TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979 Annual Report 2015–16 A C H I E V I N G A J U S T A N D S E C U R E S O C I E T Y w w w.ag.gov.au ISBN 978-1-925290-48-6 (Print) ISBN 978-1-925290-49-3 (Online) © Commonwealth of Australia 2015 All material presented in this publication is provided under a Creative Commons Attribution 4.0 International licence (www.creativecommons.org/licenses). For the avoidance of doubt, this means this licence only applies to material as set out in this document. The details of the relevant licence conditions are available on the Creative Commons website as is the full legal code for the CC BY 4.0 licence (www.creativecommons.org/licenses). Use of the Coat of Arms The terms under which the Coat of Arms can be used are detailed on the It’s an Honour website (www.itsanhonour.gov.au). 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TELECOMMUNICATIONS AND ACT 1979 AnnualReport2015?16 CONTENTS EXECUTIVE SUMMARY v Legislative reforms v Key judicial decisions vi Key findings vi Access to the content of a communication vii Telecommunications data vii Format of Annual Report viii More information viii CHAPTER 1—TELECOMMUNICATIONS INTERCEPTION 1 Serious offences 2 Eligibility to issue an interception warrant 4 Applications for and issue of telecommunications interception warrants 4 Named person warrants 13 B-Party warrants 16 Duration of warrants 18 Eligible warrants 20 Interception without a warrant 21 Mutual assistance 22 Number of interceptions carried out on behalf of other agencies 22 Telecommunications interception expenditure 23 Emergency service facilities 24 Safeguards and reporting requirements on interception powers 25 CHAPTER 2—STORED COMMUNICATIONS 31 Effectiveness of stored communications warrants 33 Preservation notices 34 Mutual assistance 35 Ombudsman Inspection Report 36 CONTENTS iii CHAPTER 3—TELECOMMUNICATIONS DATA 37 Existing data—authorisations 38 Prospective data—authorisations 46 Data authorisations for foreign law enforcement 47 Further reporting requirements 48 Journalist information warrants 58 Industry estimated cost of implementing data retention obligations 58 Use of data retention plans 58 CHAPTER 4—FURTHER INFORMATION 59 APPENDIX A—LIST OF TABLES AND FIGURES 60 APPENDIX B—INTERCEPTION AGENCIES UNDER THE TIA ACT 63 APPENDIX C—ABBREVIATIONS 64 APPENDIX D—CATEGORIES OF SERIOUS OFFENCES 66 APPENDIX E—RETAINED DATA SETS 67 APPENDIX F—CATEGORIES OF OFFENCES ABBREVIATIONS 72 i v T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 EXECUTIVE SUMMARY The Telecommunications (Interception and Access) 1979 Act Annual Report 2015–16 sets out the extent and circumstances in which eligible Commonwealth, State and Territory government agencies have used the powers available under the Telecommunications (Interception and Access) Act 1979 (TIA Act) between 1 July 2015—30 June 2016. The primary function of the TIA Act is to allow lawful access to communications and data for law enforcement and national security purposes, in a way that protects the privacy of people who use the Australian telecommunications network. Serious and organised criminals and persons seeking to harm Australia’s national security routinely use telecommunications services and communications technology to plan and carry out their activities. The TIA Act provides a legal framework for national security and law enforcement agencies to access the information held by communications providers that agencies need to investigate criminal offences and other activities that threaten safety and security. The access that may be sought under the TIA Act includes access to telecommunications data, stored communications that already exist or the interception of communications in real time. Each of the powers available under the TIA Act is explained below. The use of warrants to intercept and access stored communications is independently overseen by the Commonwealth Ombudsman and equivalent state bodies. The independent oversight role of the Commonwealth Ombudsman was extended to access and use of telecommunications data under the TIA Act on 13 October 2015. Legislative reforms Data Retention Act The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Data Retention Act) came into effect on 13 October 2015. The Data Retention Act standardised the data telecommunications companies are required to retain and introduced a mandatory retention period of two years. It also introduced a requirement for carriers to encrypt and protect retained data. The Data Retention Act significantly limited the range of agencies that can apply for a warrant to access stored communications or authorise the disclosure of telecommunications data under the TIA Act. The ability to apply for a stored communications warrant is limited to 20 designated ‘criminal law-enforcement agencies’. The ability for enforcement agencies to authorise the disclosure of telecommunications data has also been limited to the same 20 criminal lawenforcement agencies and the Australian Security Intelligence Organisation (ASIO). EXECUTIVE SUMMARY v The Data Retention Act also introduced additional record-keeping and reporting obligations relating to the access to and use of telecommunications data. This information is set out in Chapter 3 of this report. Public interest advocate regulations The Data Retention Act prohibits ASIO and enforcement agencies from authorising the disclosure of telecommunications data of a journalist or their employer where a purpose of making the authorisation is to identify a journalist’s source, unless a journalist information warrant has been obtained. The journalist information warrants regime recognises the public interest in protecting journalists’ sources while ensuring agencies have the investigative tools necessary to protect the community. When considering an application for a journalist information warrant, the TIA Act requires that the Attorney-General or issuing authority is satisfied that the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source. The regime is supported by the Public Interest Advocates who promote the rights of a journalist to seek and impart information by independently considering and evaluating warrant applications and providing independent submissions in the warrant application process. The Telecommunications (Interception and Access) Regulations 1987 have been amended to set out the procedure for applying for a journalist information warrant. These Regulations support the role of Public Interest Advocates by ensuring effective consultation and allowing submissions to be made in warrant applications. Key judicial decisions In 2015, a jury convicted three parties for offences under section 45 of the Crimes Act 1900 (NSW), which prohibits female genital mutilation (FGM). The first party was convicted of performing FGM on two girls at the request of the second party, their mother. The third party was convicted as being an accessory after the fact in relation to the events. Electronic evidence gathered under the TIA Act and the Surveillance Devices Act 2007 (NSW) formed a critical part of the police investigation, the prosecution case and the subsequent sentencing of the offenders. This was NSW’s first successful prosecution for these types of offences and resulted in penalties ranging from home detention to imprisonment for 15 months. Key findings • In 2015–16, 3,857 interception warrants were issued. • During 2015–16, information obtained under interception warrants was used in:1 –– 3,019 arrests2 –– 3,726 prosecutions –– 1,812 convictions. 1 2 These figures provide an indication about the effectiveness of interception, rather than the full picture, as, for example, a conviction can be recorded without admitting intercepted information into evidence. This figure includes the number of times lawfully intercepted information culminated in an arrest. v i T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 • In 2015–16, 63 enforcement agencies made 333,980 authorisations for the disclosure of historical telecommunications data. Of these, 326,373 authorisations were made to enforce a criminal law. Due to the reduction in agencies authorised to request data, as a result of the Data Retention Act, 43 of these agencies only reported for the period between 1 July 2015 and 12 October 2015. • From 13 October 2015—30 June 2016 the majority of criminal law offences for which historical data was requested was illicit drug offences (57,166 requests). 25,245 requests were made for homicide and related offences and 4,454 requests were made to assist in terrorism investigations. • In 2015–16, 33 authorisations were made under two Journalist Information Warrants. This is the first year the Journalist Information Warrants scheme has been operating. • In 2015–16, law enforcement agencies made 366 arrests, conducted 485 proceedings and obtained 195 convictions based on evidence obtained under stored communications warrants.3 Access to the content of a communication Accessing content, or the substance of a communication—for instance, the message written in an email, the discussion between two parties to a phone call, the subject line of an email or a private social media post—without the knowledge of the person making the communication is highly intrusive. Under the TIA Act, unless access occurs in certain limited circumstances, such as a life threatening emergency, access to stored communications or interception can only occur under either an interception or stored communications warrant. Access to a person’s communications is subject to significant oversight and reporting obligations. The annual report is an important part of this accountability framework. Accessing communications is an effective investigative tool that supports and complements information obtained by other methods. In some cases, the weight of evidence obtained by either an interception or a stored communications warrant results in defendants entering guilty pleas, thereby eliminating the need for the intercepted information to be introduced into evidence. Telecommunications data A critical tool available under the TIA Act is access to telecommunications data.4 Telecommunications data is often the first source of lead information for investigations, helping to eliminate potential suspects and to support applications for more intrusive investigative tools including search warrants and interception warrants. For example, an examination of call charge records can show that a potential person of interest has had no contact with suspects being investigated. 3 4 These figures provide an indication about the effectiveness of interception, rather than the full picture, as, for example, a conviction can be recorded without admitting intercepted information into evidence. Telecommunications data is information about a communication, such as the phone numbers of the people who called each other, how long they talked to each other, the email address from which a message was sent and the time the message was sent. EXECUTIVE SUMMARY vii Telecommunications data gives agencies a method for tracing telecommunications from end-to-end. It can also be used to demonstrate an association between people, or to prove that two or more people spoke with each other at a critical point in time. Access to telecommunications data is regulated by Chapter 4 of the TIA Act, which permits an authority or body that is an ‘enforcement agency’ under the TIA Act to authorise telecommunications carriers to disclose telecommunications data where that information is reasonably necessary for the enforcement of the criminal law, a law imposing a pecuniary penalty, or the protection of the public revenue. During the 2015–2016 reporting period all enforcement agencies could access historical data5 and only criminal law-enforcement agencies could access prospective data to assist in the investigation of offences punishable by at least three years’ imprisonment.6 The Data Retention Act, passed by the Parliament in March 2015, reduced the number of enforcement agencies that may access telecommunications data to 20 specified agencies and ASIO. The Attorney-General may declare additional agencies in prescribed circumstances. No additional agencies were prescribed in the 2015–16 reporting period. Format of Annual Report This Annual Report is organised into three main chapters: • Chapter 1—telecommunications interception, • Chapter 2—stored communications, and • Chapter 3—telecommunications data. The TIA Act and associated amendments are available online at More information Further information about telecommunications, interception, data access and privacy law can be found at: 5 6 • Attorney-General’s Department • Department of Communications and the Arts • Commonwealth Ombudsman • Office of the Australian Information Commissioner • Telecommunications Industry Ombudsman • Australian Communications and Media Authority Historical data, also known as existing data, is information that is already in existence when an authorisation for disclosure is received by a telecommunications carrier. Prospective data is telecommunications data that comes into existence during a period of time in which an authorisation is in force. v i i i T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 CHAPTER 1 TELECOMMUNICATIONS INTERCEPTION The primary function of the TIA Act is to protect the privacy of the communications of people who use the Australian telecommunications network by making it an offence to intercept communications, subject to limited lawful exceptions. Under the TIA Act, communications cannot be intercepted while they are passing over the Australian telecommunications system, except as authorised under the circumstances set out in the TIA Act. For example, the prohibition against interception does not apply to communications intercepted through a warrant or in circumstances connected to the operation or maintenance of a telecommunications system. Definition The term ‘interception agency’ is defined in section 5 of the TIA Act. An interception agency is limited to bodies such as the Australian Federal Police and State and Territory police forces. Only defined interception agencies are eligible to apply under Part 2–5 of the TIA Act for an interception warrant. The TIA Act provides for several types of warrants which enable access to real-time content (for example, a phone call while the parties are talking with each other). During the reporting period, interception warrants were available to 17 Commonwealth, state and territory agencies (along with ASIO) including: • ACC, ACLEI and AFP • State and Territory Police, and • State anti-corruption agencies. A full list of the agencies able to obtain an interception warrant is provided in Appendix B. CHAPTER 1 1 Serious offences Interception warrants can only be obtained to investigate serious offences. Serious offences generally carry a penalty of at least seven years’ imprisonment.7 Serious offences for which interception can be obtained under the TIA Act include murder, kidnapping, serious drug offences, terrorism, offences involving child pornography, money laundering, and offences involving organised crime. The information provided in Table 1 illustrates the important role telecommunications interception plays in investigating serious crimes. Consistent with previous years, in 2015–16 the majority of warrants obtained were to assist with investigations into serious drug offences (2,178 warrants). Loss of life or personal injury offences were specified in 536 warrants and 439 warrants related to murder investigations. Money laundering was specified as an offence in 264 warrants. The total number of offences is typically larger than the total number of warrants issued, as warrants can be issued to investigate more than one serious offence. Information about offences covered under each category is set out in Appendix D. 7 There are exceptions to this threshold. Interception warrants may be available for offences that typically involve the use of the telecommunications system, such as offences involving collusion. In these circumstances telecommunications interception is a critical investigative tool and its availability may be key to resolving an investigation. 