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Bad laws born in fear and haste

Opinion

Rushed laws meant to make us safer have so far proved to be pointless or worse, writes legal commentator Morry Bailes.

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In the frenzied environment of federal parliament, messaging around the need for law reform can be as emphatic as it is loud, none more than when national security is in the focus.

Common themes, intended to stoke the flames of fear and concern, include statements such as “if you knew what we know” and the imperative of achieving legislative reform within a certain timeframe.

During 2018, there were a number of bills which the public was told were essential to be passed by the federal parliament for our national security. However, there are also some notable recent public statements, including from Attorney-General Christian Porter, that make one wonder about their effectiveness and sow doubt about just how imperative they were. When law reform is pushed through hastily, it can be botched. Why is there such an unholy rush? Why is there not more consultation?

Two examples come to mind. The first is the FITS (Foreign Influence Transparency Scheme) that had to be enacted by Christmas past, we were told, due to the looming general election. Designed to shine a light on foreign influence on Australia, particularly in business and within activist and lobbying groups, and the corresponding impact on our government and political process, it was also one of those “if you knew…” moments.

In the Attorney-General’s defence, what he inherited early last year was a drafting mess and when the bill passed, it did so with bipartisan support. Incredibly, the initial iteration of this law provoked outrage from almost every sector: the Catholic Church was concerned it would be found to be acting for a foreign state, namely the Vatican; academics who cooperate in research internationally feared they would be caught; the press was up in arms, as were business lobby groups and others.

So what was ultimately achieved was a scaled-down piece of legislation that has now been law for three months or so. From the initial position that would have seen thousands if not ten of thousands of entities or individuals register a foreign interest, we have a more manageable law.

But what has happened since its passage? How effective has this supposedly time-critical and essential law been? Surely we know now who and what in Australia is under the influence of foreign actors and states? Well, only a few days ago the federal Attorney-General revealed that a sum total of 10 entities are registered. I think we can be assured they are not the ones we need to be worried about. Indeed, a repeated theme at the time of this debate was that a malign foreign influencer is very likely to never register, but even if we were expecting the ‘honest’ ones to put their hands up, they simply haven’t. So the Attorney issued a warning. Fair enough, but it does cause you to wonder just how imperative and effective this law really is. Perhaps in the future, it will prove valuable but I have my doubts. And how is it to be policed exactly?

Which leads me to a second example. Another imperative of last year’s legislative agenda was to allow law enforcement agencies to ‘crack’ end-to-end encryption under the now Telecommunications Assistance and Access Act. While law enforcement could readily intercept telecommunication devices, it could not get past end-to-end encryption – the new protected communications zone for the criminal. Ironically, businesses are increasingly using end-to-end encryption to thwart cybercriminals. As with all security laws, the community was told to ‘trust us, we’re only after the bad guys’, and the legislation was passed.

The laws may ultimately prove to be useful, although with the rushed nature of its passage it, like a number of security bills passed recently, is far from perfect. Anyway, we would expect police to be delighted with their new suite of tools having, we were told, pleaded for greater powers.

Well maybe they did, but apparently, Detective Superintendent Arthur Kopsias, the commissioned officer in charge of this area for NSW Police, Australia’s largest police force, is unsure about how to use them.

Last week he publicly admitted: “I haven’t got a clue how to implement it.” He suggested there should perhaps have been consultation 12 months before the legislation passed. The Department of Home Affairs contests these statements and, while other police agencies have not commented publicly, I think we can be fairly certain that in spite of the rush to enact the encryption-busting laws, criminals are not yet running scared. Meanwhile, for those legitimately using end-to-end encryption, there is a seed of doubt about their security from the prying eyes of law enforcement. Lawyers, for example, may be dealing with privileged instructions from a client who may be a suspected criminal accused of serious crime.

So here’s my feedback to our parliamentary lawmakers. First, slow down. Rushed law rarely makes good law, and in the above examples what did all the rush achieve anyway? Certainly not a safer Australia, at least not yet.

If the purpose is to look like you’re doing something positive about national security wouldn’t it be better enacting laws on which there has been adequate consultation and which are likely to be understood and be effective? Otherwise what we have is just rhetoric. The equivalent of the FITS Act in the US has been useless. Apparently, ours was going to be different and achieve the success that has eluded the US. We’ll see.

As to law enforcement not being able to implement legislation, that is not a new phenomenon. Our statute books can be bamboozling. It was James Madison who said: “It will be of little avail to the people that the laws are made by men of their choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”

I hazard a guess that what police want more than new laws are more resources, but they can speak for themselves. As a lawyer, I like to see clear and thoughtful law, that can work in practice and which actually keeps the community safer, rather than what we often end up with: ambiguity, uncertainty and ultimately a lack of policing because in reality, it is beyond agencies’ current resourcing, ability and even understanding.

Morry Bailes is managing partner of Tindall Gask Bentley Lawyers and immediate past president of the Law Council of Australia.

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