Home affairs minister Peter Dutton and department secretary Mike Pezzullo have again been tinkering away at the legislative framework governing the nation’s internal security apparatus to produce yet more legislation containing laws designed to further empower police and intelligence.
Introduced on 3 December, the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 gifts the AFP and the Australian Criminal Intelligence Commission with three new warrants targeting “cyber-enabled serious and organised crime” that utilises “anonymising technologies”.
The new powers would permit the AFP and the ACIC to collect intelligence online, including over the dark web, disrupt online activity by manipulating data, as well as takeover a person’s online account – locking them out of it – in order to gather evidence.
During his second reading speech on the bill, Dutton gives his usual reasoning for extending the surveillance watch: “child sexual abuse, terrorism and the trafficking of firearms and illicit drugs”.
Although, he fails to mention that ultimately these encroachments affect us all.
And as Civil Liberties Australia (CLA) CEO Bill Rowlings tells it, these new powers are simply the next cog in the all-pervasive security machine that both major parties have been tinkering away at since the turn of the century 9/11 attacks gave parliament open slather to construct the surveillance state.
Sweeping the web
“This is surveillance gone viral,” Rowlings told Sydney Criminal Lawyers. “Our lives are our data now or vice versa. So, this proposed unfettered right to take over all our online devices locks us permanently into a mental-barred gaol that we can’t see or know about.”
Indeed, Dutton painted a similar picture as he detailed the content of the legislation in federal parliament, however, unlike Rowlings, the minister for home affairs sounds decidedly chipper about the prospect of surveilling all and sundry.
On the subject of the “new intelligence collection power”, the minister laments that right now, the existing warrants open to the AFP and the ACIC simply can’t keep up with “large networks of criminals” increasingly using online “anonymising technologies”.
So, network activity warrants, Dutton advises, will allow officers to scope online networks, not for any particular investigation, but rather on the suspicion that crime gangs are using them.
And the collected data won’t be admissible in court, but it will reveal what people “unknown to authorities” are up to.
“There’s no limit on who can be targeted,” Rowlings warned, “the police or security people might think your fifth cousin twice removed or your ex-best mate from school, might be receiving data from you, so their data can be surreptitiously tapped under spuriously-relevant warrants.”
The guts of the bill
The Identify and Disrupt Bill slips data disruption and network activity warrants into the Surveillance Devices Act 2004 (Cth) (the SDA) and account takeover warrants into the Crimes Act 1914 (Cth).
An officer must apply for data disruption or network activity warrants via an eligible judge or a nominated member of the Administrative Appeals Tribunal, while an account takeover warrant needs to be issued by a magistrate.
The warrants apply for any “relevant offence”, which is defined in the Crimes Act as an indictable offence, or as the bill’s explanatory memorandum puts it, “generally those that carry a maximum penalty of imprisonment for at least three years”.
New section 27KA of the SDA allows data disruption warrants to be issued when there’s suspicion of a relevant offence. These permit agents to covertly access computers to disrupt data via adding, copying, deleting or altering it, so as to “frustrate the commission” of crime.
New section 27KK of the SDA provides that network activity warrants can be issued in regard to accessing computer networks suspected of participating, facilitating or assisting in joint criminal activity, so that agents can collect intelligence on these anonymous actors.
Issued under the provisions of new section 3ZZUN of the Crimes Act, account takeover warrants permit taking control of an online account “through the modification of data”, which results in the officer “having exclusive access to the account”.
And the legislation also provides for the issuance of assistance orders, which require specific persons to provide the AFP or the ACIC with information or assistance in executing any of the warrants.
While failure to provide such assistance is an offence punishable by up to 10 years imprisonment.
Already in the toolbox
The explanatory memorandum sets out that account takeover warrants don’t provide for “activities, such as accessing data on the account, gathering evidence, or performing undercover activities such as taking on a false identity”, as those powers are already addressed under other warrants.
Rowlings remarked that it’s “frightening” that warrants already exist permitting such activities. And he added that law enforcement and intelligence agencies can also invade homes to plant devices on phones or computers and in turn track “every word we say” or “key we type”.
“The cumulative powers open to police and spook agencies for prying into anyone’s life – just on suspicion – are frightening,” he continued.
“This whole area is becoming a minister Dutton-inspired nightmare, and a secretary Pezzullo panopticon of the mind.”
“A boot stamping on a human face – forever”
In his speech in parliament, minister Dutton goes to great lengths to relate all the measures proposed in the Identify and Disrupt Bill back to targeting paedophiles
But, of course, the bill makes no mention of child abusers, but rather focuses on those relevant crimes.
Taken in the broader context, Rowlings said that over the last two decades, “under government-generated fear of terrorism”, the nation has been transformed from being relatively unsurveilled into a surveillance state.
Since 9/11, there have been at least 85 federal national security bills passed with bipartisan approval that have eroded the rights of all. Rowlings predicts that if this continues, in another 20 years, the “government’s current ‘control’ mindset will morph into a ‘command’ mentality”.
“At some stage, your average citizen will need to realise that the government control freaks are themselves becoming the danger to an open, fair go Aussie society,” the long-term civil liberties advocate concluded.
“I don’t think Australians will ever want to live in a world that mirrors the ‘do as we say’ minds of Dutton and Pezzullo.”
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Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.