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to ASIO in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b); or

(b) if the agency is an interception agency - the acts or things specified in the notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to the interception agency in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to the interception agency in relation to a matter covered by paragraph 317T(2)(b).

(9) For the purposes of this section, agency means:

(a) ASIO; or

(b) the Australian Secret Intelligence Service; or

(c) the Australian Signals Directorate; or

(d) an interception agency.

(10) For the purposes of this section, officer of an agency means:

(a) if the agency is ASIO:

(i) the Director-General of Security; or

(ii) an ASIO employee; or

(b) if the agency is the Australian Secret Intelligence Service:

(i) the Director-General of the Australian Secret Intelligence Service; or

(ii) a staff member of the Australian Secret Intelligence Service; or

(c) if the agency is the Australian Signals Directorate:

(i) the Director-General of the Australian Signals Directorate; or

(ii) a staff member of the Australian Signals Directorate; or

(d) if the agency is an interception agency:

(i) the chief officer of the interception agency; or

(ii) an officer of the interception agency.

Division 8 - General provisions

317ZJ Immunity

(1) A designated communications provider is not subject to any civil liability for, or in relation to, an act or thing done by the provider:

(a) in compliance; or

(b) in good faith in purported compliance;

with:

(c) a technical assistance notice; or

(d) a technical capability notice.

(2) Paragraph (1)(b) does not apply to an act or thing done by a designated communications provider unless the act or thing is in connection with any or all of the eligible activities of the provider.

(3) An officer, employee or agent of a designated communications provider is not subject to any civil liability for, or in relation to, an act or thing done by the officer, employee or agent in connection with an act or thing done by the provider:

(a) in compliance; or

(b) in good faith in purported compliance;

with:

(c) a technical assistance notice; or

(d) a technical capability notice.

(4) Paragraph (3)(b) does not apply to an act or thing done by a designated communications provider unless the act or thing is in connection with any or all of the eligible activities of the provider.

317ZK Terms and conditions on which help is to be given etc.

Scope

(1) This section applies if a designated communications provider is subject to a requirement under:

(a) a technical assistance notice; or

(b) a technical capability notice;

unless:

(c) in the case of a requirement under a technical assistance notice given by the Director-General of Security - the Director-General of Security declares in writing that the Director-General of Security is satisfied that it would be contrary to the public interest for this section to apply to the requirement; or

(d) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency - the chief officer declares in writing that the chief officer is satisfied that it would be contrary to the public interest for this section to apply to the requirement; or

(e) in the case of a requirement under a technical capability notice - the Attorney-General declares in writing that the Attorney-General is satisfied that it would be contrary to the public interest for this section to apply to the requirement.

(2) In deciding whether it would be contrary to the public interest for this section to apply to a requirement, the Director-General of Security, the chief officer or the Attorney-General, as the case may be, must have regard to the following matters:

(a) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency or a requirement under a technical capability notice that relates to an interception agency - the interests of law enforcement;

(b) in the case of a requirement under a technical assistance notice given by the Director-General of Security or a requirement under a technical capability notice that relates to ASIO - the interests of national security;

(c) the objects of this Act;

(d) the extent to which compliance with the requirement will impose a regulatory burden on the provider;

(e) the reasons for the giving of the technical assistance notice or technical capability notice, as the case requires;

(f) such other matters (if any) as the Director-General of Security, the chief officer or the Attorney-General, as the case may be, considers relevant.

Basis of compliance

(3) The designated communications provider must comply with the requirement on the basis that the provider neither:

(a) profits from complying with the requirement; nor

(b) bears the reasonable costs of complying with the requirement;

unless:

(c) the provider and the applicable costs negotiator otherwise agree; or

(d) in the case of a requirement under a technical assistance notice given by the Director-General of Security - the Director-General of Security declares in writing that the Director-General of Security is satisfied that it would be contrary to the public interest for this subsection to apply to the requirement; or

(e) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency - the chief officer declares in writing that the chief officer is satisfied that it would be contrary to the public interest for this subsection to apply to the requirement; or

(f) in the case of a requirement under a technical capability notice - the Attorney-General declares in writing that the Attorney-General is satisfied that it would be contrary to the public interest for this subsection to apply to the requirement.

