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Thursday, 6 December 2018
Page: 12787


Mr HUSIC (Chifley) (10:47): As is often reflected in this place, we are compelled to consider a range of issues that are very important to the people who are affected by them. They may not necessarily garner wide interest, but the people who are touched by the laws that we pass in this place feel very strongly about them. There is a slice of law-making that is in a realm all of its own. In this instance, I believe that, where matters relating to national security combine with one other item, they demand national attention but also deep consideration by every single person in this place.

National security, twinned with economic security, demands that we ensure that we are fully aware of the impact, the potential consequences, of the laws that we will put in place. In terms of the matters before us under the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, it has been flagged for some time in the Australian jurisdiction that we would attempt to do something that had eluded our friends in other parts of the world with more resources, more brains and more capability. This is not disparaging our own strengths and abilities. But, if you look in parts of the world like the United Kingdom, they spent an extraordinary amount of time looking at the matters that are at the heart of this bill. They not only took their time in how they would address this but also recognised the immense challenges in being able to do what the home affairs minister reckons he was able to do with the snap of fingers, which is to deal with, to interfere with, to manipulate, something as complicated as encryption in an easy way. Well, you can pretend that you can do that, but the reality is something completely different. While a former Prime Minister said that the laws of mathematics are one thing but the laws of Australia are something else, the reality is that the laws of mathematics apply across the entire globe, and there's nothing inherently Australian about our ability to defy those laws.

The whole thing about encryption, the big worry that a number of people have expressed about this, is—if I can put it this way—that what has been attempted is like feeling in some way, shape or form that you can make a tiny cut in the mozzie net and you won't get bitten. The reality is that people are deeply concerned that, if you weaken encryption in any particular way, it will, in the longer term, be watched by people who want to cause harm and will do it.

There is absolutely no walking away from the fact—and I think there are a lot of joined views in this place—that we do need to absolutely target those who want to cause harm: terrorists, paedophiles, those who want to undertake at a major scale things that are completely beyond the pale. We need to be able to deal with it, absolutely. But, in tackling the people who want to cause harm, we don't want to inadvertently do harm ourselves, so this process needs to be given thought as to how to best architect an arrangement that will allow us to achieve it.

There are a lot of us in this place—I suspect that there are some on the other side as well—who have recognised the challenge in doing this and have been troubled by what has been proposed. The regimes that have been put forward by the government have been the subject of deep examination by the Parliamentary Joint Committee on Intelligence and Security. A number of my colleagues have singled out, in particular on our side, the people who have been able to make a very meaningful impact in that committee process. I want to recognise especially the work of the shadow Attorney-General and the shadow foreign minister, which we're very grateful for, but also my friend Senator Jenny McAllister; the member for Eden-Monaro, Mike Kelly; and the member for Holt, Anthony Byrne. I especially want to single out the last two, who have been open to members of parliament talking with them about the issues at the heart of this bill and working through our concerns with them. And they have, I have to say, given me a greater degree of comfort about what's being proposed.

But, having said that, some of the interventions by the member for Melbourne—who I do get on with but I deeply disagree with in this—show some belief that, on the opposition side, we think that this entire matter has been resolved to our satisfaction. It hasn't. We do have concerns still with what's being proposed. What we are trying to achieve is giving the tools to the security agencies to allow them to do their work but subjecting the types of proposals the government has put forward to ongoing review.

Now, bear in mind that I was one of the few people in this place to stand at this spot and argue against the arrangements on metadata, because at that point in time I was deeply concerned—and I still maintain the belief—that the powers that were granted through that process would potentially be abused, with little oversight and corrective ability. And what's happened in the meantime? We've discovered 350,000 applications for metadata, including from local councils! Why local councils would want my metadata, I don't know. I don't know if they're checking up on the contents of my recycling bin, but I may have caused some sort of offence triggering a need for metadata. People were told, 'We need this metadata for national security,' but we find out that local councils have access to metadata, in 350,000 requests—when we were told that there would be a narrow group of people, agencies and departments that would have access to it. It is astounding. The concern that a number of us have is that, when the government puts this legislation forward, what are the oversight arrangements?

