Telecommunications

Overview

  • National legislation seeks to regulate how telecommunications service providers operate and maintain their networks and services. This area of law is subject to frequent amendments that seek to address developments in telecommunications technology and security threats.

Background

Telecommunications Act 1997 (Cth)

  • Under Part 14 of the Telecommunications Act 1997 (Cth), carriers and carriage service providers must do their best to prevent telecommunications networks and facilities from being used to commit offences and provide help as is reasonably necessary to authorities and officers of Commonwealth and state agencies for the purposes set out in section 313(3).
  • Following the TSSR amendments, carriers and carriage service providers also have security and notification obligations. The security obligation is a risk based obligation to do their best to protect telecommunications networks and facilities from unauthorised interference, or unauthorised access, for the purposes of security. This duty requires 'competent supervision' and 'effective control over' the telecommunications networks or facilities that a provider owns or operates.
  • Carriers and certain carriage service providers must notify changes to telecommunications services or systems that are likely to have a material adverse effect on their capacity to comply with the security obligation.
  • The Home Affairs Minister may give directions to a carrier or a carriage service provider in certain circumstances, such as a direction to not supply a service where it would be prejudicial to security to do so, or a direction where there is a risk of unauthorised interference or access concerning telecommunications networks or facilities.

Telecommunications (Interception and Access) Act 1979 (Cth)

  • The Telecommunications (Interception and Access) Act 1979 (Cth) provides a legislative framework that criminalises the interception and accessing of telecommunications.
  • The Act also prescribes exceptions that enable law enforcement, anti-corruption and national security agencies (e.g. ASIO) to apply for warrants to intercept or access stored communications when investigating serious crimes and threats to national security. The warrant regime provides these agencies with lawful access to telecommunications content.
  • Chapter 2 regulates the interception of 'live' communications that pass over a telecommunications system, which includes telephone and internet communications.
  • Chapter 3 regulates the interception of communications stored within the apparatus of a telecommunications provider (e.g. email, text and voicemail).
  • Part 5-1A requires telecommunications and internet service providers to retain and encrypt telecommunications data for a period of two years for the purposes of access by national security authorities, criminal law-enforcement agencies and enforcement agencies.

Regulatory & Policy Framework

Relevant Organisations

Inquiries & Consultations

Industry Materials

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