Annex 15: THE LAW OF THE FIVE EYES (8.41 above)
Australia
1.
The primary statute governing access to intercept and communications data in
Australia is the TIA 1979.20 It is long and complex.
2.
It distinguishes between “interception” of communications that are passing through a
telecommunications system and “access” to stored communications on a carrier’s
equipment, although both are only lawful when carried out pursuant to a warrant.
Interception is narrowly confined to “real time” communications: “listening to or
recording by any means, such a communication in its passage … without the
knowledge of the person making the communication.”21 Once a communication has
become accessible to the recipient, it is no longer passing over a telecommunications
system and must be accessed via a stored communications warrant.22
Interception
Australian Security Intelligence Organisation
3.
The TIA 1979 Part 2-2 sets out the mechanism by which ASIO (the Australian
equivalent of MI5, governed by the Australian Security Intelligence Organisation Act
1979) might be issued with a warrant to intercept communications. ASIO cooperates
with the Australian Secret Intelligence Service [ASIS], the Australian Signals
Directorate and the Australian Geospatial-Intelligence Organisation.
4.
ASIO may apply for, three types of warrant to intercept communications in order to
access the communications of a person who is reasonably suspected of being engaged
in or likely to engage in activities prejudicial to security.23 Each of those warrants may
be issued by the Attorney-General on request by the Director-General of Security:
20
21
22
23
24
25
26
(a)
A warrant that specifies the telecommunications service likely to be used by a
person engaged in activities prejudicial to security;24
(b)
A named person warrant that grants authority to intercept the various
communications methods employed by an individual (all their mobile phone
numbers or email addresses);25
(c)
A B-party warrant, which enables the interception of a service that will be used
by a non-suspect to communicate with a suspect.26
The Surveillances Devices Act 2004 and the Telecommunications Act 1997 contain further relevant
provisions.
TIA 1979 s6(1).
TIA 1979 s5F(1). If only the telecommunications data is required, then stored material may be accessed
without a warrant under s 178 and 179 of TIA.
TIA 1979 s9(1).
TIA 1979 s9(1).
TIA 1979 s9A.
TIA 1979 s9(1)(a)(ia).
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