Note: For applicable costs negotiator , see subsection (16).

(3A) In deciding whether it would be contrary to the public interest for subsection (3) to apply to the requirement, the Director-General of Security, the chief officer or the Attorney-General, as the case may be, must have regard to the following matters:

(a) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency or a requirement under a technical capability notice that relates to an interception agency - the interests of law enforcement;

(b) in the case of a requirement under a technical assistance notice given by the Director-General of Security or a requirement under a technical capability notice that relates to ASIO - the interests of national security;

(c) the objects of this Act;

(d) the extent to which compliance with the requirement will impose a regulatory burden on the provider;

(e) the reasons for the giving of the technical assistance notice or technical capability notice, as the case requires;

(f) such other matters (if any) as the Director-General of Security, the chief officer or the Attorney-General, as the case may be, considers relevant.

Terms and conditions

(4) The designated communications provider must comply with the requirement on such terms and conditions as are:

(a) agreed between the following parties:

(i) the provider;

(ii) the applicable costs negotiator; or

(b) failing agreement, determined by an arbitrator appointed by the parties.

Note: For applicable costs negotiator , see subsection (16).

(5) If:

(a) the parties fail to agree on the appointment of an arbitrator; and

(b) one of the parties is a carrier or carriage service provider;

the ACMA is to appoint the arbitrator.

(6) If:

(a) the parties fail to agree on the appointment of an arbitrator; and

(b) none of the parties is a carrier or carriage service provider;

theAttorney-General is to appoint the arbitrator.

(6A) Subsection (4) does not apply to the requirement if:

(a) in the case of a requirement under a technical assistance notice given by the Director-General of Security - the Director-General of Security declares in writing that the Director-General of Security is satisfied that it would be contrary to the public interest for subsection (4) to apply to the requirement; or

(b) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency - the chief officer declares in writing that the chief officer is satisfied that it would be contrary to the public interest for subsection (4) to apply to the requirement; or

(c) in the case of a requirement under a technical capability notice - the Attorney-General declares in writing that the Attorney-General is satisfied that it would be contrary to the public interest for subsection (4) to apply to the requirement.

(6B) In deciding whether it would be contrary to the public interest for subsection (4) to apply to the requirement, the Director-General of Security, the chief officer or the Attorney-General, as the case may be, must have regard to the following matters:

(a) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency or a requirement under a technical capability notice that relates to an interception agency - the interests of law enforcement;

(b) in the case of a requirement under a technical assistance notice given by the Director-General of Security or a requirement under a technical capability notice that relates to ASIO - the interests of national security;

(c) the objects of this Act;

(d) the extent to which compliance with the requirement will impose a regulatory burden on the provider;

(e) the reasons for the giving of the technical assistance notice or technical capability notice, as the case requires;

(f) such other matters (if any) as the Director-General of Security, the chief officer or the Attorney-General, as the case may be, considers relevant.

Arbitration

(7) An arbitrator appointed under subsection (5) or (6) must be:

(a) a person specified under subsection (8); or

(b) a person who belongs to a class of persons specified under subsection (11).

(8) The Home Affairs Minister may, by writing, specify one or more persons for the purposes of paragraph (7)(a).

(9) An instrument made under subsection (8) is not a legislative instrument.

(10) Subsection 33(3AB) of the Acts Interpretation Act 1901 does not apply to the power conferred by subsection (8).

(11) The Home Affairs Minister may, by legislative instrument, specify a class of persons for the purposes of paragraph (7)(b).

(12) Before making an instrument under subsection (8) or (11), the Home Affairs Minister must consult the Attorney-General.

