ANNEX 15: THE LAW OF THE FIVE EYES
to access stored communications if the warrant would have authorised interception if it
were still in passage.39 However, a criminal law enforcement agency will need to apply
for a stored communications warrant.
16.
TIA 1979 contains a number of provisions relating to the destruction of material
obtained via warrants.
Telecommunications data
17.
TIA 1979 Part 4 sets out the circumstances in which bodies may obtain access to
telecommunications data. Telecommunications data is not formally defined, although
it does not include the contents or substance of a communication.40 A new mandatory
data retention regime specifies categories of information that must be kept by service
providers for a period of two years.41 These categories include the subscriber of a
relevant service and the source, time, date, and location of a communication.42
18.
Sections 174-6 provide for three types of disclosure of telecommunications data to
ASIO. Firstly, on a voluntary basis by a service provider “if the disclosure is in
connection with the performance by [ASIO] of its functions.” Secondly, an authorisation
for access to existing information or documents (which may be granted by the Director
General of Security, Deputy Director General of Security and an officer of ASIO
approved by the Director General). Thirdly, a slightly wider body of individuals may
authorise access to prospective information (anybody above a certain level of seniority
within ASIO may grant permission), for not longer than 90 days.43 In the case of an
authorised disclosure, the authorising individual must be satisfied that the disclosure
would be “in connection with the performance by [ASIO] of its functions”.
19.
Sections 177-180 set out the framework governing the disclosure of existing
telecommunications data to enforcement agencies (which includes any criminal law
enforcement agency). An enforcement agency may authorise the disclosure of
telecommunications data where reasonably necessary to enforce the criminal law,
locate missing persons, enforce a law imposing a pecuniary penalty or protect the
public revenue. Accordingly, bodies that have the power to levy a fine may seek access
to telecommunications data.44 The disclosure of prospective telecommunications data
may be authorised for a limited period where reasonably necessary for the investigation
of a serious offence.45
20.
Sections 180A and 180E allow authorised officers of the Australian Federal Police to
obtain access to telecommunications data for the purpose of further disclosing that
material to a foreign authority. The procedure, as with intercepted material, is similar
to the UK’s MLAT process.
39
TIA 1979 s109.
TIA 1979 s172.
TIA 1979 s187C.
TIA 1979 s187A.
TIA 1979 ss175-6.
As long as they are defined as an enforcement agency in the newly amended TIA (see s110A).
TIA 1979 s180.
40
41
42
43
44
45
352