The government’s new security powers have been harshly criticised for overreach and the vagueness of their drafting. By Karen Middleton.
New powers to spy on Australian citizens criticised for overreach
Parliament’s Liberal-dominated security watchdog committee has warned the government it must not give Australian law enforcement agencies “extraordinary” and intrusive new surveillance powers without clearly defining their reach and dramatically increasing oversight.
The government wants the Australian Federal Police and the Australian Criminal Intelligence Commission to be able to take over electronic accounts and tamper with, seize or destroy computers and data, even those belonging to people not suspected of any offence. Officers could also be seconded from the Australian Signals Directorate, which normally only conducts cyber operations offshore.
The parliamentary joint committee on intelligence and security (PJCIS) says it accepts the agencies’ arguments that they are struggling to keep up with extensive criminal activity on the encrypted dark web.
But it is alarmed at the vague and inconsistent description of the proposed new powers’ reach and the inadequate arrangements for scrutinising their use.
“The committee concluded that oversight should be increased, and safeguards should be added, to ensure the community has confidence that these powers are only used for their intended purpose, while remaining operationally effective,” the committee’s chairman, Liberal senator James Paterson, told parliament on August 5.
The agencies argue they need the power to seize and destroy property owned by innocent people because criminals may use computers owned or operated by others.
But in his intelligence community review, published in 2019, former Australian Security Intelligence Organisation director-general Dennis Richardson told the government the agencies already had adequate powers and they should not be increased.
The PJCIS report comes after Prime Minister Scott Morrison used news of the global three-year organised crime sting, Operation Ironside, to push for the powers and accuse Labor of failing to support them. Labor says the PJCIS’s unanimous findings prove this was untrue. The report does not address Operation Ironside, including whether its success proved Richardson’s point.
The powers will enable the agencies to seek three new kinds of warrants to investigate and disrupt an undefined range of suspected offences, including before they occur.
Data disruption warrants are designed to frustrate offences planned or in progress. Network activity warrants would allow intelligence collection on “serious criminal activity”. Account takeover warrants would authorise control of people’s online accounts to gather evidence for a criminal investigation.
Introducing the bill in December last year, the then Home Affairs minister, Peter Dutton, said these were “critical in enabling law enforcement to tackle the fundamental shift in how serious criminality is occurring online”.
The powers would allow journalists and lawyers to be targeted. The Department of Home Affairs said the powers did not override the principle of client legal privilege but gave no undertakings about protecting journalists – something the PJCIS is demanding.
The committee report recommends 33 amendments to the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020.
It endorsed virtually all changes proposed by the Law Council of Australia and some from the Human Rights Law Centre.
Law Council president Jacoba Brasch said the proposed changes would add “significant and workable safeguards”. “This will greatly enhance public trust and confidence in the important and difficult work our law enforcement agencies undertake in tackling serious and organised crime,” she said.
Kieran Pender, a senior lawyer at the Human Rights Law Centre, said the powers still went “way beyond what is necessary and proportionate” and would impact all Australians’ privacy. Pender welcomed the PJCIS’s acknowledgement of civil society’s submissions.
“These recommendations must be implemented,” he told The Saturday Paper. “… Any increase in government surveillance requires comprehensive safeguards to protect our democracy and human rights.”
The PJCIS was particularly concerned about varying definitions of “relevant” offences. It said the bill’s definition was “significantly” broader than the offences listed in the explanatory memorandum, describing this as “the most substantial” issue for its whole inquiry.
The memo suggests the powers would target child sex abuse, human and drug trafficking, identity theft and fraud, assassination, gun-running and terrorism. But the bill itself is non-specific.
The PJCIS noted definitions differed across various laws. It proposed a threshold test be inserted in all Commonwealth legislation, defining a “serious” offence as one that carried a maximum penalty of seven years’ jail or more.
The PJCIS has recommended members of the Administrative Appeals Tribunal be removed as warrant authorising officers and that only Supreme or Federal Court judges be able to authorise the first two categories of warrants.
It wants greater scrutiny overall and is concerned the proposed oversight arrangements risk “fragmentation”, creating gaps. It is also urging more transparency and accountability, with reports to parliament and a five-year sunset clause.
This article was first published in the print edition of The Saturday Paper on August 14, 2021 as "Seize and destroy".
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