The federal government has backed away from its plan to extend encryption-busting powers to anti-corruption watchdogs around the country, despite previously pledging to do so and introducing legislation to that effect to Parliament.
The Parliamentary Joint Committee on Intelligence and Security (PJCIS) tabled its report on the Assistance and Access Act late last year, largely approving of the operation of the encryption-busting powers but calling for a number of adjustments.
But the PJCIS did not call for the powers, which allow law enforcement and other agencies to compel tech companies to provide access to encrypted communications, to be extended to Commonwealth, state and territory anti-corruption bodies, despite the government previously planning to do so, and the Department of Home Affairs backing this proposal.
This backdown was slammed by Labor members of the PJCIS, who said the government has offered “no explanation” as to why this won’t be happening.
Among the PJCIS recommendations were for the impact of the encryption powers on the local tech sector to be reviewed within three years, for references to “systemic vulnerability” to be removed from the Act and the remit of the Inspector-General of Intelligence and Security be expanded to include the AFP.
The PJCIS also called for consideration of a proposal for a new division within the Administrative Appeals Tribunal to approve request notices and a new Commissioner for this purpose.
The Assistance and Access Act was passed with bipartisan support at the end of 2018 during a chaotic final sitting day of the year. It gives new powers to authorities to compel tech companies to provide access to encrypted data via technical assistance notices.
While an initial version of the legislation included anti-corruption watchdogs in the entities able to access these powers, this was stripped from the bill before it was passed.
In early 2019 the government introduced two amendments to the Act in Parliament, including to extend the powers to Commonwealth, state and territory anti-corruption bodies. But the legislation failed to pass before the 2019 federal election and has not be reintroduced since by the Coalition.
In its own review of the encryption powers, the Independent National Security Legislation Monitor (INSLM) also backed this extension, saying that “integrity commissions identified concrete disadvantage that flows from their exclusion from the power to issue industry assistance notices”.
The PJCIS itself has also expressed support for this amendment, with former chair Andrew Hastie saying that these bodies have a “central role in ensuring integrity and accountability within public administration”.
But in its latest report, the PJCIS has not included the extension of powers to anti-corruption bodies in its near-30 recommendations, instead merely acknowledging that the previous bill has not been reintroduced.
In additional comments to the report, the Labor members said they “strongly disagree” with this decision.
“The position of Liberal members is at odds with the position taken by the Morrison government in late 2018 and early 2019 – but which the Morrison government appears to have now walked away from. So, what has changed?” they said.
Labor linked the refusal to implement this amendment to the government’s delays in launching a federal anti-corruption body and its criticisms of the New South Wales Independent Commission Against Corruption.
“The fact that the government has walked away from its position that anti-corruption bodies should have access to the industry assistance powers appears to be politically motivated,” the Labor members said.
“Liberal members have offered no explanation for their refusal to address that ‘concrete disadvantage’.”
Among the things the PJCIS did recommend was for the government to further consider the introduction of an Investigatory Powers Division within the Administrative Appeals Tribunal to assess request notices from the authorities, along with the appointment of a Commissioner as a deputy president in the tribunal.
The federal government should confirm whether it will be adopting this model by September, the committee said.
The PJCIS called on the government to review current legislation to determine whether concepts of “serious offence”, “relevant offence” and other concepts should be made consistent and what the threshold should be. The committee said this should be at a minimum an offence punishable by at least seven years imprisonment.
Currently the anti-encryption powers can be accessed for the investigation of a “serious Australian offence” punishable by at least three years jail.
This review would inform or take part during the current review of the electronic surveillance laws in Australia, the PJCIS said.
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