This morning's news says:
Australia’s law enforcement agencies have a wide range of new
encryption-busting powers after Labor dropped all opposition to a highly
contentious bill and let it pass without extra changes it claimed all
day were needed. ...
[Just when you think Australian politics can't lower its standards any
further, Labor manages to behave in the most cowardly way imaginable.
[Questions also need to be asked about the constitutionality of the
process that Shorten's 'low-target' strategy enabled:
Labor's shift caught even the senate off-guard, and led to farcical
scenes as senators learned that the amendments they were debating had
been pulled.
[The Senate then failed to exercise its responsibilities as a house of
review, and delay consideration of the Bill until the next sittings.
[Whether or not the amendments that Labor pretends that it's negotiated
are ever passed, the statute is a nonsense, but a seriously
trust-destroying one.
[We've reached the point at which a considerable number of laws on the
books have to be simply ignored by business, and by the public generally.
[If that offends your sensibilities, take into account the fact that
Governments and government agencies routinely ignore the law.
[A great many laws are not enforced. Some are recognised by the public
service as being outdated or just plain idiotic, and not acted on. Some
(such as requirements for reporting and audit) are not noticed, or are
performed years late. Some agencies and functions that are required by
statute are not funded by the Government of the day (the farce with the
OAIC being a case in point). Appointments to statutory offices are
commonly delayed for long periods. The AFP ignores cases it doesn't
want to pursue, including ones which would be inconvenient to the
Government of the day. The DPP does the same, citing of course lack of
resources. And the last few months have seen serial admissions by ASIC
and APRA of abject failure to fulfil their statutory responsibilities -
with no retribution beyond a day's 'shaming' in the media, and later a
Royal Commission Report which will fail to recommend sackings and
prosecutions, effectively absolving all of the criminal behaviour that
has gone on in the financial services sector. Regulatory processes can
be applied to people, but applying them to organisations is regarded as
being just too hard.
[I started my working life a bit over 50 years ago with positive
impressions of the way that the (Australian) world functioned. As I
gathered experience, across many different fields, I worked at fixing
problems that I ran into, and developing and improving systems that
supported data management and decision-making. But the optimism has
been ground out of me by the absence of commitment and professionalism
in government and business, and the way in which people with limited
competence and no principles (beyond unshakeable belief in
self-promotion) shuffle their way to the top of the pile and infect the
organisations that they 'lead'.]
Australia gets world-first encryption busting laws
Labor passes bill without changes it claimed were needed.
Ry Crozier
itNews
Dec 6 2018
https://www.itnews.com.au/news/australia-gets-world-first-encryption-busting-laws-516601
Australia’s law enforcement agencies have a wide range of new
encryption-busting powers after Labor dropped all opposition to a highly
contentious bill and let it pass without extra changes it claimed all
day were needed.
The bill passed into law by 44 votes to 12 in the senate, having already
cleared the lower house where just two MPs voted against it.
The law gives law enforcement the power to ask technology companies to
create - and then seed - a vulnerability on "one or more target
technologies that are connected with a particular person".
Passage of the bill was achieved after it looked destined to fail.
It was only a last-minute offer - made through a press conference by
Opposition Leader Bill Shorten and Shadow Attorney-General Mark Dreyfus
on Thursday night - that cleared its path.
Shorten said that Labor wanted to pass the encryption bill into law
tonight “so we at least give our intelligence agencies some of the tools
they need”.
“We offer to let the bill go forward, without the amendments which are
needed...provided the government agrees on the very first sitting day,
to pass the amendments we say are needed,” Shorten said.
“What we say to the government right now is if you agree to do the
amendments that you’ve already agreed to do to the encryption laws in
the first week of next year, we will pass the encryption laws -
unsatisfactory as they are - right now.
“I’m not willing to go home and see a terror event happen - which we’re
told is less likely than more likely - but I’m not going to have on my
conscience [Prime Minister Scott] Morrison’s hostage-taking tactics
where he cancels his own work, goes home and lets Australians swing in
the breeze.”
Shorten indicated Labor had reached agreement with the Coalition on the
five sets of extra amendments the party sought to introduce to the
senate tonight.
As a result, he was seeking a commitment that agreement would carry in
good faith if Labor waived the encryption bill through the senate.
The leader of the government in the senate, Matthias Cormann, said the
government would accept the offer.
"I confirm that the government has agreed to facilitate consideration of
these amendments in the new year in government business time," he said.
