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A Bill for an Act to amend the Telecommunications Act 1997, and for related purposes
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Registered 04 Dec 2019
Introduced Senate 04 Dec 2019
Table of contents.

2019

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

Telecommunications Amendment (Repairing Assistance and Access) Bill 2019

 

No.      , 2019

 

(Senator Keneally)

 

 

 

A Bill for an Act to amend the Telecommunications Act 1997, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedules............................................................................................ 2

Schedule 1—Systemic weakness or systemic vulnerability                           3

Telecommunications Act 1997                                                                                  3

Schedule 2—Limiting technical assistance requests and technical capability notices to listed acts or things                                                                                                                              5

Telecommunications Act 1997                                                                                  5

Schedule 3—Approval of technical assistance notices by the AFP Commissioner            6

Telecommunications Act 1997                                                                                  6

Schedule 4—Ombudsman’s report of results of inspection of records 7

Telecommunications Act 1997                                                                                  7

Schedule 5—Judicial agreement to notice                                                               8

Telecommunications Act 1997                                                                                  8

Schedule 6—Other amendments                                                                                 13

Telecommunications Act 1997                                                                                13

 

 


A Bill for an Act to amend the Telecommunications Act 1997, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Telecommunications Amendment (Repairing Assistance and Access) Act 2019.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedules 1 to 6.

The day after this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Systemic weakness or systemic vulnerability

  

Telecommunications Act 1997

1  Section 317B (definition of electronic protection)

Repeal the definition.

2  Section 317B (definition of systemic vulnerability)

Repeal the definition.

3  Section 317B (definition of systemic weakness)

Repeal the definition.

4  Section 317B (definition of target technology)

Repeal the definition.

5  Section 317ZG

Repeal the section, substitute:

317ZG  Designated communications provider must not be requested or required to implement or build a systemic weakness or systemic vulnerability etc.

             (1)  A technical assistance request, technical assistance notice or technical capability notice must not have the effect of:

                     (a)  requesting or requiring a designated communications provider to implement or build a systemic weakness, or a systemic vulnerability; or

                     (b)  preventing a designated communications provider from rectifying a systemic weakness, or a systemic vulnerability.

             (2)  The reference in paragraph (1)(a) to implement or build a systemic weakness, or a systemic vulnerability, includes a reference to implement or build a new decryption capability.

             (3)  The reference in paragraph (1)(a) to implement or build a systemic weakness, or a systemic vulnerability, includes a reference to one or more actions that would render systemic methods of authentication or encryption less effective.

             (4)  The reference in paragraph (1)(a) to implement or build a systemic weakness, or a systemic vulnerability, includes a reference to any act or thing that would or may create a material risk that otherwise secure information would or may in the future be accessed, used, manipulated, disclosed or otherwise compromised by an unauthorised third party.

             (5)  The reference in subsection (4) to otherwise secure information includes a reference to the information of, about or relating to any person who is not the subject, or is not communicating directly with the subject, of an investigation to which the relevant technical assistance request, technical assistance notice or technical capability notice relates.

             (6)  The reference in subsection (4) to an unauthorised third party includes a reference to any person other than:

                     (a)  the person who is the subject of, or who is a person communicating directly with the subject of, an investigation to which the relevant technical assistance request, technical assistance notice or technical capability notice relates; or

                     (b)  the person that issued, or asked the Attorney‑General to issue, the relevant technical assistance request, technical assistance notice or technical capability notice.

             (7)  Subsections (2), (3) and (4) are enacted for the avoidance of doubt.

             (8)  A technical assistance request, technical assistance notice or technical capability notice has no effect to the extent (if any) to which it would have an effect covered by paragraph (1)(a) or (b).

6  Application provision

Section 317ZG of the Telecommunications Act 1997, as amended by this Schedule, applies in relation to a technical assistance request, technical assistance notice or technical capability notice given on or after the commencement of this Schedule.

Schedule 2Limiting technical assistance requests and technical capability notices to listed acts or things

  

Telecommunications Act 1997

1  Subsection 317G(6)

Omit “that may be specified in a technical assistance request given to a designated communications provider include (but are not limited to)”, substitute “specified in a technical assistance request given to a designated communications provider must be”.

2  Subsection 317JA(10)

Omit “that may be specified in a varied technical assistance request include (but are not limited to)”, substitute “specified in a varied technical assistance request must be”.

