[AusNOG] Assistance and Access Bill moves to PJCIS

Narelle Clark narellec at gmail.com
Thu Sep 27 12:40:26 EST 2018

Wrong agency - it's Home Affairs (Peter Dutton is the minister) not the
Attorney General's (Christian Porter) department.


On Thu, Sep 27, 2018 at 11:35 AM Paul Wilkins <paulwilkins369 at gmail.com>

> To my mind, treatment by Attorney General's of the consultation process
> holds the public and industry in contempt. With under 2 weeks between
> closure of submissions and transfer to PJCIS, how could they have even read
> all submissions, let alone given them due consideration? The bearest of
> amendments fiddling at the edges serves only so that Dutton can tell the
> House industry has been consulted, before steamrolling an ill prepared Bill
> through the House.
> The Guardian article suggests Labor support is iffy. But I'm not even
> convinced Liberals are behind this, the push seems to emanate from Attorney
> General's.
> For anyone with serious concerns, looking to delay passage of the Bill to
> give sufficient time to allow development of a considered well designed
> framework, with a workable and proportionate regime, I'd be writing to
> local members and pointing out where the Bill is premature, deficient and
> badly framed.
> Kind regards
> Paul Wilkins
> On Thu, 27 Sep 2018 at 11:07, Paul Wilkins <paulwilkins369 at gmail.com>
> wrote:
>> https://www.theguardian.com/australia-news/2018/sep/27/australias-spyware-law-could-expose-phones-to-exploitation-business-group-warns
>> Submission by Australian Information Industry Association
>> <https://www.homeaffairs.gov.au/consultations/Documents/australian-information-industry.pdf>
>> On Tue, 25 Sep 2018 at 17:58, Paul Brooks <pbrooks-ausnog at layer10.com.au>
>> wrote:
>>> I've heard the PJCIS process will also be rushed. Calls for 'intentions
>>> to submit/reqests to appear' are open now for a few weeks only.
>>> *They are planning precisely 1 single day for public hearings. No more.*
>>> There are three sitting weeks left in the year. There is an election to
>>> be called next year probably in May, and caretaker conventions which would
>>> prevent any further work on this bill from sometime in April. so the
>>> Government's need for an accelerated process is clear.
>>> All these points below need to be made in submissions to the PJCIS now,
>>> so that they can easily see they'll need more than 1 day to get through all
>>> the witnesses that want to appear and make these points.
>>> https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/TelcoAmendmentBill2018
>>> The Committee is currently accepting submissions to this review.
>>> Submissions should be provided no later than *12pm, Friday, 12 October
>>> 2018.* If you intend to make a submission, please contact the
>>> Secretariat at TOLAbill at aph.gov.au by Tuesday, 2 October 2018 to assist
>>> with planning. Hearings are expected to be held on Friday, 19 October 2018.
>>> Please - send an email now to TOLAbill at aph.gov.au to confirm you will
>>> (a) make a submission, and (b) wish to appear at the public hearing - and
>>> then work out what you want to say. Re-sending a submission previously sent
>>> to the Home Affairs sham consultation would be a good start - the committee
>>> may not be given the submissions sent in earlier this month to Home
>>> Affairs..
>>> And clear your diaries for Friday 19th October - maybe in Canberra if
>>> there is to be only one day. I'm still waiting on confirmation of venue.
>>> Paul.
>>> On 25/09/2018 5:05 PM, Paul Wilkins wrote:
>>> I'm thinking Dutton's decision to push ahead with an ill drawn bill
>>> wasn't completely isolated from his and the government's need to change the
>>> news cycle around his au pair scrape.
>>> Which is not to say the cops don't have active activations they want
>>> these powers for, and as soon as possible. A big bust with Dutton's new
>>> powers would be a shot in the arm for the government's fortunes.
>>> However, the Bill doesn't deserve to pass, because it's not ready, and
>>> will lead to unhappy outcomes, particularly for service providers. Everyone
>>> has their concerns, these are mine:
>>> 1 - The multiplicity of agencies and agents who can authorise TANs and
>>> TARs.
>>> 1a - Warrant data and service provider data will reside with the issuing
>>> agencies.
>>> Hence, the government needs to reconsider the whole approach, and
