Encryption access laws passed through the Senate
13 December 2018
As the curtain closed on Canberra’s final sitting week, controversial encryption legislation was rushed through parliament, laws that could have serious unintended consequences.
The Law Council believes the legislation is an overreach, lacks proportionality and impacts the rights of all Australians to privacy, freedom of expression and liberty. They also have the potential to pervert the course of natural justice.
Law Council representatives consulted and counselled a diverse range of MPs and Senators relation to the laws and its potential impacts, which include:
- Circumventing the need for law enforcement and intelligence agencies to obtain a warrant by permitting ‘technical assistance requests’ or ‘voluntary assistance requests’ on designated communications providers to conduct covert activities such as intercepts.
- Allowing law enforcement or ASIO to effectively detain individuals to provide ‘compulsory assistance’ without the safeguards necessary for detention, including the right to contact a lawyer.
- Failing to clarify that legal professional privilege is protected n all circumstances.
- Allowing senior ASIO bureaucrats to confer civil immunity, instead of the Attorney-General.
The new laws can be exercised in relation to any crime with a maximum penalty of three years’ jail or more – a low threshold that sets a very broad scope – and have the potential to be misused.
The Law Council had submitted these laws should only apply to crimes carrying a seven-year plus maximum prison term and should be specific to particular crimes, such as terrorism and child exploitation offences.
It is our belief this legislation is disproportionate to the threat presented by terrorism and, if challenged, could compromise the outcome of prosecutions if deemed unconstitutional by the High Court.
Though the legislation has passed the issue remains highly contentious and in the coming year we will continue to work towards ensuring these laws are amended and fit for purpose.