Celia Hammond (Curtin, Liberal Party) Share this | Hansard source

I'm pleased to have the opportunity to speak to this bill, the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020. This bill introduces three new powers for the AFP and the ACIC. They are the data disruption warrants, network activity warrants and account takeover warrants. The goal of these new powers is to enhance the ability of the AFP and the ACIC to combat online serious crime. These are new and extensive powers, and they were subject to a public inquiry and detailed review and consideration by the PJCIS to determine whether they are necessary and proportionate in the current threat environment. I note at the outset that in its final report tabled earlier this month the PJCIS made 33 substantive recommendations to the government with respect to the legislation. The government has accepted in full, part or principle 25 of the recommendations and noted the remaining eight. Before addressing these recommendations and the government's response, it's necessary to understand the scope of the powers and the current threat environment.

In brief terms, the new powers are as follows. The data disruption warrant will allow the AFP and the ACIC to add, copy, delete or alter data to allow access to and disruption of relevant data in the course of an investigation for the purposes of frustrating the commission of an offence. This will be a covert power, also permitting the concealment of those activities. Whilst this power will not be sought for the purposes of evidence gathering, information collected in the course of executing a DDW will be available to be used in evidence in prosecution. The intended purpose of the DDW is to offer an alternative action to the AFP and the ACIC where the usual circumstances of investigation leading to prosecution are not necessarily the option guaranteeing the most effective outcome. For example, removing content or altering access to content such as child exploitation material could prevent the continuation of criminal activity by participants and be the safest and most expedient option where those participants are in unknown locations or acting under anonymous or false identities.

The second of these warrants, the network activity warrant, will allow the AFP and the ACIC to collect intelligence on criminal networks operating online by permitting access to the devices and networks used to facilitate criminal activity. These warrants will be used to target criminal networks about which very little is known. For example, where the AFP or the ACIC know that there is a group of persons using a particular online service or other electronic platform to carry out criminal activity, but the details of that activity are unknown, NAWs will allow agencies to target the activities of criminal networks to discover the scope of criminal offending and the identities of the people involved. For example, a group of people accessing a website hosting child exploitation material and making that material available for downloading or streaming will be able to be targeted under a network activity warrant. Intelligence collection under an NAW will allow the AFP and the ACIC to more easily identify those hiding behind anonymising technologies. This will support more targeted investigative powers being deployed, such as computer access warrants, interception warrants or search warrants. The AFP and the ACIC will be authorised to add, copy, delete or alter data if necessary to access the relevant data to overcome security features like encryption. Data that is subject to some form of electronic protection may need to be copied and analysed before its relevancy or irrelevancy can be determined.

The third type of warrant is the account takeover warrant. These warrants will allow the AFP and the ACIC to take control of a person's online account for the purposes of gathering evidence about serious offences. It also enables the AFP or the ACIC to lock the person out of their account. Currently, agencies can only take over a person's account with the person's consent. An account takeover warrant will facilitate covert and forced takeovers to add to the investigative powers the AFP and the ACIC have. It's important to note that any other activities, such as accessing data on the account, gathering evidence or performing other activities such as taking on a false identity, must be performed under a separate warrant or authorisation. Those actions are not authorised by an account takeover warrant. The ATW is designed to support existing powers, such as computer access and controlled operations, and is not designed to be used in isolation.

It's very clear that these are very serious and extensive powers and more extensive than any that currently exist, and, as the previous speaker, the member for Moreton, said, it is necessary that we analyse to see whether these powers, given the seriousness of them, are reasonable and proportionate. It's one of the roles of the PJCIS. In its inquiry and review into this bill the PJCIS was given detailed information on the background and context to these powers. It's worth noting some of the input and the context that was provided to the committee. Home Affairs highlighted, in particular, the role of anonymising technologies and the dark web. I quote:

New and emerging technology continues to change the landscape in which criminals operate by providing new opportunities for countering law enforcement efforts, in particular by disguising activity and hiding identities. Technology that enables people to be anonymous online, whilst having legitimate uses, is increasingly used by criminals so that they can remain invisible to law enforcement. Often these technologies are cheap, commercially available and require little technical expertise, allowing the scale and sophistication of cyber-enabled crime to grow. The use of the dark web and anonymising technologies…has made it easier than ever before for criminals to commit serious crimes at volume and across multiple jurisdictions. This has significantly degraded law enforcement agencies' ability to access communications, gather evidence, prevent crimes and conduct investigations.

The AFP provided an in-depth description of the threat environment which accorded with that of Home Affairs. Helpfully, it clearly articulated and explained the threats that we are facing and the terminology. The AFP was at pains to point out that the terms 'dark web' and 'anonymising technology', while sometimes thought of as the same thing, are not in fact the same thing. I quote:

'Anonymising technology' refers to those technologies which can disguise a person's activities, location and true identity, while the 'dark web' refers to areas of the internet which cannot be accessed without specialised browsers or other software. These concepts are often linked, because anonymising technology is required to access the dark web. From the AFP perspective, both issues present significant challenges for law enforcement, as they both facilitate a wide variety of criminal activity, while providing offenders with the cloak of anonymity. The intersection of these issues is particularly concerning when investigating offences involving child abuse material.

The ACIC broadly concurred with the AFP articulation of the threat environment and noted that the types of serious crimes being facilitated by these technologies include money laundering, illicit drugs and firearms smuggling and the production and dissemination of child exploitation material. The ACIC was very clear in stating:

…more is needed to provide the ACIC and AFP with effective powers to combat the rising tide of cyberenabled crime.

The Carly Ryan Foundation also made a submission to the committee and set out the threat environment. I quote:

The investigation of alleged crimes is not immune to technological creep, and law enforcement are increasingly dealing with digital aspects of criminality amongst many crime types: terrorism, domestic violence, stalking and harassment, and importantly for the Foundation, child exploitation.

The Carly Ryan Foundation said that the current amount of child exploitation was absolutely extraordinary and had risen with COVID-19. They described the issue as a 'pandemic' and said the proposed bill would help prevent the further victimisation of children.

By way of concluding, it is vital that we give our law enforcement agencies the powers they need to work in environments in which new and emerging technologies are posing greater opportunities for criminal networks to operate and evade detention. The evidence is clear that the use of the dark web and anonymising technologies is increasingly inhibiting agencies' ability to protect the Australian community. At the same time, it is vital that we ensure that the powers are used sparingly and that there is appropriate level of oversight and accountability for their use.

It was with this lens that the 33 substantive recommendations of the PJCIS were made to government. As noted at the outset, the government has adopted 25 of those recommendations. As a member of that committee, while I stand by each of the 33 substantive recommendations that we made—including those eight which have not been adopted by the government—I accept the rationale provided by the government and its statement that, as a number of these recommendations go beyond the scope of the bill, they are better considered as part of the holistic reform to Australia's electronic surveillance network which is currently underway. On the basis of the above, I am happy to provide my support to the bill which gives our security agencies important capabilities to address serious problems.

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