3  Paragraph 317T(4)(c)

Repeal the paragraph, substitute:

                     (c)  consist of one or more listed acts or things (other than an act or thing covered by paragraph 317E(1)(a));

4  Subsections 317T(5) and (6)

Repeal the subsections.

Schedule 3Approval of technical assistance notices by the AFP Commissioner

  

Telecommunications Act 1997

1  After subsection 317LA(1)

Insert:

          (1A)  The AFP Commissioner must not give an approval under paragraph (1)(b) unless the AFP Commissioner is satisfied that:

                     (a)  the requirements imposed by the notice are reasonable and proportionate; and

                     (b)  compliance with the notice is:

                              (i)  practicable; and

                             (ii)  technically feasible.

Schedule 4Ombudsman’s report of results of inspection of records

  

Telecommunications Act 1997

1  Subsection 317ZRB(7)

Repeal the subsection.

2  Application provision

The repeal of subsection 317ZRB(7) of the Telecommunications Act 1997 by this Schedule applies in relation to a report received by the Home Affairs Minister on or after the commencement of the Schedule.

Schedule 5Judicial agreement to notice

  

Telecommunications Act 1997

1  Section 317B

Insert:

eligible Judge has the meaning given by section 317DA.

2  After section 317D

Insert:

317DA  Eligible judge

             (1)  In this Part:

eligible Judge means a person in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force.

Judge means a person who is a Judge of a court created by the Parliament.

             (2)  A Judge may, by writing, consent to be declared an eligible Judge under subsection (3) by the Minister.

             (3)  The Minister or the Attorney‑General may, by writing, declare Judges in relation to whom consents are in force under subsection (2) to be eligible Judges for the purposes of this Act.

             (4)  Any function or power conferred on the Judge under this Part is so conferred only in a personal capacity and not as a court or a member of a court.

             (5)  An eligible Judge has, in relation to the performance or exercise of a function or power conferred on an eligible Judge by this Part, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

             (6)  An instrument declaring a Judge to be an eligible Judge is not a legislative instrument.

3  Section 317P

Repeal the section, substitute:

317P  Decision‑making criteria

             (1)  The Director‑General of Security or the chief officer of an interception agency must not give a technical assistance notice to a designated communications provider unless:

                     (a)  the Director‑General of Security or the chief officer, as the case requires, is satisfied that:

                              (i)  the requirements imposed by the notice are reasonable and proportionate; and

                             (ii)  compliance with the notice is practicable and technically feasible; and

                     (b)  an eligible Judge has approved the giving of the notice.

Note:          See also section 317RA

             (2)  An eligible Judge must not approve the giving of the notice unless the eligible Judge is satisfied, on information given on oath or affirmation, that:

                     (a)  the designated communications provider to whom the notice is to be given can comply with the notice; and

                     (b)  the notice can validly be given under this Part; and

                     (c)  a provision of this Part does not prevent the notice from having effect; and

                     (d)  the designated communications provider has, if reasonably practicable, been consulted and given a reasonable opportunity to make submissions on whether the requirements to be imposed by the notice are reasonable and proportionate and whether compliance with the notice is practicable and technically feasible.

             (3)  If an eligible Judge refuses to approve the giving of the technical assistance notice, the eligible Judge must give written reasons for the refusal to the Director‑General or the chief officer, as the case requires.

4  Subsection 317Q(10)

Repeal the subsection, substitute:

Decision‑making criteria

           (10)  The Director‑General of Security or the chief officer of an interception agency must not vary a technical assistance notice unless:

                     (a)  the Director‑General of Security or the chief officer, as the case requires, is satisfied that:

                              (i)  the requirements imposed by the varied notice are reasonable and proportionate; and

                             (ii)  compliance with the varied notice is practicable and technically feasible; and

                     (b)  an eligible Judge has approved the variation.

Note:          See also section 317RA.

        (10A)  An eligible Judge must not approve the variation of the notice unless the eligible Judge is satisfied, on information given on oath or affirmation, that:

                     (a)  the designated communications provider to whom the notice was given can comply with the varied notice; and

                     (b)  the varied notice could validly be given under this Part; and

                     (c)  a provision of this Part does not prevent the varied notice from having effect; and

                     (d)  the designated communications provider to whom the notice was given has, if reasonably practicable, been consulted and given a reasonable opportunity to make submissions on whether the requirements to be imposed by the varied notice are reasonable and proportionate and whether compliance with the varied notice is practicable and technically feasible.

