Kristina Keneally (NSW, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Hansard source

Thank you. The Prime Minister harried the committee's work, saying:

Our police, our agencies need these powers now and I would like to see them passed. In fact, I would insist on seeing them passed before the end of the next sitting fortnight.

Minister for Home Affairs Peter Dutton went as far as to link the bill to the fatal Bourke Street knife attack. He even claimed that Labor opposed the legislation; that was a false claim. And so, under this political pressure, Labor members of the PJCIS worked diligently with their Liberal colleagues to complete as thorough a review as possible of the assistance and access bill. Ultimately, the Parliamentary Joint Committee on Intelligence and Security made 17 substantial bipartisan recommendations on the legislation. These were informed by the advice and testimony of our security agencies and of industry heads and key stakeholders. Many of these recommendations, however, were then ignored by the government.

This chamber was forced to consider and vote on a version of the assistance and access bill which was different to what the experts and the Parliamentary Joint Committee on Intelligence and Security recommended. In the interest of national security, Labor agreed to pass the bill but only with a commitment from the government that it would do two things. Firstly, the government committed that it would allow the PJCIS to continue its inquiry into this lengthy, complex and controversial bill. Secondly, the government committed that it would move the amendments that reflected the recommendations of the PJCIS when parliament resumed in 2019. The latter commitment was stated by the Leader of the Government in the Senate, Senator Cormann, on the floor of the Senate when he said:

I also confirm that the government has agreed to facilitate consideration of these amendments in the New Year in government business time. Finally, I also confirm that the government supports, in principle, all amendments that are consistent with the Parliamentary Joint Committee on Intelligence and Security recommendations in relation to this bill. This will facilitate this bill becoming law without amendment, and I do support it on that basis.

Let's be clear about the quote I just read out: Minister Cormann, as Leader of the Government in the Senate, stood here in this chamber and said that the government supported, in principle, all the amendments that were consistent with the PJCIS recommendations and would facilitate those amendments in government business time.

Labor upheld our side of the deal, as we facilitated the passage of the legislation through the parliament in the last sitting hours of December 2018, taking the Leader of the Government in the Senate, Minister Cormann, at his word—taking the government at their word when it came to national security legislation. One year, two months and two days have now passed since Senator Cormann made that commitment here on the floor of this chamber, and not a skerrick of government business time has been provided to debate the legislation. In short, Senator Cormann and the government have not kept their word.

This has left Australia with flawed legislation that must be resolved by this parliament. There are three key issues with the current iteration of the assistance and access laws that I will talk about today. Firstly, these laws are having a significant impact on Australia's technology industry, risking Australian jobs in the process. With fears the Morrison government's laws will force technology companies to introduce systemic weaknesses into their systems, some 40 per cent of technology companies are already reporting losses in sales and commercial opportunities, according to the Communications Alliance. Shockingly, 95 per cent of companies believe the Morrison government's encryption laws have had a negative impact on Australia's technology reputation in global markets. The Morrison government cannot claim it was not warned, as the global giants Facebook, Google, Apple, Amazon and Twitter came together before the legislation was passed to say:

This legislation is out of step with surveillance and privacy legislation in Europe and other countries that have strong national security concerns. Several critical issues remain unaddressed in this legislation, most significantly the prospect of introducing systemic weaknesses that could put Australians' data security at risk.

Atlassian's Scott Farquhar said:

We've got to recognise this law threatens jobs … The fact is that the jobs of the future—these high paying jobs, export dollars that we bring to Australia, largely in technology—are at risk …

We must face the flaws in this legislation and provide certainty to the technology industry that we understand how important consumer trust in their products and services is.

