NSW Police says domestic carriers complying with encryption laws but internationals are not

The New South Wales Police Force has submitted 13 non-compulsive Technical Assistance Requests (TARs) to designated communications providers (DCPs) since the enactment of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (TOLA Act).

NSW Police assistant commissioner Michael Fitzgerald told the Parliamentary Joint Committee on Intelligence and Security (PJCIS) the requests were related to investigations into murder, armed robbery, and commercial drug supply and importation.

12 of the 13 TARs were sought for investigations that already had coverage of either the surveillance device warrant or a telecommunications interception warrant, or both.

"The assistance was sought to facilitate the execution of those judicial warrants," he added. "The other TAR related to the examination of property lawfully in police custody relating to a homicide investigation."

TARs are voluntary requests for DCPs to use their existing capabilities to access user communications, while the TOLA Act also allows for Technical Assistance Notices (TANs) and Technical Capability Notices (TCNs), which are compulsory notices to compel communications providers to use or create a new interception capability, respectively.

He said the state police force has not sought a TAN or TCN under TOLA.

NSW Police was appearing alongside the Australian Federal Police (AFP) as part of the PJCIS review of the TOLA Act.  

In its submission to the committee, provided earlier this week, the AFP revealed it had used the non-compulsive TAR process three times between 1 July 2019 and 30 June 2020.

The AFP has also not sought any TANs or TCNs to date, telling the PJCIS that this does not indicate these provisions are not required, rather that it demonstrates the effectiveness of TOLA's "tiered approach".

Fitzgerald said TOLA has "positively" impacted the relationships between NSW Police and some DCPs, calling it an effective tool to drive engagement and confrontation.

Globally, however, discussions and interactions were not so constructive or helpful.

"Our experience with engaging some overseas designated communication providers has been less successful. Those providers viewed their own domestic laws as legislative impediments to their ability to assist the New South Wales Police Force," Fitzgerald said.

Similarly, AFP deputy commissioner of investigations Ian McCartney said a "productive working relationship with the service providers and industry" has meant they are prepared to give assistance under the TAR, negating the need to move to the more compulsive measures.

"We do engage as a matter of course with industry and the fact that all the assistance to-date has been through the Technical Assistance Request regime, being a voluntary regime, demonstrates the value in which that engagement has occurred and that collaboration," superintendent Robert Nelson added.

Liberal MP Julian Leeser raised concerns that the committee was told when the legislation was being rammed through Parliament in 2018 that it was required to battle the threat of terrorism over the upcoming Christmas period, despite the TAR process not being used until mid-2019. 

"My concern and what I want clarification on is specifically, we were told it needed to be passed because of a terrorism threat and I don't get a sense from your submission or your evidence that you used the TAR until at least in the middle of 2019," he asked.

McCartney said there were 11 instances of TARs being utilised in counterterrorism cases but took the question on notice.

Australian Security Intelligence Organisation (ASIO) Director-General Mike Burgess similarly told the PCJIS that TOLA allows for a "well-defined framework" for engagement with industry.

"In many ways, the legislation is a licence to cooperate with industry. Industry engagement has been important to ASIO for a long time," he said.

"The Assistance and Access Act recognised that we need the assistance of a broader range of industry partners, traditional and new."

Burgess said the Act has repeatedly proved important in countering terrorism and espionage investigations. In total, ASIO has used the industry assistance powers fewer than 20 times.

"Always to protect Australians from threats to their security," Burgess said. "And the internet has not broken as a result."

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