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This is a Bill, not an Act. For current law, see the Acts databases.
2016
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Telecommunications and Other
Legislation Amendment Bill 2016
No. , 2016
(Attorney-General)
A Bill for an Act to amend the law relating to
telecommunications, and for related purposes
No. , 2016
Telecommunications and Other Legislation Amendment Bill 2016
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Part 1--Main amendments
3
Telecommunications Act 1997
3
Telecommunications (Interception and Access) Act 1979
25
Part 2--Other amendments
26
Administrative Decisions (Judicial Review) Act 1977
26
Australian Security Intelligence Organisation Act 1979
26
Part 3--Transitional and saving provisions
27
No. , 2016
Telecommunications and Other Legislation Amendment Bill 2016
1
A Bill for an Act to amend the law relating to
1
telecommunications, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Telecommunications and Other Legislation
5
Amendment Act 2016.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Telecommunications and Other Legislation Amendment Bill 2016
No. , 2016
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
The day after the end of the period of 12
months beginning on the day this Act
receives the Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments Schedule 1
Main amendments Part 1
No. , 2016
Telecommunications and Other Legislation Amendment Bill 2016
3
Schedule 1--Amendments
1
Part 1--Main amendments
2
Telecommunications Act 1997
3
1 Section 5
4
After:
5
•
The ACMA, carriers and carriage service providers must do
6
their best to prevent telecommunications networks and
7
facilities from being used to commit offences.
8
insert:
9
•
Carriers and carriage service providers must do their best to
10
protect telecommunications networks and facilities from
11
unauthorised interference or unauthorised access.
12
2 Section 7
13
Insert:
14
adverse security assessment has the meaning given by section 35
15
of the Australian Security Intelligence Organisation Act 1979.
16
Attorney-General's Department means the Department
17
administered by the Minister administering the Australian Security
18
Intelligence Organisation Act 1979.
19
Attorney-General's Secretary means the Secretary of the
20
Attorney-General's Department.
21
Director-General of Security means the Director-General of
22
Security holding office under the Australian Security Intelligence
23
Organisation Act 1979.
24
nominated carriage service provider means a carriage service
25
provider covered by a declaration in force under subsection 197(4)
26
of the Telecommunications (Interception and Access) Act 1979.
27
Schedule 1 Amendments
Part 1 Main amendments
4
Telecommunications and Other Legislation Amendment Bill 2016
No. , 2016
notifiable equipment has the same meaning as in the
1
Telecommunications (Interception and Access) Act 1979.
2
telecommunications service has the same meaning as in the
3
Telecommunications (Interception and Access) Act 1979.
4
telecommunications system has the same meaning as in the
5
Telecommunications (Interception and Access) Act 1979.
6
3 After subsection 105(5A)
7
Insert:
8
(5B) Paragraph (5A)(a) does not apply in relation to Part 14 to the extent
9
that Part 14 was amended by the Telecommunications and Other
10
Legislation Amendment Act 2016.
11
4 Before section 311
12
Insert:
13
Division 1--Simplified outline
14
5 Section 311
15
After:
16
•
The ACMA, carriers and carriage service providers must do
17
their best to prevent telecommunications networks and
18
facilities from being used to commit offences.
19
insert:
20
•
Carriers and carriage service providers have a duty to do their
21
best to protect telecommunications networks and facilities
22
from unauthorised interference, or unauthorised access, for the
23
purposes of security. Carriers and certain carriage service
24
providers must notify changes to telecommunications services
25
or telecommunications systems that are likely to have a
26
material adverse effect on their capacity to comply with this
27
duty.
28
Amendments Schedule 1
Main amendments Part 1
No. , 2016
Telecommunications and Other Legislation Amendment Bill 2016
5
6 At the end of section 311
1
Add:
2
•
The Attorney-General may give directions to a carrier or a
3
carriage service provider in certain circumstances where
4
certain activities may be prejudicial to security.
5
•
The Attorney-General's Secretary may obtain information
6
from carriers, carriage service providers and carriage service
7
intermediaries if the information is relevant to assessing
8
compliance with the duty of those persons to protect
9
telecommunications networks and facilities from unauthorised
10
interference or unauthorised access.
11
7 Before section 312
12
Insert:
13
Division 2--Obligations of ACMA and carriers and
14
carriage service providers
15
8 After subsection 313(1)
16
Insert:
17
(1A) For the purposes of security (within the meaning of the Australian
18
Security Intelligence Organisation Act 1979), a carrier or carriage
19
service provider must, in connection with:
20
(a) the operation by the carrier or provider of
21
telecommunications networks or facilities; or
22
(b) the supply by the carrier or provider of carriage services;
23
do the carrier's best or the provider's best to protect
24
telecommunications networks and facilities owned, operated or
25
used by the carrier or provider from unauthorised interference or
26
unauthorised access to ensure:
27
(c) the confidentiality of communications carried on, and of
28
information contained on, telecommunications networks or
29
facilities; and
30
(d) the availability and integrity of telecommunications networks
31
and facilities.
