Telecommunications Interception and Stored Communications

STANDARD OPERATING PROCEDURE

TELECOMMUNICATIONS INTERCEPTION AND STORED COMMUNICATIONS WARRANTSAPPROVED: 23 March 2016

RESPONSIBILITY: Legal

CURRENT VERSION: 3

FOR OFFICIAL USE ONLY


Relevant Legislation and Other Links

Telecommunications (Interception and Access) Act 1979 (Cth) (‘TIA Act’)

Law Enforcement Integrity Commissioner Act 2006 (Cth) (‘LEIC Act’)

Where relevant, this Standard Operating Procedure (SOP) refers to specific provisions of the legislation. Unless otherwise indicated, such references are to sections of the TIA Act.

This Standard Operating Procedure needs to read in conjunction with the following Standard Operating Procedures:

Data Retention [under development], and Integrity Testing and Controlled Operations.

Previous Versions

Version 1 – Effective date 1 March 2010

Version 2 – Effective date 1 June 2013

Approval

This Standard Operation Procedure is approved.

________________________________Michael Griffin AM

Integrity Commissioner

March 2016

TELECOMMUNICATIONS INTERCEPTIONS AND STORED COMMUNICATIONS WARRANTS Page 2 of 48

https://www.comlaw.gov.au/Series/C2006A00085

https://www.comlaw.gov.au/Series/C2004A02124


Templates

Warrants: TI and SC

TI: Telecommunications Service Warrant (Form 1) 15#9963DOC

TI: Telecommunications Service Warrant – B Party (Form 2) 15#9964DOC

TI: Application – Affidavit 16#2275DOC

SC: Stored Communications Warrant (Form 6) 15#9966DOC

SC: Application – Affidavit 16#2276DOC

Other

TI – Enabling and Disabling Interception

TI: Notification that Warrant Issued – Letter to Carrier 14#7535DOC

TI: Enabling of Interception – Letter to Carrier 14#7542DOC

TI: Renewal – Letter to Carrier 14#7544DOC

TI: Expiry Notice – Letter to Carrier 13#6576DOC

TI: Cease Interception Pending Revocation– Letter to Carrier 14#7604DOC

TI: Revocation Notice – Letter to Carrier 14#7657DOC

TI: Revocation Notice – Letter to AGD 14#905DOC

TI: Named Person Warrants – Enabling Particular Services – Letter to Carrier

14#7545DOC

TI: Named Person Warrants – Disabling Particular Services – Letter to Carrier

14#7546DOC



TI – Sharing Material

TI: Letter to Accompany Sharing of TI Material 13#5332DOC

TI – Evidence and Destruction

TI: Evidentiary Certificate 15#3382DOC

TI: Decision Minute – Destruction of Material 15#3031DOC

TI: Transcript of Intercepted Material 14#1668DOC

TI - Reporting

TI: Section 94B Report to Minister 14#3083DOC

TI: Section 81C Report to AGD 13#5334DOC

SC – Letters to Carriers

SC: Notification that Warrant Issued – Letter to Carrier 14#6575DOC

SC: Historic Domestic Preservation Request 14#2350DOC

SC: Ongoing Domestic Preservation Request 14#2349DOC

SC: Revocation of Historic Domestic Preservation Notice 14#2351DOC

SC: Revocation of Ongoing Domestic Preservation Notice 14#2352DOC



Contents

1.0 PURPOSE....................................................................................................................7

2.0 BACKGROUND............................................................................................................8

3.0 SCHEME OF THE TIA ACT.........................................................................................8

3.1 Authorisations........................................................................................................8

4.0 OVERVIEW OF TELECOMMUNICATIONS INTERCEPTION...................................10

4.1 Who is eligible to apply........................................................................................10

4.2 Threshold for issuing a warrant...........................................................................10

4.3 Types of interception warrants............................................................................11

4.4 Obligations post-interception...............................................................................11

5.0 OVERVIEW OF STORED COMMUNICATIONS ACCESS........................................12

5.1 What is a stored communication?.......................................................................12

5.2 Who is eligible to apply?......................................................................................12

5.3 Threshold for issuing a warrant...........................................................................13

5.4 Preservation notices............................................................................................13

5.5 Stored communications: obligations post-access................................................14

6.0 TYPES OF WARRANTS............................................................................................14

6.1 Telecommunications interception (TI) service warrant and section 48 warrant. .14

6.2 Telecommunications interception B party warrant...............................................15

6.3 Telecommunications interception named person (service) warrant....................17

6.4 Telecommunications interception named person (device) warrant.....................17

6.5 Stored communications (SC) warrant..................................................................19

7.0 ROUTINE APPLICATIONS........................................................................................19

7.1 Before making an application..............................................................................19



7.2 Form of applications and templates.....................................................................20

7.3 Process................................................................................................................20

7.4 After a warrant is issued......................................................................................21

7.6 Engaging with other agencies.............................................................................23

8.0 EMERGENCY REQUESTS........................................................................................23

9.0 APPLICATIONS IN ANOTHER STATE......................................................................24

10.0 LEGAL PROFESSIONAL PRIVILEGE.......................................................................24

10.1 What is legal professional privilege?...................................................................24

10.2 What is covered?.................................................................................................25

10.3 Who is covered?..................................................................................................25

10.4 Legal professional privilege and intercepted material.........................................26

11.0 DURATION OF A WARRANT....................................................................................27

11.1 General.......................................................................................................................27

11.2 Extensions...........................................................................................................28

11.3 New warrant issued.............................................................................................28

11.4 Revocation of a warrant by the Integrity Commissioner......................................29

11.5 Post-revocation obligations (TI and SC warrants)...............................................29

12.0 FIREWALLS AND STORED COMMUNICATIONS....................................................30

13.0 EVIDENTIARY CERTIFICATES.................................................................................30

14.0 USING AND DEALING WITH INTERCEPTION AND STORED MATERIAL.............30

15.0 CO-OPERATION BETWEEN AGENCIES.................................................................31

15.1 Disclosure to other agencies...............................................................................31

15.2 Exempt proceedings – disciplinary purposes......................................................31

16.0 DESTRUCTION OF MATERIAL.................................................................................32

16.1 TI material............................................................................................................32

16.2 SC material..........................................................................................................32



17.0 RECORD KEEPING AND OVERSIGHT....................................................................33

17.1 Generally.............................................................................................................33

17.2 Record keeping...................................................................................................33

17.3 ACLEI TI warrant numbering...............................................................................33

17.4 Reporting.............................................................................................................34

17.5 Inspections by the Ombudsman..........................................................................35



1.0 PURPOSE

The Parliament of Australia has provided the Integrity Commissioner (IC) and the Australian Commission for Law Enforcement Integrity (ACLEI) with sensitive, covert law enforcement powers. The use of these powers has the potential to affect privacy and other liberties of individuals.

