[AusNOG] Assistance and Access Bill moves to PJCIS

[Paul Wilkins]

Australia is bound under international law against arbitrary or unlawful
incursions of the right to privacy. That's black letter law.

I'd recommend anyone interested take a look at the submission by Australian
Human Rights Commission
https://www.humanrights.gov.au/sites/default/files/AHRC%20submission%20Access%20and%20Assistance%20draft%20Bill%2010%20Sep%2018.pdf
, because they discuss at length the requirement for the Bill's measures to
be necessary and proportionate.

Of course, the public revenue justification is gone, so it's moot now
whether this provision contravened international law. The remaining
justifications for TCNs/TANs are to prosecute serious crime and terrorism,
which the government is within its constitutional powers to do.

Kind regards

Paul Wilkins

On Tue, 25 Sep 2018 at 11:52, Narelle Clark <narellec at gmail.com> wrote:

>
> On Tue, Sep 25, 2018 at 10:58 AM Paul Wilkins <paulwilkins369 at gmail.com>
> wrote:
> > The Bill was introduced into Parliament by Peter Dutton. His speech to
> the House makes for interesting reading.
> <snippage of good points>
> > I think we're entitled to ask, what exactly constituted this extensive
> industry & public
> > consultation, because people in the industry don't seem to know anyone
> who's been
> > consulted. As to amendments, there has been the removal of "protecting
> the public
> > revenue" as an objective of the Bill, which was probably illegal anyway..
> >
>
> There have been some real improvements, for example:
> - ability to use the courts (though not at all clear)
> - ability to use a third party to assess whether a capability is 'systemic'
> - reinforcement that requests are 'voluntary'
> - not being required to break the laws of another country
> - removal of protection of public revenue as justification
> see:
> https://www.itnews.com.au/news/crypto-bill-adds-pub-test-for-warrants-drops-revenue-justification-512886
>
> However if you look at some of the rest of the commentary, the major
> problems with the bill still exist. My biggest issue is how do we possibly
> estimate what this takes given we've barely got time to read it, let alone
> take advice, formulate a response and submit it? The limited time frame is
> outrageous.
>
> Protecting public revenue was one of the major loopholes in the metadata
> access previously that led to entities like the Taxi Council, local
> government and the RSPCA being able to get at retained data. It is
> certainly not illegal, indeed the big issue that many of the lawyers had at
> the Comms Alliance forum last week was that we have no mechanism in
> Australian law to challenge this type of legislation. Unlike Europe, whose
> Court of Justice recently threw out the UK surveillance bill as being
> counter to the human rights basis of European law.
>
> But hey, once a penal colony, always a penal colony, right?
>
> --
>
>
> Narelle
> narellec at gmail.com
>
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