Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download PDFDownload PDF 

Previous Fragment    Next Fragment

24    Law and Justice— Australia’s encryption legislation

Senator Urquhart, at the request of Senator Keneally and pursuant to notice of motion not objected to as a formal motion, moved general business notice of motion no. 199—That the Senate—

               (a)       notes that:

                                     (i)       it can currently take up to two years for police or security agencies to access data held in the United States on platforms like WhatsApp and Facebook, in relation to serious crime investigations, such as terrorism, violent crime, paedophilia and cybercrime,

                                    (ii)       the Clarifying Lawful Overseas Use of Data Act (CLOUD Act), enacted in March 2018 by the United States Congress, empowers the United States Government to enter into agreements with foreign governments to radically speed up the time it takes foreign police and security agencies to access electronic data held in the US for the purpose of investigating serious crimes,

                                  (iii)       the CLOUD Act includes a number of requirements that must be satisfied before the United States Government can enter into an agreement with a foreign government, including that the foreign government’s domestic laws must afford ‘robust substantive and procedural protections for privacy and civil liberties in light of the data collection and activities of the foreign government that will be subject to the agreement’,

                                  (iv)       on 3 October 2019, the United Kingdom (UK) and the United States announced they had successfully concluded their negotiations and entered into an agreement under the CLOUD Act, meaning UK police and security agencies will be able to access data held in the United States for serious crime investigations substantially faster Australian police and security agencies,

                                   (v)       unlike the UK Government, which has already concluded its CLOUD Act negotiations, the Australian Government has only just started its negotiations with the United States,

                                  (vi)       there are widespread concerns that Australia’s encryption laws, passed last year by the Morrison Government, do not provide ‘robust substantive and procedural protections’ as required by the CLOUD Act,

                                (vii)       amendments presented to the Senate last year, but rejected by the Government, could have provided appropriate ‘robust substantive and procedural protections’,

                               (viii)       less than 24 hours after the announcement that Australia-United States CLOUD Act negotiations had begun on 7 October 2019, the Chairman of the United States House Judiciary Committee, Congressman Jerrold Nadler, sent a letter to the Minister for Home Affairs expressing grave concerns about the absence of ‘robust substantive and procedural protections’ in the Australian Government’s encryption laws,

                                  (ix)       the speed with which Congressman Nadler, whose committee plays a key role in approving any potential agreement between the United States and Australia, wrote his letter suggests that Australia may be a long way off from being able to access electronic data held in the United States to investigate serious crimes, such as terrorism, violent crime, paedophilia and cybercrime, and

                                   (x)       without an agreement between the United States and Australia under the CLOUD Act, victims of vile crimes, such as terrorism, violent crime, paedophilia and cybercrime, will continue to have to wait for up to two years for police to even be able to get a good start on their case;

               (b)       condemns the Australian Government:

                                     (i)       for not being as proactive as the UK Government has been in securing a CLOUD Act agreement with the United States, and

                                    (ii)       for isolating Australian police and security agencies from potential resources that could reduce wait times to get access to critical data, held in the United States, to aid in the investigation of serious crimes, such as terrorism, violent crime, paedophilia and cybercrime from two years to just a few days; and

                (c)       calls on the Federal Government to work productively with all parties in the Senate to ensure Australia’s encryption legislation can be amended to address any and all obstacles in the way of securing the best outcome for Australian police and security agencies, and the Australian people.

Statements by leave : The Assistant Minister for Forestry and Fisheries (Senator Duniam) and Senators McKim and Patrick, by leave, made statements relating to the motion.

Question put.

The Senate divided—

AYES, 31

Senators—

Ayres

Gallagher

McKim

Steele-John

Brown

Green

Patrick

Sterle

Chisholm

Griff

Polley

Urquhart*

Ciccone

Hanson

Pratt

Walsh

Dodson

Hanson-Young

Roberts

Waters

Farrell

Lines

Sheldon

Watt

Faruqi

McAllister

Siewert

Whish-Wilson

Gallacher

McCarthy

Smith, Marielle

 

 

 

NOES, 29

Senators—

Abetz

Cormann

McKenzie

Ryan

Antic

Davey

McMahon

Scarr

Askew

Duniam

O’Sullivan

Seselja

Bernardi

Fierravanti-Wells

Paterson

Sinodinos

Bragg

Lambie

Payne

Smith, Dean*

Brockman

McDonald

Rennick

Stoker

Canavan

McGrath

Ruston

Van

Colbeck

 

* Tellers

Question agreed to.