On 9 July 2020, a review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth) (“the Act”) was tabled at parliament by the then Independent National Security Legislation Monitor (“INSLM”) Dr James Renwick. Dr Renwick completed his term as the INSLM, and the review, on 30 June 2020.
The review was referred to the INSLM by the Parliamentary Joint Committee on Intelligence and Security on 26 March 2019. It was to focus primarily on whether the Act contained sufficient safeguards to protect the rights of individuals, whilst remaining proportionate and necessary.
The draft Bill of the Act was discussed in an earlier TimeBase article.
The Act amends various acts in order to introduce measures in order to better address the challenges posed by encryption of digital information and communication. Encryption of messages or information in order to protect personal, commercial, and government information promotes confidence in the security of cyberspace, and therefore can provide economic benefits by enabling secure online activities such as online banking and shopping. However, the use of encryption by terrorists and criminals has affected law enforcement and intelligence agencies’ abilities to collect intelligence and conduct investigations.
Schedule 1 of the Act introduces a new framework for industry assistance, including new powers for police and intelligence agencies to secure assistance from key companies in the communications supply chain both within and outside Australia. Schedules 2 to 4 of the Act sought to strengthen agencies’ capabilities and effectiveness in an increasingly encrypted digital environment by enhancing their collection capabilities. Schedule 5 of the Act gives the Australian Security Intelligence Organisation (“ASIO”) additional powers in order to seek and receive voluntary and compulsory assistance.
The review mainly focuses on Schedule 1 of the Act. Under these amendments, police and intelligence agencies may request or compel a Designated Communications Provider (“DCP”) to provide technical assistance. Assistance from DCPs can be in the form of:
In relation to Schedule 1, the review mainly recommends that notices to compel assistance from DCPs should be authorised by a body which is independent from the issuing agency or government. Schedule 1 powers are also recommended to be extended to integrity and anti-corruption agencies.
In regards to Schedules 2 to 4, Dr Renwick reported that the powers conferred were necessary and proportionate, subject to only minor amendments and further monitoring.
Schedule 5 of the Act provides for ASIO with additional powers. Firstly, it allows the Director-General of Security to issue a voluntary assistance request to a person in order to assist ASIO in the performance of its functions. Secondly, the Attorney-General, under the request of the Director-General of Security, may issue a compulsory assistance order in order to compel a person to assist in accessing data on a computer or storage device. In relation to Schedule 5, Dr Renwick notes that these powers should be amended in order to limit and clarify its scope.
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Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth) available from TimeBase’s LawOne Service
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