Senate debates

Monday, 10 February 2020


Telecommunications Amendment (Repairing Assistance and Access) Bill 2019; Second Reading

4:11 pm

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

I rise to speak to the Telecommunications Amendment (Repairing Assistance and Access) Bill 2019 in my name. I will say at the outset, Labor always seeks to work in a bipartisan fashion when it comes to ensuring Australia's national security. Labor also believes our national security and law enforcement agencies need powers and resources to keep our communities safe and our nation secure. It is with this principle in mind that we bring this private senator's bill before the chamber. Labor's legislation seeks to correct the mistakes of a hyperpartisan Prime Minister and Minister for Home Affairs, who've been more interested in their marketing messages and selling empty promises than they have been in securing effective national security legislation.

Before I speak about why I believe this legislation is needed, it is worth restating the circumstances by which the encryption laws came into being. On 6 December 2018, this chamber debated and passed the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018. That bill sought to both strengthen and broaden a variety of powers that could be used by Australia's national security and law enforcement agencies to combat the threat of terrorism. Commonly referred to as the encryption laws, this legislation gave law enforcement and national security agencies the power to request or compel assistance from telecommunications providers in the course of their investigations. Powers of this kind deserve, in fact necessitate, careful deliberation and consideration by all parliamentarians.

We must consider how to best maintain the delicate balance between personal freedom and the safety and security of Australians. However, the way the bill came before this place could not be characterised as either carefully deliberated or considered by the Morrison government. In fact, the passage of this bill was both highly politicised and deeply flawed.

The Parliamentary Joint Committee on Intelligence and Security is the prime deliberative body in this place that reviews laws relating to national security. It is a bipartisan body through which the government and the opposition can play a constructive role in the formation of national security policy, a mechanism that works best when it is informed by expert advice and given the time to properly consider the complexities that exist in this space. Labor has always sought to work constructively with the government in this forum, and it was no different in our deliberations on the assistance and access bill in 2018, but both the Prime Minister and the Minister for Home Affairs sought to politicise the process and rush the committee's work.

4:14 pm

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | | Hansard source

Order! Senator Keneally, resume your seat. I just remind you of standing order 193 about imputation of improper motives. Having named two particular individuals and then attributed a motive, I remind you of that standing order. Senator Keneally.

Photo of Kristina KeneallyKristina 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.

4:26 pm

Photo of Eric AbetzEric Abetz (Tasmania, Liberal Party) Share this | | Hansard source

Labor's ill-considered private member's bill, the Telecommunications Amendment (Repairing Assistance and Access) Bill 2019, is indicative of an opposition willing to play politics, and destructively so, with Australia's national security. It highlights why Labor is not fit to govern. It exposes the Labor leadership's manic determination to play partisan politics with any issue—even the top priority of national security. Australians are rightly repulsed by such behaviour.

Labor's bill seeks to amend the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018. Back then, only two wannabes in the House of Representatives voted against it. A message to Senator Keneally and the Labor senators in this place: Labor actually voted for the legislation. Yet here comes Senator Keneally, condemning the whole process as somehow some great infringement of human rights, et cetera. Well, you can make that argument out if you want to, but what it does not overcome is the fact that our good friends in the Australian Labor Party actually supported the legislation at the time. I commend them for it, but why they are seeking to undo all the good work they did at the time is quite frankly beyond me, other than a shadow minister seeking to project herself yet again into the media spotlight for any reason whatsoever. I think that might be the reason we have this private member's bill before us.

The TOLA bill was considered about a year ago. It was required to enable our law enforcement and national security agencies to deal with the challenges of the ever-advancing technologies which have the capacity to be employed for both good and evil. I speak specifically of encryption, a development allowing for the protection of personal, commercial and government information—on the face of it, a good thing. But, as we might imagine, advances in technology are exploited by unsavoury elements within our community and within the world community—such as terrorists, paedophiles, drug traffickers, human traffickers, and the list goes on. Indeed, we are told that 95 per cent of ASIO's dangerous counterterrorism targets use encrypted communications. So encryption is a very real issue for our law enforcement agencies. It therefore stands to reason that, to protect us, our law enforcement agencies need a framework to engage with relevant industry stakeholders.

The regime that was proposed was passed by the parliament, I remind Senator Keneally and her colleagues, on a bipartisan basis. Today we have a tawdry attempt from Senator Keneally—

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

With a deal that you would support amendments.

