Parliament’s intelligence and security committee has recommended a number of changes to proposed laws that would hand federal authorities unprecedented online account takeover powers.
The Parliamentary Joint Committee on Intelligence and Security (PJCIS) handed down its report [pdf] into the legislation on Thursday, offering broad support that is conditional on 33 changes.
Changes include greater oversight of the new powers by both the committee and watchdogs, and a level of assurance the laws will only be used to target the most serious of offences.
The Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020, introduced in December 2020, will grant three new warrants to the Australian Federal Police (AFP) and Australian Criminal Intelligence Commission (ACIC).
If passed in its current form, both agencies will be able to take control of a person’s online account to gather evidence about serious offences, as well as to add, copy, delete or alter material.
In the report, the committee said it accepted evidence that anonymising technology is enabling serious cyber-enabled crime and that authorities are currently without the tools to address this threat.
But it also recognised the “micro level” problems around necessity and proportionality identified in many submissions, and that such a “world-leading and novel” bill requires serious consideration and review.
The report recommended the remit of the PJCIS, the Inspector-General of Intelligence and the Commonwealth Ombudsman be expanded to cover the use of the new powers by the AFP and ACIC.
A series of reviews into the three warrant types have also been requested by the committee, including one by the Independent National Security Legislation Monitor in three years.
The committee has also asked for “additional requirements on the considerations of the issuing authority to ensure the offences reasonably serious and proportionality is maintained”.
It said this could limit the application of the bill to offences against the security of the Commonwealth, child exploitation and human trafficking and serious drug offences, for instance.
“The effect of any changes should be to strengthen the issuing criteria and ensure the powers are being used for the most serious of offending,” the report said.
Labor, who were otherwise supportive of the committee’s recommendations, said this recommendation should go further, and have urged a “serious offences” concept be introduced.
It said that replacing “references to ‘relevant offence’ in the bill be replaced by a new concept of ‘serious offence’ would recognise the “extraordinary nature of these new powers”.
“We are not suggesting that other types of offences are not serious. We are simply pointing out that the government – and the agencies – have failed to make the case for why these extraordinary new powers are needed [for] crimes that are not “child abuse and exploitation, terrorism, the sale of illicit drugs, human trafficking, identity theft and fraud, assassinations, and the distribution of weapons", Labor said.
The committee was also critical of the ACIC for failing to submit a standalone submission to the inquiry until asked at public hearing, despite being one of the agencies seeking the “new and extraordinary powers”.
It noted that the ACIC’s position was incorporated within the Department of Home Affairs’ portfolio submission, but said this was “neither adequate nor persuasive” and that the committee “required justification for why particular agencies required particular powers”.
The report has recommended that agencies provide a separate unclassified submission to the committee in addition to any departmental submission in the future for bills propose specific new or expanded powers.
The committee has also asked that Home Affairs “not make any further submission to the committee that purports to be authored by, or submitted on behalf of, the "Home Affairs portfolio”.
