An interesting comparison between the Australian and UK approaches to investigatory powers…:
[…] Under the laws as currently written, agencies can issue:
- Technical Assistance Notices (TANs), which are compulsory notices for a “designated communication provider” (DCP) to use an interception capability they already have;
- Technical Assistance Requests (TARs), which are “voluntary” requests, but really, how could you refuse?
- Technical Capability Notices (TCNs), which are compulsory notices for a CCP to build a new interception capability, so that it can meet subsequent Technical Assistance Notices; and
TANs and TARs can currently be approved by the head of the requesting law enforcement or intelligence agency. TCNs must be be approved jointly by the Attorney-General and the Minister for Communications.
Under Labor’s proposal, contained in their Telecommunications Amendment (Repairing Assistance and Access) Bill 2019, a TAN, TAR, or TCN would have to be approved by a judge.
The Independent National Security Legislation Monitor (INSLM), Dr James Renwick, went further during public hearings in Canberra this week.
Not only did he propose tougher independent oversight of TOLA actions, he repeatedly expressed his concern that the Attorney and the Minister didn’t constitute an independent “double lock” for authorising TCNs.
Such a double lock is required in the UK, where the equivalent to a TCN must be approved by both the Secretary of State for Home Affairs and the independent Investigatory Powers Commissioner’s Office (IPCO).