Title Parliamentary Joint Committee on Intelligence and Security
Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018
Database Joint Committees
Date 27-07-2020
Source Joint
Parl No. 46
Committee Name Parliamentary Joint Committee on Intelligence and Security
Page 29
Questioner CHAIR
Dreyfus, Mark, MP
Stoker, Sen Amanda
Keneally, Sen Kristina
Responder Ms Wright
Prof. Leonard
Dr Molt
System Id committees/commjnt/52662f7f-5fb3-493e-b8f6-3404c41bad63/0005

Parliamentary Joint Committee on Intelligence and Security - 27/07/2020 - Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018

GANOPOLSKY, Ms Olga, Chair, Privacy Law Committee, Business Law Section, Law Council of Australia

LEONARD, Professor Peter, Member, Media and Communications Committee, Business Law Section, Law Council of Australia

MOLT, Dr Natasha, Director of Policy, Legal Policy Division, Law Council of Australia

WRIGHT, Ms Pauline, President, Law Council of Australia

Evidence from Ms Ganopolsky and Professor Leonard was taken via teleconference—

CHAIR: I now welcome representatives of the Law Council of Australia to give evidence. Although the committee does not require you to give evidence under oath, these hearings are legal proceedings of the parliament and therefore have the same standing as proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege. I now hand over to you to make an opening statement.

Ms Wright : Thank you very much, Chair. As the national body representing the Australian legal profession, the Law Council welcomes the opportunity to appear today. The committee is, of course, closely familiar with the Telecommunications and Other Legislation Amendment (Assistance and Access) Act, the TOLA act, having undertaken multiple reviews since the originating bill. We now have the benefit of the report of the third Independent National Security Legislation Monitor, the INSLM, Dr James Renwick SC, on his review of the act. From the Law Council's perspective, the committee's inaugural referral to the INSLM was an extremely valuable exercise. Eighteen of the INSLM's recommendations endorse the Law Council's suggested amendments either in full or in principle. The Law Council is supportive of the INSLM's recommendations. If it would assist, we'd be pleased to provide a supplementary submission with our detailed reviews in relation to each of those recommendations.

The Law Council strongly supports the underlying theme of the INSLM's report, which is that the TOLA measures need stronger safeguards to ensure that they're proportionate to the security objectives to which they're directed. That includes measures to facilitate public trust not merely through the existence of retrospective or operational oversight but through the independent authorisation of the powers and more clearly defined and targeted powers. The Law Council would like to draw to the committee's attention two matters which we think merit further consideration. The first concerns the industry assistance scheme and schedule 1, and the second covers schedules 2 to 5.

On the first matter, the INSLM's core recommendations about the industry assistance scheme sought to establish an independent process for issuing notices to compel communications providers to give certain assistance to law enforcement agencies or ASIO—namely, technical assistance notices, or TANs, and technical capability notices, TCNs. The INSLM recommended the creation of a specialist investigatory powers division of the AAT to be headed by an investigatory powers commissioner, who would be a retired judge, supported by independent technical experts. The Law Council has consistently supported the independent authorisation of all intrusive investigatory powers, including TANs and TCNs, and the availability of independent technical expertise. We acknowledge the benefits in appointing a body to issue compulsory assistance notices in preference to appointing individuals in their personal capacity. This would build thorough institutional expertise in the applicable laws and technologies.

However the Law Council recommends that further consideration be given to conferring a judicial authorisation function on a court, possibly a division of the Federal Court of Australia, rather than an administrative tribunal that's part of the executive government. It would be desirable for the new body to be designed in a way that would make it feasible for its authorisation functions to be expanded in the future. International production orders could be made subject to the same independent authorisation arrangements. Consideration might also be given to making the independent body responsible for authorising all warrants.

