1003CCJ Encryption Laws Australia Assignment Sample

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• Subject Code : 1003CCJ
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• Subject Name : Law

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?

Federalism is an ideal form of government for a country that is full of diversity. There are various advantages to the federal government. The right to compare the political parties and then elect them to form the governments is a feature of the federal system. The right to choose the political party of choice is a right provided under the federal system. The next advantage of the federal system is the liberty to experiment with the reliability of the available options. The equal distribution of the power among the national government and the state/local government regarding the adoption of laws is also an advantage of the federal government system. The efficient diffusion of power among the center and the states is also considered to be an advantage of the federal system of government. The federal form of government is ideal for large countries that include the constituents located in remote areas. The ethnic variety of a country requires a federal form of government as the cultures and the laws of every ethnic group might vary. Belgium could be considered as an example that balances both the ethnic groups through the federal form of government (Walker 1999).

The unitary form of government, on the other hand, holds all the power in a single government system and as a result, very little political power exists outside the central government. However, the power of the unitary form of government is applied uniformly throughout the country. The unitary governments are usually observed to be either totalitarian governments or dictatorships. The unitary forms of governments are often differentiated according to the form of rule over the country. For example, France is a democratic country but follows the unitary form of government. Barbados, Kuwait, Morocco, Saudi Arabia, and Spain are the monarchy unitary government. The examples of unitary republic government are Afghanistan, China, Italy, Ukraine, and Zambia. The unitary form of government provides a variety in the combinations of the form of government however the same is not provided in the federal form of government (Regoli 2019).

The Australian government works at a three-level system that includes the federal government, the state/territorial government, and the local councils. This demands cooperation among all the levels of the governments so that the government could perform efficiently. However, equal participation shall also be assured at the parliament level so that the representation of all the ethnicities is done. Australia is going through the same issue in recent times. The composition of parliaments at the central and the state level require to be remodeled to ensure the participation of every community (Daly 2019). The experimentation of the public on the reliability of the governments has created the issue of the change in the representation of the communities at the parliamentary level. The faith of the public has decreased drastically in the existing political parties and thus changes are occurring in the country.

2. 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 concept of liberal democracy holds in it the governance of the people through the elected representatives who ensure that the decisions taken by them benefit the common people that have elected them for the implementation of the provisions allotted to them by the constitution. The liberal democracy leads to capitalism in economic issues. Liberal democracy demonstrates the distribution of power and this serves as a major disadvantage when the rapid and coordinated response at the times of war is required. The liberal democratic government is a political system where the government is elected through free and fair elections. The three main elements of the liberal democracy are the resilience of the regime or longevity, the efficacy of the government, and the sending of the values of liberal democracy, or how the long and effective can the liberal democratic government may achieve the values subscribed by the principles adopted by them. The liberal democracy has a vast future but it requires a solution that was identified by Dahl at around sixty years ago due to the variations in the interests of the people referring to the policies preferred by the government. The major solution is the consensus lying behind the implemented policies that are drafted by the political representatives elected by the common people (Anton 2017).

The contents of liberal democracy that Australia is following currently are the rule of law, the phenomenon of power-sharing among the central and the state governments, the existence of the concept of constitutionalism, and the establishment of an accountable and responsible government. These elements of liberal democracy have been effective in the Australian subcontinent. Apart from these, there are various freedoms provided to the common people as a privilege of liberal democracy. These are the freedom of political interference, freedom to make free political choices at will, the freedom of accessing information, and to audit over the transparency of the policy-based actions taken by the government. The liberal democracy in Australia also provides the people with the equality of representation, the representative form of government, and the independence of the civil society (Thompson & Stannard 2008).

Among all of these, the area in which the Australian government needs to improve is the growth of the community-based development and the establishment of an accountable and responsible government. The government has realized on its own that there is a need to provide the community-based growth in all the territorial regions of Australia and thus the plans have been made and started to be implemented accordingly by the government in the form of the plans for the Australian population (PMC 2020).

Part B: Encryption Laws

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

The Telecommunications and Other Legislation Amendment (Assistance and Access) Bill was presented before the House of Representatives and the Senate for the first time on 20 September 2018 and the same was passed by both the houses on 6 December 2018. The Royal assent on the same was provided in a rush on 8 December 2018 (APH 2020).

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

The latest amendment in the encryption laws has brought changes in various existing laws, primarily in the Telecommunications Act 1997 as to establish frameworks for voluntary and mandatory industry assistance, followed by the amendments in the Australian Security Intelligence Organisations Act 1979, Administrative Decisions (Judicial Review) Act 1977, the Customs Act 1901, the Criminal Code Act 1995, Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Act 2018, the Crimes Act 1914, Federal Circuit and Family Court of Australia Act 2018, the International Criminal Court Act 2002, and Surveillance Devices Act 2004. The amendment has brought a variety of power allocation to the government authorities to investigate certain federal offenses related to computer access powers, search warrant frameworks, allow law enforcement agencies to collect evidence remotely from electronic devices, increase the penalty in cases of non-compliance of judicial orders, increase in the warrant execution period from 14 days to 30 days, provide new search warrant to the Australian Border Force to seize the computer or data storage devices, enable Australian Security Intelligence Organisation (ASIO) to gain assistance from technical experts with computer knowledge to assist to gain access to data on any device subject to a warrant of ASIO.

