Graham Perrett (Moreton, Australian Labor Party, Shadow Assistant Minister for Education) Share this | Hansard source

[by video link] I speak today on the Surveillance Legislation Amendment (Identify And Disrupt) Bill, and I do so from my electorate office in Sunnybank on Turrbal and Jagera lands—people you know very well, Deputy Speaker Vasta. This bill introduces new law enforcement powers to enhance the ability of the Australian Federal Police and the Australian Criminal Intelligence Commission, or the ACIC, to combat serious online crime. The bill introduces three new warrants: the data disruption warrants will allow the AFP or the ACIC to modify, add, copy or delete data in order to frustrate the commission of serious offences online; the network activity warrants will allow agencies to collect intelligence on serious criminal activity being conducted by criminal networks; and the account takeover warrants will provide the AFP and the ACIC with the ability to take control of a person's online account for the purpose of gathering evidence to further a criminal investigation.

Obviously, these are extraordinary powers, and it was proper that this bill was referred to the Parliamentary Joint Committee on Intelligence and Security late last year. That very powerful committee, and very well-credentialed committee, has now tabled its report on this bill and has made 34 important recommendations, including that this bill be passed subject to the amendments recommended being implemented by the Morrison-Joyce government. Currently, it is the coalition government that is responsible for any national security legislation that is introduced to the people's parliament. However, Labor has always worked constructively to improve legislation where that is appropriate. The bipartisan intelligence and security committee works cooperatively to keep Australians safe, and I particularly acknowledge the great work of the Labor members of the committee: the deputy chair, the member for Holt; the member for Cowan; my good friend the member for Isaacs; Senator Keneally; and Senator McAllister.

The power this bill implements is extraordinary, but so too are the many and varied threats that modern Australia faces. Fortunately, the only experience many of us have of the dark web is from movie plots—something coming out of Hollywood. But, sadly, the dark web is a very real place with some very dark characters inhabiting it. While technological advances have improved our lives, they have also brought some unwelcome elements, like the dark web. Increasingly, criminals are using the dark web and anonymising technology to facilitate cyberenabled crime. This has created significant challenges for law enforcement in identifying and locating offenders and gathering admissible evidence. The current powers available to our law enforcement agencies are insufficient and outdated—analogue solutions that won't solve a digital problem. As the cybercapabilities of criminal networks have expanded, Australia's laws are not suitably adapted to both identifying and disrupting criminals who are actively seeking to obscure their identity and the scope of their criminal activities. Identifying potential offenders is the first step to progressing with the criminal investigation. The highly sophisticated cybertools being used by criminals have resulted in many investigations failing because offenders cannot be identified. Prosecutions are impossible if law enforcement does not have the ability to understand the networks and how criminals are actually conducting their crimes.

This bill will address current gaps in the legislative framework. It will enable the AFP and the ACIC to collect intelligence, to conduct investigations, to disrupt—very importantly—and also to prosecute the most serious of crimes, including child abuse and child exploitation, terrorism, the sale of illicit drugs, human trafficking, identity theft and fraud, assassinations and the distribution of weapons.

The 34 recommendations made by the bipartisan Parliamentary Joint Committee on Intelligence and Security should be accepted by the Morrison-Joyce government, and this bill should be amended accordingly. The committee made these recommendations after considering the evidence put before it, including: concerns about the issuing authority for the warrants; the necessity and proportionality of the powers, particularly as regards the rights to privacy and civil liberties; whether safeguards accompanying the new powers were sufficient; the breadth of crimes that could be the focus of new powers; and, importantly, in a healthy democracy like Australia, that the work of journalists and lawyers should be specifically protected from the proposed warrants.

As deputy chair of the Parliamentary Joint Committee on Human Rights, I, along with my colleagues, have had the opportunity to scrutinise this bill through the human rights lens. The human rights committee tabled its preliminary views on this bill in Report 1 of 2021. As with every bill scrutinised by the human rights committee it requires that balancing of rights, that collective safety versus individual freedoms and individual rights. The new powers that will be implemented by this bill will facilitate the investigation, disruption and prevention of serious crimes against persons, including protecting children from harm. To that end the bill may promote multiple rights, including the right to life and the rights of the child. I particularly note with respect to the rights of the child that states have special obligations to protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, and maltreatment or exploitation including sexual exploitation and abuse—and when I say 'states', I mean sovereign states.

The bill may also limit the right to privacy that citizens of Australia have. This bill gives wide powers to the AFP and ACIC to take actions including:

So they are very serious powers.

