Labor is today set to introduce amendments to Australia’s controversial encryption access legislation, calling for more oversight and more proportionality in the use of the powers that the tech industry, privacy advocates and human rights groups have railed against since they were proposed in 2018.
The laws, which allow government authorities to compel telecommunication providers to provide “backdoor” access to encrypted messages, passed parliament in late 2018 with the support of Labor with the agreement that amendments be debated when parliament resumed in 2020.
The promise is on record in Hansard but more than a year later there have been no significant changes to the laws or debate allowed by the government. Labor vowed to reform the “terrible” laws in its unsuccessful election campaign last year.
Today Labor will introduce amendments through a private member’s bill from Senator Kristina Keneally.
The Deputy Leader of the Opposition in the Senate says the amendments will implement the bipartisan recommendations of the Parliamentary Joint Committee on Intelligence and Security which scrutinised the bill over a year ago, recommending several changes to the laws.
“After 14 months of broken promises, the Morrison Government today must vote to fix their broken encryption laws that are hindering both Australia’s tech sector and law enforcement agencies,” Keneally said in a statement this morning.
“Today is a test for the Morrison Government – will they stand up for the 700,000 Australians working in our technology industry and Australia’s law enforcement agencies… or continue with their broken promises and do-nothing plan?”
Labor is seeking to further clarify what security agencies can request from telecommunication providers including only allowing things which are “practical and technically infeasible”, and that any assistance notices or requests be reasonable and proportionate, with more judicial authorisation to ensure so.
The opposition also wants to remove the current provision which allows government ministers to edit and delete information from the reports by the Commonwealth Ombudsman on the use of the powers.
Labor says it has wide support for its proposed changes from industry and civil society groups. But some privacy advocates still want the laws scrapped altogether.
The horse has bolted
Dr Monique Mann, a Senior Lecturer in Criminology at Deakin University and privacy advocate says Labor’s amendments are welcome but the entire process could have been avoided had the opposition shown more resilience in 2018.
“The entire process could have been prevented if Labor took a principled position during the parliamentary process – which they didn’t do – and refused to introduce the law back at the end of 2018,” Mann told Which-50.
The technology expert and privacy advocate argues the best outcome would still be for the controversial legislation to be repealed. “I know that that’s not going to happen and what they should be doing is implementing additional protections.”
Mann says the access powers lack adequate oversight and judicial warrant requirements and notes they appear not to be being used as advocates said they would be.
The legislation does require a yearly report on the use of the powers, and so far, Mann says, the reporting suggests the powers aren’t being used for what its advocates said was its primary goal: fighting terrorism and other serious crime.
Last month it was revealed the powers had been used seven times in the first six months, mostly for cybercrime and telecommunications offences. Conspicuously absent was terrorism, Mann told Which-50.
“That was the main argument that the government used when they rammed this legislation through parliament, that they needed it to investigate terrorism offences. So here we see that what the power was actually being used for is not terrorist offences,” Mann told Which-50 when the report was released.
“What has been released in this report shows that it’s actually at odds with the justification for the introduction of the powers, which I find very concerning.”
The laws are still the subject of a PJCIS inquiry with a report set to be delivered in September.