1.1
Section 187N of the Telecommunications (Interception and Access) Act 1979 requires the Parliamentary Joint Committee on Intelligence and Security (the Committee) to review the amendments made to Commonwealth legislation by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (TOLA Act) and to complete its review by 30 September 2020.
1.2
An overview of the legislation and discussion of the history of the inquiries related to the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 and the TOLA Act is contained in Chapters 2 and 3 of this report.
Overview of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018
1.3
The Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 amended a range of Commonwealth legislation including:
Telecommunications Act 1997;
Telecommunications (Interception and Access) Act 1979;
Surveillance Devices Act 2004;
Mutual Assistance in Criminal Matters Act 1987;
Australia Security Intelligence Organisation Act 1979; and
for the stated purpose to ‘introduce measures to better deal with the challenges posed by ubiquitous encryption’.
1.4
The amending Act contains five schedules. Schedule 1 contains amendments to provide a series of ‘industry assistance measures’ to both lawfully request and compel industry to provide technical assistance to security agencies in response to the challenges of ubiquitous encryption.
1.5
Schedule 2 establishes powers which enable federal, state and territory law enforcement agencies to obtain covert computer access warrants when investigating certain federal offences.
1.6
Schedules 3 and 4 amends the search warrant framework under the Crimes Act and the Customs Act to expand the ability of criminal law enforcement agencies to collect evidence from electronic devices.
1.7
Schedule 5 clarifies that where a person voluntarily provides assistance to ASIO, that person can be conferred immunity from civil liability. It provides for new powers which enable ASIO to compel a person to provide assistance in accessing data held on a device.
1.8
The details of the schedules contained in the TOLA Act will be discussed in detail in subsequent chapters.
Conduct of the Inquiry
1.9
The Committee announced its inquiry by media release on Thursday, 4 April 2019, just prior to the dissolution of Parliament for the 2019 Federal election, and invited submissions from interested members of the public. This action allowed submitters the time during the election break to provide submissions on the review’s terms of reference.
1.10
The Committee resolved to focus on:
the threshold, scope and proportionality of powers provided for by the Act;
authorisation processes and decision-making criteria;
the scope of enforcement provisions and the grant of immunities;
interaction with intelligence agencies other powers;
interaction with foreign laws, including the United States’ Clarifying Lawful Overseas Use of Data Act;
impact on industry and competitiveness; and
reporting obligations and oversight measures.
1.11
Following the Australian Federal election on 18 May 2019, the Committee of the 46th Parliament again formally adopted the review and received 35 submissions and 13 supplementary submissions from industry, government, academia and civil society which are listed at Appendix A.
1.12
The Committee held public hearings on Monday, 27 July 2020 and Friday, 7 August 2020 and received a private briefing on Thursday, 18 June 2020. A list of witnesses who appeared before the Committee at public hearings is included at Appendix B.
1.13
Copies of the submissions, the transcripts from the public hearing and links to additional supporting documents can be accessed at the Committee’s website.
Report structure
1.14
This report comprises seven chapters:
This chapter, Chapter 1, introduces the relevant legislative provisions enabling the Committee to undertake its inquiry as well as information regarding the conduct of the inquiry.
Chapter 2 provides a background on the previous inquiries conducted by the Committee into the Bill and the Act, as well as an overview of the inquiry conducted by the Independent National Security Legislation Monitor (INSLM), and associated report.
Chapter 3 provides an overview of the current technological landscape leading to the introduction of the Act, and examines the Act’s compatibility with the US Clarifying Lawful Use of Overseas Data Act and other international obligations.
Chapter 4 examines remaining concerns regarding the Schedule 1 industry assistance framework, while providing policy, law enforcement and intelligence perspectives of the provisions.
Chapter 5 considers Schedules 2 to 4, and remaining issues raised by the Inspector-General of Intelligence and Security (IGIS) and industry organisations. The chapter discusses some ambiguity within the provisions and seeks to recommend clarifications, while asserting the necessity of agencies maintaining the ability to conduct limited telecommunications interception to carryout computer access warrants.
Chapter 6 considers the two new powers provided under Schedule 5 of the Act to the Australian Security and Intelligence Organisation (ASIO). The powers relate to the provision of assistance to ASIO in either a voluntary or compelled manner. The chapter also examines the conferred immunity from civil liability on persons aiding ASIO.
Chapter 7 provides an overview of the reporting and oversight obligations and considers whether the role of the IGIS and the Committee ought to be extended to other national intelligence agencies.