Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

Unfortunately the government has left it very late in the day and the week to bring this important bill on for debate in the House, which means I will have to be brief in my remarks. I'm very pleased to speak in support of this long overdue bill, not least of all because, as a result of the excellent and bipartisan work of my Liberal and Labor colleagues on the Parliamentary Joint Committee on Intelligence and Security, the government has agreed to improve the bill significantly by moving a series of amendments. I will address the amendments in a moment but, first, I think it's necessary to provide some context.

Under the framework set out in this bill, the government would be able to enter into agreements with other countries to allow Australian security and law enforcement agencies to, in effect, augment existing mutual assistance processes in specified circumstances. This is important because the current mutual assistance processes are cumbersome and can take a very long time. The bill has been prompted by the passage of the Clarifying Lawful Overseas Use of Data Act in the United States, which is more commonly known as the CLOUD Act. Under the CLOUD Act, their congress has authorised the United States government to enter into bilateral agreements with foreign governments for the purpose of allowing agencies located outside the United States to access data held within the United States. In short, the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 would provide a framework for Australian law enforcement agencies and ASIO to obtain independently authorised international production orders to require designated communications providers located outside Australia to intercept electronic communications or access stored communications and communications data, and authorise designated communications providers located in Australia to comply with similar orders from foreign law enforcement and intelligence agencies. The framework would be activated when Australia entered into a relevant agreement with a foreign country.

The Australian government has been in the process of negotiating such an agreement with the United States since 7 October 2019. On that date, the then Minister for Home Affairs, now the Minister for Defence, gave himself a big pat on the back when he announced that negotiations had commenced. That announcement was made over 18 months after the CLOUD Act came into effect and a week after the United Kingdom announced that it had successfully concluded its negotiations on a CLOUD Act agreement with United States. And the Morrison government is still negotiating with the United States and is only now getting around to bringing this bill on for debate. The Morrison government has been painfully slow to pursue and realise this opportunity, and, let's be clear, while this bill is a necessary and welcome step, it is not sufficient; the government still needs to do the deal with the United States. Labor sincerely hopes the government manages to do so. It has already taken far too long. So that's a little bit about the bill and the context.

Turning to the amendments the government will be moving, the original version of the bill is largely silent on a range of important matters, including the purposes for which a foreign government could seek information or request assistance under an international production order and who the government could seek information about. The government's original position was to say that all these matters would be addressed in the agreements that it reached with foreign countries, including the United States, but that is not good enough. It is not the role of the parliament to write blank cheques for the executive branch of government.

The intelligence and security committee made 23 bipartisan recommendations to improve the bill and address the various concerns which had been raised. I'm pleased to see that the government has largely agreed to implement those recommendations.

I'd like to conclude by making a few comments about how things are not supposed to work when it comes to national security. On 8 June this year, the Prime Minister misused a press conference about a successful multiagency and multinational law enforcement operation, Operation Ironside, to put a false position to the Australian people about national security. The Prime Minister told Australians, falsely, that this bill, the international production orders bill, did not have bipartisan support, and he made those comments despite the fact that Labor and Liberal members of the intelligence and security committee had tabled a bipartisan report last month which made 23 recommendations to improve the bill and, subject to those changes being implemented, recommended swift passage of the legislation. All of the 23 recommendations by the committee were bipartisan. The recommendation to pass the bill was bipartisan. In fact the only thing about this bill that has not been bipartisan has been the Prime Minister's grossly irresponsible press conference on 8 June. It was a disgraceful performance unworthy of a member of parliament, let alone a minister, let alone the Prime Minister. It reminded me of comments made by former Attorney-General George Brandis in his valedictory speech over three years ago.

I have referred to these comments once before in this House, and the Prime Minister's comments on 8 June have given me cause to do so again. In that valedictory speech, Mr Brandis listed three reasons why domestic national security policy in Australia has been successful. One of the reasons he nominated was bipartisanship. Referring to eight—that's right, eight—national security bills introduced by the coalition, Mr Brandis said:

All eight tranches of legislation were passed with the opposition's support after scrutiny by the PJCIS. It was a fine example of government and parliament working hand in hand to protect the national interest. I have heard some powerful voices argue that the coalition should open a political front against the Labor Party on the issue of domestic national security. I could not disagree more strongly. One of the main reasons why the government has earned the confidence of the public on national security policy is there has never been a credible suggestion that political motives have intruded. Were they to do so, confidence not just in the government's handling of national security but in the agencies themselves would be damaged and their capacity to do their work compromised. Nothing could be more irresponsible than to hazard the safety of the public by creating a confected dispute for political advantage. To his credit, the Prime Minister has always resisted such entreaties.

Of course, the Prime Minister that Mr Brandis was referring to was not the current Prime Minister but Malcolm Turnbull. Regrettably, if the current Prime Minister's disgraceful press conference on 8 June is anything to go by, Mr Brandis could not have made the same comments about the current Prime Minister, because this Prime Minister has shown a willingness to play politics with national security. As Mr Brandis rightly argued, that is bad for Australia's security and law enforcement agencies and it is bad for the Australian people. The Prime Minister needs to stop it. I reiterate the comments made by George Brandis more than three years ago:

Nothing could be more irresponsible than to hazard the safety of the public by creating a confected dispute for political advantage.

