Denham Sadler
September 30, 2019

Encryption inquiry deadline extended

AA Bill

Encryption inquiry deadline extended

Dr James Renwick: The Independent National Security Legislation Monitor

The government’s independent security monitor has extended its inquiry into the highly controversial encryption laws after receiving just 15 submissions from the public.

Independent National Security Legislation Monitor Dr James Renwick had been tasked with investigating whether the Telecommunications and Other Legislation (Assistance and Access) Act, passed by Parliament late last year, has “appropriate safeguards for protecting the rights of individuals, remains proportionate to the threat to national security and remains necessary”.

Dr Renwick’s inquiry had originally been accepting submissions from the public until 13 September, but this has now been extended.

The announcement and subsequent passing of the encryption laws, which give government agencies and police the power to compel tech companies to provide access to encrypted communications, received widespread coverage and condemnation.

Concerns centred on the weakening of encryption in general and the impact of the new laws on the ability of local tech companies to compete internationally.

Despite the criticisms, the laws were passed virtually unamended and with bipartisan support of the last Parliamentary sitting day of 2018.

Labor had promised to further amend the legislation in the lead up to the May election, but the Coalition win meant they would be staying as is.

The Parliamentary Joint Committee on Intelligence and Security is conducting its own inquiry in the legislation, and referred it to the INSLM, the first time the Parliament has ever done this.

The INSLM is to report back by March next year, and this would inform the PJCIS’ report, which will be tabled in mid-April.

But the INSLM has so far only received 15 submissions, with many just re-attaching the same submission that was made to the PJCIS.

Those that have submitted to the new inquiry include the Australian Signals Directorate, the International Civil Liberties and Technology Coalition, the Office of the Victorian Information Commissioner and Digital Rights Watch.

The PJCIS has received 26 submissions to its latest inquiry into the legislation, and received 71 submissions to its first investigation, with the report tabled in April.

Dr Renwick said his inquiry would focus on whether the encryption legislation finds the right balance between protecting the rights of individual and giving law enforcement the powers it needs.

“The Assistance and Access Act has attracted considerable public attention, both within Australia and internationally. Governments around the world are facing increasing challenges posed by ubiquitous encryption that masks a variety of illegal activities,” Dr Renwick said in a statement.

“However, public consent to intrusive laws depends on public trust. Equally the public expect that agencies will keep them safe, but not exercise powers that are needlessly intrusive.”

The INSLM is engaging with industry, civil society and government agencies throughout public and private consultations, and is expected to provide a set of recommendations to the PJCIS as part of its own inquiry.

In its submission, Digital Rights Watch called on the independent monitor to “wholesale reject” the legislation and recommend the Act be repealed entirely.

“We are deeply concerned by the powers contained in TOLA, and the serious implications for human rights and democratic governance. We remain very concerned about the substandard and unnecessarily rushed parliamentary process that led to this law being passed,” the Digital Rights Watch submission said.

“Many Parliamentarians simply could not have had time to explore the numerous impacts of this law on the personal privacy and digital security of their constituents and the detrimental impacts on Australian industry.

“We would welcome INSLM taking the opportunity presented by this review as an opportunity to fix these errors, by presenting a recommendation of full repeal. To do so would be in line with the recommendations by a broad range of organisations, companies and individuals who expressed concerns about the bill before it passed.”

In its own submission to the PJCIS inquiry, the Department of Home Affairs admitted the laws have had a “material impact” on the ability of Australian tech companies to compete internationally, and promised to work across government, industry and public to “broadly clarify and reiterate the intent and operation of the law”.

“Consumers, international companies and investors are concerned domestically produced or located products and services have been undermined by the legislation, and that the industry assistance framework increases the costs of doing business in Australia,” Home Affairs said in the submission.

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