Public Interest Monitor Regulations 2013FILE/13-8sr001.docx · Web viewOCPC-VIC, Word 2007,...

Version No. 001

Public Interest Monitor Regulations 2013S.R. No. 8/2013

Version as at10 February 2013

TABLE OF PROVISIONSRegulation Page

PART 1—PRELIMINARY 1

1 Objective 12 Authorising provision 13 Commencement 14 Definitions 1

PART 2—NOTIFICATION OF RELEVANT APPLICATIONS 6

5 Application of Part 66 Notification of application 67 Notifications related to scheduling of hearing 78 Notification of change in application details 79 Confirmation of notification 7

PART 3—NOTIFICATION OF MATTERS ADVERSE TO AN APPLICATION 8

10 Notification of matters adverse to a relevant application 8

PART 4—DOCUMENTS TO BE GIVEN TO A PUBLIC INTEREST MONITOR 10

11 Notification of application or supporting affidavit 1012 Confirmation of notification of application or supporting

affidavit 11

PART 5—HEARING OF APPLICATIONS 12

13 Notification of further information requested by issuing authority 12

14 Confirmation of receipt of further information 1315 Public Interest Monitor not reasonably able to be contacted 1316 Confirmation of notification application has proceeded 15

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PART 6—OTHER NOTIFICATIONS 16

17 Notification of resumed hearings 1618 Confirmation of notification of resumed hearing 1619 Notification of discontinued order 1620 Confirmation of notification of discontinued order 1721 Notification of revoked order or warrant 1722 Confirmation of notification of revoked order or warrant 18

PART 7—SECURITY AND RECORD KEEPING 19

23 Dealing with law enforcement data 1924 Document register to be kept 2025 Storage of documents 2026 Return of application documents 2127 Confirmation documents have been returned 21

═══════════════

ENDNOTES 23

1. General Information 23

2. Table of Amendments 24

3. Explanatory Details 25

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Version No. 001


Version as at10 February 2013

PART 1—PRELIMINARY

1 Objective

The objective of these Regulations is to prescribe matters for the purposes of the Public Interest Monitor Act 2011 including prescribing—

(a) the method for notifying, or giving information to a Public Interest Monitor;

(b) the security and record keeping obligations of Public Interest Monitors;

(c) other matters for the purposes of that Act.

2 Authorising provision

These Regulations are made under section 21 of the Public Interest Monitor Act 2011.

3 Commencement

These Regulations come into operation on 10 February 2013.

4 Definitions

In these Regulations—

double-sealed envelope means a process whereby—

(a) documents are enclosed in an envelope (the inner envelope) which is sealed and displays markings indicating the security classification level of the documents; and

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(b) the inner envelope is then enclosed in a second envelope which is sealed;

eligible Judge has the same meaning as it has in the Telecommunications (Interception and Access) Act 1979 of the Commonwealth;

hand delivery means delivery of a hard copy of a notification in writing;

issuing authority means—

(a) the Supreme Court in relation to an application for—

(i) a coercive powers order; or

(ii) the extension or variation of a coercive powers order; or

(iii) an assistance order; or

(iv) a covert search warrant; or

(v) a preventative detention order; or

(vi) the extension, variation or revocation of a preventative detention order; or

(vii) a prohibited contact order; or

(viii) the variation or revocation of a prohibited contact order;

(b) a Judge of the Supreme Court or a magistrate in relation to an application for—

(i) a surveillance device warrant; or

(ii) the extension or variation of a surveillance device warrant; or

(iii) a retrieval warrant; or

(iv) the approval of an emergency authorisation;

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r. 4

(c) an eligible Judge or nominated AAT member in relation to an application for—

(i) a telecommunications interception warrant; or

(ii) the renewal of a telecommunications interception warrant;

law enforcement data means any information obtained, received or held by a law enforcement agency—

(a) for the purpose of one or more of its, or any other law enforcement agency's, law enforcement functions or activities; or

(b) for the enforcement of laws relating to the confiscation of the proceeds of crime; or

(c) in connection with the conduct of proceedings commenced, or about to be commenced, in any court or tribunal; or

(d) for the purposes of its community law enforcement functions;

nominated AAT member has the same meaning as it has in the Telecommunications (Interception and Access) Act 1979 of the Commonwealth;

remote application, in the case of—

(a) an application for a surveillance device warrant or a retrieval warrant, has the same meaning as it has in the Surveillance Devices Act 1999;

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(b) an application for the extension or variation of a surveillance device warrant or an assistance order, means an application made in the manner described in either section 16 or section 20D of the Surveillance Devices Act 1999;

(c) an application for a coercive powers order or the extension or variation of a coercive powers order, means an application made in the manner described in section 6 of the Major Crime (Investigative Powers) Act 2004;

