What records do law enforcement agencies have to keep about intercepted communications?

In Plain English

Law enforcement agencies in Australia are required to keep detailed records about how they use their powers to intercept communications. This includes things like warrants, applications for warrants, and records about how intercepted information is used and shared. The specific records they need to keep depend on the type of interception and which laws apply. Generally, they need to keep these records for at least three years. There are also specific rules about destroying records when they are no longer needed.

Detailed Explanation

Several pieces of legislation outline the record-keeping obligations for law enforcement agencies concerning intercepted communications. These obligations ensure accountability and oversight of these powers.

Telecommunications (Interception and Access) Act 1979 (TIA Act) (docid=1)

  • Section 80: Outlines the documents a Commonwealth agency's chief officer must keep related to the issue of warrants. This includes the warrants themselves, notifications to the Department Secretary, instruments revoking warrants, certificates issued by certifying officers, authorisations by the chief officer, and any advice given to or received from the Minister.
  • Section 81: Specifies other records that Commonwealth agencies must keep in connection with interceptions. This includes particulars of telephone applications for warrants, statements on whether applications were withdrawn or refused, details of warrant execution (date, time, duration, person carrying out the interception, and service intercepted), details of restricted records, particulars of the use and communication of lawfully intercepted information, and details of when intercepted information was given as evidence.
  • Section 151: Details the records a criminal law-enforcement agency must keep, including preservation notices, stored communications warrants, instruments revoking warrants, documents indicating approved persons and appointed officers, authorisations by the chief officer, requests for international assistance, documents indicating compliance with requirements, documents indicating whether information was destroyed, evidentiary certificates, and reports given to the Minister. These records must be kept for three years or until the Ombudsman provides a report to the Minister about records that include the item, whichever is earlier.
  • Section 79AB: Concerns the destruction of restricted records related to interceptions authorized by a community safety supervision order warrant, specifically when the interception occurred before the order came into force and the information is unlikely to assist in achieving a Part 9.10 object. In such cases, the chief officer must destroy the record as soon as practicable.
  • Section 79A: Addresses the destruction of restricted records of communications intercepted under paragraph 7(2)(aaa) when held by a responsible person for a computer network. The responsible person must destroy the record as soon as practicable if it's not likely to be required for network protection duties or disciplinary purposes.
  • Section 150: Mandates the chief officer to destroy information or records forthwith if they are not likely to be required for purposes outlined in subsections 139(2) or (4A), 139A(2) or 139B(2). The chief officer must also provide a written report to the Minister within 3 months after each 30 June, detailing the extent of information and records destroyed.

Surveillance Devices Act 2004 (docid=2)

  • Section 46: Requires the chief officer of a law enforcement agency to ensure that records or reports comprising protected information, general computer access intercept information, or data disruption intercept information are kept securely. These records must be destroyed as soon as practicable if they are not likely to be required for civil or criminal proceedings or activities under subsections 45(4), 45(5), or 45A(1). Otherwise, they must be destroyed within 5 years, with periodic reviews.
  • Section 46AA: Outlines similar requirements for dealing with records obtained by accessing data under a network activity warrant. The chief officer of the Australian Federal Police or the Australian Crime Commission must ensure the secure keeping and eventual destruction of protected network activity warrant information and network activity warrant intercept information.
  • Sections 51 and 52: List various documents and details that the chief officer of a law enforcement agency must keep, including records related to warrants, emergency authorisations, tracking device authorisations, applications, reports to the Minister, certificates issued by authorising officers, advice given to the Minister, notices received from the Minister, statements on application outcomes, and details of the use and communication of information obtained through surveillance devices or computer access.

Telecommunications Legislation Amendment (International Production Orders) Act 2021 (docid=3)

  • Section 140: Specifies the destruction of records related to international production orders. If an international production order results in a prescribed communications provider making intercepted communications or stored communications available to an agency or the Organisation, and the chief officer or Director-General of Security is satisfied that the record is not likely to be required for purposes referred to in clauses 153, 157 or 158, the record must be destroyed immediately.

Telecommunications (Interception and Access) (Obligation to Keep Records) Instrument 2015 (docid=4)

  • This instrument, made under subsection 186A(2) of the TIA Act, prescribes additional documents and materials that enforcement agencies must keep related to applications for journalist information warrants. This includes written applications, documents indicating when a Public Interest Advocate was given a copy of an application or notified of a proposed oral application, further information given to a Part 4-1 issuing authority, and submissions prepared by a Public Interest Advocate.

Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (docid=5)

  • Section 46AA: Dealing with records obtained by accessing data under a network activity warrant.

Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (docid=10)

  • Section 186A: Obligation to keep records.

These legislative provisions collectively create a framework for record-keeping related to intercepted communications, balancing the need for law enforcement to access and use this information with the protection of privacy and the need for transparency and accountability.