32
Schedule 1 Amendments
Part 1 Main amendments
6
Telecommunications and Other Legislation Amendment Bill 2016
No. , 2016
Note:
Security, among other things, covers the protection of, and of the
1
people of, the Commonwealth and the States and Territories from
2
espionage, sabotage, attacks on Australia's defence system and acts of
3
foreign interference.
4
(1B) Without limiting subsection (1A), the duty imposed by that
5
subsection includes the requirement for the carrier or carriage
6
service provider to maintain competent supervision of, and
7
effective control over, telecommunications networks and facilities
8
owned or operated by the carrier or provider.
9
9 After subsection 313(2)
10
Insert:
11
(2A) For the purposes of security (within the meaning of the Australian
12
Security Intelligence Organisation Act 1979), a carriage service
13
intermediary must do the intermediary's best to protect
14
telecommunications networks and facilities used to supply the
15
carriage service referred to in subsection 87(5) from unauthorised
16
interference or unauthorised access to ensure:
17
(a) the confidentiality of communications carried on, and of
18
information contained on, telecommunications networks or
19
facilities; and
20
(b) the availability and integrity of telecommunications networks
21
and facilities.
22
Note:
Security, among other things, covers the protection of, and of the
23
people of, the Commonwealth and the States and Territories from
24
espionage, sabotage, attacks on Australia's defence system and acts of
25
foreign interference.
26
10 Paragraph 313(5)(a)
27
Omit "subsection (1), (2),", substitute "subsection (1), (1A), (2), (2A),".
28
11 At the end of subsection 313(5)
29
Add:
30
; or (c) in compliance with a direction given under
31
subsection 315A(1) or 315B(2).
32
12 After section 314
33
Insert:
34
Amendments Schedule 1
Main amendments Part 1
No. , 2016
Telecommunications and Other Legislation Amendment Bill 2016
7
Division 3--Notification of changes to telecommunications
1
services or telecommunications systems relating
2
to obligation under subsection 313(1A) or (2A)
3
Subdivision A--Individual notifications
4
314A Individual notifications
5
(1) This section applies if, at any time, a carrier or a nominated
6
carriage service provider becomes aware that the implementation
7
by the carrier or provider of a change that is proposed to a
8
telecommunications service or a telecommunications system is
9
likely to have a material adverse effect on the capacity of the
10
carrier or provider to comply with its obligations under
11
subsection 313(1A) or (2A).
12
Kinds of changes
13
(2) A change to a telecommunications service or a telecommunications
14
system includes (but is not limited to) the following:
15
(a) the carrier or carriage service provider providing one or more
16
new telecommunication services;
17
(b) the carrier or carriage service provider changing the location
18
of notifiable equipment (including moving equipment outside
19
Australia);
20
(c) the carrier or carriage service provider procuring notifiable
21
equipment (including procuring equipment that is located
22
outside Australia);
23
(d) the carrier or carriage service provider entering into
24
outsourcing arrangements:
25
(i) to have all or part of the telecommunication services
26
provided for the carrier or provider; or
27
(ii) to have all or part of the provision of telecommunication
28
services managed for the carrier or provider; or
29
(iii) to have all or some information to which section 276
30
applies in relation to the carrier or provider, managed
31
for the carrier or provider;
32
(e) the carrier or carriage service provider entering into
33
arrangements to have all or some information to which
34
Schedule 1 Amendments
Part 1 Main amendments
8
Telecommunications and Other Legislation Amendment Bill 2016
No. , 2016
section 276 applies in relation to the carrier or provider
1
accessed by persons outside Australia.
2
Notification of change
3
(3) The carrier or provider must notify the Communications Access
4
Co-ordinator, in writing, of its intention to implement the proposed
5
change. The notification must include a description of the proposed
6
change.
7
Exemptions
8
(4) The Communications Access Co-ordinator may, by notice in
9
writing given to a carrier or a nominated carriage service provider,
10
exempt the carrier or provider from the operation of this section.
11
Note:
For revocation, see subsection 33(3) of the Acts Interpretation Act
12
1901.
13
(5) The Communications Access Co-ordinator may, by notice in
14
writing given to a carrier or a nominated carriage service provider,
15
exempt the carrier or provider from the operation of this section in
16
relation to changes specified in the notice.
17
Note:
For variation and revocation, see subsection 33(3) of the Acts
18
Interpretation Act 1901.
19
(6) An exemption under subsection (4) or (5) has effect accordingly.
20
(7) An exemption under subsection (4) or (5) is not a legislative
21
instrument.
