ANNEX 15: THE LAW OF THE FIVE EYES
5.
Accordingly, national security warrants may only be obtained for quite narrow
purposes; they do not provide a basis for bulk interception. Section 10 sets out a
mechanism for the issuing of emergency warrants, when the Director General of
Security considers it appropriate, for no longer than 48 hours.
6.
A separate regime governs the grant of warrants where ASIO wishes to intercept
“foreign intelligence”. In each case, the Attorney-General must be satisfied, on the
basis of advice from the Minister of Defence or Foreign Affairs, that obtaining the
foreign intelligence set out in the notice is in the interests of Australia’s national security,
foreign relations or economic well-being. Once again, three types of warrant may be
issued:
7.
(a)
A warrant authorising interception on quite a general level to a particular
“telecommunications service.”
Where known, the name and address,
occupation and number of the subscriber should be set out in the request.27
(b)
A named person warrant, for which the application must specify the
telecommunications service that is being used by a person or foreign
organisation and the foreign intelligence information that will be obtained.28
(c)
A “foreign communications” warrant for the interception of
communications only, (those sent or received outside of Australia.29
foreign
The Director-General must not request the issue of a foreign intelligence warrant under
s 11A, 11B or 11C for the purpose of collecting information concerning an Australian
citizen or permanent resident.30
Law Enforcement Authorities
8.
The TIA 1979 Part 2-5 sets out the circumstances in which law enforcement bodies
may intercept telecommunications. They may apply for a warrant to an eligible Judge
or a nominated member of the Administrative Appeals Tribunal [AAT]. A range of
agencies can apply, at both the state and federal level, including the Independent
Broad-based Anti-Corruption Commission and various Crime Commissions.31
9.
The application must be supported by an affidavit setting out the facts and other
grounds on which it is based. Two types of warrant may be issued:
(a)
27
28
29
30
31
A telecommunications service warrant, which authorises the interception of a
particular telecommunications service that may be used by an identified
individual. It must set out the number of previous applications (if any) related to
the service or that person and the use made by the agency of information
obtained by interceptions under those warrants.
TIA 1979 s11A(1).
TIA 1979 s11B.
TIA 1979 s11C.
TIA 1979 s11D(5).
TIA 1979 s39.
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