We’re in the midst of a worsening democracy deficit, and you need look no further to see this on full display than within the shambolic process around the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill. This Bill will introduce unprecedented new powers for government and law enforcement, and Coalition politicians are treating the public, and our concerns about it, with utter contempt. The Liberal/National strain of ‘tough on crime’ has mutated during the never-ending war on terror, the most recent result being yet another trampling of democratic accountability.
First put forward well over a year ago under the Turnbull government, this Bill was touted as the panacea to law enforcement’s frustrations about not having unimpeded access to encrypted communications. The prime minister proudly gloated that Australia would step in to do what no other nation had previously managed to achieve: hack open encrypted communications.
The outcry was swift and fierce: human rights experts, social media giants, technology and security specialists all expressed alarm at the suggestion that a government would be willing to break the underlying architecture of the internet. The government’s draft legislative framework creates powers that are ill-defined yet stunningly broad, lack sufficient accountability and transparency, and put our digital society at risk. These valid and robust criticisms range from the ethical and rights-based dilemmas through to simple practicality and feasibility questions – but the government has yet to respond to even one of these criticisms, much less address any of the concerns.
Perhaps as a result of more than a year of clear opposition, the Department of Home Affairs announced an exposure draft and a subsequent public consultation. Giving Australians the chance to review the legislation and provide their feedback is good procedure for legislation of this complexity. The consultation period may have been laughably short – just a few weeks – which didn’t leave room for many suggestions, but this important democratic step was welcomed by those most connected, including technology companies, human rights groups and privacy advocates.
The range and depth of criticism raised by this draft legislation has been overwhelming – from privacy experts, technology companies, civil liberties advocates, cryptographers, and telecommunications providers. Even the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression David Kaye gave Australia’s attempts to break encryption a particular (and damning) focus in his most recent report.
The (brief) consultation period also generated an enormous reaction from the Australian public, with 15,000 people writing to the government in defence of their right to communicate securely. Frequently we are told that people do not care about their privacy – and indeed this has become the dominant wisdom for many of those lurking in the halls of Canberra. But this strong and sophisticated response makes it clear the public is engaged and concerned. When given the chance, people do take an active interest in the laws that impact them, and they want to protect their rights.
So it was chilling to witness the contempt with which government politicians appear to treat democratic processes, as demonstrated by the list of legislation approved by the Coalition party room, which will be introduced to Parliament in this session, including the Assistance and Access Bill, which contains only minor amendments. That Home Affairs Minister Peter Dutton would move to introduce legislation still under active review only a week ago by one of his own departments demonstrates this government’s utter disdain for views other than their own.
Clearly, this consultation is nothing more than a show for the cameras – a measure designed to tick a box rather than a genuine engagement with a populace who stand to be even more surveilled without due cause. To add insult to injury, the Department of Home Affairs have reneged on a long-standing best practice of publishing all submissions, putting up another obstacle to transparency and accountability.
The public has a right to know whether any of the politicians in the Coalition party room have even read the Bill, or any of the countless submissions, prior to approving it. To put my own money where my mouth is, I am willing to buy any Coalition member of parliament a beer if they can explain to me the difference between a backdoor access protocol, or a systematic weakness, or even provide me with a definition of what should be considered ‘reasonable and proportionate’ when it relates to invading the privacy of millions of everyday Australians.
Compare Australia’s situation with that of the UK’s Investigatory Powers Act (better known as the Snoopers Charter), which has been used as the blueprint for much of Australia’s citizen surveillance. The relevant UK government departments held five separate consultations into the impacts of the Bill, while Westminster itself also undertook multiple parliamentary inquiries. These consultations took years, not a few weeks. When the UK Act did finally pass, amid valid outcry from human rights advocates, at least some judicial scrutiny of key powers was put in place. The Australian version, on the other hand, grants enormous powers without the need to even obtain a warrant.
The decision to steamroll legislation into parliament reflects a lazy indifference to a deeply serious and complex bill, and is nothing short of a flagrant abuse of process. Opposition to the Bill ought not be simply ignored, and this government would do well to heed this as a warning. Politicians work for us, and it is time they were made to realise that.
We expect our parliamentarians to act on behalf of, and towards the best interests of, the people. The Morrison government should be availing themselves of the feedback of those experts who made lengthy and detailed submissions to the departmental consultation, not sweeping them aside in pursuit of an ideological imperative. Unless they fix their ignorance, we will be sleepwalking into a digital dystopia.
Image: Binoculars / flickr