22
314B Assessment of proposed change
23
Further information
24
(1) If:
25
(a) under subsection 314A(3), a carrier or a nominated carriage
26
service provider notifies the Communications Access
27
Co-ordinator of a proposed change; and
28
(b) the Co-ordinator considers that further information, in
29
relation to the proposed change, is required for the
30
Co-ordinator to assess whether there is a risk of unauthorised
31
interference with, or unauthorised access to,
32
Amendments Schedule 1
Main amendments Part 1
No. , 2016
Telecommunications and Other Legislation Amendment Bill 2016
9
telecommunications networks or facilities that would be
1
prejudicial to security;
2
the Co-ordinator may, by notice in writing given to the carrier or
3
provider, set out the further information the Co-ordinator requires.
4
(2) A notice under subsection (1) must be given to the carrier or
5
provider within 30 days of the notification of the proposed change
6
to the Communications Access Co-ordinator.
7
Assessment of proposed change
8
(3) If:
9
(a) the Communications Access Co-ordinator considers a
10
proposed change notified under subsection 314A(3)
11
(including a proposed change where further information is
12
provided as mentioned in this section); and
13
(b) in relation to the proposed change, the Co-ordinator is
14
satisfied that there is a risk of unauthorised interference with,
15
or unauthorised access to, telecommunications networks or
16
facilities that would be prejudicial to security;
17
the Co-ordinator must give a written notice to the carrier or
18
provider:
19
(c) advising the carrier or provider of that risk; and
20
(d) setting out the duty imposed by subsection 313(1A) or (2A);
21
and
22
(e) setting out the consequences for the carrier or provider for
23
not complying with that duty.
24
(4) A notice under subsection (3) may also set out the measures the
25
Communications Access Co-ordinator considers the carrier or
26
provider could adopt to eliminate or reduce the risk referred to in
27
subsection (3).
28
(5) If:
29
(a) the Communications Access Co-ordinator considers a
30
proposed change notified under subsection 314A(3)
31
(including a proposed change where further information is
32
provided as mentioned in this section); and
33
(b) in relation to the proposed change, the Co-ordinator is
34
satisfied that there is not a risk of unauthorised interference
35
Schedule 1 Amendments
Part 1 Main amendments
10
Telecommunications and Other Legislation Amendment Bill 2016
No. , 2016
with, or unauthorised access to, telecommunications
1
networks or facilities that would be prejudicial to security;
2
the Co-ordinator must give a written notice to the carrier or
3
provider to that effect.
4
(6) In response to a proposed change notified to the Communications
5
Access Co-ordinator under subsection 314A(3), a notice must be
6
given to the carrier or provider:
7
(a) within 30 days of the notification; or
8
(b) if under subsection (1) the Communications Access
9
Co-ordinator sought further information from the carrier or
10
provider--as soon as practicable and no later than 30 days
11
after the carrier or provider gave that further information.
12
The notice must be a notice under subsection (3) or (5).
13
Definitions
14
(7) In this section:
15
security has the same meaning as in the Australian Security
16
Intelligence Organisation Act 1979.
17
Subdivision B--Security capability plans
18
314C Security capability plans
19
(1) A carrier or a nominated carriage service provider may give the
20
Communications Access Co-ordinator a written instrument (a
21
security capability plan) under this section.
22
(2) A security capability plan may set out one or more changes to a
23
telecommunications service or a telecommunications system the
24
carrier or provider proposes to implement in the future that are
25
likely to have a material adverse effect on the capacity of the
26
carrier or provider to comply with its obligations under
27
subsection 313(1A) or (2A).
28
(3) A security capability plan may set out the time each of the changes
29
is proposed to be implemented.
30
Amendments Schedule 1
Main amendments Part 1
No. , 2016
Telecommunications and Other Legislation Amendment Bill 2016
11
Kinds of changes
1
(4) For the purposes of subsection (2), a change to a
2
telecommunications service or a telecommunications system
3
includes (but is not limited to):
4
(a) changes referred to in subsection 314A(2); and
5
(b) changes determined in an instrument under subsection (5) of
6
this section.
7
(5) The Communications Access Co-ordinator may, by legislative
8
instrument, determine changes for the purposes of
9
paragraph (4)(b).
10
Other matters plan may include
11
(6) A security capability plan may set out the carrier's or provider's
12
practices, policies or strategies to comply with its obligations under
13
subsection 313(1A) or (2A).
14
(7) A security capability plan may set out the measures the carrier or
15
provider is implementing, or proposing to implement, to mitigate
16
the risk of unauthorised interference with, or unauthorised access
17
to, telecommunications networks or facilities.
18
One instrument each 12-month period
19
(8) A carrier or a nominated carriage service provider cannot give
20
more than one instrument under this section in any 12-month
21
period.
