Australia rushes through new data laws despite expert warnings over unintended consequences

The Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 allows law enforcement and intelligence agencies to intercept encrypted communications in the investigation of offences punishable by at least three years in prison.

The Law Council of Australia, the peak national representative body of the Australian legal profession, said the consequences of the law could be “to the detriment of us all”.

Morry Bailes, president of the Law Council, said: “We now have a situation where unprecedented powers to access encrypted communications are now law, even though Parliament knows serious problems exist. This is what happens when you compromise an established committee process and allow the work of Parliament to be rushed and politicised.

“Next year, as well as passing the remaining amendments, the intelligence and security committee needs to be brought back into the frame to get these laws right.”

The Law Council said it was seriously concerned that the law circumvented the need for authorities to obtain a warrant for intercepts, and allowed for individuals to be detained to provide “compulsory assistance” without having access to a lawyer. The law also fails, it said, to make clear that legal professional privilege is protected in all circumstances.

The Electronic Frontier Foundation (EFF), which defends “civil liberties in the digital world”, described the new law as “a cousin” to the UK’s Investigatory Powers Act 2016; the two laws “vary in their details, but both now deliver a panoptic new power to their nation’s governments”.

The foundation continued: “Both countries now claim the right to secretly compel tech companies and individual technologists, including network administrators, sysadmins, and open source developers – to re-engineer software and hardware under their control, so that it can be used to spy on their users. Engineers can be penalised for refusing to comply with fines and prison; in Australia, even counselling a technologist to oppose these orders is a crime.”

Security experts have also warned that measures designed to help law enforcement access encrypted messages will weaken overall digital security, even though the Australian government backed down from earlier efforts to require a “backdoor” in encryption services.

After cryptography experts tried to persuade the government last year that its original plans were fatally flawed, former Prime Minister Malcolm Turnbull famously said: “The laws of mathematics are very commendable, but the only law that applies in Australia is the law of Australia.”

The new law requires technology companies to assist agencies in different ways, for example by secretly swapping suspects onto a compromised version of a messaging app, instead of reprogramming the app altogether.