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Law, Government and Policy 

Part A: Core Concepts

  1. What are the advantages and disadvantages of federalism compared to a unitary system of government? What are some recent examples of policy problems or crises, which required Australia’s state and federal governments to cooperate?

As per the need of today's world, federalism is considered to be one of the most suitable forms of government with worldwide interest. Although, federalism has advantages over the unitary form of Government and disadvantages as well.

One of the advantages with which federalism is superior to the unitary form of Government can be the right guaranteed by this form of government of complete freedom to migrate to any other states as per the wish of the citizens (Walker, 2015). The concept of the vote with one's feet by moving to another state or country is one of the pillars of federalism in Australia providing a better operation of the political systems. The citizens of a unitary government may move to another state but getting a permanent visa is a critical process leading to grave dissatisfaction among people.

As quoted by Justice Brandeis, experimentation in social and economic things is a grave responsibility and denial of such experiment can lead to dangerous consequences for the nation. He advocated the serving of state as a laboratory for social and economic experiments provided the citizens choose to have such a change in the nation (Endelman & Mehta, 2015). The federal structure enables to have experiments and comparison possible in the system with minimal avoidance of evidences chosen by the legislature to undermine the approach selected.

One of the greatest political efficiency of the federal form of government in comparison to unitary system as provided by Professor Bunchanan is the harmonious terms of government with the wishes of the people (Thrasher, 2019). Thus, federalism is guarding against the national fragmentation with the offering of peace and unity.

The advantage of the federation over the unitary system is providing more levels of government with respect to public opinion effecting and addressing the issues. Decentralization of governments enables people to take active participation rather than being a passive recipient and reject the people as a citizen rather than subjects and hence providing a higher degree of legitimacy to the government.

There are various policies and issues in Australia which requires the corporation of the federal and the state governments of Australia in order to get rid of the persistent problem. One such problem is with respect to the composition of the parliament (Daly, 2020). The reflection of diversity of the different communities of Australia in the parliament demands cooperation between the different levels of government. Also, the need to get beyond the parliament to get a solution of the major issues is a concern for the political system of the nation and requires immediate focus. This clearly suggests the diminishing power of the parliament of Australia in the recent decades when compared to the existing in the external organs and political executives like corporations.

  1. What is a liberal-democratic state? To what extent does Australia uphold the values of liberalism and democracy, and in which areas does it need to improve?

The democracy of nowadays is not only about the government by the people but extended to liberal or constitutional democracy (Anton, 2017). The instrument with which a liberal democratic government operates is the liberal democratic constitution which acts as a guide to ensure the proper implementation of check and balance within the system (Anton, 2017). It leads to such form of democratic government where the voice of the masses is represented by the elected representative to take the decision on behalf of them with the assurance of effective implementation of civil liberties and rights governed and instructed by the constitution. The rule of law is one of the pillars of democratic liberal state which ensure the power to be residing in citizens ruled by a government free of corruption and tyranny.

As per the Freedom of Support for 2019, the nation can rise to a position of 6 out of 86 independent nation-states which have fairly embedded with the qualities of liberal democracy (Freedom House 2019: 16). With the expression of democratic elements, the liberal democratic state of Australia has provided its citizens with access to the wide range of political and civil rights. So far, the nation has developed effective liberal values with based on the notion of ‘live and let live’ and free choice. According to Mounk (2018), the democracy of Australia is the consolidating as a result of identity and cultural clash between the authoritarian and liberal values. With the framing of a responsible media environment, these divisions are contained within the boundaries in spite of being at the heart of democracy. Although, the sustainable nature of the liberal democratic rule can even lead to the implications for long-term democratic stability particularly when based on popular legitimacy (Stoker et al., 2018).

With such advancement in nation with implementation of liberal democracy there are areas where the nation needs to uphold the idea of liberal democracy for benefit of nation. One such area where Australia needs to improve with respect to the application of liberal democratic state is the recognition of indigenous. The practice of not sharing the rights of Australians with the indigenous people is marking as an in obedience to the liberal democratic state. The Uluru statement was expected to be a mark of Australian liberalism but instead, it turns out to be a victim of Australian liberalism holding a question of meeting the demands of first nation people with the implementation of liberal democracy (Grant, 2020). the question which has been raised on a liberal democratic state with the failure of indigenous recognition in the nation is about the negotiation over political disagreement if it can be achieved without hampering the civic unity. The Uluru statement provides an opportunity to have a process of refoundation of the nation and addressing this is one of the aspects of liberal democracy which must cater such issues to strengthen the nation and not bifurcate the people of nation.

