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Overview of legislation

Commonwealth laws relating to telecommunications interception and use of surveillance devices are set out in:

Telecommunications (Interception and Access) Act 1979

The Telecommunications (Interception and Access) Act 1979 (TIA Act) regulates access to telecommunications content and data in Australia.

The TIA Act makes it an offence for a person to intercept or access private telecommunications without the knowledge of those involved in that communication.

The TIA Act permits access to communications content for law enforcement and national security purposes. Agencies can access communications for their investigations after obtaining a warrant from a court or tribunal. Applications for warrants must comply with the strict requirements of the Act. Agencies can also access communications without a warrant in certain circumstances, such as in an emergency.

The TIA Act also permits Australian agencies to access data. This data is the information associated with a communication, such as telephone call records or account-holder names. It does not include the content or substance of a communication. Certain authorised officers in agencies may request that industry providers provide this data as part of investigations into crime, revenue and national security matters.

Officers may only request access to data after satisfying legal tests set out in the Act. Requests for access to data are subject to independent oversight by the Commonwealth Ombudsman, or by the Inspector-General of Intelligence and Security in the case of ASIO. Additional safeguards apply to requests for access to journalists’ data for the purpose of identifying sources. In particular, agencies must obtain an independently-issued warrant.

The TIA Act also controls how agencies can subsequently use information obtained by intercepting or accessing communications, or accessing data. Under the TIA Act, agencies must keep records and report on their access to communications. The Ombudsman can also audit the records of these agencies.

Carriage services providers and licensed telecommunications carriers are required to set up systems to allow interception of communications. Companies may apply for an exemption from this obligation. Exemption applications will be considered on a case-by-case basis.

Telecommunication service providers are required to pay the costs associated with implementing and maintaining their own data retention and interception capability compliant systems. Agencies pay the costs associated with accessing the telecommunications content or data they are authorised to access. The Telecommunications Act 1997 lists further obligations on carriers and other industry participants.

The TIA Act annual report publishes statistical and other information on law enforcement agency use of telecommunications interception and access to data under the Act.

Surveillance Devices Act 2004

The Surveillance Devices Act 2004 (SD Act) governs the use of surveillance devices by agencies, including state and territory law enforcement agencies when they are using surveillance devices under Commonwealth laws.

The SD Act covers:

  • data surveillance devices—devices or programs used on computers
  • listening devices—devices used to listen to or record conversations
  • optical surveillance devices—devices used to record visuals or observe activities
  • tracking devices—devices used to locate or track a person or object.

The SD Act does not contain any prohibitions on the use of surveillance devices. The laws of the Australian states and territories generally contain prohibitions on surveillance devices, with exceptions for the investigation of state and territory offences. The Act complements the surveillance devices laws of the states and territories by allowing law enforcement agencies to obtain surveillance device warrants to help investigate federal offences and state offences with a federal aspect.

The SD Act limits the use of information obtained through surveillance devices. Agencies may use this information only for the investigation and prosecution of crimes, national security issues and providing mutual legal assistance to other countries.

The SD Act annual report publishes statistical and other information on Australian law enforcement agency use of surveillance devices under this legislation.

Telecommunications Act 1997

The Telecommunications Act 1997 (Tel Act) imposes a number of obligations on telecommunications industry participants, including requiring telecommunications industry participants to provide assistance to officers and authorities of the Commonwealth, states and territories as is reasonably necessary for:

  • enforcing the criminal law and laws imposing pecuniary penalties
  • assisting the enforcement of the criminal laws in force in a foreign country
  • protecting revenue
  • safeguarding national security.

These obligations apply to carriers and carriage service providers, which are defined in the Tel Act as follows:

  • carriers are those providers who hold a carrier licence given to them by the Australian Communications and Media Authority
  • carriage service providers are those industry participants who use a carrier's network to provide telecommunications services to the public.

The Department of Communications and the Arts administers the Tel Act.