Thursday, 6 December 2018
Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018; Second Reading
I thank Senator Molan for his courtesy and I rise on behalf of the opposition to speak to the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018. I want to start with some overarching remarks. The fundamental responsibility of any government is to ensure the safety of the nation and its people and it is the foundation upon which all other policy aspirations necessarily rest. As a party of government, it is a responsibility Labor has always upheld. We in Labor have proven, both in government and in opposition, we always place national security ahead of partisan politics.
Before I turn to the bill I want to say a little about the approach Labor has been taking to national security matters. First, we start with the premise that our security agencies and law enforcement bodies, to the extent they are involved in national security matters, must be given the powers and resources they need to keep Australians safe and our nation secure. Second, we believe national security laws that encroach on the rights and freedoms of Australians must be always necessary and proportionate to the threats faced. Third, Labor holds that, with a grant of new powers, we must ensure there are oversight and transparency mechanisms designed to ensure these powers are used for the purpose they are granted and in a manner that ensures ongoing accountability for their exercise.
These principles are often challenging to apply but we put a great deal of time and energy into rigorously analysing every national security bill presented against the principles I have outlined. We do so because we understand that, in conferral of new powers to protect the nation's security, it is vital that we do not compromise the very freedoms and way of life that we are seeking to protect. Labor has always taken the advice of our national security agencies seriously. But we also know government's ability to respond to new and evolving threats relies on the public's ongoing faith that our laws are appropriate, proportional and adapted to the circumstances that we face.
I turn now to the bill itself. The access bill was introduced in the parliament in September 2018 and was referred to the PJCIS. National security agencies gave public evidence to the committee that they needed these powers in order to respond to heightened risk of terror over the Christmas period, and those views have been repeated in media engagements and elaborated upon in classified briefings before the committee. Labor members of the committee accepted that evidence.
The committee also heard compelling evidence that, in the form the government introduced the bill, it could do more harm than good. Specifically, as originally presented, this bill could, amongst other things, pose a significant risk to Australia's national security, jeopardise security cooperation with the United States and create unnecessary risks for Australian business and, in particular, local technology exporters. Labor has been consulting with industry and civil society stakeholders, both through the committee process and outside, and we have negotiated with the government to give effect to many of the core concerns, and these are reflected in the recommendations and in many but not all of the government amendments. While there are significant outstanding issues, this compromise will deliver security and enforcement agencies the power they say they need over the Christmas period and ensure adequate oversight and safeguards to prevent unintended consequences while enabling continued scrutiny of the bill into 2019. These review processes provide an opportunity to resolve our ongoing concerns about the bill with the assistance of industry experts and civil liberties groups, while also upholding our responsibilities to keep Australians safe.
I will speak briefly to some of the improvements to the bill. Systemic weakness related concerns are addressed by amendments that seek to clarify the term 'systemic weakness' and also amendments that clarify that technical capability notices cannot be used to create a systemic weakness. Other concerns addressed through amendments include the ability of a provider to disclose details of a technical capability notice, except to the extent that doing so would compromise an investigation.
Amendments also include that authorisation of a technical capability notice requires the approval of both the Attorney-General and the Minister for Communications. In addition, a designated communications provider which has concerns about a technical capability notice will be able to request an assessment of whether or not it would indeed create a systemic weakness, whether the requirements are reasonable and proportionate, whether compliance is practically and technically feasible and whether the notice is the least intrusive measure that would still achieve the objective. Two persons, a technical expert and a non-serving judge, would be jointly appointed to conduct the assessment, and their report would have to be provided to the Inspector-General of Intelligence and Security in the case of ASIO and to the Commonwealth Ombudsman in the case of the AFP.
The issue of inadequate oversight and safeguards has been addressed through amendments which include strengthening the IGIS's oversight powers. These include: explicit notification and reporting requirements when issuing, varying, extending or revoking a notice of request; and limits on the exercise of powers, including extending the prohibition on systemic weakness to voluntary notices, ensuring that decision-makers consider necessity and intrusion on innocent third parties when they issue a notice. There will also be provision for defences for IGIS officials and clear information-sharing provisions.
Amendments also establish clear authority for the Commonwealth Ombudsman to inspect and gather information on the exercise of these powers by the AFP and state and territory interception agencies. The amendments in relation to the Commonwealth Ombudsman will include notification requirements and information-sharing provisions. These would complement the inspection activities of state and territory oversight bodies. In addition, the AFP will be required to prove any state- or territory-initiated technical assistance notices and must apply the same criteria and go through the same decision-making process as would apply if the AFP were the original issuing authority.
In response to belated government demands that consideration of this bill through the intelligence committee be accelerated, Labor have assisted in this process. We are pleased that the government has acknowledged and responded to a number of the serious concerns raised both by Labor members of the committee and by the opposition more broadly. However, as Mr Dreyfus has previously indicated, the amendments do not reflect the full recommendations of the intelligence committee. Therefore, as the shadow Attorney-General has stated, Labor will be moving some minor but important amendments in committee to make the amended bill reflect the unanimous recommendations of the Parliamentary Joint Committee on Intelligence and Security.