EFA raises mass surveillance concerns in INSLM’s encryption act review

Electronic Frontiers Australia’s Angus Murray attended the public hearing of the review by Australia’s Independent National Security Legislation Monitor, Dr James Renwick SC into the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth) (TOLA).

Mr Murray (Chair of EFA’s Policy Committee) raised EFA’s serious concerns to Dr Renwick SC at the hearing on 20 February 2020 that the legislation has the potential to be used for mass surveillance of the Australian community beyond the scope of the intended purpose and that appropriate checks and balances are required against such a system.

EFA submits that the most critical of these are:

a federal enforceable human rights framework in Australia
judicial oversight of the issue of all Technical Assistance Notices (TAN), Technical Capability Notices (TCN) and Computer Access warrants.

Mr Murray stated in his submissions at the public hearing:

“It was irresponsible of Home Affairs and irresponsible of the Federal Government to push this legislation through in the rushed manner that it did without completing the proper consultative process. The fact that this process is ongoing is clear evidence and demonstration of that fact.”

“It is appropriate and responsible for government to repeal this legislation, and do so until such time as Australia has a federal enforceable human rights framework that brings us to stand with other Western democratic societies and countries. “

“The Act is not proportionate to Australia’s reasonable expectation of fundamental human rights and is negatively impacting trade and Australia’s bilateral and multilateral trade agreements.”

The definition of ‘computer’ by the Act and associated legislation means computer is now defined effectively to be access to the internet. Those covert computer access warrants may be issued retrospectively, are done covertly, and with the consequence of the amendment to the definition at section 6 of ‘computer’, is access to what could be, retrospectively and covertly, the internet at large.

Mr Murray has additionally authored a supplementary submission to INSLM addressing the concern’s of EFA as to the potential for the Act to be used for mass surveillance.

EFA welcomes the review by the INSLM into this flawed legislation and the review also occurring concurrently by the Parliamentary Joint Security and Intelligence Committee (PJCIS).

EFA has been invited to participate in the PJCIS public hearing into the Review of the amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 to be held on 27 March 2020 and Mr Murray will be appearing at 9am.

The INSLM report is expected to be completed by 30 June 2020.