2 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 CHAPTER 1 3 - - - - - - - - - - - - - - - - Administration of justice Bribery, corruption and dishonesty offences Cartel offences Child pornography offences Conspire/aid/abet serious offence Cybercrime offences Kidnapping Loss of life or personal injury Money laundering Murder Organised offences and/or criminal organisations People smuggling and related Serious damage to property and/ or serious arson Serious drug offences and/or trafficking Serious fraud Serious loss of revenue Total 260 - 260 ACC special investigation Terrorism offences ACC Categories of offences 11 - - - 2 - - - - - - - - - - - 9 - - ACLEI 1,314 230 29 69 629 2 7 27 35 191 21 - 4 - 10 7 42 11 - AFP 27 - - 3 13 - - - - - - - - - - - 11 - - CCC (QLD) 25 - - - - - - - - - - - - - - - 25 - - CCC (WA) 20 - - 10 6 - - - - - - - - - - - 4 - - IBAC 13 - - 1 - - - - - - - - - - - - 12 - - ICAC (NSW) 8 - - - - - - - - - - - - - - - 8 - - ICAC (SA) 208 - - - 89 1 - 1 30 50 12 9 - 16 - - - - - NSW CC 1,988 3 - 73 846 70 - 194 247 2 465 46 1 35 6 - - - - NSW Police 41 - - - 35 - - - 6 - - - - - - - - - - NT Police 71 - - 4 7 - - - - 18 - - - - - - 42 - - PIC 243 1 - - 212 - - 2 20 - 5 2 - 1 - - - - - QLD Police 108 - - - 84 - - - 8 2 - - - 9 - - 5 - - SA Police 15 - - - 13 - - - 2 - - - - - - - - - - TAS Police 150 - - 1 57 12 - 3 44 - 19 11 - - - - 3 - - VIC Police 283 7 - 1 185 6 - 13 47 1 14 - - - - - 9 - - 4,785 241 29 162 2,178 91 7 240 439 264 536 68 5 61 16 7 170 11 260 WA TOTAL Police Table 1: Categories of serious offences specified in telecommunications interception warrants—ss. 100(1)(f), 100(1)(g), 100(2)(f) and 100(2)(g) Eligibility to issue an interception warrant An interception warrant may only be issued by an eligible judge or a nominated Administrative Appeals Tribunal (AAT) member. Table 2 records that, as of January 2017, there were 89 issuing authorities. An eligible judge is a judge who has consented in writing and been declared by the Attorney‑General to be an eligible judge. In the reporting period, eligible judges included members of the: • Federal Court of Australia • Family Court of Australia, and • Federal Circuit Court. A nominated AAT member is a Deputy President, senior member or member of the AAT who has been nominated by the Attorney-General to issue warrants. Table 2: Number of Federal Court Judges, Family Court Judges, Federal Circuit Court Judges and nominated AAT Members to issue telecommunications interception warrants as of January 2017—s. 103(ab) Issuing authority Number eligible Federal Court judges 16 Family Court judges 4 Federal Circuit Court judges 34 Nominated AAT members 35 Before issuing an interception warrant the authority must take into account: • the gravity of the conduct of the offence/s being investigated • how much the interception would be likely to assist with the investigation, and • the extent to which other methods of investigating the offence are available to the agency. Applications for and issue of telecommunications interception warrants Table 3 sets out information detailing which authorities issued warrants to each of the interception agencies in the reporting period. In 2015–16, issuing authorities issued 3,857 interception warrants, a decrease of around 1 per cent from 2014–15, when 3,926 warrants were issued. 4 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Table 3: Number of telecommunications interception warrants issued by Federal Court judges, Family Court judges, Federal Circuit Court judges and nominated AAT members— s. 103(ab) Issuing authority Agency ACLEI Family Court Judges Federal Circuit Court Judges Federal Court Judges Nominated AAT members - 5 - 1 19 144 7 841 CCC (QLD) - 14 - 13 ICAC (NSW) - - - 13 ICAC (SA) - - 1 7 NSW CC - - - 165 NSW Police - - 47 1,383 NT Police - 21 - 20 PIC - - 3 57 QLD Police - 167 - 76 SA Police - - 11 90 TAS Police - - - 15 VIC Police - - - 150 CCC (WA) 24 - 1 - WA Police 232 - - 50 ACC 2 8 6 244 IBAC - - - 20 Total 277 359 76 3,145 AFP CHAPTER 1 5 Table 4: Applications, made and refused, for telecommunications interception warrants, telephone interception warrants, and renewal applications—ss. 100(1)(a)-(c) and 100(2)(a)-(c) Agency Relevant statistics* Telephone applications for warrants Applications for warrants Renewal applications 14/15 15/16 14/15 15/16 14/15 15/16 290 1 260 - - - 27 - 37 - 3 6 - - 1 2 856 4 1,012 1 3 - - 243 - 284 1 ACC Made Refused ACLEI Made AFP Made Refused CCC (QLD) Made 44 27 - - 13 1 CCC (WA) Made Refused 25 2 25 - - - 7 - 7 - IBAC Made 18 20 - 1 6 2 ICAC (NSW) Made 5 13 - - 2 6 ICAC (SA) Made 3 8 - - - - NSW CC Made 185 165 - - 68 45 NSW Police Made 1,532 1,430 40 30 252 262 NT Police Made 54 41 - - 9 1 PIC Made 48 60 - - 9 31 QLD Police Made 271 243 - - 42 38 SA Police Made 85 101 - - 3 6 TAS Police Made 24 15 1 - 6 1 VIC Police Made Refused 174 2 150 - 1 - 14 - 9 - 9 - WA Police Made 318 282 - - 53 33 Total Made Refused Issued 3,935 9 3,926 3,858 1 3,857 45 45 45 45 750 750 765 1 764 * The 2014–15 Annual Report combined the data of warrant applications that were refused and withdrawn into one category. For the purposes of this report warrant applications from the 2014–15 that were refused or withdrawn have been placed under the category of ‘Refused’ only. * In 2015–16 there were no warrant applications withdrawn. 6 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 The TIA Act provides that in exceptional circumstances, an issuing authority can issue an interception warrant that authorises entry on to premises to carry out telecommunications interception. An issuing authority can only issue such a warrant if satisfied that it would be impracticable or inappropriate to intercept communications otherwise than by use of equipment installed on those premises. Agencies only use this type of warrant on rare occasions. Table 5: Applications for telecommunications interception warrants authorising entry on premises—ss. 100(1)(d) and 100(2)(d) Agency Relevant statistics AFP CCC (WA) Total Warrants authorising entry on premises 14/15 15/16 Made Refused/withdrawn Issued 1 - 2 Made Refused/withdrawn Issued 2 - - Made Refused/withdrawn Issued 3 - 2 - - - Issuing authorities can place any conditions or restrictions on an interception warrant they consider necessary. For example, a condition or restriction may limit the ability for the agency to use or communicate the information obtained under the warrant, or restrict when interceptions may occur. During the reporting period, 23 interception warrants were issued with a condition or restriction. Figure 1 provides information about how these warrants are distributed across the different interception agencies. CHAPTER 1 7 Figure 1: Telecommunications interception warrants issued with specific conditions or restrictions—ss. 100(1)(e) and 100(2)(e) 7 6 6 6 5 4 3 3 3 2 2 1 1 1 CCC (QLD) ICAC (NSW) 1 0 ACLEI AFP ICAC (SA) NSW Police TAS Police ACC Effectiveness of telecommunications interception warrants The information provided in this section should be interpreted with some caution, particularly in presuming a relationship between the number of arrests, prosecutions (which include committal proceedings) and convictions in a reporting period. An arrest recorded in one reporting period may not result in a prosecution until a later reporting period. Any resulting conviction could be recorded in that or a subsequent reporting period. Additionally, the number of arrests may not equate to the number of charges laid as an arrested person may be prosecuted and convicted for a number of offences, some or all of which may be prosecuted at a later time. The tables may understate the effectiveness of interception as prosecutions may be initiated and convictions recorded, without the need to give intercepted information in evidence. In particular, agencies continue to report that telecommunications interception effectively enables investigators to identify persons involved in and the infrastructure of, organised criminal activities. In some cases, the weight of evidence obtained through telecommunications interception results in defendants entering guilty pleas, thereby eliminating the need for the intercepted information to be admitted into evidence. In 2015–16 there were 3,019 arrests based on lawfully intercepted information (this figure includes instances were lawfully intercepted information culminated in an arrest). There were also 3,726 prosecutions and 1,812 convictions where lawfully intercepted material was given in evidence. Tables 6, 7 and 8 provide this information. In previous reporting years, arresting agencies and non-arresting agencies which used lawfully intercepted information to assist in an arrest both recorded the number of ‘arrests’ made. In the 2015–16 reporting year agencies were asked to report on the number of times lawfully intercepted information culminated in an arrest separately from arrest numbers. This change removes the risk that arrest numbers will be duplicated. 8 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Table 6: Arrests on the basis of lawfully intercepted information—ss. 102(1)(a) and 102(2)(a) 14/15 15/16 Number of times lawfully intercepted information culminated in an arrest Agency Number of Arrests ACC 104 - 152 5 - 3 281 210 82 CCC (WA) - - - CCC (QLD) 46 48 7 - - 1 102 - 54 1,171 1,291 - NT Police 35 35 - PIC 9 2 1 QLD Police 457 428 - SA Police 159 86 3 TAS Police 31 5 - VIC Police 329 242 2 WA Police 371 367 - 3,100 2,714 305 ACLEI AFP IBAC NSW CC NSW Police Total CHAPTER 1 9 1 0 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 3 - Administration of justice Assisting person to escape or dispose of proceeds Bribery or corruption Child pornography offences Conspire/aid/abet serious offence Cybercrime offences Kidnapping Loss of life Money laundering Murder Offences involving planning and organisation Organised crime People smuggling and related Serious arson Serious damage to property Serious drug offences Serious drug offences and/or trafficking ACC ACC special investigations Categories of offences - - - - - - - - - - - - - - - - - - ACLEI 86 44 - - 1 4 - - 15 - - - - 1 2 - - - AFP - - - - - - - - - - - - - - - - - - CCC (QLD) - - - - - - - 12 35 - - - - - - - - - NSW CC - 78 - - - 1 136 10 3 - 4 100 - - - 2 - - NSW Police - 27 - - - - - 2 - - - - - - - - - - NT Police - - - - - - - - - - - - 4 - - - - - PIC - - - - - - - 3 - - - - - - - - - - QLD Police Table 7: Prosecutions per offence category in which lawfully intercepted information was given in evidence - - - - - - - 1 2 - - - - - - - - - SA Police - - - - - - - 10 5 12 4 - 6 - - 2 2 - VIC Police - - 16 5 - - 280 6 3 - - - - - - - - - WA Police 86 149 16 5 1 5 416 44 63 12 8 100 10 1 2 4 2 3 TOTAL CHAPTER 1 11 3 Serious loss of revenue Serious personal injury Terrorism offences Trafficking in prescribed substances Other Serious Offences Total 1 1 - - - - - ACLEI 236 37 18 8 - 3 17 AFP 18 15 1 - - - 2 CCC (QLD) 276 - 222 4 3 - - NSW CC 1,331 190 557 - 48 - 202 NSW Police 29 - - - - - - NT Police 20 16 - - - - - PIC 2 - Administration of justice Assisting person to escape or dispose of proceeds Child pornography offences Conspire/aid/abet serious offence Cybercrime offences Kidnapping Loss of life ACC ACC special investigations Categories of offences - - - - - - - - ACLEI - - - - 1 - - - AFP - - - - - - - - CCC (QLD) - - 22 - - - - - CCC (WA) - - - - - - - - NSW CC - - - 2 2 2 - - NSW Police - - - - - - - - NT Police - - - 3 - - - - PIC - - - - - - - - QLD Police 67 31 32 - - - 1 QLD Police Table 8: Convictions per offence category in which lawfully intercepted information was given in evidence - ACC Serious fraud Categories of offences - - - - - - - - SA Police 59 3 50 - - - 3 SA Police 7 3 - 3 - - 2 - VIC Police 376 134 156 - 45 - - VIC Police 22 3 7 - 3 - - 2 - 8 2 - - 2 TOTAL 3,726 427 2,015 12 108 3 234 TOTAL - WA Police 1,310 - 979 - 12 - 9 WA Police 1 2 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 2 Murder Offences involving planning and organisation Organised crime Serious arson Serious damage to property Serious drug offences Serious drug offences and/or trafficking Serious fraud Serious personal injury Terrorism offences Trafficking in prescribed substances Other serious offences Total ACC Money laundering Categories of offences 1 1 - - - - - - - - - - - - ACLEI 78 31 7 4 - 3 22 6 - - - - - 4 AFP 7 5 2 - - - - - - - - - - - CCC (QLD) 22 - - - - - - - - - - - - - CCC (WA) 139 - 114 - 3 - - - - - - - 3 19 NSW CC 386 25 161 - 42 13 - 53 - 33 18 26 3 6 NSW Police 18 - - - - - - 18 - - - - - - NT Police 19 16 - - - - - - - - - - - - PIC 67 31 32 - - 1 - - - - - - 3 - QLD Police 45 4 35 - - 3 - - - - - - 1 2 SA Police 159 4 103 - 26 - - - - - - - 8 3 VIC Police 4 9 77 22 9 - 1,112 658 869 1,812 117 4 - - 76 5 24 35 18 2 213 21 3 187 35 TOTAL 1 WA Police Named person warrants A named person warrant can authorise the interception of multiple telecommunications services (such as a landline or mobile service), or in certain circumstances, telecommunications devices (such as a mobile handset). Before issuing a named person warrant an issuing authority must take into account: • how much the privacy of any person would be likely to be interfered with • the gravity of the offence • whether the interception will assist in the investigation, and • the extent to which methods other than using a named person warrant are available to the agency. The following tables and figures show that in 2015–16, 964 named person warrants were issued, a decrease from the 2014–15 reporting period in which 1,000 named person warrants were issued. In 2015–16, six named person warrants were issued with a condition or restriction, three to the AFP and three to ACC. Table 9: Original applications for named person warrants, telephone applications for named person warrants, and renewal applications—ss. 100(1)(ea) and 100(2)(ea) Agency Relevant statistics* Applications for named person warrants Telephone applications for named person warrants Renewal applications for named person warrants 14/15 15/16 14/15 15/16 14/15 15/16 ACC Made 185 184 - - 23 34 AFP Made Refused 335 2 388 - 1 - - 110 - 157 - CCC (QLD) Made 26 3 - - 11 - CCC (WA) Made 2 3 - - - 3 IBAC Made 2 1 - 1 1 - NSW CC Made 91 70 - - 47 22 NSW Police Made 144 120 2 - 39 25 NT Police Made - 2 - - - - QLD Police Made 46 49 - - 6 8 SA Police Made 3 19 - - - 2 TAS Police Made 5 7 - - 1 1 VIC Police Made 44 46 - 3 3 5 WA Police Made 119 72 - - 32 9 CHAPTER 1 13 Agency Total Relevant statistics* Made Refused/Withdrawn Issued Applications for named person warrants Telephone applications for named person warrants Renewal applications for named person warrants 14/15 15/16 14/15 15/16 14/15 15/16 1,002 2 1,000 964 964 3 3 4 4 273 273 266 266 * The 2014–15 Annual Report combined the data of warrant applications that were refused and withdrawn into one category. For the purposes of this report warrant applications from the 2014–15 that were refused or withdrawn have been placed under the category of ‘Refused’ only. * In 2015–16 there were no warrant applications withdrawn or refused. Consistent with the last reporting period, in 2015–16 the majority of named person warrants were for the interception of between two to five telecommunications services. Table 10: Number of services intercepted under named person warrants—ss. 100(1)(eb) and 100(2)(eb) Relevant statistics Agency 1 service only 2–5 services 6–10 services 10+ services 14/15 15/16 14/15 15/16 14/15 15/16 50 67 123 95 18 16 8 3 - - - - - - - - 104 119 205 244 21 20 1 - CCC (QLD) 7 1 15 2 3 - - - CCC (WA) - - 1 1 - - 1 2 IBAC - - 1 1 1 - - - NSW CC 36 26 47 39 6 4 1 - NSW Police 33 25 95 92 10 2 - 1 - - - 2 - - - - 10 9 32 32 4 8 - - SA Police - 5 3 14 - - - - TAS Police - 1 4 1 2 5 - - VIC Police 10 9 28 32 2 5 1 - WA Police 33 16 78 54 8 2 - - 283 278 632 609 75 62 12 6 ACC ACLEI AFP NT Police QLD Police Total 14/15 15/16 1 4 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Under the TIA Act, agencies can apply for a named person warrant in relation to telecommunications devices, where a device or devices of interest can be identified. Subparagraphs 100(1)(ec)(i)-(iii) require the report to include the total number of: (i) services intercepted under service based named person warrants (ii) services intercepted under device based named person warrants, and (iii) telecommunications devices intercepted under device based named person warrants. Figure 2 and Table 11 outline the number of services intercepted under the different types of named person warrants and should be read in conjunction with Table 9, which provides the total number of named person warrants issued. Figure 2: Total number of services intercepted under service-based named person warrants—ss. 100(1)(ec) and 100(2)(ec) 900 800 804 700 600 500 433 400 289 300 200 100 5 0 AFP 186 164 149 2 144 38 7 26 5 CCC NSW NSW NT QLD SA TAS VIC CCC WA ACC (QLD) CC Police Police Police Police Police Police (WA) Police IBAC CHAPTER 1 15 Table 11 shows, consistent with previous years, that in 2015–16, device-based named person warrants were used by only a small number of agencies. Table 11: Total number of services and devices intercepted under device-based named person warrants—ss. 100(1)(ec) and 100(2)(ec) Agency Services Devices ACC 57 32 AFP 342 145 NSW Police 8 10 WA Police 2 - 409 187 Total B-Party warrants Definition A ‘B-Party warrant’ is a warrant that enables an interception agency to intercept the communications of a person who is communicating with a person suspected of involvement in a serious offence. An issuing authority can issue a B-Party warrant, but only if there are no other practicable methods of identifying the telecommunications services of the person involved in the offences, or if interception of communications from that person’s telecommunications services would not otherwise be possible. Table 12 shows that in 2015–16, 108 B-Party warrants were issued, a slight increase on the 102 B Party warrants issued in 2014–15. There were no withdrawn applications for B‑Party warrants in 2015–16. 1 6 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Table 12: Applications for B-Party warrants, telephone applications for B-Party warrants, and renewal applications—ss. 100(1)(ed) and 100(1)(ed) Agency Applications for B-Party warrants Relevant statistics Telephone applications for B-Party warrants Renewal applications for B-Party warrants 14/15 15/16 14/15 15/16 14/15 15/16 4 - - - 1 - 50 - 60 1 - - 32 - 26 1 ACC Made AFP Made Refused NSW CC Made 7 4 - - - - NSW Police Made 41 43 9 9 - - QLD Police Made - 2 - - - - Total Made Refused Issued 102 102 109 1 108 9 9 9 9 33 33 26 1 25 Table 13: B-Party warrants issued with conditions or restrictions—ss. 100(1)(ed) and 100(2)(ed) Agency Applications for B-Party warrants 14/15 15/16 AFP 2 - NSW Police 1 1 Total 3 1 CHAPTER 1 17 Duration of warrants Under the TIA Act, a telecommunications interception warrant, other than a B-Party warrant, can be in force for up to 90 days. Under section 57, the chief executive of an agency may revoke a warrant at any time and must revoke a warrant if they are satisfied that the conditions for issuing the warrant no longer exist. Table 14 sets out the average length of time for which interception warrants—including renewals, but not including B-Party warrants—were issued and the average length of time they were in force in the reporting period. Table 14: Duration of original and renewal telecommunications interception warrants— ss. 101(1)(a)-(d) and 101(2)(a)-(d) Duration of original telecommunications interception warrants Duration of renewal of telecommunications interception warrants Average period specified in warrants (days) Average period warrants in force (days) Average period specified in warrants (days) Average period warrants in force (days) ACC 89 61 89 69 ACLEI 90 88 90 89 AFP 80 55 83 72 CCC (QLD) 65 58 59 59 CCC (WA) 82 51 81 66 IBAC 76 67 67 12 ICAC (NSW) 90 78 79 64 ICAC (SA) 74 45 - - NSW CC 82 72 86 71 NSW Police 54 39 59 45 NT Police 87 52 87 33 PIC 84 74 87 78 QLD Police 75 56 75 59 SA Police 73 52 72 74 TAS Police 76 54 90 56 VIC Police 83 51 46 29 WA Police 90 58 90 72 Average 79 59 78 58 Agency 1 8 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Under the TIA Act, a B-Party warrant can be in force for up to 45 days. The following table sets out the average length of time for which B-Party warrants and renewals of those warrants were issued and the average length of time they were in force in the reporting period. Table 15: Duration of original and renewal B-Party warrants—ss. 101(1)(da) and 101(2)(da) Duration of original telecommunications B-Party warrants Agency Average period specified in warrants (days) Average period warrants in force AFP Duration of renewal of telecommunications B-Party warrants (days) Average period specified in warrants (days) Average period warrants in force (days) 44 41 45 44 NSW CC 29 16 - - NSW Police 31 18 - - QLD Police 10 10 - - Average 29 21 45 44 A final renewal means a telecommunications interception warrant that is the last renewal of an original warrant. A final renewal is recorded as the number of days after the issue of the original warrant that the last renewal of the warrant ceases to be in force. The categories of final renewals are: • 90 day final renewal—a last renewal that ceases to be in force more than 90 days but not more than 150 days after the date of issue of the original warrant • 150 day final renewal—a last renewal that ceases to be in force more than 150 days but not more than 180 days after the date of issue of the original warrant, and • 180 day final renewal—a last renewal that ceases to be in force more than 180 days after the date of issue of the original warrant. Table 16 provides information on the number of final renewals used by agencies. CHAPTER 1 19 Table 16: Number of final renewals—ss. 101(1)(e) and 101(2)(e) Agency 90 days 150 days 180 days 14/15 15/16 14/15 15/16 14/15 15/16 ACC 8 7 8 15 6 5 ACLEI - - - - - 1 35 26 51 46 68 42 CCC (QLD) 2 - 8 - - - CCC (WA) 1 2 6 3 - 1 IBAC - 1 4 1 1 - ICAC (NSW) 2 1 - 1 - 1 NSW CC 3 6 18 4 20 5 110 137 8 16 30 16 NT Police - 1 3 - 2 - PIC 3 1 - 6 - 5 13 14 12 12 4 3 SA Police 3 2 - 2 - - TAS Police - 1 - - - - VIC Police - 5 - 3 - - WA Police 11 4 23 12 12 6 191 208 141 121 143 85 AFP NSW Police QLD Police Total Eligible warrants Definition An ‘eligible warrant’ is a warrant that was in force during the reporting period— not necessarily a warrant that was issued during the reporting period—where a prosecution was instituted or was likely to be instituted on the basis of information obtained by interceptions under the warrant. Table 17 sets out the number of eligible warrants issued to agencies during the reporting period and the percentage of warrants issued to agencies that were eligible warrants. 2 0 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Table 17: Percentage of eligible warrants—ss. 102(3) and 102(4) Agency Total number of warrants Number of eligible warrants % 250 173 69 6 4 67 1,154 727 63 CCC (QLD) 31 20 65 CCC (WA) 34 2 6 IBAC 25 10 40 ICAC (NSW) 12 10 83 ICAC (SA) 10 - - NSW CC 192 136 71 1,541 1,131 73 NT Police 35 23 66 PIC 24 18 75 QLD Police 277 266 96 SA Police 107 69 64 TAS Police 17 12 71 VIC Police 171 128 75 WA Police 293 172 59 4,179 2,901 69 ACC ACLEI AFP NSW Police TOTAL Interception without a warrant Under the TIA Act, agencies can undertake interception without a warrant in limited circumstances, for example, where there is a serious threat to life or the possibility of serious injury. Table 18 reports on interceptions under subsection 7(5) of the TIA Act, which relates to situations where the person to whom the communication is directed consents to the interception. There were no cases where an officer of the agency undertaking the interception was a party to the communication. CHAPTER 1 21 Table 18: Interception without a warrant—s. 102A Consent where person likely to receive communication from person who has: Agency Committed an act that has or may result in loss of life or serious personal injury Threatened to kill or seriously injure another Threatened to cause serious damage to property Threatened to take, endanger, or create serious threat to own life/safety 14/15 15/16 14/15 15/16 14/15 15/16 14/15 15/16 NSW Police - 11 - 11 - - - - Total - 11 - 11 - - - - Mutual assistance Section 102B of the TIA Act requires that the annual report include information about the number of occasions on which lawfully intercepted or interception warrant information was provided to a foreign country under subsection 68(1) or section 68A of the TIA Act in connection with an authorisation under subsection 13A(1) of the Mutual Assistance in Criminal Matters Act 1987. One authorisation issued under section 13A during the reporting period included telecommunications interception material. Number of interceptions carried out on behalf of other agencies The TIA Act supports the ability of interception agencies to cooperate and to work collaboratively by enabling one interception agency to carry out interception on behalf of other agencies. Table 19: Number of interceptions carried out on behalf of other agencies—s. 103(ac) Interception carried out by: Interception carried out on behalf of: ACC CCC (QLD) SA Police 27 5 AFP ACLEI ACC NSW Police 6 8 1 CCC (WA) WA Police IBAC 1 8 VIC Police TAS Police 14 IBAC ICAC (SA) 8 TOTAL Number of interceptions: 78 2 2 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Telecommunications interception expenditure Table 20 below provides information about the total expenditure (including expenditure of a capital nature) by interception agencies on telecommunications interception warrants and the average expenditure (total warrant expenditure divided by the number of warrants issued) per warrant. The average cost per warrant is significantly affected by capital expenditure (which can vary significantly, for instance, due to a capital upgrade program) and the number of warrants issued, meaning that smaller interception agencies typically have higher average costs as they apply for fewer warrants. Care should be taken in comparing costs associated with average expenditure as interception agencies employ different interception models which may result in some costs associated with interception being delineated, and for other agencies, those same costs being included in their average expenditure. Table 20: Total expenditure incurred by each agency in connection with the execution of telecommunications interception warrants and average expenditure per telecommunications interception warrant—ss. 103(a) and 103(aa) Agency ACC Total expenditure ($) Average expenditure ($) 8,093,128 31,127 342,594 57,099 16,746,407 16,564 CCC (QLD) 1,805,614 66,874 CCC (WA) 2,218,804 88,752 IBAC 1,722,724 86,136 ICAC (NSW) 155,522 11,963 ICAC (SA) 168,346 21,043 NSW CC 2,300,050 13,939 NSW Police 7,239,911 5,062 NT Police 1,105,872 9,657 PIC 1,546,914 25,781 11,216,457 46,158 3,775,436 37,380 TAS Police 607,000 37,333 VIC Police 7,719,442 51,462 WA Police 3,624,454 12,852 70,388,675 619,182 ACLEI AFP QLD Police SA Police TOTAL CHAPTER 1 23 Table 21 provides a breakdown of the total recurrent costs of interception over the reporting period. As agencies do not necessarily treat or record particular items of expenditure in the same way, caution should be exercised in comparing costs incurred by individual agencies. Table 21: Recurrent interception costs per agency Salaries Administrative support Capital expenditure Interception costs Total ($) 6,074,026 202,317 598,065 1,218,720 8,093,128 211,347 102,446 - 28,801 342,594 11,240,814 888,234 2,797,896 1,819,463 16,746,407 CCC (QLD) 1,113,532 204,468 55,000 432,614 1,805,614 CCC (WA) 1,089,576 1,189 1,048,362 79,677 2,218,804 IBAC 1,465,290 27,220 61,137 