ANNEX 15: THE LAW OF THE FIVE EYES
(b)
A named person warrant, which must set out the name of the person and details
sufficient to identify the telecommunications service they are using, details of
previous applications and use made of the material obtained.32
10.
The Judge or AAT member must be satisfied that there are reasonable grounds for
suspecting that a particular person is using or is likely to use the service and the
information that would be likely to be obtained would be likely to assist in connection
with the investigation by the agency of a serious offence.
11.
The Judge or AAT member should have regard to:
(a)
How much the privacy of any person or persons would be interfered with;
(b)
The gravity of the conduct constituting the offence;
(c)
The value of the information obtained;
(d)
The extent to which other methods have been used, would be likely to assist, or
might prejudice the investigation.
12.
They must be satisfied that all other practicable methods of accessing the
communications have been exhausted.33
13.
Warrants may be sought and obtained, in urgent circumstances, via telephone.34
Stored Communications
14.
The TIA 1979 Part 3 contains a separate regime governing access to stored
communications. In broad terms, both ASIO and criminal law enforcement agencies
are entitled to issue preservation notices, requiring a carrier to preserve all stored
communications specified in the notice.35 The notice may only specify one person or
telecommunications service.36 The TIA 1979 distinguishes between a domestic
preservation notice and a foreign preservation notice. A foreign preservation notice is
issued when a foreign country intends to request the Attorney-General to secure
access to telecommunications. In that sense, they reflect the UK’s MLAT regime.37
15.
ASIO does not have to apply for a preservation notice before seeking access to material
on the basis of a warrant. It may apply for a warrant in any case where it reasonable
grounds for suspecting that a particular carrier holds stored communications that is
likely to assist in connection with the investigation of a serious contravention (a crime
of sufficient seriousness).38 Furthermore, ASIO does not normally have to apply for a
separate stored communications warrant. An interception warrant will also entitle them
32
TIA 1979 ss42 and 46A.
TIA 1979 ss46 and 46A.
TIA 1979 ss43 and 50.
Recent changes have added a new TIA 1979 s110A that has restricted the power to access stored
telecommunications data to “criminal law enforcement agencies”, rather than the broader law
enforcement agencies described above.
TIA 1979 s107H(3).
TIA 1979 s107N.
TIA 1979 s106(c).
33
34
35
36
37
38
351