In relation to accessing other powers, as the Law Council has raised in our submissions to the committee and the INSLM, we support further amendments to schedules 2 to 5. Our most pressing concerns are about the proportionality of new powers conferred by the amendments to computer access warrants in schedule 2. We recommend that the legislation more precisely prescribe the specific purposes for which agencies may intercept telecommunications and use force against people and things under a computer access warrant—that is, these powers should be authorised for the purpose of performing a subset of the activities authorised under a computer access warrant, not all activities. For example, there should be no power to intercept telecommunications for the purpose of gaining entry to premises on which a computer is located, as distinct from conducting an interception to gain access to relevant data held in or accessible from a computer. There should also be no power to use force against a person or thing for the specific purpose of intercepting a telecommunication, as distinct from using force to enter a premises.

Thank you, Chair and committee members. We're happy to answer your questions.

Mr DREYFUS: Thank you all for appearing before the committee, as you have done with so many of the committee's inquiries. I accept the offer that you've made, Ms Wright, to provide us with a supplementary submission, noting that of course your submission didn't have the opportunity to fully go into all of the matters that the INSLM's report has done, now that it has been tabled. Because I've asked you to do that, I'm not going to spend too much time on asking you for a very detailed view now, but, since you're all here, I do want to ask you what you think of the INSLM's recommendations 8, 9 and 10, which go to the problems with the current definitions of 'systemic weakness' and 'systemic vulnerability'.

Ms Wright : I think Professor Leonard would like to answer you on that one.

Prof. Leonard : Thank you, Pauline. We think that the recommendations start from a non-optimal position in that our fundamental concern was that the concepts of systemic weakness and vulnerability were unclear because of the use of the word 'systemic', which of itself introduces uncertainty as to the difference between an ongoing weakness or vulnerability and a systemic weakness or vulnerability. Our preference would be that the concept of systemic be dropped altogether, because what was at the heart of the drafting was whether there was any weakness or vulnerability which was of an ongoing nature and which could be exploited by any person other than a properly authorised authority exercising authority pursuant to legal process. That said, we think that the INSLM's proposed clarification is useful and we would therefore support that clarification as desirable and sensible, given the otherwise current drafting of the provisions.

Mr DREYFUS: Another of the recommendations of the INSLM that I want to draw attention to now—although you should of course feel free to deal with this in your supplementary submission—is recommendation 12, where the INSLM has recommended that the Australian Federal Police no longer have any role in the consideration of industry assistance notices requested by or issued on behalf of state and territory police. I've just raised this with Mr Stanton, and I'm not sure whether you were listening, but this matter of the involvement of the AFP is based on a recommendation made by this committee in its first report on this legislation, driven, I'd suggest, by the very rushed inquiry process that occurred, the government having conducted no consultation with state and territory agencies. There was doubt about what oversight would apply to state and territory agencies. The committee's hope was that, by channelling notices through the AFP, the Commonwealth Ombudsman would be able to provide some oversight, and possibly you might get a greater degree of consistency about how notices were framed and the circumstances of their issue. My question to the Law Council is: noting that the Independent National Security Legislation Monitor's suggestion to remove this involvement of the AFP has to be seen against the background of his general recommendations for a much more elaborate scheme of organisation and oversight, do you have any thoughts on how this legislation could address those issues that I've just mentioned, of oversight for state and territory agencies, greater consistency in how the notices are framed and greater consistency in the circumstances in which they are issued, in order to get consistency across the board?

Dr Molt : In relation to recommendation 12, certainly that recommendation, as you've noted, must be read in the context of the broader recommendations made by the INSLM, or the former INSLM, in relation to the establishment of a new division of the AAT for an independent authorisation process. If the committee is minded to pursue that recommendation around the investigatory powers division, there are a few factors that could be considered to address this issue around recommendation 12. For example, something that could be considered is a register of orders in the investigatory powers division so that the level of consistency for oversight can be achieved. There would also be a need to consider, for example, information-sharing provisions between the various oversight bodies involved, to enable joint inquiries and the sharing of inspection findings also. Of course, we would say that one of the issuing criteria should include that the division is reasonably satisfied that the order is not oppressive—for example, where there are multiple orders or the potential for multiple orders or requests to be made by multiple agencies. The dealing with or the handling of the fallout from removing recommendation 12 is not a simple process, and the Law Council would very much welcome the opportunity to be involved in consultations with government around how that might be addressed.