22
314D Assessment of security capability plan
23
Further information
24
(1) If:
25
(a) a carrier or a nominated carriage service provider gives the
26
Communications Access Co-ordinator a security capability
27
plan setting out one or more proposed changes mentioned in
28
subsection 314C(2); and
29
(b) the Co-ordinator considers that further information, in
30
relation to a particular proposed change, is required for the
31
Co-ordinator to assess whether there is a risk of unauthorised
32
interference with, or unauthorised access to,
33
Schedule 1 Amendments
Part 1 Main amendments
12
Telecommunications and Other Legislation Amendment Bill 2016
No. , 2016
telecommunications networks or facilities that would be
1
prejudicial to security;
2
the Co-ordinator may, by notice in writing given to the carrier or
3
provider, set out the further information the Co-ordinator requires.
4
(2) A notice under subsection (1) must be given to the carrier or
5
provider within 60 days of the plan being given to the
6
Communications Access Co-ordinator.
7
Assessment of proposed change
8
(3) If:
9
(a) the Communications Access Co-ordinator considers a
10
particular proposed change mentioned in subsection 314C(2)
11
that is set out in a security capability plan (including a
12
proposed change where further information is provided as
13
mentioned in this section); and
14
(b) in relation to the proposed change, the Co-ordinator is
15
satisfied that there is a risk of unauthorised interference with,
16
or unauthorised access to, telecommunications networks or
17
facilities that would be prejudicial to security;
18
the Co-ordinator must give a written notice to the carrier or
19
provider:
20
(c) advising the carrier or provider of that risk; and
21
(d) setting out the duty imposed by subsection 313(1A) or (2A);
22
and
23
(e) setting out the consequences for the carrier or provider for
24
not complying with that duty.
25
(4) A notice under subsection (3) may also set out the measures the
26
Communications Access Co-ordinator considers the carrier or
27
provider could adopt to eliminate or reduce the risk referred to in
28
subsection (3).
29
(5) If:
30
(a) the Communications Access Co-ordinator considers a
31
particular proposed change mentioned in subsection 314C(2)
32
that is set out in a security capability plan (including a
33
proposed change where further information is provided as
34
mentioned in this section); and
35
Amendments Schedule 1
Main amendments Part 1
No. , 2016
Telecommunications and Other Legislation Amendment Bill 2016
13
(b) in relation to the proposed change, the Co-ordinator is
1
satisfied that there is not a risk of unauthorised interference
2
with, or unauthorised access to, telecommunications
3
networks or facilities that would be prejudicial to security;
4
the Co-ordinator must give a written notice to the carrier or
5
provider to that effect.
6
(6) In response to a proposed change mentioned in subsection 314C(2)
7
that is set out in a security capability plan, a notice must be given
8
to the carrier or provider:
9
(a) within 60 days of the plan being given to the
10
Communications Access Co-ordinator; or
11
(b) if under subsection (1) the Communications Access
12
Co-ordinator sought further information from the carrier or
13
provider--as soon as practicable and no later than 60 days
14
after the carrier or provider gave that further information.
15
The notice must be a notice under subsection (3) or (5) and may
16
relate to one or more such changes.
17
Definitions
18
(7) In this section:
19
security has the same meaning as in the Australian Security
20
Intelligence Organisation Act 1979.
21
314E Relationship with section 314A
22
Dual notifications not required
23
(1) If, under section 314C, a carrier or a nominated carriage service
24
provider has given a security capability plan setting out one or
25
more proposed changes mentioned in subsection 314C(2), the
26
carrier or provider is not required to notify those proposed changes
27
under section 314A.
28
Certain modifications to changes are changes in their own right
29
(2) If:
30
(a) under section 314C, a carrier or a nominated carriage service
31
provider has given a security capability plan setting out one
32
Schedule 1 Amendments
Part 1 Main amendments
14
Telecommunications and Other Legislation Amendment Bill 2016
No. , 2016
or more proposed changes mentioned in subsection 314C(2);
1
and
2
(b) the carrier or provider becomes aware that the
3
implementation by the carrier or provider of any modification
4
to such a proposed change is likely to have a material adverse
5
effect on the capacity of the carrier or provider to comply
6
with its obligations under subsection 313(1A) or (2A);
7
then section 314A applies in relation to the modification as if the
8
modification were a change in its own right.
9
Division 4--Carriage service provider may suspend supply
10
of carriage service in an emergency
11
13 After section 315
12
Insert:
13
Division 5--Directions by Attorney-General
14
315A Direction if use or supply of carriage services prejudicial to
15
security
16
(1) If:
17
(a) a person who is a carrier or carriage service provider
18
proposes to use, or uses, for the person's own requirements
19
or benefit, or proposes to supply, or supplies, to another
20
person, one or more carriage services; and
21
(b) the Attorney-General, after consulting the Prime Minister and
22
the Minister administering this Act, considers that the
23
proposed use or supply would be, or the use or supply is, as
24
the case may be, prejudicial to security;
25
the Attorney-General may give the carrier or carriage service
26
provider a written direction not to use or supply, or to cease using
27
or supplying, the carriage service or the carriage services.