To protect the legal rights of all parties, including ACLEI, this Standard Operating Procedure (SOP) aims to ensure that:

the interception of live communications and accessing of stored communications are conducted in strict accordance with the law,

such operations are demonstrably fair, and appropriate records are kept to meet transparency and accountability

requirements.

2.0 BACKGROUND

In Australia there is a high degree of respect for personal privacy, and it is generally unlawful for a person to listen to another person’s telephone conversations or access stored communications which have been sent through the telecommunications system.

The Telecommunications (Interception and Access) Act 1979 (TIA Act) creates exceptions to this general principle for the enforcement of the criminal law in certain circumstances. The TIA Act restricts when ACLEI may intercept live communications or access stored communications; how ACLEI can use and share this material; and imposes strict record keeping and reporting obligations. The TIA Act also creates an oversight framework which includes auditing by the Ombudsman and reporting to the Minister.

3.0 SCHEME OF THE TIA ACT

Section 7 of the TIA Act creates a general offence of intercepting telecommunications and section 108 creates a general offence of accessing stored communications. The TIA Act allows prescribed agencies, including ACLEI, to intercept and access communications on the basis of a warrant from an Issuing Officer. An ‘Issuing Officer’ is an ‘eligible judge’ or ‘nominated AAT member’, as defined in sections 6D and 6DA respectively of the TIA Act.



3.1 Authorisations

The TIA Act imposes significant restrictions on who may exercise the various powers granted in respect of telecommunications interception and/or access to stored communications. The different types of roles or powers will be referred to throughout this SOP and are listed below. To find the ACLEI staff positions or named individuals who are currently authorised under each provision refer to the Intranet.

General

Section 5AB(1) – authorised officers Section 5AC(2) – certifying officers

Telecommunications warrant authorisations

Section 39(2)(aa)(iii) – power to apply for a telecommunications warrant

Section 40(3) – power to apply for an urgent telecommunications warrant by telephone

Section 55(3) – power to exercise authority conferred by a telecommunications warrant

Section 55(4) – power to authorise officers under section 55(3) Section 66(2) – power to receive information from an interceptor Section 66(4) – power to authorise officers under section 66(2) Section 68 – power to communicate lawfully intercepted information

Stored communications warrant authorisations Section 110(3) – power to apply for a stored communications

warrant Section 111(3) – power to apply for an urgent stored

communications warrant by telephone Section 127(2) – power to exercise authority conferred by a stored

communications warrant Section 127(3) – power to authorise officers under section 127(2) Section 135(2) – power to receive information obtained by

accessing stored communications


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4.0 OVERVIEW OF TELECOMMUNICATIONS INTERCEPTION

4.1 Who is eligible to apply

Because ACLEI is an ‘enforcement agency’1 the Integrity Commissioner, or a staff member authorised by the Integrity Commissioner under section 39(2)(aa)(iii), may apply to an Issuing Officer for a warrant to intercept communications.2 If a warrant is issued only those staff members with a section 55(3) authorisation may exercise the authority conferred by the warrant.

4.2 Threshold for issuing a warrant

An application can be made in relation to a ‘serious offence’ which is defined in section 5D of the TIA Act. ‘Serious offence' includes any offence punishable by at least 7 years’ imprisonment and an extensive list of prescribed offences. These prescribed offences include offences involving bribery or corruption of an officer of the Commonwealth and serious fraud.

An application must satisfy the Issuing Officer as to the matters in section 46 of the TIA Act. While the requirements are very detailed, the key issues are:

(a) that there are reasonable grounds to suspect a person is using or likely to use the specific service/device

(b) the information obtained by intercepting communications to and from the service/device would be likely to assist in the agency’s investigation of a ‘serious offence’ in which the person is involved or in which another person is involved with whom the person may communicate using the service/device3, and

(c) that the Issuing Officer should issue a warrant based on consideration of:(i) interference with privacy(ii) the gravity of the conduct(iii) how much the interception information would assist the investigation

1 Section 5 of the TIA Act.2 Section 39 of the TIA Act.3 Referred to as a B party interception.



(iv) other investigation methods that have been used by or are available to the agency, as well as how those methods would assist and how much they may prejudice the investigation, and

(v) submissions by a Public Interest Monitor in Victoria or Queensland.

Note that some types of interception warrants, such as named person warrants, require additional factors to be addressed. See Chapter 6, ‘Types of Warrants’, below.

4.3 Types of interception warrants

There are a number of kinds of interception warrants under the TIA Act for which an ACLEI authorised officer may apply:

(a) a ‘particular service’ warrant under section 46(1)(d)(i)(b) a ‘B party’ interception warrant under section 46(1)(d)(ii)(c) a ‘named person’ warrant under section 46A(1)(d)(i) for all services likely to be

used by a specific person(d) a ‘named person’ device warrant under section 46A(1)(d)(ii) for all devices

likely to be used by a specific person, and(e) a warrant under section 48, which authorises the holder to enter onto

premises where it is not possible or practicable to intercept telecommunications from a distance.

Warrant types are explained in more detail in Chapter 6 of this SOP.

4.4 Obligations post-interception

Once a communication has been intercepted, the TIA Act protects the information about the interception and the content gained from it. The TIA Act permits use or disclosure only for limited purposes and in limited circumstances referred to in Part 2.6 of the TIA Act. Information about a warrant, or information obtained by interception may be used for a ‘permitted purpose’4, a term which covers some decisions about integrity testing as well as criminal or disciplinary proceedings.

The TIA Act requires agencies to make and retain a number of records and reports about telecommunications interception. The Commonwealth Ombudsman conducts regular inspections of records and reports to the Minister.

4 Sections 5 and 6S of the TIA Act



Full information about use, disclosure and record keeping obligations is contained in Chapters 13 and 14, below.

5.0 OVERVIEW OF STORED COMMUNICATIONS ACCESS

5.1 What is a stored communication?

Chapter 3 of the TIA Act establishes the system for accessing ‘stored communications’ held by a telecommunications carrier. ‘Stored communication’ is defined in section 5(1) of the TIA Act to mean a communication that is not passing over a telecommunications system, is held on a carrier’s equipment and cannot be accessed by a third party without the assistance of the carrier. These communications include messages, e-mails, MMS and voicemail.

A stored communications warrant relates solely to content held by a carrier, which is required to be accessed without the knowledge of the intended recipient5. This can be contrasted to the situation where an ACLEI investigator has authority to seize a subject’s phone and access the content of stored communications. In the latter situation, the subject is made aware of the investigator’s actions; it does not fall within the purview of the TIA Act.

5.2 Who is eligible to apply?

Because ACLEI is a ‘criminal law enforcement agency’6 for the purpose of accessing stored communications, the Integrity Commissioner or a staff member authorised by the Integrity Commissioner under section 110(3) may apply to an Issuing Officer for a warrant to access stored communications7. If a warrant is issued only those staff members with a section 127(2) authorisation may exercise the authority conferred by the warrant.

