Australia Passes Intrusive Surveillance Bill

On the 25th of August, the Australian government passed a Surveillance Bill that extends the existing powers of law enforcement in cyber-related investigations. The ‘Surveillance Legislation Amendment (Identify and Disrupt) Bill 2021’ has received major criticism from experts and human rights organisations, who have called it ‘extreme’ and ‘undemocratic’.

The Surveillance Bill gives law enforcement agencies rights that are not granted even in our ‘five eye’ allies – the USA, United Kingdom, Canada and New Zealand. Lack of judicial oversight and expansive wording are among the main issues of concern.

The Bill will give the Australian Federal Police and Australian Criminal Intelligence Commission the power to issue three new and intrusive warrants:

  1. ‘Data disruption’: allows law enforcement to modify, copy, delete or otherwise alter a target’s data.
  2. ‘Network activity’: allows law enforcement to collect intelligence from networks or devices used, or likely to be used, by a target.
  3. ‘Account takeover’: allows law enforcement to take control of a target’s online account(s), including social media and online bank accounts, for information gathering purposes.

Furthermore, the Surveillance Bill does not require judicial oversight in ‘emergency’ cases, meaning the AFP and ACIC can issue the warrants themselves, and ask for them to be signed off by a judge post factum. Companies and system administrators are obliged to comply with requests for cooperation, and actively help carry out the warrants. If they refuse, they could face jail time of up to ten years.

Another significant concern is the wording of the Bill, which allows it to be used to target any crime punishable by a sentence of just three years or more.

This includes its intended targets – terrorism and child abuse material – but also acts of piracy, bankruptcy, even tax evasion and trademark infringements. Law Council of Australia President Dr Jacoba Brasch says the Bill will “have the potential to cause significant loss or damage to large numbers of non-suspects who are lawfully using computer networks or the systems being targeted.”

This Surveillance Bill is only the most recent of numerous cybersecurity bills passed in Australia over the last decade. The commonly known ‘Encryption Act’ of 2018 obliged providers to send spyware to customers disguised as app updates, and the ‘Metadata Bill’ of 2014 forced internet and phone companies to store metadata for at least two years. The ambiguity of the Metadata Bill often resulted in serious breaches of privacy with URL data.

And just as with such previous laws, the 2021 Surveillance Bill was introduced under the justification of countering terrorism and sharing of child abuse material. Reports show that laws introduced in the Encryption Act in 2018 were used eleven times in their first year of operation.

But none of these instances were related to terrorism, despite this being the primary rationale behind the government rushing the law through parliament.

The day before the 2021 Surveillance Bill was passed, Home Affairs Minister Karen Andrews did implement some safeguards recommended by the Parliamentary Joint Committee on Intelligence and Security. These included a sunset clause of five years, and some extra protection for media organisations.

But criticisms of the low sentence limit on targeted crimes and lack of judicial oversight remain unaddressed.

Many are rightly worried about the encroachment of surveillance bills justified under ‘the war on terror’. Bills like the one passed in August contribute to a pattern of “heightened perception of government surveillance” and erode trust in democratic institutions.

Terrorism and child sexual abuse materials are serious crimes that are often reliant on online networks and do need to be targeted by law enforcement. But if such extraordinary powers as those in the Surveillance Bill are handed to our governments, they must include strenuous safeguards. Otherwise they are free to be used against society, even if not intended so in their inception.

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