Mr DREYFUS: Accepting that you've said it's not an easy matter, perhaps that is a matter you might be able to address in a supplementary submission. In your written submission that we have, you've written at some length about the interaction of this legislation with the United States CLOUD Act, yet the observations that you make at paragraphs 13 through to 30 in essence, while drawing attention to a number of technical difficulties, come to the conclusion that it's likely that Australian law won't satisfy the requirements of the United States CLOUD Act for the purpose of Australia and the United States being able to reach what would undoubtedly be a very convenient agreement for access to telecommunications for Australian authorities. The US Department of Justice has said publicly that 'there is nothing in Australia's assistance and access act that would preclude or prevent the conclusion of a CLOUD Act agreement' between the US and Australia. On the other hand, the chair of the United States House Judiciary Committee, congressman Jerry Nadler, has expressed concerns publicly about the assistance and access act and its compliance with the requirements of the CLOUD Act. Are any of you able to identify what role congress will play in approving a CLOUD Act agreement between the United States and Australia?

Ms Wright : I don't know that we're able to comment on the role of congress, other than to say that the interpretation of the provision may need to be tested in litigation in the US. The US Congress would potentially have to consider the existence of mandatory decryption laws in a foreign country such as Australia, when considering whether to disallow an agreement under the CLOUD Act.

Mr DREYFUS: That's really what I was getting at: that congress—both houses—have a role in determining whether or not to approve any CLOUD Act agreement reached between the United States and Australia.

Ms Wright : That's exactly right.

Mr DREYFUS: So the fact that the chair of the House Judiciary Committee is concerned about our current Australian law is relevant, isn't it? Notwithstanding the view expressed by the US Department of Justice.

Ms Wright : Yes, it is.

Mr DREYFUS: Could you outline the Law Council's key concerns with schedule 5 of the assistance and access legislation? That's the provision that deals with compulsory assistance to ASIO, an aspect that's received much less attention. In the course of explaining that, could you perhaps say to what extent your concerns have been addressed in recommendations by the Independent National Security Legislation Monitor?

Ms Wright : The INSLM's recommendations 9, 10 and 20, combined, would address the Law Council's concerns to a large degree about the breadth of the civil immunity in section 21 of the ASIO Act, for those who engage in any conduct at ASIO's request for the purpose of assisting ASIO in the performance of any of its functions under Section 17 of the ASIO Act, and also our concerns about the breadth of the civil immunity under section 21A(1) of the ASIO Act. Those are recommendations 19 and 20.

CHAIR: Senator Stoker, do you want to follow up on any of that?

Senator STOKER: No, I think Mr Dreyfus has covered it.

Senator KENEALLY: No, I'm fine, Chair. Thank you.

CHAIR: I think we're sorted on the coalition side as well?

Mr DREYFUS: Can I just come back, Chair? I could have spent a lot longer—you'll all be relieved to know I'm not going to. It's really about picking up the very generous offer from the Law Council that they will put in writing, in a supplementary form, their commentary, as it were, on the detailed recommendations of the INSLM. That relieves me of the need to go through this orally here now.

Ms Wright : Thanks very much; that's an opportunity that we'd really appreciate. Thank you.

CHAIR: If there's nothing further, Ms Wright, then once again I thank you and the Law Council of Australia for your appearance today and for your submission. If you could have that written submission to the secretariat by 10 August that would be appreciated. As always, you'll get a transcription of your evidence and you'll have the opportunity to request any corrections. Thank you again for your time.

Ms Wright : Thank you very much, Chair.

Prof. Leonard : Thank you.

CHAIR: That concludes the hearing for today. I now declare this public hearing closed. Thank you very much.

Committee adjourned at 14 : 30