(d) an application for a covert search warrant, means an application made in the manner described in section 10 of the Terrorism (Community Protection) Act 2003;

(e) an application for a telephone interception warrant or the renewal of a telephone interception warrant, means an application made in the manner described in section 40(2) of the Telecommunications (Interception and Access) Act 1979 of the Commonwealth;

secure delivery, for the purpose of notifying a Public Interest Monitor, means delivery of documents in a double-sealed envelope by either—

(a) a member of the law enforcement agency that made the application (or whom the applicant is a member of) to which the documents relate; or

(b) a secure courier;

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the Act means the Public Interest Monitor Act 2011;

unique identifying number means a unique number or name assigned to a relevant application by an applicant for reference purposes;

written receipt means a receipt given by a Public Interest Monitor that specifies—

(a) the unique identifying number of the application to which it relates; and

(b) the type of notification that a Public Interest Monitor has received and the regulation under which the notification was made; and

(c) if the notification included other documents, a list of those documents.Example

A copy of an application, supporting affidavit or further information requested by the issuing authority.

__________________

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PART 2—NOTIFICATION OF RELEVANT APPLICATIONS

5 Application of Part

This Part applies in relation to—

(a) section 5(5A) of the Major Crime (Investigative Powers) Act 2004;

(b) sections 15(6A), 20C(6A), 21(2A) and 28(2A) of the Surveillance Devices Act 1999;

(c) section 4A(1) of the Telecommunications (Interception) (State Provisions) Act 1988;

(d) sections 7A, 13DA, 13I(5A), 13L(4A), 13M(4A) and 13O(7A) of the Terrorism (Community Protection) Act 2003.

6 Notification of application

A notification of an application to which this Part applies must—

(a) be given as soon as practicable after the applicant decides to make the application;

(b) be made—

(i) by telephone if the application is a remote application; or

(ii) by email or hand delivery in any other case;

(c) include the following details—

(i) the application's unique identifying number;

(ii) the type of application to be made;

(iii) the issuing authority to which the application is to be made;

(iv) whether the application is to be made in writing or by telephone;

r. 5Part 1—Preliminary


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(v) an estimate of when the applicant will give the Public Interest Monitor a copy of any application to an issuing authority and affidavit in support of the application.

7 Notifications related to scheduling of hearing

(1) An applicant must, unless it is impracticable, notify a Public Interest Monitor by telephone or email for the purposes of ascertaining a Public Interest Monitor's availability to attend the hearing of an application.

(2) A notification required under subregulation (1) must be made before the applicant applies to the issuing authority.

(3) An applicant must notify a Public Interest Monitor by email or hand delivery of the scheduled time, date and place of the hearing as soon as practicable after those details are known, unless the application is a remote application.

8 Notification of change in application details

An applicant must notify a Public Interest Monitor by email or hand delivery of a change to any of the details included in a notification under regulation 6 or 7 as soon as practicable after becoming aware of the change.

9 Confirmation of notification

A Public Interest Monitor must give an applicant a written receipt as soon as practicable after being notified under regulation 6, 7 or 8.

__________________



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PART 3—NOTIFICATION OF MATTERS ADVERSE TO AN APPLICATION

10 Notification of matters adverse to a relevant application

(1) This regulation applies in relation to—

(a) section 3C(1) of the Major Crime (Investigative Powers) Act 2004;

(b) section 12C(1) of the Surveillance Devices Act 1999;

(c) section 4B(1) of the Telecommunications (Interception) (State Provisions) Act 1988;

(d) section 4E(1) of the Terrorism (Community Protection) Act 2003.

(2) If an applicant is required to disclose matters that are adverse to a relevant application to a Public Interest Monitor, the applicant must notify the Public Interest Monitor by—

(a) in the case of an application with a supporting affidavit (whether sworn or unsworn)—

(i) stating those matters in the supporting affidavit; and

(ii) stating in the supporting affidavit either that all those matters have been disclosed or that the applicant is unaware of any such matters (as the case may be); or



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(b) in the case of an application in respect of which no supporting affidavit is given at the time the application is made, stating those matters or confirming that the applicant is not aware of any such matters (as the case may be) during the hearing of the application.

__________________



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PART 4—DOCUMENTS TO BE GIVEN TO A PUBLIC INTEREST MONITOR

11 Notification of application or supporting affidavit


(a) section 3B(1) and (3) of the Major Crime (Investigative Powers) Act 2004;

(b) section 12B(1) and (2) of the Surveillance Devices Act 1999;

(c) section 4A(2) and (3) of the Telecommunications (Interception) (State Provisions) Act 1988;

(d) section 4D(1) and (2) of the Terrorism (Community Protection) Act 2003.

