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Exposure Draft Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018

The submission to the Department of Home Affairs’ consultation on the Exposure Draft Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 was prepared by the Law Council of Australia. 

The Law Council acknowledges that there is significant value to public safety in allowing law enforcement authorities faster access to encrypted information where there are threats to national security or in order to prevent the commission of serious criminal offences. The Law Council also acknowledges that there is merit in facilitating prompt international cooperation and assistance to deal with cybercrimes which occur across multiple jurisdictions.

The Law Council recognises that a principal objective of the Exposure Draft Bill is to increase public safety by providing faster access to encrypted data. The Law Council’s comments endeavour to balance achievement of that objective with the need for legislative clarity and certainty (given the diverse range of agencies that may utilise these powers and the significant expansion in the range and nature of entities that will be relevantly subject to complex law enforcement legislation for the first time) and the need for reasonably transparent and verifiably reliable safeguards and controls.

The Exposure Draft Bill does include some useful controls and safeguards. However, they are limited in scope and more limited in transparency and oversight. The Law Council supports many of the proposed safeguards, including continuing to require agencies to seek a warrant or authorisation under the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act), Surveillance Devices Act 2004 (Cth) (SDA) or Crimes Act 1914 (Cth) (Crimes Act). However, the powers as conferred go far beyond the rationale for operation of the proposed enhanced powers of agencies as stated in the commentary provided by the Department.

You can read the full submission below.

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