SSM plebiscite
Senate President Scott Ryan (Image: AAP)

Some politicians, it seems, are waking up to how much of a threat to free speech and democracy the government’s encryption backdoor bill is — but would prefer to deal with the consequences in-house rather than curb the threat posed by our unsupervised intelligence agencies.

The government’s draconian Telecommunication and Other Legislation Amendment (Assistance and Access) Bill purports, inter alia, to give the government the power to order IT device makers, software manufacturers and operators of apps and platforms to plant malware on and otherwise interfere with phones, tablets and computers in order to intercept consumers’ data before it is encrypted or after it is decrypted. Such malware would be a bonanza for hackers, organised crime and terrorists, potentially rendering vast numbers of devices unsafe or opening the way to ransomware attacks like the 2017 WannaCry attack that originated with malware stolen from the National Security Agency.

Unfussed by the absurdity of proposing to undermine the basic tools for a safe, commerce-friendly internet in the name of security theatre (given virtually all terrorists are already well known to security agencies), the government is putting pressure on the Intelligence and Security Committee to dismiss the concerns expressed by civil society groups, legal groups, government bodies and some of the world’s biggest IT companies and finish off its inquiry into the bill.

That’s despite the committee being chaired by one of its own far-right fringe dwellers, West Australian Andrew Hastie, and including Labor’s Mark Dreyfus, who as Attorney-General approved ASIO’s bugging of Witness K and Bernard Collaery in 2013, breaching their legal professional privilege. 

But earlier this week, Senate President Scott Ryan wrote to the committee to express significant concerns about the impact of the bill on parliamentary privilege, and specifically the capacity of parliamentarians to receive information from whistleblowers free of interference from enforcement and security agencies.

The main issue with covert access in relation to privilege… is that there would be no opportunity for a parliamentarian who considers that material is protected by privilege to raise such a claim…while in some respects the amendments relate to existing powers, they are proposed to be exercisable by additional organisations that do not have MOU arrangements for the execution of warrants where parliamentary privilege may be engaged.

Ryan discusses the controversial case of the NBN “leak” (Ryan’s quote marks) in 2016, when NBN Co, embarrassed by a whistleblowers’ revelation of serious delays and cost blowouts, ordered an Australian Federal Police inquiry that led to AFP raids — accompanied by an NBN bureaucrat — on the offices and homes of staff of Labor senator Stephen Conroy and then a raid on Parliament House to try to track down emails to journalists. The material illegally snatched by the AFP was later determined to be privileged and the execution of search warrants by the AFP were found to be an improper interference in the work of parliament.

Since then, says Ryan, both houses of parliament have been working on strengthening existing protocols around the claiming of privilege in relation to material agencies want to access. “Although the bill does not create these difficulties,” Ryan says, “it extends them, at the same time as the privileges committees are seeking to rein them in.” If agencies are planting malware on the devices of either whistleblowers or even MPs and senators in secret, there will be no opportunity or even awareness of the need to claim privilege.

Having identified a major threat to the ability of politicians to hold the powerful to account, does Ryan propose the the bill be delayed? Does he — heaven forbid — understand that if parliamentary privilege is threatened by the bill, other forms of privilege, or the need for confidential communication that must be protected against the abuse of executive power, are also threatened? No way.

Instead, Ryan suggests the bill be amended to specifically protect parliament, in the future if the committee is in a big rush to wave through the bill now. Or the current intra-parliamentary process for revising protocols around access to material could handle it. But he’d like the committee to recommend something to encourage the issue to be resolved.

Too bad the rest of us don’t have such status to ask for protection against a draconian bill that threatens free speech and a free press, not to mention some democratic basics like legal privilege.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey

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