Denham Sadler
November 30, 2018

Labor rejects encryption bill

Policy

Labor rejects encryption bill

Scott Ryan: The encryption bill will leave politicians powerless to claim privilege

The Opposition has rejected the federal government’s calls for its contentious encryption bill to be passed before Christmas, labelling it “unworkable” and that it  would “potentially weaken Australia’s security”.

Labor senator members of the Parliamentary Joint Committee on Intelligence and Security will release a dissenting report on the Assistance and Access Bill, which grants major new powers to law enforcement and agencies to compel tech companies to provide access to encrypted data.

It marks the first time the committee has failed to produce a bipartisan verdict in a decade.

In a letter to attorney-general Christian Porter, Shadow attorney-general Mark Dreyfus has also confirmed that Labor will not be passing the legislation next week - the last sitting week of the year, despite Prime Minister Scott Morrison “insisting” on it.

“The potential implications this has for weakening online security for all Australians conducting legitimate, everyday business are profound, and surely warrant further consideration. We will not be forced into a situation where the Parliament passes a bill that is unworkable and potentially weakens Australia’s security,” Mr Dreyfus said.

Labor’s announcement means the legislation won’t be passed by Parliament this year, with the House of Representatives not sitting again until early February.

The Opposition has maintained that more time is needed to consider the implications of the legislation and to listen to an irate industry on its negative impact. Last week, Labor floated the idea of passing a compromised version of the bill that only allows agencies to request access to encrypted data for the purpose of anti-terrorism operations, but this was rejected by the government.

“Labor considers it is a workable compromise considering the extraordinary pressure put on the committee to cut its scrutiny of the bill short. Your government’s refusal to even work with this offer - despite written assurances of support - is extremely disappointing. To be clear, this would have clearly met the stated needs of the security agencies, while allowing the Committee to identify deficiencies in this rushed legislation, which could only result in recommendations to strengthen it, not weaken it,” Mr Dreyfus said.

The Opposition slammed Mr Morrison and home affairs minister Peter Dutton for “politicising” national security, and pressuring the committee to rush through the bill.

“The PJCIS has worked cooperatively under Prime Minister Abbott and Prime Minister Turnbull. Under Prime Minister Morrison, its processes appear to have broken down thanks to the interference with the committee by key ministers in your government, and ultimately the subversion of the democratic parliamentary committee process,” Mr Dreyfus said.

“The government’s politicisation of national security has driven Labor to this point. Issuing a dissenting report is an outcome Labor has tried to avoid with the utmost goodwill and endeavour - and our offer of an interim bill that gives agencies the powers they said were necessary remains available.”

“It is clear in this case that your government has failed to listen to wide-ranging and significant concerns as submitted to the committee, it failed to consult adequately, and this will result in significantly deficient legislation.”

The announcement has come just a day after the President of the Senate broke ranks and hit out against the legislation, warning that it “sits in tension” with parliamentary privilege.

Senate president and Coalition senator Scott Ryan wrote a late submission to the parliamentary inquiry into the legislation, saying that it goes against recent work to protect authorities from accessing privileged materials.

“Although the bill does not deal with privilege directly, it sits in tension with work being undertaken across the Parliament to properly secure privilege against the exercise of executive investigative powers,” Senator Ryan said.

In the submission, Senator Ryan raised concerns that new powers in the bill allowing authorities and agencies to “covertly access computers for various purposes” could allow for politicians’ data to be accessed remotely, leaving them without the ability to claim privilege.

“The main issue with covert access in relation to privilege is that there would be no opportunity for a parliamentarian who considers that material is protected by privilege to raise such a claim. Similarly, while in some respects the amendments relate to existing powers, they are proposed to be exercisable by additional organisations that do not have Memorandum of Understanding arrangements for the execution of warrants where parliamentary privilege may be engaged,” he said.

“There is therefore no trigger for anyone within the parliamentary sphere to seek to raise privilege. Neither is there a clear path for the resolution of such claims if they are made. In that case, the Parliament has to rely on the agency seeking teh warrant, and the authority approving it, to have proper regard to privilege. No-one within the parliamentary sphere is empowered to intervene.”

“Although the bill does not create these difficulties, it extends them, at the same time as the Privileges Committee are seeking to rein them in.”

Senator Ryan said fixing these issues would involve a “combination of procedural and legislative action”, such as an amendment that would make it “not lawful for proceedings in parliament to be seized, accessed, listened to, recorded or observed by use of such powers”.

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