Government Releases Exposure Draft of Bill to Regulate Data Encryption and Law Enforcement

Tuesday 11 September 2018 @ 10.58 a.m. | Crime | Legal Research

The exposure draft of the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (Cth) was released by the Minister for Law Enforcement and Cyber Security, Angus Taylor, on 14 August 2018.

The Bill, if passed, will provide a more contemporary framework to allow law enforcement agencies to better navigate and access data in today’s digital environment. The Bill focuses on data encryption as a key issue to be addressed in these amendments.

Data encryption is an ongoing issue for Australian police forces investigating criminal and terrorism-related activities. With more than 90% of the data intercepted being encrypted, the Minister for Law Enforcement and Cyber Security estimated that around 200 active investigations were affected in the past 12 months.

The Department of Home Affairs stated on the Bill’s consultation website:

“Obstacles to the lawful access of communications significantly impacts the ability of law enforcement and security agencies to enforce the law, investigate serious crimes and protect the public. The measures in [the Bill]… will help our agencies overcome these challenges.”

The reforms aim to give law enforcement access to specific communications whilst maintaining the security of a network.

The Bill aims to:

  • Establish a framework for Australian government agencies to engage with both domestic and international communication providers
  • Update existing search warrant powers to take into account the complexity of modern communication devices
  • Enhance the ability of the Australian Security Intelligence Organisation (‘ASIO’) to tap into public assistance

The Department of Home Affairs clarifies that the Bill does not force communications providers to build backdoors into their encryption systems. However, it will require providers to offer technical details to their systems and assistance to law enforcement agencies.

Industry assistance framework

The Bill will put obligations on both domestic and offshore organisations to assist law enforcement and security agencies to access information. This Bill will also shift the onus on telecommunication providers to give security agencies access to communications relevant to ongoing investigations.

Strengthening search warrants

The amendments in the Bill would also allow law enforcement agencies to execute warrants remotely, and extend the time afforded to them to process the data from 14 days to 30 days. The Bill will also increase the penalties for non-compliance. Under the current law, where a device is subject to an existing search warrant, the owner of the device can be ordered to provide access and failure to do so results in a maximum two year imprisonment. The Bill reassesses the gravity of non-compliance in these scenarios, and increases the maximum sentence to a five year imprisonment.

ASIO assistance powers

The Bill will also make amendments that ensure that individuals who assist ASIO in accordance with a request will receive civil immunity. In other words, these individuals will not be subject to any civil liability in relation to their conduct, for example, for breach of contract. This immunity will also extend to persons who offer unsolicited information, as long as they reasonably believe that this information will assist ASIO.

Under the amendments, ASIO may also apply for an assistance order which requires a person to assist them with access to a computer. However, the Attorney-General must be satisfied of reasonable grounds and that access to this information will substantially assist the collection of information important to the security of the country.


Some commentators have expressed reservations about the Bill. For example, Monique Mann, Vice Chancellor’s Research Fellow in Regulation of Technology, at the Queensland University of Technology, argues that such a Bill would unnecessarily broaden and strengthen the current powers of the police, and that the Bill would result in further encroachment to the privacy of Australian communications.

Public comments are welcomed by the Government; submissions should be emailed to by 10 September 2018.

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