The most important legal renovation on Australia's books — and it has not happened.
The diagnosis
The 2019–20 Richardson Review found the framework fragmented and outdated: the Telecommunications (Interception and Access) Act 1979, the Surveillance Devices Act 2004, computer-access and related powers in the ASIO Act, plus the Telecommunications Act assistance provisions. Technology — encryption, cloud, over-the-top apps, data held offshore, ubiquitous location — has outrun a statute written around telephone taps. Richardson recommended a single Electronic Surveillance Act, with cleaner thresholds, better definition of agencies' roles, and oversight built in rather than bolted on.
The delay
The Morrison government accepted the recommendation in principle; a discussion paper on reform of the electronic surveillance framework followed. Drafting a replacement for forty years of interlocking law is genuinely hard — and every clause is a fight among agencies (who fear losing tools), the Attorney-General's Department, privacy and journalism advocates, and the telco/tech industry. Years later, comprehensive legislation still has not landed; piecemeal amendments continue instead. Delay itself has become a political fact: agencies operate on creaking authorities; civil society assumes the eventual bill will expand powers under the banner of "simplification".
The unresolved fights any bill must settle
- Encryption and industry assistance. The 2018 Assistance and Access Act (TOLA) remains internationally notorious: technical assistance notices, technical capability notices, and the contested "no systemic weakness" formula. Companies argue they cannot weaken encryption for Australia without weakening it everywhere; agencies argue they are going dark. Use of the powers is largely opaque; INSLM and PJCIS have both had it on their books (Intelligence Oversight).
- Metadata retention. The 2015 mandatory two-year telecommunications data retention scheme was sold as a terrorism and serious-crime tool. Access has been broader than the original public pitch, and journalist-information-warrant settings were only tightened after the 2019 AFP raids on Annika Smethurst and the ABC.
- Who may authorise what. Warrants vs internal authorisation, the role of AAT/judicial members, overnight/emergency powers, and the treatment of Australians offshore (ASD/ASIS ministerial authorisations) determine how much the new Act resembles a surveillance statute or a restraint statute (National Intelligence Community).
- Press freedom and client legal privilege. Post-2019 reforms (including a public-interest advocate in some warrant processes) are widely viewed by media organisations as insufficient; any new Act that does not reopen this will be attacked, and any Act that does will be attacked from the other side.
Treat claims about the current drafting instructions as speculative unless they come from a government paper. The public story is still: Richardson was right that the law is a mess, and the mess remains.
Related
- Intelligence Oversight — INSLM, PJCIS and the oversight to be built in rather than bolted on
- National Intelligence Community — the agencies whose powers the Act would define
- ASD Project Redspice — ASD's collection mandate sits in the same legal frame