Australia now has encryption-busting laws as Labor capitulates

So-called protections in the Bill are necessary, Opposition leader Bill Shorten has said.
Written by Chris Duckett, Contributor
(Image: ParlView screenshot by Josh Taylor/ZDNet)

Labor has backed down completely on its opposition to the Assistance and Access Bill, and in the process has been totally outfoxed by a government that can barely control the floor of Parliament.

After proposing a number of amendments to the Bill, which Labor party members widely called out as being inappropriate in the House of Representatives on Thursday morning, the Labor Party has dropped its proposals, allowing the Bill to pass through Parliament before the summer break.

"Let's just make Australians safer over Christmas," Bill Shorten said on Thursday evening.

"It's all about putting people first."

Shorten said Labor is letting the Bill through provided the government agrees to amendments in the new year.

Under the new laws, Australian government agencies would 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 have been described by experts as the most dangerous of all.

The final vote in the Senate to pass the Bill was 44-12, with Labor and the Coalition voting for it.

Earlier in the day, Defence Minister Christopher Pyne said Labor was holding the Bill hostage in the Senate.

"Labor has chosen to allow terrorists and paedophiles to continue their evil work in order to engage in point scoring," he wrote on Twitter in a now-deleted tweet.

How the day went down

The House of Representatives opened with the Assistance and Access Bill as the first item on the agenda, and it turned into a procession of Labor MPs detailing how unsatisfactory the Bill was, and how they would still vote for it.

"We do this because we understand that in conferring new powers to protect our nation's security, it's vital that we do not compromise the very freedoms and way of life that we're seeking to protect," Shadow Attorney-General Mark Dreyfus said.

See: Australia's anti-encryption law will merely relocate the backdoors

Dreyfus pointed out that the Bill lacked an appropriate definition of systemic weakness, one of the few clauses that allow vendors to push back on notices from law enforcement, and could endanger cooperation with the CLOUD Act in the United States.

"In order to enter into an agreement with United States under the CLOUD Act, the US attorney-general must certify, with the concurrence of the secretary of state, that the foreign government affords 'robust substantive and procedural protections for privacy and civil liberties'," Dreyfus said.

"Labor members of the intelligence committee were very concerned that unless it is significantly amended, the Access Bill could imperil Australia's chances of entering into a CLOUD Act agreement with the United States."

Mark Dreyfus would vote for the Bill.

Colonel Dr Mike Kelly struck out at government accusations that the Labor party was running a protection racket for terrorists.

"[I] have spent 30 years of my life deeply immersed in the security affairs of this nation. I've watched friends lost and killed in operations against terrorists," Kelly said.

"I've washed the blood of friends from my uniform. And I won't be told by a member of this House that I am 'running a protection racket for terrorists'. That was grossly offensive and was not a contribution to this debate."

Despite also pointing out that there was not a proper definition of systemic weakness in the Bill, Dr Kelly would vote for it.

Must read: Why Australia is quickly developing a technology-based human rights problem(TechRepublic)

Vocal on Twitter during the week, and guaranteeing that the Parliamentary Joint Committee on Intelligence and Security (PJCIS) report would be worth waiting for -- it wasn't -- Tim Watts pointed out further issues.

"This Bill doesn't resolve, and may even make more difficult, the mutual legal assistance treaties and the CLOUD Act problems in us accessing data from these providers overseas," he said.

"In this Bill, we can only access information from the targets of these warrants. This Bill is not about 'Donald Trump reading your emails', as Senator Steele-John has suggested, nor is it about putting spyware into everyone's devices or spying on unions, as some people have suggested to me. This is a targeted regime that gives ministers the power to issue notices."

The Labor MP said the powers are not a form of mass surveillance.

"If you are not a subject of law enforcement inquiries, you are not going to have to worry about being a target of this Bill. If you are not a security threat, as identified by ASIO, you are not going to have to be worried about being a target of the Bill," Watts said.

Along with Labor, Watts would vote for the Bill.

See: The race to ruin the internet is upon us

Labor member Ed Husic detailed the problems of oversight, and how examination is required by informed individuals.

"The type of judicial oversight offered in this process is tissue-tough. I don't think it cuts the grade of what people would expect," Husic said.

"People want a specialist judge backed by a team of people who can assess warrants and applications made to gain access under the TCN arrangement. They want to know that people who are capable of making judgments on applications can do so."