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | | Hansard source

Senator Abetz, resume your seat. Senator Keneally, you were given the courtesy of being heard in silence. I ask that you extend the same courtesy across the chamber.

Photo of Eric AbetzEric Abetz (Tasmania, Liberal Party) Share this | | Hansard source

Thank you for the protection, Mr Acting Deputy President. Today we have a tawdry attempt by Senator Keneally to amend the legislation when there are two separate inquiries underway to consider the functioning of this legislation. Also, the Parliamentary Joint Committee on Intelligence and Security specifically asked for an extension of the inquiry to consider it more and in further detail. And guess what? That was a unanimous request from the committee. Who sits on the committee? Oh! Senator Keneally. Oh! So here she is sitting on the committee saying: 'Yes, we do need to consider issues further. Yes, we will come together, as the government has rightly done, in a bipartisan or non-partisan way, and seek to ensure we get the best possible evidence together so that any amendments that might need to be made to the TOLA legislation could be forthcoming so that the committee could be fully informed and then inform the government of its findings.' Senator Keneally herself is part of that committee that made that bipartisan recommendation.

So here we have Senator Keneally, along with the Australian Labor Party, not only voting for the initial legislation that she now condemns, but also supporting the committee being given extra time to consider elements that might be required to amend the legislation. And yet she comes in here today to, first of all, deny that she voted for the legislation in the first place, and now she's in here with this tawdry attempt to circumvent the committee inquiry. And not only is she trying to circumvent the committee inquiry, but she's also trying to circumvent INSLM's review of the legislation—all important considerations; all important factors. And what do we have? Senator Keneally, thankfully no longer interjecting but simply smiling at her two-faced approach to this. I find it very disturbing because you cannot—

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

Point of order.

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | | Hansard source

Senator Keneally, a point of order?

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

Acting Deputy President, you asked me—I would say quite correctly—to consider my reflection upon people's character and motivation. I would ask that you apply the same standard to Senator Abetz.

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | | Hansard source

Senator Abetz, that was verging on unparliamentary language. I would ask you to consider and withdraw.

Photo of Eric AbetzEric Abetz (Tasmania, Liberal Party) Share this | | Hansard source

I am more than happy to withdraw 'two-faced' if it offends the honourable senator. I withdraw it. With respect, I think you are right; it does not offend on the basis of previous rulings. But for the good governance of the chamber, I'm more than willing to keep Senator Keneally's blood pressure lower by withdrawing that comment. But suffice to say, the evidence does stand. These are the indisputable facts: Senator Keneally and the Labor Party voted for the legislation; today she has been condemning it. Some people might give that a description that I previously did. And, if so, I would say they would be justified in doing so, but I'm not justified in saying so in this chamber.

We then move on to her involvement in the Joint Standing Committee on Intelligence and Security, which has unanimously, on a non-partisan basis, sought an extension of time to consider all the matters to which mention was made by Senator Keneally. And she's a member of that committee. Yet here she is today moving a private member's bill, trying to truncate and obviate the need for that inquiry. Now, some people might come to the conclusion that that sort of behaviour could be characterised in the way that I sought to previously. I will allow people to make that judgement call. But can I simply say there is, to use polite language, a considerable degree of inconsistency in the approach shown by the honourable senator in this matter. Then what is worse, the honourable senator, before Christmas, sought to involve the Leader of the Government in this place by making allegations against him as to promises that he made in relation to the legislation. He completely and utterly debunked that—chapter, verse, comma, full stop, semicolon—which Senator Keneally alleged against him. You've got to ask: why would Senator Keneally seek to introduce into the public arena those sorts of accusations against Senator Cormann when he was so capably able of absolutely debunking everything that Senator Keneally asserted? So here we have another assertion by Senator Keneally in this sensitive area, seeking to get some cheap publicity in circumstances—

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | | Hansard source

Order! Senator Abetz, again, I will draw your attention to standing order 193 of attribution of motive and I think that is breaching that standing order.

Photo of Eric AbetzEric Abetz (Tasmania, Liberal Party) Share this | | Hansard source

All right. Seeking publicity, cheap or otherwise—people will make up their own mind in relation to that. But one has to ask and one might reflect on the motives, but I will not do so any further. Suffice to say, there is a complete inconsistency in approach by the Australian Labor Party in relation to matters of national security, and in my time on the Parliamentary Joint Committee on Intelligence and Security there has been a great degree of cooperation and a great degree of understanding by those of us on that committee of the need to protect our fellow Australians. Regrettably, we do live in an environment today where intelligence and security matters are very much front and centre of concerns—quite rightly so—and we need to protect our community to the very best of our ability.

