SENATOR THE HON KRISTINA KENEALLY
DEPUTY LABOR LEADER IN THE SENATE
SHADOW MINISTER FOR HOME AFFAIRS
SENATOR FOR NEW SOUTH WALES
THE HON MARK DREYFUS QC MP
MEMBER FOR ISAACS
CLARE O’NEIL MP
SHADOW MINISTER FOR INNOVATION, TECHNOLOGY AND THE FUTURE OF WORK
MEMBER FOR HOTHAM
TIM WATTS MP
SHADOW ASSISTANT MINISTER FOR CYBERSECURITY
SHADOW ASSISTANT MINISTER FOR COMMUNICATIONS
MEMBER FOR GELLIBRAND
TUESDAY, 3 DECEMBER 2019
SUBJECTS: The Morrison Government’s broken promise to amend their encryption laws and Labor’s Private Senator’s Bill; PJCIS; the importance of Australian technology and innovation jobs; ACIC legislation.
TIM WATTS, SHADOW ASSISTANT MINISTER FOR CYBERSECURITY: Good afternoon. My name’s Tim Watts, I’m the Shadow Assistant Minister for Cybersecurity and Communications in the Labor Party and I'm really delighted to be joined here by my parliamentary colleagues. Kristina Keneally, the Shadow Minister for Home Affairs, Mark Dreyfus, the Shadow Attorney General and Clare O’Neil, the Shadow Minister for Innovation, Technology and the Future of Work. We're here to right some wrongs. Twelve months ago, the passage of the Telecommunications Assistance and Access regime by the Morrison Government represented a series of failures by this Government. A failure of parliamentary process, a failure of bipartisanship on national security, a failure of the Morrison Government to keep its word and a failure of this building, this Parliament to pass laws that enable our technology sector to grow and to produce the jobs that we will rely on in the future. That's why we're here to introduce a Private Senator’s Bill to try and fix some of the problems that were embedded in the Telecommunications Assistance and Access Act as a result of the failures of the Morrison Government twelve months ago. So I’m very happy to pass on to Senator Keneally who will talk a little bit about the details of what we're doing here today.
KRISTINA KENEALLY, SHADOW MINISTER FOR HOME AFFAIRS: Thank you, Tim and thank you to my colleagues for joining us here today and for their strong support for a decision that the Labor Caucus took this morning and that is to approve a Private Senator’s Bill that I will bring to the Australian Senate in the new year that seeks to fix up the mess that this third term Liberal National Government has created in relation to Australia's encryption laws. Twelve months ago this week, the Government brought to the Parliament a rushed piece of legislation. They insisted that it must be passed in order to prevent terrorist attacks over the December break. They insisted that it must be passed quickly and that there was no time to implement amendments that would implement the recommendations, the bipartisan recommendations, of the Parliamentary Joint Committee on Intelligence and Security. Labor when faced with a choice about whether or not we would support our national security agencies to keep Australians safe over the summer, we decided that we would back our national security agencies to give them these powers but only once, only once, the Leader the Senate, the Leader of the Government in the Senate, Mathias Coleman, stood on the floor of the Senate and gave an assurance that the Government would pass those very amendments when the parliament resumed in February. Well Mathias Cormann did not hold true to his word, the Government did not be true to their word, and those amendments the Government has refused now for Twelve months to bring back to the Parliament. In the meantime, in the intervening months while the Government – in order to avoid having any amendments put forward – have instituted a series of reviews. What has happened? Well, the House Judiciary Committee in the United States has written to Mr Dutton and they have asked Minister Dutton to explain how it is that Australia’s encryption laws could possibly conform with the Cloud Act in the United States. And this is an important and a fundamental question, because the Cloud Act in the United States is something we want to be able to have access to. The Cloud Act actually allows our law enforcement agencies to be able to access data held in the United States. It is a fundamental tool that will allow law enforcement agencies who right now operate under an old treaty arrangement to have to wait up to two years sometimes in the middle of a police investigation to get access to this information. If we were participants in the Cloud Act, that could be short into a few months. Now recently, the Senate actually voted in a motion to urge Minister Dutton to take action in response to the letter by the House Judiciary Committee and to provide that assurance and one way that we can provide that assurance to the United States House Judiciary Committee is to amend the encryption act. Not just with the amendments that were recommended by the PJCIS but also with the judicial authorisation. So the Private Senator’s Bill that we will introduce will include all of the amendments the Government has previously agreed to, as well as additional authorisation of some of the actions that the encryption legislation authorises such as Technical Capability Notices and Technical Assistance Notices. We are taking these steps in order to support our law enforcement agencies. But we are also taking these steps because the amendments would help address some of the concerns raised by the tech sector. The tech sector and Australia has enormous potential and has enormous growth potential, and yet these laws passed in a rush and without proper consideration, have had a very chilling effect on the tech sector in this country. And here to talk about that and some of the challenges that the tech sector is facing under this Liberal National Government is Labor Shadow Assistant – Shadow Minister excuse me – Clare O’Neil.