5 A term which is taken to mean the subscriber to the service, who is responsible for it. This would cover, where relevant, communications to another person who has access to the service.6 Section 110A of the TIA Act.7 Section110 of the TIA Act.



5.3 Threshold for issuing a warrant

An application for a warrant can be made in relation to a ‘serious contravention.’ A ‘serious contravention’ is defined in section 5E of the TIA Act to be an offence that is a ‘serious offence’ or an offence that is punishable by at least 3 years’ imprisonment. The definition of ‘serious offence’ is provided above in paragraph 4.2.

The Issuing Officer may issue a warrant if satisfied of the matters in section 116 of the TIA Act. These requirements mirror the requirements for telecommunications interception, with the key issues being:

(a) that there are reasonable grounds to suspect that a carrier holds stored communications that the person has made or received

(b) the information obtained by accessing those stored communications would be likely to assist in the agency’s investigation of a ‘serious contravention’ in which the person is involved, and

(c) that the Issuing Officer should issue a warrant based on consideration of:i. interference with privacyii. the gravity of the conductiii. how much accessing the information would assist the investigation,

andiv. other investigation methods that have been used by, or are available

to, the agency, as well as how those methods would assist and how much they may prejudice the investigation.

5.4 Preservation notices

ACLEI may give a carrier a domestic preservation notice,8 which puts the carrier on notice about a pending application for a stored communications warrant. Carriers normally retain stored communications for a limited term and a preservation notice ensures the stored communications will be retained. The requirements in section 107J of the TIA Act must be met before a preservation notice can be issued. A preservation notice may be:

(a) historic – stored communications which already exist and are held by the carrier on a particular day. A preservation notice may stipulate that these communications are to be held for a further 90 days (the day of issue is

8 Section 107H of the TIA Act. The TIA Act also allows the AFP to issue a ‘foreign preservation notice’ on request by a foreign country in relation to a ‘serious foreign contravention’ defined in section 5EA.


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counted as day 1) or until a stored communications warrant is issued. This type of preservation notice may be given by a person who can apply for a warrant, or

(b) ongoing – for future stored communications. A preservation notice may stipulate that communications which come into the carrier’s control up to 30 days after the issue of a notice must be preserved (the day of issue is counted as day 1). This type of preservation notice may only be given by an ‘authorised officer’.

A preservation notice ceases to be in effect when it expires, is revoked (historic or ongoing), five days after a stored communications warrant is issued or when a stored communications warrant ceases to be in force.9

5.5 Stored communications: obligations post-access

The TIA Act contains detailed provisions on use, disclosure and admissibility of stored communications content, warrant information or preservation notice information. As with interception records, the Act requires the making and retention of a range of records and provides for inspection of records by the Commonwealth Ombudsman.

Full information about use, disclosure and record keeping obligations is contained in Chapters 13 and 14 respectively, below.

6.0 TYPES OF WARRANTS

6.1 Telecommunications interception (TI) service warrant and section 48 warrant

A TI service warrant permits the interception of a specified service10 under section 46 of the TIA Act.

A telecommunications service can be identified by a unique number or any other unique identifying factor.11 A service number includes a number assigned to it from time to time, or by any other unique identifying factor.

9 Section 107K of the TIA Act.10 ‘Telecommunications service’ is defined in section 5(1) of the TIA Act as a service for carrying communications by means of guided or unguided electromagnetic energy or both.11 Section 6P of the TIA Act


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For example, a warrant for a service identified according to a mobile phone number will enable the interception of calls to and from that mobile phone number. This can be contrasted with a named person (service) warrant, which permits the interception of all services used by a particular person (see below).

Several peoples’ names can be included on the face of a service warrant where each of those people is, or is likely to, use the service. For example, if a husband and wife were sharing a mobile phone, they may both be listed on the face of the warrant.

Before issuing a TI service warrant, the Issuing Officer must be satisfied of the elements listed in section 46(2) of the TIA Act, which are summarised in paragraph 4.2 above.

A TI service warrant can last for up to 90 days.12 The warrant cannot be extended, however, further warrants can be issued after expiry.13

If the circumstances of a particular investigation render it impracticable or inappropriate to intercept communications remotely, a warrant may be issued under section 48 which permits entry onto the premises to install interception equipment.14 An application for a section 48 warrant is the same as an application for a telecommunication service warrant under section 46, however, the applicant’s affidavit must include additional material as to why entry onto the premises is appropriate in the circumstances.

6.2 Telecommunications interception B party warrant

A B party warrant may also be issued under section 46. Section 46(1)(ii) allows a service warrant to be issued in respect of a person who is not the subject of an investigation, but is likely to communicate with the subject. A B party warrant may only be issued if additional thresholds are met.

A B party interception warrant must not be issued unless the Issuing Officer is satisfied that:15

(a) the agency has exhausted all other practicable methods of identifying the telecommunications services used or likely to be used by the person involved in the offences, or

12 Section 49(3)(b) of the TIA Act.13 Sections 49(4), (5) of the TIA Act. 14 Section 48 of the TIA Act.15 Section 46(3) of the TIA Act.



(b) interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible.

The warrant must identify the person whose service is to be intercepted as the particular person on the warrant. Thus, a B party warrant will identify that person, rather than the target of the ACLEI investigation.

Warrants which authorise a B party interception have a maximum duration of 45 days.16 The warrant must be revoked if the circumstances listed under paragraph 4.2 cease to exist. This recognises that a B Party interception inherently involves a potential for intrusion into the privacy of people other than targets of an ACLEI operation.

16 Section 49(3) of the TIA Act


Example

N is the target of an ACLEI operation. He uses a number of services, including public telephones, phones in offices and mobile phones borrowed or stolen from others. N communicates frequently with P, a person who is not the subject of an ACLEI operation but it is understood that N discusses his plans and activities with P. ACLEI could apply for a B party interception warrant in relation to services used by P.


6.3 Telecommunications interception named person (service) warrant

A named person (service) warrant allows interception of communication made to or by a specific person using a telecommunications service17 under section 46A(1)(d)(i) of the TIA Act.

A telecommunications service can be identified by a unique number or any other unique identifying factor.18 A service number includes a number assigned to it from time to time, or by any other unique identifying factor.

An application for a named person (service) warrant should include the services which it is known the person is using. Additional services, which come to light in the course of executing the warrant, may be added later by way of notification (see templates under ‘enabling and disabling interception’).

In addition to the threshold requirements set out above in paragraph 4.2, a TI named person (service) warrant must not be issued unless the Issuing Officer is satisfied that there are reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunication service (s 46A(c)).

6.4 Telecommunications interception named person (device) warrant

A named person (device) warrant allows interception of communication made to or by a specific person using a ‘telecommunications device’19 under section 46A(1)(d)(ii) of the TIA Act.