"I also confirm that the government supports in principle all amendments
that are consistent with the recommendations of the Parliamentary Joint
Committee on Intelligence & Security (PJCIS) in relation to this bill."
However, Attorney-General Christian Porter later said the consideration
of the amendments was conditional.
"To ensure the passage of the bill through the Senate tonight, the
government has agreed to consider Labor’s proposed amendments in the new
year if any genuinely reflect the recommendations of the parliamentary
joint committee on intelligence and security," Porter was quoted by
several media outlets as saying.
Senate caught off-guard
Labor's shift caught even the senate off-guard, and led to farcical
scenes as senators learned that the amendments they were debating had
been pulled.
It was also a sizable backdown on Labor’s position throughout Thursday.
The party repeatedly stated its support for the encryption bill was
predicated on the approval of extra amendments to be raised in the senate.
With the lower house adjourning for the year, that meant the encryption
bill was as good as dead, since any amendments introduced in the senate
would need to go back to the lower house for final approval.
The first available option for that to occur was February 12 next year.
But Labor shocked observers by saying the bill’s powers could not wait,
and that it would pass the bill even though it considered the text
“inadequate”.
Earlier, Labor had said that the encryption bill as it stood did not
even reflect the findings of a rushed report by the PJCIS tabled at
nearly 8pm Wednesday night.
The government started the day by providing Labor with a 50-page
document of 173 amendments in response to the PJCIS interim report at
6.30am.
The same set of amendments was published at 9.22am, giving MPs other
than from the major parties no time to even consider their substance
before being asked to vote on them.
Even Labor complained that the few extra hours it had to go through them
had not been enough.
But it did not stop Labor passing the bill in the lower house and
sending it to the senate.
Deal scrapped
By lunchtime, the encryption bill appeared destined to fail as Labor
accused the Coalition of reneging on a written commitment between
Attorney-General Christian Porter and shadow Attorney-General Mark Dreyfus.
The commitment was that “the government commits to introduce the new
agreed amendments in the senate, subject to the passage of the bill
through the House of Representatives without amendment”.
Manager of opposition business Tony Burke and Mark Dreyfus said the
government had reneged on that deal by introducing changes into the
House of Representatives, and asking Labor to vote them through without
having time to review them.
Burke said that in the short time Labor had had to review the
amendments, they fell short of Labor’s demands and the recommendations
of the PJCIS report.
Therefore, he said, “we will pursue further amendments in the senate
which will then come back to this house for this bill to be finalised.”
Porter countered that PJCIS’ late report - tabled a few minutes before
the 8pm close of parliament last night - forced the government to alter
its approach to the bill.
“It is the case that I indicated in a letter that we were intending to
move the amendments in the Senate,” Porter said.
“That was based on an agreement between the shadow Attorney-General and
I that the PJCIS would report [Wednesday] in a way that would allow us
to move the bill through the House of Representatives yesterday.
“So the undertaking to move the amendments in the Senate was based on
the agreement that this bill would already be in the senate [by Thursday
morning].”
Porter also accused Labor of breaking the deal by having too many MPs
speak during the debate, rather than simply pass the legislation up to
the senate.
“We agreed, if I recall correctly, that there would be a very small
limited number of speakers so we would be able to facilitate this bill
through the house yesterday, and that didn’t happen and that agreement
was breached,” Porter charged.
“The idea that we’re somehow in breach of an agreement is totally false.”
Political pawn
For a farcical period on Thursday, the encryption bill also morphed into
a piece of political leverage.
Labor and other parties had sought to pass a bill in the senate to allow
medical evacuation of refugees on Nauru. Had that bill passed, it would
have been sent to the lower house where the government appeared to lack
the numbers to defeat it.
In response, Prime Minister Scott Morrison said he would consider
closing the lower house early.
Knowing the government was also desperate to pass the encryption bill,
Labor tried to use that as leverage to keep the lower house open - long
enough to also see the refugee bill through.
The refugee bill was scuttled by filibustering in the senate, and the
lower house closed for the Christmas break.
However, the lower house’s adjournment meant it also could not consider
any changes to the encryption bill that were introduced by the senate.
That raised the distinct possibility that the bill would be delayed
until February. However, Labor ended that possibility by backing down
completely.
--
Roger Clarke mailto:[email protected]
T: +61 2 6288 6916 http://www.xamax.com.au http://www.rogerclarke.com
Xamax Consultancy Pty Ltd 78 Sidaway St, Chapman ACT 2611 AUSTRALIA
Visiting Professor in the Faculty of Law University of N.S.W.
Visiting Professor in Computer Science Australian National University
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