Do I understand that with that you want to protect people's individual liberties, privacy et cetera as much as possible? Absolutely. As a Liberal that is always where I start: seeking to protect individual liberties and privacy. But you always have to balance these things, take a mature approach and ask: how much liberty do you give to the individual when it might potentially prejudice not just one or two but, in a very bad terrorist attack, it could involve hundreds of our fellow Australian citizens? So you need a mature balanced approach.

Did the initial TOLA legislation get everything absolutely right? Chances are not. Like every other piece of legislation, it's very hard to say that you always get it right right from the start. But guess what? That is why the government and the parliament have agreed to the Parliamentary Joint Committee on Intelligence and Security having this review of the legislation inquiry, which is ongoing as we speak, and because of all the issues involved there is detail, there is complexity.

The Labor members of that committee, with the government members of that committee, agreed that there should be an extension of time for consideration of what amendments may or may not be necessary. And that is why it is so disappointing to see the Australian Labor Party, through their shadow minister for home affairs, trying to peddle this private member's bill to the Senate in circumstances where their record was to vote for the initial bill, and full marks to them for that, then to have an inquiry into its operation, its efficacy, its capacity—all those things that new legislation should be subjected to to ensure whether it's working as planned. If not, how can it be amended and changed? That's what this inquiry's about. We're having support from INSLM as well in relation to that inquiry, and yet here we have this private member's bill. It defies logic. It defies consistency. There are certain political considerations that might be involved in this, but I simply say to the Australian Labor Party and their leadership that it does them no credit—having looked at their past history in this area, which has been exceptionally good—to now come in and try to truncate the inquiry and the consideration. It pays no respect to those people that have made submissions or will be making submissions to the inquiry. It pays no respect to the committee system of this parliament. It pays no respect to the unanimous bipartisan, or non-partisan, decision of the committee to undertake this investigation.

So it is genuinely a matter of disappointment that when we are dealing with one of the most important issues that our parliament can deal with—namely, a framework for our national security—somebody would come into this place with a private member's bill and seek to truncate those procedures that are already in place and the capacity that exists for Senator Keneally and anybody else in the Labor Party to have input to that committee, and to exercise whatever rights they want to or exercise their capacity to put forward suggestions and amendments that can then be maturely considered in the privacy of the committee and on which recommendations can be made to the government and then to the parliament. That's the way we ought to be dealing with these matters, especially when we are dealing with matters of national security. Mr Acting Deputy President Fawcett, I'm sure you are aware of all these sensitivities as well, being a long-time member of that committee—and, if I might say so, a very distinguished member of that committee. There are very real concerns from my perspective as to the way that the shadow minister has gone about this exercise, and I would invite the Senate to vote against the bill.

4:41 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

The Greens will support the Telecommunications Amendment (Repairing Assistance and Access) Bill 2019, but it has to be said that neither the government nor the opposition have covered themselves in glory in regard to the toings and froings leading us up to this day. In fact, the actions of both the government and the opposition on these matters have been at times quite reprehensible, and we Greens say, 'A pox on both your houses.'

It shouldn't have come to this. It shouldn't have come to where we are today. The government should not have proceeded with the legislation as it did, knowing full well the recommendations of the Parliamentary Joint Committee on Intelligence and Security, but neither should Labor have rolled over and allowed the government to tickle their collective tummy on this issue. Labor talked tough on the legislation that this bill seeks to amend, the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, voicing their opposition and tabling five amendments in the Senate. But then, as we have seen before, when push came to shove, Labor capitulated and voted the bill through without even bringing on their amendments for debate and decision here in the Senate. Neither should Minister Cormann have made the commitments that he in fact did make—and, on my advice, those commitments have been accurately quoted by Senator Keneally in this debate—if he did not intend to stand by them. I mean, fair dinkum! No wonder people turn off politics and are turning off politics in absolute droves at the moment, because they look up here and they genuinely believe that they cannot trust a single word that any of us says.

It has to be put on the record that what's happened on this legislation is a small but important example of the kind of problem that Labor's propensity to collapse at the first sign of political pressure from the LNP on national security matters is causing in Australian politics and the problems it is causing in our society in terms of the ongoing erosion of precious rights, freedoms and liberties.