An example of when a named person (device) warrant would be used rather than a named person (service) warrant is if the target is suspected to be using a single mobile phone handset and cycling many sim cards through it.

A telecommunications device can be identified by a unique telecommunications number or any other unique identifying factor.20 A telecommunications number is defined to mean the ‘address’ used by a carrier for the purpose of directing a

17 Defined in section 5(1) TIA Act as a service for carrying communications by means of guided or unguided electromagnetic energy or both.18 Section 6P of the TIA Act.19 Defined in section 5(1) of the TIA Act as a terminal device that is capable of being used for transmitting or receiving a communication over a telecommunications system20 Section 6Q of the TIA Act.



communication to its intended destination and identifying the origin of the communication, and includes:

(a) a telephone number(b) a mobile telephone number(c) a unique identifier for a telecommunications device, such as an electronic

serial number or a Media Access Control (MAC) address(d) a user account identifier(e) an Internet Protocol (IP) address, and(f) an e-mail address.

In addition to the threshold requirements set out in paragraph 4.2 above, a TI named person (device) warrant must not be issued unless the Issuing Officer is satisfied that there are reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunication service and:21

(a) there are no other practicable methods available to the agency at the time of the application to identify the telecommunications services used or likely to be used by the person in respect of whom the warrant would be issued, or

(b) interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be practicable.

Once a named person (device) warrant has been issued, it is not possible, under that warrant, to add other devices later. Thus, if possible, all devices should be identified before the application is made. Technical limitations of the interception systems prevent more than one device number being included on the face of a warrant .

It is not possible to have more than one person named on a warrant. A separate warrant is needed for each person (although one affidavit may be used for multiple people whose services may be intercepted as part of the same exercise). This allows a warrant relating to a specific person to be revoked if the subject is no longer of interest without interfering with the validity of other warrants.

A named person warrant has a maximum duration of 90 days. It cannot be extended but a further application for another warrant may be made (section 49).

6.5 Stored communications (SC) warrant

21 Section 46A(3) of the TIA Act.



A SC warrant may be issued under section 110 of the TIA Act. There is only one type of SC warrant; the threshold requirements for the issue of a SC warrant are provided above at paragraph 5.3.

While a SC warrant application may be based on similar facts to a TI warrant application and supported by the same affidavit, the two processes are separate, based on different standards and lead to the issue of different warrants. Most importantly, a SC warrant expires when it is executed or five days after issue, while a TI warrant can last for 45 or 90 days.

The TIA Act allows agencies to give a preservation notice to a carrier to prevent the carrier from destroying stored communications in the normal course of its business. The object is to ensure that communications are copied and held by the carrier, pending the issue of a SC warrant. Details are provided in paragraph 5.4 above.

7.0 ROUTINE APPLICATIONS

7.1 Before making an application

The Integrity Commissioner is responsible for ACLEI’s compliance with the requirements of the TIA Act. The Integrity Commissioner will determine whether ACLEI should apply for a warrant, and case officers must therefore:

(a) ensure that they have a basis and authority to act(b) consult General Counsel, Assistant Director Operational Support and the

Integrity Commissioner before any application is made, and(c) ensure that the Integrity Commissioner is kept informed about the

progress of the application, and any circumstances that may affect whether the warrant should be renewed, changed or revoked.

ACLEI case officers must keep in mind the exceptional and intrusive nature of the powers to intercept communications or access stored communications.



7.2 Form of applications and templates

Applications for both live telecommunications and stored communications warrants must be made in writing unless urgent circumstances exist which justify making a telephone application22.

The application must be accompanied by an affidavit which sets out the grounds on which the application is based.23 The TIA Act prescribes additional requirements for interception affidavits, depending on which type of warrant is being applied for.24 These details are contained in the template for each type of application.

Templates for TI affidavits, SC affidavits, TI warrants (including B party warrants), SC warrants and other necessary documentation are available on the Intranet.

7.3 Process

Once a decision is made that a warrant should be sought, the usual process is as follows:

i. An application (which takes the form an affidavit) and draft warrant is prepared.

ii. The case officer swears the affidavit before the Integrity Commissioner, an ACLEI lawyer or a JP (jurats for Commonwealth, State and Territory affidavits are at Attachment A).

iii. An appointment is arranged with the Issuing Officer for the application to be dealt with in chambers. The case officer and warrant applicant generally attend. An ACLEI lawyer may also attend as appropriate.

iv. If required by the Issuing Officer, the case officer and the warrant applicant may provide further evidence on oath or affirmation.

v. If the Issuing Officer agrees to issue the warrant, he or she signs it, with the date and time, and may also sign or initial the affidavit.

vi. If the warrant is issued, ACLEI staff will bring it back to ACLEI. For security reasons, the Issuing Officer should not keep a copy of the application, affidavit, warrant and other information, though he or she may wish to make a diary note about having dealt with the matter.

22 TIA Act s 40 (for live telecommunications) and s 111(for stored communications) of the TIA Act. The applicant must be authorised under to make telephone applications and must provide the Issuing Authority with the necessary affidavit within one day of the warrant being issued. 23 TIA Act s 42 for telecommunications interception and s 113 for stored communications.24 Section 42(3)-(4A) TIA Act.


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vii. Whether the warrant is issued or not, all documentation must be provided to the Assistant Director, Operational Support.

Note 1: The Affidavit

the affidavit must refer to and annex evidence of the applicant’s authority to act. This also applies where a telephone application has been made

the affidavit should include information from a subscriber check that may identify any service being used, and

the affidavit must identify the serious offence or serious contravention which is being investigated. However, the affidavit should also identify all relevant offences, including those that do not meet the standard for a serious offence or a serious contravention. Issuing a warrant involves a discretion by the Issuing Officer and the number of offences listed may affect this discretion.

Note 2: Security

Throughout the warrant application and execution process, ACLEI will maintain a high level of security. In particular, hand to hand delivery25 will be used, as well as secure fax communication to the carrier and AGD. Nothing will be sent by Australia Post or through a non-secure fax system. Where this is impossible, the Director Operations may advise on the best available option.

7.4 After a warrant is issued

Once a warrant is issued it is necessary to carry out the following:

i. If the warrant is issued, the Assistant Director, Operational Support who will make necessary copies of the warrant and affidavit.

ii. The Assistant Director, Operational Support will arrange for the copies to be certified26 by the Integrity Commissioner, an Executive Director or another officer authorised by the Integrity Commissioner for that purpose and ideally not connected with the investigation. The person certifying the copy must complete a certified warrant certificate.

iii. As soon as possible, the case officer sends the carrier a certified copy of the warrant, the certified warrant certificate and a warrant connect letter by fax addressed to the Managing Director.

25 ACLEI staff or a secure courier, currently TNT, which satisfies ACELI’s requirements.26 The words for certification are ‘This is a true copy of original warrant No _____ issued by _____ on _____ to the Australian Commission for Law Enforcement Integrity. Signed:______ Dated: ________’.



iv. A certified copy of the warrant and covering letter are faxed to the Attorney-General, c/o AGD, on (02) 6141 2583. This must be done as soon as practicable and within one day of the warrant being issued. No further correspondence is necessary to comply with requirements to notify AGD.

v. A certified copy of the warrant and warrant certificate must be delivered to the Managing Director of the carrier by safe hand.

vi. An ‘appointing officer’27 ensures that staff of the AFP or the ACC who are executing the warrant are authorised to exercise the authority given by the warrant. The case officer then contacts the ACC Electronic Product Management Supervisor or the AFP’s Statutory Procedures Team Leader to advise that the warrant has been issued and then provides by fax:

a certified copy of the warrant a copy of the connect letter to the carrier and the fax

acknowledgement a copy of the letter to AGD and the fax acknowledgement a copy of the section 55 or section 127 authorisation (unless ACLEI is monitoring the interceptions) a copy of the redacted

affidavits and annexes, and a copy of any other relevant material.

vii. The case officer must ensure that these disseminations (to AGD, the Ministers, the other agency and the carrier) are all recorded.

As a practical matter, ACLEI may provide a carrier with a CD-ROM, formatted to be compatible with ACLEI systems, on which the carrier may place stored communications.

7.5 Engaging with carriers

It can often be prudent for the case officer to make an advance inquiry with the carrier before a warrant is sought. This can establish whether there are likely to be any delays or technical obstacles to an interception and allow the carrier to find a way around problems.

Some discretion is needed. It has happened that a small-scale carrier (especially in the mobile phone area) has been established by organised crime figures. It is always possible that any carrier may have employed people connected to criminal figures.

Carriers are reimbursed by agencies for their costs in complying with a warrant. Cost to ACLEI is a factor that should be considered when deciding whether to seek a warrant

27 Sections 55 or 127 of the TIA Act



and in considering its range and duration. A carrier is obliged only to deliver what it has received – it is for ACLEI to resolve, or pay the cost of resolving, any technical issues or breaking down any encryption.

7.6 Engaging with other agencies

ACLEI receives assistance from the AFP and ACC in executing warrants. Delivery numbers are to be obtained from the assisting agency to ensure correct capture of audio. Generally, this will be one delivery number per service being intercepted but in the case of a named person device warrant, one delivery number per carrier may be required e.g. Telstra, Optus, Vodafone, Hutchison. It is best to check with the AFP or ACC, as relevant, to ascertain how many delivery numbers will be required.

8.0 EMERGENCY REQUESTS

Part 2-3 of the TIA Act28 defines the basis for an emergency request for an interception. In essence, the interception must be immediately necessary because of an actual or imminent risk of death or serious injury to a person who is party to the communication in question.

ACLEI authorised officers cannot obtain an emergency request.

Only a ‘member of a police force’ can act under this provision. If he or she is satisfied that the situation exists, he or she may make an oral request to an employee of a carrier to intercept the communication for the purpose of tracing its location. The carrier’s employee must intercept the communication, provide the police force member with the person’s location and inform the carrier’s Managing Director. The police force member must give written confirmation of the request to the carrier’s Managing Director as soon as is practicable.

There is no corresponding provision in relation to stored communications because it is possible to give a carrier a preservation notice.

9.0 APPLICATIONS IN ANOTHER STATE

In some cases it may not be possible for ACLEI to apply for a warrant in the State or Territory where the investigation is being carried out. In particular, there may not be an Issuing Officer available in that jurisdiction.

28 Section 30 of the TIA Act.



In such cases the application must be made in another State or Territory, and the following procedure applies:

i. The case officer should consult General Counsel, who will arrange contact with the local office of the CDPP. The local CDPP office is responsible for settling the draft documents. The local CDPP office will also advise ACLEI on the jurisdiction in which the warrant should be sought.

ii. When the documents have been settled, General Counsel is responsible for liaising with the CDPP office in the other jurisdiction.

iii. Once the CDPP office in the other jurisdiction has received the documents, they will deal with the case in accordance with the general procedures set out above.

10.0 LEGAL PROFESSIONAL PRIVILEGE

10.1 What is legal professional privilege?

Confidential communications between a legal professional and their client for the dominant29 purpose of either obtaining legal advice or legal assistance from a legal professional, or for use in legal proceedings (actual or anticipated), are covered by legal professional privilege (LPP).

29 In instances where there is a secondary purpose for the communication, ask whether the communication would still have been made for the purpose of receiving legal advice if the secondary purpose didn’t exist. If it would have, it is likely to fulfil the dominant purpose test.



10.2 What is covered?

All matters within the scope of a lawyer's ordinary duties and which contemplate professional help are protected. It doesn’t matter that a particular correspondence may not be relevant to an ACLEI investigation; it is still covered by LPP.

The privilege only covers communications which are confidential, that is, made with a reasonable expectation that the contents would not be disclosed.

Non-legal activities of a legal professional, such as accounting, are not covered.

Communications made between a legal professional and their client for the purpose of facilitating a crime are not covered.

10.3 Who is covered?

A ‘legal professional’ means an individual who is admitted to practice in a state or territory of Australia. It does not include, for example, conveyancers who are not also lawyers. However, if a lawyer does conveyancing work then communications for that purpose would be covered by LPP.30

Further, it may be the case that the work of other professions, while not covered by legal professional privilege, may be covered by another type of privilege. For example, the Trade Marks Act 1995 says that communications with a trade marks attorney are covered by statutory privilege which mirrors LPP.

Communications made between a client’s agent to the lawyer, or between a lawyer’s agent to the client, are covered if the communication is for the dominant purpose of the lawyer giving the client legal advice.31

Communications between the various legal advisers of the client, such as between the client’s solicitor and the solicitor’s partner, are covered.32

30 Minter v Priest [1930] AC 558.31 Gaynor v Chief of the Defence Force (No 2) [2015] FCA 817.32 Ibid.



Communications and documents passing between a client’s solicitor and a third party or between the client and a third party are covered if they are for the purposes of gaining legal advice about litigation. 33

10.4 Legal professional privilege and intercepted material

ACLEI and its staff must be alert to the likelihood that a person subject to warrant may communicate with a lawyer, especially if he or she has had dealings with ACLEI or another agency (through being interviewed, served with a notice, arrested or having premises searched).

LPP ‘belongs’ to the client, not the lawyer. The client may waive the privilege by disclosing the advice to another person or doing something inconsistent with maintaining the privilege.

Where a monitor or other ACLEI staff member becomes aware that a person whose communications are being intercepted or accessed is communicating with a lawyer, the monitor must cease listening and inform ACLEI Legal to immediately seek advice on the specific situation, in particular:

whether the communication is likely to be covered by LPP whether an exception or qualification to LPP exists and whether a waiver has

occurred, and the steps that ACLEI should take, including quarantining of the calls.

ACLEI staff should seek advice from ACLEI Legal if they are considering obtaining or executing a warrant under the TIA Act which will affect a legal practitioner.If a law enforcement agency is known to have become aware of the content of privileged communications in the course of an investigation, it may compromise any proceedings which are brought about as a result of that investigation.

33 Ibid.




Example

C is an AFP staff member believed to be implicated in corrupt conduct and has been interviewed by an ACLEI investigator. ACLEI obtains a warrant to intercept C’s communications. While listening to a call, ACLEI’s monitor becomes aware that C is speaking with S, a solicitor, and seeking advice from her about what his position might be and what ACLEI could do next.

The monitor must stop listening to the call and record S’s telephone number so that future calls between S and C are quarantined and ACLEI does not listen to them. If ACLEI has had access to information from these conversations, it may make it difficult to bring proceedings against C.

Two days later, the monitor hears a call between C and a colleague (A) in which C tells A what S has advised him. It is likely that C has waived privilege in the advice he received from S. It would always be wise for ACLEI staff to bring any question of possible waiver of LPP to the attention of the ACLEI Legal.


11.0 DURATION OF A WARRANT

11.1 General

A TI warrant will be in force for up to 90 days, except B party interception warrants, which are in force for 45 days.34 The Issuing Officer can issue a warrant for a shorter period.

A SC warrant is in force until it is first executed on a carrier. If it is not executed on a carrier it will expire 5 days after it is issued.35

11.2 Extensions

A TI warrant cannot be extended, however, it is common that a TI warrant will expire before the investigation is completed. A further TI warrant can be applied for when that occurs (s 49(5) TIA Act). There is no restriction on the number of successive warrants that can be issued. The procedure requires a fresh application for a fresh warrant and it may be helpful to refer in any affidavit to whether useful information was obtained under previous warrants.

A SC warrant cannot be extended. A further warrant may be issued in relation to the same telecommunications service, but not less than three days after the previous warrant was executed.36

34 Section 49(3) of the TIA Act.35 Section 119 of the TIA Act.36 Section 119 of the TIA Act.



11.3 New warrant issued

It is usually desirable that investigators have access to continuing interception of a service and, given that there can be delays in issuing and executing a warrant, it may be necessary to apply for a replacement warrant before the previous ones expires. This can lead to the situation where both the old and new warrants are in existence at the same time.

A TI warrant comes into force when issued37 and interception may occur after the warrant is received by the carrier.38 While it is not expressed in the TIA Act, the better view is that the original warrant is not revoked automatically by the issue of the new warrant. Thus, it is possible for interceptions to continue seamlessly, provided that a new warrant is obtained in time.

AGD has recommended that warrants be expressed to cease some time before the end of normal business hours for a carrier. It is logistically difficult for a carrier to cease an interception at midnight on a specified date and it would probably be unlawful for the interception to continue after the warrant period has expired.

11.4 Revocation of a warrant by the Integrity Commissioner

Section 57 (TI warrants) and section 122 (SC warrants) of the TIA Act provide that the Integrity Commissioner must stop intercepting communications under a warrant, and revoke the warrant, in any case where it becomes apparent before the warrant comes to an end that the ‘grounds on which the warrant was issued have ceased to exist’.

Before revoking the warrant, the Integrity Commissioner must notify the Secretary of AGD, and the chief officer of any other agency exercising authority under the warrant about the intended revocation of the warrant.

In the case of TI warrants, if the Integrity Commissioner intends to revoke the warrant before it expires it is appropriate to advise the carrier(s) unofficially in advance. This ensures that no interception occurs after the revocation.

The Integrity Commissioner, or a certifying officer to whom the Integrity Commissioner has delegated this power, may revoke a stored communications warrant. The warrant can only be revoked after the Integrity Commissioner or relevant certifying officer has

37 Section 54 of the TIA Act.38 Section 47 of the TIA Act.


http://showroom.agdnet.ag.gov.au/workspace/ACLEI/SiteAssets/SitePages/ACLEI%20Templates/TI%20Revocation%20Notice%20-%20Letter%20to%20Executive%20Director.tr5

http://showroom.agdnet.ag.gov.au/workspace/ACLEI/SiteAssets/SitePages/ACLEI%20Templates/TI%20Revocation%20Notice%20-%20Letter%20to%20AGD.tr5


caused the chief officer of any other criminal law enforcement agency that is exercising authority under the warrant to be informed that the warrant will be revoked.39

Templates for revocation notices are on the intranet.

11.5 Post-revocation obligations (TI and SC warrants)

When a TI or SC warrant is revoked a certifying officer must immediately notify the authorised representative of the carrier and any other criminal law enforcement agency that is exercising authority under the warrant.40 As noted previously, it is often (but not always) helpful to give prior unofficial warning to the carrier.

As well, the certifying officer must forward the certified copy of the instrument of revocation to the authorised representative of the carrier as soon as possible41 (which has been interpreted to mean within five days).

12.0 FIREWALLS AND STORED COMMUNICATIONS

If an e-mail message is sent to the work address of a company employee it will have to pass through a firewall intended to stop improper or destructive messages. Such a message is not available to the person and is, therefore, not a stored communication capable of being accessed under a warrant.

There are three principal ways of addressing this problem:

obtain a TI warrant executing a search warrant at the employer’s premises, but this would alert

the employer and relevant employees to the investigation, or asking the employer to cooperate by releasing the message from the firewall.

Again, this would alert the employer and employees.

13.0 EVIDENTIARY CERTIFICATES

The TIA Act has a number of provisions requiring or allowing the issue of evidentiary certificates by the Integrity Commissioner, certifying officer or by a carrier. The effect of a certificate is to provide prima facie evidence of the interception matters which the

39 Section 122 of the TIA Act. 40 TIA Act s 60 for TI warrants and s 123 for SC warrants. 41 TIA Act s 60(3)(d) for TI warrants and s 123(2)(b) for SD warrants.


http://showroom.agdnet.ag.gov.au/workspace/ACLEI/SiteAssets/SitePages/ACLEI%20Templates/TI%20Evidentiary%20Certificate.tr5

http://showroom.agdnet.ag.gov.au/workspace/ACLEI/SiteAssets/SitePages/ACLEI%20Templates/TI%20Evidentiary%20Certificate.tr5

http://showroom.agdnet.ag.gov.au/workspace/ACLEI/SiteAssets/SitePages/ACLEI%20Templates/TI%20Revocation%20Notice%20-%20Letter%20to%20Carrier.tr5


certificate deals with. For example, an evidentiary certificate may address the activities that occurred following the issue of a warrant. 42

A carrier’s certificate43 may be issued by the Managing Director or the company secretary or a person authorised by either of them. A carrier’s certificate may set out what the carrier’s employees did in order to enable a warrant to be executed.

