Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

The Greens will support the Telecommunications Amendment (Repairing Assistance and Access) Bill 2019, but it has to be said that neither the government nor the opposition have covered themselves in glory in regard to the toings and froings leading us up to this day. In fact, the actions of both the government and the opposition on these matters have been at times quite reprehensible, and we Greens say, 'A pox on both your houses.'

It shouldn't have come to this. It shouldn't have come to where we are today. The government should not have proceeded with the legislation as it did, knowing full well the recommendations of the Parliamentary Joint Committee on Intelligence and Security, but neither should Labor have rolled over and allowed the government to tickle their collective tummy on this issue. Labor talked tough on the legislation that this bill seeks to amend, the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, voicing their opposition and tabling five amendments in the Senate. But then, as we have seen before, when push came to shove, Labor capitulated and voted the bill through without even bringing on their amendments for debate and decision here in the Senate. Neither should Minister Cormann have made the commitments that he in fact did make—and, on my advice, those commitments have been accurately quoted by Senator Keneally in this debate—if he did not intend to stand by them. I mean, fair dinkum! No wonder people turn off politics and are turning off politics in absolute droves at the moment, because they look up here and they genuinely believe that they cannot trust a single word that any of us says.

It has to be put on the record that what's happened on this legislation is a small but important example of the kind of problem that Labor's propensity to collapse at the first sign of political pressure from the LNP on national security matters is causing in Australian politics and the problems it is causing in our society in terms of the ongoing erosion of precious rights, freedoms and liberties.

What happens is this: when Labor capitulates, the law is changed according to the desires of the LNP. Remember they are a command-and-control political party. Their rhetoric of freedom and liberty simply does not stack up when you put it against the suites of legislation they continue to bring into this place. They are a command-and-control party that has led the charge to erode fundamental rights, freedoms and liberties in this country and has led the charge on the dangerous path down the road to a police state in Australia.

And what happens when Labor capitulates, as it does all too often, is that the law is changed and that resets the starting point for the next debate. In the meantime, we've lost more of our rights, more of our freedoms, more of our liberties. A classic example of this—not context of national security or rights and freedoms but in the broader political context—was Labor supporting the over $50 billion worth of tax cuts that the government legislated post election last year. In doing so, they locked in those tax cuts for the billionaires. They were tax cuts for the superwealthy in this country. The reason that the Leader of the Government in the Senate, Minister Cormann, was so delighted with that capitulation by Labor is that he knows that there is somewhere between Buckley's chance and no chance whatsoever that Labor will go to the next election with a policy of increasing taxes, so we are stuck with the billionaires' tax cuts because Labor capitulated.

I go back to this legislation. It contains the five 2018 amendments that Labor tabled but did not propose for debate or decision and which the government promised to consider in 2019 and then went back on its word and didn't. Of course, in addition to that, as Senator Keneally has explained, it introduced judicial authorisation requirements. So, in brief, this bill seeks to restrict access to the act's powers by state and territory law enforcement agencies, remove the ability of the Minister for Home Affairs to edit and delete information in reporting and, as I indicated a moment ago, introduce a judicial authorisation requirement for the deployment of certain powers. In the main, these amendments are consistent with recommendations made by the Parliamentary Joint Committee on Intelligence and Security, which, as all members would know, is a closed shop with only Labor and Liberal members. At that time, it had a Liberal chair, so it's very interesting that the government has made it very clear that they don't support this legislation. I'll say that again. Most of these amendments were supported by the PJCIS, which at the time had a chair from the Liberal Party.

The Assistance and Access Act is an absolute shocker. These amendments will rasp a few of the rough edges off that legislation, but they certainly, in the view of the Greens, do not go far enough. That act is an act that with a minimum of oversight gives the government power to force technology companies to deliberately introduce targeted weaknesses into their software and their devices. The legislating of state-sponsored back doors and malware is truly and frighteningly Orwellian. And, as we see so often in this place and in parliaments around the country, there is a very high risk of unintended consequences and of legislative measures being utilised for aims that were not foreseen by the legislation. I'll just use the metadata retention laws as a classic example of how this can sometimes roll. Remember, metadata retention was sold—again, a capitulation by the Labor Party—by the government as something we needed to fight terrorists, yet here we are a few years down the track and the metadata that has been retained as a consequence of that legislation has been used by local governments to bust people for having unregistered pets. This is the problem when you create these powers. This is the problem when you pass such draconian legislation—the things that you thought needed addressing are actually not the issues that end up being addressed. To have people's metadata that has been compulsorily retained by telecommunications companies as a result of the metadata retention legislation used by local governments to bust people for having unregistered pets is as extreme an example of scope creep as I can remember seeing in my now well over 15 years in politics.

Not only does this act—that is, the original act passed by the government with Labor's support—attack the fundamental rights of people to privacy and the security of Australia's digital economy and our community; it also dealt a significant blow to Australia's tech sector. With Australian companies and coders forced to write the snitch ware, Australian based tech companies are losing sales and other commercial opportunities. Many are actively considering either moving offshore or employing only offshore coders.

The act could also, as warned by Jerrold Nadler, the chairman of the US House Committee on the Judiciary, 'undermine Australia's ability to qualify for an executive agreement under the CLOUD Act,' which is the Clarifying Lawful Overseas Use of Data Act, and I offer as an explanation that that is because the US will only enter into CLOUD Act agreements with 'close foreign partners who have robust protections for privacy and civil liberties.' But, unlike the US and every other liberal democracy in the world, Australia does not have a legislatively or constitutionally enshrined charter or bill of rights. It's a matter of some significant concern to the Greens in this place that neither the LNP nor the ALP took to the last election a policy of delivering on a charter or bill of rights. The Liberals have been consistent in their opposition to it. There are differing views inside the ALP on a charter or bill of rights, and their policy looks pretty good until you read it closely, at which time it becomes blindingly obvious that Labor do not support a charter of rights either. In the last parliament, Labor voted against the Greens motion for a committee to inquire into the form and functions of a charter of rights.

We've seen many hundreds of pieces of legislation that have passed through Australian parliaments this century, delivered in a bipartisan fashion by the major parties, that erode fundamental rights and freedoms in this country. It is, as I said, a matter of significant concern that Australia remains the only liberal democracy in the world that does not have some kind of charter or bill of rights.

The Greens will support this legislation, but in doing so I want to be clear that we share the view of Ms Lizzy O'Shea from Digital Rights Watch, who said of the bill:

These amendments outlined in this Bill are a good starting point, but far from a full solution. Tinkering at the edges of badly designed legislation is not going to solve the underlying problem – that the powers being handed out to law enforcement are poorly designed and infringe on individuals’ privacy and the security of the Australian digital economy and society.

We could not agree more with Digital Rights Watch. Our support for this current legislation does not change the fact that the original bill, passed with bipartisan support in this place prior to the last election, was recklessly rammed through parliament without due consideration by a government fixated on a shuffle down the dangerous path to a police state and an opposition that, sadly, only ever pays lip-service to human rights, to freedoms and to liberties in this country. Australia now, more than ever, needs a charter of rights.