Deciphering Australia’s encryption laws: a human rights approach

Abstract

ABSTRACT New and emerging technologies bring both challenges and opportunities for human rights and society more broadly. This article argues that governments should take a human rights focused approach in responding to the challenges posed by new technologies. Encryption provides a pertinent example of this. After demonstrating that the right to privacy applies in the digital world, this article discusses the importance of encryption in securing privacy in digital contexts. The benefits of encryption are, however, weighed against its potential misuse for crime and other malicious purposes. In an attempt to regulate this potential misuse, Australia introduced the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth). Considering new data on the operation of the legislation since its commencement, this article assesses the compatibility of the regime with Australia’s international human rights obligations with respect to the right to privacy under the International Covenant on Civil and Political Rights. In doing so, this article demonstrates that key concerns around proportionality remain, making the Assistance and Access Act unlikely to be a permissible limitation on the right to privacy.