Supplementary Explanatory Memorandum
(Circulated by authority of the Minister for Communications, Information Technology and the Arts, the Hon. Daryl Williams AM QC MP)Amendments to the Communications Legislation Amendment Bill (No. 2) 2003
Outline
The Communications Legislation Amendment Bill (No. 2) 2003 (the Bill) amends the Telecommunications Act 1997 (the Telecommunications Act), Australian Security Intelligence Organisation Act 1979 (the ASIO Act) and the Administrative Decisions (Judicial Review) Act 1977 to enhance the security of Australia's telecommunications services.
Item 27 in Schedule 1 to the Bill amends the Telecommunications Act to allow the Attorney-General, in consultation with the Prime Minister and the Minister administering the Telecommunications Act, to direct a carrier or carriage service provider 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 security grounds (proposed subsection 581(3)). Amendments (2) and (3) amend item 27 to ensure that the Attorney-General could not give a direction to a carrier or carriage service provider under proposed subsection 581(3) not to supply, or to cease supplying, a carriage service to a particular person, particular persons or a particular class of persons, but rather may only issue a direction in relation to the use or supply of carriage services generally.
Proposed section 38A of the ASIO Act (item 4 in Schedule 1 to the Bill) sets out the notification requirements that apply in relation to adverse or qualified security assessments given to the Attorney-General in connection with proposed section 58A (item 10 of Schedule 1 to the Bill) and proposed subsection 581(3). Amendment (1) omits proposed paragraph 38A(2)(b) from item 4, as a consequence of Amendments (2) and (3), and proposed subsection 38A(3), because this is an unnecessary provision.
Financial impact statement
The proposed Government amendments are not expected to have any financial impact on Commonwealth expenditure or revenue.
Abbreviations
The following abbreviations are used in this supplementary explanatory memorandum:
| AAT: | Administrative Appeals Tribunal |
| ASIO Act: | Australian Security Intelligence Organisation Act 1979 |
| Bill: | Communications Legislation Amendment Bill (No. 2) 2003 |
| Telecommunications Act: | Telecommunications Act 1997 |
Notes on amendments
Amendment (1) amends item 4 in Schedule 1 to the Bill by omitting paragraph 38A(2)(b) and subsection 38A(3) and making consequential changes to the numbering of the remaining provisions.
Item 4 inserts a new section after section 38 of the ASIO Act. Proposed section 38A deals with the notification of an adverse or qualified security assessment to the person who is the subject of the assessment.
The notification requirements apply where an adverse or qualified security assessment is given to the Attorney-General in connection with proposed section 58A (item 10 in Schedule 1 to the Bill) or proposed subsection 581(3) (item 27 in Schedule 1 to the Bill) of the Telecommunications Act. Proposed paragraph 38A(2)(a) requires the Attorney-General, within 14 days of receiving such an assessment, to notify the assessed person in writing of the making of the assessment, give the assessed person a copy of the assessment and inform the assessed person of his or her right to apply to the AAT for review of the assessment. Proposed paragraph 38A(2)(b) applies in addition to paragraph 38A(2)(a) where the assessment relates to subsection 581(3) of the Telecommunications Act and the assessed person is not the carrier or carriage service provider to whom a direction would be given under proposed subsection 581(3). In these circumstances, the Attorney-General is required to notify the carrier or carriage service provider in writing that the assessment has been made, in addition to notifying the assessed person in accordance with paragraph 38A(2)(a).
Amendments (2) and (3) would require a direction given under proposed subsection 581(3) to relate to a carriage service generally and would prevent the Attorney-General from giving a direction to a carrier or carriage service provider that is expressed to apply to the supply of a carriage service to a particular person, particular persons or a particular class of persons. As a consequence, paragraph 38A(2)(b) is no longer necessary because an adverse or qualified security assessment given to the Attorney-General in connection with proposed subsection 581(3) would only ever relate to the carrier or carriage service provider the subject of a direction under that subsection rather than to a particular person.
Amendment (1) also removes an unnecessary provision in item 4 by omitting proposed subsection 38A(3). Proposed subsection 38A(3) provides that the notification requirements in proposed subsection 38A(2) do not apply if the Attorney-General is satisfied that the withholding of the notice or notices (where paragraph 38A(2)(b) applies) is essential to the security of the nation. As a direction under proposed section 58A or proposed subsection 581(3) can only be made on security grounds, the giving of a direction under proposed section 58A or proposed subsection 581(3) would necessarily reveal that an application for a carrier licence, or the use or supply of carriage services by a carrier or carriage service provider, is a security concern. A provision allowing withholding of the notice of the making of an assessment is therefore unnecessary as the issuing of a direction will of itself necessarily reveal that the granting of a carrier licence or the use or supply of particular carriage services is prejudicial to security.
Amendment (2) omits the words ",either generally or to a particular person or persons" from proposed subsection 581(3) in item 27 in Schedule 1 to the Bill. This amendment, combined with that made by Amendment (3), is intended to preclude the Attorney-General from issuing a direction to a carrier or carriage service provider to cease supplying a carriage service to a particular person, particular persons or a particular class of persons.
Amendment (3) inserts a new proposed subsection in item 27 in Schedule 1 to the Bill.
Proposed subsection 581(3A) requires that a direction given under proposed subsection 581(3) relate to a carriage service generally and prevents a direction from being expressed to apply to the supply of a carriage person to a particular person, particular persons or a particular class of persons. This amendment, combined with that made by Amendment (2), is intended to preclude the Attorney-General from issuing a direction to a carrier or carriage service provider to cease supplying a carriage service to a particular person, particular persons or a particular class of persons.
One effect of the amendment would be to allow a direction to be given to a carrier or carriage provider to cease supplying all mobile services, on the basis that the supply of those services is prejudicial to security, but to preclude the giving of a direction to a carrier or carriage service provider to cease supplying mobile services to a particular customer, or particular customers or a particular class of customers.
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