On 6 December 2018, the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (the Assistance and Access Act) was referred to the Committee for inquiry and report by 3 April 2019. The referral formed part of a second reading amendment moved during Senate consideration of the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (the Assistance and Access Bill).
The Committee adopted this review on 14 December 2019 (referred to in this report as the 2019 Act Review). The referral is a subsequent and separate review from that conducted by this Committee in 2018 on the Assistance and Access Bill (2018 Bill Review).
2018 Bill Review
On 20 September 2018, the Attorney-General referred the Assistance and Access Bill to the Committee for inquiry and report. The Committee subsequently launched a detailed review of the legislation which attracted over 100 submissions from industry and members of the public, involved five public hearings and multiple private hearings and classified briefings.
At the end of 2018 the Committee agreed to expedite its consideration of the Bill following Government advice that the legislation was critical to assist agencies’ response to a heightened national security environment over the Christmas/New Year period. In recognition of this advice and the imperative to pass the Assistance and Access Bill before the conclusion of sittings for 2018, the Committee tabled a brief report recommending a series of amendments to respond to the most pressing issues raised during the 2018 Bill Review.
Advisory Report on the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018
The Committee’s Advisory Report on the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (the 2018 Report) was tabled on 5 December 2018. It contained 17 recommendations for amendment or other action by Government, primarily aimed at improving the efficacy and oversight of the industry assistance measures provided for in Schedule 1 of the Bill.
The tight reporting timeframe prevented the Committee from clarifying the intent and objectives of its recommendations through its long‑standing practice of detailed Committee comments. The expedited consideration also precluded the Committee from incorporating a detailed presentation of the evidence informing its recommendations.
In response to the Committee’s report, amendments to the Bill were introduced and passed by the Parliament on 6 December 2018, the final sitting day for 2018. As noted previously, this included a referral of the Assistance and Access Act to this Committee for review and report by 3 April 2019 (referred to in this report as the 2019 Act Review).
2019 Act Review
The Committee announced the current review of the Assistance and Access Act and invited submissions via media release on 17 December 2018. The Committee expressed its intention to focus the 2019 Act Review on clarifying the intent of the recommendations it made in its 2018 Report and to advise the Parliament on the extent to which those recommendations as intended, were addressed.
The Committee received 71 submissions and 7 supplementary submissions (see Appendix B). The Committee did not hold public hearings as part of its review, but held classified briefings with ASIO, AFP and the Inspector‑General of Intelligence and Security in February 2019.
On 12 February 2019, Mr Andrew Hastie MP (Chair), and the Hon. Mark Dreyfus QC MP (in his capacity as a member of the Committee) made statements in the House of Representatives on behalf of the Committee to update the Parliament on the progress of the review.
Both advised the House that the Committee unanimously supported two further amendments to the Act to:
bring forward the timeframe for the Independent National Security Legislation Monitor (INSLM) review of the Assistance and Access Act; and
extend industry assistance powers provided for in the Act to Commonwealth and state anti‑corruption bodies.
Mr Hastie explained that the 2018 Report included a Committee recommendation that the INSLM be required to review the Act within 18 months of its commencement. However, amendments introduced and passed on 6 December 2018 updated the Independent National Security Legislation Monitor Act 2010 to require the INSLM to commence a review of the Assistance and Access Act after it has been in force for 18 months. Mr Hastie said the Committee felt further amendments were necessary to effect the earlier timeframe for review outlined in the 2018 Report:
The committee recommended that the commencement of the Independent National Security Legislation Monitor’s review be within 18 months of the act’s passage, to enable this expert legal advice to inform the committee’s own review of the act to commence on 13 April. It is the view of the committee that an amendment is required to clarify the time frame for the Independent National Security Legislation Monitor’s review.
Likewise, Mr Hastie reported that the Committee desired the extension of the industry assistance powers provided for in the Act to Commonwealth and state anticorruption bodies:
The committee recognises that these commissions have a central role in ensuring integrity and accountability within public administration. They investigate, expose and prevent corruption involving or affecting public authorities and public officials... Notwithstanding the importance of these bodies, the exercise of such intrusive powers must always be oversighted. The committee is therefore of the view that the Commonwealth Ombudsman should oversight the use of these powers by state bodies. Such an extension is parallel with the Ombudsman’s oversight of the exercise of the act’s powers by state and territory police forces.
On 13 February 2019, the Government introduced into the Senate the Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019 to give effect to these amendments. At the time of writing, the Bill had not yet progressed beyond the Senate and a number of additional amendments had been moved.
Matters identified by stakeholders for further consideration
The Assistance and Access Act has attracted significant domestic and international interest since the introduction of then Bill in mid‑2018 and its passage in late‑2018. The Committee understands the interest as the Act introduced significant new powers on technical matters that have global implications.
The Committee takes this opportunity to thank the many submitters and witnesses that appeared at public hearings during both the 2018 Bill Review and the 2019 Act Review. Stakeholders have identified many matters for further consideration. Whilst the vast majority of this evidence focussed on Schedule 1 (industry assistance measures), stakeholders provided valuable evidence on the remaining four schedules (Schedules 2‑5).
