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Are the proposed telco sector security reforms regulatory 'over-reach'?

Michael Swinson | Aug. 12, 2015
Through its peaks and troughs, the Abbott government has always been able to point to national security as an area of relative strength.

Through its peaks and troughs, the Abbott government has always been able to point to national security as an area of relative strength.

The current government has certainly spent a significant amount of legislative effort on bolstering its national security powers, and in particular those affecting the telecommunications industry.

Hot on the heels of new mandatory data retention laws, the government on June 25 announced its latest proposal in this space in the form of an exposure draft of the Telecommunications and Other Legislation Amendment Bill 2015.

If passed, the bill will do three things:

  • Impose a new duty on carriers and carriage service providers to 'do their best' to protect their networks from unauthorised access and interference.
  • Require these companies to notify the government of any change likely to have a material adverse effect on their ability to meet their new network security obligations.
  • Give the government enhanced direction-making and information-gathering powers to manage national security risks affecting telecommunications networks.

While the period for making submissions on the bill has only just closed, a number of industry representatives have already voiced their concerns.

Most notably, a joint public submission by a number of significant industry groups, including the Australian Information Industry Association, the Australian Mobile Telecommunications Association and the Communications Alliance, bluntly described the bill as "regulatory over-reach."

These groups said it "hands unjustifiably significant additional and intrusive powers to government and places regulatory burdens on industry that will undermine its ability to protect against and respond to cyber attacks."

So what exactly is it about the bill that has prompted such a strong and united critical response?

Expansive new direction-making power

The bill will give the government broad new powers to direct carriers to do, or refrain from doing, certain acts that may be prejudicial to national security.

This aspect of the bill builds on existing powers of Federal Attorney-General, George Brandis, to require carriers to stop using or supplying a carriage service where doing so may be prejudicial to national security.

However, the expansion proposed by the bill is significant and creates scope for many different types of directions that could interfere with the way that telecommunications companies operate their businesses.

The draft explanatory memorandum (EM) for the bill indicates that the new powers would still be intended to serve as a last resort.

Unfortunately, there is nothing in the bill to reflect this. For example, there is no requirement to obtain a risk assessment from any national security agency or to consult with industry on alternative approaches before exercising the direction-making powers, and there is no requirement for directions to be proportionate to the risk they are intended to address.

 

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