Anne Ruston (SA, Liberal Party, Minister for Families and Social Services) Share this | Link to this | Hansard source

I table a revised explanatory memorandum relating to the bill and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

The Government's first priority is ensuring the safety and security of all Australians. It is vital that our law enforcement agencies have effective tools to protect the Australian community.

The Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 will enhance the powers of the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC) to help combat serious crimes perpetrated online, particularly activity by criminals who seek to use encryption and anonymising technology to evade law enforcement.

Multiple layers of technologies that conceal the identities, IP addresses, jurisdictions, locations and activities of criminals are increasingly hampering investigations into serious crimes. This includes child sexual abuse, terrorism and the trafficking of firearms and illicit drugs.

The arrest of more than 220 criminals as part of Operation Ironside earlier this year was a testament to the dedication and hard work of our law enforcement agencies. But it also demonstrated the persistent and ever evolving threat of transnational, serious and organised crime. And their increasing tendency to seek out and use technology, often operated exclusively for the criminal market, to conceal their offending.

In the case of Operation Ironside, ingenuity and world-class capability gave our law enforcement an edge. This Bill is just one more step the Government is taking to ensure our agencies maintain that edge.

Overview of Bill

Specifically, the Bill provides the AFP and ACIC with three new powers to identify and disrupt serious crime online.

First, the Bill will allow agencies to disrupt criminal activity where they see it occurring online through the use of data disruption warrants. This will enable agencies to modify data belonging to individuals suspected of criminal activity in order to frustrate the commission of serious offences. For example, investigators who become aware of child abuse images being shared online, will be able to modify or delete that material to prevent its further spread. This will halt the further victimisation of children in the images while police work to bring their abusers to justice.

These powers will be accompanied by robust safeguards to ensure they are exercised with due care and that there is consideration of the impact on third parties, including the impact on the privacy of individuals. Oversight of the disruption activities will be conducted by the Commonwealth Ombudsman. This is consistent with the general oversight arrangements for the activities of these agencies under similar computer access powers.

Second, the Bill provides a new power to collect intelligence through access to online criminal networks – known as a network activity warrant. This power will allow investigators to identify offenders and the scope of their offending online, including on the dark web. This warrant will be available where the members' identities are unknown to authorities, allowing the suspects' online identifying information to be collected as the first step in an investigation.

As this is an intelligence collection power, any information collected using these warrants will not be admissible in criminal proceedings. The Inspector-General of Intelligence and Security (IGIS) will ensure rigorous oversight over this power. This is appropriate given this power is limited to the collection of intelligence rather than evidence.

Finally, the Bill will allow agencies to take control of a person's online account for the purpose of gathering evidence to expose online criminality – known as an account takeover warrant. This power will allow law enforcement to uncover identities of individuals operating online and identify potential victims. `

Through the new account takeover warrant, the AFP and ACIC will be authorised to take control of a person's online account to gather evidence leading to prosecutions of a serious offence. For example, current powers enable an AFP officer to obtain a password to a forum account that can be accessed through a device if the device is suspected to be used to distribute child abuse material. This does not allow taking full control of their online account. The account takeover power will enable an officer to obtain exclusive control of the online account and prevent the person's continued access to a forum and the further dissemination of child abuse material.

The Commonwealth Ombudsman will provide oversight of the AFP and ACIC's use of the account takeover powers.

Agencies will also be required to provide statistics relating to the use of data disruption warrants, network activity warrants and account takeover warrants in annual reports to the Minister, which are required to be tabled in Parliament.

Government amendments

The Bill has been extensively reviewed by the Parliamentary Joint Committee on Intelligence and Security (the Committee), with a report tabled by the Committee on 5 August 2021. The Government thanks the Committee for its review of these important reforms. The Government moved 60 amendments to the Bill to strengthen and clarify the scope of the Bill's operation, in line with the Committee's recommendations, which were agreed to by the House of Representatives. The amendments:

Conclusion

These key new powers are critical in enabling law enforcement to tackle the fundamental shift in how serious criminality is occurring online. This Bill demonstrates the Government's commitment to equipping the AFP and ACIC with modern powers that ensure serious criminality targeting Australians is identified and disrupted as resolutely in the online space as it is in the physical world.

I commend the Bill to the Chamber.

Kristina Keneally (NSW, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I rise to speak on the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020. The identify-and-disrupt bill serves as another example of how seriously Labor takes its commitment to constructive, bipartisan cooperation on national security legislation in the national interest, another example of how seriously we take balancing the needs of law enforcement agencies with the protection of privacy and civil liberties.

One way that Labor does this is through the Parliamentary Joint Committee on Intelligence and Security. Labor committee members work diligently and carefully to weigh the significant powers being introduced, the operational needs explained to us by our law enforcement agencies and the views raised by industry experts and community groups. The Parliamentary Joint Committee on Intelligence and Security made 33 substantial recommendations, and I note that the government has accepted and sought to incorporate the vast majority of these in this bill. This bill is a better bill because of these amendments, and, as such, Labor will be supporting this bill today.

I will shortly turn to the amendments. However, let me first note that there is a perennial tension between how quickly criminals can adapt their trade craft and how long it takes to properly scrutinise and introduce the legislation required to counteract and disrupt criminal activity, and that tension is certainly laid bare in this bill. Technology is constantly changing the threat environment, creating new places for crimes to take place and new methods to disguise and hide identities and locations. Cybercriminals are increasingly taking advantage of accessible, easy-to-use and cheap technology to obscure their activities. In this environment, the Australian Federal Police and the Australian Criminal Intelligence Commission have found that the tools afforded to them by the existing electronic surveillance powers are lacking in the fight against serious and organised crime. As the AFP commissioner told the committee during our hearings, it's like fighting crime with one hand tied behind your back.

