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This is a Bill, not an Act. For current law, see the Acts databases.
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
No. , 2019
Telecommunications Amendment (Repairing Assistance and Access)
Bill 2019
i
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
No. , 2019
Telecommunications Amendment (Repairing Assistance and Access)
Bill 2019
1
A Bill for an Act to amend the
Telecommunications
1
Act 1997
, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the
Telecommunications Amendment (Repairing
5
Assistance and Access) Act 2019
.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Telecommunications Amendment (Repairing Assistance and Access)
Bill 2019
No. , 2019
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
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Systemic weakness or systemic vulnerability
Schedule 1
No. , 2019
Telecommunications Amendment (Repairing Assistance and Access)
Bill 2019
3
Schedule 1--Systemic weakness or systemic
1
vulnerability
2
3
Telecommunications Act 1997
4
1 Section 317B (definition of
electronic protection
)
5
Repeal the definition.
6
2 Section 317B (definition of
systemic vulnerability
)
7
Repeal the definition.
8
3 Section 317B (definition of
systemic weakness
)
9
Repeal the definition.
10
4 Section 317B (definition of
target technology
)
11
Repeal the definition.
12
5 Section 317ZG
13
Repeal the section, substitute:
14
317ZG Designated communications provider must not be requested
15
or required to implement or build a systemic weakness or
16
systemic vulnerability etc.
17
(1) A technical assistance request, technical assistance notice or
18
technical capability notice must not have the effect of:
19
(a) requesting or requiring a designated communications
20
provider to implement or build a systemic weakness, or a
21
systemic vulnerability; or
22
(b) preventing a designated communications provider from
23
rectifying a systemic weakness, or a systemic vulnerability.
24
(2) The reference in paragraph (1)(a) to implement or build a systemic
25
weakness, or a systemic vulnerability, includes a reference to
26
implement or build a new decryption capability.
27
Schedule 1
Systemic weakness or systemic vulnerability
4
Telecommunications Amendment (Repairing Assistance and Access)
Bill 2019
No. , 2019
(3) The reference in paragraph (1)(a) to implement or build a systemic
1
weakness, or a systemic vulnerability, includes a reference to one
2
or more actions that would render systemic methods of
3
authentication or encryption less effective.
4
(4) The reference in paragraph (1)(a) to implement or build a systemic
5
weakness, or a systemic vulnerability, includes a reference to any
6
act or thing that would or may create a material risk that otherwise
7
secure information would or may in the future be accessed, used,
8
manipulated, disclosed or otherwise compromised by an
9
unauthorised third party.
10
(5) The reference in subsection (4) to otherwise secure information
11
includes a reference to the information of, about or relating to any
12
person who is not the subject, or is not communicating directly
13
with the subject, of an investigation to which the relevant technical
14
assistance request, technical assistance notice or technical
15
capability notice relates.
16
(6) The reference in subsection (4) to an unauthorised third party
17
includes a reference to any person other than:
18
(a) the person who is the subject of, or who is a person
19
communicating directly with the subject of, an investigation
20
to which the relevant technical assistance request, technical
21
assistance notice or technical capability notice relates; or
22
(b) the person that issued, or asked the Attorney-General to
23
issue, the relevant technical assistance request, technical
24
assistance notice or technical capability notice.
25
(7) Subsections (2), (3) and (4) are enacted for the avoidance of doubt.
26
(8) A technical assistance request, technical assistance notice or
27
technical capability notice has no effect to the extent (if any) to
28
which it would have an effect covered by paragraph (1)(a) or (b).
29
6 Application provision
30
Section 317ZG of the
Telecommunications Act 1997
, as amended by
31
this Schedule, applies in relation to a technical assistance request,
32
technical assistance notice or technical capability notice given on or
33
after the commencement of this Schedule.
34
Limiting technical assistance requests and technical capability notices to listed acts or
things
Schedule 2
No. , 2019
Telecommunications Amendment (Repairing Assistance and Access)
Bill 2019
5
Schedule 2--Limiting technical assistance
1
requests and technical capability
2
notices to listed acts or things
3
4
Telecommunications Act 1997
5
1 Subsection 317G(6)
6
Omit "that may be specified in a technical assistance request given to a
7
designated communications provider include (but are not limited to)",
8
substitute "specified in a technical assistance request given to a
9
designated communications provider must be".
10
2 Subsection 317JA(10)
11
Omit "that may be specified in a varied technical assistance request
12
include (but are not limited to)", substitute "specified in a varied
13
technical assistance request must be".
14
3 Paragraph 317T(4)(c)
15
Repeal the paragraph, substitute:
16
(c) consist of one or more listed acts or things (other than an act
17
or thing covered by paragraph 317E(1)(a));
18
4 Subsections 317T(5) and (6)
19
Repeal the subsections.
20
Schedule 3
Approval of technical assistance notices by the AFP Commissioner
6
Telecommunications Amendment (Repairing Assistance and Access)
Bill 2019
No. , 2019
Schedule 3--Approval of technical assistance
1
notices by the AFP Commissioner
2
3
Telecommunications Act 1997
4
1 After subsection 317LA(1)
5
Insert:
6
(1A) The AFP Commissioner must not give an approval under
7
paragraph (1)(b) unless the AFP Commissioner is satisfied that:
8
(a) the requirements imposed by the notice are reasonable and
9
proportionate; and
10
(b) compliance with the notice is:
11
(i) practicable; and
12
(ii) technically feasible.
