LEADER OF THE OPPOSITION
SHADOW MINISTER FOR INDIGENOUS AFFAIRS AND
ABORIGINAL AND TORRES STRAIT ISLANDERS
THURSDAY, 6 DECEMBER 2018
SUBJECT: National security
BILL SHORTEN, LEADER OF THE OPPOSITION: Good evening everybody.
Today we’ve seen perhaps the most irresponsible abandonment of national security lawmaking that I’ve seen in my time in Parliament. Today, because the Government and the Prime Minister didn’t want to lose a vote about getting children off Nauru for medical treatment, they abandoned the national security laws of Australia, and as a result, abandoned their obligations to keeping Australians safer.
What’s happened today, and I’ll take a brief moment to explain because I think Australians are legitimately frustrated at the conduct of the Parliament, is this.
A majority of the Senate wanted to introduce a law which will ensure that sick children on Nauru have transparent decision making guided by their treating doctors. The Government didn’t agree with this view, and if this law had passed the Senate, it would come back to the House of Representatives and be voted on, and the Government would lose this vote in the House of Representatives as well.
But unfortunately the Government had encryption laws which were scheduled to be debated after the legislation on children off Nauru. But because the encryption laws required 170 amendments, they were rushed, they had plenty of holes in them, plenty of opportunities for the hackers and other people to undo the import of the laws, the Government was required to amend those laws as well.
So we had a standoff where you had a government who didn’t want to vote on laws which were to see children come off Nauru, but were going to lose that vote. So what they did is they talked out, well they filibustered in the Senate, they dragged it out, and then they made Parliament stop at five o’clock, and then went home. And of course once the House of Representatives goes home, these laws and the Senate couldn’t be dealt with.
But unfortunately this traffic jam the Government created in the Senate to stop the children coming off Nauru, and being dealt with in the House of Reps, until they can stop at five o’clock and go home, meant that vital encryption laws, which the government said had to be passed today, couldn’t get dealt with.
So the essential problem that we’ve confronted today is that because the Government went home at 5:00pm, they were willing to sacrifice dealing with national security laws which would see the security agencies able to bust through the encrypted message services and see what terrorists and criminals are doing. They thought that dealing with that law was less of a priority than not being embarrassed and losing a vote on getting children off Nauru. This is what has happened today.
So now it falls to Labor to contemplate how we handle the encryption laws which are stuck in the Senate. The Government said earlier this week these encryption laws were vital, had to be dealt with. A joint committee, or a committee made up of politicians from Liberal and Labor, reviewed the laws – and Mark can talk about it in a moment, these encryption laws – and they said there’s a lot of problems with this, let’s fix them, let’s update them.
But unfortunately the Government, yet again in its rush, couldn’t get these amendments right. So now Labor is put in the invidious position – do we win our argument Mr Morrison because they’ve rushed laws, because they’ve prioritised not doing their job, not getting the kids off Nauru, not dealing with encryption, or not staying after 5:00pm. They’ve done that now they’ve gone on to have beers or fly home or whatever they do. But there’s vital encryption laws stuck in the Senate.
I will not sacrifice the safety of Australians merely because Mr Morrison doesn’t have the courage to deal with issues in the House of Representatives.
So what we say to Mr Morrison and to the Government right now, is if you agree to do the amendments which you’ve already agreed, to the encryption laws, in the first week of next year, we will pass the encryption laws, unsatisfactory as they are, right now. Because we are not going to go home and leave the Australian people on their own over Christmas with inferior laws of national safety.
But I do think it is a tragedy that Mr Morrison is happy to go home, leave national security laws undone, leave kids on Nauru, merely because he didn’t want to lose a vote in the House of Representatives.
This wouldn’t have brought the Government down, getting kids off Nauru. This wouldn’t have brought the Government down if we amended the encryption laws and fixed them up as they themselves have agreed needs to be done. But I will not go home until we fix up the laws and keep Australians safe. So I invite the Government to restore a little bit of the public confidence in the Parliament.
I think it is shameful they wouldn’t deal with the laws which would prioritise the views of treating medical experts to get kids off Nauru when they’re sick. I think it is a terrible shame that they wouldn’t amend the laws to make the national encryption proposals even better and more efficient. But I couldn’t go home and leave Australians over Christmas without some of the protections which we all agree are necessary.
I’d like my spokesperson for the Attorney-General to talk further about the amendments, but we want to resolve this, and the Australian people, and someone has got to act like – to be honest – the grownup in the room. We’re ready for that.
MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Thanks very much Bill. The Government brought an inadequate and poorly drafted bill to the Parliament back at the end of September. They referred it to the Intelligence Committee and the Committee started, rightly, on what looked to be a pretty substantial inquiry. It’s a very big bill, 175 pages long, amends 10 Acts of Parliament, has five schedules.
Two weeks ago, the Prime Minister and the Minister for Home Affairs decided to demand that the Committee accelerate its inquiry and the Committee did just that. It held some urgent hearings at the start of this sitting fortnight, started to deliberate and happily, by the end of yesterday, had reached agreement and the report – a unanimous report of Labor and government members of the Committee – was tabled in the House of Representatives.
Extraordinarily, despite the effort that was made by both government and Labor members, all of whom were congratulated by the Chair of the Committee, Mr Hastie, when he tabled the report last night – despite all of those efforts, despite the detailed recommendations that were made by the committee to fix up this poorly drafted and inadequate bill, the Government provided amendments to the House of Representatives this morning, provided them to Labor early this morning, still were providing amendments through the course of the morning, and it became apparent that the Government had brought in amendments – 173 of them – to the House of Representatives which did not conform with the recommendations of the Committee.
We told the Government this. I told the Government this on the floor of the House of Representatives. But despite this, the Government decided to shut down Parliament, despite us saying we would need to move amendments to make sure that the bill conformed to the agreement struck between the Government and Labor.
The Government wasn’t interested. It’s packed up the House of Representatives and gone home. And that’s why Bill has outlined the offer that we’re prepared to make. We think it’s too important. We think that the bill does need to go forward but we offer to let it go forward without the amendments that are needed, without the amendments that are required to make it conform to the agreement reached between the Government and Labor, provided the Government agrees next – at the very next sitting day of the Parliament to pass the amendments that we say are needed.
In particular – and I’m not going to go into the detail of the amendments, there’s several of them but there’s a very, very important one – one of the conditions of the agreement struck in the Committee, the agreement struck between the Government and Labor, was that the Committee inquiry, which is a lengthy inquiry and detailed inquiry, continue, the Government left out of the amendments that they brought into the House today.
We would insist that the Government create – there’s another mechanism that it can be done by, a reference from the Senate to the Intelligence Committee, so that the inquiry which very many Australians – hundreds of Australians, Australian small and medium sized businesses and large companies and global tech companies, all of whom had been participating in that inquiry – can continue with their input and the very best outcome for Australian security can be reached.
SHORTEN: Thanks, Mark. Are there any questions?
JOURNALIST: Mr Shorten, it is true isn’t it that you’ve backed down here because you are – you’re scared that the Government will mount a compelling case that you’re weak on national security?
SHORTEN: No, rubbish. I’ll tell you what I am doing. I’m not prepared to go home when I know we can pass laws which make Australians safer.
This is an important point and I’ll come to you next, James.
What’s happened – and I think it’s incumbent for it to be explained clearly and calmly – is that the legislation which would have helped kids off Nauru, had to be dealt with first before the security laws. The Government ran down the clock in the Senate so it didn’t have to get the kids off Nauru and the legislation. But the problem is they were willing to sacrifice, therefore, the encryption laws which they know have to be amended.
The Government agreed that their rushed encryption laws had to be improved. They agreed in a Committee dominated by Liberal MPs – more Liberal MPs than Labor on it – unanimously agreed the encryption laws need to be improved. But because the other laws – getting the kids off Nauru – had to be dealt with first, they deliberately sabotaged the Parliament and went home rather than sit past 5 o’clock, which they’ve done on many occasions.
So they were willing to play chicken with national security laws. What I’m not prepared to do is go home when I know that if the Government agree to our amendments – amendments they’ve already agreed to by the way. Let’s just make Australians safe over Christmas. I’m not willing to go home and see a terror event happen, which we’re told is less likely than more likely, but I’m not going to have on my conscience Mr Morrison’s hostage-taking tactics where he cancels his own work, they go home, and then we just leave Australians swinging in the breeze. That’s not who I am.
James is next, James is next, James is next.
JOURNALIST: Just have to clarify, you have to – you have agreement in principle or in –
SHORTEN: No, we’re offering it.
JOURNALIST: No, no – with the Government over these amendments. You don’t think these amendments are contentious?
SHORTEN: They did a report with us –
JOURNALIST: Yeah, I agree. But the leadership has accepted that?
SHORTEN: Wait a sec – I’m answering your first question. The Government, when you get a new set of laws on security or anything else, a Committee of parliamentarians from both sides, where the Government always has the numbers, review the proposal. Unanimously, the six Liberals and the five Labor agree that we need to make these amendments. But the problem is – and I know the process is annoying and you don’t want to hear about that, you want to talk about winners and losers –
JOURNALIST: No, no. I don’t.
