Thursday, 6 December 2018
Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018; Second Reading
The Labor Party does support the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, subject to the passage of amendments. I speak as a member of the PJCIS, which was tasked with reviewing this bill. I wish to explain the basic proposition that was put before us, before going to some of the detail.
In recent years, and, indeed, as far back as 2014, the agencies charged with maintaining our national security have publicly and privately raised concerns about encryption. These agencies contend that their investigations of individuals and entities suspected of involvement in serious offences has been frustrated by these technologies. In particular, what they tell us is that their existing interception powers—those powers which are heavily regulated through the judicial warrant process—and their warranted access to communications are frustrated by this technology. I say this because I want to be very clear about the actual content of this bill.
I speak, really, in regard to schedule 1 of the bill. The bill has five schedules. Schedule 1 of the bill provides for a range of ways by which the national security agencies may work with technology companies to develop tools that may be used, where a warrant is present, to access a person's communications for the purposes of a criminal investigation. It is a most important point, and one that is ignored in contributions like that of Senator Steele-John's. Senator Steele-John would have you believe that this is a bill that provides unimpeded access to all communications—to mass surveillance—and that is not the case. If Senator Steele-John had read the legislation, he would understand that access to a person's communications continues to be subject to warrant. It is extremely difficult to have a serious debate about national security when people misrepresent the substance of legislation. I would urge senators to speak to the legislation before them, not to some other piece of legislation which is, in fact, not before this chamber.
This bill has been through quite an extraordinary process. The Labor Party have a long and proud tradition of seeking to place national security well above partisan politics. It's for this reason that, where possible, we seek to take a bipartisan approach to national security. We seek to do that through the processes of the PJCIS. Protecting the security of Australians is a fundamental responsibility of government. As a party of government, that is a responsibility that we take very seriously. We also understand that that will require coordinated action by parliament and the executive. It's on this basis that we offer bipartisanship. I note that over the last 20 years we've experienced a very real change in the threat environment for our country. During this time, the parliament has considered a number of bills that have increased the powers and capabilities of our security agencies. With a few limited exceptions, these bills responded to advice from the agencies about the tools that they need to keep Australians safe. When we receive advice from agencies, we take it seriously. We also take seriously the requirement to ensure that appropriate checks and balances are in place, that appropriate oversight is in place.
I make the point that, for some years now, Labor has had in the public domain a proposition to reform the way the PJCIS does its work to ensure that its powers are commensurate with the powers that have been granted to the agencies. The PJCIS's work doesn't put a brake on the process of legislation. It is, in fact, an essential part of keeping Australians safe, because our ability to respond to new threats relies on the public's faith that national security laws are appropriate, proportionate and adapted to the circumstances that we face. So, when we undertake work in the committee, it plays a very important role in allowing Australians to see that parliamentarians are examining these questions in a serious way.
It's in that context that I wish to express disappointment about the way that the government has approached this bill. These issues were first raised in 2014. Senator Brandis then went on to indicate, sometime in the middle of 2017, that the government intended to develop legislation to respond to encryption. Things went very quiet for a long time, and then in the middle of this year we understand or we received evidence that the government initiated discussions with a very small number of industry participants. Eventually—I think in August—the government initiated a public consultation process and, as has already been noted in this debate, it received many thousands of submissions. It was only in September that a bill was brought to the parliament. That bill was referred to the PJCIS, and at that time there was no indication given to that committee of a desired end point for the committee's deliberations. Indeed, it was a bill that contained five schedules and 170 pages. The indication was that the committee ought to take as much time as it needed to work through the issues.
This is a complex piece of legislation. It ought not have been rushed, and yet midway through this process, as the committee was taking evidence and scheduling hearings from a range of industry participants, security agencies and civil society groups, government ministers—not members of the committee but members of the executive—started to very publicly place pressure on the committee. Government ministers started to assert that the committee was unnecessarily delaying the process. Government ministers, in fact, at times went on to suggest that opposition members of the committee were not committed to national security. This was regrettable in the extreme because actually the committee and public faith in the committee are essential, and criticising the committee—placing pressure on the committee from the point of view of the executive—weakens public faith that the executive trusts the entities of the parliament to review and consider the legislation that they are presenting.
At a later point, documents that had been provided to the committee confidentially were leaked into the public domain and appeared on the front page of the newspaper. The government has refused to initiate any investigation into that leak. This is no way for a responsible government to behave. A responsible government respects the processes of the parliament. A responsible government, particularly in relation to national security, ought to respect the processes of a committee like the PJCIS, which has many decades of experience and a track record of considering legislation, improving it and securing its passage.
The committee has since 2014 considered something in the order of 15 pieces of legislation. In conducting our reviews we have made nearly 300 recommendations for change, and those recommendations have been in all instances accepted by the government and shaped the passage of legislation that is stronger, more robust and actually makes Australians safer. I ask the government to walk away from the tactics that were adopted over the course of the last couple of weeks. This was no way to behave. It was disrespectful, it fundamentally undermined the work of the committee and, in the long run, I believe, it will undermine the safety of Australians.