CLARE O’NEIL, SHADOW MINISTER FOR INNOVATION, TECHNOLOGY AND THE FUTURE OF WORK: Thanks Kristina. Well, a year ago today, the Morrison Government dealt a body blow to our technology companies in this country. Labor today is stepping up and saying that we are going to do the repair work that's required to fix this problem. The question is, is Scott Morrison going to come with us and do what needs to be done to make sure that we are growing and nurturing is critical industry for Australia's future. There are already 700,000 Australians who are in technology related professions; this number could grow considerably over the years to come. What Labor wants to make sure is that we get those amazing benefits that come with the future of work in this great, amazing enterprise of technology that’s springing up around our country, not just pay the cost of the downside of the future of work. Now to do that we have to have a regulatory regime in this country that recognises the enormous capacity and the enormous potential of our Start up sector, of the amazing technology companies that are solving the biggest problems that we face as a country. Malcolm Turnbull came along and popped his head out of the sand in recent weeks and said that innovation is not in Prime Minister Scott Morrison's comfort zone. Well our message to Scott Morrison is this – Government is not about doing what's in your comfort zone. It's about solving the biggest problems in the nation and here we are today, Labor stepping up and saying that we want to work in bipartisanship with the Government to do just that.
MARK DREYFUS, SHADOW ATTORNEY-GENERAL: Yes, I just wanted to make a short point about the role that’s played by the Parliamentary Joint Committee on Intelligence and Security and the disappointing response of the Government to the bipartisan, unanimous report of the PJCIS on this Assistance and Access bill. All of the recommendations in the report, which the committee worked on through the latter weeks of 2018, were unanimous recommendations. The Government said that it accepted all of the recommendations of the Parliamentary Joint Committee on Intelligence and Security and it's a very disappointing result that the Government has not, at any point, implemented all of the recommendations. There's some very significant recommendations that remain unimplemented. It's very good that Labor is able to bring forward in the form of this Private Senator’s Bill something which will in effect provide an opportunity for the Government to keep its word, which is to back in the unanimous recommendations of the Committee. Regrettably, I have to say, that over the course of this year, we've seen an increasing disrespect by this Government for the work that's been done now for almost two decades by the Intelligence Committee in this Parliament. It's got a very long tradition of working towards achieving bipartisan agreement on what changes are needed to security legislation that's brought before it. It would be very much a retrograde step and very disappointing if the Government were, as it is seeming to do, to walk away from that kind of bipartisan use of the Intelligence Committee.
KENEALLY: Thank you Mark. Are there any questions?
JOURNALIST: Won’t the Government just say that because there are still two inquiries into the encryption legislation, one by the PJCIS and one by James Renwick, the INSLM, that it's not the time to be amending the legislation now? What would you say if that's their response?
