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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
TELECOMMUNICATIONS AND OTHER LEGISLATION AMENDMENT BILL
2016
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments
to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, Senator the Honourable George Brandis QC)
AMENDMENTS TO THE TELECOMMUNICATIONS AND OTHER
LEGISLATION AMENDMENT BILL 2016
(Government)
GENERAL OUTLINE
1. The Telecommunications and Other Legislation Amendment Bill 2016 (the Bill) was
introduced into the Senate on 9 November 2016, and referred to the Parliamentary Joint
Committee on Intelligence and Security (the Committee) for inquiry. The Committee tabled
its Advisory report on the Telecommunications and Other Legislation Amendment Bill 2016
(Advisory Report) on 30 June 2017.
2. The Committee considered that protecting telecommunications infrastructure is an
important component in ensuring Australia's broader national security, and recommended
that, subject to its recommendations being accepted, the Bill be passed.
3. The Government will move a number of amendments to the Bill to implement the
recommendations made by the Committee.
4. These amendments are primarily aimed at strengthening the proposed security
framework by providing greater clarity and certainty for industry, encouraging
information-sharing, and enhancing the transparency of the regime's operation.
5. Amendments to the Bill amend the Telecommunications Act.
FINANCIAL IMPACT
6. The amendments to the Bill do not have a financial impact.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Telecommunications and Other Legislation Amendment Bill 2016
1. The amendments to the Bill are 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 Amendments
2. The proposed amendments to the Telecommunications and Other Legislation
Amendment Bill 2016 (the Bill) implement recommendations of the Parliamentary Joint
Committee on Intelligence and Security's (the Committee) Advisory report on the
Telecommunications and Other Legislation Amendment Bill 2016, tabled in Parliament on
30 June 2017.
3. The proposed amendments aim to strengthen the reforms introduced by the Bill by
providing greater clarity and certainty for industry, encouraging information-sharing by the
Government, and enhancing the transparency of the regime's operation. These include
amendments to:
a. clarify that subsection 313(1A) of the Bill does not apply to broadcasters that
are not carriage service providers under section 93 of the
Telecommunications Act 1997 (Telecommunications Act)
(Recommendation 2)
b. section 314A of the Bill to outline the process for a carrier or nominated
carriage service provider (C/NCSP) to apply for an exemption from the
notification requirements for certain types of changes (Recommendation 5)
c. amend subsection 315H(1) of the Bill to clarify, for the avoidance of doubt,
that existing legislative privacy obligations continue to apply
(Recommendation 6)
d. prescribe specific annual reporting requirements on the operation of the Bill
under section 315J (Recommendation 7)
e. subsection 314A(2) to specify that a C/NCSP entering into a new or changed
offshoring arrangement in relation to information retained under subsection
187A(1) of the Telecommunications (Interception and Access Act) 1979 is the
kind of change to a telecommunications service or system that could trigger
notification requirements (Recommendation 11), and
f. require the Committee to commence a review of the operation of the
provisions of the Bill within three years of the Bill receiving Royal Assent
(Recommendation 12).
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4. The Government will also move amendments to:
a. enable the Communications Access Co-ordinator (CAC) to issue 'class
exemptions' specifying changes that will not be subject to notification
requirements in section 314A of the Bill
b. specify that applications may be made to the Administrative Appeals Tribunal
(AAT) for review of a decision to refuse an application for exemption for
notification requirements
c. allow an exemption made by the CAC to specify the period for which it
remains in force, including provision for the exemption to cease if the
C/NCSP breaches a condition, and
d. allow an exemption made by the CAC to be made subject to conditions
specified within the exemption, noting the exemption ceases to be in force if
the C/NCSP breaches a condition.
Human rights implications
5. The Government amendments to the Bill engage the following rights as set out in
the International Covenant on Civil and Political Rights (ICCPR):
the right to protection against arbitrary and unlawful interferences with privacy in
Article 17.
6. To the extent that the proposed Government amendments to the Bill do not displace or
substantively modify foundational measures contained in the Bill, the rights-based
implications of those measures are comprehensively addressed in the
Explanatory Memorandum tabled in Parliament on 9 November 2016. An analysis of the
human rights engaged by the proposed Government amendments is outlined below.