28
(2) A direction under subsection (1) must relate to a carriage service
29
generally and cannot be expressed to apply to the supply of a
30
carriage service to a particular person, particular persons or a
31
particular class of persons.
32
Amendments Schedule 1
Main amendments Part 1
No. , 2016
Telecommunications and Other Legislation Amendment Bill 2016
15
Direction to be given after adverse security assessment
1
(3) The Attorney-General must not give a carrier or carriage service
2
provider a direction under subsection (1) unless an adverse security
3
assessment in respect of the carrier or carriage service provider is
4
given to the Attorney-General in connection with this section.
5
Copy of direction to be given to ACMA
6
(4) The Attorney-General must give the ACMA a copy of any
7
direction under subsection (1).
8
Compliance with direction
9
(5) A person must comply with a direction given to the person under
10
subsection (1).
11
Definitions
12
(6) In this section:
13
security has the same meaning as in the Australian Security
14
Intelligence Organisation Act 1979.
15
315B Direction if risk of unauthorised interference or access
16
involving telecommunications networks or facilities
17
(1) This section applies if, in connection with:
18
(a) the operation by a carrier or carriage service provider of
19
telecommunications networks or facilities; or
20
(b) the supply by a carrier or carriage service provider of a
21
carriage service; or
22
(c) the supply by a carriage service provider of a carriage
23
service, being a supply arranged by a carriage service
24
intermediary;
25
the Attorney-General is satisfied that there is a risk of unauthorised
26
interference with, or unauthorised access to, telecommunications
27
networks or facilities that would be prejudicial to security.
28
(2) The Attorney-General may give a carrier, carriage service provider
29
or carriage service intermediary a written direction requiring the
30
carrier, provider or intermediary to do, or to refrain from doing, a
31
specified act or thing within the period specified in the direction.
32
Schedule 1 Amendments
Part 1 Main amendments
16
Telecommunications and Other Legislation Amendment Bill 2016
No. , 2016
(3) A direction under subsection (2) may be given only if the
1
Attorney-General is satisfied that requiring the carrier, carriage
2
service provider or carriage service intermediary to do, or to refrain
3
from doing, the specified act or thing is reasonably necessary for
4
purposes relating to eliminating or reducing the risk referred to in
5
subsection (1).
6
Direction to be given after adverse security assessment
7
(4) The Attorney-General must not give a carrier, carriage service
8
provider or carriage service intermediary a direction under
9
subsection (2) unless an adverse security assessment in respect of
10
the carrier, provider or intermediary is given to the
11
Attorney-General in connection with this section.
12
Direction to be given after negotiations in good faith
13
(5) The Attorney-General must not give a carrier, carriage service
14
provider or carriage service intermediary a direction under
15
subsection (2) unless the Attorney-General is satisfied that
16
reasonable steps have been taken to negotiate in good faith with the
17
carrier, provider or intermediary to achieve an outcome of
18
eliminating or reducing the risk referred to in subsection (1).
19
Matters to which regard must be had before giving direction
20
(6) Before giving a carrier, carriage service provider or carriage
21
service intermediary a direction under subsection (2), the
22
Attorney-General must have regard to the following matters:
23
(a) the adverse security assessment mentioned in subsection (4);
24
(b) the costs, in complying with any direction, that would be
25
likely to be incurred by the carrier, provider or intermediary;
26
(c) the potential consequences that any direction may have on
27
competition in the telecommunications industry;
28
(d) the potential consequences that any direction may have on
29
customers of the carrier, provider or intermediary.
30
The Attorney-General must give the greatest weight to the matter
31
mentioned in paragraph (a).
32
(7) Subsection (6) does not limit the matters to which regard may be
33
had.
34
Amendments Schedule 1
Main amendments Part 1
No. , 2016
Telecommunications and Other Legislation Amendment Bill 2016
17
Consultation
1
(8) Before giving a carrier, carriage service provider or carriage
2
service intermediary a direction under subsection (2), the
3
Attorney-General must:
4
(a) consult the Minister administering this Act; and
5
(b) do the following:
6
(i) by written notice, given to the carrier, provider or
7
intermediary, set out the proposed direction;
8
(ii) in that notice, invite the carrier, provider or intermediary
9
to make written representations to the Attorney-General
10
in relation to the proposed direction within the period
11
specified in the notice;
12
(iii) have regard to any such representations made within
13
that period.
14
(9) For the purposes of subparagraph (8)(b)(ii), the period to be
15
specified in the notice must be at least 28 days after the notice is
16
given. However, the Attorney-General may specify a shorter period
17
if the Attorney-General considers it necessary to do so because of
18
urgent circumstances.
19
(10) Subsection (8) does not limit the persons with whom the
20
Attorney-General may consult.
