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Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019



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BILLS DIGEST NO. 70, 2018-19 27 MARCH 2019

Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019 Monica Biddington Law and Bills Digest Section

Contents

Purpose and structure ..................................................... 2

Background ..................................................................... 2

Advisory Report on the Telecommunications and other Legislation (Assistance and Access) Bill 2018 ..................................................................... 3

Additional comments on the PJCIS Report on the TOLA Bill .............................................................. 3

Procedural background ............................................. 4

Committee consideration ................................................ 4

Senate Standing Committee for the Scrutiny of Bills ............................................................................ 5

Policy position of non-government parties/independents...................................................... 5

Labor .......................................................................... 5

Greens ....................................................................... 6

Position of major interest groups..................................... 6

Financial implications ...................................................... 6

Statement of Compatibility with Human Rights................ 6

Parliamentary Joint Committee on Human Rights ..... 6 Key issues and provisions ................................................ 6

Review of the TOLA Act ............................................... 6

Industry assistance to anti-corruption bodies ............ 7 Opposition amendments ................................................. 8

Concluding comments ................................................... 10

Date introduced: 13 February 2019

House: Senate

Portfolio: Home Affairs

Commencement: The day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at March 2019.

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Purpose and structure The purposes of the Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019 (the 2019 Bill) are as follows:

• Schedule 1 will amend the Independent National Security Legislation Monitor Act 2010 (the INSLM Act) to change the timeframe in which the Independent National Security Legislation Monitor (INSLM) must review the operation, effectiveness and implications of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (TOLA Act).

• Schedule 2 will amend section 317B of the Telecommunications Act 1997 and make a series of consequential amendments to facilitate additional agencies to use the industry assistance powers in Part 15 of that Act.

Background In September 2018, the Government introduced the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (the TOLA Bill).1 The TOLA Bill amended a number of Acts to facilitate access to certain communications and data for the purposes of disrupting and investigating criminal activity and threats to national security, including organised crime and terrorism. The TOLA Bill contained measures aimed at facilitating lawful access to communications and data through two avenues - decryption of encrypted technologies and access to communications and data at points where they are not encrypted. The TOLA Bill was referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for inquiry, with no prescribed reporting date.2 The Committee received 105 submissions to the inquiry and conducted five public hearings.3 In November 2018, the Minister for Home Affairs asked the Committee to ‘accelerate’ its inquiry into the TOLA Bill in order for it to be passed in the Parliament before the end of the year:

On 22 November 2018, the Committee received advice from the Minister for Home Affairs that there was an immediate need to provide agencies with additional powers and to pass the Bill in the last sitting week of 2018. The Minister noted that:

The situation has become more urgent in light of the recent fatal terrorist attack in Melbourne and the subsequent disruption of alleged planning for a mass casualty attack by three individuals …

I am gravely concerned that our agencies cannot rule out the possibility that others may also have been inspired by events in Melbourne to plan and execute attacks … This is particularly concerning as we approach Christmas and the New Year, which we know have been targeted previously by terrorists planning attacks against Australians gathered to enjoy the festive season …

For these reasons I ask that the committee accelerate its consideration of this vital piece of legislation to enable its passage by the parliament before it rises for the Christmas break. 4

1. Parliament of Australia, ‘Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 homepage’, Australian Parliament website. See also C Barker, M Biddington and H Portillo-Castro, Telecommunications and Other Legislation (Assistance and Access) Bill 2018, Bills digest, 49, 2018-19, Parliamentary Library, Canberra, 3 December 2018.

2. Parliamentary Joint Committee on Intelligence and Security (PJCIS), Review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, Canberra. 3. PJCIS, Submissions to the Review of the Telecommunications and Other Legislation (Assistance and Access) Bill 2018, Canberra, and Public Hearings to the Review of the Telecommunications and Other Legislation (Assistance and Access) Bill 2018,

Canberra. 4. PJCIS, Advisory report on the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, December 2018, Canberra, paragraph 1.7.

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The PJCIS did not reach full agreement on all aspects of the TOLA Bill. However, the Committee tabled an Advisory Report on 5 December 2018 and acknowledged:

… there is a genuine and immediate need for agencies to have tools to respond to the challenge of encrypted communications. The absence of these tools results in an escalation of risk and has been hampering agency investigations over several years. As the uptake of encrypted messaging applications increases, it is increasingly putting the community at risk from perpetrators of serious crimes who are able to evade detection.