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

The major features of the enacted Australia’s encryption laws are as follows:

• The laws compel the service provider companies to grant the police and the government security authorities to access encrypted messages belonging to the users of the services.
• The laws ensure the national security and the law enforcement agencies with a tool to access all the encrypted data which according to them was kept hidden from the authorities during the surveillance process.
• The laws provide the coverage of the security loophole under the title of encryption which was abused and exploited by the criminals, thus making it easier for the administration to investigate in cases relating to such issues.
• The laws empower the police to appoint and order individual technical IT experts to create the technical functions for data extraction without the knowledge of the service provider as well as the users.
• The laws also provide the issuing of warrants under the criminal acts of the country against the individuals who fail to provide data demanded by the police or the security agencies.
• Also, remote access to the data of the user and the data storage device has been ensured to the security agencies along with the extension of the period from 14 days to 30 days.
• The penalty has been increased under the encryption laws up to a maximum of three years for the commonwealth offenses punishable under the encryption and surveillance laws.

6. What reasons did members of the federal government give for introducing the encryption laws? Why did they see the laws as necessary?

The need to enact the encryption laws was sought by the members of the federal government in the year 2017 when the surveillance and control over the service provider companies were needed by the government. In crimes involving the use of technology, the existing laws of the country lacked behind and had limited access to the information available with the service providers for investigation of the crime. For instance, the end-to-end encryption of messages under the social networking application WhatsApp served to be a major problem in this scenario and thus the requirement for such strong encryption laws was sought by the members of the government (BBC 2018).

Senator George Brandis, the former attorney general of Australia explained the increasing use of encryption as the Five Eyes matter, and according to him, Australia shall lead the world with the enactment of the encryption laws in its jurisdiction. He recommended the government to enact a strong law to compel the companies to assist the security agencies to investigate the crimes under the authority of a warrant issued for law enforcement and the decryption of the end-to-end encryption of messages which was a specific problem for the government. According to him, the internet is being used by the terrorists and criminals thus making it a critical concern for the law enforcement agencies of the country. The initial statement by Turnbull’s coalition government to change the laws forcing the telecommunications and the technology firms for suspected messages decryption was first observed in mid-2017. Later, at the G20 summit in Hamburg, Turnbull delivered a message focussing on the encryption issue and thus the G20 leaders in a joint statement agreed to the need for the anti-encryption laws as a primary weapon to counter-terrorism around the globe. The main purpose of the enactment of such laws was to collaborate with the technology industry to provide non-arbitrary and lawful access to the available information in the matters relating to national security against terrorist threats. As a result of this, restructuring of the Australian government was performed on the 20 December 2017 and the Department of Home Affairs (DHA), was allotted the exclusive responsibility on the matters relating to border control, citizenship, emergency management, immigration, law enforcement, national security, and refugees (Stilgherrian 2019). 

7. 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 Parliamentary Joint Committee on Intelligence and Security (PJCIS) is chaired by ‘Mr. Andrew Hastie MP’ from Canning WA of the Liberal Party of Australia. The deputy chair of the committee is ‘Hon Anthony Byrne MP’ from Holt VIC of the Australian Labor Party. The other nine members of the PJCIS are ‘Senator the Hon Eric Abetz’ from TAS of the Liberal Party of Australia, ‘Dr. Anne Aly MP’ from Cowan WA of the Australian Labor Party, ‘Hon Mark Dreyfus QC MP’ from Isaacs VIC of the Australian Labor Party, ‘Senator the Hon David Fawcett’ from SA of the Liberal Party of Australia, ‘Senator the Hon Kristina Keneally’ from NSW of the Australian Labor Party, ‘Mr. Julain Leeser MP’ from Berowra NSW of the Liberal Party of Australia, ‘Senator Jenny McAllister’ from NSW of the Australian Labor Party, ‘Senator Amanda Stoker’ from QLD of the Liberal Party of Australia, and ‘Mr. Tim Wilson MP’ from Goldstein VIC of the Liberal Party of Australia (APH 2020b).