(13) If an arbitration under this section is conducted by an arbitrator appointed by the ACMA, the cost of the arbitration must be apportioned equally between the parties.

(14) The Home Affairs Minister may, by legislative instrument, make provision for and in relation to the conduct of an arbitration under this section.

Acquisition of property

(15) This section has no effect to the extent (if any) to which its operation would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph).

Applicable costs negotiator

(16) For the purposes of this section, the applicable costs negotiator is:

(a) in the case of a requirement under a technical assistance notice given by the Director-General of Security - the Director-General of Security; or

(b) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency - the chief officer; or

(c) in the case of a requirement under a technical capability notice - the person specified in the notice, in accordance with subsection 317T(12), as the applicable costs negotiator for the notice.

Technical capability notice that relates to ASIO

(17) For the purposes of this section, a technical capability notice relates to ASIO if the acts or things specified in the notice:

(a) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to ASIO in relation to a matter covered by paragraph 317T(2)(a); or

(b) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b).

Technical capability notice that relates to an interception agency

(18) For the purposes of this section, a technical capability notice relates to an interception agency if the acts or things specified in the notice:

(a) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to the interception agency in relation to a matter covered by paragraph 317T(2)(a); or

(b) are by way of giving help to the interception agency in relation to a matter covered by paragraph 317T(2)(b).

Technical assistance notice information

(19) For the purposes of this Part, information about a declaration under:

(a) paragraph (1)(c); or

(b) paragraph (1)(d); or

(c) paragraph (3)(d); or

(d) paragraph (3)(e); or

(e) paragraph (6A)(a); or

(f) paragraph (6A)(b);

is taken to be information about a technical assistance notice.

Technical capability notice information

(20) For the purposes of this Part, information about a declaration under paragraph (1)(e), (3)(f) or (6A)(c) is taken to be information about a technical capability notice.

317ZKA Notification obligations

(1) If the Director-General of Security makes a declaration under paragraph 317ZK(1)(c), (3)(d) or (6A)(a), the Director-General of Security must, within 7 days after making the declaration, notify the Inspector-General of Intelligence and Security of the making of the declaration.

(2) If the chief officer of an interception agency makes a declaration under paragraph 317ZK(1)(d), (3)(e) or (6A)(b), the chief officer must, within 7 days after making the declaration, notify the Commonwealth Ombudsman of the making of the declaration.

(3) If:

(a) the Attorney-General makes a declaration under paragraph 317ZK(1)(e), (3)(f) or (6A)(c) in relation to a technical capability notice; and

(b) the acts or things specified in the notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to ASIO in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);

the Attorney-General must, within 7 days after making the declaration, notify the Inspector-General of Intelligence and Security of the making of the declaration.

(4) If:

(a) the Attorney-General makes a declaration under paragraph 317K(1)(e), (3)(f) or (6A)(c) in relation to a technical capability notice; and

(b) the acts or things specified in the notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to an interception agency in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);

the Attorney-General must, within 7 days after making the declaration, notify the Commonwealth Ombudsman of the making of the declaration.

(5) A failure to comply with subsection (1), (2), (3) or (4) does not affect the validity of a declaration under:

(a) paragraph 317ZK(1)(c); or

(b) paragraph 317ZK(1)(d); or

(c) paragraph 317ZK(1)(e); or

(d) paragraph 317ZK(3)(d); or

(e) paragraph 317ZK(3)(e); or

(f) paragraph 317ZK(3)(f); or

(g) paragraph 317ZK(6A)(a); or

(h) paragraph 317ZK(6A)(b); or

(i) paragraph 317ZK(6A)(c).

317ZL Service of notices etc.

Scope

(1) This section applies to:

(a) a summons or process in any proceedings under, or connected with, this Part; or

(b) a summons or process in any proceedings under, or connected with, the Regulatory Powers (Standard Provisions) Act 2014, so far as that Act relates to this Part; or

(c) a technical assistance notice or any other notice under this Part; or

(d) a notice under the Regulatory Powers (Standard Provisions) Act 2014, so far as that Act relates to this Part; or

(e) a technical capability notice.

