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The newly warranted federal powers to investigate cyber-enabled crime “covertly” must be “carefully scrutinised”, the Law Council of Australia has urged, to ensure that the rights of innocent individuals are not unduly compromised.
Yesterday (19 February), the Independent National Security Monitor held a public hearing to evaluate the amendments introduced by the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (Cth) (SLAID Act).
The SLAID Act, which amended the Surveillance Devices Act 2004 (Cth) and Crimes Act 1914 (Cth), conferred three additional warrants to the officers of the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC).
These warrants include the data disruption warrant, which empowers officers to access data or multiple computers to disrupt activities; the network activity warrant, which permits the collection of intelligence regarding online activities; and the account takeover warrant, which authorises officers to assume control of an individual’s online account.
During the public hearing, the Law Council of Australia (the Law Council) expressed caution regarding the new powers granted to the AFP and ACIC, which enable them to “covertly” investigate cyber-related crimes, emphasising that the quest to combat cyber crime shouldn’t “unduly infringe on the rights of innocent members of our community”.
In its submission, the Law Council, which was represented by knowledgeable members of its National Security Working Group, expressed its support for investigating the “necessity and proportionality” of the new warrant powers granted under the SLAID Act.
Juliana Warner, president of the Law Council of Australia, conveyed the council’s apprehensions that these warrant powers signify a significant departure from established investigative practices, potentially leading to unintended consequences.
“At the time of their introduction, we raised concerns that these warrants departed sharply from the traditional focus of investigative powers on the collection of admissible evidence of specific offences and had the potential to cause significant loss or damage to large numbers of non-suspects, who may be lawfully using the computer networks or systems being targeted.
“There remain substantial risks and consequences related to these warrants, combined with a limited scope for someone to seek an effective remedy of their own accord or take a direct part in any review proceedings,” Warner said.
To address these concerns, the Law Council has recommended that these warrant powers need to be “subsumed into a harmonised Commonwealth electronic surveillance framework and that such warrants are best issued by judicial officers of state, territory and federal superior courts”.
The Law Council is also advocating for establishing a public interest monitor, which would introduce an additional layer of scrutiny to ensure that decisions pertaining to surveillance are aligned with the public interest during the warrant-issuing process.
“We have also supported the introduction of a public interest monitor regime to assist in the warrant issuing phase, to provide the decision-maker with valuable support and to test submissions put forward by those seeking to rely on the warrant,” Warner said.
The Law Council was not alone in expressing its concern, with the Human Rights Law Centre also raising its worries about the new warrants, describing them as “unprecedented and invasive powers to monitor online activity, access data, and take over a person’s online account”.
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