Thursday, 14 February 2019
Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019; In Committee
The government opposes the opposition's amendments for the following reasons. First, the amendments moved by the opposition propose to delete the definition of 'systemic weakness' from section 317B and leave that term undefined. These amendments also propose to rewrite the prohibition in section 317ZG. The amendment version of section 317ZG removes references to the term 'electronic protection'. This term anchors the current prohibition by explaining what the powers are prohibited from weakening. Electronic protection includes things such as encryption and also authentication. Without reference to electronic protection, it is unclear what section 317ZG prohibits from being weakened. In one instance, for example, these amendments replace 'electronic protection' with 'systemic methods of authentication or encryption'. This includes a narrower set of things than the previous language.
The second reason is that these amendments would also change the legal standard required before the prohibition becomes operative from 'likely' to 'may'. This creates material risk to information security. This standard is too high to be practicable, as it concerns a question of future possibilities. When explaining what is otherwise secure information, these amendments refer to persons other than the person communicating directly with the target person. This concept fails to consider contemporary communication styles, such as forms and broadcast platforms, wherein a communication may not be directly communicated to any person or persons.
Third, the government opposes the opposition's amendments because these amendments refer to an unauthorised third party in order to explain when otherwise secure information has been compromised. This description provides only that the person who is communicating directly and that the interception agency using the power are not unauthorised third parties. We believe this is too narrow. Under this construction, telecommunications companies would become unauthorised third parties.