Address for service of summons, process or notice

(2) If:

(a) the summons, process or notice, as the case may be, is required to be served on, or given to, a designated communications provider; and

(b) the designated communications provider has nominated an address for service in a document given by the provider to:

(i) the Attorney-General; or

(ii) the Communications Access Co-ordinator; or

(iii) the Director-General of Security; or

(iv) the chief officer of an interception agency;

the summons, process, or notice, as the case may be, is taken to have been served on, or given to, the provider if it is left at, or sent by pre-paid post to, the nominated address for service.

(3) If:

(a) the summons, process or notice, as the case may be, is required to be served on, or given to, a designated communications provider; and

(b) the designated communications provider has nominated an electronic address for service in a document given by the provider to:

(i) the Attorney-General; or

(ii) the Communications Access Co-ordinator; or

(iii) the Director-General of Security; or

(iv) the chief officer of an interception agency;

the summons, process or notice, as the case may be, is taken to have been served on, or given to, the provider if it is sent to the nominated electronic address for service.

Service of summons, process or notice on agent etc.

(4) If:

(a) the summons, process or notice, as the case may be, is required to be served on, or given to, a body corporate incorporated outside Australia; and

(b) the body corporate does not have a registered office or a principal office in Australia; and

(c) the body corporate has an agent in Australia;

the summons, process or notice, as the case may be, is taken to have been served on, or given to, the body corporate if it is served on, or given to, the agent.

(5) If:

(a) the summons, process or notice, as the case may be, is required to be served on, or given to, a body corporate incorporated outside Australia; and

(b) the body corporate does not have a registered office or a principal office in Australia; and

(c) the body corporate carries on business, or conducts activities, at an address in Australia;

the summons, process or notice, as the case may be, is taken to have been served on, or given to, the body corporate if it is left at, or sent by pre-paid post to, that address.

Other matters

(6) Subsections (2), (3), (4) and (5) have effect in addition to:

(a) section 28A of the Acts Interpretation Act 1901; and

(b) sections 587 and 588 of this Act.

Note: Section 28A of the Acts Interpretation Act 1901 deals with the service of documents.

317ZM Interception agency - chief officer and officer

For the purposes of this Part, the following table defines:

(a) chief officer of an interception agency; and

(b) officer of an interception agency.

317ZN Delegation by Director-General of Security

(1) The Director-General of Security may, by writing, delegate any or all of the functions or powers of the Director-General of Security under Division 2, 3 or 6 to a senior position-holder (within the meaning ofthe Australian Security Intelligence Organisation Act 1979).

(2) A delegate must comply with any written directions of the Director-General of Security.

317ZP Delegation by Director-General of the Australian Secret Intelligence Service

(1) The Director-General of the Australian Secret Intelligence Service may, by writing, delegate any or all of the functions or powers of the Director-General of the Australian Secret Intelligence Service under Division 2 or 6 to a person who:

(a) is a staff member of the Australian Secret Intelligence Service; and

(b) holds, or is acting in, a position in the Australian Secret Intelligence Service that is equivalent to, or higher than, a position occupied by an SES employee.

(2) A delegate must comply with any written directions of the Director-General of the Australian Secret Intelligence Service.

317ZQ Delegation by Director-General of the Australian Signals Directorate

(1) The Director-General of the Australian Signals Directorate may, by writing, delegate any or all of the functions or powers of the Director-General of the Australian Signals Directorate under Division 2 or 6 to a person:

(a) who is a staff member of the Australian Signals Directorate; and

(b) who:

(i) is an SES employee, or acting SES employee, in the Australian Signals Directorate; or

(ii) holds, or is acting in, a position in the Australian Signals Directorate that is equivalent to, or higher than, a position occupied by an SES employee.

