Thursday, 6 December 2018
Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018; Second Reading
Today, as we debate the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill, we know that we have a responsibility in this place to balance the privacy and freedoms of Australian citizens with the paramount importance of providing a safe and secure nation. There have been, as we know, quite rightly, a lot of concerns raised with regard to this legislation, but Labor have listened very carefully and closely to these concerns. We have responded by going through the technical detail, and I have great confidence in my colleagues who have done this.
We've heard, for example, about issues with the technical assistance requests and the fact that these are voluntary and represent a request from the agencies for a designated communications provider to insist that law enforcement access encrypted information. This, of course, means that telecommunications companies will choose whether or not to comply with this request. In addition, there are issues with the technical assistance notices, which are mandatory and require a designated communications provider to do something that is already within their power to compel them to help law enforcement access encrypted information. There are also the technical capability notices, which are mandatory and require a designated communications power to build a capability to help law enforcement access encrypted information.
As I think about these issues in the context of national security, we've seen a number of incidents in Australia quite recently in relation to lone-wolf terrorist attacks by people who have been known to act alone and in unstable ways. To be honest, the idea that people would be working in an organised way in groups of people using telecommunications encrypted technology to organise terrorist crimes in Australia means that we must consider and respond to those concerns by really taking seriously the need to introduce laws such as these today. Our security agencies and law enforcement bodies need these powers and resources to keep our community safe and our nation secure.
I don't deny that these are extremely challenging principles to apply, but I have great confidence and I have seen the effort that a great many of my colleagues have put into taking the time and energy to analyse every national security bill that is presented to this place against these important principles. We understand that, in conferring new powers to protect our nation's security, we don't want to compromise the very freedoms and the way of life that we are seeking to uphold and protect. When we look at keeping Australians safe, we also want to balance that with upholding the rights, freedoms and privacy of our country.
The vast majority of submitters argued that the access bill in its current form did not afford robust substantive and procedural protections. That's why we've looked very carefully at amendments that should be moved in this place. These concerns have been compounded by the fact that there was a distinct lack of public consultation on this bill, and we recognise this. We have fought very hard to improve the bill and to deal with the most significant of the many concerns raised throughout the inquiry. We recognise the importance of the opposition being able to work through national security issues with the government in a bipartisan way, so that there is a clear understanding across the parliament about how national security issues should be dealt with. But, when things go too far and are not right, we on this side of the chamber take very seriously our responsibility to make sure that the issues with legislation are fixed and amended.
We have consulted with civil society, industry and stakeholders throughout the committee processes and indeed outside of that, and our shadow Attorney-General Mark Dreyfus and Senator Jenny McAllister and many others have negotiated and worked hard with the government to give effect to their core concerns. Senator Penny Wong, shadow Attorney-General Mark Dreyfus and many others in our caucus have sought to step us through the seriousness of these concerns and the importance of resolving them. We believe that the compromise we've reached with the government will deliver the security and enforcement powers that agencies say they need and will ensure adequate oversight and safeguards to prevent unintended consequences while enabling continuing scrutiny of the bill.
It is extremely important that we in this place do our very, very best to put national security issues ahead of partisan politics. I note that there is a long history of needing to do this. This is in fact the 16th substantive national security bill introduced over the last five years. Labor has a general approach to national security matters. The first principle, of course, is that our national security agencies and law enforcement bodies, to the extent that they have a responsibility to be involved in national security matters, need to be given the powers and resources that they need to keep Australia safe, to keep our nation secure. We also contend that national security laws that encroach on our rights and freedoms must be proportionate to the threats and the risks that we face. This also means that, with the granting of any new powers, oversight is extremely important. Transparency is extremely important. We need to be clear that these powers are used for the purpose for which they were intended, and for only that purpose, and do not in any other way invade the privacy and protections of Australian citizens.
Lastly, a basic principle guiding our approach should be, particularly when national security laws confer extraordinary powers, that we must treat those powers as extraordinary and not simply as the new normal. I do consider that these new powers are and could be, if they were misused, extremely invasive and extremely dangerous, but that means we need proper oversight, and I believe that the legislation before us today does indeed do that.