KENEALLY: Well the Government have already backed these amendments. There is nothing that would stop them from moving these amendments and those reviews, which are not due to report until much later next year, could actually incorporate these amendments which came out of the Parliamentary Joint Committee for Intelligence and Security, which were backed by Liberal Members of Parliament and were committed to be passed by the Leader of the Government in the Senate, Mathias Cormann. But the other point I would make is the Government have already commenced discussions with the United States Government regarding Australia being the next country to have access to the CLOUD Act. Now, if the Government has already commenced those negotiations before the reviews of the encryption act are done, why can't they act when they receive, as they did, a letter from the House Judiciary Committee expressing its concern that our encryption laws do not conform to the CLOUD Act? Now we want to be part of the CLOUD Act, we want to be a part of it as soon as possible, and it's within the Government's remit to make that possible.
JOURNALIST: Margaret Stone, the Inspector General, recently lodged a submission with the PJCIS, still raising more concerns about the way this encryption legislation works, particularly about voluntary assistance orders and compulsory orders and some of the seemingly ridiculous implications, like people not knowing when they're subject to an order, problems with the way it's drafted. I'm just wondering, do these amendments or does this new bill address those problems? Are they still outstanding issues that need to be addressed?
DREYFUS: These amendments are very directly addressing the unimplemented recommendations that the Intelligence Committee reported last year. The reason why the Government agreed to the demands that we made, that there be not one, but two reviews – one to be conducted and that is underway by the Intelligence Committee, and the other by the Independent National Security Legislation Monitor – is because the Government, we thought, had accepted that the legislation was introduced in a rush, considered in a rush, and introduced with, really, lightning speed at the end of last year. That's why we've got these two reviews that are there to make sure that the legislation is the right legislation for the circumstances. But the two reviews were put in place and agreed to by the Government, we thought, on the understanding that all of the other recommendations of the Committee were going to be implemented. That hasn't happened. We are writing that wrong with this Private Senator’s Bill that Senator Keneally is bringing to the Parliament.
JOURNALIST: The implication of what you’re saying is basically you got snowed, not only by the Government, but by the agencies as well. Is that a fair comment?
DREYFUS: The Government has failed to keep its word. If you want to call that “being snowed”, then you can call it “being snowed”, but that's what's happened here. The Government gave an undertaking; it has failed to keep that undertaking.
JOURNALIST: Do you hold the agencies responsible at all though? You said that you acted last year in good faith because the agencies were asking for these powers.
DREYFUS: Not at all. It's entirely a matter in the control of the Government. And it's a very important principle at stake here, that when the Intelligence Committee is brought in to do a review, and a bipartisan unanimous report is delivered, recommending substantial changes to the legislation, and the Government accepts, or says that it is accepting the recommendations, then it must implement what it said and it has failed to do that, on this occasion.
JOURNALIST: A lot of the warnings that you're echoing now were there at the time though and the tech sector was very clear at the time. In hindsight, would you have been better off saying, “No, we don't trust you necessarily” – to the Government” – “we are not going to legislate until these amendments are inserted into the legislation”?
DREYFUS: Labor always tries to operate in an atmosphere of good faith, tries to reach bipartisan agreement with the Government on these questions of national security. We have to operate on a good faith basis. Regrettably, on this occasion, the Government has failed to keep its word. We're trying to hold the Government to that word.
JOURNALIST: In relation to the tech industry, the Australian tech industry, do you get a sense of any damage to the reputation over the past 12 months? What they were foretelling has it come to pass?
O’NEIL: Yeah. I have spent the last five months meeting endlessly with Startup CEOs, with technology companies, with people who work in this very important sector in our economy. And the very first thing that is raised with me in almost every one of those conversations is the impact that this bill is having on them. Remember, we're in a global competition here where lots of technology companies could domicile, in any country around the world, and we need to compete for those businesses to set up here so we can provide good jobs for Australians. This was a body blow to the tech industry in this country. Labor entered into this legislation because we knew that, just with the passage of a few months, we would be back here fixing the bill. Now, the Government has broken that promise. We are stepping up to the job and saying that we need to repair this. The idea that we are going to wait for one or two or three years before we try to fix the egregious aspects of this bill is simply unacceptable. These tech jobs are getting created all over the world, we need them here so that my children and your children are going to be able to share in this prosperous future, but we're not going to do it if we have regulation that comes through the Parliament in this manner.