>>> instead, have one agency act as a clearing house for TCN/TAN/TARs, and act
>>> as custodian of warrant data and service provider confidential data.
>>> 2 - The lack of civil appeal process against TCN/TAN/TARs.
>>> Grounds for appeal to either refuse or delay assistance should include:
>>> Cost, security management, risk management, business management
>>> processes, disruption to business, disparity of TCN/TAN/TAR with Privacy
>>> Act 1988.
>>> 2a - The real possibility TAN/TARs will be used by Law Enforcement to
>>> coerce unlawful access/disclosure.
>>> 3 - The low bar required to issue TCN/TAN/TARs. The government's case
>>> for these powers is serious crime and terrorism. I don't know, but I
>>> imagine they settled for "serious crime as defined under the Crimes Act"
>>> because (again I'm guessing) that's the standard for physical warrants?
>>> It'd be good to be clear as to this point, because cyber warrants and
>>> physical warrants are, I think we'll agree, different in kind. It's one
>>> thing to execute a physical warrant, which means you have to give Law
>>> Enforcement entry, but I feel 2 years sets the bar a little low to let Law
>>> Enforcement go snooping about a data centre, or pushing bootloader updates
>>> to your phone.
>>> 4 - The lack of accountability. The reporting requirements are a rubber
>>> stamp, and leave the public none the wiser how these powers are being used,
>>> whether they're successful, and to what ends they're exercised. They will
>>> of course be used by the AFP to pursue journalist sources of government
>>> leaks. I'm not sure it's clear all leaks are against the public interest.
>>> There's that problem where the government's interests, and the public
>>> interest, are not always the same thing.
>>> 4a - There needs to be specific details as to the use of the power to
>>> enforce silence as to the  existence of TCN/TAN/TARs. I'm thinking this
>>> power to suppress shouldn't lie with Law Enforcement at all, but should
>>> rather form part of the terms of the accompanying computer/data warrants.
>>> 5 - The Emergency provisions make the police a power answerable to
>>> themselves for 48 hours.
>>> 6 - The definition of "computer" which extends to any data held on any
>>> computer connected on "the same network" - which can be read as extending
>>> to the internet and anything that connects to the internet.
>>> 7 - I think the drafting is flawed, where TCN/TAN/TARs restrict
>>> themselves to a target computer. I think it's arguable the Bill doesn't
>>> extend to compelling access to ancillary computers/network devices, needed
>>> to extract data from the target computer.
>>> Kind regards
>>> Paul Wilkins
>>> On Tue, 25 Sep 2018 at 13:51, <trs80 at ucc.gu.uwa.edu.au> wrote:
>>>> On Tue, 25 Sep 2018, Paul Wilkins wrote:
>>>> > Australia is bound under international law against arbitrary or
>>>> unlawful incursions of the right to privacy. That's black letter
>>>> > law.
>>>> We are also bound under international law the 1951 Refugee Convention.
>>>> The
>>>> Australian government removed references to the convention from the
>>>> laws
>>>> of Australia, so the courts can no longer enforce it. See also this
>>>> great
>>>> quote:
>>>> The Court held that Australian courts are bound to apply Australian
>>>> statute law “even if that law should violate a rule of international
>>>> law.”
>>>> http://ilareporter.org.au/2018/04/australias-disengagement-from-international-refugee-law-the-principle-of-non-refoulement-and-the-doctrine-of-jurisdiction-sophie-capicchiano-young/
>>>> http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2015/1.html
>>>> p462
>>>> So as Mark said, these international "laws" mean nothing here unless
>>>> enacted by the Australian parliament. And specific bills, like the
>>>> Assistance and Access Bill can override them at will.
>>>> --
>>>> # TRS-80              trs80(a)ucc.gu.uwa.edu.au #/ "Otherwise Bub here
>>>> will do \
>>>> # UCC Wheel Member     http://trs80.ucc.asn.au/ #|  what squirrels do
>>>> best     |
>>>> [ "There's nobody getting rich writing          ]|  -- Collect and hide
>>>> your   |
>>>> [  software that I know of" -- Bill Gates, 1980 ]\  nuts." -- Acid
>>>> Reflux #231 /
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narellec at gmail.com
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