Subject to the comments below, Labor members support the Committee’s report and recommendations.
First, Labor members believe – as we have long believed – that there must be a robust and independent authorisation process for the powers contained in the Assistance and Access Act. For example, we think that technical assistance notices and technical capability notices should be issued, or at least approved under a UK-style “double-lock” mechanism, by a current or former senior judicial officer.
At paragraph 7.90, Liberal members of the Committee have come close to agreeing with us, writing that “there would be benefits to a ‘double-lock’ model, given the success of the Investigatory Powers Commissioner’s Office model in the United Kingdom, and also notes that a similar process has been recommended for the international production orders process which has been considered by the Committee”.
However, Liberal members of the Committee go on to say that “appropriate weight should be given to the evidence of the Department of Home Affairs that the proposal would be a departure from the usual processes of the AAT”.
With respect, we do not know what “evidence” Liberal members are referring to. The Department of Home Affairs has offered the Committee no compelling rationale – let alone evidence – for declining to adopt, at the very least, the Independent National Security Legislation Monitor’s proposal for a new Investigatory Powers Division within the Administrative Appeals Tribunal which would be tasked with authorising the use of the powers introduced by the Assistance and Access Act.
Second, Labor members strongly disagree with the rejection by Liberal members of the Independent Monitor’s recommendation to extend the industry assistance powers to state and territory anti-corruption bodies. As the Monitor wrote in his report on the Assistance and Access Act:
The rationale for the extension of these powers to such agencies is clear. They are already empowered under other legislative schemes to exercise various investigative powers, including, for instance, the power to make requests under s 313 of the Telecommunications Act and the power to obtain warrants to lawfully intercept communications under the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act). Indeed, the real question appears to be: why should integrity agencies be excluded from the exercise of these powers? There has been no real opposition to them being included.
Labor members note that the original version of the Assistance and Access Bill extended the industry assistance powers to state and territory anti-corruption commissions. And in early 2019, a few months after the passage of the Assistance and Access Bill, the current Government introduced Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019 – the primary purpose of which was to extend the industry assistance powers to state and territory anti-corruption commissions.
In other words, the position of Liberal members is at odds with the position taken by the Morrison Government in late 2018 and early 2019 – but which the Morrison Government appears to have now walked away from.
So, what has changed?
More than 1,000 days after promising to establish a federal anti-corruption commission, the Prime Minister has not even introduced a bill into the Parliament. Instead, the Prime Minister has launched an extraordinary series of improper attacks on the NSW Independent Commission Against Corruption – and on anti-corruption bodies more generally.
Against that background, the fact that the Government has walked away from its position that anti-corruption bodies should have access to the industry assistance powers appears to be politically motivated (noting that it could undermine the Prime Minister’s misplaced, misleading and hysterical criticisms of the NSW ICAC if he followed through on his now-forgotten commitment to hand new powers to that very body).
As the Independent Monitor noted in his report, “integrity commissions identified concrete disadvantage that flows from their exclusion from the power to issue industry assistance notices”. Liberal members have offered no explanation for their refusal to address that “concrete disadvantage”.
Senator Jenny McAllister
Deputy Chair
Hon Mark Dreyfus QC MPMr Peter Khalil MP
Senator the Hon Kristina KeneallyDr Anne Aly MP