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Wednesday, 05 December 2018 11:43

Encryption bill: Labor can no longer describe itself as the Opposition

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Encryption bill: Labor can no longer describe itself as the Opposition Pixabay

There are few things in life which are predictable. Among them are the reaction of the Australian Labor Party to national security legislation.

Initially, the party says it needs to examine the legislation carefully and is unable to say anything until it has done so. Then it starts getting a few hurry-up calls from the government and appears to bite back.

But that is deceptive. The party ends up making some meaningless changes — else would the government accept it? — that benefit no-one and passes the law.

Its response to the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 has been no different. After five days of hearings before a parliamentary panel, Labor acted as though it would not give in unless what it wanted was done.

But finally, it gave in and agreed to vote for the bill, afraid that it would be seen as being weak on national security. Or maybe senior Labor officials, like Mark Dreyfus, the shadow attorney-general, were reminded of what happened to the late Gough Whitlam in 1975, and realised that the Americans want this law in place.

After that it was a no-contest.

Dreyfus has been going on and on about a definition for the term "systemic weakness". He was told by tech-savvy people — like the chairman of encryption technology firm Senetas, Francis Galbally — that it was not possible to define the term.

Galbally told the Parliamentary Joint Committee on Intelligence and Security last Friday that it was not possible to have knowledge of what a systemic weakness was until it manifested itself.

But did Dreyfus listen? No, he insisted that a definition would have to be one of the additions to the text of the bill when he was negotiating with the government to cut a deal. What good will it do? Well, it will satisfy Dreyfus, that's all.

Another change that Dreyfus said he had negotiated was that the new powers in the bill would only cover serious offences. Plus the communications minister of the day would also act as an overseer in the case of technical capability notices, where the attorney-general can insist that a company provide assistance to a law enforcement agency which wants to break encryption.

There are three ways listed in the bill by which law enforcement can get industry to aid in breaking encryption. 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 then 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.

What about the question of trust that Galbally and others raised during the five days of PJCIS hearings? It looks like Dreyfus forgot about that.

Seldom has any bill, national security or otherwise, seen the level of objections and criticism that this bill has. It attracted 343 public submissions before it made its way to the PJCIS. Then there about 100 submissions made to the panel, some of them the same as were made earlier.

The Department of Home Affairs did not put up about 500 other submissions. Plus there were thousands of one-liners, simply saying the bill should be dropped.

But both Labor and the government know much better than all these people what is best for the country, the economy, and all those serious things which you and I are not supposed to think about.

Until yesterday, I thought the silliest thing I had seen a Labor politician do, was Mark Latham signing a big cardboard pledge during the 2004 election campaign to indicate that he would always keep the budget in surplus.

But Dreyfus has now topped that by a country mile. Meanwhile, down at Senetas, they must be trying to figure out where they will move their manufacturing of the $1 billion-plus worth of product they sell to other countries.

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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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