Anne Urquhart (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

I seek leave to table an explanatory memorandum relating to the bill.

Leave granted.

I table an explanatory memorandum and I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

On 6 December 2018, the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 passed the Federal Parliament.

This legislation – often referred to as the "encryption laws" in the media – empowered law enforcement and national security agencies to request, or compel, assistance from telecommunications providers in the course of their investigations.

Let me say from the outset that Labor always seeks to work in a bipartisan fashion, wherever possible, when it comes to ensuring Australia's national security.

This is why, in relation to the Assistance and Access Bill, Labor members of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) worked diligently with their Liberal colleagues to complete as thorough a review as possible, and to make 17 substantial bipartisan recommendations to the legislation.

The PJCIS delivered this review and these recommendations, even though the Government curtailed the time available to the Committee and forced the legislation before the Parliament.

The Government insisted that these encryption laws were urgent and necessary to prevent terrorist attacks over the summer period and moved to pass them through the Parliament in the last sitting hours of December 2018.

In the interest of national security, Labor agreed to pass the Assistance and Access Bill on the last sitting day of 2018, but only with the commitment from the Government that it would move the amendments that reflected the bipartisan PJCIS recommendations when Parliament resumed in 2019.

This commitment was made by the Leader of the Government, Minister Cormann, as he spoke on the floor the Senate:

"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 (PJCIS) recommendations in relation to this bill. This will facilitate this bill becoming law without amendment, and I do support it on that basis."

We took the Government and the Minister at his word.

However, Minister Cormann and the Government did not keep that commitment when the Parliament resumed in February. Now in the final sitting week of 2019, it is quite clear the Government will not be moving the bipartisan PJCIS amendments it previously promised to support.

Labor maintained then, and maintains now, that the without these amendments, the encryption laws are flawed for a number of reasons.

In particular, the legislation hurts the Australian tech industry, as customers are less likely to seek out contracts with Australian companies due to the potential that they would be forced to introduce systemic weaknesses into their systems.

Our tech sector holds great potential for economic growth and job creation. The encryption laws are holding the tech sector back from achieving that potential.

Furthermore, the legislation as it currently stands may prevent Australia from reaching a bilateral CLOUD Act (Clarifying Lawful Overseas Use of Data) agreement with the United States.

Australia entered into formal discussions with the United States a few months ago to reach such an agreement, which would give Australian law enforcement and national security agencies timely access to information that is crucial to their investigations. Under current arrangements, it can take up to two years for Australian agencies to access such data.

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. The partner country's laws also should not introduce requirements for decryption of user data.

However, Congressman Jerrold Nadler, chairman of the US House of Representatives judiciary committee, wrote to the Minister for Home Affairs, the Hon. Peter Dutton MP, in October to express concerns about the Assistance and Access Act. He said Australia's encryption laws as they currently stand "may undermine your ability to qualify for an executive agreement under the CLOUD Act".

It is under these circumstances that we introduce this legislation to the Parliament.

The Telecommunications Amendment (Repairing Assistance and Access) Bill 2019 would amend the Telecommunications Act 1997 to conform with the bipartisan recommendations that emerged from an inquiry by the PJCIS, and introduce a judicial authorisation requirement to address concerns about the Act's compatibility with commitments required under the United States Government's CLOUD Act.

Specifically, the provisions of the Bill would do the following:

It is important to note that the majority of the amendments proposed in this Bill were agreed to by Government members of the Parliamentary Joint Committee on Intelligence and Security, and that Minister Cormann indicated to the Senate on 6 December 2018 that the Government would support them during the 2019 sitting year.

The amendments beyond the recommendations relate mainly to creating a judicial authorisation in the legislation. This serves two purposes – firstly, it would allow for greater oversight of the issuing of notices, and secondly, it would alleviate concerns raised by members of the United States Congress in relation to negotiations around a bipartisan CLOUD Act agreement.

The Parliament must always seek to strike the right balance on national security legislation. This means sensible and well-constructed laws that protect our community, without unnecessarily infringing on the private rights of citizens or stifling free debate and enterprise.

With the current laws, we do not have the balance right.

As it stands, the Act does not provide the correct tools for our law enforcement and national security agencies to help them protect our community, it threatens Australia's tech industry and Australian jobs, and it undermines our relationships with key international strategic partners.

We do not suggest that these amendments will address all of the problems with the encryption laws that have been identified by industry, law enforcement agencies and other stakeholders.

Labor will continue to work closely with our intelligence and law enforcement agencies, industry and technology experts throughout the course of the current inquiry into the Assistance and Access laws being undertaken by the PJCIS.

However, the amendments proposed in this Bill are an important step towards repairing Australia's encryption laws for the sake our national security and the growth of a key sector in our domestic economy and the jobs it could create.

As such, I commend this Bill to the Chamber, and call on my colleagues in the Government and the crossbench to join with Labor and support these sensible amendments.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.