Australian law enforcement agencies will be given new ‘exceptional’ powers to combat serious cybercrime, raising concerns among legal bodies and civil rights organisations.
The federal government has enacted legislation giving top law enforcement agencies unprecedented and intrusive tools to battle cybercrime on the dark web, but some organisations are concerned about the scope of the new law’s capabilities.
The Surveillance Legislation Amendment (Identity and Disrupt) Bill 2020 offers three new powers, according to Home Affairs Minister Karen Andrews, which will help police keep up with developing technology and safeguard Australians.
The Australian Federal Police and the Australian Criminal Intelligence Commissioner will be able to combat cyber-crime using the following new powers:
Network activity warrants: allow for intelligence gathering on the most dangerous criminal networks, especially on the dark web and when anonymizing technologies are used.
Data disruption warrants: will be able to thwart severe criminal actions online by allowing them to change questionable data and thwart the commission of significant crimes, such as the dissemination of child exploitation materials.
Account takeover power: allows the AFP and ACIC to seize control of internet accounts in order to acquire evidence of illegal conduct, which may be combined with other investigative authorities (today, law enforcement relies on a person’s agreement).
Minister Andrews defended the bill, claiming that the more than 290 arrests made as part of Operation Ironside earlier in 2021 “confirmed the persistent and ever evolving threat of transnational, serious, and organised crime and the reliance of these networks on the dark web and anonymizing technology to conceal their offending.”
“In Operation Ironside, our law enforcement had an advantage because to creativity and world-class capabilities. “This Bill is just another step that the government is doing to ensure that our agencies preserve their competitive advantage,” she said.
“Under our proposals, the AFP will have greater resources to prosecute organised criminal groups and those who perpetrate the most horrific crimes against children to keep narcotics off our streets and out of our communities.”
However, several legal groups have criticised the bill’s passage, claiming that the Morrison government did not properly consider suggestions made by the Parliamentary Joint Committee on Intelligence and Security (PJCIS).
The Law Council of Australia has voiced reservations about the bill, alleging that it omits crucial PJCIS recommendations, notably regarding the adoption of critical protections.
Dr JacobaBrasch QC, President of the Law Council, said it was “especially regrettable” that “judicial issue of fresh, exceptional warrants” had not been implemented.
“The Law Council feels that the considerable breadth and invasive nature of these warrants, as suggested by the PJCIS, requires court officials to examine them,” he added.
“These warrants have the potential to inflict considerable loss, harm, or disruption to legitimate computer users who have committed no wrongdoing.”
Mr.Brasch went on to say that the council was aware that those additions were being considered as part of the long-term development of electronic surveillance legislation, but that the PJCIS recommendations were “specific to the three new warrant-based powers in this legislation, which are now novel, extraordinary, and extensive.”
“They are critical to the reasonable and proportional employment of the new powers, as well as public trust in their exercise at any moment when those powers are in effect,” he continued.
“Deferring consideration and implementation for an indefinite length of time, maybe years, provides no real protection or assurance.”
The Human Rights Law Centre expressed concerns about the use of the new exceptional and unprecedented powers, notably in relation to their potential use against journalists and whistle-blowers.
The PJCIS approved a number of suggestions from the centre – as well as civil society stakeholders – in August, suggesting tighter conditions for the use of the additional powers, as well as stricter supervision measures.
“However, the Morrison Government has rejected or only partly implemented roughly half of the Committee’s recommendations, and the new law has been hurried through Parliament,” the organisation said in a statement.
Every rise in state monitoring has a “democratic cost,” according to Kieran Pender, a senior lawyer with the Human Rights Law Centre.
“Excessive surveillance powers have a chilling effect on journalists and whistleblowers, and they harm all Australians’ privacy,” he added.
“Because the powers are unprecedented and extremely intrusive, they should have been limited to the bare minimum and subject to rigorous safeguards. As a result, the Committee unanimously recommended major revisions.
“It is worrisome that the Morrison Government hurried these legislation through Parliament in less than 24 hours, rather than adopting the Committee’s recommendations and providing time for consideration of future modifications.”
The Commonwealth Ombudsman and the Inspector-General of Intelligence and Security will be in charge of ensuring that the powers are used appropriately.
The PJCIS and the Independent National Security Legislation Monitor will evaluate them as well.