The PCJIS provided a total of 17 recommendations on the Bill. However, the major recommendations of the committee are as follows (APH 2020c):

• The parliament shall immediately pass the Bill with the recommendations of the committee (Recommendation 1).
• Industry assistance measures under Schedule 1 shall apply to offenses with the penalty of a maximum of three years of imprisonment or more (Recommendation 2).
• The state and territory independent commissions against corruption shall be excluded from the scope of Schedule 1 of the Bill (Recommendation 3).
• The Bill be amended to incorporate recommendations from the Commonwealth Ombudsman for exercising industry assistance to the Australian Federal Police (AFP) (Recommendation 4).
• Amendments to incorporate suggestions of the Office of the Inspector-General of Intelligence and Security (IGIS) to strengthen the powers in Schedule 1 of the Bill (Recommendation 5).
• Providing Technical Assistance Notices (TANs) and Technical Capabilities Notices (TCNs) be subject to statutory time limits along with its extension, renewal, or variation of the same (Recommendation 6).
• Allow a provider to request approval of the disclosure of a technical capability (Recommendation 13).
• Review of the new legislation once passed by the parliament shall be done and for the same purpose, public hearings shall be held (Recommendation 16).
• Recommends the government to amend clause 317ZG and clause 317ZH of Schedule 1 for the prohibition of the interception agency and the definition of the general limits on technical assistance respectively (Recommendation 17).

8. What concerns did different companies and organizations raise in their submissions to the PJCIS inquiry? How valid are these concerns, and how urgently should the federal government address them?

The enactment of the encryption laws has given birth to various concerns that have been raised globally by the firms and the companies working for the protection of user’s data. The major concerns raised by the companies are as follows:

• The backdoor policy for the AFP and the security agencies: The backdoor to the user’s data for the security agencies might also act as a backdoor for the criminals and hackers as well. This will seriously infringe the privacy of the users not just before security agencies but also before the criminals.
• Permitting the cryptography tools under the Assistance and Access Act 2018 will put the users in a harmful position by harming their rights and freedoms. The hackers might easily get access to such information through cryptographic tools and can cause serious personal, and economic harm to the individuals digitally.
• Being a member of the Five Eye Intelligence Sharing Network, the Australian government can share its users’ data with the other member countries that include Britain, Canada, New Zealand, and the USA. Apple Inc. along with various other tech companies have strongly opposed this approach because of the easy access to the member nations over the shared data of the users. This will create chaos in the field of online security and will increase the cases of cyber stacks and cyber terrorism. The FAANG companies have also raised serious concerns over this issue.
• The user data in the modern world is already under a threat of insecurity and in such scenario, if the encryption laws provide backdoor access to the user’s data then such vulnerabilities of the data will grow up to such an extent that the data will become more prone and susceptible to attack (Bocetta 2019).

References for Encryption Laws Australia

Acts/Legislations

Administrative Decisions (Judicial Review) Act 1977

Australian Security Intelligence Organisations Act 1979

Crimes Act 1914

Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Act 2018

Criminal Code Act 1995

Customs Act 1901

Federal Circuit and Family Court of Australia Act 2018

International Criminal Court Act 2002

Surveillance Devices Act 2004

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

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

Journals/Websites

Anton M. (2017). The Future of Liberal Democracy. J Pol Sci Pub Aff 5: 267. DOI:10.4172/2332-0761.1000267

APH (2020a). Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018. Parliament of Australia. https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6195

APH (2020b). Committee Membership. Parliamentary Joint Committee on Intelligence and Security. Parliament of Australia. https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Committee_Membership

APH (2020c). List of Recommendations. Advisory report on the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018. Parliament of Australia. https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/TelcoAmendmentBill2018/Report_1/section?id=committees%2freportjnt%2f024247%2f26911

BBC (2018). Australia data encryption laws explained. https://www.bbc.com/news/world-australia-46463029

Bocetta (2019). Australia’s New Anti-Encryption Law is Unprecedented and Undermines Global Privacy. https://fee.org/articles/australia-s-unprecedented-encryption-law-is-a-threat-to-global-privacy/

Daly T.G. (2019). Australian democracy: crisis, resilience, and renewal. https://www.themandarin.com.au/115000-australian-democracy-crisis-resilience-and-renewal/

PMC (2020). Planning for Australia’s future population. Department of the Prime Minister and Cabinet. https://www.pmc.gov.au/sites/default/files/publications/planning-for-australia%27s-future-population.pdf

Regoli N. (2019). 17 Big Advantages and disadvantages of a unitary government. https://connectusfund.org/17-big-advantages-and-disadvantages-of-a-unitary-government

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

Thompson, L., & Stannard, J. (2008). Australian Values, Liberal Traditions, and Australian Democracy: Introductory Considerations of Government for Contemporary Civil Society. Social Alternatives 27(1): pp. 58-63. https://www.researchgate.net/publication/27473330_Australian_Values_Liberal_Traditions_and_Australian_Democracy_Introductory_Considerations_of_Government_for_Contemporary_Civil_Society

Walker G. (1999). Rediscovering the Advantages of Federalism. https://www.aph.gov.au/~/~/link.aspx?_id=01BCB24E8E7F444CB487FCD05C981A3E&_z=z

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