Responding to these escalating risks, the Committee recommends that the Parliament give urgent consideration to the Bill and its immediate passage. 5

Advisory Report on the Telecommunications and other Legislation (Assistance and Access) Bill 2018 The Committee made 17 recommendations in its report of December 2018 to facilitate the Parliament’s consideration and swift passage of the TOLA Bill.6 During the Parliamentary debate of the Bill, the Government presented 173 Government amendments to all Schedules of the Bill which were both in response to the PJCIS’ inquiry and recommendations as well as additional technical amendments that were agreed to during debate.7 Further, Liberal Senator Mathias Cormann moved an amendment to the second reading motion to require the PJCIS to conduct a review of the operation of the amendments made by the Bill and report on that review by 3 April 2019.8

Additional comments on the PJCIS Report on the TOLA Bill Labor members of the PJCIS welcomed the amendments recommended in the Committee’s Advisory Report but did not consider that those amendments addressed ‘all of the problems in this Bill’.9 However Labor agreed to progress the TOLA Bill due to evidence from law enforcement and security agencies of the immediate need for the powers. Labor noted in Additional comments in the Advisory Report:

We are only prepared to [expedite the Bill’s passage] because of the government’s undertaking that:

 the committee will continue its inquiry into the Bill into 2019, and

 a separate statutory review will be undertaken by the Independent National Security Legislation Monitor within 18 months of the legislation coming into effect. 10

Parliamentary bottleneck

Once it was agreed that the TOLA Bill would proceed to debate and passage before Christmas, the proceedings stalled in the Parliament due to debate on other matters and the expiration of time in which the House of Representatives could vote on any Senate amendments to the Bill. The Labor

5. Ibid., p. 2.

6. Ibid., pp. 3-17. 7. Government, ‘Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018’, House of Representatives, Amendment Sheet EK171, 6 December 2018. 8. M Cormann, ‘Second reading speech: Telecommunications and Other Legislation Amendment (Assistance and Access) Bill

2018’, The Senate, Debates, 6 December 2018, p. 9794. 9. PJCIS, Advisory report on the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, Additional Comments, December 2018, Canberra, p. 22. 10. Ibid., pp. 22-23.

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Opposition expressed its frustration on the evening of 6 December 2018 when Opposition Leader Bill Shorten and Shadow Attorney-General Mark Dreyfus held a press conference where Mr Shorten said:

If you [Mr Morrison] agree to do the amendments which you’ve already agreed, to the encryption laws, in the first week of next year, we will pass the encryption laws, unsatisfactory as they are, right now. Because we are not going to go home and leave the Australian people on their own over Christmas with inferior laws of national safety

11 .

On this basis, the TOLA Bill was passed with Labor’s support on 6 December 2018. On 12 December 2018 media reports stated that Minister Dutton had clarified the Government’s intended approach to amendments, stating that ‘amendments that are consistent with the joint recommendations’ from the PJCIS would be considered, but that the Government was ‘not going beyond that so Labor can try and water it down through whatever means they like’.12

The 2019 Bill before the Parliament presents an opportunity for Labor to propose additional amendments to the TOLA Act.

Procedural background As discussed earlier, the TOLA Bill had an accelerated passage on 6 December 2018, and Labor agreed to pass the legislation on the advice that it was required over the Christmas period. Labor had indicated that it wanted to make some amendments to the Bill as introduced and sought an agreement with the Government to be able to bring on amendments in the first sitting week of the new year. The amendments that Labor proposed in the Senate in December 2018 were withdrawn on that basis.13

The 2019 Bill was introduced in the Senate on 13 February 2019 and then debated the next day. The Bill will make further amendments to the telecommunications access regime that passed the Parliament on the final sitting day of 2018. During debate on 14 February, the Senate passed one of four Opposition amendments.14 (The amendments proposed by the Opposition are discussed in more detail below). The Government indicated it would not support the one amendment that was being debated at the time of the adjournment.15 At the time of writing, the Bill remains before the Senate.