169,077 1,722,724 ICAC (NSW) 52,200 - - 103,322 155,522 ICAC (SA) 85,248 - - 83,098 168,346 NSW CC 1,864,319 - - 435,731 2,300,050 NSW Police 5,597,331 231,351 - 1,411,229 7,239,911 709,910 - 20,000 375,962 1,105,872 PIC 1,308,417 - - 238,497 1,546,914 QLD Police 4,541,087 893,356 5,043,547 738,466 11,216,456 SA Police 2,522,280 363,459 216,173 673,524 3,775,436 TAS Police 557,000 - - 50,000 607,000 VIC Police 5,882,921 47,661 415,814 1,373,047 7,719,443 WA Police 3,172,700 302,629 - 149,125 3,624,454 47,487,998 3,264,330 10,255,994 9,380,353 70,388,675 Agency ACC ACLEI AFP NT Police TOTAL Emergency service facilities Table 22 sets out the number of places that have been declared under the TIA Act to be emergency service facilities. Under the TIA Act, listening to or recording calls to and from a facility declared by the Minister to be an emergency service facility is not interception. This exemption ensures that emergency services can assist emergency callers and respond to critical situations as quickly as possible, without the need to first obtain a caller’s consent to recording of the call. 2 4 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Table 22: Emergency service facility declarations State/territory Police Fire brigade Ambulance Emergency services authority Dispatching Australian Capital Territory 5 - - - 3 New South Wales 8 95 6 - 6 Northern Territory 2 - 1 1 4 21 12 9 - 13 South Australia 1 2 1 - 3 Tasmania 1 2 1 - 2 Victoria 6 1 10 - 8 Western Australia 1 2 1 - 6 45 114 29 1 45 Queensland Total Safeguards and reporting requirements on interception powers The TIA Act contains a number of safeguards, controls and reporting requirements in relation to interception, access to stored communications and disclosure of telecommunications data. These include a requirement for: • the heads of interception agencies to provide the Secretary of the Attorney-General’s Department (AGD) with a copy of each telecommunications interception warrant • interception agencies to report to the Attorney-General, within three months of a warrant ceasing to be in force, detailing the use made of information obtained by the interception • the Secretary of the AGD to maintain a General Register detailing the particulars of all telecommunications interception warrants. The Secretary of the AGD must provide the General Register to the Attorney-General for inspection every three months • the Secretary of the AGD to maintain a Special Register recording the details of telecommunications interception warrants that do not lead to a prosecution within three months of the warrant expiring. The Special Register is also given to the Attorney-General to inspect. Law enforcement agencies’ use of interception powers under the TIA Act is independently overseen by the Commonwealth Ombudsman and equivalent state bodies. At least twice a year the Commonwealth Ombudsman must inspect the records kept by the ACC, ACLEI and the AFP relating to interceptions and the use, dissemination and destruction of intercepted information. The inspections are retrospective and on the basis of a full year, and for this reason, the Ombudsman inspected relevant telecommunications interception warrants that were expired or revoked in the period between 1 January and 31 December 2015. CHAPTER 1 25 The Commonwealth Ombudsman is required under the TIA Act to report to the Attorney-General about these inspections, including information about any deficiencies identified and remedial action. State and Territory legislation imposes similar requirements on State and Territory interception agencies regarding their use of interception powers. While the Commonwealth Ombudsman is responsible for inspecting the records of the ACC, ACLEI and the AFP in relation to interception, the relevant state or territory Ombudsman generally undertakes this function for State and Territory agencies. The reports of the inspections of the declared state and territory agencies are given to the responsible state or territory Minister who provides a copy to the Commonwealth Attorney-General. The Commonwealth Ombudsman also conducts inspections of records in relation to access by enforcement agencies (including both Commonwealth and state agencies) to stored communications and telecommunications data. The Data Retention Act introduced additional obligations for these reports to be provided to the AttorneyGeneral and tabled in Parliament. Commonwealth Ombudsman—inspection of telecommunications interception records During the reporting period the Commonwealth Ombudsman conducted six inspections of the interception records of the ACC, ACLEI and the AFP (two inspections for each agency). During its review of warrants that expired or revoked in the period between 1 January and 31 December 2015 the Ombudsman noted that there continues to be a high level of compliance with the TIA Act, where agencies displayed a good understanding of the TIA Act’s requirements. The Ombudsman noted agency responsiveness towards inspection findings. Overall, the Ombudsman did not identify any systemic issues or significant problems, with all agencies found to be compliant with the majority of the Ombudsman’s inspection criteria. The Ombudsman’s inspection criteria (see Figures 3 and 4) are: 1. Were restricted records properly destroyed (s 79)? 2. Were the requisite documents kept in connection with the issue of warrants (s 80)? 3. Were warrant applications properly made and warrants in the correct form (ss 39(1) and 49)? 4. Were the requisite records kept in connection with interceptions (s 81)? 5. Were interceptions conducted in accordance with the warrants (s 7) and was any unlawfully intercepted information properly dealt with (s 63)? 2 6 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Commonwealth Ombudsman’s summary of findings Table 23: Summary of findings from the two inspections conducted at each agency between 1 January and 31 December 2015 CRITERIA ACC ACLEI AFP Were restricted records properly destroyed (s 79)? Not assessed. The ACC advised it did not conduct any destructions of restricted records during the inspection Compliant. Non-compliant. A number of restricted records were not destroyed as required. The AFP has amended period. its destruction procedures in line with Ombudsman suggestions. Were the requisite documents kept in connection with the issue of warrants (s 80)? Compliant. Compliant. Compliant. Were warrants properly applied for and in the correct form (ss 39(1) and 49)? Nothing to indicate otherwise. Nothing to indicate otherwise. Compliant with the exception of two instances. Despite this the Ombudsman notes that the AFP procedures are sufficient. Were requisite records kept in connection with interceptions (s 81)? Compliant. Compliant. Compliant. Were interceptions conducted in accordance with the warrants (s 7) and was any unlawfully intercepted information properly dealt with (s 63)? Compliant. Compliant. Compliant with the exception of two instances. CHAPTER 1 27 Commonwealth Ombudsman’s findings per Commonwealth agency for warrants expiring between 1 January to 31 December 2015 ACC No formal recommendations were made as a result of either of the two inspections of the ACC. In response to a self-disclosed instance where a warrant was issued for a longer period than allowed for under the Act, the Ombudsman made a suggestion to improve compliance. The ACC acknowledged the error and advised that it implemented the suggested improvement to internal guidelines. The Ombudsman noted the ACC had taken appropriate remedial action to address issues identified in previous inspections. The Ombudsman also noted that the ACC’s policies and procedures are working as intended to prevent unlawfully intercepted information being disseminated to investigators. ACLEI No formal recommendations or suggestions were made as a result of either of the two inspections of ACLEI. The Ombudsman noted that ACLEI was cooperative and forthcoming with information at the inspection. AFP No formal recommendations were made as a result of either of the two inspections of the AFP. However the Ombudsman noted that the AFP was not compliant in a number of instances in relation to its destruction obligations. The Ombudsman suggested that the AFP update its procedures and processes to ensure compliance with section 79(1) of the TIA Act. The AFP accepted the suggestion and advised the Ombudsman that it has changed is destruction procedures. The Ombudsman noted two instances where warrants were not in the prescribed form as required by s 49(1) of the TIA Act. Given that the frequency of non-compliance with this requirement has decreased over time, the Ombudsman concluded that the AFP’s procedures in relation to the matter are sufficient to achieve compliance with the Act. The Ombudsman noted in two instances that the AFP was non-compliant with interception requirements. However, the AFP has been able to quarantine unlawfully intercepted information prior to disseminating the product to investigations. Despite these findings the Ombudsman remains of the view that the AFP’s procedures relating to the lawful interception of communications are sufficient to achieve compliance with the Act. Further information about the Commonwealth Ombudsman’s telecommunications interception inspection criteria is outlined in Figure 3 and 4 below. 2 8 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 1.2 Evidence that the destroyed restricted records were not destroyed before the Attorney-General had inspected the warrants under which the restricted records were obtained (s 79(2)). 2.1 Evidence that all warrants issued to the agency are kept (s 80(a)). 1.1 Evidence that the chief officer was satisfied that the destroyed restricted records were not likely to be required for a permitted purpose and were subsequently destroyed forthwith (s 79(1)). 2.5 Evidence that each authorisation by the chief officer under s 66 (2) is kept (authorisation to receive information obtained under warrants) (s 80(e)). 2.4 Evidence that a copy of each certificate issued under s 61(4) is kept (evidentiary certificates) (s 80(d)). 2.3 Evidence that all instruments revoking warrants are kept (s 80(c)). 2.2 Evidence that a copy of each notification under s 59A(2) is kept (notifications to the Secretary of AGD) (s 80(b)). s 80 Documents kept in connection with the issue of warrants s 79 Destruction of restricted records 3.13 Evidence that particulars of when LII was given in evidence in a relevant proceeding in relation to the agency are kept (s 81(1)(g)). 3.12 Evidence that particulars of each communication of LII by an officer of the agency to a person or body other than such an officer are kept (s 81(1)(f)). 3.11 Evidence that particulars of each use made by the agency of LII are kept (s 81(1)(e)). 3.10 Evidence that particulars of each other agency from or to which or other person from or to whom the agency received or supplied the restricted record are kept (s 81(1)(d)(iv)). 3.9 Evidence that particulars of each occasion when the restricted record ceased to be in the agency’s possession are kept (s 81(1)(d)(iii)). 3.8 Evidence that particulars of each occasion when the restricted record came to be in the agency’s possession are kept (s 81(1)(d)(ii)). 3.7 Evidence that each warrant issued to the agency is kept that relates to restricted records that have at any time been in the agency’s possession (s 81(1)(d)(i)). 3.6 Evidence that particulars of each named person warrant including each service to or from which communications have been intercepted under the warrants are kept (s 81(1)(c)(v)). 3.5 Evidence that particulars of the duration of each interception and the name of the person who carried out each interception are kept (ss 81(1)(c)(iii) and (iv)). 3.4 Evidence that particulars of the day and time at which each interception under the warrant began (for named person warrants the service must also be indicated) are kept (ss 81(1)(c)(ii)) and 81(2)). 3.3 Evidence that the particulars of all warrants whose authority is exercised by the agency are kept (s 81(1)(c)(i)). 3.2 Evidence that statements as to whether applications were withdrawn, refused or issued on the application are kept (s 81(1)(a)). 3.1 Evidence that each telephone application for a part 2–5 warrant is kept (s 81(1)(a)). s 81 Other records kept in connection with interceptions (Warrant details, lawfully intercepted information (LII) records, use and communication) Objective: to assess agencies’ compliance with the record keeping and destruction requirements of the telecommunications interception provisions of the Telecommunications (Interception and Access) Act 1979 Figure 3: Commonwealth Ombudsman’s Telecommunications Interception Inspection Criteria CHAPTER 1 29 2.3 Evidence that all instruments revoking warrants are kept (s 80(c)). 2.2 Evidence that a copy of each notification under s 59A(2) is kept (notifications to the Secretary of AGD) (s 80(b)). 4.6 Warrants state a date of issue (and time of issue) (s 49(1)). 4.2 If applicable, warrants specify conditions and/or restrictions (s 49(2)). 4.1 Warrant application made to a person authorised under ss 6D or 6DA and warrant in the correct form (ss 39(1) and 49(1)). 2.1 Evidence that all warrants issued to the agency are kept (s 80(a)). s 80 Documents kept in connection with the issue of warrants • the agency has policies and procedures in place to ensure lawful interceptions and that intercepted information is properly dealt with. • subscriber details connected to the intercepted communications were authorised by the warrant • any conditions and/or restrictions (relating to interceptions) specified on warrants were adhered to • interceptions ceased before the warrant expired or was revoked • interceptions only began after the warrant was issued Check that: 3.5 Evidence that particulars of the duration of each interception and the name of the person who carried out each interception are kept (s 81(1)(c)(iii)). 3.4 Evidence that particulars of the day and time at which each interception under the warrant began (for named person warrants the service(s) must also be indicated) are kept (ss 81(1)(c)(ii)) and 81(2)). s 81 Other records kept in connection with interceptions 4.5 No applications made for extensions of warrants (s 49(4)). 4.4 Warrants set out short particulars of each serious offence (s 49(7)). 4.3 B party warrants specifying the period to be in force of up to 45 days, other warrants up to 90 days (s 49(3)). 4.2 If applicable, warrants specify conditions and/or restrictions (s 49(2)). 