Telecommunications services and technology have long been a tool of the trade used by malicious actors to plan and carry out criminal activities.
Access to the information held by communications providers is essential for law enforcement to effectively investigate, prevent and disrupt crimes that threaten Australia’s national security.
The Telecommunications (Interception and Access) Act 1979 (the TIA Act) provides a legal framework for national security and law enforcement agencies to access this information.
Actions that may be sought under the TIA Act include access to stored communications data that already exist, or the interception of communications in real time.
Industry assistance to law enforcement: A framework
Technological obstacles present key challenges to law enforcement in accessing/intercepting telecommunications data, and can impede investigations into serious crimes.
Part 15 of the TIA Act establishes a framework through which Australian agencies and the communications industry can work together to address these obstacles.
The framework comprises three different methods:
- Technical Assistance Request (TAR): Agencies can request voluntary help from designated communications providers where they are willing and able to give assistance.
- Technical Assistance Notice (TAN): Agencies can compel designated communications providers to give assistance where they already have the technical capability to do so.
- Technical Capability Notice (TCN): Agencies can require providers to build capabilities to help law enforcement and security authorities.
Any assistance requested must be reasonable and technically feasible, and must relate to serious offences (both domestic and foreign) that are punishable by three years imprisonment or more.
The framework contains safeguards to ensure that the information security of general users is not compromised.
Which agencies can request assistance, and to what extent?
Agencies with full powers:
- The Australian Federal Police (AFP).
- The Australian Criminal Intelligence Commission (ACIC).
- A State Police force.
- The Australian Security Intelligence Organisation (ASIO).
Agencies with limited powers:
- The Australian Signals Directorate (ASD).
- The Australian Secret Intelligence Service (ASIS).
All agencies can issue TAR’s, which are merely a request for assistance. The telecommunications provider is not obliged to help.
The ASD and ASIS do not have the power to issue TANs or TCNs compelling the provider to assist in providing data or to build capabilities to help law enforcement. These powers are afforded to the AFP, ACIC, State Police and the ASIO.
How is industry assistance currently being used?
In 2018-19, no TANs or TCNs were issued.
Seven TARs were issued: Five by the AFP and two by NSW Police.
The TARs issued related to 16 total offences, as a single request can relate to the enforcement of more than one offence. The offences included:
| Categories of offences | AFP | NSW Police | Total |
| Cybercrime | 6 | 6 | |
| Homicide | 1 | 1 | |
| Illicit drug offences | 1 | 1 | |
| Organised offences | 2 | 2 | |
| Telecommunications offences | 5 | 5 | |
| Theft | 1 | 1 | |
| Total | 14 | 2 | 16 |
Although not featured in the results for the reporting period, a wide range of serious offences may be enforced through technical assistance requests including bribery/corruption, cartel offences, fraud and terrorism offences.
Oversight of powers
Use of the methods available under the framework is subject to independent oversight by either the Inspector-General of Intelligence and Security, the Commonwealth Ombudsman or State and Territory oversight bodies.
When an agency gives a notice, they must notify the relevant oversight body and inform the company of their right to complain to this body.
Compulsory powers carry additional oversight measures to ensure they are used appropriately:
- TANs must first be reviewed by the Australian Federal Police Commissioner.
- TCNs may only be issued by the Attorney-General, with the approval of the Minister for Communications.
Any decision to compel assistance may be challenged through judicial review proceedings.
