Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Hansard source

[by video link] The Surveillance Legislation Amendment (Identify and Disrupt) Bill 2021 is a series of amendments to the Surveillance Devices Act 2004 and the Telecommunications (Interception and Access) Act 1979. The intention of the bill is to broaden the existing powers of the Australian Federal Police to pursue cybercrime and, in particular, serious offences relating to child exploitation, terrorism and dark-web criminal syndicates. That's all laudable. The intention of this legislation is to give the Australian Federal Police more power to spy on those they deem to be terrorists and criminals. The difference between the existing acts and the amending legislation is the ability to damage criminal data without an arrest or a prosecution and without knowing the identity of an offender. These two aspects of the bill open the door to unexpected consequences and undesired applications of these new powers. A well-drafted bill, on the other hand, would not suffer from these shortcomings.

A major reason for the bill is the increasing use of encrypted apps, including Tor. The Tor network is an encrypted platform that cannot be accessed by third parties, including law enforcement. The only way to get to a Tor site that is, for instance, disseminating child porn, instructions on terrorism and such like is to take over the server and intercept users accessing the site and uploading material. This bill allows the government to add a tracking routine to an image or video. Then, when the video is played or the image opened, it dials home to the Federal Police to advise the location of the user. That sounds reasonable. That entails the government posing, though, as a user and uploading tagged material. This legislation gives the Australian Federal Police immunity for uploading illegal content in this manner. That is acceptable. However, the checks and balances on how that will work are deficient. They are not adequate. If those planning freedom rallies, for instance, are classified by the Federal Police as terrorists, then the government will have the ability to upload tracking tags that will identify people whose only crime is exercising their right to freedom of protest. This legislation could, in one action, be used to roll up entire organisations that are simply critics of the government, if, as in the case of COVID protesters, their activity was deemed illegal.

The Senate Standing Committee for the Scrutiny of Bills remained concerned with the authorisation of coercive powers and a general lack of consistency with the justification for the issuing of these warrants. It also raised concerns about the use of emergency circumstances to conceal things done to execute a warrant. These are also my concerns. It's clear from the sheer volume of objections and recommendations that this bill has privacy and human rights issues to iron out before it can reasonably be passed to the satisfaction of industry partners and associated private sector companies who handle the data being surveilled.

Twitter, for example, has an unresolved concern that the scope of these powers may leave them in breach of international laws that apply where their servers are housed. This focuses on privacy during the takeover warrant. They wish to amend the bill to reflect practices that are consistent with established norms of privacy, free expression and the rule of law. I know it's hard to imagine Twitter arguing for free expression and the rule of law, because it doesn't provide free expression itself, but nonetheless we need to take note of what was just said. Amazon Web Services has made a specific recommendation for good-faith immunity to cover digital providers during the execution of account takeover warrants. Various recommendations have been made for the bill to be withdrawn by the Queensland Council for Civil Liberties, Liberty Victoria, Electronic Frontiers Australia and the Australian Privacy Foundation.

There is no inherent problem with increasing police powers to hunt down anonymous perpetrators of serious crime online. However, these measures do not afford innocent parties enough protection from being mistakenly targeted by increased police power and political power. The haste with which this bill has been ushered through parliament is a disgrace. It looks like it's another dodgy deal by the Lib-Lab uni party. Is it that Senator Wong and Senator Birmingham behind closed doors are the government, and the Senate is their rubber stamp? This parliament no longer allows the principles that comprise the foundations of our democracy, and that brings shame on the Liberal Party, the Nationals and the Labor Party.

I want to take note of some points that I have from notes we've been given in our briefing. There are considerable objections being raised by committees, third-party digital platforms and other independent groups. So, while we recognise the basic need for this, there are still severe objections. Let me go through some of them. There are criticisms cited by committee recommendations relating to the increase of police powers in relation to privacy laws and inadequately stated definitions regarding their application. It may be worth proposing a further amendment to ensure that these powers of surveillance and interference are strictly contained, rather than implied, to matters of particular criminal offences. Perhaps a deliberate exclusion may be used to ensure that they are not invoked for what may be considered political crimes. We're giving police enormous powers to intrude into the lives of people, and that needs to be very carefully managed. It is doubtful, for example, that the original act would have allowed privacy violations or the takeover or disruption of data in pursuit of political protestors or those with online accounts that speak out against the government. A direct exclusion may be the easiest way of clarifying. If it is refused then the amendment switches from being perfectly sensible to potentially dangerous.

The bill was referred to the Parliamentary Joint Committee on Intelligence and Security. Twenty-three submissions have been published to date. There was also a public hearing held on 10 March 2021. I read from my notes: 'The Parliamentary Joint Committee on Human Rights has not formed a final view. It has asked for further, and received, advice from the minister to which questions still remain regarding safeguards.' In essence, it wants an amendment to ensure proportionality and oversight. Recognise that the bill will not only promote some human rights in relation to liberating the victims of cyber based crime but also limit other rights related to privacy. It was also among those concerned about adequate safeguards.

The Senate Standing Committee for the Scrutiny of Bills also submitted a report, on 29 January 2021. This committee noted a concern that the increased warrant powers have the potential to unduly trespass on personal rights and liberties, and insisted that, given the scope of these powers, efforts should be made to tighten their application. The minister's response made a minor clarification regarding who can issue warrants, and sought to justify the 90-day period for the warrant. The committee remained concerned with the authorisation of coercive power and a general lack of consistency with justification for the issuing of these warrants. It also raised concerns about the use of emergency circumstances to conceal things done to execute the warrant. Further committee concerns exist regarding the infringement of rights for third parties caught up in the execution of these warrants, particularly during a search of the target premises, to which the minister reiterated that 'criminal network of individuals' needs to remain broad enough to cover any unwitting third parties.

It is clear from the sheer volume of objections and recommendations that this bill has privacy and human rights issues to iron out before it could be reasonably passed to the satisfaction of industry partners and associated private-sector companies who handle the data being surveilled. They all agree, as I would suggest we look at, that there is no inherent problem with increasing police powers to hunt down anonymous perpetrators of serious crime online, especially against children and for sex offences. This bill, though, highlights previous failures in Australian law which do not afford innocent parties enough protection from being mistakenly targeted by increased police power. These recommendations highlight and recognise that the system has a poor record when it comes to regulating itself. It just seems that this has had far too little work done and ignores some fundamentals.

Before finishing, I would like the Senate to note that One Nation did not support the exemption of four electoral bills earlier from committee consideration. We did not support those bills being exempted, and we have grave concerns about this bill now before the Senate.