4.1 Warrant application made to a person authorised under ss 6D or 6DA and warrant in the correct form (ss 39(1) and 49(1)). s 49 Form and content of warrants 4.7 Warrants state entry is authorised to be made at any time of the day or night, or only during specified hours; warrants may provide that entry may be made without permission first being sought, or demand first being made, and authorise measures necessary and reasonable for that purpose (s 48(5)). s 48 Issue of warrant for entry on premises 5.3 Evidence that any unlawfully intercepted information was properly dealt with (s 63). 5.2 Accessed stored communications were authorised by a telecommunications interception warrant (s 108(2)). 5.1 Interceptions were authorised by a warrant and conducted in accordance with any conditions or restrictions (s 7). 4.6 Warrants state a date of issue (and time of issue) (s 49(1)). s 54 Entry into force of warrants Other matters reportable under s 85 and able to be checked as a direct result of compliance checks under s 80 and 81 Figure 4: Other matters reportable under s. 85 3 0 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 CHAPTER 2 STORED COMMUNICATIONS Authorities and bodies that are ‘criminal law-enforcement agencies’ under the TIA Act can apply to an independent issuing authority for a stored communications warrant to investigate a ‘serious contravention’ as defined in the TIA Act. Definition All ‘criminal law-enforcement agencies’ are set out in section 110A of the TIA Act. These agencies include all interception agencies as well as the Department of Immigration and Border Protection, the Australian Securities and Investments Commission and the Australian Competition and Consumer Commission. Stored communications include communications such as email, SMS or voice messages stored on a carrier’s network. Definition A ‘serious contravention’ includes: • serious offences (offences for which a telecommunications interception warrant can be obtained) • offences punishable by imprisonment for a period of at least three years • offences punishable by a fine of least 180 penalty units (currently $30,600) for individuals or 900 penalty units (currently $153,000) for non-individuals such as corporations. CHAPTER 2 31 Table 24: Applications and telephone applications for stored communications warrants— ss. 162(1)(a)-(b) and 162(2)(a)-(b) Agency Relevant statistics* Applications for stored communications warrants 14/15 15/16 Telephone applications for stored communications warrants 14/15 15/16 ACC Made 4 2 - - ACCC Made 4 - - - AFP Made 94 80 - - ASIC Made - 1 - - CCC (QLD) Made - 3 - - CCC (WA) Made - 5 - - DIBP Made 10 1 - - NSW CC Made 3 4 - - NSW Police Made 290 345 - - NT Police Made 16 11 - - PIC Made 7 16 - - QLD Police Made 123 132 - - SA Police Made 38 19 - - TAS Police Made Refused 30 1 17 - - - VIC Police Made 40 41 - - WA Police Made 38 35 - - Total Made Refused Issued 697 1 696 712 712 - - * The 2014–15 Annual Report combined the data of warrant applications that were refused and withdrawn into one category. For the purposes of this report warrant applications from the 2014–15 that were refused or withdrawn have been placed under the category of ‘Refused’ only. * In 2015–16 there were no warrant applications withdrawn or refused. 3 2 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Table 25: Stored communications warrants subject to conditions or restrictions— s. 162(2)(d) Agency Application for warrants 15/16 NSW Police 345 SA Police 2 Total 347 Effectiveness of stored communications warrants In 2015–16, criminal law-enforcement agencies made 366 arrests, conducted 485 proceedings and obtained 195 convictions based on evidence obtained under stored communications warrants. Table 26: Number of arrests, proceedings and convictions made on the basis of lawfully accessed information—s. 163(a)-(b) Agency Arrests 14/15 Proceedings 15/16 14/15 Convictions 15/16 14/15 15/16 ACCC - - - 1 - - ACC 5 4 - - - - AFP 46 12 34 7 15 5 CCC (QLD) 3 2 - 1 - 1 NSW CC - 3 - - - - 179 167 221 362 107 86 NT Police 8 7 - 7 - 2 PIC 8 2 - 7 - 4 QLD Police 69 130 68 67 68 66 SA Police 17 6 3 - 2 2 TAS Police 4 5 - - 1 - VIC Police 28 20 7 29 1 26 WA Police 10 8 2 4 4 3 377 366 335 485 198 195 NSW Police Total Care should be taken in interpreting Table 26 as an arrest recorded in one reporting period may not result in a prosecution (if any) until a later reporting period. Any resulting conviction may be recorded in that or an even later reporting period. CHAPTER 2 33 Preservation notices Under Part 3-1A of Chapter 3 of the TIA Act, criminal law-enforcement agencies can give a preservation notice to a carrier. A preservation notice allows criminal law-enforcement agencies to preserve stored communications that a carrier holds. The carrier is required to keep the stored communications while the notice is in force. The purpose of the notice is to preserve communications in order to support criminal law-enforcement agencies during their investigations by allowing them to seek warrants where necessary. The TIA Act provides for three types of preservation notices: • historic domestic preservation notices—requires the preservation of all communications held by the carrier on the day of the notice for up to 90 days. • ongoing domestic preservation notice—requires the preservation of all communications held by the carrier for a period of 29 days from the day after the notice is received. The notice remains in force for up to 90 days. • foreign preservation notices—requires the preservation of all stored communications that a carrier holds that relate to the specified person connected with the contravention of foreign laws. Domestic preservation notices must be revoked if the person specified in the notice is no longer under investigation. A criminal law-enforcement agency must also revoke a notice if the agency decides not to apply for a warrant to access the stored communications covered by the notice. Foreign preservation notices must be revoked if 180 days has elapsed since the carrier was given the notice and the foreign country has not made a request to the Attorney-General for access to those communications in that time period, or if the Attorney-General refuses the request to access the communications. 3 4 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Table 27: Domestic preservation notices—s. 161A(1) Agency Domestic preservation notice issued Domestic preservation revocation notices issued ACC 4 - ASIC 55 - AFP 213 64 CCC (QLD) 31 11 CCC (WA) 5 1 DIBP 3 - ICAC (NSW) 2 - ICAC (SA) 2 - NSW CC 7 5 NSW Police 443 72 NT Police 112 64 27 5 295 157 SA Police 89 73 TAS Police 113 26 VIC Police 71 11 WA Police 104 28 1,576 517 PIC QLD Police Total Under section 161A(2) of the TIA Act the AFP is required to report on foreign preservation notices. In 2015–16, the AFP reported that five foreign preservation notices and no foreign preservation notice revocation notices were issued. Mutual assistance Section 162(1)(c) requires the report to outline the number of stored communications warrants obtained to assist in mutual assistance applications. No stored communications warrants were obtained in these circumstances during the reporting period. Section 163A of the TIA Act provides that the annual report must provide information regarding the number of occasions in which lawfully accessed information or stored communications warrant information was provided to a foreign country under the Mutual Assistance in Criminal Matters Act 1987 (the Mutual Assistance Act). In 2015–16 there were no occasions on which this information was provided to a foreign country under the Mutual Assistance Act. CHAPTER 2 35 Ombudsman Inspection Report The Commonwealth Ombudsman inspects the preservation notices and stored communications access records of all criminal law-enforcement agencies. Summaries of these inspections have been included in previous annual reports. Due to changes made through the Data Retention Act, the annual report will no longer include information on inspections concerning stored communications and preservation notices. Under new section 186J the Commonwealth Ombudsman continues to have a statutory obligation to report on the results of these inspections to the Minister. However, the Minister must now cause a copy of this report to be tabled before each House of Parliament within 15 sitting days after receipt of the inspection report. This requirement will ensure the Parliament and public have visibility of the inspection results outside of the annual report. 3 6 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 CHAPTER 3 TELECOMMUNICATIONS DATA Access to telecommunications data is regulated by Chapter 4 of the TIA Act which permits ‘enforcement agencies’ to authorise telecommunications carriers to disclose telecommunications data where that information is reasonably necessary for the enforcement of the criminal law, a law imposing a pecuniary penalty, or the protection of the public revenue. Definition An ‘enforcement agency’ includes all interception agencies as well as a body whose functions include administering a law imposing a pecuniary penalty or administering a law relating to the protection of the public revenue. From 13 October 2015, the definition of enforcement agency was restricted to 20 agencies that also fall under the definition of ‘criminal law-enforcement agency’. All criminal law-enforcement agencies are set out in section 110A of the TIA Act. These agencies include all interception agencies as well as the Department of Immigration and Border Protection, the Australian Securities and Investments Commission and the Australian Competition and Consumer Commission. In addition to restricting the number of agencies with access to telecommunications data to 21 agencies, the Data Retention Act introduced new reporting requirements from 13 October 2015. Agencies no longer able to access telecommunications data under the TIA Act from 13 October 2015 have recorded authorisations for telecommunications data for the period between 1 July 2015 and 12 October 2015. The new reporting requirements expressed in tables 39–43 came into effect on 13 October 2015 and record relevant agency activities from 13 October 2015 to 30 June 2016. Between 1 July 2015 and 12 October 2015, 63 enforcement agencies made historical data authorisations. Definition ‘Telecommunications data’ is information about a communication—such as the phone numbers of the people who called each other, how long they talked to each other, the email address from which a message was sent and the time the message was sent. CHAPTER 3 37 Data is often the first source of lead information for further investigations, helping to eliminate potential suspects and to support applications for more privacy intrusive investigative tools including search warrants and interception warrants. Under the TIA Act, all enforcement agencies can access historical data and criminal law-enforcement agencies can also access prospective data. Disclosure of telecommunications data must be approved by an authorised senior officer of the relevant enforcement agency. Definition ‘Historical data’, also known as ‘existing data’, is information that is already in existence when an authorisation for disclosure is received by a telecommunications carrier. ‘Prospective data’ is telecommunications data that comes into existence during a period of time in which an authorisation is in force. Only agencies recognised under the Act as being a criminal law-enforcement agency can authorise the disclosure of prospective data. A criminal law-enforcement agency can only authorise the disclosure of prospective data when disclosure is considered to be reasonably necessary for the investigation of an offence punishable by imprisonment for at least three years. A prospective data authorisation comes into force once the relevant telecommunications service provider receives the request and is effective for 45 days or less. Existing data—authorisations Tables 28–36 provide information on the use of historical data by all enforcement agencies authorised to disclosure telecommunications data at some point within the 2015–16 reporting year. Table 28, 32 and 36 set out the number of authorisations made by current criminal law-enforcement agencies that continued to have access to historical data under the TIA Act after the commencement of the Data Retention Act. In 2015–16 criminal law-enforcement agencies made: • 325,807 authorisations for access to existing information or documents to enforce the criminal law • 2,426 authorisations for access to existing information or documents to enforce a law imposing a pecuniary penalty or to protect the public revenue, and • 4,406 authorisations for access to existing information or documents to locate missing persons. In total, criminal law-enforcement agencies made 332,639 authorisations for historical data. 3 8 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Tables 29, 30, 33 and 34 include statistics for historical data authorisations made by enforcement agencies that were no longer able to access telecommunications data under the TIA Act as of 13 October 2015. These tables cover authorisations made from 1 July 2015 to 12 October 2015. Table 28: Number of authorisations made by a criminal law-enforcement agency for access to existing information or documents in the enforcement of a criminal law—s. 186(1)(a) Agency Authorisations 14/15 15/16 7,429 8,721 133 70 ASIC 1,691 1,822 DIBP 9,851 2,622 ACLEI 5,908 2,123 AFP 27,462 25,640 CCC (QLD) 12,451 2,377 CCC (WA) 1,333 664 IBAC 424 240 ICAC (NSW) 532 261 ICAC (SA) 734 112 3,023 2,196 114,111 105,710 NT Police 3,391 2,882 PIC 1,296 1,479 QLD Police 40,710 29,271 SA Police 11,668 14,264 TAS Police 8,152 7,969 VIC Police 66,663 82,034 WA Police 36,310 35,350 353,272 325,807 ACC ACCC NSW CC NSW Police Total CHAPTER 3 39 Table 29: Number of authorisations made by a Commonwealth enforcement agency for access  to existing information or documents in the enforcement of a criminal law for the period 1 July 2015 to 12 October 2015—s. 186(1)(a) Agency ATO Authorisations 14/15 1/7/15 – 12/10/15 206 35 - 64 Australian Financial Security Authority 76 16 Civil Aviation Safety Authority 11 - 2 - 58 16 - 11 Dept. of Defence (IGD, ADFIS) 21 - Dept. of Health 58 - Dept. of the Environment 21 - 453 142 Australia Post Clean Energy Regulator Dept. of Agriculture Dept. of Foreign Affairs and Trade Total 4 0 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Table 30: Number of authorisations made by a state or territory enforcement agency for access to existing information or documents in the enforcement of a criminal law for the period 1 July 2015 to 12 October 2015—s. 186(1)(a) Agency Jurisdiction Authorisations 14/15 1/7/15 – 12/10/15 SA 111 110 NSW 52 6 Corrections Victoria VIC 276 48 Dept. of Commerce WA 97 26 Dept. of Economic Development, Jobs, Transport and Resources VIC 226 173 Dept. of Environment Regulation WA 18 - Dept. of Environment, Land, Water and Planning VIC 27 4 Environment Protection Authority NSW 51 7 Consumer and Business Services Corrective Services NSW Hume City Council VIC - 1 Integrity Commission TAS - 4 Legal Services Board VIC 3 - Office of Environment & Heritage NSW 46 11 Roads and Maritime Services NSW NSW 5 - RSPCA Victoria VIC 133 23 RSPCA TAS TAS 2 - RSPCA Queensland QLD 14 8 Transport Accident Commission VIC 8 1 NSW 6 1 VIC 41 1 1,116 424 State Insurance Regulatory Authority (Formerly Workcover NSW) Worksafe Victoria Total CHAPTER 3 41 Table 31: Total number of authorisations made for access to existing information or documents in the enforcement of a criminal law—s. 186(1)(a) Authorisations Agency 14/15 15/16 No. of authorisations made by a Law Enforcement Agency 341,597 321,293 No. of authorisations made by a Commonwealth Agency8 12,128 4,656 No. of authorisations made by a State or Territory Agency9 1,116 424 354,841 326,373 Total Table 32: Number of authorisations made by a criminal law-enforcement agency for access to existing information or documents in the enforcement of a law imposing a pecuniary penalty or the protection of the public revenue—s. 186(1)(b) Agency Authorisations 14/15 15/16 ACCC 132 62 ASIC 160 110 DIBP 261 67 AFP 43 75 CCC (QLD) 3 - IBAC - 1 3,570 972 - 4 400 70 2 1 TAS Police 536 972 WA Police - 92 5,107 2,426 NSW Police NT Police QLD Police SA Police Total 8 9 With the exception of ASIC, ACCC and DIBP, Commonwealth agencies only reported for the period from 1 July 2015 to 12 October 2015. State and Territory Agencies only reported for the period from 1 July 2015 to 12 October 2015. 