Labor says it will fix encryption laws it voted for last year

Better late than never for agreeing to judicial authorisation, but legislation is unlikely to pass the House of Representatives.
Written by Chris Duckett, Contributor

This time last year, the Australian Labor Party waved through the government's encryption Bills, formally known as the Assistance and Access Bill, and threw out the line the laws were needed to keep the nation safe.

"Let's just make Australians safer over Christmas," then Labor leader Bill Shorten said at the time.

"It's all about putting people first."

Fast forward to December 2019, and after losing a May election, the opposition has decided it wants to introduce legislation to "fix" the encryption laws.

As long as the government majority holds, and there are no signs it would not, then the legislation will die on the House of Representatives floor.

"The Morrison government have broken their promise to Australia's tech sector and by failing to amend their encryption laws -- putting a handbrake on the digital economy, and hindering the creation of jobs, productivity and growth of the economy," Shadow Minister for Home Affairs Senator Kristina Keneally, Shadow Attorney-General Mark Dreyfus, Shadow Communications Minister Michelle Rowland, and Shadow Assistant Minister for Cybersecurity Tim Watts said in a statement.

See also: Schneier slams Australia's encryption laws and CyberCon speaker bans

Labor waved the Bills through Parliament after seeking assurances that the government would agree to amendments in the new year.

In a performance reminiscent of Charlie Brown trying to kick a football, the government was successful in stranding Labor's amendments prior to the May election.

"A majority of the Senate voted for those amendments but the government, which still maintains that this rushed legislation is perfect, has shut down debate on those amendments, and so, regrettably, we will not be able to pass them before the election," Dreyfus said at the time.

He added that Labor would pursue its now stranded amendments in government -- which clearly never happened -- as well as require authorisation from a judicial officer in order to issue Technical Assistance Notices or a Technical Capability Notices.

That requirement is part of the legislation announced by Labor on Tuesday.

"The government's encryption legislation are not compliant with the US CLOUD Act -- making it harder for Australian law enforcement to quickly access the information they need to fight crime, making Australia a more dangerous place to live," the quartet said without acknowledging their part in making Australia less safe a year ago. "To address these concerns, Labor's amendments will introduce a judicial authorisation requirement to provide assurances to the United States Congress that Australia's laws are compatible with the US government's CLOUD Act."

The legislation will be introduced into the Senate as a Private Senator's Bill on the second last sitting day of the year.

"The government should put partisan politics aside and support this Bill, in both the House and the Senate, in order to honour the commitment that they made to the Parliament last year, and fix the mess they created for Australian innovation and technology businesses," the quartet added, again without any allusion to Labor waving the encryption Bills through.

Last year, a parade of Labor members stated 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," Dreyfus said at the time, as he pointed out in incompatibility with the CLOUD Act.

Speaking on the same day, Watts said the powers in the soon-to-be laws were 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.

Both Dreyfus and Watts would vote for the Bill.

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," he said previously.

Leading up to the election in May, Husic stated that "win, lose, or draw" the Australia Labor Party would be reforming the Act.

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