What happens is this: when Labor capitulates, the law is changed according to the desires of the LNP. Remember they are a command-and-control political party. Their rhetoric of freedom and liberty simply does not stack up when you put it against the suites of legislation they continue to bring into this place. They are a command-and-control party that has led the charge to erode fundamental rights, freedoms and liberties in this country and has led the charge on the dangerous path down the road to a police state in Australia.

And what happens when Labor capitulates, as it does all too often, is that the law is changed and that resets the starting point for the next debate. In the meantime, we've lost more of our rights, more of our freedoms, more of our liberties. A classic example of this—not context of national security or rights and freedoms but in the broader political context—was Labor supporting the over $50 billion worth of tax cuts that the government legislated post election last year. In doing so, they locked in those tax cuts for the billionaires. They were tax cuts for the superwealthy in this country. The reason that the Leader of the Government in the Senate, Minister Cormann, was so delighted with that capitulation by Labor is that he knows that there is somewhere between Buckley's chance and no chance whatsoever that Labor will go to the next election with a policy of increasing taxes, so we are stuck with the billionaires' tax cuts because Labor capitulated.

I go back to this legislation. It contains the five 2018 amendments that Labor tabled but did not propose for debate or decision and which the government promised to consider in 2019 and then went back on its word and didn't. Of course, in addition to that, as Senator Keneally has explained, it introduced judicial authorisation requirements. So, in brief, this bill seeks to restrict access to the act's powers by state and territory law enforcement agencies, remove the ability of the Minister for Home Affairs to edit and delete information in reporting and, as I indicated a moment ago, introduce a judicial authorisation requirement for the deployment of certain powers. In the main, these amendments are consistent with recommendations made by the Parliamentary Joint Committee on Intelligence and Security, which, as all members would know, is a closed shop with only Labor and Liberal members. At that time, it had a Liberal chair, so it's very interesting that the government has made it very clear that they don't support this legislation. I'll say that again. Most of these amendments were supported by the PJCIS, which at the time had a chair from the Liberal Party.

The Assistance and Access Act is an absolute shocker. These amendments will rasp a few of the rough edges off that legislation, but they certainly, in the view of the Greens, do not go far enough. That act is an act that with a minimum of oversight gives the government power to force technology companies to deliberately introduce targeted weaknesses into their software and their devices. The legislating of state-sponsored back doors and malware is truly and frighteningly Orwellian. And, as we see so often in this place and in parliaments around the country, there is a very high risk of unintended consequences and of legislative measures being utilised for aims that were not foreseen by the legislation. I'll just use the metadata retention laws as a classic example of how this can sometimes roll. Remember, metadata retention was sold—again, a capitulation by the Labor Party—by the government as something we needed to fight terrorists, yet here we are a few years down the track and the metadata that has been retained as a consequence of that legislation has been used by local governments to bust people for having unregistered pets. This is the problem when you create these powers. This is the problem when you pass such draconian legislation—the things that you thought needed addressing are actually not the issues that end up being addressed. To have people's metadata that has been compulsorily retained by telecommunications companies as a result of the metadata retention legislation used by local governments to bust people for having unregistered pets is as extreme an example of scope creep as I can remember seeing in my now well over 15 years in politics.

Not only does this act—that is, the original act passed by the government with Labor's support—attack the fundamental rights of people to privacy and the security of Australia's digital economy and our community; it also dealt a significant blow to Australia's tech sector. With Australian companies and coders forced to write the snitch ware, Australian based tech companies are losing sales and other commercial opportunities. Many are actively considering either moving offshore or employing only offshore coders.

The act could also, as warned by Jerrold Nadler, the chairman of the US House Committee on the Judiciary, 'undermine Australia's ability to qualify for an executive agreement under the CLOUD Act,' which is the Clarifying Lawful Overseas Use of Data Act, and I offer as an explanation that that is because the US will only enter into CLOUD Act agreements with 'close foreign partners who have robust protections for privacy and civil liberties.' But, unlike the US and every other liberal democracy in the world, Australia does not have a legislatively or constitutionally enshrined charter or bill of rights. It's a matter of some significant concern to the Greens in this place that neither the LNP nor the ALP took to the last election a policy of delivering on a charter or bill of rights. The Liberals have been consistent in their opposition to it. There are differing views inside the ALP on a charter or bill of rights, and their policy looks pretty good until you read it closely, at which time it becomes blindingly obvious that Labor do not support a charter of rights either. In the last parliament, Labor voted against the Greens motion for a committee to inquire into the form and functions of a charter of rights.

