‘Encryption’ legislation: AFP calls for end to its oversight role for state and territory police

First AFP assistance requests under legislation still being finalised

The Australian Federal Police has called for the its oversight of Technical Assistance Notices (TANs) issued by state and territory police forces to be scrapped. 

TANs are one of three levels of assistance created by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (TOLA Act). They are a direction to a communications provider that that provider carry out certain acts to assist a law enforcement agency.

Technical Assistance Requests (TARs) are a request for a provider to voluntarily perform certain acts, while a Technical Capability Notice (TCN) is a government-issued direction for a provider to “do acts or things directed towards ensuring that the provider is capable of giving certain types of help to ASIO or an interception agency” — essentially implementing new capabilities required by an authorised agency.

The TOLA Act, including 183 amendments made by the government as it was rushed through parliament on the last sitting day of 2018, is currently the subject of an inquiry by the Parliamentary Joint Committee on Intelligence and Security (PJCIS).

The legislation was passed after Labor withdrew a range of amendments it had said were necessary, on the proviso that the government would revisit the legislation in the new year. The deal between Labor and the Coalition followed strident calls by government ministers to pass the legislation before Christmas so that the security agencies could employ the provisions to head off terrorist threats or other serious criminal activities.

One of the last-minute amendments made was the introduction of a measure requiring the AFP commissioner to sign off on TANs issued by state and territory police, with the commissioner to apply the same criteria to a TAN as if the AFP was issuing it.

The Department of Home affairs in a submission to the current PJCIS inquiry that it had “become aware of serious concerns relating to the sovereignty of co-equal policing agencies and questions relating to the proprietary of imposing federal control over an area of law administered by State and Territory authorities”. 

Having the AFP commissioner sign-off on TANs would potentially “reduce the effectiveness of the powers for State and Territory police (or even the willingness to use the powers) duplicate existing requirements and create an undue resource and process burden for both the AFP and State and Territory police forces”.

The AFP said it supports the Home Affairs position on the measure. “The AFP is concerned that this role could interfere with the independent operational decision making processes of policing agencies and may be unworkable,” its submission states.

“A co-ordination as opposed to approval role for the AFP Commissioner is more appropriate in relation to State and Territory Police use of TANs,” the AFP said.

Powers in use

In its submission Home Affairs said that “Commonwealth law enforcement and national security agencies have used the powers in the Act to support operations and investigations”.

“Implementation of the Act and its measures is currently underway,” the department said. “While significant progress has already been made, the efforts of the Department to ensure the regime is implemented effectively and reasonably are ongoing.”

The department, in conjunction with the AFP, has been training NSW Police and Victoria Police in use of the new powers. Training is expected to be delivered to other state and territory police forces this month.

According to the AFP the controversial legislation has “provided significant operational benefit to address a number of emerging and urgent operational issues”.

The AFP said that the legislation has “provided industry with the legal confidence to productively engage on potential technical options which will lead to TARs being finalised.”

Schedule 1 of the legislation, which contains the provisions for TARs, TANs and TCNs, “has accelerated the collaboration previously being experienced and this has been of significant value to the AFP’s investigative effectiveness,” the law enforcement agency said.