INSLM Review of the Telecommunications and other Legislation Amendment ( Assistance & Access) Act 2018 ( TOLA Act)
The Parliamentary Joint Committee on Intelligence & Security (PJCIS) has referred for my review the TOLA Act. The PJCIS has requested that I specifically consider whether the Act achieves an appropriate balance: whether the Act contains sufficient safeguards for protecting the rights of individuals and remains proportionate and necessary.
In conducting this review, I will engage closely with industry, civil society and government agencies through a variety of consultations, publicly and privately.
This is the first referral to the INSLM by the PJCIS under s 7A of the INSLM Act. The INSLM is requested to report by March 1 2020
Overview of the Act
The Act comprises five schedules which introduce measures to better deal with increasingly serious challenges posed by ubiquitous encryption. Although Schedule 1 has received the most public attention, the INSLM is required to examine all five schedules and welcomes submissions on all schedules.
Schedule 1 establishes a suite of ‘industry assistance measures’ that permits intelligence and law enforcement agencies to both request and compel industry to provide technical assistance to manage these challenges.
Schedule 2 enables federal, state and territory law enforcement agencies to obtain covert computer access warrants when investigating specific Commonwealth offences.
Schedules 3 and 4 amended the search warrant framework under the Crimes and Customs Acts, enabling law enforcement agencies to collect evidence from electronic devices.
Schedule 5 provides for new powers which enable ASIO to compel a person to provide assistance in accessing data held on a device. It also provides that where a person has voluntarily provided ASIO assistance, they may be conferred immunity from civil liability associated with that assistance.
In response to a freedom of information request, the Department of Home Affairs released an Interim Guide for Agencies: Security, Intelligence and Law Enforcement which provides additional information on how the Department intends for the Act to be operationalised.
The INSLM welcomes the participation in the review of interested persons and institutions on this matter for the INSLM’s consideration. Submissions are requested by Friday, 13 September 2019. Submissions received after this date may not be considered for this review.
Further details about the review, including how to make a submission, are available on this website. Submissions received will be posted to the INSLM website, provided the author of the submission has consented to its publication and there is no other reason not to publish the submission (for example, if publication could raise legal issues).
Media Releases and other Statements
"Independent review of encryption legislation commences", 19 August 2019
"Submissions to Encryption Review Extended Until 1 November 2019", 7 October 2019
Public hearing(s) will be held in due course. Details will be posted here closer to the date.