AFP concerned about approving state police usage of Australia's encryption laws

Concerns over a federal body overseeing the operations of state and territory authorities.

The Australian Federal Police (AFP) has used its submission to the Parliamentary Joint Committee on Intelligence and Security's (PJCIS) Inquiry into Australia's encryption laws to ask for its involvement to be reduced from an approval role to one of coordination.

Under the new laws rushed through Parliament in December, Australian government agencies will be able to issue three kinds of notices:

  • Technical Assistance Notices (TAN), which are compulsory notices for a communication provider to use an interception capability they already have;
  • Technical Capability Notices (TCN), which are compulsory notices for a communication provider to build a new interception capability, so that it can meet subsequent Technical Assistance Notices; and
  • Technical Assistance Requests (TAR), which are voluntary requests to use existing capabilities, but have been described by experts as the most dangerous of all.

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Pointing to concerns raised previously by the Department of Home Affairs (DHA), the AFP says in its submission [PDF] that it supports amendments made during parliamentary consideration of the reforms. However, the department has hesitations on the amendments giving the AFP Commissioner approval authority over state and territory TANs.

"The AFP is concerned that this role could interfere with the independent operational decision-making processes of policing agencies and may be unworkable," the AFP wrote.

"A co-ordination as opposed to approval role for the AFP Commissioner is more appropriate in relation to state and territory police use of TANs."

In the DHA's submission [PDF], it said that while it acknowledges the importance of centralising the issuing of TANs to maintain consistency, avoid duplication, and enable the exchange of information across jurisdictions, it has concerns over giving a federal body control to laws administered by state and territory authorities.

"A potential effect of these amendments will be to reduce the effectiveness of the powers for state and territory police (or even the willingness to use the powers), duplicate existing requirements, and create an undue resource and process burden for both the AFP and state and territory police forces," DHA wrote.

"The amendment may also have the potential impact of causing structural conflict between coequal policing agencies within the Australian federal framework."

"Maintaining a requirement to second-guess the operational merits of industry assistance that relate to purely state and territory-based investigations is significantly out of step with the distinctions between the federal, state, and territory policing authority," it continued.

It was also revealed in DHA's submission that federal law enforcement and national security have already begun using the powers contained within the encryption laws.

"The department has also been advised by Commonwealth law enforcement and national security agencies that the powers in the Act have been used to support their work," Home Affairs said, noting in the same paragraph that it was working closely with these agencies to facilitate the implementation of the Act.

In its submission, Home Affairs said it delivered training to the police forces of New South Wales and Victoria, specifically on what the new powers include.

The on-site training, DHA said, highlighted the legal processes that agencies must satisfy while using their new powers, as well as the administrative requirements of seeking approval from the AFP Commissioner for the use of TANs.

In its submission, the AFP also said it is in the advanced stages of negotiation in relation to forms of assistance that will be provided pursuant to the issuing of multiple TARs.

"This has involved engagement and collaboration between the AFP and designated communications providers to ensure that the forms of assistance are proportionate and technically feasible," it explained. "These TARs are being sought in support of active AFP investigations into serious Commonwealth crime."

Addressing amendments to The Crimes Act 1914, the AFP said that maintaining active records, as would be legislated, is an impractical diversion of resources.

"Unlike the powers provided for in Schedules One and Two, the AFP is not legislatively or ordinarily required to maintain and report on the number of times we conduct search warrants and related provisions," it explained.

"Comprehensive records are retained on individual law enforcement activities but the ability to draw accurate statistics across existing systems on the application of Schedule Three would require an impractical diversion of manual resources."

The passage of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 occurred on the last evening of Parliament for 2018, following the capitulation of the Labor opposition, which dropped its own amendments and waved the legislation through the Senate under the belief Parliament will consider the amendments when it resumes later this month.

The government successfully had its 67 pages of amendments added to the Bill in the lower house and the PJCIS a week later opened a review of the new laws and is due to report by April.

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