Second Reading Speech
Nelson, Dr Brendan, MP (Bradfield, Minister for Education, Science and Training, LP, Government)
I move:
That this bill be now read a second time.
The Communications Legislation Amendment Bill (No. 2) 2003 amends the Telecommunications Act 1997, the Australian Security Intelligence Organisation Act 1979 and the Administrative Decisions (Judicial Review) Act 1977 to enhance the security of Australia's telecommunications services and networks and to improve existing arrangements relating to call data disclosure and interception services.
The Telecommunications Act provides the legislative basis for Australia's open and competitive telecommunications industry. The telecommunications industry is attracting significant new investment which increases the potential for national security and law enforcement issues to arise.
Under the Telecommunications Act a person may apply to the Australian Communications Authority (the ACA) for a carrier licence so long as the person is a constitutional corporation, a partnership of such corporations or a public body. Under the existing framework in the Telecommunications Act, consideration of national security and law enforcement interests is currently not required as part of the carrier-licensing process. The ACA is not required to consult with the relevant national security and law enforcement agencies prior to issuing a carrier licence to an applicant and, whilst the grounds for refusing to grant a carrier licence are not limited under the Telecommunications Act, the ability to refuse to grant a carrier licence on national security grounds is not provided for expressly.
The bill amends the Telecommunications Act to ensure that national security and law enforcement interests are considered in the carrier-licensing process by: (a) requiring the ACA to consult with the agency coordinator in the Attorney-General's Department prior to granting a carrier licence; and (b) allowing the Attorney-General, in consultation with the Prime Minister and the minister administering the Telecommunications Act, to direct the ACA to refuse to grant a carrier licence on national security grounds.
The agency coordinator is a senior official in the Attorney-General's Department who liaises with national security and law enforcement agencies. The agency coordinator will be able to extend the consultation period up to a maximum of 12 months in four three-month periods to deal with any security issues raised by an application for a carrier licence. For example, it may be possible to enter into a contractual arrangement with a carrier licence applicant during this period to address security concerns.
The provision of extended consultation periods will allow any security risks that have been identified to be effectively managed within the carrier-licensing process to ensure that the need for the Attorney-General to exercise the power to issue a direction to the ACA would arise only in extreme circumstances where the risk to national security could not be effectively managed though other mechanisms, such as a contractual arrangement.
The bill will also allow the Attorney-General, again in consultation with the Prime Minister and the minister administering the Telecommunications Act, to direct a person not to use or supply, or to cease using or supplying, a carriage service or all carriage services to itself or any other person on national security grounds. The direction may be issued with respect to particular individuals, groups or existing telecommunications industry participants whose activities pose a risk to national security.
Similarly to the power to direct the ACA to refuse a carrier licence on national security grounds, it is expected that the Attorney-General would exercise the power to direct a person to cease using or supplying a carriage service only in extreme circumstances where the risk to national security cannot be managed effectively through other mechanisms.
The bill amends the Telecommunications Act to allow for the application charge for a carrier licence to be refunded to the applicant if an application is refused by the ACA or upon review. There is no current provision in the Telecommunications Act for the refund of a carrier licence application charge. While there has not been a carrier licence refusal to date, the new provisions in the bill that will allow the Attorney-General to issue a written direction to the ACA to refuse to grant a carrier licence on national security grounds could increase the likelihood of a licence being refused.
The bill amends the Australian Security Intelligence Organisation Act (the ASIO Act) to enable a carrier licence applicant, a carrier or a carriage service provider to apply to the Administrative Appeals Tribunal for review of an adverse or qualified security assessment that ASIO has provided to the Attorney-General. It is expected that ASIO would provide a security assessment to the Attorney-General in connection with the Attorney-General's consideration of whether to issue a direction on national security grounds to the ACA to refuse to grant a carrier licence or to a person not to use or supply, or to cease using or supplying, a carriage service or all carriage services to itself or any other person. The proposed amendments to the ASIO Act will also require the Attorney-General to notify a person of an adverse or qualified security assessment in respect of that person except where such notification would be contrary to the interests of national security.
The bill amends the Administrative Decisions (Judicial Review) Act, the AD(JR) Act, to exclude from judicial review under the AD(JR) Act decisions made by the Attorney-General under the proposed amendments to the Telecommunications Act on national security grounds. The exclusion of judicial review under the AD(JR) Act is consistent with existing exclusions under the AD(JR) Act for similar decisions based on national security considerations. Judicial review will still be available in the Federal Court under section 39B of the Judiciary Act and in the High Court under section 75(v) of the Constitution.
This bill also contains several other minor amendments to the Telecommunications Act to improve the efficiency and effectiveness of current call data disclosure and interception arrangements. The amendments will:
- (a)
- accommodate current law-enforcement agency management structures in the definition of `senior officer' in subsection 282(10) of the Telecommunications Act;
- (b)
- clarify that, when executing a telecommunications warrant, carriers and carriage service providers should provide all relevant information associated with that communication, along with the call content;
- (c)
- clarify that the capability to intercept a communication passing over a network, facility or carriage service is the fundamental legal obligation to be met by carriers and carriage service providers under part 15 of the Telecommunications Act;
- (d)
- impose a 60-day time frame for the agency coordinator to consider applications by carriers and carriage service providers to be exempted from the obligation that their networks, facilities and carriage services have an interception capability;
- (e)
- require carriers and nominated carriage service providers to include in their interception capability plans statements about current and continued compliance with their interception obligations, and to require interception capability plans to be signed by, or on behalf of, the chief executive officer of the carrier or nominated carriage service provider;
- (f)
- change the date on which carriers and nominated carriage service providers must lodge their interception capability plans with the agency coordinator and the ACA from 1 January each year to 1 July each year; and
- (g)
- change references to the Criminal Justice Commission of Queensland to the Crime and Misconduct Commission of Queensland which was established in 2002.
The package of amendments contained in the bill will lead to more secure telecommunications networks and services and improved arrangements for the provision of assistance to law enforcement agencies by telecommunications carriers and carriage service providers. I present the explanatory memorandum to this bill.