I acknowledge the nous and capability of the Attorney-General. He has been much more adroit at dealing with this matter than his predecessors, who would have gone on afternoon Sky News and found themselves in all sorts of tangles describing metadata with tortured analogies involving the postal service. You have been a very good Attorney-General. When this Attorney-General was asked about the types of circumstances where the legislation would apply, which a lot of people have interest in, to give people comfort and understanding about what's going on—he is a clever boy—he said, 'I can't possibly go through those examples, because I've been told it's not appropriate for me to do so.' Very handy but not very helpful: with a controversial piece of legislation like this it is important to have examples you can walk the public through to build assurance, Attorney-General. I think people want to know the types of circumstances in which these laws would be used and what protections will be in place.

Longer term, if we want to work with arrangements like the CLOUD Act, the type of judicial oversight offered in this process is tissue-tough. I don't think it cuts the grade of what people would expect. People want a specialist judge backed by a team of people who can assess warrants and applications made to gain access under the TCN arrangement. They want to know that people who are capable of making judgements on applications can do so. I've been told privately that I'm being a bit too tough about the notion that a retired judge is the best person to make those decisions. I personally have deep reservations about it. I think we need to have a much stronger form of judicial oversight. I'm not going to get lectured to by people opposite who don't necessarily take the time to care about technology. In fact, if they had the ability to work a remote control on the TV, that's a great day in tech for them, but on this they want to tell us—

Mr Wallace: That's highly offensive.

Mr HUSIC: It's not offensive; it's a genuine reflection, Member. It's offensive? They can disparage decorated members of parliament who have served this country in Iraq, Somalia, Bosnia, Timor or in other capacities, saying that, in raising legitimate questions about this law, they are trying to help terrorists, but the minute you tease them about their capacity to operate a remote control, they get in a huff. It tells you everything about the way those people have approached this and are absolutely—

Mr Khalil: Hypocrites.

Mr HUSIC: as some have interjected. While I won't characterise it that way, I endorse what the interjections have said. As I said, this involves economic security. Encryption is a legitimate pathway used by businesses to securely carry data that involves sensitive material about individuals, be it health records or transactions of financial status and wealth. Commercial operations legitimately use those platforms to conduct their business, and we as consumers and members of the public know that that's done. Anything that is being put forward by those opposite that would have an impact on that, needs to be considered carefully. The warrants process is an important mechanism to ensure that, when people make the applications through agencies, someone capable is making the decision on them. I believe that the arrangements that have been put forward by the government are only interim ones. I say that because, in the longer term, judicial warrants and oversight will be critical.

The second thing that I think will be important is parliamentary oversight. Our committees have done a terrific job in oversighting this legislation, but they should also be empowered to a far greater extent to look at the way in which the laws that are passed by this body are actually implemented and operate. We have very little in the way of future reform of the parliamentary oversight committees to give them the same capabilities as those that exist in our allies, such as the UK and the US, to ensure that the types of things that are being proposed now are dealt with properly. We need to have better arrangements there.

The third thing that I think we need to do is to have clarity about the reporting on this. Through you, Deputy Speaker, I say to the Attorney-General: I would be very grateful if, in your reply to the contributions today, you can outline the kinds of reporting arrangements that will let the public know how many times the orders or the arrangements have been accessed over a defined period of time and also the numbers of people that are affected by those orders. With the greatest respect, Attorney-General, I think there would be people in the public who would want to know what arrangements are in that.

So, as I said, I think the oversight arrangements are important, and there are a lot of people in this place who believe that, in the longer term, we need to have those mechanisms in place to give comfort. Again, there are a lot of us who are deeply concerned about this. There have been some reflections made about the views of people in the tech community who rightly raise—they should not be dismissed as extreme libertarians—what impact this has on the local tech sector if they are trying to ensure that the tech sector is able to flourish in this place and have confidence, because it's in an interconnected community with other parts of the world, that the quality of the work that it does here isn't questioned because of the legal arrangements put in by the government. There have, I note, been quite a few views that have been raised online about whether or not this will put the local digital economy at a great disadvantage relative to others. Others have questioned whether or not simple geoblocking arrangements by a lot of the types of platforms that have been raised will see us not having access to some of the apps that have been mentioned in the course of the debate because people and organisations do not want to be subject to a penalty regime as envisaged by the act, which is important as well.

This is not the end of the debate, and I want to emphasise to people who are listening to this and following this debate outside this place that this is subject to ongoing review, and it is also subject to the commitment of parliamentarians who believe that the oversight arrangements, the judicial warrants and the way this system is accountable to others need to be strengthened. We certainly think, in the longer term, that this is the thing that needs to happen and happen quickly.