Commonwealth Consolidated Acts Commonwealth Consolidated ActsDesignated communications provider may request carrying out of assessment
(1) If a consultation notice is given to a designated communications provider under subsection 317W(1) in relation to a proposed technical capability notice, the provider may, within the time limit specified in the consultation notice, give the Attorney - General a written notice requesting the carrying out of an assessment of whether the proposed technical capability notice should be given.
Attorney - General must appoint assessors
(2) If a designated communications provider gives the Attorney - General a notice under subsection (1) in relation to a proposed technical capability notice, the Attorney - General must appoint 2 persons to carry out an assessment of whether the proposed technical capability notice should be given.
(3) For the purposes of this section, the persons appointed under subsection (2) are to be known as the assessors .
(4) One of the assessors must be a person who:
(a) has knowledge that would enable the person to assess whether proposed technical capability notices would contravene section 317ZG; and
(b) is cleared for security purposes to:
(i) the highest level required by staff members of ASIO; or
(ii) such lower level as the Attorney - General approves.
(5) One of the assessors must be a person who:
(a) has served as a judge in one or more prescribed courts for a period of 5 years; and
(b) no longer holds a commission as a judge of a prescribed court.
Assessment and report by assessors
(6) As soon as practicable after being appointed under subsection (2), the assessors must:
(a) carry out an assessment of whether the proposed technical capability notice should be given; and
(b) prepare a report of the assessment; and
(c) give a copy of the report to:
(i) the Attorney - General; and
(ii) the designated communications provider concerned; and
(d) if the acts or things specified in the proposed technical capability notice:
(i) are directed towards ensuring that the designated communications provider is capable of giving listed help (within the meaning of section 317T) to ASIO in relation to a matter covered by paragraph 317T(2)(a); or
(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);
give a copy of the report to the Inspector - General of Intelligence and Security; and
(e) if the acts or things specified in the proposed technical capability notice:
(i) are directed towards ensuring that the designated communications provider is capable of giving listed help (within the meaning of section 317T) to an interception agency in relation to a matter covered by paragraph 317T(2)(a); or
(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);
give a copy of the report to the Commonwealth Ombudsman.
(7) In carrying out an assessment under paragraph (6)(a) in relation to a technical capability notice proposed to be given to a designated communications provider, the assessors must:
(a) consider:
(i) whether the proposed technical capability notice would contravene section 317ZG; and
(ii) whether the requirements imposed by the proposed technical capability notice are reasonable and proportionate; and
(iii) whether compliance with the proposed technical capability notice is practicable; and
(iv) whether compliance with the proposed technical capability notice is technically feasible; and
(v) whether the proposed technical capability notice is the least intrusive measure that would be effective in achieving the legitimate objective of the proposed technical capability notice; and
(b) give the greatest weight to the matter mentioned in subparagraph (a)(i).
(8) In carrying out an assessment under paragraph (6)(a) in relation to a technical capability notice proposed to be given to a designated communications provider, the assessors must consult:
(a) the provider; and
(b) if the acts or things specified in the proposed technical capability notice:
(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to ASIO in relation to a matter covered by paragraph 317T(2)(a); or
(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);
the Director - General of Security; and
(c) if the acts or things specified in the proposed technical capability notice:
(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to an interception agency in relation to a matter covered by paragraph 317T(2)(a); or
(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);
the chief officer of the interception agency.
(9) If:
(a) the assessors have begun to carry out an assessment under paragraph (6)(a) in relation to a technical capability notice proposed to be given to a designated communications provider; and
(b) the provider informs the Attorney - General that the provider no longer wants the assessment to be carried out;
then:
(c) the Attorney - General must direct the assessors to cease carrying out the assessment; and
(d) the assessors must comply with the direction.
(10) If:
(a) the assessors have begun to carry out an assessment under paragraph (6)(a); and
(b) the Attorney - General withdraws the proposed technical capability notice to which the assessment relates;
then:
(c) the Attorney - General must direct the assessors to cease carrying out the assessment; and
(d) the assessors must comply with the direction.
Attorney - General must have regard to the report of the assessment
(11) If:
(a) a notice is given under subsection (1) in relation to a technical capability notice proposed to be given to a designated communications provider; and
(b) a copy of the report relating to the proposed technical capability notice is given to the Attorney - General under subsection (6);
the Attorney - General, in considering whether to proceed to give the technical capability notice, must have regard to the copy of the report.
Technical capability notice information
(12) For the purposes of this Part:
(a) information about the carrying out of an assessment under subsection (6); or
(b) information contained in a report prepared under subsection (6);
is taken to be information about consultation relating to the giving of a technical capability notice.
Prescribed court
(13) For the purposes of this section, prescribed court means:
(a) the High Court; or
(b) the Federal Court of Australia; or
(c) the Supreme Court of a State or Territory; or
(d) the District Court (or equivalent) of a State or Territory.