(2) If an applicant is required to give a Public Interest Monitor a copy of an application or affidavit, the applicant must do so by notifying a Public Interest Monitor—

(a) as soon as practicable after the application or affidavit has been prepared but, in any case, before the hearing of the application; and

(b) by—

(i) facsimile or email if the relevant application is a remote application; or

(ii) secure delivery in any other case.

(3) A notification under subregulation (2) must—

(a) specify the application's unique identifying number; and

(b) include a copy of the application or affidavit.



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12 Confirmation of notification of application or supporting affidavit

A Public Interest Monitor must give an applicant a written receipt as soon as practicable after being notified under regulation 11.

__________________



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PART 5—HEARING OF APPLICATIONS

13 Notification of further information requested by issuing authority


(a) section 3B(2) of the Major Crime (Investigative Powers) Act 2004;

(b) section 4C of the Telecommunications (Interception) (State Provisions) Act 1988.

(2) If an applicant is required to give a Public Interest Monitor further information that was requested by an issuing authority, the applicant must do so by notifying a Public Interest Monitor—

(a) either before giving the further information to the issuing authority or as soon as practicable after giving the further information to the issuing authority; and

(b) by—

(i) facsimile or email if the relevant application is a remote application; or

(ii) secure delivery in any other case.


(a) specify the application's unique identifying number;

(b) include a copy of the further information.

(4) For the purposes of subregulation (3)(b), if the applicant gave the requested information to the issuing authority verbally and a Public Interest Monitor was not present at that time, the applicant need only give a written record that states the substance of that information.Note



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A written record is not required to give a verbatim record of the information given verbally to the issuing authority.

(5) Subregulation (2) does not apply if the applicant gave the requested information to the issuing authority verbally and a Public Interest Monitor was present at that time.

14 Confirmation of receipt of further information


15 Public Interest Monitor not reasonably able to be contacted


(a) section 3D(3) of the Major Crime (Investigative Powers) Act 2004;

(b) section 4F(3) of the Terrorism (Community Protection) Act 2003.

(2) The circumstances under which a Public Interest Monitor is not reasonably able to be contacted include the following—

(a) an applicant has made reasonable attempts to comply with the notification requirements under Part 2 but a Public Interest Monitor has either been unavailable or has not acknowledged receipt of a notification;

(b) an applicant has notified a Public Interest Monitor of a relevant application under Part 2 but a Public Interest Monitor has not made any submissions or appeared at the hearing of the application;

(c) an application is being made by telephone and there are technical difficulties preventing a Public Interest Monitor from being a party



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to the call that cannot be overcome in a reasonable timeframe.

(3) A notification that an application has proceeded without a Public Interest Monitor must be given—

(a) as soon as practicable after the hearing finishes; and

(b) by—

(i) secure delivery if the notification includes a copy of the transcript of the hearing of a relevant application; or

(ii) email or hand delivery in any other case.


(a) specify the following details—


(ii) the type of application;

(iii) the issuing authority to which the application was made;

(iv) whether the application was granted, and if so, whether any conditions were imposed;

(b) attach a copy of the transcript of the hearing of the application that proceeded without a Public Interest Monitor, if such a transcript was made and is available.

(5) If an applicant is required to give a Public Interest Monitor information requested by the Public Interest Monitor, the applicant must do so by notifying the Public Interest Monitor—

(a) as soon as practicable after the request is made; and



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(b) by secure delivery.


(a) specify the application's unique identifying number; and

(b) include a copy of the requested information.

(7) For the purposes of subregulation (6)(b), if information requested by a Public Interest Monitor was given to the issuing authority verbally, an applicant need only give a written record that gives the substance of that information.Note

A written record is not required to give a verbatim record of the information given verbally to the issuing authority.

16 Confirmation of notification application has proceeded

A Public Interest Monitor must give an applicant a written receipt as soon as practicable after being notified under regulation 15(3) or (5).

__________________



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PART 6—OTHER NOTIFICATIONS

17 Notification of resumed hearings

(1) A notification under section 13E(5A) of the Terrorism (Community Protection) Act 2003 must be given—

(a) as soon as practicable after a hearing has been scheduled to resume; and

(b) by email or hand delivery.

(2) A notification under subregulation (1) must specify—

(a) the application's unique identifying number;

(b) when the hearing is scheduled to resume;

(c) whether the applicant must notify a Public Interest Monitor of any further information.

(3) An applicant must notify a Public Interest Monitor by email or hand delivery of any change to the details included in a notification under this regulation as soon as practicable after becoming aware of the change.