The right to privacy prohibits arbitrary and unlawful interferences with an individual's privacy, family, correspondence or home; that's a bedrock of Australian society. There are permissible limitations to the right of privacy, if the limitation is to pursue a legitimate objective, is rationally connected to the objective and—this is important—is a proportionate means of achieving that objective.

As pointed out in the preliminary report of the human rights committee:

The key question is whether the measure is proportionate to achieving the stated objective. Of particular relevance in assessing proportionality is whether the limitation is only as extensive as is strictly necessary to achieve its legitimate objective; whether the measure is accompanied by sufficient safeguards—

always important in a healthy democracy—

whether any less rights restrictive alternatives could achieve the same stated objective; and whether there is the possibility of oversight and the availability of review.

That is, for those times when the state gets it wrong. Many of the 34 recommendations of the Parliamentary Joint Committee on Intelligence and Security go directly to strengthening that proportionality concept.

I have some particular concerns—and it was noted in the human rights report—that have been reflected in the recommendations made by the PJCIS, particularly their recommendation 9:

The Committee recommends the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 be amended so that the issuing authority for all of the new powers introduced by the Bill, including emergency authorisations, must be a superior court judge—

I stress that again: must be a superior court judge—

(either of the Federal Court or a State or Territory Supreme Court), except for Account Takeover Warrants which may be granted by an Eligible Judge per Section 12 of the Surveillance Devices Act 2004 (Cth).

That's the recommendation.

During my scrutiny of the bill, this was one aspect that caused a lot of discomfort for me. This bill, as it currently stands, provides that an application for a warrant, or data disruption or network activity may be made to an eligible judge or to a nominated AAT member, and that an application for an account takeover warrant may be made to a magistrate. I don't want to badmouth our magistrates, but an AAT member does not have the security of tenure or generally the same level of expertise as judges. It is considered to be best practice at international law for judicial authorisation of surveillance methods—and I stress that: judicial authorisation. The European Court of Human Rights has said in relation to interception:

In a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge, judicial control offering the best guarantees of independence, impartiality and a proper procedure …

The United Nations Special Rapporteur on the right to privacy included in the 2018 draft general principles of the right to privacy that where domestic law provides for the use of surveillance systems, that law shall:

… provide that the individual concerned is likely to have committed a serious crime or is likely to be about to commit a serious crime and in all such cases such domestic law shall establish that an independent authority, having all the attributes of permanent independent judicial standing, and operating from outside the law enforcement agency or security or intelligence agency concerned, shall have the competence to authorise targeted surveillance using specified means for a period of time limited to what may be appropriate to the case.

It is clear that AAT members do not have all of the attributes of permanent independent judicial standing. I think they're appointed for three or five years or so.

There is another reason that I'm concerned about AAT members being given such extraordinary powers right now in this parliament. Since 2013, the Liberals have appointed at least 79 of their mates to the Administrative Appeals Tribunal. Earlier this year, in one of her first acts as Attorney-General, Senator Cash continued the tradition of her predecessor, the member for Pearce, of stacking the tribunal with failed Liberal candidates, dumped Liberal MPs, former Liberal advisers and other Liberal mates. The appointment of Liberal mates to the tribunal is so out of hand that the former High Court judge Ian Callinan QC had to recommend that all further appointments be based on merit. To put that in context, Ian Callinan's first novel was launched by the former member for Moreton, the Hon. James Killen, and he was recommended to the High Court by Liberal Prime Minister John Howard, so I don't think I could exactly call Ian Callinan a Labor stalwart!

By contrast, in six years of the Labor government, from 2007 to 2013, there were just two Labor linked appointments to the AAT, both experienced and highly skilled lawyers who were welcomed by the Liberals. So I'm particularly concerned that recommendation 9 of the PJCIS report on this bill be adopted by the government and I reiterate that all 34 recommendations should be incorporated into this bill.

The PJCIS is a bipartisan committee. It has made recommendations that will ensure that these extraordinary powers include the safeguards necessary in a liberal democracy. It is always important that Australia's two parties of government work constructively together—sorry, I should say three parties of government, I guess, with respect to the Nationals: the Liberals, Nationals and Labor—to ensure that our national security laws are right, fit and proper. Labor will always work constructively to keep our nation safe. Labor supports this bill, but I implore the Morrison-Joyce government to ensure that all 34 recommendations are incorporated into this bill.

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