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Latest Case

Advising global cryptocurrency exchange operators on entry into Australian market July 31, 2018

The rise in popularity and demand for cryptocurrency trading has resulted in a number of cryptocurrency exchange operators expanding into different countries, including Australia, to create a global brand. In Australia, new laws and regulations … Continued

Latest News

Maddocks advises French firm on major construction company acquisition August 6, 2018

Monday 6 August 2018 Law firm Maddocks recently advised French firm Bouygues Construction on its acquisition of leading Australian construction and fitout business AW Edwards. The acquisition is a key part of Bouygues’ continued expansion … Continued

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Do your construction documents conform with the new Ministerial Directions and Instructions for Public Construction Procurement? August 15, 2018

Are you a state government department or public body which procures public construction works and services? Are you in the process of determining which form of contract will be most appropriate for your procurement to issue … Continued

Draft guidelines on disruption of access to online services by government agencies

Under section 313 of the Telecommunications Act 1997, a carrier or carriage service provider (which includes an Internet Service Provider (ISP)) must:

  •  do its best to prevent telecommunications networks or facilities from being used in the commission of offences against the laws of the Commonwealth, States and Territories
  •  help officers and authorities of the Commonwealth, States and Territories to enforce the criminal law of Australia or a foreign country, protect public revenue and safeguard national security (subsection 313(3)).

The carrier or ISP is not liable for any claims resulting from the provision of such help.  Under section 314, the carrier or ISP must provide its help on the basis that it neither bears the cost of nor profits from the provision of the help, which means it is entitled to reimbursement for its costs as agreed with the officer or agency requesting the help or as determined by the ACMA acting as arbitrator.

A wide range of Commonwealth, State and Local Government agencies and regulators may be able to request assistance under s313 in order to enforce the criminal law or protect public revenue.

There has been some controversy in the past about the use of s313, such as when ASIC accidentally blocked 250,000 websites.  A Parliamentary Committee inquired into the use of section 313 and issued a report on 1 July 2015 setting out a number of recommendations, including that the Australian Government adopt whole-of-government guidelines for the use of section 313.

On 29 April, the Department of Communications and Arts released draft guidelines on the use of section 313(3) by government agencies for the lawful disruption of access to online services.

The draft guidelines, which will not be legally binding, note that agencies should limit disruptions to cases involving serious criminal or civil offences or threats to national security, with a guideline threshold of offences with a maximum prison term of at least 2 years or a fine of 120 Commonwealth Penalty Units (currently $21,600).

Agencies should also provide the ISP with a generic government ‘Stop Page’ to be shown to members of the public attempting to access the disrupted resource, which should include, where appropriate:

  • the name of the agency requesting the disruption
  • the reason (at a high level) that the disruption has been requested
  • an agency contact point for more information
  • information about how a party adversely affected by the disruption could make a complaint or seek a review (see below).

An example of such a stop page is:

StopPage_w400

The draft guidelines are open for comments and submissions until 27 May 2016.

Don’t hesitate to contact Rob Gregory or any other member of Maddocks TMT team if you have any queries or if you’d like to discuss further.

Under section 313 of the Telecommunications Act 1997, a carrier or carriage service provider (which includes an Internet Service Provider (ISP)) must:

  •  do its best to prevent telecommunications networks or facilities from being used in the commission of offences against the laws of the Commonwealth, States and Territories
  •  help officers and authorities of the Commonwealth, States and Territories to enforce the criminal law of Australia or a foreign country, protect public revenue and safeguard national security (subsection 313(3)).

The carrier or ISP is not liable for any claims resulting from the provision of such help.  Under section 314, the carrier or ISP must provide its help on the basis that it neither bears the cost of nor profits from the provision of the help, which means it is entitled to reimbursement for its costs as agreed with the officer or agency requesting the help or as determined by the ACMA acting as arbitrator.

A wide range of Commonwealth, State and Local Government agencies and regulators may be able to request assistance under s313 in order to enforce the criminal law or protect public revenue.

There has been some controversy in the past about the use of s313, such as when ASIC accidentally blocked 250,000 websites.  A Parliamentary Committee inquired into the use of section 313 and issued a report on 1 July 2015 setting out a number of recommendations, including that the Australian Government adopt whole-of-government guidelines for the use of section 313.

On 29 April, the Department of Communications and Arts released draft guidelines on the use of section 313(3) by government agencies for the lawful disruption of access to online services.

The draft guidelines, which will not be legally binding, note that agencies should limit disruptions to cases involving serious criminal or civil offences or threats to national security, with a guideline threshold of offences with a maximum prison term of at least 2 years or a fine of 120 Commonwealth Penalty Units (currently $21,600).

Agencies should also provide the ISP with a generic government ‘Stop Page’ to be shown to members of the public attempting to access the disrupted resource, which should include, where appropriate:

  • the name of the agency requesting the disruption
  • the reason (at a high level) that the disruption has been requested
  • an agency contact point for more information
  • information about how a party adversely affected by the disruption could make a complaint or seek a review (see below).

An example of such a stop page is:

StopPage_w400

The draft guidelines are open for comments and submissions until 27 May 2016.

Don’t hesitate to contact Rob Gregory or any other member of Maddocks TMT team if you have any queries or if you’d like to discuss further.