4 2 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Table 33: Number of authorisations made by a Commonwealth enforcement agency for access to existing information or documents in the enforcement of a law imposing pecuniary penalty or the protection of the public revenue for the period 1 July 2015 to 12 October 2015—s. 186(1)(b) Authorisations Agency 14/15 ATO 1/7/15 – 12/10/15 43 - 625 - 22 4 1 - 145 44 71 15 269 34 Dept. of Prime Minister & Cabinet 1 - Dept. of Social Services 6 2 Fair Work Building & Construction 8 1 1,191 100 Australia Post Australian Health Practitioner Regulation Agency Department of Industry and Science (National Measurement Institute) Dept. of Foreign Affairs and Trade Dept. of Defence (IGD, ADFIS) Dept. of Human Services Total Table 34: Number of authorisations made by a state or territory enforcement agency for access to existing information or documents in the enforcement of a law imposing a pecuniary penalty or the protection of the public revenue for the period 1 July 2015 to 12 October 2015—s. 186(1)(b) Agency Jurisdiction Authorisations 14/15 1/7/15 – 12/10/15 ACT Revenue Office ACT 3 - Bankstown City Council NSW 13 1 Consumer Affairs Victoria VIC 132 65 Consumer and Business Services SA 21 - Dept of Environment and Heritage Protection QLD 28 3 Dept. of Agriculture and Fisheries QLD 41 10 Dept. of Commerce WA 115 23 Dept. of Economic Development, Jobs, Transport and Resources VIC 1 - Dept. of Fisheries WA 98 60 Dept. of Justice (Sheriffs Office of Victoria) VIC 3 - CHAPTER 3 43 Agency Jurisdiction Authorisations 14/15 1/7/15 – 12/10/15 Dept. of Mines and Petroleum WA 1 - Dept. of Parks and Wildlife WA 42 6 Dept. of Primary Industries NSW 148 41 Harness Racing New South Wales NSW 15 1 VIC 2 - Health Care Complaints Commission NSW 63 20 Ipswich City Council QLD 3 - Juvenile Justice NSW NSW 2 - VIC 15 11 Office of Fair Trading NSW 675 179 Office of Fair Trading QLD 361 87 Office of Liquor and Gaming Regulation QLD 2 - Office of State Revenue NSW 34 4 Office of State Revenue QLD 1 - Office of the Racing Integrity Commissioner VIC 48 - Primary Industries & Regions SA 238 77 Racing and Wagering Western Australia WA 7 6 Racing NSW NSW 33 77 Racing Queensland QLD 5 - Revenue SA SA 10 2 State Revenue Office Victoria VIC 32 2 Taxi Services Commission VIC 5 - 2,197 675 Harness Racing Victoria Knox City Council Total 4 4 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Table 35: Total number of authorisations made for access to existing information or documents in the enforcement of a law imposing a pecuniary penalty or protecting public revenue—s. 186(1)(b) Authorisations Agency 14/15 15/16 No. of authorisations made by a Law Enforcement Agency 4,554 2,187 No. of authorisations made by a Commonwealth Agency10 1,744 339 No. of authorisations made by a State or Territory Agency11 2,197 675 Total 8,495 3,201 Table 36: Number of authorisations made for access to existing information or documents for the location of missing persons—s. 186(1)(aa) Agency Authorisations 14/15 15/16 112 96 1,377 1,597 8 12 639 796 SA Police 50 147 TAS Police 201 175 VIC Police 5 1,513 WA Police - 70 2,392 4,406 AFP NSW Police NT Police QLD Police Total 10 With the exception of ASIC, ACCC and DIBP, Commonwealth agencies only reported for the period from 1 July 2015 to 12 October 2015. 11 State and Territory Agencies only reported for the period from 1 July 2015 to 12 October 2015. CHAPTER 3 45 Prospective data—authorisations Tables 37 and 38 set out information about the use of prospective data authorisations during the reporting year. The number of authorisations made by a criminal law-enforcement agency for access to specified information or documents that come into existence during the period for which an authorisation is in force is contained in Table 37. Table 37: Prospective data authorisations—s. 186(1)(c) Number of authorisations made Days specified in force Actual days in force 2,163 40,931 31,265 91 87 3315 3,270 1 2,592 98,164 56,579 208 CCC (QLD) 218 5,743 3,055 9 CCC (WA) 37 1,587 1,166 4 DIBP 167 232 211 - IBAC 134 5,568 4,707 5 2 90 46 - ICAC (SA) 10 396 386 - NSW CC 727 30,336 24,250 83 NSW Police 898 31,293 19,957 21 NT Police 398 10,699 8,901 1 PIC 103 4,461 3,816 3 4,191 181,694 158,596 231 SA Police 403 15,931 11,500 8 TAS Police 169 7,517 5,067 14 VIC Police 6,733 133,316 96,102 142 WA Police 1,073 48,285 29,564 78 20,105 619,558 458,438 899 Agency ACC ACLEI AFP ICAC (NSW) QLD Police Total Authorisations discounted The table also outlines the number of days the authorisations were to be in force and how many days they were actually in force. Table 38 compares information about the average number of days the authorisations were specified to be in force and the average actual number of days they remained in force between 2014–15 and 2015–16. 4 6 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Table 38: Average specified and actual time in force of prospective data authorisations Agency Average period specified Average period actual 14/15 15/16 14/15 15/16 ACC 30 19 19 15 ACLEI 27 38 17 38 AFP 38 38 26 24 CCC (QLD) 29 26 23 15 CCC (WA) 43 43 23 35 DIBP 1 1 1 1 IBAC 43 42 38 36 ICAC (NSW) 29 45 21 23 ICAC (SA) 41 40 35 39 NSW CC 39 42 35 38 NSW Police 35 35 21 23 NT Police 43 27 37 22 PIC 42 44 35 38 QLD Police 43 43 39 40 SA Police 39 40 26 29 TAS Police 45 44 33 33 VIC Police 20 20 9 15 WA Police 45 45 36 30 Average 35 35 26 27 Data authorisations for foreign law enforcement The TIA Act also requires the AFP to report on data authorisations made in relation to foreign law enforcement. In 2015–16, the AFP made 53 data authorisations for access to telecommunications data for the enforcement of the criminal law of a foreign country. Following these requests, the AFP made 23 disclosures to foreign law enforcement agencies. Information was disclosed to the following countries: Taiwan, Hong Kong, Serbia, Switzerland, Solomon Islands, United Kingdom, New Zealand, Zimbabwe, Argentina, Slovenia, Canada, Germany, Singapore, Indonesia, United States of America, Papua New Guinea, Republic of Ireland, Netherlands, People’s Republic of China, Spain and France. CHAPTER 3 47 Further reporting requirements Tables 39 and 40 set out the offences for which authorised officers of an agency made authorisations for the enforcement of the criminal law, a law imposing a pecuniary penalty, or the protection of the public revenue. The offence categories listed in each table are based on the Australian and New Zealand Standard Offence Classification, published by the Australian Bureau of Statistics. In collaboration with criminal law enforcement agencies that provided data to the department, the department has added additional categories to better reflect the offence categories for which data authorisations may be made. 4 8 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 CHAPTER 3 49 - - Acts—injury Bribery or corruption - - - - - - - Dangerous acts Fraud Homicide Illicit drug offences Loss of life Miscellaneous Justice procedures - - - - - - - - - - - - - 5,972 - - - - - - - - - - - - 1,808 - - - ACC ACLEI 327 105 306 72 9,504 559 1,277 124 1,472 31 10 322 150 1 254 AFP - 14 925 - - - 499 - - 6 - - - - - ASIC - - - - 1,240 - 90 - 143 - - 573 - - - CCC (QLD) - - - - - - - - 1 - - 367 - - - CCC (WA) - 3 19 - 1,226 - 413 - - - - - - - - DIBP 12 Appendix F contains a description of each of the categories of offences. - - Cybercrime Organised offences - Conspire 34 - ACC investigation Cartel offences - ACCC Abduction Categories of offences - 25 - - 17 - 87 - - - - 22 - - - IBAC - - - - - - - - - - - 109 - - - ICAC (NSW) - 1 - - - - 12 - - - - 74 - - - ICAC (SA) 7,127 5,179 440 1,986 106 13 20 2,698 - 3,349 - - - - 1,265 315 2,126 291 545 15,189 358 601 - - - - 2 - - 2 8 13 104 6 1,089 101 82 51 18 - - 6 40 - 67 NSW NSW NT CC Police Police - - 12 - 104 - - - 3 - - 786 6 - - PIC - - 2,973 242 5,102 1,661 481 690 149 - - - 5 - 935 17 38 506 3 4,121 1,695 485 240 23 - - 826 154 - 313 - 56 36 17 1,314 1,318 260 - 119 - - - 180 - 85 2,271 400 5,359 5,511 8,481 9,435 953 2,714 400 249 - 141 5,149 - 2,773 160 358 350 95 9,234 2,991 863 100 168 6 - 1,090 1,098 - 2,269 QLD SA TAS VIC WA Police Police Police Police Police Table 39: Offences for which authorisations were made to access existing data to enforce the criminal law between 13 October 2015 and 30 June 2016– s. 186(1)(e)12 4,048 1,328 12,716 6,237 57,166 25,245 11,282 4,359 4,482 398 57 6,146 9,480 5,973 10,047 Total 5 0 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 - - - - - - - - - - - People smuggling Weapons Property damage Public order offences Robbery Serious damage Sexual assault Terrorism offences Theft Traffic Unlawful entry 34 - Public revenue Total - ACCC Pecuniary penalty Categories of offences 5,972 - - - - - - - - - - - - - 27 16 738 1,764 377 31 215 84 31 133 147 68 70 AFP 1,808 18,215 - - - - - - - - - - - - - ACC ACLEI 1,444 - - - - - - - - - - - - - ASIC 2,046 - - - - - - - - - - - - - CCC (QLD) 406 - - 38 - - - - - - - - - - CCC (WA) 1,769 - - 5 15 9 - - - - 75 4 - - DIBP 151 - - - - - - - - - - - - - IBAC 109 - - - - - - - - - - - - - ICAC (NSW) 87 - - - - - - - - - - - - - ICAC (SA) 1,393 402 3,248 1,015 3,851 460 6,137 45 879 1,350 1 - 253 1,695 59,138 - - 1 171 1 11 2 - - 1 - - - 1,917 55 6 86 2 83 - 94 - 2 1 1 - 2 NSW NSW NT CC Police Police 1,233 128 763 1 730 335 624 22 - 12 - - - 161 12 301 10 686 29 297 1 256 32 - - - 3,986 150 3,297 340 1,771 1,015 3,259 - 3,686 5,234 - - - 2,058 49 1,073 1,136 1,303 193 1,084 29 102 21 - 17 43 9,521 763 10,347 4,454 9,397 2,288 11,795 181 4,956 6,864 153 85 407 Total 5,714 66,574 25,890 220,175 608 - 794 - 586 214 83 - - 5 - - 39 QLD SA TAS VIC WA Police Police Police Police Police 914 16,086 10,206 - - 3 - - - - - - - - - - PIC CHAPTER 3 51 - - - Bribery or corruption Cybercrime Dangerous acts - - - - - Justice procedures Organised offences Pecuniary penalty Public revenue Weapons - - 2 12 11 - 1 - - 2 - 8 - - 1 - - AFP - 2 - - - - 5 8 - - - 90 - - - - 2 ASIC - - 7 - 11 - - - - 15 - 10 - - - - - DIBP 13 Appendix F contains a description of each of the categories of offences. - - Miscellaneous Serious damage - Loss of life - - Illicit drug offences Robbery - Homicide 10 - Acts - injury Fraud - ACCC Abduction Categories of offences - - - - - - - - - - - 1 - - - - - IBAC 3 43 35 - 115 5 2 31 8 291 41 33 4 9 - 21 44 NSW Police - - - - - - - 2 - - - - - - - - - NT Police - - - - - - - 1 1 1 2 - - - - - - QLD Police - - - - 1 - - - - - - - - - - - - SA Police - 2 28 - 373 - 49 7 - - - - - 19 - 30 - TAS Police - - - - - - - 8 1 - 8 2 13 - - - - WA Police 3 47 72 12 511 5 57 57 10 309 51 154 17 28 1 51 46 Total Table 40: Offences against which authorisations were made for access to existing information or documents in enforcement of a pecuniary penalty or protection of the public revenue for the period 13 October 2015 to 30 June 2016—s. 186(1)(e)13 5 2 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 - - - Theft Traffic Unlawful entry 10 - Terrorism offences Total - ACCC Sexual assault Categories of offences 37 - - - - - AFP 107 - - - - - ASIC 43 - - - - - DIBP 1 - - - - - IBAC 791 17 26 41 1 21 NSW Police 2 - - - - - NT Police 7 1 - 1 - - QLD Police 1 - - - - - SA Police 665 - 44 113 - - TAS Police 54 - 20 - - 2 WA Police 1,718 18 90 155 1 23 Total CHAPTER 3 53 - - - - - - - - - - - - - - - Bribery or corruption Conspire Cybercrime Dangerous acts Fraud Homicide Illicit drug offences Loss of life Miscellaneous Justice procedures Organised offences People smuggling Weapons Property damage Public order offences - - - - - - - - - - - - - - 67 - - - - - 40 7 57 2 41 1 1,286 11 174 3 38 1 17 7 - 17 AFP - - - - - - - - 88 - 1 - 3 - 8 - - - CCC (QLD) - - - - - - - - - - - - 1 - 32 - - - CCC (WA) - - 8 - - - 1 - 48 - 34 - - - - - - - DIBP - - - - - 26 - - 10 - 28 - - - 6 - - - IBAC 14 Appendix F contains a description of each of the categories of offences. - 1,578 - ACC ACLEI Acts - injury ACC investigation Abduction Categories of offences - - - - - - - - - - - - - - 1 - - - ICAC (NSW) - - - - - - - - - - - - - - 5 - - - ICAC (SA) - - - - - - - - 158 39 195 - - - - - - 2 2 3 49 - 27 4 17 7 302 37 35 5 - 10 - 41 - 23 - - - - - - - - 223 1 1 - - - - 4 - 2 NSW NSW NT CC Police Police - - - - - - - - 4 - - - - - 44 - - - PIC 1 1 14 - - - 11 2 2,066 174 29 - 4 1 - 70 - 21 - 2 3 - 3 - 11 - 196 6 1 4 - - - 7 - 19 - - 1 - - - 5 - 72 4 4 - - - - - - 9 - 22 67 - 223 5 200 169 607 727 37 799 4 2 23 68 - 669 - - 7 - - - 11 - 426 33 23 11 - - 1 29 - 14 QLD SA TAS VIC WA Police Police Police Police Police 3 28 189 7 310 37 297 179 5,486 1,032 562 822 50 14 204 226 1,578 776 Total Table 41: Offences against which authorisations were made for access to specified information or documents that come into existence during the period for which an authorisation is in force for the period 13 October 2015 to 30 June 2016—s. 186(1)(e)14 5 4 