SUMMARY OF COMMUNICATIONS ALLIANCE OPENING STATEMENT TO THE PJCIS

REVIEW OF THE AMENDMENTS MADE BY THE TELECOMMUNICATIONS AND OTHER LEGISLATION AMENDMENT (ASSISTANCE AND ACCESS) ACT 2018

Public Hearing Monday, 27 July 2020 – Debate over the appropriateness of Australia’s Assistance and Access Act has been long, passionate, complex and global in nature.

Throughout, this debate has been essentially about how best to balance three undeniably important, but not necessarily complementary, objectives.

These are:

• the need for the security of our telecommunications networks, infrastructure and the communications transmitted across those networks to be protected from unauthorised access or interference;
• the ability of our enforcement agencies to operate effectively in a digital environment where bad actors have increasingly employed encrypted communications to attempt to conceal their activities from authorities; and
• the preservation of law-abiding citizens’ enjoyment of individual rights and freedoms, particularly the right to privacy and security of their private communications.
  

When attempting to balance these objectives, we have to be mindful of the risk that the legislation may generate unintended consequences, including the creation of new avenues for cybersecurity threats, for example through the weakening of encryption. The creation of such new avenues could not only pose dangers to individuals and the functioning of our digital society, but also undermine Government’s own ability to combat external threats and risks, as Atlassian mentioned earlier, damaging Australia’s growing, export-oriented technology sector.

From the outset, the legislation helped amass a very broad coalition of stakeholders, concerned that the provisions were disproportionate, dangerous, impractical and lacking in sufficient control and oversight of the activities of agencies.

The coalition included Australian and overseas members of civil society, academia, the cyber safety community and the communications and technology sectors.

While the legislation served to unify this alliance, it also drew a divide between alliance members, enforcement agencies and relevant Government departments.

Many amendments to the legislation have been proposed. Many of these were, in our view, well-considered and soundly based on experience from leading experts in communications network security. Very few of them were taken up.

During the three or more years this legislation has been in development and under scrutiny, (including via the good work of the PJCIS) and during the period of its passage through Parliament and time in the statutes, it has not proved possible for all parties to land on a sensible middle ground – a well-crafted amending package that does the best job possible of reconciling the competing objectives, we mentioned earlier.

We believe that the INSLM – in what he described as the most complex inquiry he has undertaken in the role – has constructed a package, within the recommendations of his report, that takes us closer to the desired sensible middle ground.

The inquiry, report and recommendations demonstrate the independence with which the INSLM and his team have approached the challenge and offer a path to a solution that almost certainly does not meet 100% of the aspirations of any of the stakeholder groups (including ours), but takes account of the legitimate priorities of all of those groups.

We support the INSLM’s report and the suite of recommendations contained therein. Nevertheless, it is useful to call out some recommendations as they have featured prominently in the public and/or stakeholder debate and which go more to the broader functioning of the assistance framework:

• Perhaps most importantly, his recommendations (that is recommendations 3 to 6), if implemented, would for the first time provide for independent judicial oversight, authorisation and review of the requests and demands being made by enforcement agencies under the Act.
• Also key are recommendations 8, 9 and 10, which, if implemented, would largely address the present dangers of lack of definitional clarity around the prohibited effects of agency requests. These recommendations also address a serious concern that the relevant powers give more discretion to enforcement and national security agencies than is reasonably necessary for the intended purpose, including scope to act in ways not contemplated or intended.
• Recommendation 7 would assist with allaying concerns of proportionality by raising the threshold for offences to which assistance requests relate from three to seven years.
• Recommendation 11, which by and large ensures that requests are being directed at an organisation rather than an individual employee, is key to not only improve on the practical challenges of the current legislation but also to limit unnecessary secrecy.
• Finally, we warmly welcome the Monitor’s recommendation 24 to amend the legislation to allow future own motion reviews by the INSLM. The deep expertise and experience of the institution of INSLM in the area of national security legislation ought to be harnessed where required to ensure that the three competing objectives remain adequately balanced in the future. In the same vein, we welcome recommendation 30 to allow disclosure of information to the public when this is in the national or public interest
  

We hope that after due consideration, the PJCIS will be able to endorse the recommendations and will urge all political parties to implement them through the Parliamentary process.

We note that nbn™ is a member of Communications Alliance but has not been involved in the preparation of our submission and statement.