[AusNOG] Assistance and Access Bill moves to PJCIS

[Paul Wilkins]

Remember these are proposed as interim powers.

*Labor members have moved to progress this Bill despite our concerns
because of the evidence from law enforcement and security agencies that
there is a need for these powers over the Christmas period, and because the
proposed amendments deliver adequate oversight and safeguards to prevent
unintended consequences while ongoing work continues.*

Recommendation 11
The Committee recommends that the Bill be amended to allow a designated
communications provider, who has been given a capability notice under
subsection 317W(1) of the Bill in relation to a proposed Technical
Capability Notice (TCN), to *request a binding assessment* of


   - whether the proposed technical capability notice would contravene
   section 317ZG of the Bill
   - the requirements imposed by the notice are reasonable and
   proportionate;
   - compliance with the notice is practicable and technically feasible; and
   - the notice is the least intrusive measure that would be effective in
   achieving the legitimate objective of the notice.

This request would be made in writing to the Attorney - General within a
reasonable time limit specified in the consultation notice.  The Committee
recommends that two persons be jointly appointed to conduct the assessment:

One of these persons should have knowledge that would enable them to assess
whether proposed TCN would contravene section 317ZG of the Bill, and should
be cleared for security purposes to the highest level required by staff
members of ASIO, unless the Attorney - General approves a lower security
level.

The second assessor must be a person who has served as a judge in one or
more prescribed courts for a period of 5 years; and who no longer holds a
commission as a judge of a prescribed court.
Both persons must agree that:

   - The requirements imposed by the notice are reasonable and
   proportionate;
   - Compliance with the notice is practicable and technically feasible; and
   - The notice is the least intrusive measure that would be effective in
   achieving the legitimate objective of the notice.

The report prepared by the technical expert and the retired judge must also
be provided to the Inspector - General of Intelligence and Security (for
oversight of ASIO) and the Commonwealth Ombudsman (for oversight of the
AFP).

On Thu, 6 Dec 2018 at 11:51, Morgan Reed <morgan at darkglade.com> wrote:

> I note that judicial oversight is still completely lacking...
>
> On Thu, Dec 6, 2018 at 11:40 AM Paul Wilkins <paulwilkins369 at gmail.com>
> wrote:
>
>> Some sensible amendments.
>>
>> Recommendation 4
>> The Committee recommends that the Bill be amended to incorporate
>> recommendations from the *Commonwealth Ombudsman to establish clear
>> authority to inspect and gather information on the exercise of the industry
>> assistance measures* by the Australian Federal Police (AFP), the
>> Australian Criminal Intelligence Commission, and State and Territory
>> interception agencies
>>
>> Recommendation 6
>> The Committee recommends that the Bill be amended to provide that
>> Technical Assistance Notices (TANs) and Technical Capability Notices (TCNs)
>> be subject to *statutory time limits*, and that any extension, renewal
>> or variation of a TAN or TCN also be subject to a statutory time limit
>>
>> Recommendation 7
>> The Committee recommends that the Bill set out a tiered approval system
>> for state and territory initiated Technical Assistance Notices (TANs),
>> under which *TANs would be submitted for approval to the Commissioner of
>> the AFP* before being issued to the recipient.
>> The intention of this process of approval would be to ensure consistency
>> in decision making, and reporting, across jurisdictions.  To give effect to
>> this intention, the Commissioner of the AFP must apply the same statut ory
>> criteria, and go through the same decision - making process, as would apply
>> if the AFP were the original issuing authority
>>
>> Recommendation 8
>> The Committee recommends that the Bill be amended to include a
>> requirement that Technical Capability Notices be *jointly authorised by
>> the Attorney - General and the Minister for Communications*, the latter
>> being able to provide a direct avenue for the concerns of the relevant
>> industry to be considered as part of the approval process
>>
>> Recommendation 9
>> The Committee notes the evidence of the Director - General of the
>> Australian Signals Directorate that a “systemic weakness” is a weakness
>> that “might actually jeopardi se the information of other people as a
>> result of that action being taken”. The Committee also notes the evidence
>> of the Director - General of Security, that the powers in Schedule 1 will
>> not be used to require a designated communications provider to do anything
>> that jeopardises the security of the personal information of innocent
>> Australians. Having regard to those assurances, the Committee recommends
>> that the Bill be amended to *clarify the meaning of the term ‘systemic
>> weakness’, and to further clarify that Technical Capability Notices (TCNs)
>> cannot be used to create a systemic weakness*.
>>
>> Recommendation 11
>> The Committee recommends that the Bill be amended to allow a designated
>> communications provider, who has been given a capability notice under
>> subsection 317W(1) of the Bill in relation to a proposed Technical
>> Capability Notice (TCN), to *request a binding assessment*
>>
>> Recommendation 14
>> The Committee recommends that the Bill include express provision for a *statutory
>> review of the Bill’s operation* by the Independent National Security
>> Legislation Monitor, within 18 months of the Bill commencing
>>
>> Recommendation 16
>> The Committee recommends that, once the Bill (as amended) is passed by
>> the Parliament, the Committee:
>>
>>    - commences a review of the new legislation;
>>    - for the purposes of the review, be allowed to hold further public
>>    hearings; and
>>    - *complete its review of the new legislation by 3 April 2019*
>>
>>
>> On Thu, 6 Dec 2018 at 11:20, Paul Wilkins <paulwilkins369 at gmail.com>
>> wrote:
>>
>>>
>>> PJCIS have released a unanimous report
>>> <http://parlinfo.aph.gov.au/parlInfo/download/committees/reportjnt/024247/toc_pdf/AdvisoryReportontheTelecommunicationsandOtherLegislationAmendment(AssistanceandAccess)Bill2018.pdf;fileType=application%2Fpdf>,
>>> recommending Bill be passed with their amendments.
>>>
>>> On Thu, 6 Dec 2018 at 11:15, Jacob Taylor <me at jacobtaylor.id.au> wrote:
>>>
>>>> The current Liberal regime (and I would wager also the near-guaranteed
>>>> incoming Labor regime) don’t care about such repercussions though.
>>>>
>>>> Elections are won in swing seats, and swing seats in this country are
>>>> blue collar. What resonates with such seats is the perception of “action”,
>>>> often at the expense of nuance.
>>>>
>>>> This whole shambles is roughly equatable to Sydney’s lockout laws -
>>>> fabricate a moral panic to drum up electoral support for policies that are
>>>> otherwise indefensible. I believe someone earlier in thread earlier linked
>>>> to the Wikipedia page for the Four Horsemen of the Infocalypse?
>>>>
>>>> Just replace “drunkenness and coward punches” with “terrorists and
>>>> criminals”.
>>>>
>>>> - Jake
>>>>
>>>> _______________________________________________
>> AusNOG mailing list
>> AusNOG at lists.ausnog.net
>> http://lists.ausnog.net/mailman/listinfo/ausnog
>>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ausnog.net/pipermail/ausnog/attachments/20181206/8a8c7f46/attachment.html>