Bill returned from the Senate with amendments.

Ordered that the amendments be considered immediately.

Senate’s amendments—

(1)    Clause 2, page 2 (table item 2), omit the table item, substitute:

(2)    Schedule 1, item 1, page 4 (lines 5 to 13), omit the item, substitute:

1  Subsection 5(1)

Insert:

stored communication means a communication that:

             (a)    is not passing over a telecommunications system; and

             (b)    is held on equipment that is operated by, and is in the possession of, a carrier; and

             (c)    cannot be accessed on that equipment, by a person who is not a party to the communication, without the assistance of an employee of the carrier.

(3)    Schedule 1, item 2, page 4 (line 29) to page 5 (line 6), omit paragraph 5E(1)(c), substitute:

             (c)    could, if established, render the person committing the contravention liable:

                   (i)    if the contravention were committed by an individual—to pay a pecuniary penalty of 180 penalty units or more, or to pay an amount that is the monetary equivalent of 180 penalty units or more; or

                  (ii)    if the contravention cannot be committed by an individual—to pay a pecuniary penalty of 900 penalty units or more, or to pay an amount that is the monetary equivalent of 900 penalty units or more.

(4)    Schedule 1, item 2, page 5 (lines 20 to 25), omit section 5F, substitute:

5F  When a communication is passing over a telecommunications system

        (1)    For the purposes of this Act, a communication:

             (a)    is taken to start passing over a telecommunications system when it is sent or transmitted by the person sending the communication; and

             (b)    is taken to continue to pass over the system until it becomes accessible to the intended recipient of the communication.

        (2)    However, if a communication is sent from an address on a computer network operated by or on behalf of the Australian Federal Police, it is taken not to start passing over a telecommunications system, for the purposes of this Act, until it is no longer under the control of any of the following:

             (a)    any AFP employee responsible for operating, protecting and maintaining the network;

             (b)    any AFP employee responsible for enforcement of the professional standards of the Australian Federal Police.

        (3)    Subsection (2) ceases to have effect at the end of the period of 2 years starting at the commencement of this section.

(5)    Schedule 1, item 2, page 5 (line 27), before “For the purposes”, insert “(1)”.

(6)    Schedule 1, item 2, page 6 (after line 2), at the end of section 5G, add:

        (2)    In addition to the person who is the intended recipient of a communication under subsection (1), if a communication is addressed to a person at an address on a computer network operated by or on behalf of the Australian Federal Police, each of the following is also an intended recipient of the communication for the purposes of this Act:

             (a)    any AFP employee responsible for operating, protecting and maintaining the network;

             (b)    any AFP employee responsible for enforcement of the professional standards of the Australian Federal Police.

        (3)    Subsection (2) ceases to have effect at the end of the period of 2 years starting at the commencement of this section.

        (4)    If subsection (2) applies to a communication, a reference in this Act (other than in this section) to the intended recipient of the communication is taken to be a reference to an intended recipient of the communication.

(7)    Schedule 1, item 9, page 9 (lines 12 and 13), omit paragraph 108(1)(b), substitute:

             (b)    the person does so with the knowledge of neither of the following:

                   (i)    the intended recipient of the stored communication;

                  (ii)    the person who sent the stored communication.

(8)    Schedule 1, item 9, page 9 (after line 18), after subsection 108(1), insert:

     (1A)    Without limiting paragraph (1)(b), a person is taken for the purposes of that paragraph to have knowledge of an act referred to in paragraph (1)(a) if written notice of an intention to do the act is given to the person.

Note:   For giving notice, see section 28A of the Acts Interpretation Act 1901.

(9)    Schedule 1, item 9, page 10 (line 27), omit “device.”, substitute “device; or”.

(10)  Schedule 1, item 9, page 10 (after line 27), after paragraph 108(2)(g), add:

             (h)    accessing a stored communication by an officer or staff member of the Australian Communications and Media Authority engaged in duties relating to enforcement of the Spam Act 2003.

(11)  Schedule 1, item 9, page 26 (lines 17 to 25), omit section 138, substitute:

138  Employee of carrier may communicate information to enforcement agency

        (1)    An employee of a carrier may, for a purpose or purposes connected with the investigation by the Australian Communications and Media Authority of a serious contravention or with the performance of its functions relating to enforcement of the Spam Act 2003, and for no other purpose, communicate to an officer or staff member of the authority the following:

             (a)    lawfully accessed information other than foreign intelligence information;

             (b)    stored communications warrant information.

        (2)    An employee of a carrier may, for a purpose or purposes connected with the investigation by any other enforcement agency of a serious contravention, and for no other purpose, communicate to an officer or staff member of the agency the following:

             (a)    lawfully accessed information other than foreign intelligence information;

             (b)    stored communications warrant information.

