Thursday, 14 February 2019
Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019; In Committee
The government oppose this amendment, and I would just like to detail why. There are numerous reasons why we oppose this amendment. Firstly, in response to recommendation 10, the government amended section 317E to ensure the listed acts or things are exhaustive for compulsory industry assistance measures. To balance this amendment against the legislative intention of keeping powers current with new technological developments, it was necessary to add a new item to the list of acts or things.
Section 317E(da) allows the industry assistance powers to be used in facilitation of an activity conducted under a warrant or authorisation under a law of the Commonwealth, a state or a territory or the effective receipt of information in connection with a warrant or authorisation. The introduction of section 317E(da) ensures that interception agencies are able to use the industry assistance measures as intended to give effect to a warrant or to authorisation. This is an appropriate addition as it will only authorise activities that are immediately incidental to doing a thing that has been approved pursuant to an underlying authority, subject to existing safeguards and thresholds, and that also, of course, includes judicial approval. Section 317E(da) will also ensure that the utility of the industry assistance measures continue to be relevant for law enforcement and also, of course, for security agency warrants, which continue to be updated and fitted to technological developments.
The aim of keeping legislation fit for purpose as a regulated industry evolves is genuine and legitimate, particularly when seeking assistance from an innovative and fluid sector such as the communications industry. Without forward-thinking legislation, it may also be necessary to consider wholesale legislative reform in the near future. It would be irresponsible to design a regime that does not consider the implications of technological process where the very issue the regime has been designed to address has been created by technological process. Additionally, this approach finds precedent in section 313(7) of the Telecommunications Act 1997, which specifies that giving help in the context of domestic industry assistance includes giving effect to warrants and authorisations under the T(IA) Act. Given the broader potential use cases of industry assistance, it was necessary to forgo enumeration of the potential warrants and authorisations in section 317E(da).
Technical assistance requests are supported by strong safeguards and limitations to ensure they are used appropriately and only when required. Importantly, the voluntary nature of requests means that providers will not be issued with a penalty for noncompliance. Requests must relate to a relevant objective which forms the core functions of law enforcement and national security agencies. In the case of ASIO, this includes safeguarding national security. In the case of ASIS, this includes the interests of Australia's national security, the interests of Australia's foreign relations or the interests of Australia's economic wellbeing. In the case of ASD, this relates to their cybersecurity functions. In the case of an interception agency, it is enforcing the criminal law so far as it relates to serious Australian offences or enforcing the criminal laws enforced in a foreign country so far as those laws relate to serious foreign offences.
Technical assistance requests are supported by strong safeguards and limitations to ensure they cannot be used for mass surveillance or assessing content without a warrant, and they certainly cannot be used to systematically impact the security of networks and devices. Agencies and law enforcement authorities will only be able to use requests when there is an underlying warrant. There are cost recovery provisions built in to ensure that providers are not penalised for providing legitimate support to agencies. It is important for all of the reasons we've outlined that the Senate does not support this amendment as, I believe, it is absolutely essential to keep the legislation fit for purpose as regulated industry evolves. Making listed acts or things exhaustive for TARs or TANs is problematic for these very reasons. Technical capability notices go to capability building, and it is for those reasons—