13
Ombudsman's report of results of inspection of records
Schedule 4
No. , 2019
Telecommunications Amendment (Repairing Assistance and Access)
Bill 2019
7
Schedule 4--Ombudsman's report of results
1
of inspection of records
2
3
Telecommunications Act 1997
4
1 Subsection 317ZRB(7)
5
Repeal the subsection.
6
2 Application provision
7
The repeal of subsection 317ZRB(7) of the
Telecommunications Act
8
1997
by this Schedule applies in relation to a report received by the
9
Home Affairs Minister on or after the commencement of the Schedule.
10
Schedule 5
Judicial agreement to notice
8
Telecommunications Amendment (Repairing Assistance and Access)
Bill 2019
No. , 2019
Schedule 5--Judicial agreement to notice
1
2
Telecommunications Act 1997
3
1 Section 317B
4
Insert:
5
eligible Judge
has the meaning given by section 317DA.
6
2 After section 317D
7
Insert:
8
317DA Eligible judge
9
(1) In this Part:
10
eligible Judge
means a person in relation to whom a consent under
11
subsection (2) and a declaration under subsection (3) are in force.
12
Judge
means a person who is a Judge of a court created by the
13
Parliament.
14
(2) A Judge may, by writing, consent to be declared an eligible Judge
15
under subsection (3) by the Minister.
16
(3) The Minister or the Attorney-General may, by writing, declare
17
Judges in relation to whom consents are in force under
18
subsection (2) to be eligible Judges for the purposes of this Act.
19
(4) Any function or power conferred on the Judge under this Part is so
20
conferred only in a personal capacity and not as a court or a
21
member of a court.
22
(5) An eligible Judge has, in relation to the performance or exercise of
23
a function or power conferred on an eligible Judge by this Part, the
24
same protection and immunity as a Justice of the High Court has in
25
relation to proceedings in the High Court.
26
(6) An instrument declaring a Judge to be an eligible Judge is not a
27
legislative instrument.
28
Judicial agreement to notice
Schedule 5
No. , 2019
Telecommunications Amendment (Repairing Assistance and Access)
Bill 2019
9
3 Section 317P
1
Repeal the section, substitute:
2
317P Decision-making criteria
3
(1) The Director-General of Security or the chief officer of an
4
interception agency must not give a technical assistance notice to a
5
designated communications provider unless:
6
(a) the Director-General of Security or the chief officer, as the
7
case requires, is satisfied that:
8
(i) the requirements imposed by the notice are reasonable
9
and proportionate; and
10
(ii) compliance with the notice is practicable and technically
11
feasible; and
12
(b) an eligible Judge has approved the giving of the notice.
13
Note:
See also section 317RA
14
(2) An eligible Judge must not approve the giving of the notice unless
15
the eligible Judge is satisfied, on information given on oath or
16
affirmation, that:
17
(a) the designated communications provider to whom the notice
18
is to be given can comply with the notice; and
19
(b) the notice can validly be given under this Part; and
20
(c) a provision of this Part does not prevent the notice from
21
having effect; and
22
(d) the designated communications provider has, if reasonably
23
practicable, been consulted and given a reasonable
24
opportunity to make submissions on whether the
25
requirements to be imposed by the notice are reasonable and
26
proportionate and whether compliance with the notice is
27
practicable and technically feasible.
28
(3) If an eligible Judge refuses to approve the giving of the technical
29
assistance notice, the eligible Judge must give written reasons for
30
the refusal to the Director-General or the chief officer, as the case
31
requires.
32
4 Subsection 317Q(10)
33
Repeal the subsection, substitute:
34
Schedule 5
Judicial agreement to notice
10
Telecommunications Amendment (Repairing Assistance and Access)
Bill 2019
No. , 2019
Decision-making criteria
1
(10) The Director-General of Security or the chief officer of an
2
interception agency must not vary a technical assistance notice
3
unless:
4
(a) the Director-General of Security or the chief officer, as the
5
case requires, is satisfied that:
6
(i) the requirements imposed by the varied notice are
7
reasonable and proportionate; and
8
(ii) compliance with the varied notice is practicable and
9
technically feasible; and
10
(b) an eligible Judge has approved the variation.
11
Note:
See also section 317RA.
12
(10A) An eligible Judge must not approve the variation of the notice
13
unless the eligible Judge is satisfied, on information given on oath
14
or affirmation, that:
15
(a) the designated communications provider to whom the notice
16
was given can comply with the varied notice; and
17
(b) the varied notice could validly be given under this Part; and
18
(c) a provision of this Part does not prevent the varied notice
19
from having effect; and
20
(d) the designated communications provider to whom the notice
21
was given has, if reasonably practicable, been consulted and
22
given a reasonable opportunity to make submissions on
23
whether the requirements to be imposed by the varied notice
24
are reasonable and proportionate and whether compliance
25
with the varied notice is practicable and technically feasible.
