Tim Watts (Gellibrand, Australian Labor Party, Shadow Assistant Minister for Communications) Share this | Hansard source

It is with some regret that I rise to speak on the Telecommunications (Intersection and Access) Amendment (Amendments Review) Bill 2019 before the House, because this bill represents a series of failures: a failure of process, a failure of bipartisanship on matters of national security, a failure of the Morrison government to keep its word and a failure by this place to legislate in a way that supports the growth of the Australian technology sector. In this way, this bill represents a failure of our own economic future.

The impact of the failures in public trust and confidence in this parliament and on the conventions of this place represented by this bill cannot be remedied by amending legislation alone, although many amendments are certainly needed. These failures will only be remedied over time by the conduct and the actions of those of us in this place: by us treating the legislative process with more respect, by putting the national interest above short-term political interests and by actually listening and talking with the technology sector outside this place, as was just so eloquently put by the member for Hotham.

We need to be frank in this parliament: in many ways, Australia is viewed as a worldwide joke in technology policy. From former Prime Minister Malcolm Turnbull's infamous war on maths to the new Department of Home Affairs' policy to use facial recognition technology to verify Australians' use of pornography on the internet, those of us who work in technology policy, who move in those circles and travel the world talking to people, know that around the world Australia is viewed as the global village idiot in technology policy. We need to do something about that in this place.

One step we can take in this respect is to restore process to this place—to restore accountability and proper consideration of legislation so that the mistakes represented in this bill are not replicated in the future. In this respect, we need to restore the Parliamentary Joint Committee on Intelligence and Security—the PJCIS—to its former position as a serious institution of our parliament and a place of genuine bipartisanship scrutiny and review of legislation of this kind. Membership of the PJCIS is coveted in this place because it grapples with the most serious issues before the House—issues of life and death, issues of state powers and individual freedoms. Its work has immediate and weighty human consequences. The PJCIS was once a institution where proposals were rigorously interrogated in the national interest and where members from both sides of politics worked together on improving legislation before the House.

I acknowledge the cynicism that many on the Left have towards the work of the PJCIS. They see its history of bipartisan reports and then see it as a place of capitulation. I get it—I do. But this cynicism does an incredible disservice to the work undertaken by members of this committee. Bipartisanship on these serious issues is not easily won in this committee. Lengthy inquiries and extensive hearings have been followed by even lengthier and extremely robust debates within the committee and negotiations between members. These negotiations are complex and detailed—they're technical and expert. They regularly produce dozens of amendments to the bills considered by the House, amendments that are then made to the bills not as opposition amendments but as government amendments and as a voice for all of us. The fact that these bills aren't amended further by the opposition doesn't reflect parliamentary capitulation; it reflects the robustness of the PJCIS process.

And that's why it was so disappointing last year when the Morrison government abruptly halted the PJCIS inquiry into the assistance and access bill in order to allow the bill to be forced through the parliament in the final sitting week of 2018. The member for Isaacs, the shadow Attorney-General, has recounted in depressing detail the shambolic process that that bill took through both the PJCIS and the parliament last year. The member for Hotham related how this shambolic process resulted in the small business technologies that we hope to grow jobs in the future being cut out of the consultation process. Indeed, key defence exporters, people working in my portfolio of responsibility in cybersecurity, were caught unawares by this bill. This bill represented everything that business hates about government—ramming through legislation, heedless of its consequences, not understanding the impact on their own businesses.

Despite the abrupt end to the inquiry—and thanks, frankly, to a herculean effort by the member for Isaacs and the member for Holt, the Labor members of the PJCIS—the committee provided a series of recommendations for the amendment of this bill, the majority of which were not incorporated into the bill by the government. Byignoringthe PJCIS, the government threw out of the window the longstanding tradition of bipartisanship when it comes to national security and protecting Australians' safety. Trust conventions in this parliament take decades to build up but moments to destroy, and that's what happened in the last sitting week of parliament last year. Even more troubling was the tone of the debate in the second reading speech, where those opposite attacked the motivation of Labor members in the most personal and reprehensible ways. They accused Labor members of wanting to assist terrorists and pedophiles merely because we expressed widely held legitimate concerns about the operation of the bill and wanted to exert the scrutiny required to understand these complex proposals in the national interest. It was a shameful performance by those opposite.

Surely our politics can be better than this. Nobody in this chamber sympathises with terrorists or child abusers. No human being is soft on this. It is important that we are able to have to have complex, nuanced debates on issues like this in the parliament without resorting to disgraceful slurs of this kind—particularly in the technology sector, where these issues are inherently complex. Technology is a complex field, particularly for those with no experience in the sector. The potential for legislation creating unintended consequences is significant and it puts a premium on the in-depth, high-quality consultation between government and technical experts.

That's exactly what didn't happen with respect to this bill. In its politically motivated haste, and its desire to wedge the opposition, the Morrison government passed legislation that potentially closed off access to an important investigative tool for Australian law enforcement agencies. Existing US law prevents US companies from sharing information that they hold outside US borders, outside the existing mutual legal assistance treaty regime, even under warrant from an Australian court. This mutual legal assistance treaty regime is bureaucratic and underresourced. In 2013 the average time to process an MLAT request was 10 months; and, given the dramatically increasing volume of requests we have seen, there is reason to believe this time frame has blown out considerably since then. This means that when Australian law enforcement officials are investigating a crime and they believe that their investigations could be assisted by accessing data held by an electronic communication storage or communications company based in the US—like Facebook, Google or Microsoft—and they are able to convince an Australian court to issue a warrant granting access to this information, it will still take them well over a year to access this information because of this inefficient process.

