July 10, 2020, Melbourne (Australia) — Access Now welcomes the publication this week of the final report of the Independent National Security Law Legislation Monitor (INSLM) evaluating whether the Telecommunications and Other Legislation Amendment (Assistance and Access) Act (TOLA) contains sufficient safeguards for protecting the rights of individuals, and whether its provisions remain proportionate and necessary.
“TOLA has become an infamous example of legislation undermining encryption and the vital role it plays in security and privacy online,” said Lucie Krahulcova, Policy Analyst at Access Now. “The recommendations of the independent review, which mirror the concerns of many stakeholders, must be acted on by Parliament if the Australian Government wants to rebuild trust with its technical community and users.”
The report by the outgoing INSLM, Dr James Renwick CSC SC, agrees with several of Access Now’s recommendations, including creating independent oversight and requiring warrants for all powers enshrined under the act. The recommendation to alter TOLA to allow for independent oversight is modeled after the UK’s equivalent law, the Investigatory Powers Act 2016 which Dr. Renwick consulted during his investigation. To obtain access to encrypted communications under the IP Act, an application must be made to both the Secretary of State for Home Affairs and the independent Investigatory Powers Commissioner’s Office (IPCO). Under what is known as the “double lock” system, both the Home Secretary and the IPCO must give approval. In the final report the Administrative Appeals Tribunal (AAT) has been recommended as a suitable substitute already existing in Australia.
“Access Now maintains the position that TOLA should be repealed. However, adopting the recommendations in the independent review is the best alternative to start course-correcting — a minimum requirement that the Government must act on. Policymakers in Government and Parliament must heed the emphasis laid by Dr. Renwick on the greater needs for safeguards to protect rights when it comes to digital systems” added Lucie Krahulcova.
Access Now will be taking a closer look at the full report, and will provide further analysis to guide policymakers in the coming weeks.
Background
Passed in December 2018 in an expedited legislative process requested by the Australian Government, the Assistance and Access Act poses a grave risk to human rights and digital security around the world. Access Now maintains that the Act should be fully repealed in order to ensure adequate time for a full consideration of the breadth and scope of its provisions, which did not happen prior to passage. However, absent a repeal, we have advocated that it be substantially amended to limit these risks, and others, including risks to Australia’s national security and digital economy. The potential for the Assistance and Access Act to be used in damaging — and even life-threatening — ways will only increase as more devices, appliances, and basic infrastructure, including bridges and electricity grids, become internet-operated and enabled.