The following table compares foreign intelligence gathering legislation across the “Five Eyes” community against the following:
|
|
Australia – Current law
|
Australia – Amendments
|
UK
|
US
|
Canada
|
New Zealand
|
|
Authorising legislation
|
Telecommunications (Interception and Access) Act 1979 (TIA Act)
|
Foreign Intelligence Legislation Amendment Bill 2021 (FILA Bill)
|
Investigatory Powers Act 2016 (IPA)
|
Foreign Intelligence Surveillance Act 1978 (FISA)
|
Communications Security Establishment Act 2019 (CSE Act)
|
Intelligence Services Act 2017 (IS Act)
|
|
Incidental collection
|
Not permitted.
Section 11C of the TIA Act only authorises the collection of foreign communications.
|
Permitted.
The FILA Bill will allow for the collection of communications (regardless of where they start or end) for the purpose of collecting foreign intelligence (cl 11C(1)).
|
Permitted.
A bulk interception warrant authorises the interception of communications not described in the warrant (s 136(5)).
|
Permitted.
FISA authorises the targeting of persons reasonably believed to be outside the United States to acquire foreign intelligence information. Domestic communications and citizens must not be intentionally targeted (§ 702).
|
Permitted.
CSE is authorised to acquire domestic information incidentally in the course of carrying out activities under an authorisation (s 23(4)).
|
Permitted.
Both Type 1 (NZ person) and Type 2 (foreign intelligence) warrants authorise an activity for the purpose of collecting information. There is no prohibition on the type of communication that may be collected (s 53 and 54).
|
|
Destruction of domestic incidental collection
|
Not applicable.
|
Required.
The FILA Bill requires the Attorney-General to establish a procedure for destroying all records of identified domestic communications (cl 11C(6)(b)).
|
Not required.
|
Required.
FISA requires incidental domestic collection to be destroyed upon recognition (§ 106).
|
Not required.
|
Required.
Unauthorised information must be destroyed immediately after it is obtained (s 102(2)).
|
|
Destruction of irrelevant collection
|
Required.
Section 14 of the TIA Act requires the Director-General of Security to cause the destruction of communications when satisfied they are no longer required by the Organisation in the performance of its functions or the exercise of its powers.
|
Required.
The FILA Bill requires the Director-General of Security to cause the destruction of communications, when satisfied they are not relevant to the purposes specified in the warrant (cl 11C(5)).
|
Required.
Material obtained under a warrant must be destroyed as soon as there are no longer any relevant grounds for retaining it (s 150(5)).
IPA Interception of Communications Code of Practice
Destroying data involves taking reasonable steps to make the data unavailable or inaccessible, but does not involve taking steps such as the physical destruction of hardware (paragraph 9.23).
|
Not required.
|
Not required.
|
Required.
Irrelevant information (information no longer required by the agency for the performance of its functions) must be destroyed as soon as practicable (s 103).
|
|
Retention of incidental collection
|
Not applicable.
|
Permitted.
The FILA Bill permits domestic communications to be retained if it relates to a significant risk to a person’s life (cl 11C(5)(c) and 11C(6)(b)).
|
Permitted.
Material may be retained if it is in the interests of national security, preventing or detecting serious crime, or in the interest of economic wellbeing (s 150(6)).
|
Permitted.
Domestic collection may be retained if the Attorney General determines the contents indicate a threat of death or serious bodily harm to any person (§ 106).
|
Permitted.
Domestic communications may be retained if the information is essential to international affairs, defence or security (s 34(2)(c)).
|
Permitted.
Incidental collection may be retained for the prevention of serious crime, threats to life and threats to New Zealand’s security or defence.
|