George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

The Communications Access Co-ordinator is of course a pre-existing role, not a role newly created by this bill. The provision which the bill introduces which is relevant to the metadata retention scheme, includes proposed section 187G(2):

(2) If:

(a) the Communications Access Co-ordinator receives a comment from an enforcement agency or security authority requesting an amendment of the original plan; and

(b) the Co-ordinator considers the request to be a reasonable one;

the Co-ordinator:

(c) must request that the service provider make the amendment within 30 days … after receiving the comment or summary; and

(d) may give the service provider a copy of the comment or a summary of the comment.

There are two points to be made about the provision in its current form. First, the request must be, in the judgement of the Communications Access Co-ordinator, a reasonable comment or request. Second, the coordinator may give the service provider a copy of the comment or summary. It is permissive, not mandatory, and the effect of your amendment, would be, as I read it, to change it from being permissive to mandatory. There is no prohibition on doing this. Ordinarily, I would expect that that is what would happen, because, as I have been at pains to say, this is an industry scheme that is going to work only if there is good collaboration and cooperation between the regulatory authorities and industry. However, there are circumstances in which it may not be appropriate for the Communications Access Co-ordinator to provide that material to a telco. The obvious circumstance is where the provision of that material might disclose information of a security character which it is not appropriate be disclosed or put into the public domain.

Proposed section 187G then sets out quite a detailed schema for balancing and governing the rights of the respective parties in the event that such a request was made, to which you did not refer. In particular, proposed subsection (4) of that section provides:

(4) If the service provider indicates that it does not accept a request for an amendment of the original plan, the Communications Access Co-ordinator must:

  (a) refer the request and the service provider’s response to the ACMA—

the Australian Communications and Media authority; and—

  (b) request the ACMA to determine whether any amendment of the original plan is required.

(5)The ACMA must then:

  (a) determine in writing that no amendment of the original plan is required in response to the request for the amendment; or

  (b) if, in the opinion of the ACMA:

  (i) the request for the amendment is a reasonable one; and

  (ii) the service provider’s response to the request for the amendment is not reasonable;

  determine in writing that the original plan should be amended in a specified manner and give a copy of the determination to the service provider.

So there is a right of appeal, in effect, to the ACMA. It is not as if the Communications Access Co-ordinator may merely dictate to a service provider on the basis of an agency comment or request. If it makes a determination which the service provider objects to or considers not to be reasonable then there is an arbitration or determination at arm's length from the Communications Access Co-ordinator by the ACMA, and the ACMA must give reasons and give a copy of the determination to the service provider. I think I am right in saying, but I will check for you and confirm, that a determination by the ACMA under proposed section 187G would itself be a judicially reviewable decision. Yes, I am told that that is right. That would be a judicially reviewable decision, so one could then go to the Administrative Appeals Tribunal and one ultimately has recourse on points of law to the federal courts. So it is not as you say it is. In fact there is quite a detailed schema, as I have said, to protect the rights of the service provider in the event that such a request is given by the Communications Access Co-ordinator.