The Prime Minister and his supporters should heed those words. I commend the bill, with the government's amendments, to the House.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I just want to put a few remarks on the record about the Greens' grave concerns with the Telecommunications Legislation Amendment (International Production Orders) Bill 2020, and those will be expanded upon when the matter reaches the Senate. As has been outlined by the minister and the opposition spokesperson, what this bill does is introduce a regime for Australian agencies to obtain international production orders that require designated communications providers overseas to intercept communications and provide access to stored communications and telecommunications data.

There are some very real concerns with the lack of protections and the lack of parameters that are set out in this bill. As I say, the Greens will expand on this when the bill reaches the Senate, as it appears destined to, but one very strong concern is the lack of required parameters for international agreements and incoming orders that are made under them. The bill lacks both the protections that are included under the equivalent United States legislation and the safeguards provided for under mutual assistance laws with respect to matters such as protection of human rights, prohibition on torture, and restrictions on accessing data about Australian persons. It is not at all clear whether international agreements will be subject to adequate scrutiny, including by the parliament, before coming into effect. And what about the question of what happens when any such agreements are amended? There is a real question about whether it's appropriate for the Administrative Appeals Tribunal, as opposed to members of the judiciary, to be in the practice of issuing orders with respect to these kinds of matters. We also note the lack of proper protections for journalists' telecommunications data compared with domestic provisions, given that we are dealing here with arrangements that are reached overseas and companies that operate overseas.

There's a real question, as well, about the appropriateness of IPOs for purposes relating to control orders, in particular for monitoring compliance with control orders, and the fact that powers will be available for those purposes under IPOs that are not currently available within Australia. There's a question about the appropriateness of IPOs for national security purposes, particularly given the breadth of powers to access telecommunications data, and whether the safeguards for these IPOs are adequate. Critically, given the crucial role that they will play, there are some real questions that remain from this bill, even as amended, about the adequacy of provisions enabling service providers to object to IPOs, both in terms of the grounds for objection and the means for considering and determining such objections.

It's not possible—and this is a big part of the problem—to assess the adequacy of safeguards in nearly all aspects of the proposed regime in the bill, because the bill really only sets out a minimal framework for oversight with an apparent intention for many critical details, including safeguards, to be governed by the terms of individual agreements between Australia and other countries. Some civil society stakeholders have made the point that they're concerned that AAT members lack the independence required to properly fulfil the role of considering and issuing IPOs. We have heard in this place a sustained assault on what political parties do with the AAT, and I think if you accept those arguments you've got to take them through to the logical conclusion and raise the question about whether the AAT, as opposed to members of the judiciary, is the appropriate place for dealing with many of these crucial issues. The Australian Privacy Foundation has made that point very, very clearly.

We also have no guarantee that agreements between countries for data are going to be made public in full. It is for this reason that even the human rights committee, in inquiring into this bill, considered that the bill may not adequately protect the right to privacy and did raise questions about further amendments. In light of the time, the Greens will make further contributions and set out the significant problems with this bill when it reaches the Senate.

Andrew Wilkie (Clark, Independent) Share this | Link to this | Hansard source

I well understand that there's a central role for government to maintain our national security and public safety. Personally, the majority of my working life has been in uniform as a member of the regular army in intelligence services and in working for a large US defence contractor. However, in the case of the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 I do associate with the comments made by the member for Melbourne. I believe that this is no way to address such an important issue of national security, to rush it through after the parliament was due to rise this evening. Surely, this is a matter that needs to be considered in detail by the parliament with a full debate allowed. Remember, this is another piece of security legislation against the backdrop of what many people, including me, regard as excessive use of new security legislation in this country. I'm mindful that since 9/11 more than 80 piece of legislation have gone through this place to deal with national security and border protection, and you can add that number to the hundreds of pieces of legislation in the parliaments of the state and territory governments. So I suggest the best thing to do would be to park this bill tonight and to allow a long and detailed debate tomorrow to let all members ventilate the concerns that they might have. Then we can have a considered vote on it tomorrow. It shouldn't be effectively left to the Senate to deal with this. In the circumstances, I'm left with no option but to oppose it tonight. I suspect that I will join the member for Melbourne in calling a division, not necessarily because I oppose all of the provisions of the bill, but I do think there are issues and concerns that need to be addressed. I think we should debate it tomorrow in the light of day.

Steve Irons (Swan, Liberal Party) Share this | Link to this | Hansard source

The question is that this bill be now read a second time.

A division having been called and the bells having been rung—

As there are fewer than five members on the side for the noes, I declare the question resolved in the affirmative in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.

Question agreed to, Mr Bandt and Mr Wilkie voting no.

Bill read a second time.