We've seen many hundreds of pieces of legislation that have passed through Australian parliaments this century, delivered in a bipartisan fashion by the major parties, that erode fundamental rights and freedoms in this country. It is, as I said, a matter of significant concern that Australia remains the only liberal democracy in the world that does not have some kind of charter or bill of rights.

The Greens will support this legislation, but in doing so I want to be clear that we share the view of Ms Lizzy O'Shea from Digital Rights Watch, who said of the bill:

These amendments outlined in this Bill are a good starting point, but far from a full solution. Tinkering at the edges of badly designed legislation is not going to solve the underlying problem – that the powers being handed out to law enforcement are poorly designed and infringe on individuals’ privacy and the security of the Australian digital economy and society.

We could not agree more with Digital Rights Watch. Our support for this current legislation does not change the fact that the original bill, passed with bipartisan support in this place prior to the last election, was recklessly rammed through parliament without due consideration by a government fixated on a shuffle down the dangerous path to a police state and an opposition that, sadly, only ever pays lip-service to human rights, to freedoms and to liberties in this country. Australia now, more than ever, needs a charter of rights.

4:55 pm

Photo of Jenny McAllisterJenny McAllister (NSW, Australian Labor Party, Shadow Cabinet Secretary) Share this | | Hansard source

Senator McKim has just delivered a speech that would be very familiar to those who take an interest in national security debates in this parliament. And his interest in human rights and freedoms is admirable and, I would assert, one shared by everyone in this place. The very great difference is, though, that I have never heard—actually ever—Senator McKim engage in a serious way in a debate in this place with the material issues of national security that drive the conversation about our public policy response. From this, I have come to the conclusion that there is actually no national security problem that the Greens political party are prepared to accept is real. I have never heard any such concession in any of these remarks. Senator McKim may wish to approach his next set of remarks differently. But the consequence of that is there's never any justification that the Greens political party are prepared to accept any kind of policy response to a national security challenge.

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

That's untrue.

Photo of Jenny McAllisterJenny McAllister (NSW, Australian Labor Party, Shadow Cabinet Secretary) Share this | | Hansard source

Senator McKim interjects to say, 'That's untrue.' I look forward to listening to the Greens political—

Senator McKim interjecting

party's story the next time they stand up to speak.

Senator McKim interjecting

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | | Hansard source

Order! Senator McAllister, resume your seat, please. Senator McKim, you were heard in silence. I ask that you extend the same courtesy to other members of the chamber. Senator McAllister.

Photo of Jenny McAllisterJenny McAllister (NSW, Australian Labor Party, Shadow Cabinet Secretary) Share this | | Hansard source

The challenge, of course, is that this approach also has the significant deficiency of being out of step with what most Australians want. People do value their freedoms. People also want to know that their government is taking steps to make sure that they and their families can feel safe in their places of worship, in their homes, at airports and on the streets. It is a fundamental responsibility for any party of government to protect its citizens and that is a responsibility that Labor takes seriously. So, whether we are in government or opposition, Labor have worked to ensure that our security agencies have the powers and the resources they need to keep our community safe, and that our laws are appropriately adapted to preserve the nature of our civil society, our rights, our freedoms and our democracy. And our approach is very consistent.

First, Labor take the advice of national security agencies seriously. It is not open to us to simply ignore that advice despite what some in the Greens political party may suggest. This government is rightly criticised for ignoring the advice of experts when the health and safety of people is at risk; for instance, as they continue to do in relation to climate change. Responsible parliamentarians cannot ignore warnings from the people charged with keeping Australians safe. Second, Labor understand the context of our decisions. Most specifically, in acting to protect our nation, we act to protect a nation founded on the rule of law and on respecting individual liberties. Our approach to national security needs to respond to these core values and, to the extent that individual rights are burdened, such a burden must represent the least intrusive manner to achieve the security objective and be proportionate to the actual threat. Third, we scrutinise evidence carefully and we never politicise national security.

Labor is committed to working through the evidence of agencies, stakeholders and experts in a deliberative manner. And, when we talk about bipartisanship, this is exactly what we mean. We expect PJCIS to robustly interrogate the issues placed before it, without any member seeking to obtain narrow electoral advantage, and, in my experience, this has generally been the way in which this committee has worked. It's why I continue to support the PJCIS as an incredibly important institution in the national parliament. Thoughtfully, we seek to embed our national security architecture in a system of robust oversight. Strong and effective oversight does not undermine national security; it enhances it. Public trust and confidence in our security and intelligence agencies are best ensured through strong and rigorous oversight and scrutiny.

