The Surveillance Legislation Amendment (Identity and Disrupt) Bill 2020 introduces three new powers which Home Affairs Minister Karen Andrews says will bolster authorities’ ability to keep up with evolving technologies to protect Australians.
With the unprecedented powers, the Australian Federal Police and Australian Criminal Intelligence Commissioner will be able to combat cyber crime through the following:
Network activity warrants: enables collection of intelligence on the most harmful criminal networks, including on the dark web and when using anonymising technologies
Data disruption warrants: will be able to disrupt serious criminal activities online and allow them to modify data belonging to suspects and to frustrate the commission of serious offences – such as the distribution of child exploitation materials
Account takeover power: enables AFP and ACIC to take control of online accounts for the purposes of gathering evidence of criminal activity used in conjunction with other investigatory powers (currently law enforcement relies on a person’s consent)
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Minister Andrews spruiked the legislation, saying the more than 290 arrests made earlier in 2021 as part of Operation Ironside “confirmed the persistent and ever evolving threat of transnational, serious and organised crime – and the reliance of these networks on the dark web and anonymising technology to conceal their offending”.
“In Operation Ironside, ingenuity and world-class capability gave our law enforcement an edge. This Bill is just one more step the government is taking to ensure our agencies maintain that edge,” she continued.
“Under our changes the AFP will have more tools to pursue organised crime gangs to keep drugs off our street and out of our community, and those who commit the most heinous crimes against children.”
The AFP and ACIC will be granted unprecedented powers under new surveillance legislation to assist in combatting serious cyber crime. Picture: Getty Images
However, the passing of the bill has been heavily criticised by some legal bodies who argue the Morrison government did not fully take into account recommendations provided by the Parliamentary Joint Committee on Intelligence and Security (PJCIS).
The Law Council of Australia has expressed concerns over the bill, claiming it left out key recommendations made by the PJCIS – particularly in relation to the implementation of critical safeguards.
President of the Law Council Dr Jacoba Brasch QC said it was “particularly disappointing” to see “judicial issuing of the new, extraordinary warrants” were not put in place.
“The Law Council believes the significant breadth and intrusive scope of these warrants demands consideration by judicial officers, as the PJCIS recommended,” he said.
“These warrants have the potential to cause significant loss, damage or disruption to lawful computer users who are not suspected of any wrongdoing.” 
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Mr Brasch further said the council understood there was an intention to consider those additions in the long-term development of electronic surveillance legislation but noted the PJCIS recommendations “were specific to the three new warrant-based powers in this legislation, which are now novel, extraordinary and extensive”.
“[They] are crucial to the reasonable and proportionate exercise of the new powers, and public confidence in their exercise at any point in time at which those powers are in force,” he added.
“Deferring consideration and implementation for an open-ended period, potentially years, fails to provide meaningful safeguard or assurance.”
Fears about the use of the new extraordinary and unprecedented powers were also raised by the Human Rights Law Centre – particularly relating to their possible use against journalists and whistleblowers.
The Morrison government has been accused of neglecting to ensure sufficient safeguards were included in a new surveillance bill which will see top law enforcement agencies granted extraordinary powers. Picture: Getty Images
In August, the PJCIS accepted a number of recommendations from the centre – and civil society stakeholders – proposing narrowing the criteria for use of the new powers along with stronger oversight mechanisms.
“But the Morrison Government has rejected or only partially-adopted approximately half of the Committee’s recommendations and rushed the new law through the Parliament,” a statement from the organisation read.
Senior lawyer at the Human Rights Law Centre, Kieran Pender, highlighted there was a “democratic cost” to every increase in state surveillance.
“Overbroad surveillance powers impact the privacy of all Australians and have a chilling effect on journalists and whistleblowers,” he said.
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“Given the powers are unprecedented and extraordinarily intrusive, they should have been narrowed to what is strictly necessary and subject to robust safeguards. That is why the Committee unanimously recommended significant changes.
“It is alarming that, instead of accepting the Committee’s recommendations and allowing time for scrutiny of subsequent amendments, the Morrison Government rushed these laws through Parliament in less than 24 hours.” 
The Commonwealth Ombudsman and Inspector-General of Intelligence and Security will oversee the powers to ensure their appropriate use. 
They will also be subject to review by the PJCIS and Independent National Security Legislation Monitor. 

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