I come back to the specifics of the bill before us. The committee did hear evidence that there are a range of concerns in industry, in particular, about the operation of this bill. Those concerns went to the potential for any kind of weakening of security, even for a very narrow purpose, to have the potential to weaken the security of the internet overall and to weaken the security of the internet for other users.
At the same time, the committee heard evidence from the national security agencies that they urgently require passage of the bill to obtain the necessary powers to deal with an enhanced terrorist threat over Christmas. No responsible parliamentarian can ignore a warning of that kind. It is for that reason that Labor sought to reach an agreement with the government, an agreement which would provide the agencies with the powers they require in the period that they say they require them but which would also allow ongoing scrutiny of this bill. I'm pleased that, finally, the government engaged with us and started to contemplate amendments of these kinds. I note the engagement between Mr Porter and Mr Dreyfus in this regard.
I want to go through some of the recommendations made by the committee that are embodied in the amendments that were passed in the House of Representatives and which are likely to be contemplated here in this chamber. In the first instance, we sought to limit the scope of this bill to criminal law enforcement in relation to offences with penalties of a maximum of three years imprisonment. These powers ought not be used for trivial offences—for summary offences. They are for serious offences only, and I'm pleased that the committee's final report contains a recommendation in this regard.
The committee was also concerned to ensure that in extending the provisions in this legislation to state and territory law enforcement agencies appropriate oversight was in place for those agencies. We recommended that the state and territory law enforcement agencies do have these powers but that the Commonwealth Ombudsman have their powers extended to ensure that they are able to oversee the exercise of the industry assistance measures not only by the AFP and the Australian Criminal Intelligence Commission but also by the state and territory interception agencies.
The Inspector-General of Intelligence and Security made a range of recommendations—actually, she termed them 'suggestions' in her report and I don't wish to misrepresent her—about what she would require in terms of amendments to allow her to oversee the provisions of the bill effectively. A range of those suggestions have been incorporated and they are noted in recommendation 5 in the PJCIS report.
The committee also recommended that technical capability notices be authorised jointly by the Attorney-General and the Minister for Communications. The purpose of this recommendation is to ensure that the Minister for Communications, who, amongst other things, is responsible for economic interests associated with communications, would have a say in considering whether or not the tests necessary for a notice to be issued have been met. That's important because those tests include consideration of practicality and proportionality, and one would expect that the minister who is directly responsible for communications is in a position to provide detailed consideration and an industry perspective on these issues.
Systemic weakness was a theme of many of the submissions. The bill, as originally presented by the government, did not contain a definition of systemic weakness. Nonetheless, throughout the hearings, the intelligence agencies and the national security agencies provided evidence about their understanding of systemic weakness—how they would understand it in terms of its ordinary meaning. The Director-General of the Australian Signals Directorate gave evidence that a systemic evidence is a weakness that might actually jeopardise the information of other people as a result of that action being taken. And the Director-General of Security explained that the powers in schedule 1 would not be used to require a designated communications provider to do anything that jeopardises the security of personal information of innocent Australians. These were important assurances and explanations of how those agencies understood the ordinary meaning of systemic weakness, so, in the amendments that have been addressed to deal with this, the committee has recommended that they have regard to the ways that the agencies themselves interpret this term and its ordinary meaning.
Many of the industry submitters spoke about the importance of transparency. In particular, they spoke about the way that the industry seeks to secure overall security by being entirely transparent about shortcomings and communicating those publicly. The committee made a recommendation that would allow a provider to request the Attorney-General to approve them to disclose a technical capability that had been developed as part of the schemes laid out in the bill. The expectation is that the Attorney-General would agree to that request, except to the extent that doing so would prejudice an investigation or compromise national security. This does complement the existing provisions in the original bill that enabled a provider to publicly disclose the fact that they were issued a technical capability notice.
Of course, it's possible that a person or an organisation served with a notice may consider that, notwithstanding the fact that the notice has been issued, it generates the possibility for a systemic weakness, and the committee recognised that some mechanism needs to be put in place to allow that complaint or view to be assessed. In particular, recommendation 11 goes to this point. The committee recommended that the bill be amended to allow a designated communications provider who has been given a capability notice under section 317W(1) of the bill to request a binding assessment. The binding assessment goes across four points: whether the proposed notice would contravene section 317ZG of the bill, which goes to systemic weakness; whether the requirements imposed by the notice are reasonable and proportionate; whether compliance with the notice is practicable and technically feasible; and, importantly, whether the notice is the least intrusive measure that would be effective in achieving the objectives of the notice. Once such a request had been made by persons served with a notice, two people would be jointly appointed to conduct an assessment. One of those people would be a technical person and the other person would be a retired judge, and both of them must agree that those tests—systemic weakness, reasonable and proportionate, practical and technically feasible, and the least intrusive measure—had been met.
This has been a process beset with some challenges, but Labor stands here in support of the bill.