Gai Brodtmann (Canberra, Australian Labor Party, Shadow Assistant Minister for Cyber Security and Defence) Share this | Hansard source

As the shadow assistant minister for cybersecurity and defence, I welcome the proposed amendments to the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Bill 2016. The amendments will address legislative inconsistencies in areas relating to mutual assistance, proceeds of crime and extradition—all issues that will be faced with the international characteristics of the types of crime I see emerging in the cybersecurity portfolio. The bill also proposes amendments in a number of areas that Labor has a very strong track record on: international crime cooperation, support for vulnerable witnesses, slavery, forced labour and forced marriage, anti-money-laundering and federal policing.

While the amendments are welcome, there are also emerging crimes that will pose challenges to our legal frameworks, both domestically and internationally. These are in the areas of cybersecurity and also in the increased focus and increased exposure of sexual violence in conflict as a war crime under the United Nations women, peace and security agenda. The technical amendments in this bill highlight the increased prevalence of technology and its use in both the commission of crime and, on the flipside, the monitoring, surveillance and prosecution of crime. Amendments align the existing provisions under the mutual assistance act and the telecommunications interception act, authorising the sharing of information with foreign countries, with the International Criminal Court Act. The type of material that may be shared with the International Criminal Court could be stored communications, historical telecommunications data, prospective telecommunications data and surveillance assistance. As the shadow minister I welcome the changes, because cybercrime activities—in all their forms, from cyberwarfare, cyberterrorism and cyberespionage through to child pornography and exploitation, ransomware, phishing and spear phishing—in this global world, through the internet, are cross jurisdictional activities.

There is no doubt that there will need to be greater focus on what international cooperation will look like when it comes to prosecuting people and organisations for these crimes, some of which are new or emerging types of crime that present a challenge to our traditional legal procedures, precedents and frameworks. Not only will it be a telling exercise for the preparedness and responsiveness of countries, when it comes to their cybersecurity frameworks, but also for the cooperation between governments in terms of data and the compulsion to release it. While a cooperative and collaborative relationship exists between government and corporations in Australia's e-safety regime, we need to constantly look at how we can further enhance our cooperation in these areas at the international level. It will be an interesting test to see how much of these frameworks will emerge in an international environment, when it has been difficult to establish regulatory norms for cybersecurity. Fortunately, this is still the Holy Grail that we're trying to establish. We have the Tallinn manual that outlines the range of international law that applies to the cybersecurity space. The UN GGE has been unable to meet agreement on cybersecurity norms and how the norms should operate in cyberspace. Without that sort of multilateral framework, we are now faced with having to try and get those norms established at a bilateral, quadrilateral or regional level.

I note we have the minister here. In the absence of those UN GGE multilateral norms, that usual UN framework that governs so much—the sea, telecommunications and so many international regulations and norms—we do need to focus our efforts. Given the absence of the UN reaching resolution on what we're going to be doing on cyberspace and cyber norms, we do need to be acting very aggressively, because this is changing rapidly. So we need to very aggressively, with a sense of urgency, engage in mechanisms, in architecture, at the regional, bilateral and quadrilateral level to establish and agree on those norms, and to use existing architecture, possibly through ASEAN and APEC, through the Indian Ocean Commission, through the Pacific Island Forum—to use the existing architecture that we have. Given the urgency on this there's no need to reinvent the wheel in terms of cybersecurity architecture; so we need to use the existing multilateral regional architecture that we have to drive resolution on agreed norms.

Without that UN framework, we have a significant gap. Yes, there is a lot of discussion at the G20s and at the APECs and through the communiques that come out of those multilateral regional events. There is a lot of agreement on what should be done, but what we really need to do is agree those norms. It is vital that we get everyone singing from the same song sheet in terms of how we're going to govern and agree to our behaviours in the cybersecurity space.

It's a perfect opportunity, now that the minister has walked in, to urge him to act. He's got his ambassador there; you've got people down in the Department of Foreign Affairs and Trade busily working on this. Please, we need to get those norms established. Ideally it would be at that multilateral UN level, but—given that we haven't been able to achieve that, despite a lot of concerted effort over many years—I do implore the minister to see what we can do in terms of agreeing norms amongst the Five Eyes community, quadrilaterals and regionals and using the existing architecture that I mentioned before.

