Shorten defends process of passing encryption laws and reviewing later

Opposition leader Bill Shorten has said he will take half a win.
Written by Chris Duckett, Contributor

Despite acknowledging concerns within Australia's new encryption-busting legislation, which became law on Thursday night as the Labor party abandoned its own amendments, opposition leader Bill Shorten said the result was a "sensible compromise".

"I wasn't prepared to walk away from my job and leave matters in a stand off and expose Australians to increased risk in terms of national security," Shorten said on Friday morning.

"Once the government ran away from the Parliament, at that point I thought we need to get to a sensible conclusion."

Labor dropped its amendments on an understanding that the Bill would be amended in the new year; however, Attorney-General Christian Porter said after the legislation was passed that the government would only consider the amendments.

Must Read: Australia now has encryption-busting laws as Labor capitulates

Shorten said it was enough to have Senator Cormann in Hansard saying the government would support amendments consistent with the recommendation of the Parliamentary Joint Committee on Intelligence and Security (PJCIS), and the amendments would be considered during the first week that Parliament sits in 2019.

The opposition leader did concede the laws were rushed.

"It is not a perfect solution. And to all of those who are concerned about the economic impact of this legislation, we hear you -- and we've said we want to review it," he said.

"But in the meantime, I think Australians are over the games and people standing in two different corners yelling at each other and throwing rocks and insults.

"I will take half a win, and move forward, than simply continue this sort of angry shouting."

Australian Human Rights Commissioner Edward Santow said the laws have significant threats to human rights.

"This new law will dramatically increase the access of intelligence and law enforcement agencies to the private communications of ordinary Australians, with implications for our right to privacy and freedom of expression," Santow said.

"The commission and the public have not been given a sufficient opportunity to review and comment on yesterday's amendments prior to them becoming law. If Parliament has failed to strike the right balance on national security and human rights, harm to individuals cannot be undone after the fact."

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

The commissioner said that while he welcomed the amendments made yesterday, they fell short of what they should have been.

"Among other issues, there is still no provision for independent judicial authorisation. The additional safeguard allowing an independent assessment of whether a Technical Capability Notice should be given does not go far enough to ensure appropriate use of the assistance scheme," Santow added.

"This process is not mandatory or binding. Decision-making power remains with the government, rather than with an independent judicial officer."

Speaking to the PJCIS last month, United Nations Special Rapporteur Joe Cannataci said the then-proposed laws would be tossed out of European courts due to the right to privacy.

"I would be pretty confident that it would not only be found deficient by the United Nations Committee on Human Rights, but also it would be thrown out quickly out of the European courts on amongst a plethora of shortcomings," he said. "It does not offer the adequate safeguards."

Cannataci added that if the Bill was passed, Australia would be setting a bad example for the rest of the world.

Kimberlee Weatherall, professor of law at the University of Sydney, warned on Twitter that upping the threshold in the legislation to crimes carrying a penalty of at least three years imprisonment or more still covers a great many offences.

"Three years covers most copyright infringement offences at the indictable level (which does not require that the infringement cause substantial damage or be on a mass scale). Also [trademark] infringement," she wrote.

When the Bill hit the floor of the House of Representatives yesterday, a procession of Labor MPs detailed how unsatisfactory the Bill was, and how they would still vote for it.

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