Telecommunications (Interception and Access) Act

The Telecommunications (Interception and Access) Act

The Telecommunications (Interception and Access) Act 1979 (the TIA Act) provides a legal framework for national security and law enforcement agencies to access information held by communications providers in the investigation of serious crime.

This includes both the interception of communications in real time, and access to stored communications data that already exist.

In its annual report on the TIA Act, the Australian Government Department of Home Affairs sheds some light on which eligible government agencies have used the powers available under the Act.

We look at how international assistance has been provided in the interception of and access to communications, as part of investigations into serious international offences.

 

What is an ‘international offence’?

The report defines an international offence as:

  • An offence against a law of a foreign country,
  • A crime within the jurisdiction of the International Criminal Court, or
  • A War Crimes Tribunal Offence.

In order for an offence to fall within the scope of the TIA Act, it must be classified as a serious offence which is punishable by three years imprisonment or more.

 

Guiding legislation

Legislation guiding requests for assistance depends on whether the assistance has been provided to:

  • A foreign country [sections 68(l) or 68A of the TIA Act in connection with an authorisation under section 13A(1) of the Mutual Assistance in Criminal Matters Act 1987].
  • The International Criminal Court [sections 68(la) or 68A of the TIA Act in connection with an authorisation under section 69A of the International Criminal Court Act 2002].
  • A War Crimes Tribunal [sections 68(lb) or 68A of the TIA Act in connection with an authorisation under section 25A of the International War Crimes Tribunals Act 1995].

 

Telecommunications interception assistance

The report sets out the number of occasions on which lawfully intercepted information or interception warrant information was provided to a foreign country, the International Criminal Court or a War Crimes Tribunal.

In 2018–19, there were two occasions in which lawfully intercepted information was provided to a foreign country.

 

Stored communications assistance

The report provides information regarding the number of occasions in which lawfully accessed information or stored communications warrant information was provided to a foreign country, the International Criminal Court or a War Crimes Tribunal.

In 2018–19, there were no applications by any agency for a stored communications warrant as a result of an international assistance application.

In contrast, the Australian Federal Police made 10 such applications in the 2017-18 period.

 

Data authorisations for foreign law enforcement

Foreign countries, the International Criminal Court and War Crimes Tribunals may request that the Australian Federal Police obtain telecommunications data to assist in an investigation or proceeding within their jurisdictions.

The AFP may make authorisations to obtain telecommunications data for the purposes of disclosing that data to a requesting jurisdiction, or authorise the disclosure of telecommunications data the AFP has previously obtained.

In 2018–19, the AFP made 62 such authorisations, following which it made 19 disclosures to foreign law enforcement agencies:

  • Belarus (1).
  • Germany (2).
  • India (4).
  • Japan (1).
  • New Zealand (2).
  • Singapore (1).
  • United Kingdom (1).
  • United States (7).

Nyman Gibson Miralis provides expert advice and representation in complex cases involving the interception and access of data by multiple law enforcement agencies.

Contact us if you require assistance.