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 - - - - - Sexual assault Terrorism offences Theft Traffic Unlawful entry 1,578 - Serious damage Total - 67 - - - - - - - ACC ACLEI Robbery Categories of offences 1,930 1 - 63 150 14 - - AFP 100 - - - - - - - CCC (QLD) 37 - - 4 - - - - CCC (WA) 93 - - 1 1 - - - DIBP 70 - - - - - - - IBAC 1 - - - - - - - ICAC (NSW) 5 - - - - - - - ICAC (SA) 521 - - - 126 - - 1 700 11 - 27 2 7 3 88 238 2 - - - 3 - 2 NSW NSW NT CC Police Police 48 - - - - - - - PIC 2,653 121 4 34 - 12 6 82 283 14 - 6 1 2 - 8 113 15 - 2 - 1 - - 5,480 338 4 344 126 557 116 373 616 8 508 416 603 130 586 Total 750 14,667 114 - 27 10 7 5 32 QLD SA TAS VIC WA Police Police Police Police Police Table 42 lists the length of time for which information or documents covered by historical data authorisations had been held by a telecommunications carrier before the authorisations for that information was made. The statistics are spilt into successive periods of 3 months and include the total number of authorisations made for data held for the lengths of time specified. The information covers the mandatory retention period for telecommunications data and provides an indication of how frequently data is accessed over two years. For the period from 13 October 2015 to 30 June 2016 83 per cent of authorisations were for data 0–3 months old. Authorisations for ‘point in time’ information without an identifiable age, such as current subscriber information and current information held in the Integrated Public Number Database,15 have been recorded as ‘0’ months old and are included in the 0–3 month field. Subscriber information and other customer identification information constitute the majority of authorisations included in the 0-3 month bracket. This type of information is commonly used at the beginning of an investigation to identify and eliminate suspects. During the period 13 October 2015 to 30 June 2016 a significant number of authorisations for identifying information related to current subscriber checks or other information without an identifiable age. 15 The Integrated Public Number Database is an industry-wide database, managed by Telstra, containing all listed and unlisted public telephone numbers. CHAPTER 3 55 5 6 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 457 112 DIBP IBAC 5,746 53,425 24,723 TAS Police VIC Police WA Police 196,646 5,931 SA Police Total 13,195 QLD Police 625 1,708 NT Police PIC 66,900 NSW Police 14 406 CCC (WA) 1,296 1,219 CCC (QLD) NSW CC 1,189 ASIC ICAC (SA) 12,148 AFP 32 1,793 ACLEI ICAC (NSW) 5,727 - 0–3 mths ACC ACCC Agency 15,584 486 5,381 233 1,322 1,177 68 64 3,398 87 7 23 22 201 4 430 64 2,499 3 112 3 3–6 mths 6,951 205 3,351 78 310 737 67 26 1,040 33 12 10 5 86 - 97 27 821 2 42 2 6–9 mths 5,988 151 2,131 48 714 335 16 18 1,152 28 16 9 3 68 - 121 16 1,101 2 59 - 9–12 mths 3,399 111 1,387 5 448 264 18 13 516 33 2 6 2 37 - 70 6 470 3 7 1 12–15 mths 2,106 54 1,257 2 55 121 1 18 294 13 - 8 - 14 - 35 11 202 - 8 13 15–18 mths 1,189 35 685 - 21 76 9 6 190 20 14 1 1 7 - - 20 96 - 2 6 18–21 mths Age of data under disclosure 709 45 27 10 41 73 17 6 249 29 1 1 - 9 - - 14 172 5 4 6 21–24 mths 4,499 80 11 387 645 371 74 25 806 156 7 18 7 1,026 - 74 36 752 - 11 13 Over 24 mths 237,071 25,890 67,655 6,509 9,487 16,349 895 1,884 74,545 1,695 73 108 152 1,905 410 2,046 1,383 18,261 1,808 5,972 44 Total Table 42: Periods which retained data was held by carrier before authorised disclosure for the period 13 October 2015 to 30 June 2016—s. 186(1)(f) Table 43 lists the number of occasions from 13 October 2015 to 30 June 2016 that agencies made authorisations for retained data which included information from the data subsets identified in subsection 187AA(1). Data within item 1 of that subsection is typically considered ‘subscriber data’ and includes information identifying the user of a telecommunications service. Data within items 2-6 of that subsection are typically considered ‘traffic data’ and include information such as the time, duration and source of a communication.16 Table 43: Types of retained data disclosed in authorisations for the period 13 October 2015 to 30 June 2016—ss. 186(1)(g) and 186(1)(h) Agency Number of authorisations which included information from the data sets identified in subsection 187AA(1) Item 1: subscriber data Items 2–6: traffic data Total 33 11 44 ACC 3,676 2,296 5,972 ACLEI 1,773 35 1,808 AFP 12,599 5,662 18,261 ASIC 1,096 287 1,383 CCC (QLD) 1,706 340 2,046 377 37 414 DIBP 1,524 381 1,905 IBAC 96 71 167 ICAC (NSW) 35 75 110 ICAC (SA) 25 48 73 1,197 702 1,899 52,684 21,861 74,545 1,351 532 1,883 686 893 1,579 12,407 5,991 18,398 SA Police 8,882 2,235 11,117 TAS Police 5,382 1,127 6,509 VIC Police 43,414 24,241 67,655 WA Police 21,059 4,831 25,890 170,002 71,656 241,658 ACCC CCC (WA) NSW CC NSW Police NT Police PIC QLD Police Total 16 Appendix E further explains the type of data included in items 1-6 of the table at 187AA(1). CHAPTER 3 57 Journalist information warrants The Data Retention Act established the journalist information warrant (JIW) scheme. This scheme requires enforcement agencies to obtain a warrant prior to authorising the disclosure of telecommunications data to identify a journalist’s source. Enforcement agencies are prohibited from making data authorisations for access to a journalist’s or their employer’s data for the purpose of identifying a confidential source unless a JIW is in force. For the period between 13 October 2015 to 30 June 2016, 33 authorisations were made under two JIWs issued to the WA Police. These authorisations were for the purpose of enforcing the criminal law. Industry estimated cost of implementing data retention obligations Information collected from industry through the Data Retention Industry Grants Programme, indicates that the estimated capital cost of implementing data retention obligations over the period between 30 October 2014 and 13 April 2017 is $198,527,354. Costs that service providers detailed as part of their grant applications were incurred between 30 October 2014‑13 April 2017 and relate to the anticipated direct up-front capital costs and not the recurring or indirect costs associated with compliance. Table 44 represents the baseline figure indicating the reportable anticipated capital cost to industry representatives that applied for a grant, broken down by financial year. Table 44: Industry Capital Costs of data retention—s. 187P(1A) Anticipated costs 2014–15 3,819,642 2015–16 68,977,652 2016–17 125,730,060 Total 198,527,354 The total funding made available under the Data Retention Industry Grants Programme was $128,351,400. 210 applications were received of which 10 later withdrew. A total of 180 providers were found eligible for funding, with most awarded a grant representative of 80 per cent of their anticipated costs of compliance. Use of data retention plans The Data Retention Act came into effect on 13 October 2015 and providers were able to apply to the Communications Access Co‑ordinator for an additional 18 months to comply with the legislation through an approved Data Retention Implementation Plan. During the 18 month implementation period which ended on 13 April 2017, the Attorney-General’s Department received 402 Data Retention Implementation Plans from 310 providers. The plans were assessed by the Communications Access Co-ordinator in accordance with the process in section 187F of the Act, including consultation with agencies and the Australian Communications Media Authority under section 187G. 5 8 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 CHAPTER 4 FURTHER INFORMATION For further information about the Telecommunications (Interception and Access) Act 1979 please contact the Attorney-General’s Department: Communications Security and Intelligence Branch Attorney-General’s Department 3-5 National Circuit BARTON ACT 2600 (02) 6141 2900 More information about telecommunications interception and access and telecommunications data access can be found at Previous copies of the Telecommunications (Interception and Access) Act 1979 Annual Report can be accessed online at CHAPTER 4 59 APPENDIX A LIST OF TABLES AND FIGURES Tables Table 1: Categories of serious offences specified in telecommunications interception warrants—ss. 100(1)(f), 100(1)(g), 100(2)(f) and 100(2)(g) 3 Table 2: Number of Federal Court Judges, Family Court Judges, Federal Circuit Court Judges and nominated AAT Members to issue telecommunications interception warrants as of January 2017—s. 103(ab) 4 Table 3: Number of telecommunications interception warrants issued by Federal Court judges, Family Court judges, Federal Circuit Court judges and nominated AAT members—s. 103(ab) 5 Table 4: Applications, made and refused, for telecommunications interception warrants, telephone interception warrants, and renewal applications— ss. 100(1)(a)-(c) and 100(2)(a)-(c) 6 Table 5: Applications for telecommunications interception warrants authorising entry on premises—ss. 100(1)(d) and 100(2)(d) 7 Table 6: Arrests on the basis of lawfully intercepted information—ss. 102(1)(a) and 102(2)(a) 9 Table 7: Prosecutions per offence category in which lawfully intercepted information was given in evidence 10 Table 8: Convictions per offence category in which lawfully intercepted information was given in evidence 11 Table 9: Original applications for named person warrants, telephone applications for named person warrants, and renewal applications—ss. 100(1)(ea) and 100(2)(ea) 13 Table 10: Number of services intercepted under named person warrants— ss. 100(1)(eb) and 100(2)(eb) 14 Table 11: Total number of services and devices intercepted under device-based named person warrants—ss. 100(1)(ec) and 100(2)(ec) 16 Table 12: Applications for B-Party warrants, telephone applications for B-Party warrants, and renewal applications—ss. 100(1)(ed) and 100(1)(ed) 17 Table 13: B-Party warrants issued with conditions or restrictions—ss. 100(1)(ed) and 100(2)(ed) 17 Table 14: Duration of original and renewal telecommunications interception warrants—ss. 101(1)(a)-(d) and 101(2)(a)-(d) 18 6 0 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Table 15: Duration of original and renewal B-Party warrants—ss. 101(1)(da) and 101(2)(da) 19 Table 16: Number of final renewals—ss. 101(1)(e) and 101(2)(e) 20 Table 17: Percentage of eligible warrants—ss. 102(3) and 102(4) 21 Table 18: Interception without a warrant—s. 102A 22 Table 19: Number of interceptions carried out on behalf of other agencies—s. 103(ac) 22 Table 20: Total expenditure incurred by each agency in connection with the execution of telecommunications interception warrants and average expenditure per telecommunications interception warrant—ss. 103(a) and 103(aa) 23 Table 21: Recurrent interception costs per agency 24 Table 22: Emergency service facility declarations 25 Table 23: Summary of findings from the two inspections conducted at each agency between 1 January and 31 December 2015 27 Table 24: Applications and telephone applications for stored communications warrants—ss. 162(1)(a)-(b) and 162(2)(a)-(b) 32 Table 25: Stored communications warrants subject to conditions or restrictions— s. 162(2)(d) 33 Table 26: Number of arrests, proceedings and convictions made on the basis of lawfully accessed information—s. 163(a)-(b) 33 Table 27: Domestic preservation notices—s. 161A(1) 35 Table 28: Number of authorisations made by a criminal law-enforcement agency for access to existing information or documents in the enforcement of a criminal law—s. 186(1)(a) 39 Table 29: Number of authorisations made by a Commonwealth enforcement agency for access  to existing information or documents in the enforcement of a criminal law for the period 1 July 2015 to 12 October 2015—s. 186(1)(a) 40 Table 30: Number of authorisations made by a state or territory enforcement agency for access to existing information or documents in the enforcement of a criminal law for the period 1 July 2015 to 12 October 2015—s. 186(1)(a) 41 Table 31: Total number of authorisations made for access to existing information or documents in the enforcement of a criminal law—s. 186(1)(a) 42 Table 32: Number of authorisations made by a criminal law-enforcement agency for access to existing information or documents in the enforcement of a law imposing a pecuniary penalty or the protection of the public revenue—s. 186(1)(b) 42 Table 33: Number of authorisations made by a Commonwealth enforcement agency for access to existing information or documents in the enforcement of a law imposing pecuniary penalty or the protection of the public revenue for the period 1 July 2015 to 12 October 2015—s. 186(1)(b) 43 Table 34: Number of authorisations made by a state or territory enforcement agency for access to existing information or documents in the enforcement of a law imposing a pecuniary penalty or the protection of the public revenue for the period 1 July 2015 to 12 October 2015—s. 186(1)(b) 43 APPENDIX A 61 Table 35: Total number of authorisations made for access to existing information or documents in the enforcement of a law imposing a pecuniary penalty or protecting public revenue—s. 186(1)(b) Table 36: Number of authorisations made for access to existing information or documents for the location of missing persons—s. 186(1)(aa) Table 37: Prospective data authorisations—s. 186(1)(c) Table 38: Average specified and actual time in force of prospective data authorisations Table 39: Offences for which authorisations were made to access existing data to enforce the criminal law between 13 October 2015 and 30 June 2016— s. 186(1)(e) Table 40: Offences against which authorisations were made for access to existing information or documents in enforcement of a pecuniary penalty or protection of the public revenue for the period 13 October 2015 to 30 June 2016—s. 186(1)(e) Table 41: Offences against which authorisations were made for access to specified information or documents that come into existence during the period for which an authorisation is in force for the period 13 October 2015 to 30 June 2016—s. 186(1)(e) Table 42: Periods which retained data was held by carrier before authorised disclosure for the period 13 October 2015 to 30 June 2016—s. 186(1)(f) Table 43: Types of retained data disclosed in authorisations for the period 13 October 2015 to 30 June 2016—ss. 186(1)(g) and 186(1)(h) Table 44: Industry Capital Costs of data retention—s. 187P(1A) 45 45 46 47 49 51 53 56 57 58 Figures Figure 1: Telecommunications interception warrants issued with specific conditions or restrictions—ss. 100(1)(e) and 100(2)(e) 8 Figure 2: Total number of services intercepted under service-based named person warrants—ss. 100(1)(ec) and 100(2)(ec) 15 Figure 3: Commonwealth