Gov holds off extending encryption powers to anti-corruption bodies

The federal government appears to have abandoned its plan to extend controversial encryption-busting powers to federal, state and territory anti-corruption bodies, despite previously endorsing such a move.

Labor used the Parliamentary Joint Committee on Intelligence and Security (PJCIS) review of the Assistance and Access Act [pdf] last month to call out the apparent U-turn, for which it said the government has offered “no explanation”.

In the review, the committee supported the ongoing use of the legislation, while making 29 recommendations that would see additional safeguards and oversight mechanisms introduced if adopted.

But absent from the list was the Independent National Security Legislation Monitor’s (INSLM) 2020 recommendation to extend the industry assistance powers to state and territory anti-corruption commissions.

The government had previously sought to introduce amendments to the Assistance and Access Act to extend the powers beyond the Australian Federal Police, Australian Criminal Intelligence Agency and state policing agencies.

When the legislation was introduced in February 2019, the government said the changes would ensure anti-corruption bodies have the “tools... to investigate serious crime, and law enforcement misconduct and corruption across the public sector”.

But the bill lapsed shortly after due to the 2019 federal election and has not been re-introduced by the government since, despite the Independent National Security Legislation Monitor (INSLM) recommending the powers in July 2020.

Labor members said they “strongly disagree with the rejection... of the INSLM’s recommendation to extend the industry assistance powers to state and territory anti-corruption bodies” by Liberal members.

“The position of Liberal members is at odds with the position taken by the Morrison government in late 2018 and early 2019 – but which the [government] appears to have now walked away from. So, what has changed?” they said.

Labor also pointed to the government’s delay to introducing legislation to create an anti-corruption commission at the federal level and recent “attacks” on the NSW Independent Commission Against Corruption.

“Against that background, the fact that the government has walked away from its position that anti-corruption bodies should have access to the industry assistance powers appears to be politically motivated,” the members said.

“As the [INSLM] noted in his report, integrity commissions identified concrete disadvantage that flows from their exclusion from the power to issue industry assistance notices.

“Liberal members have offered no explanation for their refusal to address that “concrete disadvantage.”

Other recommendations in the review include removing references to “systemic vulnerability” in the legislation and conducting a periodic survey of the “ongoing economic impacts” of the legislation on the IT industry.

The review also recommends the legislation be amended to clarify that “designated communications provider does not include a natural person, where that natural person is an employee of a designated communications provider”.

It follows concerns that technical assistance requests (TARs), technical assistance notices (TANs) or technical capability notices (TCNs) could be issued to individuals rather than the carrier or provider they work for.