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2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
TELECOMMUNICATIONS AMENDMENT (REPAIRING ASSISTANCE AND
ACCESS) BILL 2019
EXPLANATORY MEMORANDUM
Circulated by authority of Senator the Hon. Kristina Keneally
TELECOMMUNICATIONS AMENDMENT (REPAIRING ASSISTANCE
AND ACCESS) BILL 2019
OUTLINE
The Telecommunications Amendment (Repairing Assistance and Access) Bill 2019 amends the
Telecommunications Act 1997 to conform to the bipartisan recommendations that emerged from an
inquiry by the Parliamentary Joint Committee on Intelligence and Security (PJCIS), and introduce a
judicial authorisation requirement to address concerns about the Act's compatibility with
commitments required under the United States Government's CLOUD Act.
Specifically, the provisions of the Bill will:
clarify the actions that designated communications providers must not be requested or
required to do in a technical assistance request, a technical assistance notice or a technical
capability notice;
require the AFP Commissioner to not give approval for a technical assistance notices
issued by the chief officer of an interception agency of a State or Territory unless the
Commissioner is satisfied of certain things;
remove the ability of the Minister for Home Affairs to edit and delete information in
relevant reports prepared by the Commonwealth Ombudsman; and
introduce a judicial authorisation requirement that requires an eligible judge to approve the
giving or varying of a technical assistance request, a technical assistance notice or a
technical capability notice, and for that eligible judge to be satisfied of certain things
before approving this giving or varying.
FINANCIAL IMPACT STATEMENT
These amendments will have no financial impact.
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NOTES ON INDIVIDUAL CLAUSES
Clause 1: Short Title
1. This Act is the Telecommunications Amendment (Repairing Assistance and Access)
Act 2019.
Clause 2: Commencement
2. 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.
Clause 3: Schedules
3. Each Act specified in a Schedule to this Act is amended or repealed as is set out in the
applicable items in the Schedule. Any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1--Systemic weakness or systemic vulnerability
Telecommunications Act 1997
Item 1-4 - Section 317B
4. These items repeal the definitions of election protection, systemic vulnerability,
systemic weakness, or target technology. These definitions are no longer relevant under the
proposed amendments.
Item 5 - Section 317ZG
5. This item clarifies the actions that designated communications providers must not be
requested or required to do in a technical assistance request, a technical assistance notice or a
technical capability notice.
Item 6 - Application provision
6. This item ensures that this Bill does not impact technical assistance requests, technical
assistance notices or a technical capability notices that were made prior to the
commencement of this Schedule.
Schedule 2--Limiting technical assistance requests and technical capability notices to
listed acts or things
Telecommunications Act 1997
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Item 1-3 - Subsections 317G(6) and 317JA(10) and paragraph 317T(4)(c)
7. These items repeal and substitute language in order to limit the actions required of
designation communications providers by removing the phrase "but are not limited to" from
the relevant provisions.
Item 4 - Subsections 317T(5) and (6)
8. This item repeals the subsections which would allow the Minister for Home Affairs to
determine additional acts or things that could be requested or required in a technical
capability notice.
Schedule 3--Approval of technical assistance notices by the AFP Commissioner
Telecommunications Act 1997
Item 1 - After subsection 317LA(1)
9. This item inserts a new subsection 317LA(1A) which requires the AFP Commissioner
to not give approval for a technical assistance notice issued by the chief officer of an
interception agency of a State or Territory unless the Commissioner is satisfied that the
requirements imposed by the notice are reasonable and proportionate, and that compliance
with the notice is practicable and technically feasible.
Schedule 4--Ombudsman's report of results of inspection of records
Telecommunications Act 1997
Item 1 - Subsection 317ZRB(7)
10. This item repeals the subsection which allows the Minister for Home Affairs to edit
and delete information included in reports made by the Commonwealth Ombudsman relating
to the records of relevant agencies.
Item 2 - Subsection 317ZRB(7)
11. This item ensures that this Bill does not impact reports received by the Minister for
Home Affairs prior to the commencement of this Schedule.
