Sweeping new powers for the AFP and Australian Criminal Intelligence Commission could see innocent users of social media services such as WhatsApp deemed criminals.

By Karen Middleton.

Federal agencies seek more powers

AFP Commissioner Reece Kershaw at senate estimates last year.
AFP Commissioner Reece Kershaw at senate estimates last year.
Credit: AAP Image / Mick Tsikas

People who use social media platforms that others may use for crime, such as WhatsApp, Twitter, Instagram or Facebook, could be deemed part of a criminal network and have their bank, email and other online accounts disrupted or seized under sweeping proposed police powers.

The new legislation creates three new kinds of warrants that would give the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC) sweeping disruption and surveillance powers.

The network activity, account takeover and data disruption warrants would allow police to spy on social media users, seize control of accounts, amend or strip their data and lock out their owners.

This is possible because of a matrix of broad definitions that casts an extraordinarily wide net in seeking to prevent crime and catch criminals. The powers extend far beyond the domain of the child sex and terrorism offences for which the government says they are designed to comparatively more minor crimes punishable by three years’ jail.

Police argue this is essential to align with other laws and expose the full extent of organised crime networks – which are sometimes engaged in petty online crime as well as more serious matters – and that they would not waste time on unrelated small-time offences.

The legislation is drawing a barrage of protest from legal bodies, civil liberties organisations and social media companies worried it is too loosely drafted and that the powers represent overreach and abandon privacy protections with too few safeguards.

“You could find yourself as an innocent bystander who just happens to be part of a network and you can’t access your bank accounts to pay your rent and you can’t access MyGov,” Law Council of Australia president Jacoba Brasch, QC, told a parliamentary committee this week that is examining the legislation.

The Law Council’s David Neal told the watchdog parliamentary joint committee on intelligence and security (PJCIS) that the agencies could better use their existing powers to achieve the policing objectives and that the government had not explained adequately why the powers are needed.

“If executive government is going to take power of intrusion over the citizenry, there needs to be a strong justification for it, and in respect to each of these we point to a lack of justification …,” Neal said.

“We don’t say [the powers] are all unnecessary – we don’t say that at all. However, the case for arming the executive government with these powers has to be made … The agencies charged with carrying out these activities sometimes get carried away with the sense of mission and don’t see that we live in liberal democracies where people’s rights need to be protected – and that that’s an important balance.”

The AFP, ACIC, Department of Home Affairs and campaigners against child exploitation insist the broad powers are needed to give authorities the tools to keep up with the evolving technologies, especially enabling access to the dark web, that allow horrific abuse to flourish online.

AFP commissioner Reece Kershaw said the Covid-19 pandemic had led to a steep rise in online child exploitation and other cybercrime and the spread of extremist ideology under “the cloak of anonymity”.

Kershaw said that while police had surveillance powers, they could not see whole networks or identify how they move materials or intervene to modify data and stop people being harmed.

“We’ve still got one hand tied behind our back,” Kershaw told the committee on Wednesday. “… Criminals should not be able to conduct serious crime online and get away with it, just because our laws have not kept pace with technology.”

Mark Zirnsak, the Uniting Church’s senior social justice advocate for Victoria and Tasmania, backed the police.

“We believe the powers outlined in this bill are completely necessary,” Zirnsak said. “We think the evidence for that is overwhelming.”

Enlisting help from the only fully cyber-capable spy agency, the Australian Signals Directorate (ASD), the AFP and ACIC would be empowered under the new law to engage in what civil liberties groups have dubbed “state-authorised hacking”.

The bill is the government’s first legislative response to a major intelligence review completed two years ago by former Australian Security Intelligence Organisation (ASIO) chief Dennis Richardson and finally unveiled late last year. But the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 does what Richardson specifically recommended against.

Richardson said the AFP should develop a cybercrime capability under its existing powers to deal with the growing threat of serious organised crime including child abuse, terrorism and illicit trading in drugs or firearms.

But he warned against a specific “disruption” mandate that would transfer the power to adjudicate on whether something was a criminal offence from a court to police, giving officers the real-time power to seize, destroy or damage property – not allowed under current law.

