The Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (Bill) has been moved in the House of Representatives. Around a dozen changes have been made to the Exposure Draft of the Bill in response to the consultation process that closed on 10 September. Key changes include a new requirement that designated communications providers be informed of certain matters regarding notices and requests issued under the Bill, a list of matters to be considered when deciding if the issue of a notice is reasonable and proportionate, and a defence arising if compliance with a notice would contravene the law of a foreign country.

Please click here for background and overview of the Exposure Draft of the Bill.

The differences between the Exposure draft and the Bill as introduced to Parliament can be summarised as follows:

New sections

  • Section 317HAA, which requires that designated communications providers must be advised that compliance with a technical assistance request is voluntary.

  • Sections 317MAA, 317TAA, 317ZA and 317ZB, which require the issuer of a technical assistance request, technical assistance notice or technical capability notice to advise the designated communications provider of its obligations arising from the request or notice.

  • Sections 317RA and 317ZAA, which set out the factors that the issuer of a technical assistance or technical capability notice must have regard to when deciding if the issuance of the notice is reasonable and proportionate. Interestingly, one of these factors requires due regard be given to "the legitimate expectations of the Australian community relating to privacy and cybersecurity." However, in relation to sections 317RA and 317ZAA:
    • no specifics are provided as to how much weight each matter will be afforded when determining whether or not a technical assistance or technical capability notice is reasonable and proportionate; and
    • the list of matters to be considered before issuing a technical assistance or technical capability notice is wide and, therefore, seems unlikely to constrain the use of the power.

  • Section 317ZB, which provides a civil liability defence to designated communications providers in circumstances where meeting the requirements of a technical assistance or technical capability notice would contravene laws outside of Australia.

  • Section 317ZFA, which creates new powers to enable a court to enforce and/or make other orders in relation to the information secrecy provisions of the Bill 317ZFA. Pursuant to this provision, the court may make orders regarding information connected to a technical assistance request or a technical assistance or technical capability notice if it is in the public interest to do so.

Amended sections

  • Section 317W describes the kind of "consultation" process that a government or law enforcement agency has to go through to serve a technical capability notice. This section is amended as follows:

    • to include a new sub-section 317W(7) providing a mechanism for the Attorney-General and the impacted designated communication provider to jointly appoint auditors to carry out an assessment of whether the intended notices would require the implementation or building of a systematic weakness or vulnerability into a form of electronic protection. This section also provides for the government to consider part or fully-funding this process. This consultation mechanism:

      • applies before the issuance of a technical capability notice which may be useful for a designated communications provider but may also constrain the ability to resist such a notice being issued to a designated communications provider;
      • does not apply to technical assistance notices; and

    • to correct the reference to delivering a technical capability notice to a “person”; this section now correctly refers to delivery of technical capability notices to a “designated communications provider.”

  • Section 317ZF, whereby auditors that may be appointed under section 317W(7) may be penalised in the event they disclose information in an unauthorised manner.

  • A catch-all provision has been inserted into section 317ZH, which provides that a technical assistance notice or technical capability notice "has no effect to the extent (if any) to which it would require a designated communications provider to do an act or thing for which a warrant or authorisation" under any law was required.

  • Section 317ZS(1)(b) is amended so that information about the number of technical assistance notices issued has been added to the matters that must be disclosed in an annual report.

Deletions

  • The Bill has removed "protecting the public revenue" from the listed acts or things set out in section 317E. As such, "protecting the public revenue" cannot be a valid reason for law enforcement or government agencies either to request or demand the help of designated communication providers.
  • The second reading of the Bill was moved on 20 September and the Bill referred to the Parliamentary Joint Committee on Intelligence and Security for review and report. Submissions close on 12 October 2018. Those who wish to make a submission are asked to contact the secretariat before 2 October 2018. Public hearings are planned for 19 October 2018.

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