Parliamentary speeches

Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

August 24, 2021

I rise to speak on the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020. The Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 will amend the Surveillance Devices Act 2004, the Crimes Act 1914 and associated legislation to introduce new law enforcement powers to enhance the ability of the Australian Federal Police and the Australian Criminal Intelligence Commission to combat cyber-enabled serious and organised crime enabled by the dark web and other anonymising technologies. I want to be very clear that this is a bill which Labor supports. The cybercapabilities of criminal networks have expanded, and we know that they are using the dark web and anonymising technology to facilitate serious crime, which is creating significant challenges for law enforcement, in respect of which the parliament must respond. It is evident that Australia's laws at present are not suitably adapted to identifying and disrupting criminals who are actively seeking to obscure their identity and the scope of their activities, so these laws must be made fit for purpose, after due deliberation and consideration and with appropriate safeguards set in place given the novel and broad scope of the provisions contained in this bill.

The bill is aimed at modernising our law enforcement and intelligence legal framework to better equip the AFP and the ACIC to deal with serious cyber-enabled crime and it will do so through three substantive changes in the form of three new warrants: firstly, a data disruption warrant which enables the AFP and the ACIC to access data on one or more computers and perform disruption activities for the purpose of frustrating the commission of criminal activity; secondly, a network activity warrant to enable the AFP and ACIC to collect intelligence on criminal networks operating online; and, thirdly, an account takeover warrant to allow the agencies to take over a person's online account for the purposes of gathering evidence of criminal activity. The bill also provides for minor amendments to the controlled operations regime so as to ensure controlled operations can be conducted effectively in the online environment.

The powers in the Surveillance Legislation Amendment (Identify and Disrupt) Bill are extraordinary. The question before us therefore is whether, in all the circumstances, these are warranted, and, if so, are there sufficient safeguards in place? That's why the Parliamentary Joint Committee on Intelligence and Security carefully examined the government's bill and why we should pay very careful regard to its findings and how they have been responded to by the government in the bill before us and more broadly.

Labor has always sought to engage constructively when it comes to these very difficult, very important questions of keeping the community safe in a changing environment. I acknowledge the thoughtful and critical work of my Labor colleagues on this committee—and, indeed, all the members of that important committee. The committee heard concerns in respect of the initial bill that relate to a number of issues: the issuing authority for warrants; the necessity and proportionality of the powers, particularly with regard to rights of privacy and civil liberties; whether safeguards accompanying these new powers are sufficient; the breadth of crimes that could be the focus of new powers; and the protection of the work of journalists and lawyers from these provisions.

The committee tabled its report on 5 August and made 33 substantive recommendations, including that the bill be passed subject to amendments recommended by the committee. It's obviously a critical finding by this critical bipartisan committee and one that I and Labor pay very careful regard to. I note that 23 of these recommendations have been implemented wholly or substantially, and these include strengthening the issuing criteria for warrants, reviews by the Independent National Security Legislation Monitor and the PJCIS, sunset of the powers in five years and good faith immunity provisions for assistance orders.

Having noted these substantial amendments, I want to touch on the remaining recommendations of the committee and how these have been dealt with, many of which have been advanced even though they have not been directly incorporated in the bill before the House. Four of them have been accepted by the government and are to be incorporated at the Richardson review. These deal with broadening the remit of the ombudsman, looking to issuing authorities being superior courts or issuing judges, reviewing what is a serious offence and seeking some consistency in this regard across other legislation, and constraining post-warrant concealment powers. Recommendation 19, which is effectively that a public interest advocate be appointed where warrants are sought in relation to journalists or media organisations, has also been accepted by the government, as have recommendations expanding the PJCIS's oversight of the intelligence functions of the AFP and ACIC. One recommendation in this space has been rejected, which relates to the oversight of AFP intelligence functions, on the basis of inconsistency with an accepted recommendation of the Richardson review. I note also that recommendation 5 of the committee does not require legislative enactment going, as it does, to the form of submissions by the Department of Home Affairs. Lastly, I note that two additional amendments have been proposed by the government which are intended to secure conformity with other legislation and reporting periods.

The Labor members on the Parliamentary Joint Committee on Intelligence and Security noted, in the additional comments, that they would have preferred the recommendations to go further to ensure that these new powers would be used only in regard to the most serious of crimes. The government has implemented a committee recommendation that improves the bill in this regard, but I do note that it does not go quite as far as the Labor members propose. This recommendation, which is recommendation 10, states:

6.60 The Committee recommends the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 be amended to provide additional requirements on the considerations of the issuing authority to ensure the offences are reasonably serious and proportionality is maintained. The effect of any changes should be to strengthen the issuing criteria and ensure the powers are being used for the most serious of offending.