Committee consideration The 2019 Bill has not been referred to a Committee for further consideration.

Senator Siewert of the Australian Greens sought the referral of the Bill to a committee for the reason that the ‘legislation has only just been introduced and requires possible consideration’.16 The Senate Standing Committee for the Selection of Bills considered the Bill but was ‘unable to reach agreement’ on referral.17 The Senate declined to refer the Bill to committee for inquiry.18

11. B Shorten and M Dreyfus, National Security, transcript, Canberra, 6 December 2018. 12. T McIlroy, ‘Peter Dutton cold on Labor amendments to Coalition encryption bill’, The Australian Financial Review, 12 December 2018. 13. R Di Natale, ‘Third reading speech: Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018’,

Senate, Debates, 6 December 2018, p. 9797. 14. Senate, Division, ‘In Committee: Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019’, Canberra, 14 February 2019, p. 17. 15. L Reynolds, ‘In Committee: Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019’,

Senate, Debates, 14 February 2019, p. 20. 16. Senate Standing Committee for Selection of Bills, Report, 1, 2019, Appendix 14, 14 February 2019. 17. Ibid., p. 4.

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However, the PJCIS has commenced a review of the TOLA Act (Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018):

The review will consider all aspects of the Act and its implementation, including a review of Government amendments introduced and passed on 6 December 2018, as referred by the Senate in a second reading amendment on 6 December 2018. The Senate’s referral requires the Committee to report by 3 April 2019.

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This review is not specifically required to consider the 2019 Bill, although as this Bill is part of the broader implementation of the Act, the Committee may comment on the provisions of the Bill.

Senate Standing Committee for the Scrutiny of Bills At the time of publication of this Digest, the Senate Standing Committee for the Scrutiny of Bills has not commented on the 2019 Bill.

Policy position of non-government parties/independents

Labor As noted above, in November 2018, the Minister for Home Affairs asked the PJCIS to accelerate its inquiry into the TOLA Bill in order to enable it to pass the Parliament before the end of the year. In her second reading speech on the 2019 Bill, Senator McAllister stated:

The case for urgency was forcefully prosecuted by the government in the media. At one point documents that had been provided to the committee confidentially were leaked into the public domain and appeared on the front page of a newspaper, and the government has refused to initiate any investigation into that leak. National security agencies subsequently gave public evidence to the committee that they needed the powers contained in the 2018 bill in order to respond to the heightened risk of terror over the Christmas period.

In response to that evidence, the committee finished its inquiry early. It issued a consensus report that made 17 recommendations for a range of amendments to improve these laws. The government committed to moving amendments that reflected those recommendations. On the morning of 6 December 2018, the last parliamentary sitting day of 2018, the government introduced 173 lengthy amendments to the 2018 bill. Some of those amendments did not properly reflect the text or the intent of the committee's recommendations, and that is not just Labor's view. It is the view of the Inspector-General of Intelligence and Security; it is the view of lawyers; it is the view of civil society groups; and it is the view of the Commonwealth Ombudsman.

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The Senator noted the rushed process during the debate in December last year, that Labor had obtained a commitment from the Government that it would allow consideration of opposition amendments to rectify these problems and oversights, and that this Bill reflects that commitment. She also noted that Labor ‘is further seeking to refer the measures in the Bill to our parliamentary inquiry to report on the economic impacts’.21

18. Australia, Senate, ‘Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019’, Journals, 140, 14 February 2019, pp. 4658-59. 19. PJCIS, ‘Review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018’, Committee homepage. 20. J McAllister, ‘Second reading speech: Telecommunications and Other Legislation Amendment (Miscellaneous Amendments)

Bill 2019’, Senate, Debates, 14 February 2019, p. 4. 21. Ibid.

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Greens The Greens proposed an amendment to remove Schedule 2 of the 2019 Bill, that is, an amendment to remove the re-listing of state crime and corruption commissions in the definition of interception agency in section 317B of the Telecommunications Act.22 This amendment is yet to be considered in the Senate.