21
Copy of direction to be given to ACMA
22
(11) The Attorney-General must give the ACMA a copy of any
23
direction under subsection (2).
24
Compliance with direction
25
(12) A person must comply with a direction given to the person under
26
subsection (2).
27
Definitions
28
(13) In this section:
29
security has the same meaning as in the Australian Security
30
Intelligence Organisation Act 1979.
31
Schedule 1 Amendments
Part 1 Main amendments
18
Telecommunications and Other Legislation Amendment Bill 2016
No. , 2016
Division 6--Attorney-General's Secretary's
1
information-gathering powers
2
315C Attorney-General's Secretary may obtain information and
3
documents from carriers and carriage service providers
4
(1) This section applies to a carrier, carriage service provider or
5
carriage service intermediary if the Attorney-General's Secretary
6
has reason to believe that the carrier, provider or intermediary has
7
information or a document that is relevant to assessing compliance
8
with the duty imposed by subsection 313(1A) or (2A).
9
(2) The Attorney-General's Secretary may, by written notice given to
10
the carrier, provider or intermediary, require the carrier, provider or
11
intermediary:
12
(a) to give to that Secretary, within the period and in the manner
13
and form specified in the notice, any such information; or
14
(b) to produce to that Secretary, within the period and in the
15
manner specified in the notice, any such documents; or
16
(c) to make copies of any such documents and to produce to that
17
Secretary, within the period and in the manner specified in
18
the notice, those copies.
19
(3) The carrier, provider or intermediary must comply with a
20
requirement under subsection (2).
21
Matters to which regard must be had before giving notice
22
(4) Before giving a carrier, carriage service provider or carriage
23
service intermediary a notice under subsection (2), the
24
Attorney-General's Secretary must have regard to the costs, in
25
complying with any requirement in the notice, that would be likely
26
to be incurred by the carrier, provider or intermediary.
27
(5) Subsection (4) does not limit the matters to which regard may be
28
had.
29
Content of notice
30
(6) A notice given to a carrier under this section must set out the effect
31
of the following provisions:
32
(a) subsection (3);
33
Amendments Schedule 1
Main amendments Part 1
No. , 2016
Telecommunications and Other Legislation Amendment Bill 2016
19
(b) section 68;
1
(c) section 570;
2
(d) Part 1 of Schedule 1;
3
(e) sections 137.1 and 137.2 of the Criminal Code (false or
4
misleading information or documents).
5
(7) A notice given to a carriage service provider or carriage service
6
intermediary under this section must set out the effect of the
7
following provisions:
8
(a) subsection (3);
9
(b) section 101;
10
(c) section 570;
11
(d) Part 1 of Schedule 2;
12
(e) sections 137.1 and 137.2 of the Criminal Code (false or
13
misleading information or documents).
14
Copying documents--reasonable compensation
15
(8) A carrier, carriage service provider or carriage service intermediary
16
is entitled to be paid by the Commonwealth reasonable
17
compensation for complying with a requirement covered by
18
paragraph (2)(c).
19
315D Self-incrimination
20
(1) A person is not excused from giving information or producing a
21
document or a copy of a document under section 315C on the
22
ground that the information or the production of the document or
23
copy might tend to incriminate the person or expose the person to a
24
penalty.
25
(2) However, in the case of an individual:
26
(a) the information given or the document or copy produced; or
27
(b) giving the information or producing the document or copy; or
28
(c) any information, document or thing obtained as a direct or
29
indirect consequence of giving the information or producing
30
the document or copy;
31
is not admissible in evidence against the individual:
32
Schedule 1 Amendments
Part 1 Main amendments
20
Telecommunications and Other Legislation Amendment Bill 2016
No. , 2016
(d) in criminal proceedings other than proceedings for an offence
1
against section 137.1 or 137.2 of the Criminal Code that
2
relates to this Division; or
3
(e) in civil proceedings other than proceedings under section 570
4
for recovery of a penalty in relation to a contravention of
5
subsection 315C(3).
6
315E Copies of documents
7
(1) The Attorney-General's Secretary may inspect a document or copy
8
produced under section 315C and may make and retain copies of
9
such a document.
10
(2) The Attorney-General's Secretary may retain possession of a copy
11
of a document produced in accordance with a requirement covered
12
by paragraph 315C(2)(c).
13
315F Retention of documents
14
(1) The Attorney-General's Secretary may take, and retain for as long
15
as is necessary, possession of a document produced under
16
section 315C.
17
(2) The person otherwise entitled to possession of the document is
18
entitled to be supplied, as soon as practicable, with a copy certified
19
by the Attorney-General's Secretary to be a true copy.
20
(3) The certified copy must be received in all courts and tribunals as
21
evidence as if it were the original.
22
(4) Until a certified copy is supplied, the Attorney-General's Secretary
23
must, at such times and places as he or she thinks appropriate,
24
permit the person otherwise entitled to possession of the document,
25
or a person authorised by that person, to inspect and make copies
26
of the document.