(2) A delegate must comply with any written directions of the Director-General of the Australian Signals Directorate.

317ZR Delegation by the chief officer of an interception agency

(1) The chief officer of an interception agency mentioned in an item of column 1 of the following table may, by writing, delegate any or all of the functions or powers of the chief officer under Division 2, 3 or 6 to a person mentioned in column 2 of the item.

(2) A delegate must comply with any written directions of the chief officer.

Executive level

(3) For the purposes of this section, a person is at executive level , in relation to an interception agency of New South Wales, if the person occupies an office or position at an equivalent level to that of a Public Service senior executive (within the meaning of the Government Sector Employment Act 2013 (NSW)).

(4) For the purposes of this section, a person is at executive level , in relation to an interception agency of Victoria, if the person occupies an office or position at an equivalent level to that of an executive (within the meaning of the Public Administration Act 2004 (Vic.)).

(5) For the purposes of this section, a person is at executive level , in relation to an interception agency of South Australia, if the person occupies an office or position at an equivalent level to that of an executive employee (within the meaning of the Public Sector Act 2009 (SA)).

317ZRA Relationship of this Part to parliamentary privileges and immunities

To avoid doubt, this Part does not affect the law relating to the powers, privileges and immunities of any of the following:

(a) each House of the Parliament;

(b) the members of each House of the Parliament;

(c) the committees of each House of the Parliament and joint committees of both Houses of the Parliament.

317ZRB Inspection of records

(1) An Ombudsman official may inspect the records of an interception agency to determine the extent of compliance with this Part by:

(a) the agency; and

(b) the chief officer of the agency; and

(c) officers of the agency.

(2) The chief officer of an interception agency must ensure that officers of the agency give an Ombudsman official any assistance the Ombudsman official reasonably requires to enable the Ombudsman official to exercise the power conferred by subsection (1).

Report

(3) The Commonwealth Ombudsman may make a written report to the Home Affairs Minister on the results of one or more inspections under subsection (1).

(4) A report under subsection (3) must not include information which, if made public, could reasonably be expected to:

(a) prejudice an investigation or prosecution; or

(b) compromise any interception agency's operational activities or methodologies.

(5) If:

(a) the Commonwealth Ombudsman makes a report under subsection (3); and

(b) the report relates to an inspection under subsection (1) of the records of an interception agency of a State or Territory;

the Commonwealth Ombudsman must give a copy of the report to the chief officer of the interception agency.

(6) If the Home Affairs Minister receives a report under subsection (3), the Home Affairs Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Home Affairs Minister receives the report.

(7) Before tabling the copy of the report, the Home Affairs Minister may delete from the copy information that, if made public, could reasonably be expected to:

(a) prejudice an investigation or prosecution; or

(b) compromise any interception agency's operational activities or methodologies.

317ZS Annual reports

(1) The Home Affairs Minister must, as soon as practicable after each 30 June, cause to be prepared a written report that sets out:

(a) the number of technical assistance requests that were given during the year ending on that 30 June by the chief officers of interception agencies; and

(b) the number of technical assistance notices that were given during the year ending on that 30 June by the chief officers of interception agencies; and

(c) the number of technical capability notices that were:

(i) given during the year ending on that 30 June; and

(ii) directed towards ensuring that designated communications providers are capable of giving help to interception agencies; and

(d) if any technical assistance requests, technical assistance notices or technical capability notices given during the year ending on that 30 June related to the enforcement of the criminal law so far as it relates to one or more kinds of serious Australian offences - those kinds of serious Australian offences.

(2) A report under subsection (1) must be included in the report prepared under subsection 186(2) of the Telecommunications (Interception and Access) Act 1979 relating to the year ending on that 30 June.

317ZT Alternative constitutional basis

(1) Without limiting its effect apart from this section, this Part also has effect as provided by this section.

(2) This Part also has the effect it would have if each reference in this Part to a designated communications provider were, by express provision, confined to a designated communications provider that is a constitutional corporation.