Today, the Attorney-General tabled the Commonwealth Ombudsman’s first report on oversight of law enforcement agencies’ use of industry assistance powers under Part 15 of the Telecommunications Act 1997 (the Act).

The industry assistance framework under Part 15 allows law enforcement interception and intelligence agencies to request or compel a designated communications provider (DCP) to provide certain types of technical assistance for a specified purpose under the Act. Agencies can seek industry assistance through:

These requests and notices do not replace existing warrants and authorisations, for example for the use of surveillance devices or to intercept a person’s communications. However, these mechanisms can be used to seek technical assistance from industry to help give effect to a warrant or authorisation that the agency sought separately.

Part 15 was introduced into the Act by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018. The Commonwealth Ombudsman first received funding for oversight of Part 15 in the 2020-21 Budget.

This first report covers agencies’ use of the powers from 9 December 2018 to 30 June 2020. The Office carried out inspections of agencies’ records from that period, between March and August 2021. This is consistent with our general practice of inspecting records retrospectively to manage live operational sensitivities.

The Office inspected 8 Commonwealth, state and territory agencies’ use of the industry assistance powers1. As this was the first round of inspections, the Office also conducted health checks of agencies’ readiness to use industry assistance powers.

The Ombudsman made 2 recommendations, 29 suggestions and 58 better practice suggestions across the 8 agencies, on matters that include:

“Two of the 3 agencies using the powers – the Australian Federal Police and NSW Police – had a strong governance framework in place by the time of our health check”, said Mr Anderson. “My Office identified non-compliance in these agencies’ early use of industry assistance powers, but this mainly dated back to the period before they strengthened their governance”.

“Agencies with a comprehensive governance framework to support the use of industry assistance powers have significantly better compliance outcomes.”

“Most agencies were supportive of our efforts to proactively assist them with anticipating risks to their compliance with the Act”, Mr Anderson said. “I am encouraged by the agencies’ efforts to mature their compliance culture and work to mitigate risks prior to using the powers”.

The report can be found on the Commonwealth Ombudsman website.

1The Australian Federal police, Australian Criminal Intelligence Commission and each of the State and Territory police services (except Tasmania Police Service). Tasmania Police advised it was not in a position to undertake a health check of its industry assistance framework during the inspection period. The Office elected to cancel the inspection of Tasmania Police after it was confirmed that Tasmania Police would not use industry assistance powers before it establishes a compliance framework.

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      17 November 2022 - Publication of the Commonwealth Ombudsman’s Report into law enforcement agencies’ use of industry assistance powers.

      Today, the Attorney-General tabled the Commonwealth Ombudsman’s first report on oversight of law enforcement agencies’ use of industry assistance powers under Part 15 of the Telecommunications Act 1997 (the Act).

      The industry assistance framework under Part 15 allows law enforcement interception and intelligence agencies to request or compel a designated communications provider (DCP) to provide certain types of technical assistance for a specified purpose under the Act. Agencies can seek industry assistance through:

      • Technical Assistance Requests (TAR, industry provides assistance voluntarily)
      • Technical Assistance Notices (TAN compulsory – industry must provide assistance)
      • Technical Capability Notices (TCN; compulsory – industry must provide assistance).

      These requests and notices do not replace existing warrants and authorisations, for example for the use of surveillance devices or to intercept a person’s communications. However, these mechanisms can be used to seek technical assistance from industry to help give effect to a warrant or authorisation that the agency sought separately.

      Part 15 was introduced into the Act by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018. The Commonwealth Ombudsman first received funding for oversight of Part 15 in the 2020-21 Budget.

      This first report covers agencies’ use of the powers from 9 December 2018 to 30 June 2020. The Office carried out inspections of agencies’ records from that period, between March and August 2021. This is consistent with our general practice of inspecting records retrospectively to manage live operational sensitivities.

      The Office inspected 8 Commonwealth, state and territory agencies’ use of the industry assistance powers1. As this was the first round of inspections, the Office also conducted health checks of agencies’ readiness to use industry assistance powers.

      The Ombudsman made 2 recommendations, 29 suggestions and 58 better practice suggestions across the 8 agencies, on matters that include:

      • enhancing agency processes and procedures to demonstrate that authorised officers considered all relevant legislative criteria and safeguards before approving use of the powers
      • the importance of agencies training their officers and staff, including authorised officers, on the use of industry assistance powers
      • the importance of agencies maintaining sufficient records to support our oversight of their compliance with the Act
      • the need for agencies to comply with legislative requirements for warrants or authorisations that industry powers are used to supplement – for example, agencies must comply with Telecommunications (Interception and Access) Act 1979 requirements on authorisations to access telecommunications data (commonly referred to as ‘metadata’), when using industry assistance alongside those authorisations.

      “Two of the 3 agencies using the powers – the Australian Federal Police and NSW Police – had a strong governance framework in place by the time of our health check”, said Mr Anderson. “My Office identified non-compliance in these agencies’ early use of industry assistance powers, but this mainly dated back to the period before they strengthened their governance”.

      “Agencies with a comprehensive governance framework to support the use of industry assistance powers have significantly better compliance outcomes.”

      “Most agencies were supportive of our efforts to proactively assist them with anticipating risks to their compliance with the Act”, Mr Anderson said. “I am encouraged by the agencies’ efforts to mature their compliance culture and work to mitigate risks prior to using the powers”.

      The report can be found on the Commonwealth Ombudsman website.

      1The Australian Federal police, Australian Criminal Intelligence Commission and each of the State and Territory police services (except Tasmania Police Service). Tasmania Police advised it was not in a position to undertake a health check of its industry assistance framework during the inspection period. The Office elected to cancel the inspection of Tasmania Police after it was confirmed that Tasmania Police would not use industry assistance powers before it establishes a compliance framework.