SHORTEN: What I’m saying to you here is that the Government and us agree that they couldn’t get them done. But what they did do is rather than hang around and get it right – the amendments they’ve agreed to – they shut down the House of Representatives because the earlier bill would have meant that they were going to be embarrassed.
JOURNALIST: But leaving that point aside and I accept what you’re saying –
SHORTEN: So we have agreement.
JOURNALIST: I know you had agreement in the Committee. Has the Attorney-General and the Prime Minister conveyed the fact that they would accept the Committee’s unanimous report? And secondly, how have you conveyed this offer tonight to the Government?
SHORTEN: I’ll get Mark to answer your first question. But we’re conveying it right now.
JOURNALIST: So you hadn’t spoken to them –
SHORTEN: Well, I have to say the Government did a deal with us to amend in the manner in which we are speaking, but because they didn’t want to deal with kids off Nauru first, they went home. I mean if they go home, they can’t pass the law, that goes without saying. So they sabotaged dealing with the encryption laws, which they had agreed to because they were embarrassed about losing the vote of the kids off Nauru.
So what I’m saying tonight is, I don’t want to go another two months, three months, til the Government come back to work and leave Australians at the risk of being exposed to security threats. So if the Government agree tonight, and we are telling them through you and the people of Australia, that if they agree to keep their word on the amendments we will pass the encryption legislation, inadequate as it is, so that at least we give our security agencies some of the tools they say they need. It’s all about putting the people first. But the basis is they’ve got to honour their deal at some point.
JOURNALIST: How can you demand that they give you your amendments next year when you’re now just giving away all your leverage by saying you’re going to wave it through tonight?
SHORTEN: Because I’m not prepared to leave Australians at risk. And they’ve agreed. And you know what, if they come back next year and don’t do what they’ve promised to do, we’ll hold them to account. But what I’m not prepared to do is go home when we should be working here.
The reason why this whole snafu has occurred is because the Government didn’t want to lose a vote about taking kids off Nauru, and you all know that’s right. Every one of you here knows that’s right. But because they didn’t want to deal with that issue, they’ve jeopardised the safety of Australians. What I’m going to do is say, alright, get your law through in the inadequate form it is, so long as you agree to keep your word in the first week when Parliament resumes. The real shame is that they are not here now doing the day job that Parliamentarians are expected to do.
JOURNALIST: So are you going to get that in writing that they will agree to those further amendments? And secondly – or you know what’s the sort of agreement from the Government? And also, how is it responsible to pass a bill that you think is inadequate and you’ve got backbenchers saying they don’t even agree to your deal. What’s your response to that?
SHORTEN: You couldn’t have that latter part because I’ve just told you. In terms of what’s responsible, in a beauty parade, there aren’t a lot of good options because the Government went home. Not a lot of good options. We all know that the Government went home and didn’t deal with national security laws because they didn’t want to deal with kids off Nauru. That’s what’s happened. So then the ball is in our court.
Do I go home and say I hope nothing happens, and I hope that the Government’s politics don’t backfire on the safety of Australians? I’m not prepared to do it. So if Morrison wants to get up and say he’s some sort of fantastic guy, do you know what, whatever. But I’ve got to live with myself long after I live with what this Government does. And in good conscience, I’m not going to go home when I know we can make Australians safer.
The Government must honour what they said unanimously in the Committee with their amendments. We’re just giving the Government, because they got themselves in such a political conundrum, where they wanted to not lose the vote in the House of Reps of five kids on Nauru, you know, that’s a terrible mistake, but what we intend to do is the right thing by the people of Australia.
JOURNALIST: Haven’t you played this as badly as you possibly could, you’ve delivered the Government a victory on its encryption bill and it didn’t even have to face the vote on Nauru that you insisted it would lose?
SHORTEN: Don’t take this the wrong way, but that’s perhaps the difference between you and me. This is not a game. What I don’t like is that the Government went home. I can’t make the Government turn up and do their day job. They’ve shut down the Parliament before. I think it’s to the everlasting shame of the Government that in previous years they could work past 5 o’clock. This nation is run by a government who don’t like working past 5 o’clock when they’re too scared to turn up in Parliament.
The Members of Parliament in the House of Reps are democratically elected. This government didn’t want to hear what the House of Reps members were to do. But Michael, merely because these people have done the wrong thing on getting kids off Nauru, do I therefore say that we increase or keep a level of risk about the safety of Australians?
