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The Federal Government and the Labor Party have reportedly reached a compromise on the encryption bill and it will clear Parliament before Thursday, the last sitting day for the year.

In a statement issued on Tuesday evening, Shadow Attorney-General Mark Dreyfus said the government had made what he characterised as "important concessions" on its earlier position on the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018.

"It appears the government will agree to proposals by Labor that will ensure there is better oversight and limitation of the powers in this bill, and better safeguards against potential unintended consequences," Dreyfus said.

"These are still subject to agreement by the Parliamentary Joint Committee on Intelligence and Security, and further details will be contained in its report on the bill."

He said the changes included limiting use of the new powers in the bill to serious offences, "properly defining key terms in the bill, and requiring a 'double-lock' authorisation process for Technical Capability Notices".

One of the terms that Dreyfus has sought to define during the PJCIS hearings has been the term "systemic weakness", which is something the bill forbids introducing into any system as a result of building new functionality for the purpose of gaining access to encrypted communications.

According to the original draft of the bill, when a technical capability notice is issued, the final authority would be only the attorney-general. Under the compromise, the communications minister of the day will also provide oversight.

There are three ways in which law enforcement can seek help from industry. A “technical assistance request” allows for voluntary help by a company and its staff will be given civil immunity from prosecution.

An interception agency can issue a “technical assistance notice” to make a communications provider offer assistance.

Finally, a “technical capability notice” can be issued by the attorney-general at the request of an interception agency. This will force a company to help law enforcement, by building functionality.

Dreyfus said: "Importantly, the PJCIS will continue its scrutiny of the bill into 2019, allowing for outstanding concerns to be worked on and further amendments considered in the new year, if necessary."

The sixth and last hearing of the PJCIS was scheduled for Tuesday but, in the face of disagreement between the government and Labor, was cancelled.

"Following the extraordinary interference with this committee by the Minister for Home Affairs and Prime Minister, Labor welcomes the constructive negotiations conducted with the Attorney-General over the past two days," Dreyfus said.

"Let me be clear – this bill is far from perfect and there are likely to be significant outstanding issues. But this compromise will deliver security and enforcement agencies the powers they say they need over the Christmas period, and ensure adequate oversight and safeguards to prevent unintended consequences while ongoing work continues – just as Labor proposed.

"I want to issue a call to the government – the trashing of bipartisan process and politicisation of national security that has occurred over the past month must never happen again. There is nothing more important than keeping Australians safe – the government must remember that."

Reacting to the compromise deal, Communications Alliance chief executive John Stanton said he needed to see the details of the agreement between the government and Labor before offering substantive comment.

Stanton, one of the loudest voices opposing the bill, said: "If the revised draft Bill attempts to define ‘systemic weakness’ — as it should do — it is important that this definition not be so narrow that it allows substantial and dangerous back-doors to be ordered by enforcement agencies and yet escape being identified as systemic weaknesses.

“Additional oversight of enforcement agencies and actions under this legislation are welcomed, but this should include the right to an independent assessment of whether the orders made by agencies upon communications providers are reasonable and proportionate and can be complied with – not just whether the orders would create a back-door.

He said he would await further detail, including the kind of consultations that the PJCIS would undertake in the new year and whether they would be able to provide the additional amendments that the law would need.

Stanton thanked the PJCIS, and Dreyfus in particular, "who stuck to their guns and pursued their inquiry in a professional way, despite enormous and inappropriate pressure from the government to curtail their work".

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Sam Varghese

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Sam Varghese has been writing for iTWire since 2006, a year after the sitecame into existence. For nearly a decade thereafter, he wrote mostly about free and open source software, based on his own use of this genre of software. Since May 2016, he has been writing across many areas of technology. He has been a journalist for nearly 40 years in India (Indian Express and Deccan Herald), the UAE (Khaleej Times) and Australia (Daily Commercial News (now defunct) and The Age). His personal blog is titled Irregular Expression.

 

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