The government is rushing through a digital surveillance legislation that will grant law enforcement sweeping powers, which could infringe on everyday Australians’ civil liberties, experts warn.
The laws are intended to combat crime, including terrorism and child sexual abuse, on the dark web, and would grant the Australian Federal Police and the Australian Criminal Intelligence Commission three new powers to investigate and disrupt criminal activity online.
Home Affairs Minister Peter Dutton introduced the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 in parliament on Thursday, saying the legislation would allow law enforcement to “shine a light into the darkest recesses of the online world and hold those hiding there to account”.
Digital Rights Watch program director Lucie Krahulcova warned the Bill is the latest in an ongoing push by Home Affairs to expand the powers of its agencies with little regard for safeguarding citizens’ civil liberties and human rights.
“On its own I think this Bill is really concerning, but in the context of the powers that Home Affairs has been seeking for these agencies it’s extremely concerning,” Ms Krahulcova said.
While the announcement of the legislation focused on extreme crimes such as terrorism and child sexual abuse, there are few checks and balances in place to protect citizens from overreach.
“When you look at the other criminal offences that fall under the laws there are a lot, including the trading of illicit drugs, which is something that disproportionately targets youth and Indigenous people and people of colour,” Ms Krahulcova said.
They’re over-criminalised for these offences and something like this threatens to perpetuate that.
“So have the law enforcement agencies put enough safeguards to protect groups that are already marginalised by these sorts of investigations? No, they haven’t.”
Australia is already lagging far behind its peers such as the European Union when it comes to safeguarding citizens’ rights, and a charter of human rights is long overdue, Ms Krahulcova said.
“Australia doesn’t have a constitutional right or a federal right to privacy,” she explained.
University of Melbourne technology researcher Suelette Dreyfus said the government had failed to undertake the community consultation required for “this sort of privacy-infringing proposed law”.
There has been “a curious mismatch between the severe examples provided at the media conferences, such a child exploitation images, and the severity of the actual crimes that would trigger these new powers,” Dr Dreyfus said.
There is an “emerging pattern here from this part of the government of releasing new security laws just before Christmas, with little warning and even less public consultation”, Dr Dreyfus said.
“A proposal to reduce our digital privacy demands proper scrutiny; four sitting days of parliament before the summer holidays is not that.”
Surveillance Bill’s three new powers
“As technology has changed so too has the tradecraft of criminals,” Mr Dutton told Parliament, while introducing the Bill.
Technology that can “conceal the identities, IP addresses, jurisdiction, location and activities of criminals” is “increasingly hampering investigations into serious crimes”, he said.
Should it pass, the Bill will give law enforcement new powers to investigate offences that carry imprisonment penalties of at least three years.
The first power allows the AFCP and ACIC to use “network activity warrants” to “access networks being used by criminal gangs, whose members are suspected of being involved in serious online offences”, Mr Dutton said.
The second “covert power” allows AFP and ACIC officers to use a “data disruption warrant” to “add, copy, delete or alter data to allow access to and disruption of relevant data in the course of an investigation”, Mr Dutton said.
The third is the “account takeover power”, which allows the AFP and ACIC to commandeer someone’s online account without their knowledge or consent in order to “uncover identities of individuals operating online and identify potential victims”, Mr Dutton said.
“The nature and extent of the suspected criminal activity must justify the account takeover,” he said.
Australia’s surveillance, detention laws raise concerns
In 2018, the government passed the controversial ‘anti-encryption’ Assistance and Access Act, which can force tech companies to hand over user data to law enforcement, even if it means building a ‘backdoor’ into their systems.
In May, the government introduced the widely criticised Australian Security Intelligence Organisation Amendment Bill in a bid to beef up the spy agency’s domestic powers and overhaul the rules for compulsory questioning that were brought in following the September 11 terrorist attacks in the US.
The legislation allows ASIO to question kids as young as 14, have greater access tracking devices, and remove interrogation safeguards.
University of New South Wales dean of law George Williams described the new powers outlined in the Bill as “overreach” and “troubling”, warning that the bid to increase powers as “a one-way street without any sense of what the endgame is”.
In September, the Law Council of Australia warned the government was using its emergency COVID-19 powers to curtail personal freedoms unrelated to the pandemic by extending ASIO’s extraordinary detention powers, which were due to expire on September 7, until March 2021.
The extraordinary detention powers allow ASIO to detain people for up to seven days for compulsory questioning in relation to terrorism, and are far greater than those allowed by any of Australia’s closest intelligence partners including the US, UK, Canada, and New Zealand.
“We need to strike a balance between community safety and protecting individual freedoms,” Law Council President Pauline Wright said.
“Australians expect our security agencies to respond proportionately to terrorism threats and it’s time the federal government repeals these powers once and for all.”