JOURNALIST: Senator Caucus today agreed to the Australian Crime Commission…
KENEALLY: Sorry, just before we go, that’s a very important question and I am happy to answer it but are there any other questions on this bill?
JOURNALIST: In your discussions with the Government, do you get a sense that they are actively dragging their feet on amending – they don't want to amend or is it just that kind of apathetic and not paying much attention to this area at the moment?
KENEALLY: It's extraordinary the Government does not feel the sense of urgency about fixing up the encryption laws that were passed last year. One, they gave us their word they would do it. They broke that promise. Two, they've had a letter from the House Judiciary Committee saying, ""we're not sure that you conform to the Cloud Act. How can we let you access data that we hold in order to solve crime? We might have to hold you back on that."" Surely the Government thinks that's urgent. Surely the Government wants to act on that. The Government, this third term, Liberal, National Government, seems to have found itself in office with absolutely no agenda, absolutely no plan for governing and absolutely no sense of what they're going to do next. Since they failed to fix this problem, we are going to use the forums available to us, and that is to start in the Senate to see if we can get the support for this Private Senator’s Bill. I will note, as I said earlier, I will note that the Senate passed a motion that related to the very issues that this Private Senator’s Bill seeks to address and I look forward to speaking with my crossbench colleagues about this bill in the weeks ahead.
JOURNALIST: Did Labor have anything to do with that warning from Jerry Nadler – was there any collusion there?
KENEALLY: No [laughs].
DREYFUS: We might be a powerful political party but our influence in the United States Congress, the House Intelligence Committee, chaired by Congressman Nadler it doesn't quite extend that far.
JOURNALIST: On the Crime Commission, do you have misgivings around the retrospective nature of this? And why legislate now ahead of the High Court decision before the court has ruled?
KENEALLY: So I'd like to acknowledge that the Government in both the Minister for Home Affairs and the Attorney General have been cooperating quite agreeably and fully with Labor in our requests for information about the nature of the legal challenge that is currently before the High Court to the ACIC's powers, and that they have been able to provide us with a significant range of information to answer the questions that we had about what is being proposed. As we understand it, the nature of this legal challenge would, if it were successful, we understand there is a very high likelihood that the legal challenge will be successful, would we leave the ACIC exposed, in terms of its current operations, as well as the validity of convictions based on its previous operations and investigations. We also understand that the appellant submissions for that are due on the 6th of December – that is this Friday – and the Government, acting Solicitor General's advice, would like to have the legislation in place in order to safeguard the validity of current and ongoing ACIC investigations. Let me be clear that Labor supports the work of the ACIC. We recognise the Australian Community Intelligence Commission plays an important role in ensuring that Australians are able to rely on their work when it comes to outlaw motorcycle gangs and serious organised crime and we will act in such a way as to support and protect their ongoing investigations.
JOURNALIST: Just quickly back on the encryption laws and fixing it up later – there's an awful lot of national security legislation that is having to be fixed up…
JOURNALIST: We're seeing time and time again this legislation is coming in in a form that's really not ready and the Government is either accepting or sometimes not. But things need to be changed. Is it time for Labor to stop being quite so agreeable on national security legislation and not allowing these things to pass, not just this, but other national security legislation that needs to be fixed up later?
KENEALLY: Let's observe that Labor has and will always seek to have a bipartisan approach to national security but we have relied upon and worked through the Parliamentary Joint Committee on Intelligence and Security to improve national security legislation. And if you look back over the past few years, there are a number of cases where amendments have been made, changes have been made as a result of changes we have advocated in the PJCIS. We will continue to work through the PJCIS and I will acknowledge that there are certain inquiries in the PJCIS that will not be finalised this year because Labor has continued to work collaboratively and seeking to do so in a bipartisan way with the members of that committee to get the right approach. Thanks everyone.