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Thursday, 6 December 2018
Page: 12790


Mr HILL (Bruce) (11:02): I endorse the comments that have been made by previous speakers on the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 and seek to build on those. In doing so, I record my strong concerns at the outset at the government's shameful, disgraceful approach to national security, as evidenced by the handling of this bill and the discourse and comment by government ministers, particularly over the last week or so.

Being a serious, responsible party of government is a responsibility which the Labor Party accept. We're not seeking to be populist in relation to national security matters. I don't think anyone could say that, at any point in the last two terms of parliament, we've taken the low road on national security. We've worked sensibly, in a measured fashion and in a bipartisan way, through the Parliamentary Joint Committee on Intelligence and Security, always seeking to listen to the evidence, to take seriously the concerns of our security agencies—and industry in this case—and to reach agreement and compromise with the government. I think that committee has issued more than 300 recommendations in relation to a range of legislation, all of which have been adopted by the government and all of which have improved the initial proposals introduced by the government.

Of course, it's easy being green, as Kermit the Frog used to say, and the Greens political party have chosen the other route: to vote against every single piece of national security legislation, seeking populist headlines and spreading rubbish on social media. They're not serious legislators. Indeed, I think in Gareth Evans's book, he observed that at least back in the day the Democrats were serious legislators. They'd go on serious committees. They'd put in the hours to read the clauses, grapple with the evidence, do the hard yards and actually have evidence behind the claims that they made. But even back then the Greens Party just didn't do the work. It wouldn't surprise me at all if none of them really said much in the Senate after 6 pm because they're not going to get on the telly tonight, so why bother, as we saw with the foreign influence bill when it went through the Senate.

This is yet another badly thought out, badly drafted and rushed bill, just like the Foreign Influence Transparency Scheme Bill 2018 was when it was rushed into parliament and introduced. I was in the chamber then. Everyone else was off having a drink after the marriage bill, but the Leader of the House was waiting to shut the place down, so I had to table an obscure committee report and listen to the Prime Minister's overblown rhetoric coming off the back of their disgraceful politicisation of national security when they were desperate at that point with 'Shanghai Sam' and all this stuff gratuitously insulting China and selling out our national interest at that point. But the pattern is there. When this government is at its most desperate and when even picking on minorities, migrants and the most vulnerable Australians doesn't seem to be working anymore—as we saw in the Victorian election; talking up fear of crime didn't go so well, did it?—its last resort is: 'Break glass. Press "national security"'. That's what we've seen this week in how they've handled this encryption bill.

As I've said, the Labor members have taken the issue seriously. There was a timetable agreed on with the chair of the committee, who's over there. I think he sought to do his best to put a proper, grown-up process in place, to listen to the national security agencies, to listen to technical experts and to listen to other government agencies even when they gave clearly misleading and wrong evidence, like the Department of Home Affairs did. It became apparent that the government's consultation on the bill with the exposure draft was cursory at best, and not genuine. They didn't listen to any of the concerns raised. They just ploughed on ahead, thinking: 'We've ticked the box in consultation. We stuck out an exposure draft—that'll do.'

When the bill was introduced, there was no suggestion from the government that this was urgent. There was no date specified. It was only after the government's shocking week last week—you got smashed in Victoria, you lost Wentworth on Monday and you had a defection and lost the seat of Chisholm on Tuesday—that they then all of a sudden hit the panic button and started heavying the committee and smearing Labor with ridiculous slurs. If we didn't pass the bill immediately, as drafted, with no interrogation and no thought, then somehow we were all friends of paedophiles and friends of terrorists. It was an utterly ridiculous comment by the member for Hume with terrible overreach and hyperbole, and the commentators called him out on it. As if saying we were all friends of paedophiles was somehow going to get the opposition onboard! Indeed, I think it was at that point that the former Independent National Security Legislation Monitor called out the Minister for Home Affairs as being unfit for his office through taking the low road, as the government have done, and politicising national security in the way we've seen in the last week. That is an important point.

I heard the member for Eden-Monaro before remark upon that slur on the opposition and call for an apology. Well, I don't feel I need an apology—that's the normal kind of rubbish we hear when the government is desperate—but I do agree that, if anyone is owed an apology, it is the member for Eden-Monaro. He spent 30 years of his professional life working in the national security establishment of this country, serving in the SAS, serving overseas and fighting terrorists. For a government minister to somehow imply that he, as a member of the intelligence committee, in seeking to fix this flawed bill was somehow a friend of terrorists is disgraceful.

For any of those opposite who wonder why they're held in such low regard by the Australian people now, that's a very good example of the kind of thing that should stop. When it's said in the heat of the moment, perhaps on Sky News, if anyone was watching—I actually was at that moment—then perhaps a withdrawal and an apology would go some way to restoring some trust and decency.

In contrast to this process, the Intelligence Services Amendment Bill 2018 was passed without fuss by the House earlier this week, because that followed a grown-up process where there was early and extensive consultation with the opposition and grown-up behaviour through the committee. The bill had checks and balances in oversight embedded in it, and they were strengthened, but, of course, that was driven by the member for Curtin, when she was the foreign minister. For that, the thanks she got from her party room was 10—or was it 11?—votes to be leader. So, for grown-up behaviour, you're spurned, but for taking the low road and politicising national security, apparently you get rewarded on the other side. In good legislative process, at 6.32 this morning, we got handed the amendments to the bill—100 pages in the report and goodness knows how many amendments. So we're supposed to stand here—like government muppets do—and support a bill, when there's been no chance to properly consider whether the amendments agreed to even reflect the agreements made through the Parliamentary Joint Committee on Intelligence and Security. We've had multiple examples on previous occasions where an agreement is reached, the government runs off, does the drafting, comes back, and it's not right, either through bad intent, in some cases, or just fair, excusable mistakes that may happen when people are working overnight drafting complex legislation.

