Thursday, 6 December 2018
Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018; Second Reading
I rise today to speak on this Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018. I will just say first that later today I will speak on the Treasury laws amendment bill. I only mention this because there is a similarity in how both these bills have been brought to this House, both in a rush of ill preparedness and, may I say, seeming desperation. The bill being discussed this afternoon was moved in this House without anyone actually having time to properly read it, to properly analyse it and to properly work out a proper response—and I believe even the members of the government's own party. Both bills have been prepared in a rush and in desperation, because this government knows that it is in deep trouble. It knows that it has nothing to offer the Australian people that connects them with the people, or that shows that they are in any way in touch with what is happening in what they would call 'real Australia'. The haste and desperation around about this bill is disgraceful and, quite frankly, deeply concerning.
There has always been a bipartisan approach to matters of national security through the Parliamentary Joint Committee on Intelligence and Security. There has always been a deep and real consideration of issues that befits responsible government, a practice that this government has thrown out the window, and all in the name of what? Certainly not in good national security policy—perhaps trying to be populist. As my friend and colleague the member for Bruce just articulated so well, the government have tried picking on minorities, they have tried race hatred and they have tried vilifying vulnerable Australians, and none of this has worked to improve their popularity or their position with the Australian electorate. So, as we have seen time and time again from the Liberal Party, they resort to fearmongering on national security. Their handling of this encryption bill has been abominable.
Labor members of the Parliamentary Joint Committee on Intelligence and Security have done their job with all seriousness. They have been consulting with industry and civil society stakeholders, both through the committee process and outside. Labor have negotiated with the government to address some core concerns of ours. While there are significant outstanding issues—and I will go to those later—the compromise we are debating today will deliver security and enforcement agencies the powers they say they need in the short term and ensure adequate oversight and safeguards to prevent unintended consequences, while enabling continued scrutiny of the bill until 2019. Labor are prepared to take this course of action because of the government's undertaking that the committee will continue its inquiry into the bill into 2019 and a separate statutory review will be undertaken by the Independent National Security Legislation Monitor within 18 months of the legislation coming into effect. These separate processes will provide an opportunity to resolve our ongoing concerns about the bill with the assistance of industry, experts and civil liberty groups. It will also help uphold our responsibility to keep Australians safe.
The Labor members of the committee have taken on board all evidence from our national security agencies. They have listened to the industry and technical experts. This is serious, complicated business, and it's quite clear that the government's consultation and consideration were not deep enough or good enough to produce an original bill that was in any way acceptable. The government, to begin with, did not suggest that there was any need to rush this. They suggested, indeed, that they would give it the consideration that it deserved, and we started that process in good faith. As the member for Isaacs said this morning, we put a great deal of time and energy into rigorously analysing every national security bill that is presented, and we do this because we understand that, in conferring new powers to protect our nation's security, it is vital that we do not compromise the very freedoms and way of life that we are seeking to protect. We must always be aware that, while the laws we pass can be part of the solution to national security threats, those laws, if improperly designed, can become a part of the problem.
When we tried to explain that this was important to us and that we on this side of the House wanted to make sure of the above—that we needed to slow down—the government said, as if there were a sudden urgency, that if we didn't pass this bill immediately, as drafted and without evidence, we were helping and befriending terrorists and paedophiles. This was an outrageous slur on the Labor Party simply because we wanted to follow due process. As other members of the House have mentioned this morning, this was insulting, and there should be an apology and a withdrawal. What we were trying to do was protect the rights of Australian citizens.
The member for Isaacs and others have outlined Labor's concerns with this bill. Yes, it is not perfect, but the original version presented by the government was a mess. It was hopelessly flawed and completely unsafe. It was clearly rushed and ill-written. Some of our concerns have been dealt with in this bill, and they go to a couple of things that have been spoken about already this morning. We have concerns about systemic weakness and its implications for security, technology and Australian economic competitiveness. We are concerned about inadequate oversight and safeguards, including implications for privacy and civil liberties. Labor members of the committee have sought and obtained recommendations in the PJCIS report that, if translated into amendments, will address many of the core concerns raised by Labor and stakeholders, noting that the committee will undertake further inquiry immediately after the legislation is passed.
Systemic weakness related concerns will be addressed through amendments to clarify the meaning of the term. Now, this is incredibly important and the industry has told us this: we need to clarify the meaning of the term 'systemic weakness' and clarify that technical capability notices cannot be used to create a systemic weakness. We need an ability for a provider to disclose details of a technical capability notice, except, of course, where it would compromise an investigation. There needs to be authorisation of a technical capability notice, requiring the approval of both the Attorney-General and the minister for communications, despite the concerns of my colleague who spoke previously about the capability of the current minister. A designated communications provider that has concerns about a technical capability notice may request a binding assessment of whether it would indeed create a systemic weakness, that the requirements are reasonable and proportionate, that compliance is practical and technically feasible and that the notice is the least intrusive measure that would still achieve the objective.
Two persons would be jointly appointed to conduct the assessment, and the report must be provided to the Inspector-General of Intelligence Security and the Commonwealth Ombudsman. This essentially means that any request to a provider that might create a systemic weakness would be subject to a merit review style process. Inadequate oversight and safeguards will be addressed through the strengthening of the Inspector-General of Intelligence and Security oversight powers, including explicit notification and reporting requirements, limits on the exercise of powers, defences for the IGIS officials and clear information-sharing provisions. There will be clear authority for the Commonwealth Ombudsman to inspect and gather information on the exercise of these powers. The AFP Commissioner must approve any state and territory initiated technical assistance notices, and they must apply the same criteria and go through the same decision-making process that would apply as if the AFP were the original issuing authority. These things were taken up by the Labor Party, and I congratulate the member for Isaacs and the other Labor members of the PJCIS for paring back and amending some of the worst aspects of this bill.
We have another concern, and that is that this bill does not provide for judicial oversight of technical assistance notices or technical capability notices that allow for interception notices, or, in less technical wording, for the gateways to be inserted and to bypass the encryptions. The government will not agree to judicial oversight, and I agree with previous speakers who say that this should be fixed. If it is not fixed before the next election and if Labor is elected, I think Labor should fix this part of the bill, which we are concerned about.
Labor will monitor the implementation of this legislation very carefully. We welcome the necessary changes that Labor members of the committee have brought about, and we welcome the fact that the committee inquiry into this legislation will continue with full review. We will continue to listen to stakeholders, including concerned Australians. While there is some misunderstanding, some misinformation, some hyperbole and, as we have heard, there are some insults that have been thrown about the House with respect to this bill, Labor, I am pleased to say, take this very seriously. We will continue to monitor this bill. We will continue to stay in touch with the stakeholders. We will reassure Australian citizens that we will continue to monitor this bill very carefully, as we go into the future.