JOURNALIST: But on Michael’s point, haven’t you just, like, the Government’s called your bluff, that you will remain bipartisan on national security and you’re going to pass this bill through –
SHORTEN: You use words like games and bluff, this is –
JOURNALIST: That’s what they did.
SHORTEN: No, what they did was they behaved far worse than that. If the Government say they were playing some game, that’s foolish.
Let’s go back to the encryption legislation. The facts matter. Mr Morrison said on November 22, “this is the most important piece of legislation that we can deal with”. But then he deliberately sabotaged dealing with it by going home because he didn’t want to lose a vote on another law.
What I’m not prepared to do is I’m not going to play Mr Morrison’s tactics. He looks at the angle, I look at the outcome. I want to make sure this Christmas, that I’ve done everything I can to keep Australians safe. That’s what matters to me, not the argy-bargy here. But I do also expect Mr Morrison to keep the deal which they’ve said, and amend the laws in the manners in which we’ve said. But I’m prepared to wait three months rather than have Australians without the umbrella of these laws.
DREYFUS: If I could just add something to your question. The Government has knowingly passed up the opportunity to have this legislation strong and as well drafted as it could be. And I say that because we’ve made it clear to the Government, this morning, that the amendments that they were bringing to the House and insisting be passed, where of course they have the numbers in the House, on this matter, were not in accordance with the recommendations of the Committee.
We’ve also made it clear for weeks now, that this was an inadequately drafted bill with lots of problems, and that’s why the inquiry had to continue, and the Government reneged on that too. That’s why we’re asking of the Government, its commitment to pass amendments that when we come back, in February, that conform with the recommendations of the Committee and agree that the inquiry will continue. Because the purpose of this inquiry which is, as far as I’m concerned, only halfway through its work and has not reported in detail on all of the evidence that we’ve received, the purpose of this inquiry is to get this legislation right.
I’ll give you just one example which is the systemic weakness problem. This government brought a Bill to the parliament into its original form which did not have a definition of systemic weakness.
The reason why that’s important is because that’s part of the provision that ensures that no back doors are going to be created using the processes in the new powers that are in this bill. The Committee agreed, that’s the Government members and Labor members agreed, that there should be a definition of systemic weakness, and gave some indications in the recommendation as to what that definition should look like. The amendments that the Government has brought into the House today, which have now passed the House, still require work. We told the Government that, we told the Government that yesterday and they have chosen to bring to the Senate an inadequate bill.
But it is still tremendously better than the form in which it was originally produced by the Government – hold on – and we’re prepared to let it go forward on that basis, knowing that there’s more work to be done, knowing that the Government hasn’t got the amendments right. We’re requiring of the Government that it agree and stick to the agreement that it made yesterday.
JOURNALIST: And if they reject the, your offer tonight what will you do?
SHORTEN: We will maintain the course of action we’ve said. If this government won’t even agree to improve the law – if this government won’t seek to improve the laws they’ve agreed to do, we will continue to seek to improve the law. The reality is encryption and breaking through it, so our security agencies can make sure they’ve got digital eyes on terrorists and other criminals is important. The Government made such a botch and such a rush of the law that both Liberal and Labor MPs had to agree unanimously to improve it. The problem is because they didn’t want to deal with the Nauru issue first, the poor old encryption laws, which they said were crucial, they were just a bargaining chip to keep the kids on Nauru.
But now they’ve risen. I wish they hadn’t risen. You’ve all been around Parliament. You know the Parliament can sit past 5 o’clock. We have a government who is prepared to take the Australian people in their safety hostage over the summer. They were prepared to go home and not lose a vote on Nauru and sacrifice the improvement in national security. I’m a different person.
Someone asked earlier is it a game or is it a bluff, I don’t bluff about the safety of Australians. I don’t play a game with the safety of Australians. This government went home and stopped doing their job. I won’t.
JOURNALIST: Why don’t you insist that the House comes back and you just deal with this legislation tomorrow or early next week?
SHORTEN: Well we should.
JOURNALIST: Well why not make that the ultimatum?
SHORTEN: Well sorry, I don’t where you’ve been today. This government – they don’t like it. We said that they should sit for more than 10 days in the next eight months. They’re not doing that. They are the ones who’ve gone home at 5 o’clock. I can’t wait til this government decides to find a work ethic to make sure that we do what we’ve got to do.
So this is a neat solution. We get the agreed amendments which they should have done but haven’t done. So we’re willing to wait a couple of months to get that and keep Australians safe. This is the only sensible option, now if the Government says no to this, well, I don’t know what they’re doing.
JOURNALIST: You said earlier that if the Nauru deal was, if the Government was defeated in the House of Reps, that wouldn’t have brought down the Government. Are you really saying the first government in 80 years to lose a vote in the House of Reps on a piece of legislation, you wouldn’t suggest that that’s grounds for an election?
