Australia: New decryption legislation: What does it mean for you?

Despite widespread criticism from individuals and industry participants, the controversial Telecommunications and Other Amendments (Assistance and Access) Bill 2018 (Bill) has now passed through both Houses of Parliament. It is now set to become law once it receives Royal Assent.

Probably the most significant aspect of the Bill is that it provides Australian State, Territory and Federal law enforcement agencies with the ability to demand that ‘‘designated communications providers’’ create a capability to provide access to encrypted communications and data. (The legislation uses the terms ‘systemic weakness’ and ‘systemic vulnerability’ to describe the possible consequences of this access.)

While there are some limitations on that power (e.g. the capability can only be exercised to target a particular person, and it should not result in a ‘weakness’ or ‘vulnerability’ that is ‘systemic’), there are significant privacy concerns, and questions about whether compliance with such a demand is even technically possible.

This article takes a look at some of these issues, and the significant impact the Bill may have on most individuals and businesses operating in the technology or communications supply chain.

Decrypting encrypted technologies

The Part of the Bill that has received the most controversy is the introduction of the ‘industry assistance’ provisions. These provisions allow Australian law enforcement agencies (including State, Territory and Federal Police and ASIO) to request or order that a ‘designated communications provider’ provides assistance with the decryption of encrypted communications / data.

Who is a ‘designated communications provider’?

The industry participants that may be subject to an assistance request or order are called ‘designated communications providers’. The definition is extremely broad, and could include most individuals and businesses in the communications supply chain.1 For example:2

  • businesses who operate messaging platforms (e.g. WhatsApp, Google etc.);
  • phone and internet service providers;
  • technicians and retail repairers;
  • developers of software used in connection with certain communication services; and
  • manufacturers of any component used in telecommunication equipment.

The Bill is intended to apply to foreign companies who provide a relevant communication service with one or more end-users in Australia. It also captures anyone who develops, supplies, or updates software in connection with that service.

It’s not entirely clear how the Bill will interact with certain foreign laws given the proposed extraterritorial scope (including, in particular, the GDPR). The Bill has a defence for not complying with requested assistance if compliance in the foreign country would contravene a law of the foreign country. However, this defence does not cover the situation where compliance in Australia could violate the laws of another country the provider operates in.3

What type of assistance might be required?

After debate in Parliament, the Bill was amended so that a law enforcement agency could only require a ‘designated communications provider’ to do specific acts or things known as ‘listed acts or things’.4

However, the definition of ‘listed acts or things’ is almost as broad as the definition of ‘designated communications provider. Importantly, it includes:

  • removing the electronic protection from a service or device;
  • providing specified ‘technical information’;5 and
  • facilitating access to devices or requested data.

How is an industry assistance request/order made?

There are three types of requests/orders that law enforcement agencies can make (each subject to certain limitations or consultation requirements discussed below).

The requests/orders are:

  1. Technology assistance request (TAR) – a TAR is a request for voluntary assistance with the law enforcement agency’s functions or activities. A TAR can include a request for any assistance – it is not limited to ‘listed acts or things’. One limitation is that the request must relate to a ‘relevant objective’ of the requesting agency (e.g. safeguarding national security or assisting the enforcement of serious criminal offences in Australia or a foreign country).
  1. Technology assistance notice (TAN) – a TAN is a notice obliging ‘designated communications providers’ to assist with a law enforcement agency’s functions or activities. The type of assistance must be a ‘listed act or thing’. Additionally, the actual assistance must relate to safeguarding national security or assisting the enforcement of serious criminal offences (of Australia or a foreign country).
  1. Technology capability notice (TCN) – a TCN is similar to a TAN in that both are compulsory notices. However, the purpose of a TCN is to compel a ‘designated communications provider’ to build new capabilities that will enable them to assist a law enforcement agency with a ‘listed act or thing’ (likely intended to be used in connection with a TAN). This has attracted criticism that a TCN could be used to require a company to build backdoors into its software / hardware.

The scope of a TCN still requires the notice to relate to assisting the enforcement of serious criminal offences (in Australia or a foreign country). There are also additional oversight measures (including requiring the Attorney-General to first issue a ‘consultation notice’ setting out details of the proposed TCN for discussion with the provider). However, there are still major concerns about privacy implications and whether the compliance with the requirements are actually technically possible.

What are the penalties?

Unless an exception applies (discussed below), the maximum penalty for non-compliance with a TAN or TCN is ~A$10 million (for a body corporate who is not a carrier or carriage service provider).

Compliance with a TAR is voluntary, meaning there are no penalties for non-compliance.

Are there any exceptions to compliance?

In an attempt to balance privacy concerns and the uncertainty whether it is technically possible to comply with requirements in an order or notice, the Bill includes several exceptions to compliance.

Two of the most significant are:

  1. A request/notice cannot compel a designated communications provider to implement a systemic weakness/vulnerability. Systemic weakness/vulnerability is defined as something that would affect a whole class of technologies, but does not include not a weakness/vulnerability that targets a particular person. This exception is intended to ensure that companies won’t be compelled to include a backdoor affecting the security of all devices. Given how modern end-to-end encryption works, it is arguable that many requests/notices might fall under this exception.
  1. The issuing law enforcement agency must consider whether the request / notice is ‘reasonable and proportionate’ and compliance is ‘practicable and technically feasible’. The terms ‘practicable’ and ‘technically feasible’ are not defined in the Bill. However, it contains several factors for a law enforcement agency to consider when determining if a request / notice is reasonable and proportionate. They include:
  • the interests of national security and law enforcement;
  • the legitimate interests of the designated communications provider;
  • the privacy and cybersecurity interests of the Australian community; and
  • whether other less intrusive forms of industry assistance exist.

It’s not clear how ‘practicable’ and ‘technically feasible’ will be interpreted, or how these factors will be balanced by a law enforcement agency.

Another potential avenue available under the Bill is for a designated communications provider to request an assessment of a ‘consultation notice’ (that is, the ‘consultation notice’ which must be given prior to a TCN being issued). Such an assessment will be carried out by a retired judge and an assessor with sufficient technical knowledge. The assessors’ report will be considered before a decision is made whether to proceed with giving the TCN.

Costs of compliance

The Bill also provides that a ‘designated communications provider’ must comply with the requirements of a TAN or TCN on a no profit-no cost basis (unless otherwise agreed, or the issuing law enforcement agency declares it would be contrary to the public interest). Arbitration is an option for resolving an agreement as to the assessment of costs.


1 Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, sch 1, s 317.

2 Parliament of Australia, Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, Bills Digest No. 49 of 2018-19, 3 December 2018, 21.

3 Ibid 31.

4 Voluntary requests can cover any other type of assistance.

5 The term ‘technical information’ is not defined in the Bill, which has led to some industry participants being concerned that it could even include the source code for proprietary software.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions