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Handout - Strategic Engagement

FOR OFFICIAL USE ONLY

STANDARD OPERATING PROCEDURE

TELECOMMUNICATIONS INTERCEPTION AND STORED COMMUNICATIONS WARRANTS

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 AMIntegrity Commissioner

March 2016

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

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

TI: Application Affidavit16#2275DOC

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

SC: Application Affidavit16#2276DOC

OtherTI Enabling and Disabling Interception

TI: Notification that Warrant Issued Letter to Carrier14#7535DOC

TI: Enabling of Interception Letter to Carrier14#7542DOC

TI: Renewal Letter to Carrier14#7544DOC

TI: Expiry Notice Letter to Carrier13#6576DOC

TI: Cease Interception Pending Revocation Letter to Carrier14#7604DOC

TI: Revocation Notice Letter to Carrier14#7657DOC

TI: Revocation Notice Letter to AGD14#905DOC

TI: Named Person Warrants Enabling Particular Services Letter to Carrier14#7545DOC

TI: Named Person Warrants Disabling Particular Services Letter to Carrier14#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 Material15#3031DOC

TI: Transcript of Intercepted Material14#1668DOC

TI - Reporting

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

TI: Section 81C Report to AGD13#5334DOC

SC Letters to Carriers

SC: Notification that Warrant Issued Letter to Carrier14#6575DOC

SC: Historic Domestic Preservation Request14#2350DOC

SC: Ongoing Domestic Preservation Request14#2349DOC

SC: Revocation of Historic Domestic Preservation Notice14#2351DOC

SC: Revocation of Ongoing Domestic Preservation Notice14#2352DOC

Contents1.0PURPOSE72.0BACKGROUND83.0SCHEME OF THE TIA ACT83.1Authorisations84.0OVERVIEW OF TELECOMMUNICATIONS INTERCEPTION104.1Who is eligible to apply104.2Threshold for issuing a warrant104.3Types of interception warrants114.4Obligations post-interception115.0 OVERVIEW OF STORED COMMUNICATIONS ACCESS125.1What is a stored communication?125.2Who is eligible to apply?125.3 Threshold for issuing a warrant135.4 Preservation notices135.5 Stored communications: obligations post-access146.0 TYPES OF WARRANTS146.1 Telecommunications interception (TI) service warrant and section 48 warrant146.2 Telecommunications interception B party warrant156.3 Telecommunications interception named person (service) warrant176.4Telecommunications interception named person (device) warrant176.5 Stored communications (SC) warrant197.0ROUTINE APPLICATIONS197.1 Before making an application197.2Form of applications and templates207.3 Process207.4After a warrant is issued217.6 Engaging with other agencies238.0 EMERGENCY REQUESTS239.0 APPLICATIONS IN ANOTHER STATE2410.0 LEGAL PROFESSIONAL PRIVILEGE2410.1 What is legal professional privilege?2410.2What is covered?2510.3Who is covered?2510.4 Legal professional privilege and intercepted material2611.0DURATION OF A WARRANT2711.1 General2711.2 Extensions2811.3New warrant issued2811.4 Revocation of a warrant by the Integrity Commissioner2911.5 Post-revocation obligations (TI and SC warrants)2912.0FIREWALLS AND STORED COMMUNICATIONS3013.0 EVIDENTIARY CERTIFICATES3014.0USING AND DEALING WITH INTERCEPTION AND STORED MATERIAL3015.0 CO-OPERATION BETWEEN AGENCIES3115.1Disclosure to other agencies3115.2Exempt proceedings disciplinary purposes3116.0DESTRUCTION OF MATERIAL3216.1 TI material3216.2 SC material3217.0RECORD KEEPING AND OVERSIGHT3317.1Generally3317.2Record keeping3317.3ACLEI TI warrant numbering3317.4Reporting3417.5Inspections by the Ombudsman35

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 persons 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

4.0 OVERVIEW OF TELECOMMUNICATIONS INTERCEPTION

4.1Who is eligible to apply

Because ACLEI is an enforcement agency[footnoteRef: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.[footnoteRef:2] If a warrant is issued only those staff members with a section 55(3) authorisation may exercise the authority conferred by the warrant. [1: Section 5 of the TIA Act.] [2: Section 39 of the TIA Act.]

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 section46 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 agencys 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/device[footnoteRef:3], and [3: Referred to as a B party interception.]

(c) that the Issuing Officer should issue a warrant based