The Legal Framework in Australia Around the Use of Encryption and Anonymity in Digital Communications

Abstract

This document is a submission which was made by the Australian Privacy Foundation on 10 February 2015, to Mr David Kaye, Special Rapporteur on the Promotion and Protection of the Right to Freedom of Expression and Opinion, Office of the United Nations High Commissioner for Human Rights, concerning the legal framework in Australia around the use of encryption and anonymity in digital communications. This submission presents the APF’s assessment of laws and policies in Australia which concern the use of encryption and the ability to communicate anonymously. We firstly present an overview of the protection of free expression and privacy in Australia, since both encryption and anonymity techniques may be considered to be expressions of individuals utilising their freedom of expression and/or protecting their privacy. As will be seen below in more detail, compared to other developed democratic jurisdictions, Australia has a much weaker protection of free expression and no constitutional protection of privacy. Then, we present and discuss specific Australian legislation with a direct effect on encryption and anonymity, namely:• Privacy Act 1988 (Cth), • Cybercrime Act 2001 (Cth) and• Defence Trade Controls Act 2012 (Cth). We also present other developments, in particular Australia’s participation in the ‘Five Eyes’ intelligence-sharing partnership and the current proposals to introduce mandatory data retention laws in Australia. These developments provide evidence of the lack of human rights protection, particularly of privacy, in Australia and also contribute to the deterioration of individuals’ ability to remain anonymous online.Finally we give APF’s assessment of the current situation in Australia for encryption and anonymity.