27
315G Delegation by Attorney-General's Secretary
28
(1) The Attorney-General's Secretary may, in writing, delegate any or
29
all of his or her powers and functions under sections 315C, 315E
30
and 315F to the Director-General of Security.
31
Amendments Schedule 1
Main amendments Part 1
No. , 2016
Telecommunications and Other Legislation Amendment Bill 2016
21
(2) In exercising a power or performing a function under a delegation
1
under subsection (1), the Director-General of Security must
2
comply with any directions of the Attorney-General's Secretary.
3
Division 7--Information sharing and confidentiality
4
315H Information sharing and confidentiality
5
(1) A person who obtains information or a document under
6
section 314A, 314B, 314C, 314D, 315C or this subsection may
7
disclose any of that information, or provide the document (or a
8
copy of it), to another person for either or both of the following
9
purposes:
10
(a) the assessment of the risk of unauthorised interference with,
11
or unauthorised access to, telecommunications networks or
12
facilities and, if there is such a risk, the assessment of the risk
13
to security;
14
(b) the purposes of security.
15
Limitation
16
(2) However, if a person obtains information or a document under
17
section 314A, 314B, 314C, 314D, 315C or subsection (1) of this
18
section, the person must not disclose any of that information, or
19
provide the document (or a copy of it), to a person who is not a
20
Commonwealth officer, to the extent that the information is
21
identifying information or that the document (or a copy of it)
22
contains identifying information.
23
Confidentiality
24
(3) Subject to this section, a person who obtains information or a
25
document under section 314A, 314B, 314C, 314D, 315C or this
26
section must treat the information or document as confidential.
27
Definitions
28
(4) In this section:
29
Commonwealth officer means:
30
Schedule 1 Amendments
Part 1 Main amendments
22
Telecommunications and Other Legislation Amendment Bill 2016
No. , 2016
(a) a person who is in the employment of the Commonwealth,
1
other than a person who is engaged outside Australia to
2
perform duties outside Australia as an employee; or
3
(b) a person who holds or performs the duties of any office or
4
position established by or under a law of the Commonwealth;
5
or
6
(c) a member of the Australian Defence Force; or
7
(d) the Commissioner of the Australian Federal Police, a Deputy
8
Commissioner of the Australian Federal Police, an AFP
9
employee, a special member or a special protective service
10
officer (all within the meaning of the Australian Federal
11
Police Act 1979).
12
Note:
Paragraph (a) of this definition covers, for example, persons employed
13
by the Director-General of Security, on behalf of the Commonwealth,
14
under subsection 84(1) of the Australian Security Intelligence
15
Organisation Act 1979.
16
identifying information means information that identifies the
17
carrier, carriage service provider or carriage service intermediary
18
concerned.
19
security has the same meaning as in the Australian Security
20
Intelligence Organisation Act 1979.
21
Division 8--Annual report
22
315J Annual report
23
(1) The Attorney-General's Secretary must report each financial year
24
to the Attorney-General on the operation of this Part, to the extent
25
that this Part was amended by the Telecommunications and Other
26
Legislation Amendment Act 2016.
27
(2) The Attorney-General's Secretary must give a report under
28
subsection (1) to the Attorney-General as soon as practicable after
29
the end of the financial year concerned.
30
(3) The Attorney-General must cause a copy of a report under
31
subsection (1) to be laid before each House of the Parliament
32
within 15 sitting days of that House after receiving the report.
33
Amendments Schedule 1
Main amendments Part 1
No. , 2016
Telecommunications and Other Legislation Amendment Bill 2016
23
14 Before section 316
1
Insert:
2
Division 9--Generality of Part not limited
3
15 Subsections 564(1) and (2)
4
Omit "or the ACCC", substitute ", the ACCC or the Attorney-General".
5
16 After subsection 564(3)
6
Insert:
7
Limit on standing of the Attorney-General
8
(3A) Despite subsections (1) and (2), the Attorney-General is not
9
entitled to apply for an injunction unless the application relates to a
10
contravention of:
11
(a) the carrier licence condition set out in Part 1 of Schedule 1 in
12
so far as that condition relates to subsection 313(1A),
13
314A(3), 315A(5), 315B(12) or 315C(3); or
14
(b) the service provider rule set out in Part 1 of Schedule 2 in so
15
far as that rule relates to subsection 313(1A) or (2A),
16
314A(3), 315A(5), 315B(12) or 315C(3).
17
17 Before subsection 564(4)
18
Insert:
19
Definitions
20
18 Subsection 571(1)
21
Omit "or the ACCC", substitute ", the ACCC or the Attorney-General".
