Draft Home Affairs Bill vastly overreaches its stated purposes and is susceptible to abuse

The amendments proposed to the Telecommunications Act 1997 (Cth) by the exposure draft of the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (Cth) (Draft Bill) are extremely vague. There can be no objection to its stated justifications, but the Draft Bill clearly vastly overreaches these objectives with the powers it grants and its ability, if enacted, to be abused by federal and state agencies.

Opened for public review on 14 August 2018 by the Department of Home Affairs, the Draft Bill would operate primarily by the introduction of:

  • a new Pt 15 (Industry Assistance), ss 317A–317ZT into the Telecommunications Act
  • a new Pt IIIBB (Computer Access Warrants), ss 15CB–15CC into the Mutual Assistance in Criminal Matters Act 1987 (Cth) and ss 27–129 into the Surveillance Devices Act 2004 (Cth),

with related amendments including to the Crimes Act 1914 (Cth) and the Customs Act 1901 (Cth). However, the amendments present a number of different problems. It is designed to give spy, security and law enforcement agencies power to gain access to encrypted communications, data and equipment without the need for a warrant (or much justification at all) but provides for no specific judicial oversight over the operation of the new powers it grants.

Much of the decision-making and exercise of powers using the unclear provisions of this Bill is to be made behind closed doors. The Draft Bill may require the Attorney-General or the relevant agency officer to consider certain criteria, but there is no way of verifying that this has been done and recent experience tells us that, sometimes, Ministers may depart from what may be regarded as proper considerations.

Of course, we are all interested in undermining the activities of “terrorists, child sex offenders and criminal organisations [masking] illegal conduct”, but the proposed powers of compulsion in respect of technical assistance notices (TAN’s) and technical assistance requests (TAR’s) are not limited to those types of crimes. Furthermore, the Draft Bill leaves the decision-making discretion open to abuse by the relevant agencies and to the Attorney-General, without any form of protective oversight.

It is clear that TARs can be given by ASIO to a ‘designated communication provider’[1] (DCP ) for the purpose of helping with the decryption of communications, wrongfully obtained, of, say, an East Timorese delegation negotiating the Timor Gap access for oil reserves and royalties, because that is in the interests of Australia’s national economic well-being; ASIO could require an ISP under a TAN to help in accessing and decrypting Chelsea Manning’s personal communications because that may enable enforcement of the US security laws; the Commonwealth Attorney-General would be able to issue a TAN in respect of communications by the CFMMEU leadership because a warrant has been issued to enter its premises in respect of any alleged offence (even if the warrant were subsequently found unlawful), none with judicial oversight required. We decry the fact that Huawei is subject to directives from Beijing, yet we contemplate legislating the same powers over DCPs.

It is no answer to these possibilities to say that our politicians and agencies are too upright and honourable to permit such things, nor that our security agencies are too diligent and frank in their representations to their masters when they want something they can get without judicial supervision.

The government is urged to at least limit the operation of this legislation to the serious crimes referred to in the Department of Home Affairs Explanatory Note. This legislation, and the creeping expansion of powers under other security and surveillance legislation, should ignite again the debate regarding an absence of a national integrity commission.

…amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.

The dissenting words of Lord Atkin, spoken almost 80 years ago, continue to echo as a largely unheeded warning on the danger of legislation that allows an incursion on individual rights without active judicial checks. The Draft Bill is yet another reminder of the continuing relevance of his Lordship’s dissent.

This is an excerpt from an article by Luke Dailey and Peter Knight, BANKI HADDOCK FIORA.  The full article discusses the problems and future implications of the legislative changes in more detail.

It appears in Privacy Law Bulletin vol 15 no 8. To view the full article on Lexis Advance, click here. To subscribe to Internet Law Bulletin, email or call us on 1800 772 772.

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