No encryption fix until at least October


Denham Sadler
Senior Reporter

There won’t be any amendments to the Commonwealth’s controversial encryption-busting powers until October at the earliest with the Coalition signalling it would vote down Labor’s attempts to “repair” the legislation.

Labor’s amendments to the Assistance and Access Act, which introduce judicial oversight, remove the current definition of a “systemic weakness” and ensure the powers won’t create a “material risk to the information of innocent persons”, were debated in the Senate on Monday evening.

While the Greens indicated from the floor that it would support the amendments, discussions with the cross bench is ongoing. While shadow home affairs minister Kristina Keneally’s private Senator’s bill may yet embarrass the government in the Senate, it would remain stymied in the lower house.

Kristina Keneally on the controversial encryption laws
Kristina Keneally on the controversial encryption laws

As expected, Coalition Senators made it clear from the outset that they would not support any change to the controversial legislation, which gives law enforcement and authorities the power to compel tech companies to provide access to encrypted communications, until two inquiries into the legislation are completed later this year.

The Independent National Security Legislation Monitor (INSLM) will report back on the laws by June, which will inform the Parliamentary Joint Committee on Intelligence and Security’s third review of the laws, which is due by the end of September.

During the Senate debate, the Greens slammed both of the major parties for passing the legislation at the end of 2018. But the Greens indicated from the floor that it would support the amendments.

Labor Senators argued that the Opposition had only agreed to pass the legislated unamended after receiving a promise that the government would look at changes in-line with recommendations from the PJCIS at the start of last year, which it did not.

The private member’s bill is aiming to “correct the mistakes” of the Coalition, Senator Keneally said.

The vote on the private members bill is now expected in the next sitting week beginning February 25. Discussions with the cross bench remain ongoing.

“One year, two months and two days have now passed since Senator [Mathias] Cormann made that commitment here on the floor of this chamber, and not a skerrick of government business time has been provided to debate the legislation. In short, Senator Cormann and the government have not kept their word,” Senator Keneally said.

Senator Keneally said Labor now has three key issues with the encryption powers: the impact on the Australian tech sector, the lack of robust oversight mechanisms and a lack of transparency over whether they are actually working.

Recent reports from Home Affairs revealed that the encryption powers have been used 25 times since they were introduced, with each of these being a voluntary technical assistance request, rather than the more powerful notices on offer.

“In the 432 days since this bill passed the Senate, Australians can’t be sure that any Australian agency has ever used these powers to compel and provider to assist authorities in a criminal investigation. Disturbingly, this may be because our law enforcement agencies don’t know how these laws work,” she said.

But the amendments were labelled “ill-considered” by Liberal Senator Eric Abetz, who lampooned Labor for supporting the legislation unamended more than a year ago and criticised the move to change it before the two inquires have reported back.

“Labor actually voted for the legislation. Yet here comes Senator Keneally, condemning the whole process as somehow some great infringement on human rights. Well, you can make that argument if you want to, but what it does not overcome is the fact that our good friends in the Australian Labor Party actually supported the legislation at the time,” Senator Abetz said.

The Coalition’s argument against the amendments is that Labor is trying to “circumvent” the two ongoing inquiries into the encryption powers, and that they must remain untouched until both have reported back.

Labor argued that their amendments are in-line with recommendations from the Liberal-chaired PJCIS in late 2018, which had bipartisan support at the time.

While supporting the amendments, Greens Senator Nick McKim took the sword to both major parties for their support of the encryption powers.

“It has to be said that neither the government nor the opposition have covered themselves in glory in regard to the toings and froings leading up to this day. In fact, the actions of both the government and the Opposition on these matters have been at times quite reprehensible, and we Greens say, ‘a pox on both your houses’,” Senator McKim said.

“It shouldn’t have come to this. It shouldn’t have come to where we are today. The government should not have proceeded with the legislation as it did…but neither should Labor have rolled over and allowed the government to tickle their collective tummy on this issue.”

The amendments also “don’t go far enough”, Senator McKim said.

“Our support for this current legislation does not change the fact that the original bill, passed with bipartisan support in this place prior to the last election, was recklessly rammed through Parliament without due consideration by a government fixated on a shuffle down the dangerous path to a police state and an Opposition that, sadly, only ever pays lip-service to human rights, to freedoms and to liberties in this country,” he said.

In response, Senator Jenny McAllister accused the Greens of never engaging in a “serious way in a debate in this place with the material issues of national security” and not accepting that any national security problem is real, something Senator McKim labelled “untrue”.

The debate was interrupted before the amendments could be voted on, but with the government to vote against it it has no hope of passing through both houses of Parliament.

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