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