Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020
The submission to the Parliamentary Joint Committee on Intelligence and Security in response to the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 (Bill).
The Bill proposes to amend the Surveillance Devices Act 2004 (Cth) (SDA) and Crimes Act 1914 (Cth) (Crimes Act) to confer three new powers on the Australian Federal Police (AFP) and Australian Criminal Intelligence Commission (ACIC), namely:
- data disruption warrants, which authorise the exercise of ‘offensive’ data disruption powers to frustrate the suspected commission of an offence using a computer that is punishable by a maximum penalty of three or more years’ imprisonment. These warrants can also be accompanied by compulsory assistance orders, which require any person with relevant knowledge or expertise to assist the AFP or ACIC, under penalty of 10 years’ imprisonment;
- network activity warrants, which enable the ACIC or AFP to monitor the computer-related activities of criminal groups for the purpose of collecting intelligence, rather than investigating an offence to obtain admissible evidence; and
- account takeover warrants, which authorise the AFP or ACIC to assume control of an online account that is suspected of being used in the commission of an offence punishable by at least three years’ imprisonment, to enable an investigation.
The Bill also proposes to expand the oversight remit of the Inspector-General of Intelligence and Security (IGIS) to cover the actions of the ACIC and AFP under network activity warrants. This requires consideration alongside the proposed amendments to oversight legislation in the Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020, which the Committee is reviewing separately.
The Law Council acknowledges that law enforcement agencies need powers that are adapted to the specialised context of cyber-enabled offences, particularly serious and harmful offences carried out online, such as child exploitation and terrorism.
However, the necessity and proportionality of the proposed powers requires careful scrutiny, both in terms of their overall operational objectives, and their detailed provisions. The new powers represent major expansions of the existing powers of the AFP and ACIC, which depart sharply from the traditional focus of their investigative powers on the collection of admissible evidence of specific offences. They also have the potential to have significant adverse impacts on large numbers of non-suspects who are lawfully using the networks, systems or accounts that are suspected of being used by offenders.
You can read the full submission below.