So Labor brings forward this bill today with that spirit of balance and proportionality, reflecting those principles that underwrite the way that we operate in the national security space. As Senator Keneally has explained, this bill seeks to amend the laws that were passed at the end of 2018 and our amendments are in line with the recommendations that were tabled in that same month by the PJCIS. Those laws back in December 2018 sought to address a real policy problem—a real one. In recent years, the agencies charged with maintaining Australia's national security have publicly and privately raised concerns about encryption technology.

These are not abstract concerns. The agencies contend that their investigations of individuals and entities suspected of being involved in a range of very serious offences have been frustrated by these technologies. As people under investigation or surveillance migrate towards the use of encrypted apps their communications go dark. There are examples overseas where this has both prevented law enforcement from predicting attacks or prevented them from gaining access to crucial evidence to understand attacks after they have occurred. Our national security agencies provided advice that widespread use of encryption in digital communications was hindering intelligence and law enforcement to the detriment of Australia's national security.

From the outset, Labor was clear that the government's response to this policy challenge needed to be reworked in order to be effective and appropriate. It is worth briefly recapping on the process that led us to the bill before the chamber today. Senator Abetz, in his remarks earlier, made a stirring case for the integrity of the PJCIS and its processes. Well, I agree with that, and it might be worth reflecting just a little bit about what happened on the process that led us to this point. In September 2018 the government introduced the Telecommunications and Other Legislation Amendment (Access and Assistance) Bill. It was referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry. The committee started its inquiry; it called for submissions and held hearings, as it normally does.

Midway through the process, in November 2018, the Minister for Home Affairs asked the committee to accelerate its inquiry into the bill in order to enable it to pass the parliament before the end of the year. The case for urgency was forcefully prosecuted by the government in the media, not in the committee, and at one point documents that had been provided to the committee confidentially were leaked into the public domain and appeared on the front page of a newspaper. The government has refused to initiate any investigation of that leak. National security agencies subsequently gave public evidence to the committee that they needed the powers contained in the 2018 bill in order to respond to the heightened risk of terror over the Christmas period.

And so, in response to that evidence, the committee did the only thing that I think was available to it at that time: it finished its inquiry early. It issued a bipartisan report that made 17 recommendations for a range of amendments to improve the laws, and the government committed to moving amendments that reflected those recommendations. It did not. On the last parliamentary sitting day of 2018 the government introduced its proposed amendments, which we consider did not properly reflect the text or the intent of the committee's recommendations. And that was not just Labor's view; it was the view of the Inspector-General of Intelligence and Security, of lawyers, of civil society groups and of the Commonwealth Ombudsman. We noted our dissatisfaction with this process during the debate in 2018. We secured from the government a commitment that would allow consideration of our proposed amendments but still allow the agencies to obtain the powers that they briefed us that they required—public briefings in the lead-up to that Christmas period. When we came back in February we brought those amendments forward. And, for the most part, those amendments were not supported by the government. We are returning to the chamber with the present bill because we are committed to improving the law.

It is important to emphasise that the majority of the provisions in this bill seek to properly implement the bipartisan recommendations made by the PJCIS—as I said, an incredibly important institution in our parliamentary system. Our amendments go to the scope of the powers allocated in the bill and the appropriateness of the authorising arrangements. They are sensible, they are proportionate and they make the bill more effective. They are amendments that should have been included in the bill that passed the parliament in December 2018. They are amendments that the government should have voted for back in February last year.

I'm going to turn now to some of the specific provisions of the bill. The evidence from the industry placed before the PJCIS raised serious concerns about the government's bill and its impact on internet security and the public trust in internet security and, consequently, on the competitiveness of Australian IT businesses subject to these laws. Through the course of the inquiry, the government sought to reassure industry that the bill prohibited an agency from forcing a provider to implement any kind of systemic weakness or systemic vulnerability. However, many submitters to the committee contended it was not clear what those terms meant. To this end the committee made two recommendations—recommendations 9 and 10—which both relate to the meaning of the term 'systemic weakness'. We do not consider that those recommendations have been satisfactorily realised. Our proposal today reflects the true intent of the PJCIS recommendations. Our proposal has the support of industry. It puts in place safeguards to ensure that actions taken under this legislation will not create a material risk that the information of innocent persons will be compromised by an unauthorised third party.