Article 17 of the ICCPR--right to protection against arbitrary and unlawful interferences
with privacy
7. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or
unlawful interference with his or her privacy, family, home or correspondence and that
everyone has the right to the protection of the law against such interference or attacks. For
interference with privacy not to be arbitrary it must be in accordance with the provisions,
aims and objectives of the ICCPR and should be reasonable in the particular circumstances.
Reasonableness, in this context, incorporates notions of proportionality to the end sought and
necessity in the circumstances.
8. The following amendments engage the right to protection against arbitrary and
unlawful interferences with privacy under Article 17 of the ICCPR:
the clarification of section 315H(1); and
the inclusion of new or amended telecommunications metadata offshoring
arrangements as a kind of change that could trigger the notification requirement (that
is, notification of a change to enter into an arrangement to have all or some
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information, retained under subsection 187A(1) of the Telecommunications
(Interception and Access) Act 1979, kept outside Australia).
Clarification of section 315H
9. The amendment to insert a note following subsection 315H(1) of the Bill gives effect
to Recommendation 6 of the Advisory Report. The amendment clarifies, for the avoidance of
doubt, that existing legislative privacy obligations continue to apply. The specific disclosures
authorised by subsection 315H(1) are an authorisation for the purposes of the
Privacy Act 1988.
10. Australian Government agencies subject to the Privacy Act are required to protect,
use, disclose and destroy personal information in accordance with that Act. The amendment
protects the right to privacy as it confirms the continued application of the Privacy Act to
personal information obtained under the legislation.
C/NCSP notification of new or amended offshoring arrangements
11. Recommendation 11 of the Advisory Report proposed that the Bill be amended to
ensure that a C/NCSP entering into a new or changed telecommunications metadata
offshoring arrangement is an example of a kind of change to a telecommunications service or
system that could trigger the notification requirement under section 314A. Paragraph
314A(2)(f) has been inserted to specify that the notification requirements in section 314A
apply to entry into an arrangement to have all or some information retained under subsection
187A(1) of the Telecommunications (Interception and Access) Act 1979, kept outside
Australia.
12. This amendment protects the right to privacy as it ensures greater scrutiny of
arrangements for storing and securing personal data that may be retained under a providers
obligations under subsection 187A(1) of the Telecommunications (Interception and
Access)Act 1979. The amendment will provide greater visibility to Government of
telecommunications data storage arrangements, in particular, offshore storage arrangements.
The amendment provides opportunities for Government to work with industry to ensure that
effective security mitigation strategies are in place. In accordance with data retention laws,
providers are already required to protect and encrypt this data.
Committee reviews
13. Recommendation 12 of the Advisory Report proposed that the Committee undertake a
review of the operation, effectiveness and implications of the reforms within three years of
the Bill receiving Royal Assent. The Bill was amended to specify that the review must start
on or before the second anniversary of the commencement of the reforms.
14. Consistent with other reviews of the Committee, the amendments do not prescribe
specific matters for the Committee's review. However, the Committee noted in its Advisory
Report that the review should include the security of critical and sensitive data. The prospect
of review supports ensuring accountability for compliance with applicable privacy
protections.
Conclusion
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15. The amendments to the Bill are compatible with human rights because they further
protect the right to privacy by increasing safeguards around the use and storage of private
information.
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NOTES ON AMENDMENTS
Schedule 1 amendments
Item 8--broadcasting services
16. This amends item 8 by inserting a second note after subsection 313(1A). 'Note 2'
clarifies that subsection 313(1A) of the Bill does not apply to a person who uses a carriage
service to supply various kinds of broadcasting services, who is not a carriage service
provider in accordance with section 87 or section 93 of the Telecommunications Act 1997
(Telecommunications Act).
17. The item gives effect to Recommendation 2 of the Parliamentary Joint Committee on
Intelligence and Security's (the Committee's) Advisory Report on the Telecommunications
and Other Legislation Amendment Bill 2016 (Advisory Report). The intention of the
amendment is to clarify that in circumstances where a broadcaster is exempt from being
treated as a carriage service provider under section 93 of the Telecommunications Act, they
are also not intended to be subject to the obligations within the Bill.