26
Reasons for refusal of approval by eligible Judge
27
(10B) If an eligible Judge refuses to approve the variation of the technical
28
assistance notice, the eligible Judge must give written reasons for
29
the refusal to the Director-General or the chief officer, as the case
30
requires.
31
5 Section 317V
32
Repeal the section, substitute:
33
Judicial agreement to notice
Schedule 5
No. , 2019
Telecommunications Amendment (Repairing Assistance and Access)
Bill 2019
11
317V Decision-making criteria
1
(1) The Attorney-General must not give a technical capability notice to
2
a designated communications provider unless:
3
(a) the Attorney-General is satisfied that:
4
(i) the requirements imposed by the notice are reasonable
5
and proportionate; and
6
(ii) compliance with the notice is practicable and technically
7
feasible; and
8
(b) an eligible Judge has approved the giving of the notice.
9
Note:
See also section 317ZAA.
10
(2) An eligible Judge must not approve the giving of the notice unless
11
the eligible Judge is satisfied, on information given on oath or
12
affirmation, that:
13
(a) the designated communications provider to whom the notice
14
is to be given can comply with the notice; and
15
(b) the notice can validly be given under this Part; and
16
(c) a provision of this Part does not prevent the notice from
17
having effect; and
18
(d) the designated communications provider has, if reasonably
19
practicable, been consulted and given a reasonable
20
opportunity to make submissions on whether the
21
requirements to be imposed by the notice are reasonable and
22
proportionate and whether compliance with the notice is
23
practicable and technically feasible.
24
(3) If an eligible Judge refuses to approve the giving of the technical
25
capability notice, the eligible Judge must give written reasons for
26
the refusal to the Attorney-General.
27
6 Subsection 317X(4)
28
Repeal the subsection, substitute:
29
Decision-making criteria
30
(4) The Attorney-General must not vary a technical capability notice
31
unless:
32
(a) the Attorney-General is satisfied that:
33
Schedule 5
Judicial agreement to notice
12
Telecommunications Amendment (Repairing Assistance and Access)
Bill 2019
No. , 2019
(i) the requirements imposed by the varied notice are
1
reasonable and proportionate; and
2
(ii) compliance with the varied notice is practicable and
3
technically feasible; and
4
(b) an eligible Judge has approved the variation.
5
Note:
See also section 317ZAA.
6
(4A) An eligible Judge must not approve the variation of the notice
7
unless the eligible Judge is satisfied, on information given on oath
8
or affirmation, that:
9
(a) the designated communications provider to whom the notice
10
was given can comply with the varied notice; and
11
(b) the varied notice could validly be given under this Part; and
12
(c) a provision of this Part does not prevent the varied notice
13
from having effect; and
14
(d) the designated communications provider to whom the notice
15
was given has, if reasonably practicable, been consulted and
16
given a reasonable opportunity to make submissions on
17
whether the requirements to be imposed by the varied notice
18
are reasonable and proportionate and whether compliance
19
with the varied notice is practicable and technically feasible.
20
Reasons for refusal of approval by eligible Judge
21
(4B) If an eligible Judge refuses to approve the variation of the technical
22
capability notice, the eligible Judge must give written reasons for
23
the refusal to the Attorney-General.
24
Other amendments
Schedule 6
No. , 2019
Telecommunications Amendment (Repairing Assistance and Access)
Bill 2019
13
Schedule 6--Other amendments
1
2
Telecommunications Act 1997
3
1 Subparagraph 317WA(7)(a)(i)
4
After "section 317ZG", insert "or section 317ZGA".
5
2 After subsection 317YA(6)
6
Insert:
7
(6A) In carrying out an assessment under paragraph (6)(a) in relation to
8
a technical capability notice as proposed to be varied, the assessors
9
must:
10
(a) consider:
11
(i) whether the technical capability notice as proposed to be
12
varied would contravene section 317ZG or
13
section 317ZGA; and
14
(ii) whether the requirements imposed by the technical
15
capability notice as proposed to be varied are reasonable
16
and proportionate; and
17
(iii) whether compliance with the proposed technical
18
capability notice as proposed to be varied is practicable;
19
and
20
(iv) whether compliance with the proposed technical
21
capability notice as proposed to be varied is technically
22
feasible; and
23
(v) whether the proposed technical capability notice as
24
proposed to be varied is the least intrusive measure that
25
would be effective in achieving the legitimate objective
26
of the proposed technical capability notice; and
27
(b) give the greatest weight to the matter mentioned in
28
subparagraph (a)(i).
29
3 After subsection 317ZF(16)
30
Insert:
31
Schedule 6
Other amendments
14
Telecommunications Amendment (Repairing Assistance and Access)
Bill 2019
No. , 2019
(16A) For the purposes of a request made under subsection (16) to
1
authorise disclosure, the Attorney-General must authorise the
2
disclosure:
3
(a) except to the extent that the disclosure would prejudice a
4
particular investigation or prosecution; and
5
(b) unless the Attorney-General determines that there are
6
operational reasons for the disclosure not to be made.
7