Thursday, 6 December 2018
Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018; Second Reading
I rise to speak in the second reading debate on the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018. The one message I have is that if we want the people of Australia to benefit from the security that this bill conveys over the Christmas period, a period of normal increase in terrorist activity—a period when agencies are responsible for our security—we definitely need this bill to be passed and passed without amendment. That is the critical issue today.
I have been handed a number of amendments in the time that Senator Steele-John has been speaking. I haven't been able to go through those amendments in detail, but it is absolutely critical that this bill be passed now. If it's not passed now, it will be on the opposition's and the Greens' heads that we cannot protect Australian citizens over the Christmas period. I do thank Senator Wong for her description of the process by which we have made this bill, and it is a very important bill. It is a bill which has been asked for by the security agencies since 2014. It's a bill, as you see from Senator Steele-John's intervention, which evokes passions; it's a very complex bill. Senator Wong has given us a very good appreciation of the process and of the things that were discussed during the process within the PJCIS itself, and I thank her for that. For Senator Steele-John, I was quite disturbed by the attack on a long-serving and very successful public servant. I suggest that this man has served this country as a public servant for many years and he deserves to be thought of better and to be considered in a much better way than Senator Steele-John in his almost biblical speech has presented Mr Michael Pezzullo.
It's a very complex bill and it is condescending of Senator Steele-John to say to us we did not understand this bill as we went through it. We received many interventions, and many aspects of evidence were very complex. We went through them in great detail. We took specialist advice, and this is a good bill. I suggest to Senator Steele-John at some stage that he actually reads the bill and tries to understand it. The allegations he has made as to the consequences of this bill are fundamentally untrue.
The new communications technology, which obviously includes encryption, is eroding the capacity of Australia's law enforcement and security agencies to investigate serious criminal conduct and to protect Australians. The Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 contains amendments to various pieces of legislation to create a package of reforms that strengthens the ability of Australia's law enforcement and national security agencies to deal with the challenge of encryption.
Encryption underpins modern information and communications technology. It is a tool that protects personal, commercial and government information, and supports confidence in a secure cyberspace. This just proves that, despite what Senator Steele-John says, we are aware of the internet. These technologies allow us to confidently transact online and to use the internet for services such as banking and shopping. However, criminal syndicates and terrorists are increasingly misusing and, indeed, exploiting these technologies. Terrorist organisations in Australia and overseas are using secure messaging services to obscure their identities and plan safe from the authorities' view. For example, ISIL-inspired terrorists used secure messaging services to plan the November 2015 Paris attacks.
The lack of access to encrypted communications presents an increasingly significant barrier for national security and law enforcement agencies in investigating serious crimes and national security threats. According to ASIO, encryption has impacted intelligence operations in at least nine out of every 10 of its priority cases. The AFP advised that encrypted communications have directly impacted around 200 operations conducted by the AFP in the last 12 months, all of which related to the investigation of serious criminal offences carrying a penalty of seven years or more. The uptake of encrypted communication platforms by criminal and terrorist groups has been relatively sudden. It represents a seismic shift in the operational environment for our law enforcement and security agencies.
In June 2013 only three per cent of internet communications intercepted by ASIO under warrant were encrypted. By 1 July 2017 that figure had increased to more than 55 per cent. Most of the material of intelligence value is encrypted. Similarly, more than 90 per cent of data lawfully intercepted by the AFP is now encrypted in some form. No responsible government can sit by while those who protect our community lose access to the tools they need to do their job. In the current threat environment, we cannot let this problem get worse. The bill represents a package of reasonable and proportionate measures which will enhance our approach. The government has undertaken extensive industry and public consultation on the bill and has made amendments to account for the constructive feedback received.
I'd like to give an outline of certain measures in the bill. The first one is the industry assistance, including technical assistance and technical capability warrants. The supply of communications is a global industry. With major technology providers headquartered overseas, we must work with international partners to adapt to a world characterised by ubiquitous encryption. The communications industry is in a unique position to assist in tackling the challenges we face. Encrypted products are developed and operated by a range of private providers, both inside and outside Australia, and in a range of forms across the communications supply chain. National security and law enforcement agencies already work cooperatively with industry partners on these issues to protect Australians. The bill seeks to enhance those existing relationships to achieve lawful and non-arbitrary access to available information in the context of serious criminal and national security threats. It complements the existing obligations of domestic service carriers to provide reasonable assistance to law enforcement under the Telecommunications Act 1997. The bill facilitates a multilevel approach to industry assistance, creating a framework to support the wide range of providers, including foreign providers, that assist law enforcement and intelligence agencies voluntarily. This is reinforced and clarified by the creation of two new powers—the technical assistance notice and the technical capability notice. Technical assistance notices will be issued by an agency head or their delegate to compel assistance that a provider is capable of giving. Technical capability notices will be issued by the Attorney-General and will require a company to take reasonable steps to develop and maintain a capability to respond to agency requests.
This legislation will not weaken encryption or mandate backdoors into encryption. The bill specifically provides that companies cannot be required to create systemic weaknesses in their encrypted products or be required to build a decryption capability.
In conclusion, the bill demonstrates the government's commitment to ensuring that law enforcement and national security agencies have the tools they need to keep Australia safe. The government has consulted extensively with industry and the public on these measures and has made amendments to reflect the feedback that is in the legislation now before the parliament. The critical issue is that we get this bill through. I commend this bill to the Senate.