Here’s how the new laws work if passed
For months, the home affairs minister, Peter Dutton, has been calling for new powers to police the dark web.
In August, the government’s cybersecurity strategy promised legislative powers and technical capabilities to “deter, disrupt and defeat the criminal exploitation of anonymising technology”.
The bill was aimed at paedophiles seeking to groom children online, terrorists swapping information and people trading gun parts, Dutton said, and it would apply “to those people and those people only”.
On Thursday, he introduced the surveillance legislation amendment (identify and disrupt) bill into the House of Representatives.
It is already clear the bill would give the Australian federal police, the Australian Criminal Intelligence Commission and, through them, the Australian Signals Directorate spy agency, powers to disrupt and investigate a much broader range of crimes.
What are the new powers?
The bill creates three new types of warrants:
Data disruption warrants enable the AFP and the ACIC to disrupt data by modifying, adding, copying or deleting in order to frustrate the commission of serious offences online
Network activity warrants allow agencies to collect intelligence on serious criminal activity being conducted by criminal networks; and
Account takeover warrants let the AFP and the ACIC take control of a person’s online account and can be combined with other warrants to gather evidence to further a criminal investigation
What offences can they be sought for?
All three powers are enlivened by suspicion that a “relevant offence” is being committed, defined as a “serious commonwealth offence” or a serious state offence that has a federal aspect. Serious offences are those carrying a maximum sentence of three or more years in prison.
Despite Dutton’s claim of strict limits on the offences, the explanatory memorandum states serious commonwealth offences “include, but are not limited to, money laundering, threats to national security, dealings in child abuse material, importation of prohibited imports and violence”.
Other serious commonwealth offences defined in the Crimes Act include theft, fraud, tax evasion, controlled substances, illegal gambling, extortion, bankruptcy and company violations, and illegal importing of fauna.
How do authorities get the warrants?
Data disruption and network activity warrants can be issued by an eligible judge or a nominated member of the administrative appeals tribunal (AAT), while account takeover warrants must come from a magistrate.
Data disruption warrants may be sought if authorities believe there are relevant offence(s) that involve data held in a computer and disruption of the data is “likely to substantially assist in frustrating the commission” of one or more offences.
Network activity warrants will require reasonable grounds for suspecting a group of individuals are engaging in or facilitating criminal activity and obtaining data will “substantially assist” in collecting intelligence about them to prevent, detect or frustrate a crime.
An account takeover warrant will be issued where the magistrate is satisfied there are reasonable grounds that it is necessary to gather evidence of a relevant offence.
How can the information be used?
Information collected from a data disruption warrant can be used as evidence in a prosecution even though the warrants are not “for the purpose of evidence-gathering”, according to the bill’s explanatory memorandum.
Information obtained under a network activity warrant cannot be entered into evidence but can be the basis for a “derivative use” such as applying for a further warrant, including to tap someone’s phone or access their computer.
Account takeover warrants enable authorities to take control of a person’s account and lock them out but other activities, including accessing data, gathering evidence and undercover activities such as assuming a false identity, will require a separate warrant.
What safeguards are there?
There are safeguards at the point of issuing a warrant including that the judge or AAT member must be satisfied that a data disruption warrant is “justifiable and proportionate”.
Similarly, the law states neither a data disruption warrant nor an account takeover warrant can result in loss or damage to data unless justified and proportionate.
Judicial review is available. That will allow an applicant to claim serious errors after the fact, including that there was no power to issue the warrant.
The inspector-general of intelligence and security will have oversight of the network activity warrants regime. Compliance with the data disruption warrant regime will be overseen by the commonwealth ombudsman.
What safeguards are missing?
There does not appear to be any independent party appointed to contest the issue of a warrant.
The explanatory memorandum states the bill does not provide for merits review of decision making.
As a result, it won’t be possible to seek a second opinion on whether a data disruption warrant is “justifiable and proportionate” and flawed decision making can be tolerated so long as it is an error within the decision-maker’s jurisdiction.
What has this got to do with the ASD?
In 2018 News Corp’s Annika Smethurst reported on plans to expand the remit of the Australian Signals Directorate’s spying powers, resulting in her home being raided.
Despite Dutton denying the substance of the report, it has been clear since the release of the cybersecurity strategy that the ASD will have a role providing the technical capability for the new powers to the domestic law enforcement agencies.
As the explanatory memorandum makes clear, the ASD already has the power to help the AFP and the ACIC with “cryptography, and communication and computer technologies, and other specialised technologies”.
“ASD providing assistance of this kind may be useful to the ACIC or AFP during the execution of, or analysis of information obtained under, network activity warrants,” it said.
By helping to break into networks and identify participants in suspected criminal activities under this new type of warrant the ASD would be spying on Australians, which was previously only allowed in exceptional circumstances.