18. The amendment also re-names the existing note in subsection 313(1A) as 'Note 1',
following the insertion of 'Note 2'.
Item 12--kinds of changes to notify
19. This amends item 12 by inserting paragraph 314A(2)(f). This provision provides that
a carrier or a nominated carriage service provider (C/NCSP) entering into a new or changed
offshoring arrangement in relation to information retained under subsection 187A(1) of
the Telecommunications (Interception and Access) Act 1979 is an example of a kind of
change to a telecommunications service or a telecommunications system that could trigger
the notification requirements under that section.
20. Paragraph 314A(2)(f) is intended to give effect to Recommendation 11 of
the Advisory Report, which recommended a mechanism for the Government to be informed
of changes to 'new or amended offshoring arrangements' relating to information retained to
comply with Australia's data retention regime.
21. This requirement does not prohibit C/NCSPs from entering into arrangements to have
information or documents kept offshore. However, where a C/NCSP does elect to offshore
information it retains to comply with the data retention regime, it allows the Government to
assess the level and nature of risks associated with that decision, and propose risk mitigation
strategies where appropriate.
Item 12--notification exemptions
22. This amends item 12 by inserting a 'class exemption' provision in new
subsections 314A(2A) and (2B) and defining an application process for notification
exemptions in 314A(5A) and 314A(5B).
Class exemptions
23. Subsection 314A(2A) provides that the notification obligation in subsection 314A(1)
does not apply to changes to a telecommunications service or a telecommunications system
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that are identified in a determination made by the Communications Access Co-ordinator
(CAC) in accordance with subsection 314A(2B).
24. Subsection 314A(2B) supports this process by providing that the CAC may,
by legislative instrument, make a determination for the purposes of subsection 314A(2A).
The note following this subsection ensures that subsection 33(3) of the
Acts Interpretation Act 1901 applies with regard to variation and revocation of such
determinations.
25. These Government amendments ensure that the CAC can specify types of changes
that will not be subject to the notification requirement, without a requirement to identify a
specific C/NCSP.
Application for exemption
26. Subsection 314A(5A) provides that the CAC may grant an exemption under
subsections 314A(4) or (5), either on the CAC's initiative or on written application by
a C/NCSP.
27. Paragraphs 314A(5B)(a) and (b) require the CAC, upon receiving an application in
accordance with subsection 314(5A), and within 60 days of receiving the application, to
either give the C/NCSP that exemption under subsection 314A(4) or 314A(5), or to refuse the
application in writing. Paragraph 314A(5B)(b) includes a requirement for the CAC to set out
the reasons for the refusal. The intention of the amendment is to provide a framework for
C/NCSPs to request partial or complete exemption from the operation of section 314A for
certain types of changes. This gives effect to Recommendation 5 of the Advisory Report.
Administrative Review
28. The insertion of subsection 314A(5C) allows applications to be made to the
Administrative Appeals Tribunal for review of a decision of the CAC under paragraph
(5B)(b) to refuse an application.
29. This will ensure that administrative decisions with respect to applications for
exemptions from the notification requirement are correct and preferable.
Duration and conditions
30. Subsection 314A(6A) provides that an exemption made under subsection 314A(4) or
(5) may specify the period during which it remains in force. The paragraph also provides that
the exemption remains in force for that period unless it is revoked earlier, or ceases to be in
force as provided by new subsection 314A(6B).
31. Subsection 314A(6B) enables the CAC to specify conditions on an exemption made
under subsection 314A(4) or (5). The paragraph also provides that such an exemption ceases
to be in force if the C/NCSP breaches a condition.
Item 13--application of existing legislative privacy obligations
32. This inserts a note after subsection 315H(1) of the Bill to clarify, for the avoidance of
doubt, that existing legislative privacy obligations under the Privacy Act continue to apply.
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33. The amendment is intended to give effect to Recommendation 6 of the Advisory
Report and clarifies that the strong protections in place to safeguard personal information
continue to apply to the operation of the reforms.
Item 13--annual reporting requirements
34. This amends item 13 to insert subsection 315J(1A) after subsection 315J(1).
Subsection 315J(1A) prescribes specific reporting obligations for the Secretary of the
Attorney-General's Department to include in his or her annual report on the operation of the
reforms.