The Committee has summarised this evidence in Appendix A of this report. The Committee does not seek to respond to these matters in this report. However, noting the anticipated timing of the federal election and the upcoming statutory review by the Committee of the Assistance and Access Act to commence in April 2019, there will be opportunity for the Committee to engage with these matters in a more considered manner. The Committee is also of the view that the statutory review will be an opportunity for industry to report on the implementation process and stakeholder engagement.
The Committee takes this opportunity to advise of its intention to examine the intersection between the Act and legislation in foreign jurisdictions, including the United States’ Clarifying Lawful Overseas Use of Data Act, in the upcoming statutory review.
Statutory review and timing of the INSLM’s review
As noted above, the Committee recommended in its 2018 Report that the INSLM be required to review the Act within 18 months of its commencement. However, Government amendments updated the Independent National Security Legislation Monitor Act 2010 to require the INSLM to commence a review of the Act after it has been in force for 18 months.
The Committee notes amendments introduced by the Government in the Senate that would align the timeframe for the INSLM’s statutory review with the Committee’s recommendation in its 2018 Report. Whilst the amendment has bipartisan support, the Committee appreciates that there may not be an opportunity for the amendment’s passage prior to the dissolution of the Parliament ahead of the upcoming federal election.
The Committee has therefore used its powers under section 7A of the Independent National Security Legislation Monitor Act 2010 to refer an inquiry to the INSLM prior to the dissolution of the Parliament. The Committee notes that this will be the first such referral by the Committee to the INSLM.
The Committee has requested the INSLM to prepare a public report on this matter, by 1 March 2020. To facilitate this significant body of work, the Committee recommends that the INSLM be provided additional resourcing.
The Committee notes that a report by the INSLM, and any recommendations that the INSLM’s report might contain, will attract significant public interest and will inform the direction of the Committee’s own statutory review. The Committee is of the strong view that there must be time for public comment—and evidence provided to this Committee—on any recommendations made by the INSLM in that report. Appreciating stakeholders repeated concerns regarding sufficient timing for public comment, the timeframe for the Committee’s own statutory review must be amended. The Committee therefore recommends that section 187N of the Telecommunications (Interception and Access) Act 1979 (the legal authority for the statutory review) be amended to extend the timeframe for the Committee’s report from April 2020, to June 2020.
The Committee recommends that section 187N of the Telecommunications (Interception and Access) Act 1979 be amended to require the Committee’s review of the amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 by June 2020.
The Committee recommends that sufficient resources be made available to the Independent National Security Legislation Monitor to enable the review of the amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018, as referred by the Committee, and report by 1 March 2020.
Operationalisation of the Act
During the 2018 Bill Review, the Committee was advised that the evolving digital environment presents an ‘increasing challenge for law enforcement and national security agencies’ as ‘secure, encrypted communications are being used by terrorist groups and organised criminals to avoid detection and disruption’. The Committee was further advised that by 2020, it is expected that all communications of investigative value will be encrypted. The Committee has taken evidence on how the powers have been operationalised in response to identified threats, and the development of governance arrangements.
In the main, the Committee expects that the powers have effective safeguards and oversight, and expects that they are being used appropriately by security agencies and law enforcement.
The Committee reiterates the importance of the public assurance that is provided by effective and robust oversight measures. Democracies require intelligence agencies to be subject to independent oversight and review. Australia’s intelligence agencies have significant human and technical capabilities as well as legal powers and immunities. Without strong and credible oversight there may be a loss of trust between the agencies and the public.
The Committee wishes to encourage the Department of Home Affairs—as the agency with responsibility for national security law and policy—to work cooperatively with the Inspector‑General of Intelligence and Security (which oversights the six intelligence agencies) and the Commonwealth Ombudsman (which oversights the AFP). Such cooperation, in the view of the Committee, should occur early in the development of new legislation and not once legislation has been introduced into the Parliament.
The Committee also notes the importance of adequate resourcing for both agencies, and therefore reiterates the recommendation of its 2018 Report that these agencies be properly resourced.
The Committee recommends that the Government continues to ensure that the Inspector‑General of Intelligence and Security and the Commonwealth Ombudsman have sufficient resources to ensure that they can properly execute their additional responsibilities under the Assistance and Access Act.
The Committee notes that some of the issues raised by stakeholders in the 2018 Bill Review and the 2019 Act Review are not matters to which there is consensus. Some of these matters are under current consideration by the Parliament—the Government introduced an amending Bill into the Senate on 13 February 2019, to address some of those matters, and further amendments were introduced by Labor Senators addressing a wider range of matters.
Further, the INSLM’s new review of the operation, effectiveness and implementation of the amendments made by the Act will likely raise matters for public discussion. The Committee will consider the report by the INSLM on this referral in the 46th Parliament.
While noting that consideration of these matters is ongoing consideration, the Department of Home Affairs should continue to engage in robust dialogue with industry.
The Committee acknowledges the concerns raised by a range of industry and non‑industry stakeholders throughout the 2018 Bill Review and the 2019 Act Review.
Some members of the Committee believe that, on balance, the Act appropriately addressees all of those concerns. Some other members of the Committee disagree with that proposition. However, all members of the Committee agree that the significant new powers introduced by the Act warrant ongoing consideration. For that reason, the Committee believes that it is appropriate that a further statutory review of the Act is scheduled to commence in April 2019.
Mr Andrew Hastie MP