When should the government be able to
access its citizens’ encrypted Whatsapp messages--to prevent an assault? What
about child sex offences or terrorism? Should the government be able to force
Optus or Telstra to help decrypt information? What about an app developer based
in Malaysia?
These questions are currently being
considered by the Parliamentary Joint Committee on Intelligence and Security as
they review the Telecommunications and Other Legislation Amendment (Assistance
and Access) Bill 2018 ( ‘The Telecommunications Access Bill’
).
The Telecommunications Access Bill was introduced into the Australian
Parliament in September 2018.
The Telecommunications Access Bill proposes
a new surveillance regime requiring the cooperation of telecommunications providers
in decrypting information that may be useful in preventing the commission of
terrorist acts and serious criminal offences. Under the Bill, law enforcement
agencies may request either voluntary or compulsory assistance in accessing and
decrypting data. Companies that may be the subject of an assistance notice
include parts manufacturers, software developers and telecommunications
infrastructure builders. The Bill has drawn criticism over the inclusion of companies
located overseas and those involved at any point in the entire
telecommunications technology production process.
Arthur Moses SC, president-elect of the Law
Council of Australia, attended the first public hearing of the Parliamentary
Joint Committee on Intelligence and Security on Friday 19 October. He voiced
concerns about the Telecommunications Access Bill’s intrusion into individual
privacy and spoke to other points raised by the Law Council in their submission
to the committee.
The Telecommunications Access Bill
underwent a public consultation process via the Department of Home Affairs in
August 2018 before being introduced to Parliament. Forty Four Degrees Law
Graduate Hana Lee is part of the Law Institute of Victoria’s Law
and Technology Committee
that assisted in preparing the Law
Council’s initial submissions to the Department of Home Affairs.
Since the initial consultation, the text of
the Telecommunications Access Bill was modified slightly to restrict the scope
of government powers that will be granted under the Bill. For example,
‘protecting public revenue’ was removed as one of the potential reasons for
requesting decryption assistance from telecommunications providers. However,
the Law Council is of the belief that the scope of the Telecommunications
Access Bill should be further narrowed to balance the protection of public
interest with individual right to privacy, freedom of expression and liberty.
Click here
to download the Law Council submission or here
to read more about the Law Council’s position on the Telecommunications Access
Bill.