(12)  Schedule 1, item 9, page 27 (lines 19 to 26), omit paragraph 139(3)(c), substitute:

             (c)    could, if established, render the person committing the contravention liable:

                   (i)    if the contravention were committed by an individual—to pay a pecuniary penalty of 60 penalty units or more, or to pay an amount that is the monetary equivalent of 60 penalty units or more; or

                  (ii)    if the contravention cannot be committed by an individual—to pay a pecuniary penalty of 300 penalty units or more, or to pay an amount that is the monetary equivalent of 300 penalty units or more.

(13)  Schedule 1, item 19, page 45 (line 14), omit “or 3-2”.

(14)  Schedule 1, page 45 (after line 20), after item 20, insert:

Intelligence Services Act 2001

20A  Paragraph 14(2A)(a)

Omit “Part III of the Telecommunications (Interception) Act 1979”, substitute “Part 2-2 of the Telecommunications (Interception and Access) Act 1979”.

(15)  Schedule 1, page 46 (after line 9), after item 24, insert:

Telecommunications Act 1997

24A  Section 5

Omit “Telecommunications (Interception) Act 1979”, substitute “Telecommunications (Interception and Access) Act 1979”.

24B  Subsection 313(7)

Omit “interception services”, substitute “interception or access services”.

24C  Subsection 313(7)

Omit “under the Telecommunications (Interception) Act 1979”, substitute “or a stored communications warrant under the Telecommunications (Interception and Access) Act 1979”.

24D  Subsection 313(8)

Omit “interception services”, substitute “interception or access services”.

24E  Subsection 313(8)

After “intercepted”, insert “or accessed”.

24F  Subsection 324(2)

Omit “Telecommunications (Interception) Act 1979”, substitute “Telecommunications (Interception and Access) Act 1979”.

24G  Section 332K (note)

Omit “Telecommunications (Interception) Act 1979”, substitute “Telecommunications (Interception and Access) Act 1979”.

(16)  Schedule 2, item 7, page 63 (lines 8 and 9), omit subparagraph 46(1)(d)(ii), substitute:

                  (ii)    another person is involved with whom the particular person is likely to communicate using the service; and

(17)  Schedule 2, page 63 (after line 30), at the end of the Schedule, add:

11  After paragraph 100(1)(ec)

Insert:

           (ed)    in relation to applications of a kind referred to in paragraph (a), (b), (c), (d) or (e), the relevant statistics about applications of that kind that relate to warrants in relation to which subparagraph 46(1)(d)(ii) would apply if the warrants were issued; and

           (ee)    how many Part 2-5 warrants issued during that year on application made by the agency or authority were warrants in relation to which subparagraph 46(1)(d)(ii) applied; and

            (ef)    how many Part 2-5 warrants renewed during that year on application made by the agency or authority were warrants in relation to which subparagraph 46(1)(d)(ii) applied; and

12  After paragraph 100(2)(ec)

Insert:

           (ed)    in relation to applications of a kind referred to in paragraph (a), (b), (c), (d) or (e), the relevant statistics about applications of that kind that relate to warrants in relation to which subparagraph 46(1)(d)(ii) would apply if the warrants were issued; and

           (ee)    how many Part 2-5 warrants issued during that year were warrants in relation to which subparagraph 46(1)(d)(ii) applied; and

            (ef)    how many Part 2-5 warrants renewed during that year were warrants in relation to which subparagraph 46(1)(d)(ii) applied; and

13  At the end of paragraphs 101(1)(a), (b) and (c)

Add “and”.

14  After paragraph 101(1)(d)

Insert:

           (da)    in relation to periods of a kind referred to in paragraph (a), (b), (c) or (d), the averages of the periods of that kind that relate to warrants in relation to which subparagraph 46(1)(d)(ii) applied; and

15  At the end of paragraphs 101(2)(a), (b) and (c)

Add “and”.

16  After paragraph 101(2)(d)

Insert:

           (da)    in relation to periods of a kind referred to in paragraph (a), (b), (c) or (d), the averages of the periods of that kind that relate to warrants in relation to which subparagraph 46(1)(d)(ii) applied; and

(18)  Schedule 5, item 35, page 85 (lines 1 to 5), omit the item, substitute:

35  Section 82

Repeal the section.

(19)  Schedule 5, page 85 (after line 5), at the end of the Schedule, add:

36  At the end of paragraph 86(1)(a)

Add “and”.

37  After paragraph 86(1)(b)

Insert:

   and (ba)    is entitled to have full and free access at all reasonable times to the General Register and the Special Register; and

38  Paragraph 86(1)(c)

After “agency”, insert “or the General Register or Special Register”.

39  At the end of section 86

Add:

        (3)    The Ombudsman’s powers include doing anything incidental or conducive to the performance of any of the Ombudsman’s functions under this Part.

See this item in context