Commonwealth Consolidated Acts Commonwealth Consolidated ActsScope
(1) This section applies if a designated communications provider is subject to a requirement under:
(a) a technical assistance notice; or
(b) a technical capability notice;
unless:
(c) in the case of a requirement under a technical assistance notice given by the Director - General of Security--the Director - General of Security declares in writing that the Director - General of Security is satisfied that it would be contrary to the public interest for this section to apply to the requirement; or
(d) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency--the chief officer declares in writing that the chief officer is satisfied that it would be contrary to the public interest for this section to apply to the requirement; or
(e) in the case of a requirement under a technical capability notice--the Attorney - General declares in writing that the Attorney - General is satisfied that it would be contrary to the public interest for this section to apply to the requirement.
(2) In deciding whether it would be contrary to the public interest for this section to apply to a requirement, the Director - General of Security, the chief officer or the Attorney - General, as the case may be, must have regard to the following matters:
(a) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency or a requirement under a technical capability notice that relates to an interception agency--the interests of law enforcement;
(b) in the case of a requirement under a technical assistance notice given by the Director - General of Security or a requirement under a technical capability notice that relates to ASIO--the interests of national security;
(c) the objects of this Act;
(d) the extent to which compliance with the requirement will impose a regulatory burden on the provider;
(e) the reasons for the giving of the technical assistance notice or technical capability notice, as the case requires;
(f) such other matters (if any) as the Director - General of Security, the chief officer or the Attorney - General, as the case may be, considers relevant.
Basis of compliance
(3) The designated communications provider must comply with the requirement on the basis that the provider neither:
(a) profits from complying with the requirement; nor
(b) bears the reasonable costs of complying with the requirement;
unless:
(c) the provider and the applicable costs negotiator otherwise agree; or
(d) in the case of a requirement under a technical assistance notice given by the Director - General of Security--the Director - General of Security declares in writing that the Director - General of Security is satisfied that it would be contrary to the public interest for this subsection to apply to the requirement; or
(e) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency--the chief officer declares in writing that the chief officer is satisfied that it would be contrary to the public interest for this subsection to apply to the requirement; or
(f) in the case of a requirement under a technical capability notice--the Attorney - General declares in writing that the Attorney - General is satisfied that it would be contrary to the public interest for this subsection to apply to the requirement.
Note: For applicable costs negotiator , see subsection (16).
(3A) In deciding whether it would be contrary to the public interest for subsection (3) to apply to the requirement, the Director - General of Security, the chief officer or the Attorney - General, as the case may be, must have regard to the following matters:
(a) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency or a requirement under a technical capability notice that relates to an interception agency--the interests of law enforcement;
(b) in the case of a requirement under a technical assistance notice given by the Director - General of Security or a requirement under a technical capability notice that relates to ASIO--the interests of national security;
(c) the objects of this Act;
(d) the extent to which compliance with the requirement will impose a regulatory burden on the provider;
(e) the reasons for the giving of the technical assistance notice or technical capability notice, as the case requires;
(f) such other matters (if any) as the Director - General of Security, the chief officer or the Attorney - General, as the case may be, considers relevant.
Terms and conditions
(4) The designated communications provider must comply with the requirement on such terms and conditions as are:
(a) agreed between the following parties:
(i) the provider;
(ii) the applicable costs negotiator; or
(b) failing agreement, determined by an arbitrator appointed by the parties.
Note: For applicable costs negotiator , see subsection (16).
(5) If:
(a) the parties fail to agree on the appointment of an arbitrator; and
(b) one of the parties is a carrier or carriage service provider;
the ACMA is to appoint the arbitrator.
(6) If:
(a) the parties fail to agree on the appointment of an arbitrator; and
(b) none of the parties is a carrier or carriage service provider;
the Attorney - General is to appoint the arbitrator.
(6A) Subsection (4) does not apply to the requirement if:
(a) in the case of a requirement under a technical assistance notice given by the Director - General of Security--the Director - General of Security declares in writing that the Director - General of Security is satisfied that it would be contrary to the public interest for subsection (4) to apply to the requirement; or
(b) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency--the chief officer declares in writing that the chief officer is satisfied that it would be contrary to the public interest for subsection (4) to apply to the requirement; or
(c) in the case of a requirement under a technical capability notice--the Attorney - General declares in writing that the Attorney - General is satisfied that it would be contrary to the public interest for subsection (4) to apply to the requirement.
(6B) In deciding whether it would be contrary to the public interest for subsection (4) to apply to the requirement, the Director - General of Security, the chief officer or the Attorney - General, as the case may be, must have regard to the following matters:
(a) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency or a requirement under a technical capability notice that relates to an interception agency--the interests of law enforcement;
(b) in the case of a requirement under a technical assistance notice given by the Director - General of Security or a requirement under a technical capability notice that relates to ASIO--the interests of national security;
(c) the objects of this Act;
(d) the extent to which compliance with the requirement will impose a regulatory burden on the provider;
(e) the reasons for the giving of the technical assistance notice or technical capability notice, as the case requires;
(f) such other matters (if any) as the Director - General of Security, the chief officer or the Attorney - General, as the case may be, considers relevant.
Arbitration
(7) An arbitrator appointed under subsection (5) or (6) must be:
(a) a person specified under subsection (8); or
(b) a person who belongs to a class of persons specified under subsection (11).
(8) The Home Affairs Minister may, by writing, specify one or more persons for the purposes of paragraph (7)(a).
(9) An instrument made under subsection (8) is not a legislative instrument.
(10) Subsection 33(3AB) of the Acts Interpretation Act 1901 does not apply to the power conferred by subsection (8).
(11) The Home Affairs Minister may, by legislative instrument, specify a class of persons for the purposes of paragraph (7)(b).
(12) Before making an instrument under subsection (8) or (11), the Home Affairs Minister must consult the Attorney - General.
(13) If an arbitration under this section is conducted by an arbitrator appointed by the ACMA, the cost of the arbitration must be apportioned equally between the parties.
(14) The Home Affairs Minister may, by legislative instrument, make provision for and in relation to the conduct of an arbitration under this section.
Acquisition of property
(15) This section has no effect to the extent (if any) to which its operation would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph).
Applicable costs negotiator
(16) For the purposes of this section, the applicable costs negotiator is:
(a) in the case of a requirement under a technical assistance notice given by the Director - General of Security--the Director - General of Security; or
(b) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency--the chief officer; or
(c) in the case of a requirement under a technical capability notice--the person specified in the notice, in accordance with subsection 317T(12), as the applicable costs negotiator for the notice.
Technical capability notice that relates to ASIO
(17) For the purposes of this section, a technical capability notice relates to ASIO if the acts or things specified in the notice:
(a) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to ASIO in relation to a matter covered by paragraph 317T(2)(a); or
(b) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b).
Technical capability notice that relates to an interception agency
(18) For the purposes of this section, a technical capability notice relates to an interception agency if the acts or things specified in the notice:
(a) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to the interception agency in relation to a matter covered by paragraph 317T(2)(a); or
(b) are by way of giving help to the interception agency in relation to a matter covered by paragraph 317T(2)(b).
Technical assistance notice information
(19) For the purposes of this Part, information about a declaration under:
(a) paragraph (1)(c); or
(b) paragraph (1)(d); or
(c) paragraph (3)(d); or
(d) paragraph (3)(e); or
(e) paragraph (6A)(a); or
(f) paragraph (6A)(b);
is taken to be information about a technical assistance notice.
Technical capability notice information
(20) For the purposes of this Part, information about a declaration under paragraph (1)(e), (3)(f) or (6A)(c) is taken to be information about a technical capability notice.