14.0 USING AND DEALING WITH INTERCEPTION AND STORED MATERIAL

The TIA Act contains very strict limitations on the disclosure of information about the issue of a warrant or information obtained through a warrant. Breaches may give rise to criminal penalties and disciplinary action.

There is a general prohibition on disclosing interception warrant information, intercepted content (s 63 TIA), stored communications warrant information and stored content (s 133 TIA). The major exceptions to the general prohibition on disclosure are set out at Attachment B.

There are no special rules for joint task forces – the material needs to satisfy the general requirements for sharing or dealing.

15.0 CO-OPERATION BETWEEN AGENCIES

15.1 Disclosure to other agencies

Interception and stored communications material may be shared according to the use and dealing rules outlined in Attachment B.

The requirement in section 67 that sharing of TI material under that provision must be for a purpose related to ACLEI means it is generally limited to internal use and dealing, and use and dealing within an ACLEI taskforce. Similarly, the requirement in section 139A that sharing of SC material under that provision must be for integrity purposes may limit its relevance to other agencies.

15.2 Exempt proceedings – disciplinary purposes

42 Section 61(4), (4A) and section 130 of the TIA Act.43 TIA Act s 61(1) for TI warrants and s 129(1) for SC warrants.



A disciplinary infraction, however serious, is not itself a basis for obtaining a TI or SC warrant. It may be, however, that such information will be revealed incidentally where a TI or SC warrant has otherwise been lawfully executed.

In addition to the disciplinary grounds for using and dealing with TI and SC material set out in Attachment B, the TIA Act allows the use of warrant and product information in ‘exempt proceedings.’ ‘Exempt proceedings’ are defined to include police disciplinary proceedings, a proceeding to terminate the employment of a police officer or police employee and other proceedings (excluding prosecution) relating to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth or of a State. The only requirement for use in proceedings related to the possible termination of employment is that the investigation or inquiry must be conducted under a law of the Commonwealth or by an officer of the Commonwealth.44

There are similar provisions in relation to use and disclosure for State police disciplinary purposes.

SC material can be given in evidence in an exempt proceeding for all of the same reasons that TI can be given in exempt proceedings, plus proceedings for the prosecution of an offence punishable by a minimum 12 months’ imprisonment or 60 penalty units.

16.0 DESTRUCTION OF MATERIAL

16.1 TI material

Section 79 of the TIA Act deals with the destruction of ‘restricted records.’ That term is defined to include material obtained by intercepting a telecommunication, whether lawfully or otherwise.45 The requirement is that a restricted record must be destroyed if the Integrity Commissioner is satisfied that it is not likely to be required for a permitted purpose.

Before any material is destroyed, a decision minute should be put to the Integrity Commissioner seeking approval of the destruction.

Material may only be destroyed after the Ombudsman has had the opportunity to inspect the material and ACLEI has received written notice from the Secretary of AGD

44 See section 6 definitions of ‘permitted purpose’ and ‘disciplinary or legal action’ and section 5B definition of ‘exempt proceedings’45 Section 5(1) of the TIA Act.


http://showroom.agdnet.ag.gov.au/workspace/ACLEI/SiteAssets/SitePages/ACLEI%20Templates/TI%20-%20Decision%20Minute%20-%20Destruction%20of%20Material.tr5


that the entry in the General Register relating to the warrant under which the record was obtained has been inspected by the Minister for Justice.

16.2 SC material

Section 150 of the TIA Act deals with the destruction of information or records obtained by accessing stored communications, whether that access was lawful or not. This section requires that the information or record must be destroyed forthwith if the Integrity Commissioner is satisfied that the record is not likely to be required for a purpose set out in section 139(2) of the TIA Act. These purposes include relevant investigations by ACLEI and other criminal law enforcement agencies and record keeping obligations.

Before any material is destroyed, a decision minute should be put to the Integrity Commissioner seeking approval of the destruction.

Additionally, the material must not be destroyed until the Ombudsman has had an opportunity to inspect it and AGD has been notified and has provided a notice that such action is permitted.

The Integrity Commissioner is required to list all such destructions that occur within a financial year in a report submitted to the Minister for Justice within three months of the end of that year.

17.0 RECORD KEEPING AND OVERSIGHT

17.1 Generally

ACLEI is responsible and accountable for what it has done under the TIA Act. Record-keeping, regular reporting and external oversight are critical to a piece of legislation which permits such a degree of intrusion into peoples’ communications.

17.2 Record keeping

Sections 80 and 81 of the TIA Act set out the documents which the Integrity Commissioner must cause to be retained in relation to TI product. This includes the particulars of each use of TI product. Section 151 of the TIA Act sets out a similar list in relation to SC product.



An ACLEI form ‘Section 81(1) Record Keeping Log pursuant to the TIA Act’, is used as a running sheet to collect information about Use and Communication of TI and SC product.

The current location used by ACLEI for storage of such documents is the evidence room. The Assistant Director, Operations Support, is responsible for these records.

17.3 ACLEI TI warrant numbering

AGD has allocated ACLEI the prefix ‘K’ for TI warrants, as follows:

K0001 refers to the first ACLEI warrant the second set of digits refers to renewals, with the original warrant being

numbered as ‘00’, and the third set of digits is for named person warrants.

The numbering is for administrative purposes only and its omission, inclusion or any errors in it would not invalidate the warrant.

17.4 Reporting

The Secretary of AGD is to be notified immediately upon issue of all warrants obtained under the TIA Act, including:

the name of the Issuing Officer the date and time the warrant was signed the terms specified concerning a telephone warrant, and a copy of the warrant

The Integrity Commissioner must provide to the Minister a copy of each warrant and each instrument revoking a warrant. The copy must be provided as soon as practicable after the warrant or the instrument of revocation is issued.

The Integrity Commissioner must also provide, within three months after a warrant ceases to be in force, a written report to the Minister stipulating46:

the use made by the agency of information obtained by interceptions under the warrant

46 Section 94 of the TIA Act.


http://showroom.agdnet.ag.gov.au/workspace/ACLEI/SiteAssets/SitePages/ACLEI%20Templates/TI%20-%20Section%2081C%20Report%20to%20AGD.tr5


the communication of such information to persons other than officers of the agency

the number of arrests that have been, or are likely to be, made on the basis of such information, and

an assessment of the usefulness of information obtained by interceptions under the warrant.

Where a named person TI warrant is involved, the Integrity Commissioner must also provide, within three months after it ceases to be in force, a written report to the Minister stipulating the following:47

(a) the service to or from which the intercepted communication was made(b) why it would not have been effective to intercept the communication

under a telecommunications service warrant(c) the use made of information obtained under the warrant(d) the communication of information to people outside the agency(e) the number of arrests that have been, or are likely to be, made on the

basis of information obtained under the warrant, and(f) an assessment of the usefulness of information obtained by each

interception.

