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 42 MESSAGE FROM THE SENATE—COMMUNICATIONS LEGISLATION AMENDMENT BILL (NO. 2) 2003

Message No. 469, 1 April 2004, from the Senate was reported returning the Communications Legislation Amendment Bill (No. 2) 2003 with amendments.

Ordered—That the amendments be considered forthwith.


On the motion of Mr Ruddock (Attorney-General), amendments Nos 1 to 3, 5 to 9, 12 and 13 were disagreed to.

Mr Ruddock presented reasons, which were circulated, and are as follows:

Reasons of the House of Representatives for disagreeing to the amendments of the Senate

Senate Amendment 1

This amendment proposes that within 4 years of the day on which the Bill receives the Royal Assent, the Minister must cause, in consultation with the Attorney-General, a review of the operation, effectiveness and implications of the amendments made by the Bill to be conducted and to prepare a written report of the review. The Minister would be required to cause a copy of the report to be tabled in each House of Parliament within 15 sittings days of each House after the day on which the report is made.

Many amendments contained in the Bill implement the recommendations of the Review of the Longer Term Effectiveness of Telecommunications Interception. That review conducted a thorough analysis of those provisions of the Telecommunications Act that deal with interception issues. To further review these issues, which have already been thoroughly examined, is unnecessary and unwarranted. The additional measures in the Bill to address security issues in the telecommunications industry are practical and realistic measures to address security issues in the long-term. They represent a balanced and appropriate approach and a review is therefore unnecessary.

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment 2

This amendment proposes that the Act would cease to be in force at the end of 5 years after the Act receives the Royal Assent.

The Bill will enhance the security of Australia's telecommunications services and networks and improve arrangements for the provision of assistance to law-enforcement agencies by telecommunications carriers and carriage service providers. The security of Australia's telecommunications systems is not a short-term issue and requires long-term measures to limit the risk to security within telecommunications networks and to enhance the effective operations of law-enforcement agencies. The amendments contained in the Bill include extensive consultation arrangements to ensure that security issues are appropriately considered in the carrier licensing process. The consultation provisions will assist in ensuring that all relevant considerations are taken into account at an early stage in the carrier licensing process.

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment 3

This amendment proposes that decisions of the Attorney-General under proposed section 58A and subsection 581(3) be reviewable under the Administrative Decisions (Judicial Review) Act 1977 (the AD(JR) Act).

The proposed exclusion of these decisions from judicial review under the AD(JR) Act is consistent with existing policy that decisions made on grounds of security, or which have security implications, are excluded from judicial review under the AD(JR) Act. For example, decisions under the following Acts are currently exempt from judicial review under the AD(JR) Act:

 Australian Security Intelligence Organisation Act 1979 (ASIO Act),

Intelligence Services Act 2001,

Telecommunications (Interception) Act 1979, and

Foreign Acquisitions and Takeovers Act 1975.

The AD(JR) Act provides a streamlined and expedited form of judicial review that is not designed to deal effectively with the review of sensitive material. There are no express statutory mechanisms under the AD(JR) Act to quarantine information. The Security Appeals Divisions of the Administrative Appeals Tribunal (AAT) provides a more appropriate mechanism for review of decisions based on security matters. The amendments contained in the Bill ensure that security assessments forming the basis of a direction by the Attorney-General under proposed section 58A or proposed subsection 581(3) will be reviewable on their merits by the AAT.

Accordingly, the House of Representatives does not accept this amendment.


Senate Amendments 5 and 9

These amendments propose additional thresholds for the exercise of the Attorney-General's power to issue a direction under proposed section 58A or proposed subsection 581(3). The additional thresholds would be that there would need to be demonstrated grounds to show that the direction is necessary to protect national security and the Attorney-General would need to believe on reasonable grounds that the risk to security cannot be managed effectively through other mechanisms .

The additional thresholds for the exercise of the Attorney-General's powers are unnecessary. The Bill, as drafted, would ensure that a direction could only be given where the issue of a carrier licence or the supply of carriage services would be prejudicial to security. The Bill includes a range of measures through which security considerations may be addressed during the carrier licensing process. The issue of a direction to the Australian Communications Authority would only arise in cases where those measures have been unsuccessful in resolving security issues.