Husic called for reporting on how many notices and requests are to be issued, but he would also fall in line and vote for the Bill.

Labor member for Bruce, Julian Hill, claimed the party was doing the "sensible, grown-up thing" as a party of government and passing the Bill, before foreshadowing what may happen after Australia's 2019 election.

"The best we could get out of this initial compromise was judicial review from a retired judge. A judicial review is a very poor second cousin to judicial oversight," he said.

"This should be fixed next year, as the committee's inquiry continues. But if it's not fixed by this government, I think it should be fixed by the next federal Labor government."

Hill would vote for the Bill.

Read: Australian encryption Bill raises bar for outrageous legislation: Comms Alliance

Manager of Opposition Business Tony Burke complained that government amendments made to the Bill were only provided at 6.30am AEDT on Thursday morning.

"There are 173 of them. In the time that the opposition have had to go through them, we see that there are areas where the amendments that are currently in front of us do not yet properly reflect the findings of the intelligence committee," he said.

Nevertheless, Burke would back the Bill. In the crucial vote in the House, only Australian Greens member Adam Bandt and Tasmanian independent Andrew Wilkie would vote against the Bill.

"They said, 'We fixed it, because we have forced the government to accept a definition of 'systemic weakness'," Bandt said, referring to the Labor party, and went on to ask what a systemic weakness is.

"[Does it ] count as a systemic weakness if you say: 'I'm just introducing a backdoor into your app for a particular group of particular people. It's only them that we're going to spy on'?

"Who knows? Probably. What does it mean by 'a whole class of technology'? Does that mean a particular app? What if a particular app is operating in a particular state or with a particular group of people, are they exempt? Who knows? It still doesn't deal with the fundamental point that I raised before, which is that once you open that door, you create a systemic weakness," Bandt said.

Also: How government haste is ruining its own anti-encryption law

Bandt then hit out at Labor's backdown after it "showed a bit of spine" earlier in the week.

"What we're seeing here is a repeat of every time that the Liberals bowl up something that threatens people's liberty and security -- as long as they put the stamp 'national security' on the front of it, Labor falls into line," he said.

"It doesn't matter what threat it has to our industry, what threat it has to our security, or what threat it has to our safety -- Labor will do it."

Wilkie added that far too often, Australia's major Coalition and Labor parties hand over whatever powers the country's national security agencies ask for.

"We should never just say yes to every request, because it's in the nature of the security services to ask for every possible tool they can get their hands on, to the point where they would have way more than is in the public interest if you gave them everything they wanted. So sometimes, in this place, we've got to be prepared to say no," he said.

"If the security services were able to access any and all encrypted communications, I agree that that would help the security services. But at what point do you rein them in and say: 'You're asking for too much. You are asking us to extend the power of the state beyond what is reasonable'?

"If you were to give the security services everything they want, they'd probably have rockets and missiles and be able to do who knows what. You've got to rein them in. That's our job. Our job is just as much to be a check on the power of our security services as it is to give them the tools they need.

And I do worry that, in this country nowadays, governments, supported by oppositions, are too quick to give the security services everything they want."

Read also: Everyone will use encryption, Australia should get over it: UN Special Rapporteur

The Bill then entered into the Senate, and the government and certain members of the crossbench used delaying tactics to prevent a Bill on the release of refugee children in detention on Nauru from being sent back to the House before it adjourned.

The tactics were successful, and members of the House left for the summer break.

Australian Greens Senator Jordon Steele-John said the Bill was one of the "most dangerous and least thought through pieces of legislation" to be presented to Parliament.

"History will record this as one of the most profound failures of leadership of the Australian Labor party," Steele-John said.

"These decrepit laws, these insults to the Australian people will be repealed.

"I warn you now, there is a whole internet out there -- you are being watched. The internet remembers, the betrayal will not be forgotten."

At 6.40pm AEDT on Thursday, December 6, 2018, Labor leader Bill Shorten, alongside Dreyfus, strode out in front of the cameras, and gave a press conference detailing how Labor would capitulate because the House was no longer sitting.

Labor withdrew its amendments, which earlier in the day Dreyfus had said were "important".

The Bill is now law. Australia's fate is sealed. It is a complete victory for the Morrison government.

Attorney-General Christian Porter later said that the government will only consider Labor's amendments, meaning there is no agreement to pass them.

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