SHORTEN: No, because it’s not a supply or confidence bill. It’s not going to the ability of the Government to spend money. Whilst it would be a very serious matter, it’s not as serious as its ability to, you know, the daily expenditure of government. So it wasn’t in that league. A number of the crossbenchers who support Labor’s position, and we work with them about kids off Nauru, had said that this wouldn’t bring down the Government. We all know that this government has a very large level of pride. And for whatever reason they felt that stopping these, this legislation of kids off Nauru, is more important than passing agreed legislation on national security.
JOURNALIST: So if you don’t get a guarantee from the Government tonight you will still pass the laws, as in agreeing to –
SHORTEN: We’ll make our amendments.
JOURNALIST: You’ll still pass it?
SHORTEN: No we’ll make our amendments, which they’ve agreed to, and it will be stuck in, stuck in the Senate. I’m willing to meet the Government to resolve the matter and this is the offer we make.
But I think the best thing the Government could do is just come back to work. But I don’t think any of you think they’re likely to do that. Absent that option, I’m about trying to make sure that we get a workable system.
What we’re proposing makes sense. They get what they want, we get what we want in February, Australians are safer. The real shame though, and nothing I can do tonight in any set of outcomes or permutations, it means that the legislation with these kids to Nauru can’t happen, but that’s just shameful conduct by the Government. What is it about these kids on the Nauru that scares the Government so much, They just go home and stop working?
JOURNALIST: Jacinta Collins has just announced that you are withdrawing the amendments in the Senate, so you’re doing that without getting that promise from the Government?
SHORTEN: Michael I’ve made clear what we’re doing. We are determined to keep Australians safe. I mean really you’ve got to ask yourself why wouldn’t the Government agree with what we’re doing? They’ve agreed with our amendments. The problem is, because of the way they’ve botched the amendments, because they decided to keep the kids on Nauru, they can’t deal with the improved espionage legislation.
So what they have to do is get theirs through and agree to ours in February. It is a solution. What I really regret though, is that the Government chose to go home. We could have passed the improved espionage and security laws in the House of Reps when it came back from the Senate. But of course they can’t do that because they might have lost a vote on the floor of Parliament, which ultimately was just going to see some kids get medical treatment.
Postscript from the Senate (from Hansard)
I move the second reading amendment that has been circulated in my name which has the effect of referring the amendments to be made by this bill to the parliamentary joint committee on intelligence and security to conduct a review of the operation of the amendments made by this bill and report on that review by 3 April 2019.
I also confirm that the government has agreed to facilitate consideration of these amendments in the new year in government business time, and I finally, also, confirm that the government supports in principle all amendments that are consistent with the recommendations of the parliamentary joint committee on intelligence and security recommendations in relation to this bill.
SHADOW MINISTER FOR NATIONAL SECURITY
MEMBER FOR ISAACS
TELECOMMUNICATIONS AND OTHER LEGISLATION (ASSISTANCE AND ACCESS) BILL
PARLIAMENT HOUSE, CANBERRA
THURSDAY, 6 DECEMBER 2018
***CHECK AGAINST DELIVERY***
The safety of our community and the security of our nation must always be paramount considerations for every member of this parliament. We in Labor have proved both in government and in opposition that we always place national security ahead of partisan politics. The Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 is the 16th substantive national security bill introduced over the last five years. I will address the specific reasons for Labor’s support of this assistance and access bill shortly, and I will also explain a number of our concerns and the solutions we believe we have insisted on to address those concerns.
But, before I turn to those specific matters, I will first say a little about the general approach that I and the Labor opposition have been taking to national security matters. First, we start from the premise that our security agencies and our law enforcement bodies, to the extent that they are involved in national security matters, must be given the powers and resources they need to keep our community safe and our nation secure. Second, we believe that national security laws that encroach on the rights and freedoms of Australians must always be necessary and proportionate to the threats being faced. Third, Labor holds that, with the grant of new powers, we must also establish new oversight and transparency mechanisms designed to ensure these powers are used for the purpose for which they are granted and in a manner that ensures ongoing accountability for their exercise. And the fourth basic principle guiding our approach is that national security laws conferring extraordinary new powers should treat those powers as extraordinary rather than as the new normal.
