Duelling ghosts battle over encryption laws in a dying Parliament

After just two hours of debate, Australia's encryption law amendments are now stalled in the Senate until April. Only one key amendment was passed, but both government and opposition can claim a win.

When Australia's Labor opposition caved in and Parliament rushed through the Telecommunications and Other Legislation Amendment (Assistance and Access) Act in December 2018, it was with the understanding that further amendments would be debated in the next session -- which is now.

Intelligence and law enforcement agencies had been given controversial new powers proscribed by confusing and ambiguous definitions that triggered concerns that employees might be dragooned in secret to create vulnerabilities in communications products and services. It wasn't what Labor wanted, but apparently the laws were urgently needed to protect us over Christmas, so through they went.

On Wednesday, the government made good on that understanding, and introduced the innocuously named Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019.

It was a mere shell to begin with, proposing to give these new communications access powers back to federal and state anti-corruption bodies after they'd been removed during last year's debate. Their return had been recommended by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) -- and by logic. Agencies investigating corruption surely need at least the same powers as the agencies they're investigating.

But such shells are intended to be placeholders in the legislative agenda, with further amendments added as debate continues -- and that happened on Thursday morning.

Labor amendment (PDF) dumped the problematic definitions of "electronic protection", "systemic vulnerability", "systemic weakness", and "target technology", and replaced them with text that described the undesirable outcomes.

So, prohibited would be:

  • The implementation or creation of decryption capabilities;
  • An action that would render authentication or encryption less effective; and
  • An act or thing that could create a material risk to otherwise secure information or could be accessed, used, or compromised by a third party

Other clauses in the amendment clarify that technical assistance requests, technical assistance notices, and technical capability notices cannot be used to access the information of people who are not the subject of, or communicating directly with those who are the subject of, an investigation to which the request or notice applies.

Overall, this amendment is a significant tightening of control. The focus on the prohibited outcomes removes doubt about whether a weakness or vulnerability is "systemic", or whether part of the technology stack is the "target technology".

It gives agencies less wiggle room in deciding what they can and can't do -- and remember, it's the agencies that decide these limits, not an independent judge or the like.

This is probably why the government tried to vote down this amendment, but they failed 37-28.

Labor claimed a win.

"It's a win for common sense," said Shadow Attorney-General Mark Dreyfus in a press statement.

"Labor has listened to the many stakeholders in the telecommunications and tech industry who have put forward strong arguments in support of the amendment passed today."

second Labor amendment [PDF] was intended to limit the "voluntary" technical assistance requests to only the acts or things specifically listed in the law, and nothing else, but debate was suspended for regularly scheduled Senate business before it came to a vote.

And that's when everything ground to a halt.

No guarantee amendments will pass before federal election

The rules of the game are that the government decides the order of play in the Senate, and the government has decided that further debate on this Bill will now be "postponed till the next day of sitting".

That's Tuesday, April 2, one of just two Senate sitting days currently in the parliamentary calendar. They're also probably the last Senate sitting days before the federal election, which for complicated practical and tactical reasons is likely to be Saturday, May 18.

Strategically, that's a win for the government.

The government has fulfilled what many assumed to be a promise by resuming the debate about these laws in this first Senate session of 2019. Done.

But they also promised to wait for a further review by PJCIS. That review is still receiving submissions until February 22, and only has to report back by April 3. To say that's a tight deadline is an understatement.

Even if the PJCIS reports promptly, and even if the Senate manages to get around to debating this Bill again amid its backlog of around 50 items of legislation, and even if it makes it to a vote, the legislation still has to be passed by the House of Representatives.

The House of Reps does then have five more sitting days before the election, but even so, there's no guarantee it'll make it into the agenda.

The government has already made it clear that it wouldn't accept all of Labor's amendments.

"There was obviously a committee process, and we'll entertain amendments that are consistent with the joint recommendations from that committee in the supplementary advice they provided," said Home Affairs Minister Peter Dutton in December.

"But we're not going beyond that so Labor can try and water it down through whatever means they like."

The government could reject the Senate's amended Bill, or pass it with a single amendment, returning it to the shut-down Senate. Then, no matter who wins the election, it's off the table, because the new Parliament has to start everything afresh.

Even though the Coalition is unlikely to win the election, meaning that Prime Minister Scott Morrison is a dead man walking, the first act of a Labor government probably wouldn't be kicking off another tilt at controversial national security legislation.

Meanwhile, the spooks and the cops could continue using the communications access powers as they are now, without even the amendments debated this week.

If that seems cynical, note that on Thursday, the House of Representatives saw the government filibuster Question Time for a record time to avoid a vote that it was likely to lose. And back in March 2017, the government ran out of business in the Senate, so filibustered until 3am and started again at 9am to prevent losing control of debate.

In these desperate, dying days of Australia's 45th parliament, anything is possible.

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