The Integrity Commissioner must report annually to the Minister as soon as practicable, and within three months, after the end of a financial year. The report must include:

(a) section 100 - how many TI warrant applications were made and warrants issued

(b) section 101 - particulars about the duration of TI warrants(c) section 102 - the effectiveness of TI warrants(d) section 162 - how many SC warrant applications were made and warrants

issued, and(e) section 163 - the effectiveness of SC warrants.

17.5 Inspections by the Ombudsman

The Commonwealth Ombudsman is required under Part 2-7 (sections 83-92A) and Division 2 of Part 3-5 (sections 152-158) to inspect the records of each law enforcement agency to determine the extent of compliance with the TIA Act. The

47 Section 94B of the TIA Act.


http://showroom.agdnet.ag.gov.au/workspace/ACLEI/SiteAssets/SitePages/ACLEI%20Templates/TI%20-%20Section%2094B%20Report.tr5


Ombudsman has extensive powers to enter premises and examine records and reports to the Minister about his or her inspections.

Consequently personnel from the Commonwealth Ombudsman office will attend ACLEI periodically to inspect the records. The Ombudsman’s staff should have unrestricted access to ACLEI’s records related to TI and SC. ACLEI staff must provide the Ombudsman’s inspectors with all necessary assistance to enable them to perform their duties.

The Assistant Director Operational Support will facilitate any visit by the Ombudsman for the purpose of record inspection.

Attachment A

JURATS

Federal (including AAT)


http://www.hcourt.gov.au/registry/filing-documents/forms


ACT Jurat


http://www.legislation.act.gov.au/af/2007-72/current/pdf/2007-72.pdf


New South Wales Jurat


http://www.ucprforms.justice.nsw.gov.au/


Victoria Jurat

(Authorised witnesses are listed on the Victoria Department of Justice and Regulation website here )


http://www.justice.vic.gov.au/home/justice+system/legal+assistance/affidavits/

http://www.justice.vic.gov.au/home/justice+system/legal+assistance/affidavits/http:/www.justice.vic.gov.au/home/justice+system/legal+assistance/affidavits/


Tasmania Jurat


http://www.magistratescourt.tas.gov.au/forms


South Australia Jurat

(Authorised witnesses are a JP, Commissioner for taking affidavits or Notary Public)


https://www.lawsocietysa.asn.au/PDF/ProFormaAffidavit.doc


Western Australia Jurat

(Authorised witnesses are a JP, experienced legal practitioner who has not been involved in the preparation of the affidavit, public notary or any registrar or clerk of the court)


http://www.courts.dotag.wa.gov.au/_files/Fact_Sheet_Witnessing_Affidavits.pdf


Northern Territory Jurat

(Authorised witnesses are a JP, Commissioner for oaths, any other person authorised under s 15 of the Oaths, Affidavits and Declarations Act)


http://notes.nt.gov.au/dcm/legislat/legislat.nsf/d989974724db65b1482561cf0017cbd2/956066bfddffbdbd69257a4d0008f8f0?OpenDocument


Queensland Jurat


http://www.courts.qld.gov.au/about/forms


LEIC Act

TI or SC Permitted Use and Dealing

Other Definitions

s 67 Lawfully intercepted content (other than foreign intelligence information) and interception warrant information

Material may be communicated, used or recorded for a permitted purpose in relation to ACLEI.

Section 67 doesn’t apply if the material was intercepted under the authority of a warrant issued to a different agency, unless s 68 applies OR the material is being communicated for the purpose for which the warrant was originally issued and no other purpose.

Permitted purpose: Defined in s 5 and includes a corruption investigation; integrity testing purposes; the investigation of a prescribed offence; the conduct of a relevant proceeding; and record keeping obligations.

Permitted purposes – integrity purposes: Defined in s 6S to mean a purpose connected with applying for, designing and granting an integrity authority; and a purpose connected with applying for any warrant, authorisation or order for an integrity operation.

Note: ‘integrity authority’ covers integrity testing controlled operations under Part IAB of the Crimes Act 1914 (Cth) and integrity testing authorities under Part IABA of that Act.

Prescribed offence: Defined in s 5 and includes a serious offence or any other


Attachment BSUMMARY OF USE AND DISCLOSURE PROVISIONS


offence punishable by a minimum of 3 years’ imprisonment.

Relevant proceeding: Defined in s 6L and includes a prosecution for a prescribed offence to which a corruption investigation relates.

Serious offence: Defined in s 5D and includes any offence punishable by at least 7 years’ imprisonment and an extensive list of prescribed offences. These prescribed offences include offences involving bribery or corruption of an officer of the Commonwealth and serious fraud.

s 68 Lawfully intercepted content and designated warrant information

Material may be communicated by s 68 authorised officers:

- to a police force for the investigation of a relevant offence;

- to the Commissioner of the AFP if the material relates to police disciplinary matters or the improper conduct of an officer of the Commonwealth;

-to the CEO of the ACC if the material relates to conduct for which an ACC employee may be terminated;

Relevant offence: Defined in s 5 to mean a corruption investigation concerning conduct that involves a prescribed offence or possible conduct that would involve a prescribed offence.

Prescribed offence: Same as for s 67.



-to a prescribed anti-corruption/integrity agency for the purpose of an investigation within that agency’s jurisdiction;

-to the Secretary of DIBP if it relates to a matter in relation to which an integrity authority may be made.

s 74 Lawfully accessed information or warrant information

Exempt proceedings (defined in s 5B)

Police disciplinary proceedings (s 5B(e))

Proceedings which relate to a decision by a Police Commissioner to terminate the employment of a police officer or appoint a special member (AFP only)(s 5B(ea))

Proceedings which relate to disciplinary or legal action that is in relation to an eligible staff member of the AFP or ACC (s 5B(eb))

Any other proceeding in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth or a State (s 5B(f))

Note: disciplinary or legal action in relation to an eligible staff member of the AFP or ACC is defined in section



6S

s 139 Lawfully accessed information, preservation notice information or stored communications warrant information

Material may be communicated, used or recorded for a designated purpose, including the investigation of a ‘contravention’; prosecution proceedings; confiscation proceedings; a police disciplinary proceeding; and record keeping obligations.

Contravention: Defined in s 139(3) to mean a ‘serious offence’ or an offence punishable by at least 12 months’ imprisonment.

Serious offence: Same as for s 67.

s 139A

Lawfully accessed information, or stored communications warrant information

Material may be communicated, used or recorded for integrity testing purposes or for record keeping obligations.

Permitted purposes – integrity testing: Same as for s 67.

s 143 Lawfully accessed information, or stored communications warrant information

Exempt proceedings (defined in s 5B)

Same as exempt proceedings for lawfully intercepted information (see above under s 74 description), plus:

A proceeding by way of prosecution for an offence punishable by at least 12 months’ imprisonment or 60 penalty units (for an individual, 300 penalty units for a corporation).


Documents

Telecommunications Interception and Stored Communications