Australia: Telecommunications Sector Security Reforms (TSSR): Finally to become law?

On 30 June 2017, the Australian Parliamentary Joint Committee on Intelligence and Security (PJCIS) released its report on the Telecommunications and Other Legislation Amendment Bill 2016 (TSSR Bill). The PJCIS recommended that the TSSR Bill, which will implement the telecommunications sector security reforms announced by the Government in mid-2015, should be passed, albeit with amendments. The amendments and other additional steps recommended by the PJCIS in its June 2017 report are intended to address industry concerns that the proposed legislation is vague, would be difficult to interpret and costly to comply with. Given the PJCIS has supported the TSSR Bill it seems likely that it will be passed in 2017, noting it will be subject to a 12 month implementation period.

Background

The PJCIS first recommended legislation to strengthen the protection of Australia's telecommunications networks from national security risks in its Report of the Inquiry into Potential Reforms of Australia's National Security Legislation in mid-2013.

An earlier version of the TSSR Bill was released for public consultation in June 2015. In their joint media release announcing the commencement of consultation, the Australian Attorney-General and the Prime Minister (in his then role as Australian Minister for Communications), noted that the intention of the proposed legislation was to provide a security framework to strengthen Australia's ability to manage national security risks to telecommunications networks, given Australia's increasing economic and social dependence on those networks. The consultation draft of the bill reflected the approach recommended by the PJCIS and provided for:

  1. Telecommunications carriers, as well as carriage service providers and intermediaries, to be obliged to:
    1. protect their networks from unauthorised access and interference; and
    2. notify the Government of changes to networks and management systems that could adversely affect their ability to protect their networks.
  1. Direction and information gathering powers to be granted to the Secretary of the Attorney-General's Department.

The obligations imposed on the sector were to be in addition to other legislative protections, including under the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act), which requires regulated entities to notify planned changes to services or systems that are likely to have an adverse effect on a relevant entity's ability to secure its systems and under the Telecommunications Act 1997 (Cth), which provides a power to the Attorney-General to direct a relevant telecommunications company to cease operating its service where operation of the service is or would be prejudicial to security.

Although supportive of the goal of strengthening protection against national security threats, industry stakeholders objected to the 2015 consultation draft of the bill. These concerns centred on the broad scope of the provisions of the bill and the difficulties of interpreting vaguely worded provisions in the bill. The bill was also seen as very prescriptive, with telecommunications companies being required to comply with directions relating to security risks, without general rights of consultation or rights of appeal. Of course, the potential costs of compliance were also seen as a concern.

Introduction of the TSSR Bill

The TSSR Bill was introduced into the Australian Senate on 9 November 2016. The Bill had been amended from the earlier draft to reflect concerns raised in the consultations that occurred in 2015 and early 2016. For example:

  • Some clarification was made regarding the scope of the obligation to protect telecommunications networks. This would only apply to risks of unauthorised access and interference for the purposes of security.
  • The powers to issue directions would be vested only in the Attorney-General, not the Secretary of the Attorney-General's Department.
  • Restrictions would be imposed around the power to issue directions. For example, the Attorney-General would only be permitted to issue directions where the Australian Security Intelligence Organisation (ASIO) has issued an adverse security assessment and if consultation with the impacted company and the Minister for Communications had occurred (amongst other conditions). In addition, decisions to issue a direction would be reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

On being introduced, the TSSR Bill was promptly referred to the PJCIS. That referral provided an opportunity for stakeholders to raise remaining concerns with the terms of the TSSR Bill.

Recommendations of Parliamentary Committee on the TSSR Bill

The PJCIS released its report on the TSSR Bill on 30 June 2017, a delay from the proposed release date of April 2017. The PJCIS recommended that TSSR Bill should be passed, subject to a number of amendments being made and other actions being taken.

The amendments to the TSSR Bill supported by the PJCIS include, amongst other things:

  • Inserting provisions requiring a three year review by the PJCIS of the operation of the legislation, including consideration of the security of critical and sensitive data, the adequacy of information sharing arrangements between the Government and industry and how well the administrative guidelines (discussed further below) operate to provide clarity to industry.
  • Reflecting a concern regarding the security of data held offshore as required by the new data retention provisions of Part 5-1A of the TIA Act, including a requirement for notification of any new or amended arrangements for holding that data offshore.

The PJCIS also placed great emphasis on the proposed administrative guidelines for the TSSR Bill, which will be issued by the Government to assist regulated entities in determining what is required to comply with the security and notification obligations in the TSSR Bill. The PJCIS recommendations regarding the guidelines included:

  • The guidelines should provide greater detail and certainty for industry, including by providing clarification of an entity's obligations, for example, where it uses telecommunications infrastructure but does not own or operate it, where any of its infrastructure is located outside Australia or where it provides over-the-top services or cloud computing and storage services.
  • The guidelines should provide greater detail regarding the changes to telecommunications services or systems that will, or will not, be required to be notified to the Government's new Communications Access Co-ordinator.

The PJCIS also recommended greater sharing of information by the Government with industry, including regarding security threats, though this would occur outside the legislation and the administrative guidelines.

What happens now?

The Prime Minister had hoped that the TSSR Bill would be passed in the recently completed 2017 Winter Parliamentary sittings, but this did not occur. Given the recommendation from the PCJIS, which has bipartisan support, that the TSSR Bill should be passed it would seem likely that it will be passed, potentially with the amendments recommended by the PJCIS, in Parliamentary sittings to be held later in 2017. Once the legislation commences, there will then be a 12 month implementation period to comply with the new requirements. Unfortunately there will remain uncertainty for industry as the administrative guidelines will be further amended during this implementation period.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions