[AusNOG] Assistance and Access Bill moves to PJCIS

[Paul Wilkins]

The Bill as amended gets its 3rd reading.

On Thu, 6 Dec 2018 at 12:06, Paul Wilkins <paulwilkins369 at gmail.com> wrote:

> 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
>>>
>>
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