Labor blinked at the last minute to pass the world’s first laws to hack into encrypted messages

Opposition leader Bill Shorten with presents for the Salvation Army at Parliament House on December 6. Tracey Nearmy/Getty Images
  • Opposition leader Bill Shorten and the Labor party capitulated at the last minute to pass legislation to allow law enforcement agencies access to encrypted messaging in the final hours of Senate debate for 2018 last night.
  • Earlier in the day, Labor announced it would amend the bill, requiring it to return to the lower house, but the government shut down parliament early in order to avoid losing a vote over border protection.
  • The bill has raised alarms in legal and tech circles, but Labor says it will amend the legislation when parliament returns in February next year.
  • Most of the final sitting day saw an astonishing tactical stalemate play out between the Coalition and Labor as part of the ongoing dysfunction plaguing Australian politics.

The Morrison government’s controversial encryption legislation, which will allow law enforcement agencies to hack into encrypted message services, will pass into law after the Labor party scrapped plans to amend the legislation in the final hours of the Senate sitting for the final time in 2018.

The astonishing capitulation by Labor caps a farcical day as Parliament concluded for the year.

While the Opposition, which supported the government’s proposal, said initially it would amend the legislation to better comply with recommendations of an investigation by the parliament’s security and intelligence committee into the bill, it abandoned that plan to pass the laws unaltered through the Senate.

Labor buckled to the government and its rhetoric against Bill Shorten, with Prime Minister Scott Morrison saying the Opposition leader was “a clear and present threat to the safety of Australians”.

As both sides fought for political advantage on the final sitting day of the year in a high-stakes game of chicken, the government stalled for time yesterday to prevent losing a vote on border protection in the lower house. It then took an early mark, adjourning the house until February 12 next year, with the future of the encryption laws still in doubt.

Attorney-General Christian Porter accused Labor of choosing “political game-playing over the safety of the Australian people”, saying they were protecting terrorists, pedophiles, murderers and drug cartels.

By 7pm last night, Shorten conceded while attempting to take the moral high ground, agreeing to pass the encryption legislation, known as the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill, unaltered but promising to revisit it in when parliament returns in the new year.

“Because the Government and the Prime Minister didn’t want to lose a vote about getting children off Nauru for medical treatment, they abandoned the national security laws of Australia, and as a result, abandoned their obligations to keeping Australians safer,” Shorten said.

“So we had a standoff where you had a government who didn’t want to vote on laws which were to see children come off Nauru, but were going to lose that vote. So what they did is they talked out, well they filibustered in the Senate, they dragged it out, and then they made Parliament stop at five o’clock, and then went home.”

He said Labor was put in an “invidious position”.

“I will not sacrifice the safety of Australians merely because Mr Morrison doesn’t have the courage to deal with issues in the House of Representatives,” he said.

“I couldn’t go home and leave Australians over Christmas without some of the protections which we all agree are necessary.”

So Labor backed the laws, although they will still take more than four weeks to come into effect and thus won’t be in place before Christmas or the end of 2018.

The Senate passed the legislation 44 votes to 12 at around 7.30pm on Thursday night.

Today a triumphant Scott Morrison told Seven’s Sunrise program this morning that: “I wanted to see those laws passed, they were passed. We had to drag Labor kicking and screaming to the table but they were shamed into passing it last night and I’m pleased they did.”

But the bipartisan approval doesn’t allay the widespread unease with the legislation in legal and tech circles.

The bill is unique in the world in giving police and national security officials the court-approved ability to hack into encrypted messaging apps such as WhatsApp, Signal and Facebook Messenger.

Among multiple concerns is that the Australian legislation will put the country in conflict with the EU’s General Data Protection Regulation (GDPR).

It is also likely to have profound impacts on global software companies and their presence in Australia, including the local collaboration software giant Atlassian.

One of the most contentious parts of the law means that law enforcement officials could approach a company employee to write code to hack into encrypted messages, but the software developer would not be allowed to tell their employer what they’re doing, with the threat of jail for disclosure part of the law.

Atlassian co-founder Mike Cannon-Brookes shares The Law Council’s concerns about the legislation being rushed through parliament without proper scrutiny.

And Melbourne software consultant Tom Sulston has outlined five areas in which the legislation will damage the local software industry and Australia’s reputation.

1. The bill is bad for security because encryption keeps us safe from criminals. This bill will make it easier for them to hack us.

2: The bill is bad for jobs because software companies will choose not to work in Australia, as this bill is fundamentally incompatible with GDPR.

3: The bill is bad for workers, as it opens up all sorts of penalties if we conscientiously object to being drafted into the security services.

4: The bill is bad for democracy as it will make it easier for a sitting government to access the private communications of journalists, opposition politicians, unions, businesses, et al.

5: The bill is bad for the economy because global consumers will choose digital services that come from countries that are not threatened by Australian legislation.

There are clearly plenty more reasons why the bill is terrible, but these are some big, big problems.

Human Rights Commissioner Edward Santow said the law contains “significant threats to human rights” and there has not been enough time to review the legislation.

“This new law will dramatically increase the access of intelligence and law enforcement agencies to the private communications of ordinary Australians, with implications for our right to privacy and freedom of expression,” he said.

“The Commission, and the public, have not been given a sufficient opportunity to review and comment on yesterday’s amendments prior to them becoming law. If Parliament has failed to strike the right balance on national security and human rights, harm to individuals cannot be undone after the fact.”

The Human Rights Commissioner recommended 54 amendments to ensure greater protection for human rights in its submission on the new law.

“The amended bill narrows the scope of the assistance scheme and enhances safeguards and oversight,” Commissioner Santow said.

“The Commission welcomes these amendments, but they do not go far enough to address the significant human rights concerns previously identified by the Commission.

“Among other issues, there is still no provision for independent judicial authorisation. Decision-making power remains with the Government, rather than with an independent judicial officer.”