When we put this amendment up in February a joint statement was issued by leading industry groups, including the Communications Alliance, the Ai Group, the Australian Information Industry Association, the Australian Mobile Telecommunications Association, the Digital Industry Group and the Information Technology Professionals Association. They supported Labor's proposal, saying:

    They recommended deleting that definition of 'systemic weakness' and more clearly and narrowly articulating the prohibited effects of a technical assistance notice or a technical compliance notice. Schedules 1 and 2 in this bill make these changes, as recommended by industry.

    Labor is also concerned that the legislation as it currently stands may prevent Australia from reaching a bilateral CLOUD Act agreement with the States. 'CLOUD' stands for 'clarifying lawful overseas use of data'. It's a mechanism that gives Australian law enforcement and national security agencies access to data held by US authorities that may be crucial to their investigations. For an agreement under the CLOUD Act to be approved, the US must determine that a partner country's laws appropriately protect privacy and civil liberties and should not introduce requirements for decryption of user data. If the government cannot reach a CLOUD Act agreement with the United States, our national security and law enforcement agencies may be without an important tool.

    Congressman Jerrold Nadler, Chair of the US House of Representatives Judiciary Committee, wrote to the Minister for Home Affairs in October last year to express concerns about the powers provided under the assistance and access act. He said that the encryption laws, as they currently stand:

    … may undermine your ability to qualify for an executive agreement under the CLOUD Act.

    When national security laws confer extraordinary powers, we must treat these powers as extraordinary and not simply as the new norm. They require robust and significant oversight in order to ensure that they are being used appropriately. That is why Labor is proposing in schedule 5 of this bill that a judicial officer be involved in the issuing or varying of a technical assistance notice or a technical capability notice. That was not one of the original PJCIS recommendations but it responds to an important argument that has been made subsequently. It is an important protection that Labor supports.

    The bill also seeks to enact PJCIS recommendations not properly implemented by the government, in particular in relation to a redaction power. Recommendation 4 of the report from the committee called for the Commonwealth Ombudsman to be given appropriate oversight of the administration of the industry assistance measures. When the government's amendments sought to give effect to that recommendation, they also introduced an additional provision enabling the Minister for Home Affairs to delete information from an ombudsman report if that information could reasonably be expected to prejudice certain agencies' activities. The inclusion of that new power has not been explained by the government. The Commonwealth Ombudsman has written to the committee to express his concern about a ministerial power to delete information from a report prepared by an ombudsman. The Ombudsman also argued that this power is unnecessary, given that his office routinely consults with agencies to identify whether a draft report contains operationally sensitive material that should be removed or amended before it is published. Schedule 4 of this bill would remove the ability of the Minister for Home Affairs to edit and delete information in relevant reports prepared by the Commonwealth Ombudsman.

    Labor also seeks to make amendments consistent with recommendation 7 of the committee's report, in relation to the role of the Commissioner of the Australian Federal Police in approving technical assistance notices that are initiated by state and territory authorities. The intention of this is to ensure consistency of decision-making and reporting across jurisdictions.

    This bill is one of a number of means by which Labor has tried to force the government to remedy some of the issues that arose as a result of the rushed time line the government imposed for consideration of the original legislation last year. Labor voted for the legislation last year because of the advice from our national security agencies that these powers were needed, but we take seriously the task of making sure legislation is appropriate, and that is why we're going through this process today. We've been consulting with industry, and we're doing the work to improve this legislation.

    5:11 pm

    Photo of Amanda StokerAmanda Stoker (Queensland, Liberal Party) Share this | | Hansard source

    It's really quite interesting to be here and speaking against this bill, the Telecommunications Amendment (Repairing Assistance and Access) Bill 2019, because it sits quite awkwardly with the processes that are currently in place for reviewing the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018. In fact, to amend in the way that those in the Labor Party have suggested should occur speaks to a desire to put the quick political point well before the national interest, because what is the point of going through a review process that all of the members of the PJCIS, the Parliamentary Joint Committee on Intelligence and Security, agreed was necessary—they agreed it had to occur—if you're going to try and bring a bill to legislate or pre-empt the outcome of that review process? It just doesn't make any sense. But that reflects the motivations that one could assume lie behind this bill—the desire to appear to be fighting for particular causes whether or not the review process, which all agreed needed to occur, supports it. That's a disappointing thing to see.