18 Confirmation of notification of resumed hearing


19 Notification of discontinued order

(1) If a person is required to give a Public Interest Monitor a copy of a notice under section 11(2A) of the Major Crime (Investigative Powers) Act 2004, the person must do so by notifying a Public Interest Monitor—



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(a) as soon as practicable after the notice has been given to the Supreme Court that the coercive powers order is no longer required;



(a) specify—


(ii) the date the notice was filed with the Supreme Court;

(b) include a copy of the notice.

20 Confirmation of notification of discontinued order

As soon as practicable after a person has notified a Public Interest Monitor under regulation 19, the Public Interest Monitor must give that person a written receipt.

21 Notification of revoked order or warrant

(1) A notification made under section 12C(ab) of the Major Crime (Investigative Powers) Act 2004 or section 20A(4) or 20H(5) of the Surveillance Devices Act 1999 must be given—

(a) as soon as practicable after the issuing authority has revoked the related order or warrant; and


(2) A notification under subregulation (1) must specify—

(a) the application's unique identifying number;

(b) the date the order or warrant was revoked.



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22 Confirmation of notification of revoked order or warrant

A Public Interest Monitor must give an issuing authority a written receipt as soon as practicable after being notified under regulation 21.

__________________



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PART 7—SECURITY AND RECORD KEEPING

23 Dealing with law enforcement data

(1) The Principal Public Interest Monitor must develop written procedures for dealing with law enforcement data, including the creation and maintenance of—

(a) an information security policy;

(b) an access control policy;

(c) procedures for monitoring access activities to law enforcement data;

(d) procedures for ensuring that all security classified law enforcement data is adequately protected;

(e) a risk management policy for identifying, analysing and treating security risks to law enforcement data;

(f) reporting, escalation and response procedures for information security events or identified weaknesses in information security that may affect law enforcement data;

(g) a process for the continual monitoring and improvement of an information security incident.

(2) In this regulation—

information security event means an identified occurrence of an information system, service or network state indicating—

(a) a possible breach of information security policy; or

(b) a failure of safeguards; or

(c) a previously unknown situation that may be security relevant;



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information security incident means a single or series of information security events that are likely to have compromised the security of information.

security classified law enforcement data means law enforcement data that—

(a) could have adverse consequences for the State, another State or Territory or the Commonwealth if compromised; and

(b) has been subject to a security risk assessment; and

(c) has been assigned a protective marking or security classification label that identifies the security risk for Government if compromised and the minimum level of protection it must be afforded to safeguard it from compromise.

24 Document register to be kept

The Principal Public Interest Monitor must keep a register of—

(a) all documents that a Public Interest Monitor receives in relation to each relevant application;

(b) the current location of those documents;

(c) the date those documents are returned to the applicant.

25 Storage of documents

A Public Interest Monitor must keep all documents containing law enforcement data (including all copies of applications and supporting affidavits currently in that Public Interest Monitor's possession) in a secure place



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that is only accessible to persons entitled to deal with that information when not in use.

26 Return of application documents

A Public Interest Monitor must return to an applicant any draft version of an application or supporting affidavit that he or she has been given by the applicant as soon as practicable after the application has been determined.

27 Confirmation documents have been returned

(1) An applicant must notify a Public Interest Monitor as soon as practicable after the applicant receives a document under—

(a) section 3D(4) of the Major Crime (Investigative Powers) Act 2004; or

(b) section 12D(3) of the Surveillance Devices Act 1999; or

(c) section 4D(3) of the Telecommunications (Interception) (State Provisions) Act 1988; or

(d) section 4F(4) of the Terrorism (Community Protection) Act 2003.

(2) A notification made under subregulation (1) must—

(a) be in writing;

(b) specify the application's unique identifying number;

(c) specify the type of information received;Example

A copy of an application, supporting affidavit or further information requested by the issuing authority.



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(d) specify whether or not the Public Interest Monitor has returned all required documents relating to the relevant application. ═══════════════



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ENDNOTES

1. General InformationThe Public Interest Monitor Regulations 2013, S.R. No. 8/2013 were made on 5 February 2013 by the Lieutenant-Governor as the Governor's Deputy with the advice of the Executive Council under section 21 of the Public Interest Monitor Act 2011, No. 72/2011 and came into operation on 10 February 2013: regulation 3.

The Public Interest Monitor Regulations 2013 will sunset 10 years after the day of making on 5 February 2023 (see section 5 of the Subordinate Legislation Act 1994).

EndnotesPart 1—Preliminary


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2. Table of AmendmentsThere are no amendments made to the Public Interest Monitor Regulations 2013 by statutory rules, subordinate instruments and Acts.



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3. Explanatory DetailsNo entries at date of publication.



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