Encryption report handed to government

Denham Sadler
National Affairs Editor

The independent national security monitor’s report on Australia’s highly contentious encryption laws has been handed to government but will not be made public until August at the earliest.

Independent National Security Legislation Monitor (INSLM) Dr James Renwick has been investigating the Assistance and Access Act since August last year after being referred by the Parliamentary Joint Committee on Intelligence and Security (PJCIS), the first time the powerful committee has done so.

Dr Renwick has been tasked with investigating whether the legislation, which gives government agencies and law enforcement the power to compel tech companies to provide access to encrypted data, has “appropriate safeguards for protecting the rights of individuals, remains proportionate to the threat to national security and remains necessary”.

James Renwick
James Renwick: The intelligence legislation monitor is finishing up

The report was due on 30 June, the last day of Dr Renwick’s term as INSLM, and will be handed to Attorney-General Christian Porter on Tuesday. It will not be made public until it is tabled by Mr Porter in Parliament, which won’t be until early August.

The INSLM received 53 submissions as part of the inquiry and held two public hearings in February. Dr Renwick will not be recommending the encryption laws be scrapped entirely, but is expected to call for a raft of changes, including new definitions for “systemic weakness” and “systemic vulnerabilities” and independent judicial oversight.

These are two key recommendations that many critics of the legislation have been lobbying for since the laws were passed in late 2018 and were moved by the Opposition in the Senate earlier this year.

The INSLM report will inform the PJCIS’s own inquiry into the Assistance and Access Act, which is expected to report back by 30 September.

Dr Renwick delivered a speech to the Lowy institute earlier this year outlining how his investigation was going and what he is likely to recommend to government. He acknowledged that the consultation on the laws and their eventual passing was rushed, but it was not realistic to call for them to be rejected entirely.

“Some say that brevity itself means that the TOLA Act should be repealed, with consultation to begin again, not least as a way of regaining trust. Realistically, I do not think that is likely nor do I think it is appropriate to recommend it,” Dr Renwick said earlier this year.

The independent security monitor repeatedly emphasised that he does not believe there needs to be a binary choice between encryption or law enforcement efforts.

The INSLM report is likely to recommend a “double lock” approval system for notices under the act, with these having to be approved by a judge or the Administrative Appeals Tribunal.

“Any scheme involving the use of coercive power must have the necessary checks and balances not only to ensure that agencies exercising those powers make correct and lawful decisions, but that such decisions are seen to be made,” Dr Renwick said.

“It is only through doing so that agencies will instil and inspire the community’s trust in their exercise of new powers in our sceptical age.”

Dr Renwick, a barrister, has served as the INSLM since 2017, with his term coming to an end this week. The federal government is still yet to announce who will be replacing him in the role.

Do you know more? Contact James Riley via Email.

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