Position of major interest groups There is ongoing concern about the implementation of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (TOLA Act)23 but no specific comment to note by major interest groups on this particular amendment Bill. For consideration of the issues concerning major interest groups at the time of the TOLA Bill’s debate, see the Parliamentary Library’s Bills Digest on the TOLA Bill.24

Financial implications The Explanatory Memorandum states that the amendments made by the Bill will have no financial impact.25

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.26

Parliamentary Joint Committee on Human Rights At the time of publication of this Digest, the Parliamentary Joint Committee on Human Rights has not commented on the 2019 Bill.

Key issues and provisions

Review of the TOLA Act Currently subsection 6(1D) of the INSLM Act requires a review of the operation, effectiveness and implications of the amendments made by the TOLA Act to be undertaken by the INSLM as soon as practicable after the 18 month period beginning on the day the TOLA Act received Royal Assent. Item 1 of Schedule 1 will amend paragraph 6(1D)(b) of the INSLM Act to omit the phrase “as soon as practicable after” and substitute “before the end of”. This amendment will change the timeframe for the INSLM to review the TOLA Act. This will mean that the review of the

22. J Steele-John (Australian Greens) ‘Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019’, Senate, Sheet 8648, 14 February 2019. 23. For example, P Smith and B Seo, ‘Dutton firm against encryption revolt’, The Australian Financial Review, 12 February 2019, p. 21. See also, PJCIS, Review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018,

Submissions. 24. M Biddington, C Barker and H Portillo-Castro, Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, Bills digest, 49, 2018-19, op. cit. 25. Explanatory Memorandum, Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019,

p. 1.

26. The Statement of Compatibility with Human Rights can be found at page 2 of the Explanatory Memorandum to the Bill.

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amendments made by the TOLA Act will need to be completed by 8 June 2020. This implements Recommendation 14 of the PJCIS’ Advisory Report on the TOLA Bill.27

Industry assistance to anti-corruption bodies Part 15 of the Telecommunications Act allows specified law enforcement and intelligence agencies to request or require assistance from designated communication providers. Requests for assistance are made through a ‘technical assistance request’.28 A provider may choose to voluntarily comply with a request, but is not required to do so. A provider may also be compelled to provide assistance to a relevant agency through the issuance of a ‘technical assistance notice’ by the agency head,29 or a ‘technical capability notice’ by the Attorney-General.30

The agencies that are currently able to request or require such industry assistance are the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service, the Australian Signals Directorate and ‘interception agencies’.

‘Interception agency’ is defined at section 317B of the Telecommunications Act as the Australian Federal Police, the Australian Crime Commission, or the police force of a state or the Northern Territory. While anti-corruption bodies and investigative commissions were included in the TOLA Bill as introduced,31 they were removed following a recommendation made by the PJCIS to exclude them from the scope of Schedule 1 of that Bill:

The Committee recommends that State and Territory law enforcement agencies be retained within the scope of the Bill, with the exception of State and Territory independent commission against corruption which the Committee recommends should be excluded from the scope of Schedule 1 of the Bill. 32

The second reading speech to the current Bill notes that ‘the exclusion of these bodies was recommended as an interim measure while the Committee continued its consideration of the Act’.33

The second reading speech noted:

A joint submission from the Commissioners of eight State anti-corruption and Crime Commission plus the Commissioner of the Australian Commission for Law Enforcement Integrity to the PJCIS’ Inquiry into the Act has called for the urgent extension of the Act’s industry assistance measures to these agencies. The Commissioners note that these powers are crucial in their fights against organised crime and corruption.

34

Schedule 2 of the Bill, items 1-9 have the effect of extending the definition of ‘interception agency’ to include the Australian Commission for Law Enforcement Integrity, the Corruption and Crime Commission (WA), the Independent Broad-based Anti-corruption Commission of Victoria, the Independent Commissioner Against Corruption (SA), the Independent Commission Against

27. PJCIS, Advisory report on the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, December 2018, Recommendation 14, Canberra. 28. Section 317H of the Telecommunications Act 1997. 29. Section 317L of the Telecommunications Act 1997. 30. Section 317s of the Telecommunications Act 1997. 31. See definition of ‘interception agency’ at item 7 of Schedule 1 of the Telecommunications and Other Legislation Amendment

(Assistance and Access) Bill 2018, as introduced. 32. PJCIS, Advisory report on the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, op. cit., Recommendation 3, p. ix. 33. A Ruston, ‘Second reading speech: Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill

2019’, House of Representatives, Debates, 13 February 2019, p. 10099. 34. Ibid., pp. 10099-10100.

