The Independent National Security Legislation Monitor (INSLM) has extended the deadline for submissions regarding the review of the controversial Telecommunications and other Legislation Amendment (Assistance & Access) Act 2018, after receiving just 15 submissions so far.
The act, which was passed in something of a hurry in the last sitting of parliament last year, has been the source of much contention in the Aussie startup ecosystem. However, since the shock result of the federal election in May, things have gone a little quiet.
In August, the Parliamentary Joint Committee on Intelligence and Security referred the act to the INSLM, Dr James Renwick, for review, marking the first time such a referral has occurred.
“Governments around the world are facing increasing challenges posed by ubiquitous encryption that mask a variety of illegal activities,” Renwick said in a statement when the review was announced.
“However, public consent to intrusive laws depends on public trust. Equally, the public expect that agencies will keep them safe, but not exercise powers that are needlessly intrusive.”
Renwick explained he had been charged with figuring out whether the act as it stands “contains appropriate safeguards for protecting the rights of individuals and remains proportionate and necessary”.
Submissions were initially open until September 13, 2019, but that cut-off has now been extended indefinitely. That said, the enquiry deadline is March 1, 2020, and StartupSmart understands that, while the INSLM may be seeking an extension, any parties still wishing to make a submission should probably do it sooner rather than later.
So far, the review has received just 15 submissions. By contrast, an initial review into the proposed legislation, before it was passed into law in December 2018, received a total 105 responses, and another review after the fact had 62.
The saga so far
The bill caused much furore in the startup community towards the end of 2018 and in early-2019.
As early as October last year, startups sounded the alarm that allowing law enforcement to access encrypted data would mean building a ‘back door’ into their systems which would leave the business’ data exposed, and ultimately make Aussie tech companies a considerably less attractive option for global clients.
There were fears founders could take their early-stage startups elsewhere, and ultimately, that the new rules could stifle the Aussie tech sector.
However, despite industry warning against rushing into anything, the bill was hastily passed into law, with none of the amendments proposed by the Labor party, on the final sitting of parliament of 2018.
At that time, the bill drew criticism and sheer rage from the startup community, and disbelief from spectators overseas.
Speaking to StartupSmart at the time, Monique Mann, a research fellow in the regulation of technology at the Queensland University of Technology, pointed out the costs of adhering to the legislation could be prohibitive to small startups.
She also noted the bill is “fundamentally incompatible” with the EU’s General Data Protection Regulation, which protects the data privacy rights of all EU citizens, including those living in Australia.
In early-2019, a review was opened, allowing industry participants to lodge submissions of feedback, and suggest amendments to the bill.
StartupAus led an industry submission, suggesting four key recommendations for changing the bill. The submission was backed by 420 signatories, including the likes of Canva, Atlassian, Safety Culture and Girl Geek Academy, as well as VC firms such as Blackbird Ventures and Airtree.
Tech giants Mozilla and FastMail also sounded the alarm, expressing concern employees could be forced to make changes to systems. Mozilla specifically noted companies would have to view their employees as “insider threats”, ultimately incentivising them to take their tech teams elsewhere.
Then in March, in the run-up to the federal election, then-Labor shadow minister for the digital economy Ed Husic promised to fight to make changes to what he called “these terrible laws”.
“We cannot afford to let this drift off,” he said at the time.
However, following Labor’s election loss, Husic stepped down from his role in the shadow cabinet, and Clare O’Neil stepped into the role of Shadow Minister for Innovation, Technology and the Future of Work.
In a statement given to StartupSmart, O’Neil said Labor is supportive of the INSLM review, “and for key stakeholders to have their voices heard”.
“I’ve consistently heard from tech sector leaders that they understand the importance of national security, but that this bill was constructed in a vacuum by Peter Dutton, and his indifference to consulting with the sector is setting back the digital economy and the jobs it creates,” she added.
“We should be nourishing the health of this sector in Australia, not sending clumsy messages that tech businesses are not particularly welcome here.”
Speaking to StartupSmart, Girl Geek Academy co-founder and chief Sarah Moran, who was vocal in the public response to the bill, suggests that for startup founders, consistent campaigning at the same level was just not feasible.
“We all have day jobs, and anyone who knows anything about startups knows that those day jobs are night jobs and sleep jobs as well,” she says.
“We’re an industry that burns the candle at both ends and around the clock.”
When you’re running a startup, there is not much time for distractions, she adds.
“It’s not like many of us have a side project of politics. That’s not in our industry nature, given the type of people who are attracted to the risk and reward of how startups work.”
In fact, a lot of the conversations that happened last summer were “actually while most of us were trying to have a bit of a break”, Moran says.
She talks about an industry with “campaign fatigue”.
It’s true the people being asked to write submissions for this review have probably already made at least two submissions, probably saying much the same thing.
For what it’s worth, StartupSmart understands the INSLM will take into account submissions to the former reviews as well as any new ones.
There seems to be a sense that startups and the tech industry have made it clear how they feel, but to no avail.
“If they were dumb enough to pass the laws in the first place, what is further information going to do?
“I think that’s an emotion that’s reasonably widely felt,” Moran says.
That said, this is an industry that needs campaigners, she says. And ultimately, she wants to see startup leaders repping in office.
There are cheerleaders in the industry — those running accelerators or incubators, and in influential and leadership positions.
“I hope that at least some of them are considering their options in politics … to actually make the change that they think their accelerators and their incubators are able to make come to life,” Moran says.
“I hope that our industry has realised that there needs to be representation of our voice in Canberra, and at a state government level as well,” she adds.
“The only way to do that is if some of us bloody run.”
Submissions to the INSLM review of the Telecommunications and other Legislation Amendment (Assistance & Access) Act 2018 can be uploaded on the INSLM online submissions form, or sent to [email protected]
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