Spy agency director says there are ‘cases afoot at the moment where this legislation will directly assist’

This article is more than 1 year old

This article is more than 1 year old

New law enforcement agency powers to require telcos to help break encryption are “without question” urgent, the head of Australia’s spy agency has said.

Asio director Duncan Lewis gave the evidence on Monday after the Morrison government demanded a parliamentary inquiry expedite its consideration of the bill to help combat possible threats of terrorist attack over the Christmas holiday period.

At the conclusion of the parliamentary joint committee on intelligence and security hearing, the shadow attorney general, Mark Dreyfus, suggested it could agree to an interim report to confine the new powers to counter-terrorism agencies while considering further safeguards and extension to other bodies.

But after four hours of closed classified briefings and two hours of public evidence the committee chair Andrew Hastie announced the committee is continuing its inquiry on a bipartisan basis, with no change to scheduled hearings on Tuesday and Friday this week.

The government’s telecommunications assistance and access bill, first unveiled in August, contains powers to require tech companies to build new capabilities or provide technical assistance to law enforcement agencies’ surveillance activities, such as breaking encryption.

On Thursday Scott Morrison and the home affairs minister, Peter Dutton, called on the committee to expedite its inquiry to allow the bill to pass in the final sitting fortnight of parliament.

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On Monday, Lewis suggested the bill should be passed “as quickly as it can be”, citing “cases afoot at the moment where this legislation will directly assist”.

Encryption technology is affecting 90% of Asio’s priority cases, resulting in a “gap that’s been developing for some time” which is harming the agency’s capability, he said.

Lewis said that he had advocated for the capabilities in the bill since he took the job in September 2014 and the call had got “progressively more important” due to the increased use of encryption, which is set to become “ubiquitous” within a few years.

Asked about the urgency of the bill, Lewis said there is a “general heightening of the threat level over Christmas” but the spy agency had no evidence of a particular attack in a certain place or time in the upcoming holiday season.

Lewis said that passage of the legislation would be “beneficial” but the issue of whether to pass it before Christmas was ultimately a “matter for the parliament and the government to decide”. “I really don’t have a position on that.”

The Australian Federal Police commissioner, Andrew Colvin, described the operational need for the bill’s capabilities as “very real and continuous”.

Colvin said encryption had been a “game-changer” in investigations and while the bill is “not a panacea” it would go a long way to assist police where they already had warrants to intercept communications.

Colvin said there was also an increase in organised crime and narcotics offences over the “summer party season” but the difference was marginal because of the “very high tempo, constantly” of those sorts of offences.

The Labor senator Jenny McAllister noted that cutting short the inquiry would “come with some costs” – including the greater likelihood of “unforeseen consequences without proper scrutiny” and amendments.

At the conclusion of the hearing Dreyfus suggested the committee could recommend agencies with counter-terror functions gain new powers in an interim report, while reserving its decision on amendments and powers for other agencies.

He noted that 21 agencies have powers to intercept communications but not all have counter-terror functions, such as anti-corruption bodies.

The head of the home affairs department, Michael Pezzullo, said that course would require amendments to carve out other agencies, and the debate would likely “circle back to the same points of principle” when it considered their powers at a later date.

“If that’s what committee decides ... it’s not a complex drafting change, no,” he replied.

The Liberal chair of the committee, Andrew Hastie, noted the interception agencies also need the powers for counter-espionage efforts.

In previous hearings the committee has heard concerns from tech giants and device manufacturer Cisco that the bill will introduce “systemic weaknesses” in electronic devices.

The Australian Human Rights Commission warns it harms the privilege against self-incrimination and the Communications Alliance has argued it could extend the reach of meta-data retention laws.