Friday, 30 November 2018 06:04

Encryption bill powers 'may clash with parliamentary privilege' Featured

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The push by Australian Prime Minister Scott Morrison and Home Affairs Minister Peter Dutton to bring the encryption bill to a vote before Parliament rises for the year is facing an obstacle, after Senate president Scott Ryan raised the possibility that powers in the bill could conflict with parliamentary privilege.

In a submission to the Parliamentary Joint Committee on Intelligence and Security, which is currently inquiring into the bill — formally known as the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 — Senator Ryan said parts of the bill clashed with ongoing work to secure privilege rules against executive investigative powers.

Both Morrison and Dutton have put pressure on the PJCIS to complete their inquiry into the bill — the last hearing is scheduled for 4 December — so that Parliament can pass the bill before it rises for the year on 6 December.

"Although the bill does not deal with privilege directly, it sits in tension with work being undertaken across the Parliament to properly secure privilege against the exercise of executive investigative powers," Senator Ryan said in his submission.

Under the bill, it may become impossible for a member of Parliament to claim parliamentary privilege or public interest immunity on material that is seized, because the bill allows for material to be seized without any notification.

"In the Commonwealth jurisdiction, the protection of parliamentary material from seizure under search warrant is governed by an MOU [memorandum of understanding] between the Parliament and the Executive signed in 2005," Senator Ryan wrote.

The scope of that protection was designed to ensure that AFP officers executed search warrants in a way that did not amount to a contempt of Parliament.

After the AFP raid to find out the origin of an alleged leak from NBN Co during the 2016 election campaign, the Senate Privileges Committee had found that documents seized were protected by privilege and should be withheld from the investigation, Senator Ryan said.

The Committee had said that when information, which might attract privilege, was seized or accessed, procedures should be developed to allow claims of privilege to be raised before the seized material was examined.

Senator Ryan said that the Senate had accepted the panel's recommendation that processes should be developed which achieved the objectives cited above.

He said the process was now ongoing and the panel had told him and the Speaker that the use of powers to covertly seize metadata — for which a warrant is not needed — could erode the protections of parliamentary privilege.

"A particular concern to the Senate committee in relation to the covert use of such powers was the question how claims of parliamentary privilege can be raised and resolved when no-one with standing to make a claim is aware that such information is being accessed," Senator Ryan wrote. "These concerns may be exacerbated by the provisions of the Assistance and Access Bill 2018."

He said suitable changes to the bill could be added through amendments if there was no time to examine them and stick to the timetable that the government had laid down for passage of the bill.

Senator Ryan said he had written to Attorney-General Christian Porter and Dutton about the matter. "I note that there is a precedent for the committee to work with the ministers responsible to secure the proper protection of privileged material, as was done in relation to the Foreign Influence Transparency Scheme Bill," he said.

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Sam Varghese

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Sam Varghese has been writing for iTWire since 2006, a year after the site came 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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