Access to this stored data data—or 'data at rest' in the industry lingo—is likely to be of far greater value for law enforcement than the intercepted communications. It offers a far greater volume of information about suspects and a richer view of the suspects' communications. And the delays in accessing this information are a significant impediment to law enforcement. To streamline this process for obtaining access to US-held information requested under warrant by another jurisdiction, the US Congress passed the CLOUD Act, a law that authorises the negotiation of bilateral agreements between the US and other nations to streamline this information-sharing process, shortening the time to access the information from years to weeks. However, the CLOUD Act provides that the US government may only enter into agreements under the CLOUD Act where the other government's domestic laws have:

… robust substantive and procedural protections for privacy and civil liberties in light of the data collection and activities of the foreign government that will be subject to the agreement.

By ramming through the assistance and access bill without judicial oversight for the notices issued under it we have put our compliance with this in jeopardy. Well before the Morrison government passed the assistance and access bill in December 2018, they were warned that the bill may not provide these robust, substantive and procedural protections.

A submission made to the PJCIS in October 2018b y the Digital Industry Group, which includes representatives from Amazon, Facebook, Google and Twitter, noted: 'If our access regime doesn't contain sufficient safeguards for user privacy, there's a chance the US Congress will not approve a treaty with Australia under the CLOUD Act, which will interfere with legitimate law enforcement investigations.' In my second reading speech on this bill—I quote myself and I couldn't agree with myself more—I said:

This bill doesn't resolve, and may even make more difficult, the mutual legal assistance treaties and the CLOUD Act problems in us accessing data from these providers overseas.

The government ignored these warnings. They ignored warnings from industry. They ignored warnings from civil society. They ignored warnings from members of this parliament during the scrutiny of this bill in this place. And instead they play politics and they rush through a deeply flawed piece of legislation. Those flaws are now catching up with the government.

On 4 October this year, only days before the Minister for Home Affairs and the US Attorney-General, William Barr, announced that negotiations on an Australia-US bilateral CLOUD Act agreement had begun, Congressman Jerry Nadler, the chairman of the US house judiciary committee, sent a letter to the Minister for Home Affairs expressing concerns about the absence of robust, substantive and procedural protections in the assistance and access act. Congressman Nadler's letter highlighted that the lack of judicial authorisation and review under Australia's encryption laws—something those on this side of the House warned about—made it difficult for the US to enter into a CLOUD Act data sharing agreement. This is someone speaking on behalf of the body who will be able to give an up or down consent on any agreement negotiated between the executive of the United States and Australia. It's a warning that we ought to heed.

The assistance and access act, rushed through the parliament in the name of protecting Australians against terrorists and paedophiles, now seems to be jeopardising Australian safety. It's jeopardising our law enforcement and national security agencies' ability to access critical investigatory data within weeks, instead of years, when investigating serious crimes like terrorism and paedophilia.

Despite the shortcomings in the long-term in this bill, in the last parliament Labor ultimately agreed to support the bill in the last sitting of the year—indeed, on the last sitting day of the year—on the advice of security agencies that the powers of the bill were necessary to protect Australians from imminent security threats during the months-long summer recess of the parliament. In exchange, the government committed to progressing these amendments to the bill recommended on a bipartisan basis by the PJCIS in early 2019.

On 6 December 2018 the Minister for Finance announced in the Senate that the government would 'facilitate consideration of these amendments in the new year in government business time.' The Minister for Finance also said that the government 'supported in principle all amendments that are consistent with the Parliamentary Joint Committee on Intelligence and Security recommendations in relation to this bill'. I guess his word meant as much to us as it meant to Malcolm Turnbull. The Morrison government pettily broke this promise when parliament resumed in February 2019.

Almost a year later the government still hasn't kept its promise. On a crucial issue of national security it's dudded the parliament. It's time the government not only honours its promise to Labor but also honours a longstanding bipartisan tradition in this place when it comes to national security.

The assistance and access act is flawed in many ways. It hinders our law enforcement agencies' ability to investigate serious crimes. It hinders our ability to enter into an agreement with the US on the CLOUD Act, undermining our longstanding relationship with the US. The shambolic way that this bill was drafted and reviewed by the parliament has also created a series of enduring myths and public misconceptions about this bill that go beyond even the existing factual flaws of the bill, severely damaging perceptions of the law domestically and abroad. It's really hurt 'brand Australia' in the technology space, hindering the Australian tech industry's ability to innovate and expand their businesses, destroying jobs and causing damage to an industry that should be the engine of creating these jobs of the future.

We need to return to bipartisanship on these issues. To this end, I'm heartened by the PJCIS's recent report on the identity-matching services bills and its recommendation that these bills not proceed without being fundamentally rewritten. This creates the potential to restore the PJCIS to its former role as a place of genuine bipartisanship and legislative review in our parliament. It is also why I welcome the assistance and access amendments review bill, the bill before the House, which will extend the reporting date for the PJCIS's review of the assistance and access act from 13 April 2020 to 30 September 2020. It will give the PJCIS a second chance to get this right, to look at this bill in its totality, to do the consultations it should have done the first time, to listen to the experts in the Australian technology sector and to get the drafting right. Issues like the prohibition on issuing notices in a circumstance where it will create a systemic weakness are crucial; they are pivot points for this bill. The amendments only exist in the bill, frankly, because of the work of the Labor members of the PJCIS. To be operative, they need to be appropriately designed, drafted and understood throughout the industry. I welcome the review of this bill, and I commend this bill to the House.

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