On 27 July 2020, the Law Council appeared at a public hearing of the Parliamentary Joint Committee on Intelligence and Security, as part of its inquiry into the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth) (TOLA Act).
Representing the Law Council was President, Ms Pauline Wright, Ms Olga Ganopolsky, Chair of the Privacy Law Committee, Business Law Section. Professor Peter Leonard, Member of the Media and Communications Committee of the Business Law Section, and Dr Natasha Molt, Director of Policy, Law Council Secretariat.
The TOLA Act, passed into legislation in December 2018, made significant amendments to the powers of law enforcement and intelligence agencies in accessing electronic communications content. This includes the ability to compel communications providers to provide certain assistance in accessing content as well as extensions to warrant-based collection powers. The legislation also confers a significant new power on the Australian Security Intelligence Organisation (ASIO), allowing them to grant immunity from civil liability on people who provide it with voluntary assistance on request.
The focus of this hearing was to consider the recent recommendations of Dr James Renwick SC, the third Independent National Security Legislation Monitor (INSLM), as outlined in his report on the TOLA Act handed down 30 June 2020.
Within his report the INSLM made 33 recommendations for extensive amendments to the TOLA measures, 18 of which endorsed recommendations made by the Law Council and found within its submission to the INSLM in November 2019. Significantly, the INSLM endorsed a longstanding recommendation of the Law Council for an independent authorisation process for compulsory industry assistance notices.
The Law Council reiterated its support for the implementation of all of the INSLM’s recommendations, and encouraged the committee to suggest the implementation of several outstanding matters that were not the subject of comment in the INSLM’s report, directed at the inclusion of additional matters in thresholds for the exercise of powers, reporting and oversight mechanisms, fixing ambiguities, and other drafting issues.
On the invitation of the committee, the Law Council will shortly make a further written submission to the committee, providing details of its views on the INSLM recommendations.