August 5, 2021
Senator James Paterson
Chair, Parliamentary Joint Committee on Intelligence and Security
ADVISORYREPORT ON THE SURVEILLANCE LEGISLATION AMENDMENT (IDENTIFY AND DISRUPT) BILL2020
5 August 2021
[Mr President], I am pleased to present the Parliamentary Joint Committee on Intelligence and Security’s report Advisory Report on the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020.
The Bill introduces:
· a data disruption warrant which enables the AFP and the ACIC to access data on one or more computers and perform disruption activities for the purpose of frustrating the commission of criminal activity;
· a network activity warrant to enable the AFP and the ACIC to collect intelligence on criminal networks operating online;
· an account takeover warrant to allow AFP and the ACIC to take over a person's online account for the purposes of gathering evidence of criminal activity, and;
· minor amendments to the controlled operations regime,to ensure controlled operations can be conducted effectively in the online environment.
The Bill has been introduced in response to growing technological advancement that challenges the ability of our law enforcement and intelligence agencies to combat the most serious types of offending, including human trafficking, drug crime, child sexual abuse and terrorism, increasingly conducted on forums and in places that most Australians will never see.
Mr President it is no exaggeration to state that, particularly during the COVID pandemic, online crime has reached an all-time high. Evidence from the AFP Commissioner Reece Kershaw informed the Committee that the AFP had seen a worrying rise in traffic to the dark web, including 168 per cent more child abuse material and identified during the first quarter of 2020 as opposed to the same period in2019.
The Committee supports the Bill and the three new warrants it introduces. However, in its consideration of the Bill, the Committee also recognised the significance of the powers and their potential impact. The Committee concluded that oversight should be increased, and safeguards should be added to ensure the community has confidence that these powers are only used for their intended purpose while remaining operationally effective.
The Committee has made 34detailed recommendations and, given the time limitations, I’d like to make brief mention of the most significant.
Recognising the novel nature of these powers and their intelligence gathering capability the Committee, through Recommendations One and Two, recommends the expansion of its oversight remit to cover the intelligence functions of the ACIC and the AFP. As those agencies take on more intelligence capabilities, we believe the Intelligence Committee is best placed to provide the specialised parliamentary oversight required.
In Recommendation 9 the Committee proposes these powers should be authorised by Superior Court judges,with the exception of account takeover warrants where we believe any eligible judge as defined by the Surveillance Devices Act is the appropriate authority due to their inherently time-sensitive nature.
In recommendation 10 the Committee suggests that the issuing authority be required to consider that type of offences are sufficiently serious and proportionate to the threat for the new warrants to be used.
The combined effect of these proposed changes would be to strengthen the issuing criteria to ensure the powers are being used only for the most serious types of offending, as outlined in the Bill’s explanatory memorandum. These offences include:
· offences against the security of the Commonwealth per Chapter 5 of the Criminal Code;
· offences against humanity including child exploitation and human trafficking per Chapter 8 of the Criminal Code;
· serious drug, weapons and criminal association offences per Chapter 9 of the Criminal Code; and
· money laundering and cybercrime offences per Chapter10 of the Criminal Code.
Mr President, it is important that new powers such as those proposed in this Bill are adequately reviewed.The Committee has recommended that the Independent National Security Legislation Monitor (INSLM) review the powers within three years of the Bill receiving Royal Assent.
The Committee has recommended that it review the provisions of the Bill not less than four years from when the Bill receives Royal Assent to allow the Committee to take into account any report by the INSLM.
Additionally, the Committee has recommended that each of the new powers sunset five years from the date on which the Bill receives Royal Assent.
I want to thank each of my colleagues on the committee for their constructive and collaborative deliberations in reaching these balanced conclusions.
The Committee also extends its gratitude to officers of the AFP and ACIC, who have taken time away from their critical daily work to ensure all members were appropriately briefed and informed to make these recommendations on this bill. This included classified briefings to ensure committee members had a clear understanding of the rapidly evolving and serious threat environment officers are grappling with. We thank them for their candour and their cooperation with the Committee.
The Committee recommends that following the implementation of its recommendations, the Bill be passed.
I commend the report to the Senate.
Senator James Paterson
Chair