Accordingly, the House of Representatives does not accept these amendments.

Senate Amendments 6 and 12

These amendments propose additional provisions to the effect the power of the Attorney-General to issue a direction would be subject to the right of persons to engage in lawful advocacy, protest or dissent and that the exercise of such rights will not, of itself, be regarded as a risk to national security.

The proposed amendments are unnecessary because the Bill, as drafted, makes it clear that a direction may only be given when the issue of a carrier licence or the supply of a carriage service would be prejudicial to security. `Security' is clearly defined to have the meaning given in the Australian Security Intelligence Organisation Act 1979 (ASIO Act). Section 17A of the ASIO Act specifies that it does not limit the rights of persons to engage in lawful advocacy, protest or dissent and the exercise of that right shall not, by itself, be regarded as prejudicial to security. The functions of ASIO, including the preparation of the security assessments, are construed accordingly.

Accordingly, the House of Representatives does not accept these amendments.

Senate Amendment 7

This amendment proposes to omit item 17 in Schedule 1 to the Bill. Item 17 would amend the definition of `officer' in subsection 282(10) of the Telecommunications Act to provide that an officer, in relation to a law-enforcement agency, includes a person whose services have been made available to a law-enforcement agency (for example, a person who is on secondment to a law-enforcement agency).

Amendment 7 would frustrate the ability of law-enforcement agencies to perform their functions. The purpose of the amendment in the Bill to the definition of `officer' is to ensure that a person whose services have been made available to an enforcement agency could be authorised to certify a disclosure of call data, provided that the person is a senior officer who has been authorised to make such certifications. This reflects the changes that have occurred in the management structures of law-enforcement agencies, which have resulted in reduced numbers of officers who can be authorised to certify disclosures of call data. The proposed amendment would not relax the process of authorising persons as senior officers for the purposes of section 282 of the Telecommunications Act, nor expand the situations in which authorised officers could authorise the disclosure of call data under section 282.

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment 8

The amendment proposes to omit item 18 in Schedule 1 to the Bill. Item 18 in Schedule 1 to the Bill amends the definition of `senior officer' in subsection 282(10) of the Telecommunications Act to reflect the current management structures in law-enforcement agencies.

The existing definition of `senior officer' presents significant difficulties for some law-enforcement agencies in the efficient processing of certificates made under section 282 due to changes that have occurred to law-enforcement agency structures and officer classifications. Those changes have effectively reduced the number of officers who can certify a call data request under section 282 than was the case when the definition was enacted. The amendment in the Bill makes essential updates to the classifications of officers in the definition of `senior officer' to reflect the changes that have occurred. The Bill also requires most categories of senior officers to be authorised or nominated in writing by the Commissioner of Police, Deputy Commissioner of Police or chief executive officer of the relevant agency. This ensures senior consideration in an agency of whether a particular person is appropriate to
undertake the responsibilities involved in being an authorised officer for the purposes of section 282 of the Telecommunications Act.

The proposed amendment would not relax the process of authorising persons as senior officers for the purposes of section 282, nor expand the situations in which authorised officers could make certifications under section 282.

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment 13

This amendment proposes additional provisions to absolve carriers and carriage service providers from liability for damages in relation to an act or omission done in compliance with a direction given by the Attorney-General under proposed subsection 581(3).

The amendment is unnecessary. In the event that a direction is issued to a carrier or carriage service provider, the carrier or carriage service provider would be compelled to act in accordance with that direction. In doing so, the carrier or carriage service provider would comply with a lawful order and could not be liable to damages for such action. The common law principle of the doctrine of frustration would provide a defence to any action for damages in contract as a result of a failure to provide a carriage service due to compliance with a lawful direction.

Accordingly, the House of Representatives does not accept this amendment.

On the motion of Mr Ruddock, the reasons were adopted.

On the motion of Mr Ruddock, amendments Nos 4, 10 and 11 were agreed to.