35. These Government amendments give effect to Recommendation 7 of
the Advisory Report. The Committee noted that the requirement to produce an annual report
was intended to support transparency and accountability of the reforms.
Attorney-General's directions
36. Paragraph 315J(1A)(a) requires the Secretary to report on the number of directions the
Attorney-General gave under subsection 315A(1).
37. Paragraph 315J(1A)(b) requires the Secretary to report on the number of directions
the Attorney-General gave under subsection 315B(2).
38. Reporting on the Attorney-General's exercise of his or her direction-making power is
intended to promote transparency and accountability in the operation of those powers.
CAC notifications and response timeframes
39. Subparagraphs 315J(1A)(c)(i) to (iii) require the Secretary to report information
relating to notifications received by the CAC in accordance with section 314A. This includes:
a. the number of notifications the CAC received under subsection 314A(3)
b. in response to such notifications, the average number of days taken by the
CAC to give a notice under subsection 314B(3) or (5), and
c. in response to such notifications, the percentage of notices given by the CAC
under subsection 314B(3) or (5), within the period under subsection 314B(6).
Applications for exemptions from notification
40. Subparagraphs 315J(1A)(d)(i) to (iii) require the Secretary to report information
relating to notifications received by the CAC under subsection 314A(5A). This includes:
a. the number of applications the CAC receives under subsection 314A(5A)
b. in response to such notifications, the average number of days taken by the
CAC to give a notice under either subsection 314A(4) or (5) or
paragraph 314A(5B)(b) when responding to an application under subsection
314A(5A), and
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c. in response to such notifications, the percentage of notices given by the CAC
under subsection 314A(4) or (5) or paragraph 314A(5B)(b), within the period
under subsection 314A(5B).
Security capability plans
41. Subparagraphs 315J(1A)(e)(i) to (iii) require the Secretary to report information
relating to security capability plans (SCPs). This includes the:
d. total number of SCPs received under subsection 314C(1)
e. average CAC response time to give a notice under subsection 314D(3) or (5),
in days, and
f. percentage of notices given by the CAC under subsection 314D(3) or (5),
within the period under subsection 314D(6).
Secretary's information-gathering powers
42. Paragraph 315J(1A)(f) requires the Secretary to report on the number of notices
the Secretary gave under subsection 315C(2).
43. Reporting on the exercise of information-gathering powers is intended to promote
transparency and accountability in the operation of those powers.
Information sharing arrangements
44. In addition to reporting on the activities of the Attorney-General and the CAC in the
reform, paragraph 315J(1A)(g) requires the Secretary to report on the details of the
information sharing arrangements between the Commonwealth and industry on the reforms.
Feedback, complaints, trends and issues
45. Paragraph 315J(1A)(h) requires the Secretary to report a summary of any feedback or
complaints made in relation to the reforms.
46. Paragraph 315J(1A)(i) requires the Secretary to report on any trends or issues in the
matters covered by paragraphs 315J(1A)(a) to (h).
Item 13--Parliamentary review
47. This amends item 13 to insert section 315K after Division 8 of the Bill.
48. Subsection 315K(1) requires the Committee to review the operation of the reforms.
Paragraph 315K(2)(a) provides that the review must start on or before the second anniversary
of the commencement of this section, while paragraph 315K(2)(b) requires the review to
conclude on or before the third anniversary of the commencement of this section. Schedule 1
is intended to commence on the day after the end of the period of 12 months, beginning on
the day the Act receives Royal Assent.
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49. Subsection 315K(3) requires the Committee to give the Attorney-General a written
report of the review. This requirement is not intended to prevent the Chair of the Committee
from tabling that report in Parliament.
50. The amendments do not prescribe matters for review to ensure the Committee has
sufficient flexibility to explore the reforms in future contexts and as new threats,
vulnerabilities and risks may emerge. This is consistent with other reviews to be conducted
by the Committee, for example, the review of the data retention regime in accordance with
section 187N of the Telecommunications (Interception and Access) Act 1979.
51. This Government amendment gives effect to Recommendation 12 of
the Advisory Report. The amendment requires the Committee to review the operation,
effectiveness and implications of the provisions in the reform.
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