The issue of inserting an appropriate definition of ‘systemic weakness’ into the legislation has been a major issue of disagreement between Labor and the government that we are continuing to work to resolve, even now. The concern that the access bill could, in fact, pose a risk to Australia’s national security was echoed by representatives of Senetas Corporation during a public hearing on 30 November 2018. Senetas is a leading provider of encryption technology, and, as its chairman explained to the committee, it is responsible for securing the systems of Australian law enforcement agencies; royal commissions, including the Royal Commission into Institutional Responses to Child Sexual Abuse; a number of Australian banks; and our defence forces. The chairman of Senetas told the committee that, in its current form, the access bill:
… compromises the security of citizens, businesses and governments because there will be weaker cybersecurity practices. It will be easier for cybercriminals, terrorists, to target systems and be able to break into those systems …
The fact that the government, and the Liberal members of the committee, were a week ago proposing to just ignore the evidence of Senetas—the entity responsible for protecting many of Australia’s most critical systems from malicious hackers—was of great concern to Labor. Fortunately, after the government declared last week that they would cease working with Labor on a joint report in the intelligence committee addressing these problems, on Monday the government backed down from this reckless course and returned to the negotiating table. Since then, we’ve been able to agree on a number of significant amendments to this bill to address the most significant concerns that have been raised.
I will turn to the risk to security cooperation with the United States. Another key concern raised by a number of submitters in the public hearings on this bill—and, apparently, not even thought of by the government as they prepared and then tabled this bill—was whether it could prejudice Australia’s future security cooperation with the United States. A number of submitters drew the committee’s attention to the potential problems the access Bill could cause for compliance with the US Clarifying Lawful Overseas Use of Data Act, the CLOUD Act, which was enacted in March of this year. Under the US CLOUD Act, it’s possible for Australia to enter into a bilateral agreement with the United States to allow Australian agencies to request the data of non-US persons—like WhatsApp messages sent by or to a terrorist subject—from Australian technology companies directly. This would enable Australian agencies to bypass the existing requirement of making such requests via the US Department of Justice, which can take many months to process. Just to be clear: at the moment, we have mutual legal assistance treaty arrangements with the United States where our agencies, in a cumbersome system that’s been in place for many years, can make a request for telecommunications data via those mutual legal assistance treaty processes, but it can take months, and sometimes more than a year, for the data that has been requested to be produced. That’s why the US CLOUD Act, passed by the congress in March of this year, offers a tremendous prospect of much, much quicker access for Australian police forces, and for Australian intelligence agencies, to simply make the request, using the CLOUD Act processes, that would go directly to a telecommunications service provider that is based in the United States, and, provided—and this is the basis of the CLOUD Act processes—that the request did not relate to a US citizen and related to foreign—from the point of view of the United States—law enforcement processes, the request will be able to dealt with in a matter of days, rather than the many months that presently afflict our agencies in terms of this cooperation with the United States. But the significance of this is that, in order to enter into an agreement with United States under the CLOUD Act, the US Attorney-General must certify, with the concurrence of the Secretary of State, that the foreign government affords:
… robust substantive and procedural protections for privacy and civil liberties …
If such as a certificate is issued, congress is able to object to any such certification within 90 days.
These principles are often challenging to apply, but we put a great deal of time and energy into rigorously analysing every national security bill that is presented against these principles. We do this because we understand that in conferring new powers to protect our nation’s security it’s vital that we do not compromise the very freedoms and way of life that we’re seeking to protect. This means that in keeping Australians safe we also seek to uphold the rights and freedoms that we as a democratic society hold dear and that generations of Australians have fought to protect. No deranged or hate-filled terrorists can take those freedoms and rights from us. Only an Australian government that has given in to fear—to the terror that is by definition the primary weapon of the terrorist—has the power to do that. We must also always be aware that, while the laws we pass can be part of the solution to national security threats, if they are improperly designed those laws can become part of the problem, because our agencies can do their critical work only if they have a good relationship—a relationship of trust—with the community they are protecting. This has been shown time and time again with terrorism offences in particular when the vital information to stop terrorist events comes to our agencies from within the community.
David Kilcullen is one of Australia’s most accomplished counterterrorism experts. I’ve quoted him before, but I think the warning he provides is worth repeating today. Mr Kilcullen was a senior officer in the Australian defence forces. He went on to advise on counterterrorism at the most senior levels of the United Kingdom and United States governments and military, working as the chief strategist in the office of the coordinator of counterterrorism at the US state department as well as special adviser to US General David Petraeus in Iraq. Writing about the challenge of confronting terrorism in 2015, Mr Kilcullen warned about the impossibility of making a democratic society entirely safe through the imposition of ever-increasing counterterrorism laws.
… a truly effective domestic defensive strategy would turn (indeed, has already gone a long way to transforming) our societies into police states.
A purely defensive stance, if it is to prevent terrorist attacks from within and without, would have to include some or all of the following: perimeter defences on all major public (and many private) buildings, restrictions on access to public spaces, intrusive powers of search, arrest and seizure, larger and more heavily armed police forces, with more permissive rules for use of lethal force, intensive investigations of individuals’ thoughts, words and actions, citizen surveillance …
Mr Kilcullen’s list goes on at some length, concluding with:
… the need for a raft of limitations to freedom of expression and assembly. It would also, of course, impose limitations on international trade and require increased state spending—essentially a ‘terrorism tax’.
Mr Kilcullen then warns:
… accepting these impositions as permanent, and developing them to the level at which they could actually – in their own right, as the centrepiece of a counterterrorism strategy – protect against the atomised, self-radicalised terrorist threat of tomorrow, would amount to destroying society in order to save it.
While the new powers that will be conferred by this bill will be used for both counterterrorism and police work, I believe that the warning Mr Kilcullen sounds remains entirely relevant.
I turn now to the access bill itself. The Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 was introduced into the parliament on 20 September 2018. Without specifying a reporting date and without any suggestion that it was urgent for the inquiry to be concluded by the end of the year, the Attorney-General referred the access bill to the committee on the same day.
The vast majority of submitters argued that the access bill in its current form—that is, in the form in which it was presented, unthinkingly apparently, by the government to this parliament—does not afford robust, substantive and procedural protections. As such, Labor members of the intelligence committee were very concerned that unless it is significantly amended the access bill could imperil Australia’s chances of entering into a Cloud Act agreement with the United States. Moreover, even if Australia were already party to a bilateral agreement with the United States under the Cloud Act, Stanford University cybersecurity and cryptography fellow Riana Pfefferkorn said to the intelligence committee:
Absent some clearer authority and better judicial oversight of technical capability notices and technical assistance notices, I’m not sure that such a notice would be eligible to be served at all through any agreement under the Cloud Act on US providers directly.
This evidence, which until this week appears simply to have been ignored by the government, was presented to the committee during a public hearing on 16 November 2018, just before the Minister for Home Affairs and the Prime Minister were calling on the committee to accelerate its inquiry.
It’s important that Australia be able to take advantage of this vital new mechanism provided by the United States. In order to put the Australian government in the best position to do so, the committee requires further evidence from experts on the Cloud Act. While the committee has addressed in its recommendations some of the matters that could undermine Australia’s capacity to cooperate with the United States under the Cloud Act, further work on this critical matter is one of the reasons for Labor’s insistence that the committee should continue its inquiry into this bill. It is absolutely vital that this bill, which will be the domestic legislation of Australia from the point of view of the United States authorities, conform to what the United States regards as robust, substantive and procedural protections for privacy and civil liberties, and that in turn will need to take account of what is known as Fourth Amendment jurisprudence in the United States, a key feature of which is judicial warrants. What the United States and the United States authorities are always looking for in domestic legislation is judicial legislation and judicial warrants authorising compulsive processes. At present, this bill does not contain that form of judicial oversight or judicial warrants.
I turn to the risk to Australian business. Numerous submitters to the intelligence committee said the access bill in its current form could force Australian technology businesses to move offshore. This could threaten over $3 billion in Australian exports and cost thousands of Australian jobs. Remarkably, it has become painfully clear over the course of the committee’s inquiry that the government barely considered these issues before the Minister for Home Affairs introduced the access bill into the parliament on 20 September. By way of example, the Australian Industry Group, the Australian Mobile Telecommunications Association, the Australian Information Industry Association and the Communications Alliance have told the committee:
The proposed legislation, through its mere existence, will make Australian exports of IT and communications products and services, or even every Australian website, subject to the same concerns by overseas governments and organisations that recently moved the Australian government to ban certain vendors from supplying hardware for Australia’s future 5G networks. Therefore, the draft bill poses a real risk for the IT communications export industry, which Austrade values at AU$3.2 billion for 2016-17 and this figure does not include the value of other exports enabled by Australian websites, IT and communications products.
Collectively, those organisations who gave that evidence to the intelligence committee represent the interests of tens of thousands of Australian businesses, including small and medium sized companies. The committee also received direct submissions from small and medium sized Australian companies who were concerned that the access bill in its current form would make them less competitive in the global technology market, and the committee has heard from at least two Australian companies that may be forced to move their operations offshore if the government gets its way.