That would make police “judge, jury and executioner”.

The legislation’s critics are extremely concerned about how it is drafted. It contains at least one basic error – referring throughout to the “Australian Crime Commission”, a body that no longer exists.

More concerning, they say it is filled with ill-defined terms that will make it too easy to ensnare innocent people.

They also say warrant authorisation procedures are not tough enough, requiring approval only by an ordinary member of the Administrative Appeals Tribunal or low-level magistrate, not a senior experienced judge.

“Given how extensive computers are in everything we do now, these powers are potentially massively intrusive and very damaging, could ruin people’s lives and businesses and therefore we say should be approached with the utmost caution,” Neal said.

The legislation effectively extends to regular policing the kinds of intrusive powers gradually granted to intelligence and other agencies to fight terrorism in the two decades since the 9/11 terrorist attacks in the United States.

Commissioner Kershaw assured the committee that police would use their new powers sparingly, proportionately and appropriately.

The new PJCIS chairman, Liberal senator James Paterson, pointed back to the controversial metadata regime introduced in recent years. He noted it came with similar assurances about high-level use but had instead been used by a large number of organisations for petty matters, including local councils chasing unpaid parking fines.

“The committee might want to assure itself that there are really robust measures, not just in your assurances as a professional public servant but in the legislation itself, that this wouldn’t be used for some more trivial examples,” Paterson said. “Given that these are extraordinary powers, it’s possible the public would be more comfortable if they knew that it was reserved only for the most extraordinary offences.”

Human Rights Law Centre senior lawyer Kieran Pender said the bill contained a “compound definition” problem as to what constituted a “criminal network” and an “electronically linked group of individuals”.

“Those two definitions together are so broad that as soon as one individual suspected of a relevant offence uses, for example, WhatsApp, in theory this bill would allow warranting in regards to anyone who uses WhatsApp,” Pender said.

“Those very broad definitions exacerbate the risk of abuse and misuse.”

The warrants would also create new avenues to monitor and restrict the work of journalists.

“If the AFP thought that a journalist who has a history of reporting in relation to whistleblowers was likely to incite an intelligence officer to blow the whistle, they could seek a network activity warrant in relation to that journalist to monitor their activity,” Pender said. “If that journalist was then in a WhatsApp group with other journalists, in theory they could then seek a warrant to monitor them as well.”

The legislation would cut across other existing laws designed to offer protections for whistleblowers who approach journalists with legitimate concerns about government activities, intervening to stop disclosures before they occurred.

In another example, the Law Council’s Tim Game, SC, said that if one member of a political party was suspected of criminal activity, the bill, as drafted, would allow the agencies to conduct surveillance on every member and then obtain a search warrant.

The bill blurs the lines between the AFP, ASD and ASIO, effectively dismantling the separations in the system that were identified, explained and deliberately upheld and defended by past respected examiners of Australia’s intelligence network, including Dennis Richardson and Justice Robert Hope.

Australian National University intelligence specialist and former ASIO and ASD historian Professor John Blaxland said he had some concerns about the risk of a blanket surveillance system.

Blaxland told The Saturday Paper that the account takeover warrant in particular was “a little bit Orwellian” and risked power being used “beyond the intended scope”.

He said he was less concerned about the other two warrant types but that it was essential that the Inspector-General of Intelligence and Security (IGIS) have both its monitoring powers and resources boosted – embedded in the bill – so Australians could be sure the warrant powers weren’t being abused.

He said the powers and resources of both the IGIS and the Commonwealth Ombudsman were “not adequate for the task”.

Blaxland said the powers police sought were “legitimate” because the law had to catch up with technology.

“But in catching up, we need to make sure that the law doesn’t become the problem,” Blaxland says.

He endorsed the police argument that there was protection in the fact that they couldn’t afford to waste time or resources on “lower-order priorities”.

But new restrictions on journalists were, he said, a matter for concern.

This article was first published in the print edition of The Saturday Paper on March 13, 2021 as "AFP big brother fears".

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