In Australia, major amendments to encryption law are a step in the right direction

Earlier today, Access Now joined a coalition of leading rights groups in Australia in public comments on newly introduced amendments to the deeply flawed TOLA (Assistance and Access) Act 2018. Read below for the joint press release, originally published here by Digital Rights Watch.

A coalition of human rights organisations, telecommunication industry, and technology companies have today commented on the proposed amendments to the TOLA (Assistance and Access) Act 2018, tabled in the Senate by Senator Kristina Kenneally.

“It’s welcome to see the introduction today of Labor’s proposed amendments to these deeply flawed laws – a long-overdue edit to this fundamentally bad legislation,” said Digital Rights Watch’s Lizzie O’Shea.

“These amendments are a good starting point, but far from a full solution. Tinkering at the edges of badly designed legislation is not going to solve the underlying problem – that the powers being handed out to law enforcement are poorly designed and infringe on individuals’ privacy and the security of the Australian digital economy and society.”

The Bill proposes several key alterations to the TOLA Act which follow the bipartisan recommendations that emerged from the Parliamentary Joint Committee on Intelligence and Security (PJCIS) inquiry into the text earlier this year. The recommendations include restricting access to the Act’s powers by interception agencies of State or Territory, introducing a judicial authorisation requirement for the deployment of certain powers, and ensuring robust transparency by removing the ability of the Minister for Home Affairs to edit and delete information in reporting.

“The amendments were promised over a year ago, so even though they deliver several key improvements, the public is owed an explanation as to the delay. It seems an odd timing that they are only introduced now, after the U.S. Congress demanded that the Act be amended as a prerequisite to negotiating a data sharing agreement between the US and Australia,” added Lucie Krahulcova, Policy Analyst at Access Now.

“At a minimum, we need to see proper and public reporting on these powers – how many times have they been used, by which agency, what kinds of requests/notices have been sent?”

“These laws were rushed through Parliament in the very last sitting period of the previous year, despite widespread opposition from members of the public, civil society, academia, security experts, and technology companies, ostensibly on the back of a promise to Labor that the PCJIS recommendations would be enacted at a later date,” said Dr Suelette Dreyfus of Blueprint for Free Speech.

“It’s now on the Government to keep to that promise and support the passage of these amendments. That would go at least some way to restoring the Australian public’s trust in a Parliament that has failed to grasp the true gravity of their decisions.”

“Recent moves by the Federal Government have crystallised concerns that it not only seems set in an alarmingly authoritarian path more generally, but also fails to appreciate the threat it poses to the IT, communications and personal information security of Australians and Australian businesses by undermining encryption. This proposal to reconsider the worst elements of that plan is welcome and overdue, hopefully the first step in a wider review of the dangerous path Canberra is stumbling down,” said Roger Clarke of the Australian Privacy Foundation.

“Labor’s proposed amendments to the TOLA Act are positive; however, the context of this legislation must not be lost. The Bill was irresponsibly rushed through parliament despite significant concern being raised by digital rights and civil society organisations regarding the significant increase in Australia’s mass surveillance agenda,” said Angus Murray, Vice President of the Queensland Council for Civil Liberties & Chair of Electronic Frontiers Australia’s Policy Committee

“For this conversation to be meaningful, it must start with a complete repeal of the TOLA Act and prioritise a focus on implementing an enforceable federal human rights framework.”

Notes to editors:

  • A further PJCIS review and an independent review of the legislation by the Independent National Security Legislation Monitor (INSLM), on the grounds of necessity and proportionality and impact on individual rights, are currently ongoing.
  • Polling commissioned by Digital Rights Watch in July 2019 showed that 71% of Australians had concerns that law enforcement agencies have the power to break into encrypted communications systems.
  • Polling undertaken by an alliance of human rights groups and technology companies in October 2018, when the laws were being debated in Parliament, showed that 84.8% of Australians believed it was important that anything the Government does to combat crime should not create weaknesses in Australia’s online security systems.

The following organisations support the repeal of or comprehensive amendments to the TOLA Act:

  • Access Now
  • Australian Privacy Foundation
  • Blueprint for Free Speech
  • Communications Alliance
  • Digital Rights Watch
  • Electronic Frontiers Australia
  • Queensland Council for Civil Liberties
  • Thoughtworks Australia