I was also keen to talk about this piece of legislation and the amendments because of another area that I'm concerned about, and that I have been advocating on very strongly, which is sexual violence in conflict and the prosecution of those who participate in sexual violence in conflict. It's an important issue that I have been working on with the Women, Peace and Security community—the women in that community—and the Prosecute Don't Perpetrate community, because we know that Daesh has used sexual violence as a tactic of war. Sexual violence is a war crime, and we should treat it as such. The occurrence of systematic rape is well documented in Iraq and Syria. It is a crime against humanity, it is a crime again women, and we should treat it as such.

We should be speaking about sexual violence in conflict—which is what I'm speaking about here—and sexual violence more generally, and we should be holding the perpetrators to account no matter where they are. This is why I'm a strong advocate for and a strong participant in the Prosecute Don't Perpetrate campaign—to get those foreign fighters back here and get them prosecuted under sexual-violence-in-conflict legislation and norms. Over 100 Australians have travelled to Iraq and Syria to fight with Daesh and other extremist groups. We need to investigate and prosecute the sexual violence they've perpetrated as war crimes, as crimes against humanity, for these are all crimes under Australian domestic law. The amendments to this bill don't cover off this issue, but, in terms of providing material to the United Nations, they do cover off issues to do with the International Criminal Court. Again, I'm putting it out there that we need to prosecute those who have committed sexual violence in conflict.

It's difficult. I'm the first to admit that it's difficult—as we see from looking at the history of prosecution of sexual violence in conflict over the years, such as the rape camps that happened in the Second World War in Eastern Europe. There have been a number of instances where sexual violence has been used as a tactic of war, as a tactic of terrorism, as a tactic of genocide, and it is very, very difficult to prosecute those crimes. It requires a great deal of bravery from the witnesses. Most importantly, it's very difficult to get the evidence, particularly when you're in a conflict environment. Who collects the evidence? If a witness is brave enough to come forward, then who actually collects that evidence? Is it a soldier in the field? Is it someone who is there working on the post-conflict transition? Who collects that information? Is it a civilian working in this space in a conflict environment? That's the real challenge. Not only do we need a sense of urgency and real will to prosecute these crimes—and those are there—but getting the evidence is the real challenge. So we need to set up frameworks, systems, guidelines and procedures so that we can collect the evidence and bring these crimes to the courts.

I know that armies and defence forces around the world have been examining a range of different mechanisms to get that evidence collected. I encourage the Australian authorities on this. I know we have a very active community through the Australian Defence Force, and also, in New York, we have a very active military community which is working on the Women, Peace Security agenda. But we do need to constantly look at the mechanisms through which we can get the evidence. That's the real challenge—how to get the evidence in a conflict environment.

One of Labor's core values is a fundamental belief that everyone should have access to justice, no matter what their postcode, no matter how much their parents earn, no matter what their background, no matter what their race or religion, and that includes providing adequate support for vulnerable witnesses. This bill corrects an anomaly introduced back in 2013 and extends the current offence of identifying a child witness or vulnerable adult complainant to the identification of a child complainant. The support and protection available for victims and witnesses in future criminal proceedings, regardless of when the alleged conduct occurred, is also clarified. This is a significant step in a number of ways. If we are to tackle abhorrent crimes like human trafficking and slavery, it is essential that vulnerable witnesses, like those women who are victims of sexual violence in conflict, be given protections and support in proceedings before the courts. In its submission to the Senate inquiry on this bill, Anti-Slavery Australia said:

Victims and witnesses are often reluctant to give evidence, as they or their families may have been subjected to, or threatened with violence.

Providing support and protection for vulnerable witnesses and complainants is absolutely necessary in ensuring access to justice.

The government has stated that the purpose of the bill is to:

… enhance Australia's position globally in the fight against crime, making improvements to our international crime cooperation arrangements and our ability to assist international courts and tribunals.

The amendments in this bill go some way towards enhancing Australia's position, but, as I've mentioned, there will be ongoing and emerging challenges to Australia's position in the fight against crime. We need to act, not just speak out, against those perpetrators of sexual violence in conflict. We need to not just speak out against it; we need to actually start prosecuting, if we can. We need the evidence for that, and we need the guidelines and the frameworks to be able to collect that evidence.

There is also an emerging challenge, a constant daily challenge, to enhance our cybersecurity frameworks to not only prevent but to identify and prosecute cybercriminals wherever they may be. These amendments will go some way towards harmonising Australia's domestic laws with international laws. Labor supports the amendments in this bill.

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