Use of encryption powers doubles but still no terrorism cases

Australia’s controversial encryption-busting powers have not been used to investigate terrorism offences for a fifth year in a row, despite the former Coalition government using the heightened prospect of terrorism to rush the laws through Parliament.

The use of the powers for other serious offences continues to grow, doubling last financial year to 66 uses, according to mandatory disclosures tabled in Parliament this week.

The Australian Federal Police, which for the first time did not use the powers last year, has warned advances in end to end encryption is now used in almost all the communications it intercepts, making it harder for the agency to identify people.

Opposition leader Peter Dutton reportedly urged Parliament to rush through the powers in 2018 to help investigate terrorism

The Assistance and Access Act was waved through Parliament on the last sitting day of 2018 and gives law enforcement and national security agencies the power to request or compel tech companies to provide access to encrypted data.

Under the laws, authorities can issue a technical assistance request to technology company, which voluntarily asks them to help provide access to data using existing capability when investigating serious crimes or national security threats.

Federal and state policing agencies, as well as the Australian Criminal Intelligence Commissioner (ACIC), can also issues technical assistance notices and technical capability notices, which compel a company to provide assistance or build “limited capabilities”.

According to the latest Telecommunications (Interception and Access) Act annual report, released by Attorney General’s Department on Thursday, there were 66 uses of the powers last financial year, more than double the 30 in 2021-22.

All uses last financial year were technical assistance requests, meaning tech companies were asked to voluntarily assist federal and state law enforcement agencies, rather than being compelled through a technical assistance notice or technical capability notice.

New South Wales Police was by far the biggest user again, with 53 of the 66 technical assistance requests made.

Most of the requests were for homicide and related offences (36) or illicit drug offences (11).

There were also six technical assistance requests made by ACIC for its special investigations, which typically relate to organised crime, and five by state police for sexual assault and related offences.

Across all police forces and agencies, requests were also issued for acts intended to cause injury (1), fraud (2), property damage (1), robbery and extortion (3) and one for “other serious Australian offences”.

The record use of the controversial powers caps a steady rise over five years, growing from seven, 11, 26, and 30 to the record 66 last financial year.

The new data shows that no requests were issued for “terrorism offences” for the fifth year in a row despite the former Coalition government using the possibility of an attack over the 2018-19 Summer break to rush passage of the laws.

Then-home affairs minister and now Opposition leader Peter Dutton reportedly wrote to the Parliamentary Joint Committee on Intelligence and Security in the weeks leading up to passage to argue the legislation had become “more urgent” in light of the Bourke Street attack and other plots.

The laws were passed on the last sitting day of 2018, with Labor eventually dropping all opposition to the bill at the last minute having secured agreement with the then-government to consider amendments when Parliament returned.

“We offer to let it go forward, without the amendments which are needed… provided the government agrees on the very first sitting day, to pass the amendments we say are needed,” Government Services minister and then leader of the Opposition Bill Shorten said at the time.

But, more than five years after the laws were passed, the legislation remains unchanged. Labor had attempted to amend the legislation in Opposition in 2019, but its private members bill was never brought on for debate. The new Albanese government is yet to introduce similar legislation.

In 2022, the Commonwealth Ombudsman found law enforcement agencies began using powers under the Assistance and Access Act before they had established sounds governance frameworks, leading to potential “non-compliance” with the laws.

Documents released under Freedom of Information laws show the Attorney-General’s Department was considering the need for changes to the TIA Act to address encryption as early as 2015 – almost two years before the legislation was unveiled.

An analysis of the industry impact of the powers in 2021 found they pose a significant economic threat to local and multinational businesses, some of which estimated the hit to be in the billions of dollars.

The Australian Federal Police earlier this year said advances in end-to-end encryption technology is impacting its “ability to identify offenders online”.

“In the 2022-23 financial year, 96.1 per cent of the 61.4 million ‘sessions’ intercepted by the AFP used [end-to-end encryption] or other forms of encryption.

“This represented an increase from 90 per cent in the 2018-19 financial year.”

The AFP revealed the jump in a submission to the online regulator's proposal to enforce proactive scanning of online communications for child sexual abuse material and pro-terror material.

Industry has railed against the regulator's plan, with Apple warning it will “build backdoors into end-to-end encrypted services to monitor data”.

With Joseph Brookes

Do you know more? Contact James Riley via Email.

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