I think I should say upfront that I don’t trust the government and that that distrust has been richly earned over a long period of time.
Without quibbling over whether a Ministerial Determination is legislation …
Is the Determination valid? (not outside the scope laid down in the Act)
Is the Act itself valid? (not outside the scope laid down in the constitution)
Does it bind all the entities that it needs to? Cth? ASIO? States? AFP? state police forces?
Because no actual bill to amend or create an Act was ever introduced into parliament, or debated in parliament, there are questions outstanding.
It looks odd that the Health Minister is telling “you” that “you” can’t decrypt data that is stored on a phone and that this will “prevent or control the spread of a disease”.
As is stated above, the very fact that the Minister can pull this out of thin air without any debate also means that the Minister can vary or cancel this without any debate.
It is fragile, which is why it is reasonable to ask the government to follow up with proper legislation (a bill to amend or create an Act, if you prefer).
… until it becomes part of every Android and Apple phone (as has been mooted by Google and Apple - and as could be required by the government in accordance with legislation that has been passed by the parliament).
This doesn’t look like a minor or administrative change though! As you say above, it is being done this way because “it’s an emergency”. Whether that leads to a quality watertight Ministerial Determination remains to be seen.