22
19 Before subsection 571(3)
23
Insert:
24
Limit on standing of the ACMA
25
20 At the end of section 571
26
Add:
27
Schedule 1 Amendments
Part 1 Main amendments
24
Telecommunications and Other Legislation Amendment Bill 2016
No. , 2016
Limit on standing of the Attorney-General
1
(4) Despite subsection (1), the Attorney-General is not entitled to
2
institute a proceeding for the recovery of a pecuniary penalty
3
unless the proceeding relates to a contravention of:
4
(a) the carrier licence condition set out in Part 1 of Schedule 1 in
5
so far as that condition relates to subsection 313(1A),
6
314A(3), 315A(5), 315B(12) or 315C(3); or
7
(b) the service provider rule set out in Part 1 of Schedule 2 in so
8
far as that rule relates to subsection 313(1A) or (2A),
9
314A(3), 315A(5), 315B(12) or 315C(3).
10
21 Section 572A
11
After "ACMA", insert "or the Attorney-General".
12
22 Subsections 572B(1), (3) and (4)
13
After "ACMA", insert "or the Attorney-General".
14
23 At the end of subsection 572B(5)
15
Add "The Attorney-General may arrange for the publishing of the
16
undertaking on the Attorney-General's Department's website.".
17
24 After subsection 572B(5)
18
Insert:
19
(5A) Despite subsection (1), the Attorney-General is not entitled to
20
accept an undertaking under this section unless the undertaking
21
relates to compliance with:
22
(a) the carrier licence condition set out in Part 1 of Schedule 1 in
23
so far as that condition relates to subsection 313(1A),
24
314A(3), 315A(5), 315B(12) or 315C(3); or
25
(b) the service provider rule set out in Part 1 of Schedule 2 in so
26
far as that rule relates to subsection 313(1A) or (2A),
27
314A(3), 315A(5), 315B(12) or 315C(3).
28
(5B) The ACMA's powers under subsections (3) to (5) are only in
29
relation to undertakings it has accepted. The Attorney-General's
30
powers under those subsections are only in relation to undertakings
31
he or she has accepted.
32
Amendments Schedule 1
Main amendments Part 1
No. , 2016
Telecommunications and Other Legislation Amendment Bill 2016
25
25 Subsection 572C(1)
1
After "ACMA" (wherever occurring), insert "or the Attorney-General".
2
26 At the end of section 572C
3
Add:
4
(3) The ACMA's power under subsection (1) is only in relation to
5
undertakings it has accepted. The Attorney-General's power under
6
that subsection is only in relation to undertakings he or she has
7
accepted.
8
27 Subsections 581(3) and (3A)
9
Repeal the subsections.
10
28 Subsection 581(4)
11
Omit "or (3)".
12
29 Subsection 581(5)
13
Repeal the subsection.
14
Telecommunications (Interception and Access) Act 1979
15
30 Subparagraph 202A(a)(ii)
16
After "Telecommunications Act 1997", insert "(other than
17
subsection 313(1A) or (2A) of that Act)".
18
31 At the end of paragraph 202B(1)(b)
19
Add "(other than subsection 313(1A) or (2A) of that Act)".
20
Schedule 1 Amendments
Part 2 Other amendments
26
Telecommunications and Other Legislation Amendment Bill 2016
No. , 2016
Part 2--Other amendments
1
Administrative Decisions (Judicial Review) Act 1977
2
32 Paragraph (daa) of Schedule 1
3
Omit ", or subsection 581(3),".
4
Australian Security Intelligence Organisation Act 1979
5
33 Subsection 35(1) (subparagraph (d)(ii) of the definition of
6
prescribed administrative action)
7
Repeal the subparagraph, substitute:
8
(ii) subsection 315A(1) or 315B(2);
9
34 Paragraph 38A(1)(b)
10
Repeal the paragraph, substitute:
11
(b) section 315A or 315B;
12
Amendments Schedule 1
Transitional and saving provisions Part 3
No. , 2016
Telecommunications and Other Legislation Amendment Bill 2016
27
Part 3--Transitional and saving provisions
1
35 Transitional and saving provisions
2
(1)
A direction in force under subsection 581(3) of the Telecommunications
3
Act 1997 immediately before the commencement of this item has effect
4
on and after that commencement as if it were a direction in force under
5
subsection 315A(1) of that Act.
6
(2)
An assessment mentioned in subsection 38A(1) of the Australian
7
Security Intelligence Organisation Act 1979 that is given to the
8
Attorney-General under that Act before the commencement of this item
9
in connection with subsection 581(3) of the Telecommunications Act
10
1997 has effect on and after that commencement as if it were given in
11
connection with section 315A of the Telecommunications Act 1997.
12
(3)
Paragraph (daa) of Schedule 1 to the Administrative Decisions (Judicial
13
Review) Act 1977, as in force immediately before the commencement of
14
this item, continues to apply on and after that commencement in relation
15
to a decision of the Attorney-General under subsection 581(3) of the
16
Telecommunications Act 1997 made before that commencement.
17
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