    Indeed, if it were me, I'd be quite embarrassed to be caught in that little bit of game-playing over something as important as Australia's national security, but everyone has different standards on these things. I would be mortified. Those opposite don't seem quite so worked up about it, but it's an embarrassing tactic to try and undermine these ongoing, detailed reviews of the legislation that are occurring in two fora: one by the Independent National Security Legislation Monitor, known as the INSLM, and the other by the PJCIS. No doubt, as always, the government will carefully consider any recommendations that are made in those reviews—we always do—when the PJCIS, which has a long history of making an important contribution to the quality of policy in this field, and the INSLM, who is a well-respected lawyer in this field, both give their reports as scheduled in the second half of the year. But to be amending the legislation at a time when we haven't even got the outcomes of those reviews—they're not complete, and we don't have the benefit of that work—is something bordering on daft. If we in this place, including those opposite, are serious about considering the amendments that might be necessary to that act—and I don't suggest for a moment it's perfect—then why on earth would we circumvent a process in place to bring out the very best of policy in this field? It's hard to imagine that it could be motivated by anything other than the cheap political point.

    Let's have a little examination of some of the claims that have been made in the Senate today. The first claim that was made by those opposite was that the government has refused to accept the PJCIS's recommendations on the assistance and access legislation. False—absolutely, completely false. In fact the government has supported in principle all amendments consistent with the PJCIS recommendations and that remains the government's position at this very moment. When those recommendations from the bipartisan agreed review process are to hand, we'll consider them and act on them as we always do. But we actually get the value of a proper process here. We understand the way that these processes bring out the best in legislation and we aren't prepared to play political games with Australia's security.

    On 6 December the government introduced amendments to the then assistance and access bill to implement the recommendations of the PJCIS, but those opposite didn't like them. It doesn't mean they didn't attempt to give to the PJCIS recommendations: it means it didn't conform to the whim of those opposite. Well, on 3 April the PJCIS had made its recommendations following a second review of that act. All were accepted by the government. The government introduced and the parliament passed legislation to, at the request of the PJCIS in a unanimous sense, defer the date for that committee to complete its third review of the legislation until 30 September this year. Now, to suggest that that constitutes a rejection of the PJCIS recommendations or a refusal to take action on them is nothing short of cooking the books. It's not truthful. It's not honest at all.

    Now, let's go to the second claim we've heard today—that is, that this legislation, the assistance and access legislation, would prevent Australia from concluding a CLOUD Act Agreement with the United States. This kind of agreement is quite important to allow Australian investigative agencies to access data relevant to investigations that are held overseas. Those opposite have been peddling what I would say is misinformation on this part: there is no reason why this bill stands in the way of Australia concluding a CLOUD Act Agreement. It simply doesn't compute.

    There have been a number of members of the Labor Party peddling this story. We heard it from Senator Keneally today. We heard it from Mr Dreyfus in the speech he gave in 2018 on the bill and we've heard it from Senator Urquhart in this chamber on 4 December, 2019. They say over and over that it's going to stand in the way of an agreement, but you know what? No issues—zero issues—have been identified with the current Assistance and Access Act that would prevent Australia successfully negotiating a CLOUD Act Agreement. They relate to access to communications data and the content of communications; they're not in any way based on an industry assistance request or the provision of a notice under the Assistance and Access Act. To suggest that this legislation stands in the way of a CLOUD Act Agreement is nothing more than peddling the kind of misinformation and hyperbole that is designed to strike fear into the hearts of people who work in this industry. It isn't right, it isn't fair and those opposite need to come clean on it.

    The industry assistance framework under the act doesn't itself allow agencies to access communications data or the content of communications. The industry assistance framework is only about technical assistance, and if you want to access communications data or the content of communications agencies have to seek a separate warrant or authorisation from an independent authority. That's never talked about in this debate either. Nobody ever talks about the warrant protections that exist under this arrangement. So, I will give you an example: a stored communications warrant under the Telecommunications Amendment (Repairing Assistance and Access) Bill 2019 would authorise access to the content of stored emails or text messages. That's not new; that's been around since 1979. A technical assistance request or notice wouldn't authorise this access, whether it was domestically or whether it was under the CLOUD Act. So when we're talking about something this important, I'd implore those opposite to raise the bar and stop peddling campaigns of fear on this important subject.

    Let's deal with another furphy we got from those opposite.

    Photo of Stirling GriffStirling Griff (SA, Centre Alliance) Share this | | Hansard source

    Senator Stoker, it being 5.20 you are in continuance. I call Minister Cormann, pursuant to the order of 5 February.