Ombudsman’s Telecommunications Interception Inspection Criteria 29 Figure 4: Other matters reportable under s.85 30 6 2 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 APPENDIX B INTERCEPTION AGENCIES UNDER THE TIA ACT Commonwealth agency or state eligible authority Date of s.34 declaration Australian Commission for Law Enforcement Integrity Not applicable Australian Crime Commission Not applicable Australian Federal Police Not applicable Corruption and Crime Commission (Western Australia) 26 March 2004 Crime and Corruption Commission (Queensland) 7 July 2009 Independent Broad-based Anti-corruption Commission (Victoria) 18 December 2012 (came into force 10 February 2013) Independent Commission Against Corruption (New South Wales) 6 June 1990 New South Wales Crime Commission 30 January 1989 New South Wales Police Force 30 January 1989 Northern Territory Police 25 October 2006 Police Integrity Commission (New South Wales) 14 July 1998 Queensland Police Service 8 July 2009 Independent Commissioner Against Corruption (South Australia) 17 June 2013 (came into force 1 September 2013) South Australia Police 10 July 1991 Tasmania Police 5 February 2005 Victoria Police 28 October 1988 Western Australia Police 15 July 1997 APPENDIX B 63 APPENDIX C ABBREVIATIONS ACRONYM AGENCY / ORGANISATION AAT Administrative Appeals Tribunal ACC Australian Crime Commission17 ACCC Australian Competition and Consumer Commission ACLEI Australian Commission for Law Enforcement Integrity AFP Australian Federal Police AGD Attorney-General’s Department ASIC Australian Securities and Investments Commission ATO Australian Taxation Office CAC Communications Access Co-ordinator CCC (WA) Corruption and Crime Commission (Western Australia) CCC (QLD) Crime and Corruption Commission (Queensland) DIBP Department of Immigration and Border Protection (including the Australian Customs and Border Protection Service) Defence (IGD, ADFIS) Inspector-General Defence, Australian Defence Force Investigative Service IBAC Independent Broad-based Anti-corruption Commission (Victoria) NSW CC New South Wales Crime Commission ICAC (NSW) Independent Commission Against Corruption (New South Wales) NSW Police New South Wales Police Force NT Police Northern Territory Police PIC Police Integrity Commission (New South Wales) PIM Public Interest Monitor PJCIS Parliamentary Joint Committee on Intelligence and Security QLD Police Queensland Police Service ICAC (SA) Independent Commissioner Against Corruption (South Australia) 17  The merge of CrimTrac and the Australian Crime Commission (ACC) took effect on 1 July 2016, ACIC will be used in future annual reports to represent the former ACC. 6 4 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 ACRONYM AGENCY / ORGANISATION SA Police South Australia Police TAS Police Tasmania Police Telecommunications Act Telecommunications Act 1997 TIA Act Telecommunications (Interception and Access) Act 1979 VIC Police Victoria Police WA Police Western Australia Police APPENDIX C 65 APPENDIX D CATEGORIES OF SERIOUS OFFENCES Serious offence category Offences covered ACC special investigation TIA Act, s5D(1)(f) Administration of justice TIA Act, s5D(8)(b): offences against ss35, 36, 36A, 37, 39, 41, 42, 43, 46 or 47 of the Crimes Act 1914 Assist escape punishment/ dispose of proceeds TIA Act, s5D(7) Bribery or corruption; offences against ss131.1, 135.1, 142.1, 142.2, 148.2, 268.112 of the Criminal Code TIA Act, s5D(2)(vii),; TIA Act, s5D(8)(a): offences against ss131.1, 135.1, 142.1, 142.2, 148.2 or 268.112 of the Criminal Code Act 1995 Cartel offences TIA Act, s5D(5B) Child pornography offences TIA Act, s5D(3B) Conspire / aid / abet serious offence TIA Act, s5D(6) Cybercrime offences TIA Act, s5D(5) Kidnapping TIA Act, s5D(1)(b) Loss of life or personal injury TIA Act, s5D(2)(b)(i) and (ii) Money laundering TIA Act, s5D(4) Murder TIA Act, s5D(1)(a) Organised offences and/or TIA Act, s5D(3; s5D(8A) and (9) criminal organisations People smuggling and related TIA Act, s5D(3A) Serious damage to property and/or TIA Act, s5D(2)(b)(iii) and (iiia) serious arson Serious drug offences and/or trafficking TIA Act, s5D(5A); s5D(2)(b)(iv); TIA Act, s5D(1)(c) Serious fraud and/or revenue loss TIA Act, s5D(2)(v) and (vi) Telecommunications offences TIA Act, s5D(5)(a) Terrorism offences TIA Act, s5D(1)(d), 5D(1)(e) 6 6 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 APPENDIX E RETAINED DATA SETS Item Description of information Explanation 1. The subscriber of, and accounts, services, telecommunications devices and other relevant services relating to, the relevant service The following: This category includes customer identifying details, such as name and address. It also includes contact details, such as phone number and email address. This information allows agencies to confirm a subscriber’s identity or link a service or account to a subscriber. (a) any information that is one or both of the following: i) any name or address information; ii) any other information for identification purposes; relating to the relevant service, being information used by the service provider for the purposes of identifying the subscriber of the relevant service; (b) any information relating to any contract, agreement or arrangement relating to the relevant account, service or device; (c) any information that is one or both of the following: i) billing or payment information; ii) contact information; relating to the relevant service, being information used by the service provider in relation to the relevant service; (d) any identifiers relating to the relevant service or any related account, service or device, being information used by the service provider in relation to the relevant service or any related account, service or device; (e) the status of the relevant service or any related account, service or device This category also includes details about services attached to account, such as the unique identifying number attached to a mobile phone, or the IP address (or addresses) allocated to an internet access account or service. This category further includes billing and payment information. Information about the status of a service can include when an account has been enabled or suspended, a relevant service has been enabled or suspended or is currently roaming, or a telecommunications device has been stolen. The phrases ‘any information’ and ‘any identifiers’ should be read to mean the information that the provider obtains or generates that meets the description which follows that phrase. If the provider has no information that meets the description, including because that kind of information does not pertain to the service in question, no information needs to be retained. Continued next page APPENDIX E 67 Item Description of information Explanation For instance, if a provider offers a free service and therefore has no billing information, no billing information needs to be retained by that provider with respect to that service the provider will need to retain subscriber and transactional data with respect to that service, but no billing information needs to be retained. Service providers are not required to collect and retain passwords, PINs, secret questions or token codes, which are used for authentication purposes. 2. The source of a communication Identifiers of a related account, service or device from which a communication has been sent or attempted to be sent by means of the relevant service. Identifiers for the source of a communication may include, but are not limited to: • the phone number, IMSI, IMEI from which a call or SMS was made • identifying details (such as username, address, number) of the account, service or device from which a text, voice, or multimedia communication was made (examples include email, Voice over IP (VoIP), instant message or video communication) • the IP address and port number allocated to the subscriber or device connected to the internet at the time of the communication, or • any other service or device identifier known to the provider that uniquely identifies the source of the communication. In all instances, the identifiers retained to identify the source of the communication are the ones relevant to, or used in, the operation of the particular service in question. 6 8 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Item Description of information Explanation 3. The destination of a communication Identifiers of the account, telecommunications device or relevant service to which the communication: Paragraph 187A(4)(b) puts beyond doubt that service providers are not required to keep information about subscribers’ web browsing history. a) has been sent; or b) has been forwarded, routed or transferred, or attempted to be forwarded, routed or transferred. The destination of a communication is the recipient. Identifiers for the destination of a communication may include, but are not limited to: • the phone number that received a call or SMS • identifying details (such as username, address or number) of the account, service or device which receives a text, voice or multi-media communication (examples include email, VoIP, instant message or video communication) • the IP address allocated to a subscriber or device connected to the internet at the time of receipt of the communication, or • any other service or device identifier known to the provider that uniquely identifies the destination of the communication. For internet access services, the Bill explicitly excludes anything that is web-browsing history or could amount to web-browsing history, such as a URL or IP address to which a subscriber has browsed. In all instances, the identifiers retained to identify the destination of the communications are the ones relevant to, or used in, the operation of the particular service in question. If the ultimate destination of a communication is not feasibly available to the provider of the service, the provider must retain only the last destination knowable to the provider. APPENDIX E 69 Item Description of information Explanation 4. The date, time and duration of a communication, or of its connection to a relevant service The date and time (including the time zone) of the following relating to the communication (with sufficient accuracy to identify the communication): For phone calls this is simply the time a call started and ended. a) the start of the communication b) the end of the communication c) the connection to the relevant service, and For internet sessions this is when a device or account connects to a data network and ends when it disconnected—those events may be a few hours to several days, weeks, or longer apart, depending on the design and operation of the service in question. d) the disconnection from the relevant service. 5. The type of a communication and relevant service used in connection with a communication The following: a) the type of communication; Examples: Voice, SMS, email, chat, forum, social media. b) the type of the relevant service; Examples: ADSL, Wi-Fi, VoIP, cable, GPRS, VoLTE, LTE. c) the features of the relevant service that were, or would have been, used by or enable for the communication. Examples: call waiting, call forwarding, data volume usage. The type of communication means the form of the communication (for example voice call vs. internet usage). The type of the relevant service (5(b)) provides more technical detail about the service. For example, for a mobile messaging service, whether it is an SMS or MMS. Data volume usage, applicable to internet access services, refers to the amount of data uploaded and downloaded by the subscriber. This information can be measured for each session, or in a way applicable to the operation and billing of the service in question, such as per day or per month. Note: This item will only apply to the service provider operating the relevant service: see paragraph 187A(4)(c). 7 0 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16 Item Description of information Explanation 6. The location of equipment or a line used in connection with a communication The following in relation to the equipment or line used to send or receive the communication: Location records are limited to the location of a device at the start and a) the location of the equipment or line at the start of the communication; b) the location of the equipment or line at the end of the communication. Examples: Cell towers, Wi-Fi hotspots. end of a communication, such as a phone call or Short Message Service (SMS) message. For services provided to a fixed location, such as an ADSL service, this requirement can be met with the retention of the subscriber’s address. Paragraph 187A(4)(e) of the Bill provides that location records are limited to information that is used by a service provider in relation to the relevant service. This would include information such as which cell tower, Wi-Fi hotspot or base station a device was connected to at the start and end of communication. Service providers are not required to keep continuous, real-time or precise location records, such as the continuous GPS location of a device. These limitations seek to ensure that the locations records to be kept by service providers do not allow continuous monitoring or tracking of devices. APPENDIX E 71 APPENDIX F CATEGORIES OF OFFENCES ABBREVIATIONS ABBREVIATION OFFENCE CATEGORY Abduction Abduction, harassment and other offences against the person Acts - injury Acts intended to cause injury Conspire Conspire/aid/abet serious offences Cybercrime Cybercrime and telecommunications offences Dangerous acts Dangerous or negligent acts and endangering a person Fraud Fraud, deception and related offences Homicide Homicide and related offences Miscellaneous Miscellaneous offences Justice procedures Offences against justice procedures, government security and government operations Organised offences Organised offences and/or criminal organisations Pecuniary penalty Other offences relating to the enforcement of a law imposing a pecuniary penalty Public revenue Other offences relating to the enforcement of a law protecting the public revenue People smuggling People smuggling and related Weapons Prohibited and regulated weapons and explosive offences Property damage Property damage and environment pollution Robbery Robbery, extortion and related offences Serious damage Serious damage to property Sexual assault Sexual assault and related offences Theft Theft and related offences Traffic Traffic and vehicle regulatory offences Unlawful entry Unlawful entry with intent/burglary, break and enter 7 2 T E L E C O M M U N I C A T I O N S I N T E R C E P T I O N A N D A C C E S S A C T 1 9 7 9 A n n u a l R e p o r t 2 0 15 –16