2.1
This chapter discusses the background leading to the inquiry, and briefly summarises the actions of the Committee’s previous reviews on the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (TOLA Act), as well as the review undertaken by the Independent National Security Legislation Monitor (INSLM).
Previous inquiries into the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018
2.2
The Committee has completed two previous inquiries regarding the TOLA Act; first into the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (TOLA Bill), and a subsequent inquiry into the resultant TOLA Act in the year after it was passed.
Advisory Report on the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018
2.3
On 20 September 2018 the TOLA Bill was introduced into the House of Representatives by the Minister for Home Affairs, the Hon. Peter Dutton MP, and the Bill was subsequently referred by the Attorney-General, the Hon. Christian Porter MP, to the Committee for inquiry and report.
2.4
The Committee had significant engagement with industry, government agencies and civil society, receiving a total of 105 submissions and numerous supplementary submissions to the inquiry. The Committee also held five public hearings on the TOLA Bill in October and November 2018.
2.5
On 22 November 2018, the Committee received advice in correspondence from the Minister for Home Affairs that there was an immediate need to provide agencies with additional powers and to pass the TOLA Bill in the last sitting week of 2018. The Minister for Home Affairs, the Hon. Peter Dutton, said:
The situation has become more urgent in light of the recent fatal terrorist attack in Melbourne and the subsequent disruption of alleged planning for a mass casualty attack by three individuals …
I am gravely concerned that our agencies cannot rule out the possibility that others may also have been inspired by events in Melbourne to plan and execute attacks … This is particularly concerning as we approach Christmas and the New Year, which we know have been targeted previously by terrorists planning attacks against Australians gathered to enjoy the festive season …
For these reasons I ask that the committee accelerate its consideration of this vital piece of legislation to enable its passage by the parliament before it rises for the Christmas break.
2.6
In response to this advice, the Committee sought short-timeframe private briefings from a number of organisations including:
Australian Security Intelligence Organisation (ASIO)
Australian Signals Directorate (ASD)
Department of Home Affairs
Australian Federal Police (AFP)
Inspector-General of Intelligence and Security (IGIS)
2.7
Following the briefings the Committee accepted that there was a ‘genuine and immediate’ need for agencies to have tools to respond to the challenges of encrypted communications.
2.8
To address the immediate concerns arising out of the TOLA Bill, the Committee made 17 recommendations for amendment or action, primarily aimed at improving the efficacy or oversight of the industry assistance measures in Schedule 1 of the TOLA Bill.
2.9
In response to the Committee’s report and expanding on the original Bill, 173 amendments to the TOLA Bill were introduced and passed by the Parliament on 6 December 2018, the final sitting day for 2018.
2.10
These amendments came only one day after the Committee had delivered its Bill review report on 5 December 2019. Some members of the Committee and other interested parties expressed concerns about whether the amendments had fully addressed the Committee’s recommendations or what their effect may be, but the inclusion of an immediate review of the Act by the Committee as one of those amendments was accepted as a mechanism to expedite analysis of any such concerns.
2.11
Additionally, though the TOLA Bill was passed by Parliament by the end of 2018, the compressed timeframe meant that the Committee was unable to fully expand or articulate its response to the concerns raised by submitters or explain the rationale leading to the recommendations in its Bill review report. Additionally, the Committee’s TOLA Bill review report was limited to recommendations regarding only one of five schedules of amendments brought forward under the TOLA Bill.
2.12
Therefore, amendments made to the TOLA Bill referring the TOLA Act to the Committee to inquire and report in 2019 were welcomed by the Committee.
Review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018
2.13
The Committee commenced the 2019 TOLA Act review on 17 December 2018. The intent of the inquiry was to clarify the intent of the recommendations made in the TOLA Bill inquiry and to advise Parliament on the extent to which the recommendations made by the Committee in its advisory report were addressed.
2.14
The Committee received 71 submissions and 7 supplementary submissions, and held classified briefings with the ASIO, AFP and the IGIS in February 2019.
2.15
Mr Andrew Hastie MP, Chair of the Committee, and the Hon. Mark Dreyfus QC, MP made statements in the House of Representatives on Tuesday 12 February 2019, updating the Parliament on the progress of the Inquiry and expressed the Committee’s unanimous support for two amendments of the Act to:
bring forward the timeframe of the INSLM’s review of the Act; and
extend industry assistance powers provided for in the Act to Commonwealth, State and Territory anti-corruption bodies.
2.16
On 13 February 2019, the Government introduced the Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019 to give effect to these suggested amendments. This Bill lapsed due to the 2019 Federal election and has not been reintroduced.
2.17
On 3 April 2019 the Committee tabled its report into the TOLA Act, with three recommendations. The recommendation provided for a further statutory review by the Committee into the TOLA Act, with a reporting deadline of June 2020, to enable the INSLM to undertake a review of the TOLA Act by 1 March 2020, to ensure resourcing be made available to the INSLM to conduct his review, and to recommend that the Commonwealth oversight bodies – the Commonwealth Ombudsman and the IGIS – be provided adequate resources to oversee compliance with the requirements of the legislation.
2.18
On 12 December 2019 the Telecommunications (Interception and Access) Amendment (Assistance and Access Amendments Review) Act 2019 received assent and extended the Committee’s review deadline to 30 September 2020.
The Report of the Independent National Security Legislation Monitor into the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018
2.19
Noting the timing of the 2019 Federal election, the Committee exercised its powers under s7A of the Independent National Security Legislation Monitor Act 2010 (INSLM Act) to refer the TOLA Act to the INSLM for review, with a report to be provided to the Committee to inform this statutory review.
