The parliamentary committee reviewing Section 313(3) of the Telecommunications Act 1997, which allows government agencies to disrupt the operation of illegal online services, has been told that the scheme requires independent oversight if it is to be safe from abuse.
In a public hearing on Wednesday, Internet Society of Australia non-executive director and executive office of Electronics Frontiers Australia (EFA) Jon Lawrence told the parliamentary Standing Committee of Infrastructure and Communications that the law could be open to abuse.
"Section 313 is a source of significant concern to us and our members," Lawrence told the committee hearing. "We believe its vague wording and broad scope have far-reaching potential for misuse and abuse. We believe it represents a potentially dangerous impediment to internet freedoms."
Lawrence argued that the subsection of the Telecommunications Act is superfluous to achieving its stated outcomes in terms of law enforcement, saying that the EFA believes it is against public interest, and should be struck out entirely.
However, he said that if it is not struck out, its application should at least be subject to independent authorisation, along with a limit on agencies able to make use of the legislation, as the government has done with the proposed data retention scheme.
"We would like to see the agencies able to utilise section 313 limited, as we have seen the government propose with the data retention legislation; we would like to see clear thresholds set for the type and seriousness of offences and civil penalties that can be used to trigger this section implemented; and we would like to see a form of independent authorisation for actions involving the disruption of online services such as the blocking of websites," he said.
Lawrence's comments come almost eight months after the establishment of the inquiry into Section 313 by Communications Minister Malcolm Turnbull in July last year.
The move was made to examine which government agencies may make requests, what level of authority agencies should have to issue Section 313 notices, the "characteristics" of sites that are subjected to such notices, and what the "appropriate" amount of transparency and accountability for using Section 313.
It followed revelations in June 2013 that the Australian Securities and Investments Commission (ASIC) had inadvertently caused the block of more than 1,200 websites when it sought the block of websites associated with a cold calling investment scam.
It was subsequently revealed that three agencies across the government had been using this power to compel ISPs to block customer access to websites on their behalf with no central oversight.
"As we have seen in the recent past, there are significant issues relating to technical competence with implementation of certain actions under this section," Lawrence told the committee this week. "Clearly, there needs to be some meaningful reporting of actions taken under this section, and we would like to see some form of appeal provisions for people affected by it."
Dr Roger Clarke, e-business consultant and immediate past chair of the Australian Privacy Foundation, also told the committee during Wednesday's hearing that some form of independent authorisation process is needed for Section 313.
"There currently appears to be no process whereby any independent party tests whether the basis on which an officer proposes to issue a request reaches whatever threshold tests are applicable," said Clarke. "In particular, the process does not include judicial warrants. Such an absence of controls is a gross breach of regulatory norms."
Clarke argued that the scheme should involve an independent party that has the responsibility and authority to test whether the basis upon which a requesting agency proposes to exercise the power satisfies the criteria stated.
"It is unacceptable for the parliament to countenance amateurism in the application of such broad powers, so we submit that the committee should recommend that the independent body that we have proposed must have sufficient technical, as well as legal, competence," he said.
The committee is expected to provide a final report from its inquiry at the beginning of July.