Other companies have said that it could lead to job losses. Senetas, for example, has told the committee that it may no longer be able to manufacture in Australia if the access bill were to pass in its current form and that this could result in the loss of 200 jobs. It’s not just established businesses that may be affected. The Victorian government’s start-up agency, LaunchVic, told the intelligence committee that the access bill could hamper the ability of local start-ups to develop their products in Australia, attract customers and investment and create jobs. In response to questions by members of the intelligence committee, the Department of Home Affairs confirmed that no report was commissioned on the impact the access bill could have on local industry and there had been no direct engagement with the Department of Industry, Innovation and Science during development of the access bill.
Once again we have fought to improve the bill to deal with the most significant of the many concerns raised in this regard. Labor has been consulting with industry and civil society stakeholders both through the committee’s process and outside. We have negotiated with the government to give effect to their core concerns. While there are significant outstanding issues, the compromise that Labor has reached with the government will deliver security and enforcement agencies the powers they say they need over the Christmas period and ensure adequate oversight and safeguards to prevent unintended consequences while enabling continuing scrutiny of the bill into 2019.
Labor members of the committee were prepared to undertake the course of action that they have taken in reaching agreement on the consensus report that was tabled in the parliament yesterday only because of the government’s undertaking that the committee will continue its inquiry into the bill into 2019 and that a separate statutory review will be undertaken by the Independent National Security Legislation Monitor within 18 months of the legislation coming into effect. These separate processes provide an opportunity to resolve our ongoing concerns about the bill with the assistance of industry experts and civil liberties groups while also upholding our responsibility to keep Australians safe.
Labor members of the intelligence committee have sought and obtained recommendations in the PJCIS report. If these recommendations are translated into amendments brought to this House or the Senate by the government then those amendments will address many of the core concerns raised by Labor and stakeholders. It is to be noted that the committee will undertake further inquiry immediately after any legislation is passed and that the Independent National Security Legislation Monitor will do so shortly thereafter.
‘Systemic weakness’ related concerns are to be addressed by amendments that define and clarify the term ‘systemic weakness’ and also amendments that clarify that technical capability notices cannot be used to create a systemic weakness. Other concerns which will need to be addressed through amendments include the ability for a provider to disclose details of a technical capability notice except to the extent that doing so would compromise an investigation. That point is one of particular significance to industry and to all users of the internet, which is an open system but would cease to be an open system if particular fixes were required to be kept secret. A further point that will need to be attended to in the amendments is authorisation of a technical capability notice requiring the approval of both the Attorney-General and the Minister for Communications.
Further matters to be dealt with in the amendments include that a designated communications provider which has concerns about a technical capability notice will be able to request a binding assessment of whether or not it would indeed create a systemic weakness, whether the requirements are reasonable and proportionate, whether compliance is practically and technically feasible and whether the notice is the least intrusive measure that would still achieve the objective. Two persons, a technical expert and a non-serving judge, would be jointly appointed to conduct the assessment, and their report would have to be provided to the Inspector-General of Intelligence and Security in the case of ASIO and to the Commonwealth Ombudsman in the case of the Australian Federal Police.
This essentially means that any request to a provider that might create a systemic weakness would be subject to a merit review-style process.
The inadequacy of the oversight and safeguards arrangements provided in the bill produced to this parliament by the government will also be addressed by amendments that will include strengthening the Inspector-General of Intelligence and Security’s oversight of the powers. This would include explicit notification and reporting requirements when issuing varying, extending or revoking a notice or request, and limits on the exercise of the powers, including extending the prohibition on systemic weakness to voluntary notices, ensuring that decision-makers consider necessity and intrusion on innocent third parties when they issue a notice. There will also be provision for defences for IGIS officials and clear information-sharing provisions.
The amendments will include, also in this oversight context, establishing clear authority for the Commonwealth Ombudsman to inspect and gather information on the exercise of these powers by the Australian Federal Police by ACIC and state and territory interception agencies. The amendments in relation to the Commonwealth Ombudsman will include notification requirements and information-sharing provisions which would complement the inspection activities of state and territory oversight bodies. The Australian Federal Police will also be required to approve any state- and territory-initiated technical assistance notices, and must apply the same criteria and go through the same decision-making processes as would apply if the Australian Federal Police were the original issuing authorities.
As honourable members would have gathered by now, this is a large piece of legislation of considerable complexity. In response to the government’s demand that consideration of it through the intelligence committee be accelerated, the Labor members of that committee—and the Labor Party as a whole in this place—have assisted in that process. The government has produced draft amendments to Labor early this morning. It’s anticipated that those amendments will be moved in the Senate. On that basis, I commend the bill to this House for passage in this House. I say again on that basis the amendments encompassing the recommendations of the intelligence committee will be moved in the Senate.
THURSDAY, 6 DECEMBER 2018
Updated: 7 December 2018