LCA president Pauline Wright said the absence of judicial review of the powers of law enforcement and intelligence agencies to access encrypted data will “erode social licence for the use of these powers and undermine reasonable expectations of confidentiality and privacy”.

“The Law Council acknowledges there is significant benefit to public safety in allowing law enforcement authorities faster access to encrypted information where there are imminent threats to national security and in order to prevent the commission of serious criminal offences,” Ms Wright said.

“However, the measures introduced by the TOLA Act go far beyond these threats and have broad application, applying to the enforcement of any criminal law in force in any foreign country, or domestic laws which attract a maximum penalty of three years’ imprisonment.”

The LCA’s submission to the INSLM noes the TOLA Act could be improved if: “the definition of ‘serious offences’ is made consistent with the Telecommunications (Interception and Access) Act 1979 (Cth), that is, punishable by a maximum term of imprisonment of seven years or more, not the currently prescribed three years”.

The legal body added the TOLA Act could be improved provided: “the ‘reasonable and proportionate’ test within the Telecommunications Act specifically requires the decision-maker to determine whether perceived law enforcement imperatives demonstrably outweigh the reasonable expectation of confidentiality in electronic communications between individuals and businesses; and decisions made under part 15 of the Telecommunications Act are to be made by a judicial officer,” she said.

“In the alternative, it is recommended that judicial review of part 15 decisions should be available,’ the submission notes.”

Today, Friday, 21 February 2020, will see the LCA attend a public consultation as part of the review.

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In August 2019, this public review was welcomed by the LCA who noted at the time that it will play a vital role in ensuring public trust.