Review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018
The submission to the Independent National Security Legislation Monitor’s (INSLM) review into the operation, implications and effectiveness of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth) (TOLA Act) was prepared by the Law Council. This statutory review is being conducted by the INSLM following a referral by the Parliamentary Joint Committee on Intelligence and Security (the Committee) made under section 7A of the Independent National Security Legislation Monitor Act 2010 (Cth).
The Law Council notes that the Committee is conducting a concurrent review of the TOLA Act, with the INSLM’s review set to inform that process. The Committee’s review is due to be completed by 30 September 2020.
The Law Council acknowledges that there is significant benefit to public safety in allowing law enforcement authorities faster access to encrypted information where there are imminent threats to national security and in order to prevent the commission of serious criminal offences. The Law Council also acknowledges there is merit in facilitating prompt international cooperation and assistance to deal with serious crimes which occur across multiple jurisdictions.
The primary concern of the Law Council is ensuring the policy objective of the TOLA Act, to increase public safety by providing faster access to encrypted data, are appropriately balanced and that the measures provided in the TOLA Act are reasonable, necessary and proportionate, including by incorporating transparent and verifiably reliable safeguards and controls.
To this end, the Law Council has detailed in this submission what it considers to be the key issues with the framework introduced by the TOLA Act:
- the definition of 'serious Australian offences' and 'serious foreign offences';
- the definition of 'systemic weakness' and 'systemic vulnerability';
- the non-binding nature of the report and assessment by an expert former judge on the decision of the Attorney-General to issue a technical capability notice;
- the absence of judicial approval for industry assistance notices;
- computer access warrants permitting telecommunications interceptions under emergency authorisations;
- the interaction of the TOLA Act with foreign laws; and
- the capacity for reporting by the Commonwealth Ombudsman and the Inspector-General of Intelligence and Security.