Part B: Encryption Laws

  1. When did the Bill pass the House of Representatives and the Senate? When did it receive royal assent?

The Bill passed the House of Representatives and the Senate on December 6, 2018, and received the Royal assent on December 8, 2018.

With the engagement of technology-based industries and their submission of concern with evidences to PJCIS, the bill was debated and public statements along with the submission of the stakeholders took place before the media coverage. On December 6, 2018, 67 pages of amendments to the given bill are provided by the government in which some of the issues of PJCIS enquiry along with the technical matters is addressed (Stilgherrian, 2019). At the end of the day, the Bill passed in the houses. Ultimately on December 8, 2018, with the royal assent, this bill took the shape of the law.

  1. What existing legislation did the encryption laws amend, and wherein that legislation can the powers be found?

The recent encryption laws have amended various legislations including Telecommunications Act 1997 as a major. Apart from this legislation, various criminal laws have been amended with the implementation of the encryption law across the nation. The Criminal Code Act 1995, the Crimes Act 1914 and International Criminal Court Act 2002 has been amended where the criminal liability and the period for moving electronic device have been discussed along with various other provisions. It also introduced amendments in the Australian Security Intelligence Organisations Act 1979 and Customs Act 1901. The amendment has provided additional power for the Commonwealth, state and territory law enforcement agencies which are investigating offences related to encryption law and thus provided the authority to obtain covert computer access warrants under the piece of legislation named surveillance devices Act 2004 (Telecommunications Act 1997 (Cth) s 317E). The amendment has also provided authority to the Australian Border Force in which they can request for a search warrant which should be issued for a person who has been seizing a computer or data storage device.

  1. What are the major features of Australia’s encryption laws, as enacted?

The major features of Australia’s encryption laws are:

  • The providers are now not criminally liable for certain computer and telecommunication offences (Rule 7(A) of Schedule of TOLA, 2018) for any acts if the same has been done in adherence of technical capability notices, technical assistance requests and technical assistance notices (Telecommunications Act 1997 (Cth) Division 2 of Pt 15).
  • The change is in respect of the framework in which compulsory and voluntary assistance is to be provided to the intelligence agency and enforcement law concerning the encryption technologies with the issuing of technical capability notices, technical assistance requests and technical assistance notices (TOLA 2018 (Cth) ss 317G(2)(a)(v)–(vi), 317G(2)(b)(v)–(vi)).
  • The amendment has changed the search warrant framework and allowed the law information sent agencies to gather evidences from electronic devices under warrant remotely (TOLA 2018 (Cth) 4 [11]).
  • Another feature of enactment of encryption law is the warrants which are to be issued under the Crimes Act 1919 are no providing access to data and account-based data for the executing officer (Crimes Act, 1919 (Cth) s 3E). Also, the data can be accessed remotely and the data storage device on the computer now can be moved to another location for the purpose of analysis for a period of 30 days which was earlier provided with 14 days only.
  • The penalty feature is also in the encryption law or where a maximum imprisonment of three years can be imposed for commonwealth offences punishable under the Act (Surveillance Devices Act 2004(Cth) s 6(1)).
  1. What reasons did members of the federal government give for introducing the encryption laws? Why did they see the laws as necessary?

The first intention of having an encryption law was shown by the coalition government of 2017 which emphasised the need to have authority to force the technology and telecommunication firms for assisting the authorities to decrypt the suspect messages (Wroe, 2017). The end to end encryption message was provided as a specific problem in this regard. The activities of terrorist with the use of internet were cited as another critical concern for law enforcement and intelligence (Duckett, 2017).

Further in the G20 meeting in Hamburg, encryption law was suggested as a resolution to ensure that the online platforms do not become dark places where the criminals and terrorists can hide themselves (SBS News, 2017). The leaders of G20 emphasised and supported this law with the application of rule of law which should be equally implemented on the online as well as the offline platform (G20, 2017). With the view of having few means to access the data by the law enforcement because of the process of encryption, the Five Eyes contended that the decisions of the courts in matters of data are worthless without a strong encryption law (Australian Government Department of Home Affairs, 2018). The government also raised concern over the role of information communication technology vendors and service providers before the law enforcement agency suggesting the mutual responsibility of these firms to assist these agencies. Also, Australian Prime Minister Scott Morrison asked for enactment of these law stating it to be the need of the policies and agencies of Australia (Duckett, 2018).