This should include specific consideration as to whether the offending relates substantially to: offences against the security of the Commonwealth per Chapter 5 of the Criminal Code; offences against humanity including child exploitation and human trafficking per Chapter 8 of the Criminal Code; serious drug, weapons and criminal association offences per Chapter 9 of the Criminal Code; and money laundering and cybercrime offences per Chapter 10 of the Criminal Code. These examples are not exhaustive, but designed to reflect the intention of the Bill as seen through the Explanatory Memorandum and evidence to this Committee.

This should include the nature of the offending and its relationship to other serious offences.

Labor members stated:

We … believe that Recommendation 10 can and should go further.

All members of the Committee have acknowledged that the powers in the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 are extraordinary.

…   …   …

However, in recognition of the extraordinary nature of these new powers and the way in which the Government and agencies sought to justify their introduction, Labor members think the Committee should have gone further by recommending that the references to "relevant offence" in the bill be replaced by a new concept of "serious offence".

This is a point worth touching on. The need for these powers has been justified by reference to the most serious types of offences. In the explanatory memorandum, for example, the government said:

This Bill addresses gaps in the legislative framework to better enable the AFP and the ACIC to collect intelligence, conduct investigations, disrupt and prosecute the most serious of crimes, including child abuse and exploitation, terrorism, the sale of illicit drugs, human trafficking, identity theft and fraud, assassinations, and the distribution of weapons.

I am concerned that this might be seen as mischaracterising the breadth of the new powers. As all members of the PJCIS have acknowledged, the new powers will enable the agencies to collect intelligence, conduct investigations, and disrupt and prosecute all relevant offences. This definition presently includes all offences against the law of the Commonwealth punishable by a maximum term of three years or more, which includes all of those crimes listed in the EM but also tax offences, trademark infringements and a range of other offences which do not fall within the categories I just outlined. I am not suggesting for a moment that these other types of offences are not serious; rather that the government and agencies have failed to fully make the case for why these powers are needed beyond those categories. It is obviously much easier to justify the introduction of such powers by focusing on the most serious types of crime. No-one would argue with that in respect of crimes like child abuse and exploitation, and terrorism. But it is important that we engage in the more difficult task of justifying the introduction of extraordinary powers by reference to how the powers could actually be used.

Labor members on the committee considered that recommendation 10, together with other recommendations that have been incorporated, go a long way to ensuring that these powers will be used only for the most serious offending. Having said that, we do note that there are presently a number of different definitions of serious offence in Commonwealth legislation. The preference of Labor members would have been to adopt a definition broadly consistent with that contained in the Telecommunications (Interception and Access) Act 1979. This is a matter that we should have some ongoing consideration towards, in the interests of the efficacy of this bill, its intended purpose, and balancing all the interests that are at play in this very new, concerning and important area of lawmaking.

On that, I want to briefly note some stakeholder concerns which are there, and the safeguards within the bill. The Human Rights Law Centre have stated that Australia lacks a robust human rights framework that would provide adequate protection against the use of powers contained in the bill. They've expressed broader concern about what they regard as the disproportionate scope of the proposed powers, as did the Law Council. I want to be very clear in saying that I don't take these concerns lightly. It is vitally important that the safeguards are implemented effectively and monitored by this parliament and all members of it, independent agencies, the media and human rights organisations.

The bill proposes that the Ombudsman will have oversight over data disruption warrants and account takeover warrants, and the Inspector-General of Intelligence and Security will have oversight over the use of network activity warrants. The bill provides for the oversight of the AFP's and the ACIC's activities in relation to network activity warrants. The amendments that have been introduced will enable the inspector-general to review the activities of the agencies in relation to network activity warrants for legality, proprietary and consistency with human rights. The inspector-general may carry out his or her oversight functions through a combination of inspections, inquiries and investigations into complaints. The Ombudsman will provide oversight also of the AFP's and the ACIC's use of the account takeover powers, which is consistent with the general oversight arrangements for the activities of these agencies. The Ombudsman is also required to inspect agency records and report to the Minister for Home Affairs every six months. This is a report that must be tabled in the parliament. Respective agencies will also be required to provide statistics of the use of data disruption warrants, network activity warrants and account takeover warrants in annual reports to the minister.

Labor supports this bill. It's an important bill which addresses very significant and worrying gaps in the legislative framework so as to better enable the AFP and the ACIC to collect intelligence, conduct investigations, and disrupt and prosecute the most serious of crimes in an evolving environment. Labor always works constructively with the government and all members of this place to ensure the safety of the community. The process of the parliament here has produced a bill that meets the very serious challenges required to respond to, with appropriate safeguards in place, some of which will require all of us to maintain our attention on their operation and their adequacy. On this basis, I commend the bill to the House.