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Corruption of New South Wales, the New South Wales Crime Commission, the Law Enforcement Conduct Commission of New South Wales, and the Crime and Corruption Commission of Queensland.

Opposition amendments Senator McAllister moved a number of Opposition amendments in the Senate for further consideration, stating:

…[we] take seriously the task of making sure legislation is appropriate and adapted to the ends it is trying to undertake. That means limiting the unintended consequences to individuals and businesses. That is why we are going through this process today. We have been consulting with industry, with tech experts, with lawyers and with civil society, and also with the agencies themselves. We are doing the work necessary to improve this legislation.

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Systemic weakness or systemic vulnerability

The first amendment proposed by the ALP was agreed to by the Senate and will repeal definitions of ‘electronic protection’, ‘systemic vulnerability’, ‘system weakness’ and ‘target technology’ in section 317B of the Telecommunications Act.36 These terms relate to limitations on the assistance that may be requested or required under a technical assistance request, technical assistance notice or technical capability notice.

Section 317ZG of the Telecommunications Act, which was included in the TOLA Bill as originally introduced,37 provides that such a request or notice must not have the effect of:

(a) requesting or requiring a designated communications provider to implement or build a systemic weakness, or a systemic vulnerability, into a form of electronic protection; or

(b) preventing a designated communications provider from rectifying a systemic weakness, or a systemic vulnerability, in a form of electronic protection.

The Explanatory Memorandum to the TOLA Bill explained that section 317ZG:

… ensures that providers cannot be required to systemically weaken their systems of electronic protection under a technical assistance notice or technical capability notice. The limitation is designed to protect the fundamental security of software and devices. It ensures that the products Australians enjoy and rely on cannot be made vulnerable to interference by malicious actors.

38

However, in the Bill as introduced, the bolded terms in section 317ZG were not defined. The definitions of these terms were introduced by the Government amendments to the TOLA Bill,39 in response to concerns raised by stakeholders that the absence of such definitions led to a lack of clarity in how the prohibition in section 317ZG would apply.40

35. Ibid.

36. J McAllister (ALP), ‘Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019’, Senate, Sheet 8642, 14 February 2019. 37. See item 7 of Schedule 1 of the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, as introduced. 38. Explanatory Memorandum, Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, p. 67. 39. Government, ‘Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018’, House of

Representatives, Amendment Sheet EK171, 6 December 2018, amendments 6 and 16. 40. See for example, Australian Human Rights Commission (AHRC), Submission to PJCIS, Review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, [Submission no. 47], 12 October 2018, p. 36; Communications

Alliance, Australian Industry Group (AI Group), Australian Information Industry Association (AIIA) and Australian Mobile Telecommunications Association (AMTA), Submission to PJCIS, Review of the Telecommunications and Other Legislation

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The ALP’s amendment to remove the definitions relies on feedback from stakeholders that the definitions are ‘difficult to understand, ambiguous and significantly too narrow’.41 With the removal of these definitions, the terms will have their ordinary meaning.

The Labor amendments approved by the Senate also repeal and replace section 317ZG, to (among other things) provide that the prohibition on requiring or requesting the creation of a systemic weakness or systemic vulnerability:

… includes a reference to any act or thing that would or may create a material risk that otherwise secure information would or may in the future be collected, accessed, used, manipulated, disclosed or otherwise compromised by an unauthorised third party. 42

Senator McAlister characterised the proposed amendment as aimed at ‘protect[ing] the information of innocent people’.43

Listed acts or things

A further ALP amendment proposes changes to section 317G of the Telecommunications Act, which relates to technical assistance requests to designated communications providers from ASIO, ASIS, the ASD or an interception agency.44 Subsection 317G(6) currently provides that the assistance that may be requested includes (but is not limited to) ‘listed acts or things’ (as defined in section 317E this includes removing electronic protection, providing technical information, installing software, putting information in a particular format and facilitating access to devices or services).45 The amendment proposed by the ALP to subsection 317G(6) will limit the scope of requested assistance to ‘listed acts or things’. Senator McAlister stated that this amendment would implement Recommendation 10 of the PJCIS’ Advisory report.46

Section 317T of the Telecommunications Act sets out the procedure for a technical capability notice. Amendments to that section will also ensure that assistance required under such a notice is limited to ‘listed acts or things’ and remove the ability of the Minister to specify additional acts or things that may be requested. This amendment is also said to respond to Recommendation 10 of the PJCIS’ Advisory report.47

Amendment (Assistance and Access) Bill 2018, [Submission no. 43], 12 October 2018, p. 15. For more information see C Barker, M Biddington and H Portillo-Castro, Telecommunications and Other Legislation (Assistance and Access) Bill 2018, op. cit., p. 27. 41. J McAllister (ALP), ‘In Committee: Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019’, Senate, Debates, 14 February 2019, pp. 10201-03. 42. J McAllister (ALP), ‘Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019’, Senate, Sheet 8642, 14 February 2019, Amendment 5, proposed subsection 317ZG of the Telecommunications Act. 43. J McAllister (ALP), ‘In Committee: Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019’, Senate, Debates, 14 February 2019, pp. 10201-03. 44. J McAllister (ALP), ‘Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019’, Senate, Sheet 8643, 14 February 2019, Amendment 1. 45. For more information see C Barker, M Biddington and H Portillo-Castro, Telecommunications and Other Legislation (Assistance and Access) Bill 2018, op. cit., p. 22. 46. J McAllister (ALP), ‘In Committee: Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019’, Senate, Debates, 14 February 2019, pp. 10201-03. 47. J McAllister (ALP), ‘In Committee: Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019’, Senate, Debates, 14 February 2019, pp. 10201-03.

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AFP approval of state or territory interception agency technical assistance notices

Senator McAllister also moved an amendment to section 317LA of the Telecommunications Act. That section provides that a state or territory interception agency is not permitted to give a technical assistance notice to a designated communications provider unless the AFP Commissioner has approved the giving of the notice. Section 317LA was introduced as a Government amendment to the TOLA Bill, in response to Recommendation 7 of the Advisory report of the PJCIS.48

Senator McAllister’s proposed amendment would provide that the AFP Commissioner must not give such approval unless he or she is satisfied that the requirements imposed by the notice are reasonable and proportionate, and compliance with the notice is practicable and technically feasible.49 During debate, Senator McAllister indicated:

The government's amendments provide that the AFP Commissioner may approve a technical notice, but the amendments did not establish the decision-making criteria for approval. Labor's amendment will make it clear that the AFP must follow the process recommended by the committee. We are also moving other amendments that would limit technical assistance requests and technical capability notices to certain specified acts and things.

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Ombudsman’s report

The final amendment proposed by Senator McAllister would repeal subsection 317ZRB(7) of the Telecommunications Act.51 Section 317ZRB allows the Ombudsman to inspect the records of an interception agency to determine its compliance with Part 15 of that Act. The Ombudsman may then make a written report to the Minister for Home Affairs on the results of the inspection. Such a report must be tabled by the Minister within 15 sitting days. However, subsection 317ZRB(7) provides that, before tabling the report, the Minister may delete information that, if made public, could reasonably be expected to prejudice an investigation or prosecution; or compromise any interception agency’s operational activities or methodologies. The Minister’s discretion to amend the report in this way would be removed by Labor’s amendment.

Concluding comments The PJCIS is due to report on 3 April 2019 on the TOLA Act as enacted in December 2018. The 2019 Bill will need to be considered by the Senate by that date or the Bill will lapse on prorogation of the Parliament. Further legislative amendments to the TOLA Act may be forthcoming following the PJCIS report, however it is unlikely they would be presented in the current Parliament.

48. Government, ‘Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018’, House of Representatives, Amendment Sheet EK171, op. cit., item 39; PJCIS, Advisory report on the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, op. cit., Recommendation 3, pp. x-xi.

49. J McAllister (ALP), ‘Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019’, Senate, Sheet 8644, 14 February 2019. 50. J McAllister, ‘Second reading speech: Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019’, Senate, Debates, 14 February 2019, p. 4. 51. J McAllister (ALP), ‘Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019’, Senate,

Sheet 8646, 14 February 2019.

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