Schedule 5--Judicial agreement to notice
Telecommunications Act 1997
Item 1 - Section 317B
12. This item inserts a definition of eligible judge into the relevant section by reference to
section 317DA.
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Item 2 - After section 317D
13. This item creates a definition of eligible judge in section 317DA for the purposes of
sections 317P, 317Q, 317V and 317X as amended by this Bill.
Item 3 - Section 317P
14. This item inserts a safeguard by requiring that the Director-General of Security (or the
chief officer) cannot issue a technical assistance notice to a designated communications
provider unless an eligible judge has approved the giving of the notice. It also outlines a
number of matters of which an eligible judge must be satisfied before the giving of the notice
is approved.
Item 4 - Subsection 317Q(10)
15. This item inserts a safeguard by requiring that the Director-General of Security (or the
chief officer) cannot vary a technical assistance notice to a designated communications
provider unless an eligible judge has approved the giving of the notice. It also outlines a
number of matters of which an eligible judge must be satisfied before the varying of the
notice is approved.
Item 5 - Section 317V
16. This item amends the Act by inserting the requirement that the Director-General of
Security (or the chief officer) cannot issue a technical assistance notice to a designated
communications provider unless an eligible judge has approved the giving of the notice. It
also outlines a number of matters of which an eligible judge must be satisfied before the
giving of the notice is approved.
Item 6 - Subsection 317X(4)
17. This item inserts a requirement that the Director-General of Security (or the chief
officer) cannot vary a technical assistance notice to a designated communications provider
unless an eligible judge has approved the giving of the notice. It also adds a new subsection
317X(4A) that outlines a number of matters of which an eligible judge must be satisfied
before they approve the varying of the notice.
Schedule 6--Other amendments
Telecommunications Act 1997
Item 1 - Subparagraph 317WA(7)(a)(i)
18. This item includes reference to section 317ZGA in the subparagraph.
Item 2 - After subsection 317YA(6)
19. This item inserts new subsection 317YA (6A) which lists a number of matters o
which the assessors must consider when assessing whether a proposed technical capability
notice should be varied. This provides that proposed variations to technical capability notices
are assessed in the same way as proposed technical capability notices.
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Item 3 - After subsection 317ZF(16)
20. This item inserts new subsection 317ZF(16A) which would require the Attorney-
General to authorise the designated communications provider to disclose specified technical
capability notice information, except to the extent that disclosure would prejudice a particular
investigation or prosecution and unless the Attorney-General determines that there are
operational reasons for the disclosure not to be made, and pursuant to conditions of the
authorisation.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
TELECOMMUNICATIONS AMENDMENT (REPAIRING ASSISTANCE AND
ACCESS) BILL 2019
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Telecommunications Amendment (Repairing Assistance and Access) Bill 2019 amends
the Telecommunications Act 1997 to conform to the bipartisan recommendations that
emerged from an inquiry by the Parliamentary Committee on Intelligence and Security
(PJCIS), and introduce a judicial authorisation requirement to address concerns about the
Act's compatibility with commitments required under the United States Government's
CLOUD Act.
Specifically, the provisions of the Bill will:
clarify the actions that designated communications providers must not be requested
or required to do in a technical assistance request, a technical assistance notice or a
technical capability notice;
require the AFP Commissioner to not give approval for a technical assistance
notices issued by the chief officer of an interception agency of a State or Territory
unless the Commissioner is satisfied of certain things;
remove the ability of the Minister for Home Affairs to edit and delete information
in relevant reports prepared by the Commonwealth Ombudsman; and
introduce a judicial authorisation requirement that requires an eligible judge to
approve the giving or varying of a technical assistance request, a technical
assistance notice or a technical capability notice, and for that eligible judge to be
satisfied of certain things before approving this giving or varying.
Human rights implications
The provisions in this Bill seek to increase transparency and oversight of the Assistance and
Access laws. Primarily, they both clarify and limit the actions that an individual or company
would be requested or required to do under the law, and introduce a judicial authorisation
requirements that serves to increase the scrutiny of the notices when they are made or varied.
As such, this Bill has a positive impact on human rights, and does not create human rights
issues.
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Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
Senator the Hon. Kristina Keneally
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