Encryption law falls short on rights safeguards

Human Rights Commissioner Edward Santow warns significant threats to human rights remain despite some improvements to Australia’s encryption law.

“Police and security agencies must be equipped with robust powers to protect our national security. However, these powers need independent oversight, to ensure any impact on our human rights is proportionate to the relevant risks,” said Commissioner Santow.

“This new law will dramatically increase the access of intelligence and law enforcement agencies to the private communications of ordinary Australians, with implications for our right to privacy and freedom of expression.

“The Commission, and the public, have not been given a sufficient opportunity to review and comment on yesterday’s amendments prior to them becoming law. If Parliament has failed to strike the right balance on national security and human rights, harm to individuals cannot be undone after the fact.

In a submission to the Parliamentary Joint Committee on Intelligence and Security in October, the Human Rights Commissioner raised concerns with several features of the original Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 and recommended 54 amendments to ensure greater protection for human rights.

“The amended bill narrows the scope of the assistance scheme and enhances safeguards and oversight. The Commission welcomes these amendments, but they do not go far enough to address the significant human rights concerns previously identified by the Commission,” Commissioner Santow said.

“Among other issues, there is still no provision for independent judicial authorisation. The additional safeguard allowing an independent assessment of whether a Technical Capability Notice should be given does not go far enough to ensure appropriate use of the assistance scheme. This process is not mandatory or binding. Decision-making power remains with the Government, rather than with an independent judicial officer.

“The Commission welcomes the opportunity for further review of this law.”

Media contact: Rania Spooner, 0448 939 997, rania.spooner@humanrights.gov.au