Tuesday, 12 February 2019
Intelligence and Security Committee
by leave—On the morning of 6 December 2018, the last parliamentary sitting day of 2018, the government introduced 173 amendments to the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 in response to the Parliamentary Joint Committee on Intelligence and Security's 17 recommendations, which had been delivered only a day earlier in the committee's report of 5 December. The government's amendments did not fully implement the committee's recommendations. Labor agreed to support the passage of the access bill and the government's 173 amendments on the condition that, first, the new laws be immediately referred to the committee for inquiry and report by 3 April 2019 and, second, that the government agree to facilitate consideration of Labor's proposed amendments that would have made the access bill conform to most of the committee's recommendations in the new year in government business time. On behalf of the government, Senator Mathias Cormann agreed to those conditions. As recorded in Hansard, Senator Cormann also said that the government supported in principle all amendments that are consistent with the committee's recommendations. Since then the government has tried to resile from that commitment.
It is not tenable to argue, as the government continues to argue, that its amendments largely implemented the committee's 17 recommendations. No reasonable person accepts that. The Inspector-General of Intelligence and Security, who has made a public submission to the committee, doesn't accept it. Industry doesn't accept it. Lawyers and other civil society groups don't accept it. The Commonwealth Ombudsman has even told the committee that the government's amendments are inconsistent with the Ombudsman's role as an independent and impartial office. This fiasco of law making is what a job well done looks like to this chaotic government. To make the legislation conform to the committee's recommendations we will be moving amendments to the Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019 when it is introduced into the Senate.
The most fundamental of the committee's recommendations in its 5 December report were recommendations 9 and 10, both of which relate to the meaning of the term 'systemic weakness'. The access bill as originally introduced prohibited an agency from forcing a provider to implement any kind of 'systemic weakness' or 'systemic vulnerability' into a form of electronic protection. However, the committee heard a considerable amount of evidence from industry, digital rights groups, lawyers and technology experts that it was not clear what those terms actually meant. If left unclarified, many submitters were concerned that the systemic weakness or vulnerability limitation would not prevent an agency from requiring a provider do acts or things that would or could compromise the security of the critical systems or result in the personal information of innocent third parties being left vulnerable to hackers, including bank details, health records and private correspondence.
We are not aware of any impacted companies, technical experts, non-government organisations or individuals who accept that the government's rushed amendments implemented the critical recommendations of the committee in relation to the meaning of 'systemic weakness' or 'systemic vulnerability'. In fact, there is broad agreement that, instead of clarifying the meaning of the term 'systemic weakness', the government's amendments have created additional confusion. Technology experts have gone as far as calling the government's amendments 'an abomination'. The amendments Labor introduced on the final sitting day of last year would have implemented recommendations 9 and 10 in full. Those amendments are supported by the major industry groups. The government's amendments are supported by no-one, other than the Morrison government and its incompetent Minister for Home Affairs.
If Labor's proposed amendments are not acceptable, we think that the government must explain to the Australian technology industry and, more importantly, to the Australian people, precisely why it is opposing amendments that would make them safer and make this law operate as the Director-General of ASIO says it's intended to. Why would the government oppose amendments that make it clear that an agency may not require a provider to do anything that could, either knowingly or unknowingly, compromise the security of an innocent third-party's personal information?
This amendment is not some minor, technical matter to be left in the too-hard basket by a government distracted by its internal chaos and focused on nothing but clinging to power. This amendment is necessary to help protect the personal information and, therefore, the security of virtually every Australian who has a smartphone or who uses the internet.
We do not suggest that the full implementation of all of the committee's recommendations would address all of the concerns that have been expressed by stakeholders about the measures that were introduced by the access act. To the contrary, the reason why Labor insisted that the access act be referred to the committee for an immediate inquiry is that the committee did not have enough time to properly consider the access bill.
Labor has a longstanding commitment to ensuring that our agencies have the powers they need to keep Australians safe while also ensuring that such powers are subject to strong and effective oversight and safeguards, and do not give rise to adverse unintended consequences. We believe that strong and effective oversight does not undermine our national security: it enhances it. Public trust and confidence in our security and intelligence agencies are best ensured through strong and rigorous oversight and scrutiny.
In the context of this legislation, and consistent with our longstanding commitment to ensuring that significant powers are subject to appropriate safeguards and oversight, Labor believes that the new powers introduced by the access act should be subject to greater judicial oversight. As a matter of principle, Labor does not believe that the Attorney-General or a senior police officer should be given the power to compel an innocent person unconnected to an investigation to provide technical assistance to a government agency without a warrant, yet this is what the access act currently allows.
While this week's debate is confined to implementing the committee's 17 recommendations, this is an issue that Labor is committed to addressing in the future. In addition, given the impacts that this legislation has already had on Australia's technology industry, Labor is committed to referring the measures introduced by this legislation to a parliamentary committee for inquiry and report on their economic impacts. It's vital that the economic impacts of this legislation are properly considered and, if necessary, amendments are made to reduce any unnecessary impact on Australian businesses.