  1. Who are the members of the Parliamentary Joint Committee on Intelligence and Security, and what did they recommend in their April 2019report on the encryption laws?

The members of the Parliamentary Joint Committee on Intelligence and Security working on the review of this law under the chairmanship of Andrew Hastie MP (Chairman). Hon Anthony Byrne MP as Deputy Chairman with other members Eric Abetz, Anne Aly, Mark Dreyfus, David Fawcett, Kristina Keneally, Julian Leeser, Jenny McAllister, Amanda Stoker and Tim Wilson (Commonwealth of Australia 2019).

The recommendation made by the members of the PJCIS in April 2019 Review included the following:

  • One of the recommendations made by the committee in this report was regarding the requirement of reviewing the Independent National Security Legislation Monitor (INSLM) within 18 months of the enforcement (PJCIS Advisory Report., 2019).
  • The committee has recommended establishing task force in which information and communication technology, law enforcement, legal and security experts are to included (Recommendation 2).
  • The enhancement of information and communication technology capability and skills of the law enforcement workforce has also been in the recommendation of the committee (Recommendation 4).
  • Taking suggestion from the cybersecurity experts and law enforcement agency to enhance ICT is also recommended (Recommendation 5).
  • The use of artificial intelligence and other search techniques is suggested by the committee for the saturation and sorting of large data volumes (Recommendation 6).
  • Another recommendation by the committee is regarding the review of the consumer protection laws and regulations currently implemented with respect to internet-based devices (Recommendation 8).
  • The review of such musical mechanism which can offer sufficient protection to the internet enabled devices crimes is another recommendation of the committee (Recommendation 9).
  1. What concerns did different companies and organisations raise in their submissions to the PJCIS inquiry? How valid are these concerns, and how urgently should the federal government address them?

The different companies and organisations have put forward different concerns in their submission to the PJCIS enquiry. The Amazon has raised concern over having no judicial authorisation before the issue of the notice under this particular Act (Pearce, 2019). Also, the concern of acting outside Australia is raised by the organisation in the submission over the implementation and violation of the law in the other countries where the organisation has been operating. The argument raised by amazon stated that by creating a way for one party to access secure data in another way intentionally, it will eventually create weaknesses and vulnerabilities that, in good faith, are accessible to other actors, including malicious actors over the same data again and again. The organisation Amazon has confronted the law of encryption to be a mode of eroding the trust of customer in the technology in their submission.

Another organisation called Atlassian has raised the concern of hamper to the technological growth of Australia and even frustrating the financial situation out of this COVID-19 pandemic (Saddler, 2020). The technology firm has raised concern over the impact of this act with threat of limiting the abilities of the technology providers of Australia while competing globally. Another group of industries which include Communication Alliance, DIGI and AIIA have raised the concern over the legal and economic consequences of the implementation of these laws on the industry of Australia. The group emphasized the further indication of geopolitical impact of the bill.

Considering the act of Parliament of amending and bringing major changes to the encryption law, several concerns are also addressed by the Law Council of Australia in respect of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018. The Law Council of Australia in its submission argues that the recent amendment is in contravention to the provisions of the GDPR. As the GDPR seeks the implementation of appropriate organisational and technical measures by the service providers and other data regulators in order to implement the principles of data protection and provide security and protection for personal data within EU.

The department of home affairs has also admitted that to you there can be a negative impact of the amendment in this legislation on the Australian technological sector. The privacy regulator, Legal experts and technology sectors have also criticized the amendment of the encryption law with respect to the lack of judicial perception and the wide nature of the amendments. The concern over the security and privacy consequences of the bill is still persisting with the various companies and organisations and the address of these concerns should be done on the priority basis considering the example of mess created in UK as it is likely to affect the Australian technological industry on the global level and can hamper the trust of the consumer over the technology of Australia (Renwick, 2019).