Secondly, it is apparent that the encryption laws do not provide the robust oversight mechanisms that Australians have come to expect from our national security laws. This lack of oversight has become a major sticking point in Australia's negotiations with the United States to improve Australian access to data held overseas. Despite warnings from Labor in 2018—that judicial oversight of these new encryption laws was critical to building trust with the Australian public and private sectors that these laws would not be abused—the government has refused to listen. The consequences of the government's arrogance are now apparent for all to see, as the Chairman of the United States House of Representatives Judiciary Committee, Congressman Jerrold Nadler, has written to the Minister for Home Affairs to express his concerns about these laws. Congressman Nadler has explicitly highlighted: 'A diverse coalition of technologists, Australian and US technology firms and civil society advocates has expressed concerns that the access act has profound impact on privacy and security well beyond Australia's borders.' Congressman Nadler raised these concerns because, for Australian law enforcement officers to be able to access data held in the United States, Australia must first reach an agreement with the US through the CLOUD Act. But, with Australia's current encryption laws left as they are, Congressman Nadler believes the laws 'may undermine Australia's ability to qualify for an executive agreement under the CLOUD Act'. Without reaching an agreement with the United States, we are selling our security agencies short. The United States House of Representatives, through the CLOUD Act, has sent a clear 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. The ambitions of the United States for robust protections for civil society should not outpace our own.

Finally, Australians cannot even be sure that these laws are working. Barely two weeks after the assistance and access bill passed the Senate, Minister Dutton claimed:

Encryption had put the communications of terrorists and criminals beyond the reach of law agencies, but they are now using the measures under the Assistance and Access Act to target and disrupt threats to the Australian community.

Yet, thanks to the latest annual report, we now know that in the 2018-19 financial year not a single technical assistance notice or technical capability notice was issued. We also know that only 25 technical assistance requests have been issued through to 15 November 2019. It is worth reflecting briefly on the nature of that particular power. A technical assistance request is not a coercive power. From the information the government's released so far, it's unclear whether these technical assistance requests were actually complied with. It's also unclear whether these requests were for assistance beyond what tech companies were already happy to provide to law enforcement agencies prior to the passage of the assistance and access bill. In the 432 days since this bill passed the Senate, Australians can't be sure that any Australian agency has ever used these powers to compel a provider to assist authorities in a criminal investigation. Disturbingly, this may be because our law enforcement agencies don't know how these laws work. New South Wales Police Force Superintendent Arthur Kopsias said in March 2019:

There's probably thousands of people we are likely to deal with—

under the new laws.

I haven't got a clue how to implement it. There should have been a lot more consultation …

Yet, these powers are on our books, inflicting their unintended consequences on our economy, our civil society and our diplomatic relations. Minister Dutton also said in an interview on Sky News that former ASIO head 'Duncan Lewis advises 90 per of their targets now are utilising encrypted messaging apps'. This is a major red flag. If these powers are not being employed when they supposedly could be used in some 90 per cent of cases, something is terribly wrong. These are complicated laws which confer extraordinary powers to our national security and law enforcement agencies. The process by which we would normally consider legislation of this nature was hijacked by a government more interested in wedging than governing. We have a responsibility to the Australian people to seek the right balance between our security and our freedom. The minister's dereliction of duties does not excuse us from ours. In this parliament we must balance the privacy and freedoms of Australian citizens with the paramount importance of providing a safe and secure nation. When we change the dials on our national security policy, we cannot compromise the very freedoms of the way of life we are seeking to uphold and protect.

That is why we are bringing forward this private senator's bill: to repair the government's assistance and access laws. The majority amendments proposed in this bill were agreed to by government members of the PJCIS and received in-principle support from Minister Cormann in his statement to the Senate on 6 December 2018. In addition, Labor is proposing an amendment to resolve the rightful concerns of Congressman Nadler and many other stakeholders to introduce a judicial authorisation requirement. This would allow greater oversight of issuing notices and address concerns raised by members of the United States Congress in relation to Australia's eligibility to enter into a CLOUD Act agreement.

Labor does not suggest these amendments will address all the problems with the encryption laws that have been identified by industry, law enforcement and other stakeholders. We have listened carefully and closely to these concerns, and we will continue to work closely with our intelligence and law enforcement agencies and technology experts throughout the course of the current PJCIS inquiry. The amendments proposed in this bill are an important step towards repairing Australia's encryption laws for the sake of our national security and the growth of a key sector in our domestic economy and the jobs it would create. So I commend the bill to the Senate and I ask my colleagues around this chamber to join with Labor in support of this sensible restraint and robust oversight for these extraordinary laws.