Surveillance bill to wreak havoc on ‘innocent bystanders’ if passed: LCA

By Emma Ryan|15 March 2021
LCA president Dr Jacoba Brasch QC

The Law Council of Australia (LCA) has again hit out of the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020, noting the negative flow-on effects it will have if passed.

The Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 currently introduced before Parliament aims to broaden powers for the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC) to combat serious online crime, including use of the dark web and anonymising technologies.

The bill in its current form introduced three measures to aid the AFP and ACIC in its goals: 1. Data disruption warrants, which “will allow the disruption of data through modification and deletion to frustrate the commission of serious offences, such as the distribution of child abuse material”; 2. Network activity warrants, which will allow the collection of intelligence on serious criminal activity carried out by criminal networks operating online”; and, Account takeover warrants, which “will allow the control of a person’s online account to gather evidence about criminal activity to further a criminal investigation”.

The LCA, which has reiterated its concerns for such measures previously, said passing of the bill in its current form will fundamentally alter Australia’s criminal intelligence framework, and potentially reach into and disrupt the lives of innocent bystanders”.

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“The Law Council of Australia appreciates the need for law enforcement agencies to have robust powers especially to counter cyber-enabled offences, such as serious and harmful crimes carried out online, like child exploitation and terrorism,” said LCA president Dr Jacoba Brasch QC.

In its current form, one of the warrants in the Bill would enable the Australian Federal Police (AFP) and/or the Australian Criminal Intelligence Commission (ACIC) to disrupt data that may be used in criminal activity with a maximum penalty of three or more years’ imprisonment. An example of which may include enabling the disruption of entire computer networks, such as those used by people to organise activities or protests relating to pandemic lockdowns and which may breach public health directions.

“These warrants can also be accompanied by compulsory assistance orders, which can require any person to provide information or assistance to the AFP or ACIC, with a potential penalty of 10 years’ imprisonment for non-compliance.

“This is in direct conflict with a key recommendation of the Comprehensive Review of the Legal Framework of the National Intelligence Community (Richardson Review) released last year, which recommended that law enforcement agencies should not be given the specific cyber-disruption powers as proposed by this Bill.”

Dr Brasch said the LCA is concern that a lack of evidence has been provided to show why the AFP and the ACIC require these powers.

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“The breadth of the provisions also allows for the inadvertent capture of a wide range of benign conduct that could disrupt the lives of innocent bystanders,” he said.

“The Richardson Review noted that there was a risk of mistakes being made in the targeting or execution (or both) of warrants, which may have disastrous and far-reaching consequences for third parties who are using, or are otherwise reliant on, services provided via a computer system or network, and are not under any suspicion of criminal wrongdoing.

“Proposals to allow disruption offshore also creates a duplication of powers with the Australian Signals Directorate to disrupt cyber-enabled crime by persons or organisations outside Australia that could jeopardise the security and effectiveness of offshore disruption. It may also lead to inefficiencies in the use of public resources by multiple agencies in conducting substantially similar disruption operations outside Australia.

“The Law Council believes that the Bill should be carefully scrutinised by the Parliament, particularly given the significant risks which arise from the doctrine of the rule of law and the separation of powers.”

Surveillance bill to wreak havoc on ‘innocent bystanders’ if passed: LCA
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