The shadow Attorney-General has well outlined and summarised Labor's substantive concerns with the bill, but I'd say very clearly the bill is flawed. It was flawed in a serious fashion when it was introduced to the House. The original version was hopeless. Despite the supposed consultation on the exposure draft, as I said, there was no actual listening—we may hear, but we don't listen. There was no credence given to the red alarm bells ringing from industry that the bill, if it proceeded with as drafted, would actually compromise national security, would weaken national security. But we called the government's bluff and said: 'No, there is a line. We've reached the line. We are not going to support legislation that weakens national security, even if the government thinks it's in its short-term political interests to call us all "friends of terrorists". We're not going to do that.'

I'll draw attention to two aspects that have been remarked upon. Encryption: once it is broken, you can't unbreak it. Encryption plays a critical role in our modern national security, not only in more traditional national security domains of defence and policing and so on but also our economic security—banking, telecommunications and critical infrastructure. And the back doors that have been talked about—that if you require technical providers to build in known flaws—are a serious issue. It's not a trivial issue like the 'big stick' which we hear so much about in question time; it's a serious issue. Industry lined up to point out numerous serious problems, but there was nothing, silence from the government—doesn't matter; we're just going to plough on ahead.

One of the most serious issues, the shadow Attorney-General's identified. When this was raised in committee hearings with officials and government members, there was this kind of stunned silence, like no-one had actually thought of the implications for the security relationship with the United States and the CLOUD Act that was passed in March. In that sense, whilst this bill is less problematic, Labor still have concerns about it. We still believe it's flawed legislation despite the agreements reached. We are going to do the sensible, grown-up thing as a responsible party of government and reach a compromise with the government to pass the bill before Christmas and ensure that the security agencies have the powers that they have said that they need—some of that in public evidence, some of it, of course, in classified evidence, restricted to the committee. It is a fact of life that we have to trust the judgement of those senior members of the House—at least from our side—who are members of that committee.

I do want to draw attention and record my concerns about a couple of aspects of outstanding concern. Firstly, judicial oversight: appallingly, the bill does not provide, even as amended, for judicial oversight of technical assistance notices or technical capability notices. Judicial oversight via warrants does apply to telecommunications interception notices, which is the most obviously reasonable parallel. It's an accepted norm. It has been for decades. An important legislative principle anywhere in public administration but particularly in relation to intelligence and security matters is that, as the legislature grants greater powers to security agencies, there has to be greater accountability and responsibility. It shouldn't be a difficult concept. If you give more powers away to do hidden things then there has to be greater accountability. That's why judicial oversight via warrants is a long-accepted, well-accepted practice. But the government won't agree to that. Point-blank, they will not agree to judicial oversight. There's no sensible, convincing explanation being given as to why the same regime that has applied for decades to telecommunications interception warrants can't apply here. There's just no explanation. It's a basic norm, but it's also a civil liberties and a trust issue. Trust in government is declining. Surely this is one thing that we can agree on to help address some of the concerns floating around the internet or the hyperbole that we've heard from the Greens' political party. This is one issue that we could agree on that would help to moderate some of the legitimate public concerns about trust.

I'm concerned that this legislation allows one government minister—well, the initial proposal was that one government minister could issue the mandatory technical assistance notices or technical capability notices. I'm not remotely comforted by the fact that it's now two government ministers, particularly when one is the very weak Senator Fifield. This double-lock system of two ministers doesn't give much confidence. The best we could get out of this initial compromise was judicial review from a retired judge. A judicial review is a very poor second cousin to judicial oversight. This should be fixed next year, as the committee's inquiry continues. But if it's not fixed by this government, I think it should be fixed by the next federal Labor government.

The other concern, of course, is the definition—or lack of definition—of 'systemic weakness'. Apparently, the protection was that you can issue a technical capability notice—you know, the big stick—to make them build in a back door, but there's no definition of what a systemic weakness, in fact, is. They're ignoring industry on this point. Labor has got the government to finally, after listening to the evidence through the committee, agree to accept that there has to be a definition of systemic weakness. It shouldn't be rocket surgery, even for those opposite, to understand that if you're going to pass a term that is supposed to be the big protection from stuffing up the—

Mr Pyne interjecting

Mr HILL: 'Rocket surgery' was Warwick Capper's favourite phrase, actually. It's one of my personal favourites. I thought it might help some of those opposite to understand the point I was making. It shouldn't be rocket surgery to understand that you need to define the term 'systemic weakness'—

Mr Pyne: It's 'rocket science'!

Mr HILL: I know it's 'rocket science'. I think 'rocket surgery' has a nicer ring to it, Leader of the House.

Ms O'Neil: I'm defending you!

Mr HILL: Thank you. It was deliberate. It was a Warwick Capper term. It's part of my lexicon.

In summary, I do welcome the fact that the PJCIS inquiry will continue. This provides an opportunity to address the serious and outstanding national security concerns—most particularly, but not limited to, the US CLOUD Act and our security cooperation—to address the privacy and civil liberties concerns. I have to say, a lot of what I've seen and received via email is clearly overstated. Warrants remain for the interception of individual communications, as has existed for decades, but we could strengthen it with judicial oversight. Very importantly, as others will talk about, we can take the time to consider the economic impacts and our economic security.