References for Australian Security Intelligence Organisations Act

Acts/ Legislations

Australian Security Intelligence Organisations Act 1979

Crimes Act 1919

Criminal Code Act 1995

Customs Act 190

International Criminal Court Act 2002

Surveillance Devices Act 2004 

Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018

Journals/ Websites

Australian Government Department of Home Affairs. (2018). Statement of Principles on Access to Evidence and Encryption. https://web.archive.org/web/20180925154820/https://www.homeaffairs.gov.au/about/national-security/five-country-ministerial-2018/access-evidence-encryption

Commonwealth of Australia. (2019). The Committee. file:///C:/Users/hp/Downloads/a01.pdf

Daly, T. (2020). Australian democracy: crisis, resilience and rene. https://pursuit.unimelb.edu.au/articles/australian-democracy-crisis-resilience-and-renewal

Duckett, C. (2017). Australia will lead Five Eyes discussions to 'thwart' terrorist encryption: Brandis. https://www.zdnet.com/article/australia-will-lead-five-eyes-discussions-to-thwart-terrorist-encryption-brandis/

Duckett, C. (2018). Australian PM insists on encryption-busting Bill being passed in next sitting fortnight.. https://www.zdnet.com/article/australian-pm-insists-on-encryption-busting-bill-being-passed-in-next-sitting-fortnight/

Endelman, G. & Mehta, C. (2015). The laboratories of democracy: state initiative and promotion of immigration reform. http://blog.cyrusmehta.com/2015/01/the-laboratories-of-democracy-state-initiative-and-promotion-of-immigration-reform.html

Freedom House (2019), Democracy in Retreat. Freedom in the World 2019. Washington: Freedom House.

G20. (2017). The Hamburg G20 Leaders' Statement on Countering Terrorism. http://www.g20.utoronto.ca/2017/170707-counterterrorism.html

Grant, S. (2020). Australia needs to lift the blindfolds of liberalism to advance Indigenous recognition. Retrieved from: https://news.csu.edu.au/opinion/australia-needs-to-lift-the-blindfolds-of-liberalism-to-advance-indigenous-recognition

Mounk, Yascha. (2018). The People vs. Democracy: Why Our Freedom Is in Danger and How to Save It. Cambridge, Massachusetts: Harvard University Press.

Parliament of Australia. (2019). The Report. https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/ReviewofTOLAAct/Report/section?id=committees%2freportjnt%2f024269%2f27187

Pearce, R. (2019). Australia’s ‘encryption’ law could erode consumer trust in tech: Amazon. https://www.computerworld.com/article/3477312/australia-s-encryption-law-could-erode-consumer-trust-in-tech-amazon.html

PJCIS. (2018). Advisory Report on the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, 1−2, https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/TelcoAmendmentBill201 8/Report_1 (accessed 13 December 2018).

Public Safety Canada. (2017). Five Country Ministerial 2017: Joint Communiqué. https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/fv-cntry-mnstrl-2017/index-en.aspx

Renwick, J. (2019). Time for industry to speak up on Australia’s encryption legislation. https://www.afr.com/technology/time-for-industry-to-speak-up-on-australia-s-encryption-legislation-20191017-p531qq

Saddler, D. (2020). Encryption inquiry is out of hibernation. https://www.innovationaus.com/encryption-inquiry-is-out-of-hibernation/

SBS News. (2017). Turnbull targets online terror at G20. https://www.sbs.com.au/news/turnbull-targets-online-terror-at-g20

Stilgherrian. (2019). The Encryption Debate in Australia. International Encryption Brief. https://carnegieendowment.org/2019/05/30/encryption-debate-in-australia-pub-79217

Stoker, G., Evans, M., & Halupka, M. (2018), Democracy 2025 Report No. 2. What lessons can we draw from international experience for bridging the trust divide? (2018), Canberra, MoAD. https://democracy2025.gov.au

Thrasher, J. (2019). Democracy Unchained: Contractualism, Individualism, and Independence in Buchanan’s Democratic Theory. Homo Oecon, 36, 25–40. https://doi.org/10.1007/s41412-019-00085-6

 Walker, G. (2015). Ten Advantages of a Federal Constitution and How to Make the Most of Them. https://www.cis.org.au/app/uploads/2015/07/pm49.pdf

Wroe, D. (2017). How the Turnbull government plans to access encrypted messages. https://www.smh.com.au/politics/federal/how-the-turnbull-government-plans-to-access-encrypted-messages-20170609-gwoge0.html

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