Systemic weakness in the legislation has been a significant issue between both the government and the Labor Party. We did express our concern that the bill could pose a risk to Australia's national security, and indeed there was evidence before the Senate committee in relation to this. But we know, as they have told us, that they're responsible for really important systems that need to be secure—things like the Royal Commission into Institutional Responses to Child Sexual Abuse, law enforcement agencies, our banks and our Defence forces. I, therefore, was very concerned when a company told the Labor Party and the committee that the definition of a systemic weakness could in fact compromise their work in that area. It was of great concern to the Labor Party that Liberal members of the committee had proposed to ignore those concerns. But we were very pleased that, after the government declared last week that they were going to stop working with Labor on these joint issues, they backed down from that very reckless course and negotiated to resolve these important issues. They are the core of the amendments that come forward in this place.
We've had concerns raised by submitters in public hearings on this bill, which apparently were not identified previously by the government, as to whether it would prejudice Australia's security cooperation with the United States. We had attention drawn to these issues in relation to compliance with the US Clarifying Lawful Overseas Use of Data Act, the CLOUD Act, which was enacted this year. The CLOUD Act of the United States is what makes it possible for Australia to enter into a bilateral agreement with them to allow agencies from Australia to request the data of non-US persons. This includes things like WhatsApp and messages which might be sent by or to a terrorist subject. This relates to Australian technology companies directly. The concern here was that that would enable Australian agencies to bypass existing requirements through the US of making requests through the Department of Justice.
To be clear about this, we have mutual assistance and treaty arrangements with the US currently. It is indeed a cumbersome system that's been in place for many years. We can make requests for telecommunications data via those mutual legal assistance treaty processes, but it does take time. I have great concern that actually what we want to see is an oversight that prevents crime; it's not just about landing a conviction after the event.
The CLOUD Act, that was passed by Congress this year, has the prospect of swifter access for Australian intelligence agencies and police forces where they would simply be able to make the request using the processes of the CLOUD Act. This means it would go directly to a service provider that is based in the US, and this is the basis of the CLOUD Act process.
If the request did not relate to a US citizen and related to a foreigner, from the point of view of the US, we could still see those issues dealt with swiftly—within a matter of days. I see this as a great advance, because currently it takes many months of effective cooperation with the US. This means that, in order to enter into an agreement with the US under the Cloud Act, we need the US Attorney-General to be able to certify with their Secretary of State that there are, in their relationships with foreign governments with whom they seek to cooperate, procedural protections for privacy and civil liberties that are robust and substantive. Frankly, I think this is critically important—that the US is sending a signal that protections for citizens and privacy for civil liberties must be robust and substantive, not just for their own citizens but for those with whom their own agencies interact. I think that is an incredibly important principle for global cooperation on these matters. As Mr Mark Dreyfus MP told the House of Representatives, the Congress has a right to object to such certifications within 90 days if these tests are not seen to be met.
The Labor Party put significant time and effort into assessing and analysing national security bills against these really important principles. We know that keeping Australians safe means we also need to uphold the rights and freedoms that we, as a democratic society, hold dear. Otherwise, why are we doing this? The reason we want to be able to protect people from terrorism is because of the society that we hold dear and the values that it contains. This is what we fight to protect day after day. We don't want to see any deranged or hate-filled terrorist attack our freedoms with violence in our nation. We don't want to be part of governments that give in to fear, because that is what panders to terrorism across the globe.
We must always hold an important trust that means the laws we pass can only be part of the solution to the national security threats we face. We know that we need inclusive societies where people can have open and communicative communities that mean people have a strong sense of trust and resilience within society. What we have seen is that when laws are misdesigned they make the problem worse, because they create in society fear of overreach by the state. So we must have a good relationship—a relationship of trust—with the community, with those we seek to protect with these laws.
Time and time again, we know, important information that stops terrorist attacks comes from the community. If the community does not have trust in the way we implement these kinds of security measures then that important information will not come forward, and we will all be the poorer and less safe for it.