2.20
Following the extension to the review deadline provided to the Committee by Telecommunications (Interception and Access) Amendment (Assistance and Access Amendments Review) Act 2019, the Committee resolved to extend the deadline for the INSLM to review and provide a report by 30 June 2020.
2.21
The terms of reference for the inquiry requested the INSLM to consider the safeguards, proportionality and ongoing necessity of the legislation:
…the operation, effectiveness and implementation of amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 and whether the Act: (i) contains appropriate safeguards for protecting the rights of individuals; and (ii) remains proportionate to any threat of terrorism or threat to national security, or both; and (iii) remains necessary.
2.22
The INSLM consulted extensively in Australia, the United Kingdom (UK) and the United States (US) with public and private hearings, stating:
This travel gave me confidence that the recommendations I now make are based on a full understanding of the operation of the US Clarifying Lawful Overseas Use of Data Act 2018 (CLOUD Act) and the crucial importance of IPCO, both in raising public trust in the exercise of powers similar to those in TOLA and, in the UK, obtaining an agreement with the US Government in relation to the CLOUD Act.
More generally, the consultation and submissions referred to in this chapter, the appendices and elsewhere in this report, have been vital in the conduct of this review and the recommendations I have come to. I thank all concerned for their contributions.
2.23
The INSLM provided his report to the Committee on 30 June 2020.
2.24
The INSLM’s report satisfied the statutory requirement of the INSLM Act to review the operation, effectiveness and implications of the TOLA Act within 18-months of Royal Assent.
2.25
The INSLM’s report contained 33 recommendations on all aspects of the amendments made by the TOLA Act, as well as the recommending amendments to the INSLM Act to enable own-motion reviews of aspects of the TOLA Act, and recommendations regarding improvements in reporting, disclosure and oversight of the powers granted by the TOLA Act amendments.
2.26
This Committee report makes reference to the INSLM’s findings and recommendations in subsequent chapters.
Comprehensive Review of the Legal Framework of the National Intelligence Community (Richardson Review)
2.27
On 30 May 2018 the Attorney-General announced the comprehensive review of the National Intelligence Community’s legal framework to be undertaken by Mr Dennis Richardson AC.
2.28
The review was an outcome of the 2017 Independent Intelligence Review to ‘consider options for harmonising and modernising the legislative framework that governs the activities of our intelligence agencies to ensure they operate with clear coherent and consistent powers, protections and oversight’.
2.29
The Government released the unclassified version of the Comprehensive Review into Intelligence Legislation as well as the Government response to the review in December 2020.
2.30
The Richardson Review considered that the current authorisation framework was adequate and a ‘double-lock’ for warrant authorisation was not required.
2.31
The Richardson Review recommended the establishment of a new electronic surveillance Act that would consolidate a number of telecommunications related powers, largely as they relate to the interception of information.
2.32
However, one aspect of the proposed electronic surveillance Act directly related to the performance of functions under the Telecommunications Act 1997 is the current prohibition on requiring a designated communications provider (DCP) to develop a capability to intercept communications. The Richardson Review proposes to remove this prohibition to allow law enforcement and intelligence agencies to engage with DCPs to develop and maintain interception capabilities. The Richardson Review did not consider that this would constitute an expansion of powers, but rather to ‘enable agencies to work with industry to develop more targeted and effective interception capabilities, to address particular security and law enforcement challenges’.
2.33
On 9 December 2020 the Attorney-General of Australia, the Hon. Christian Porter MP, introduced the Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020 to the House of Representatives to introduce some of the amendments from the Richardson Review. The Bill proposes to expand the oversight functions of the IGIS and the PJCIS, as well as to incorporate some definitional amendments. The PJCIS is considering these matters in its review of the Bill.
Committee Comment
2.34
The Committee extends its appreciation to the former Independent National Security Legislation Monitor, Dr James Renwick CSC SC, and his office for their efforts in producing the report into the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 which greatly assisted the Committee in its inquiry.
2.35
The Committee also extends its appreciation to industry, departments and civil society for its continued engagement in the Committee’s consideration of the TOLA Act, noting that several organisations have submitted to each of the Committee’s inquiries. These submissions and engagement in public hearings have also greatly assisted the Committee in its inquiry.
2.36
The Committee notes that the recommendations contained in the Richardson Review report has potential implications for the Committee’s consideration and recommendations in this inquiry, especially the recommended implementation of a new electronic surveillance Act. The Committee considers that the recommendations in the following chapters can be implemented in the immediate term while the broader reforms set out as part of the Richardson Review are considered.
2.37
The Committee acknowledges the circumstances that have influenced the Committee’s historical consideration of this legislation, and that the threat of terrorism and other serious crime can require urgency in addressing the needs of law enforcement and intelligence agencies to thwart attempts to cause significant harm.
2.38
The Committee also notes that the circumstances around the TOLA Bill were exceptional and considers that appropriate parliamentary scrutiny is an essential part of the consideration of new powers affecting Australia, its industry and its people. The unprecedented complexity of the Bill, the rapid timeframe for its amendment and passage have ultimately resulted in an effective framework of changes that have enhanced law enforcement and intelligence powers. However, the Committee has undertaken this review with a mind to giving careful consideration to the issues raised in the earlier reviews that could not be addressed then, or that have come to light since.
2.39
Noting the intrusiveness of the powers contained in this legislation, the Committee has given careful consideration to the ongoing appropriateness, effectiveness and necessity of the powers conferred by the TOLA Act.