Australia’s ever-controversial encryption legislation has been debated in the Senate this week, but, despite the blows traded and hyperbole slung, we’re seemingly still no closer to any resolution on the topic.
Addressing the Senate on Monday, Labor senator and Shadow Minister for Home Affairs Kristina Keneally put forward her proposed amendments to the legislation for a second reading, in the form of the Telecommunications Amendment (Repairing Assistance and Access) Bill 2019.
The bill would essentially implement the recommendations of the Parliamentary Joint Committee on Intelligence and Security (PJCIS), suggested before the original legislation was passed in December 2018.
Keneally called the passage of that legislation — the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, commonly known as the AA Bill — “both highly politicised and deeply flawed”.
She recalled the circumstances in which the bill was passed, on the final sitting day of 2018, with no amendments whatsoever, and the seriousness of the powers it gives government entities.
“Powers of this kind deserve, in fact necessitate, careful deliberation and consideration by all parliamentarians,” she said.
“However, the way the bill came before this place could not be characterised as either carefully deliberated or considered by the Morrison government.”
Under the bill, individuals can be issued with technical capability notices, demanding they provide authorities with access to their company’s communications. Telling their employers about the order could land them with five years’ in prison.
As early as October last year, the tech community raised concerns that this creates a ‘back door’ into their systems, leaving encrypted data vulnerable.
High-profile tech companies such as Mozilla and FastMail suggested the legislation could give organisations an incentive to take their tech — and the jobs they provide — elsewhere.
Labor spokespeople have maintained they voted to pass the legislation based on a commitment from the Coalition that it would be revised when Parliament resumed in early 2019. At that time, they expected recommendations from the PJCIS to be implemented.
Labor “upheld our side of the deal”, Keneally said this week.
“One year, two months and two days have now passed … and not a skerrick of government business time has been provided to debate the legislation.”
This has left us with “flawed legislation”, she said.
To date, 25 technical assistance requests have been issued, but it’s unclear what those requests related to, or whether they go beyond what the companies would have been happy to provide without the bill in place.
Equally, according to Innovation Aus, not one of those requests has been connected to a terrorist-related investigation.
“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 a provider to assist authorities in a criminal investigation,” Keneally said.
However, rather predictably, the proposal didn’t go down all too well with her opponents.
Liberal senator for Tasmania Eric Abetz called Keneally’s proposal “indicative of an opposition willing to play politics, and destructively so, with Australia’s national security”.
He also noted Labor overwhelmingly voted for the legislation, and called Monday’s speech a “a tawdry attempt” to make amendments to a bill that is already the subject of two enquiries.
Indeed, the Independent National Security Legislation Monitor (INSLM) recently sought an extension for its enquiry into the legislation, after receiving just 15 submissions to its consultation.
Abetz also pointed out Keneally is herself a member of the committee, which unanimously voted to request and extension. This somewhat undermines her urgency to get things changed, he suggested.
However, piping up for the Greens, Nick McKim, another Senator for Tasmania, said while he supported the proposed amendments, “neither the government nor the opposition have covered themselves in glory in regard to the toings and froings leading us up to this day”.
Behaviour on both sides has been “at times quite reprehensible”, he added.
He suggested the proposed changes are a good start to addressing some of the issues with the legislation, but said they don’t go far enough, calling the original bill “an absolute shocker”.
The government should not have forced the legislation through while it was well aware of concerns from the community, or ignored the committee recommendations in the first place, he said.
“But neither should Labor have rolled over and allowed the government to tickle their collective tummy on this issue,” he said.
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