Labor amendments won’t solve encryption

Denham Sadler
National Affairs Editor

Labor’s proposed amendments to the highly contentious encryption legislation were a welcome step in the right direction, but “tinkering at the edges” won’t fix the underlying issues with the new powers, according to a coalition of human and digital rights groups.

Shadow home affairs minister Kristina Keneally introduced the private senators’ bill on Wednesday afternoon, marking the one-year anniversary of the original legislation being passed with support from Labor.

The Opposition has since accused the government of breaking its promise to back amendments that fall into line with recommendations from the Parliamentary Joint Committee on Intelligence and Security (PJCIS), and has latched onto concerns that the encryption powers may prevent Australia from securing a data-sharing agreement with the US under the CLOUD Act.

Lucie Krahulcova, Access Now

Labor’s amendments introduce a requirement for judicial oversight, with an eligible judge having to approve of an encryption-busting request before it is made.

It also restricts the reasons for which a notice or request can be issued to those listed in the legislation and prevents the Minister for Home Affairs to add things to this list.

The amendments also take away the Minister’s ability to edit or delete information in reports to be produced by the Commonwealth Ombudsman.

And they require the Australian Federal Police Commissioner to consider whether a request is reasonable and proportionate, and practicable and technically feasible to comply with before such a request is issued.

The Opposition said their amendments conform to the recommendations made by the PJCIS, and the inclusion of judicial oversight would address concerns about its compatibility with the CLOUD Act.

“It’s welcome to see the introduction of Labor’s proposed amendments to these deeply flawed laws – a long overdue edit to this fundamentally bad legislation,” Digital Rights Watch’s Lizzie O’Shea said.

“The amendments outlined in this bill are a good starting point, but far from a full solution. Tinkering at the edges of badly designed legislation is not going to solve the underlying problem – that the powers being handed out to law enforcement are poorly designed and infringe on individuals’ privacy and the security of the Australian digital economy and society.”

The timing of the amendments and the focus on the CLOUD Act agreement should be questioned though, Access Now policy analyst Lucie Krahulcova said.

“The amendments were promised over a year ago, so even though they deliver several key improvements, the public is owed an explanation as to the delay,” Ms Krahulcova said.

“It seems an odd timing that they are only introduced now, after the US Congress demanded that the Act be amended as a prerequisite to negotiating a data sharing agreement between the US and Australia,” she said.

“At a minimum, we need to see proper and public reporting on these powers – how many times have they been used, by which agency, what kinds of requests / notices have been sent?”

This coalition of groups will be continuing to push for the Assistance and Access Act to be repealed entirely.

“For this conversation to be meaningful, it must start with a complete repeal of the TOLA Act and prioritise a focus on implementing an enforceable federal human rights framework,” Electronic Frontiers Australia policy committee chair Angus Murray said.

Labor’s amendments will be debated in the Senate when Parliament returns in February.

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