Reasons for refusal of approval by eligible Judge

        (10B)  If an eligible Judge refuses to approve the variation of the technical assistance notice, the eligible Judge must give written reasons for the refusal to the Director‑General or the chief officer, as the case requires.

5  Section 317V

Repeal the section, substitute:

317V  Decision‑making criteria

             (1)  The Attorney‑General must not give a technical capability notice to a designated communications provider unless:

                     (a)  the Attorney‑General is satisfied that:

                              (i)  the requirements imposed by the notice are reasonable and proportionate; and

                             (ii)  compliance with the notice is practicable and technically feasible; and

                     (b)  an eligible Judge has approved the giving of the notice.

Note:          See also section 317ZAA.

             (2)  An eligible Judge must not approve the giving of the notice unless the eligible Judge is satisfied, on information given on oath or affirmation, that:

                     (a)  the designated communications provider to whom the notice is to be given can comply with the notice; and

                     (b)  the notice can validly be given under this Part; and

                     (c)  a provision of this Part does not prevent the notice from having effect; and

                     (d)  the designated communications provider has, if reasonably practicable, been consulted and given a reasonable opportunity to make submissions on whether the requirements to be imposed by the notice are reasonable and proportionate and whether compliance with the notice is practicable and technically feasible.

             (3)  If an eligible Judge refuses to approve the giving of the technical capability notice, the eligible Judge must give written reasons for the refusal to the Attorney‑General.

6  Subsection 317X(4)

Repeal the subsection, substitute:

Decision‑making criteria

             (4)  The Attorney‑General must not vary a technical capability notice unless:

                     (a)  the Attorney‑General is satisfied that:

                              (i)  the requirements imposed by the varied notice are reasonable and proportionate; and

                             (ii)  compliance with the varied notice is practicable and technically feasible; and

                     (b)  an eligible Judge has approved the variation.

Note:          See also section 317ZAA.

          (4A)  An eligible Judge must not approve the variation of the notice unless the eligible Judge is satisfied, on information given on oath or affirmation, that:

                     (a)  the designated communications provider to whom the notice was given can comply with the varied notice; and

                     (b)  the varied notice could validly be given under this Part; and

                     (c)  a provision of this Part does not prevent the varied notice from having effect; and

                     (d)  the designated communications provider to whom the notice was given has, if reasonably practicable, been consulted and given a reasonable opportunity to make submissions on whether the requirements to be imposed by the varied notice are reasonable and proportionate and whether compliance with the varied notice is practicable and technically feasible.

Reasons for refusal of approval by eligible Judge

          (4B)  If an eligible Judge refuses to approve the variation of the technical capability notice, the eligible Judge must give written reasons for the refusal to the Attorney‑General.

Schedule 6Other amendments

  

Telecommunications Act 1997

1  Subparagraph 317WA(7)(a)(i)

After “section 317ZG”, insert “or section 317ZGA”.

2  After subsection 317YA(6)

Insert:

          (6A)  In carrying out an assessment under paragraph (6)(a) in relation to a technical capability notice as proposed to be varied, the assessors must:

                     (a)  consider:

                              (i)  whether the technical capability notice as proposed to be varied would contravene section 317ZG or section 317ZGA; and

                             (ii)  whether the requirements imposed by the technical capability notice as proposed to be varied are reasonable and proportionate; and

                            (iii)  whether compliance with the proposed technical capability notice as proposed to be varied is practicable; and

                            (iv)  whether compliance with the proposed technical capability notice as proposed to be varied is technically feasible; and

                             (v)  whether the proposed technical capability notice as proposed to be varied is the least intrusive measure that would be effective in achieving the legitimate objective of the proposed technical capability notice; and

                     (b)  give the greatest weight to the matter mentioned in subparagraph (a)(i).

3  After subsection 317ZF(16)

Insert:

        (16A)  For the purposes of a request made under subsection (16) to authorise disclosure, the Attorney‑General must authorise the disclosure:

                     (a)  except to the extent that the disclosure would prejudice a particular investigation or prosecution; and

                     (b)  unless the Attorney‑General determines that there are operational reasons for the disclosure not to be made.