It is to address this problem and this technology that the identify-and-disrupt bill will amend the Surveillance Devices Act 2004, the Crimes Act 1914 and associated legislation. It introduces new law enforcement powers to enhance the AFP's and the ACIC's ability to combat serious and organised crime that is facilitated by the dark web and other anonymising technologies.

We often hear discussion of the shadowy world of cybercrime, but it's really worth understanding what it is that we're talking about here, because these definitions are key to understanding the intent of this bill. Anonymising technology is a technology that disguises a person's activity, location and true identity. Many people use this technology to protect their personal information for very legitimate reasons. The dark web refers to those parts of the internet which cannot be accessed without special browsers—like tunnels running below ground. Then there are the dedicated encrypted communication platforms, devices designed for and marketed to criminals to use to avoid law enforcement detection.

There are three powers being granted to the AFP and the ACIC by this bill. Firstly, data disruption warrants will enable the AFP and the ACIC to disrupt data by modifying, adding, copying or deleting data. They might do this to frustrate or prevent a crime as an alternative course of action if prosecution is not necessarily the most expedient or effective outcome. This could be particularly valuable for preventing access to child exploitation material. If the identity and the location of participants is unknown, a data disruption warrant could at least enable authorities to remove the content.

Secondly, network activity warrants will permit access to the devices and networks used to facilitate criminal activity, allowing agencies to reveal the scope of criminal operations and the identities of those involved.

Thirdly, account takeover warrants will provide the AFP and the ACIC with the ability to take control of a person's online account for the purposes of gathering evidence to further a criminal investigation. Currently, agencies can only take over a person's account with that person's consent. This power facilitates covert enforced takeovers. The bill also proposes an expanded oversight remit for the Inspector-General of Intelligence and Security to cover the AFP and the ACIC activities under network activity warrants.

I now want to turn to the amendments proposed by the Parliamentary Joint Committee on Intelligence and Security, and the government's response. The government has implemented, wholly or substantially, 23 of the PJCIS's 33 recommendations, through legislative amendments or changes to the explanatory memorandum to this bill. Significantly, these changes include strengthening the issuing criteria for warrants, including considerations for privacy, public interest, privileged and journalistic information, and financial impacts; reviews by the Independent National Security Legislation Monitor and the PJCIS; sunset powers in five years; and good-faith immunity provisions for assistance orders. These are significant recommendations, made in a bipartisan fashion by the Parliamentary Joint Committee on Intelligence and Security, and I am pleased that the government has taken them up in the form of legislative amendments to this bill.

Of the other 10 PJCIS recommendations, four have been accepted by the government and will be incorporated into its response to the comprehensive review of the national intelligence community conducted by Dennis Richardson; these are that the Ombudsman's powers be expanded to cover the AFP and the ACIC. The government has noted this was recommended by the Richardson review and accepted by the government and will be implemented as part of the government's electronic surveillance reforms. The committee also recommended that the issuing authority for these warrants should be a superior court judge or an eligible judge. These are extraordinary powers, and committee members felt that they required a higher level of authorisation.

The government has noted that the Richardson review recommended a comprehensive reform of all the surveillance laws to bring consistency, avoid duplication and avoid ad hoc amendments across several acts, including the Telecommunications (Interception and Access) Act, the ASIO Act, the Surveillance Devices Act and the Crimes Act. This includes issuing authorities, which Richardson observed were inconsistently applied across these powers. The government has confirmed to me that it has initiated this review and that the SLAID Bill will be included in this review and the government will be consulting publicly as part of this process.

The committee also recommended that the government review the definition of 'serious offence', again noting that there were inconsistent applications of that term across several acts. The government has confirmed to me that the Richardson review recommended that serious offences will be defined consistently across all legislation as crimes with a sentence of a minimum of five years. The government has accepted that recommendation. The committee also recommended that the post-warrant concealment powers must be exercised within 28 days unless approved by a superior court judge. The government noted in its briefings with me—and the minister has confirmed—that this is an issue in other legislation, including TOLA, and that the Richardson review recommended the comprehensive reform of all electronic surveillance laws to bring that consistency, avoid duplication and ad hoc amendments across the various acts. The government confirms it has initiated this review and that SLAID will be included in it and the government will be consulting publicly as part of this process.

Another recommendation that the government has accepted but is not progressing with this bill but as part of another process is the committee's recommendation that a public interest advocate must be appointed when warrants are being sought in relation to journalists or media organisations. The minister has confirmed to me that the government notes and accepts this recommendation, noting that it is responding to this recommendation as part of its response to the Parliamentary Joint Committee on Intelligence and Security's report on the impact of the exercise of law enforcement and intelligence powers on the freedom of the press.

I note that three of the recommendations were rejected, in essence, by the government that go to the expansion of the PJCIS oversight of the intelligence functions of the ACIC and the AFP, as well as the expansion of the IGIS oversight of the intelligence functions of the AFP. The government takes the view that parliamentary oversight exists through the Parliamentary Joint Committee on Law Enforcement Integrity and it notes that the Richardson review did not endorse expanding the IGIS's oversight to the intelligence functions of the AFP. While Labor acknowledges that this is the government's position, I would nonetheless like to make clear that Labor in government would implement all of the PJCIS's recommendations to the SLAID Bill.

I would like to publicly thank the Minister for Home Affairs, Karen Andrews, and the Department of Home Affairs for their readiness to provide briefings and advice to my office in our consideration of this bill and particularly in understanding the government's response to the PJCIS report. I acknowledge that the Minister for Home Affairs, since taking the role, has sought at various times to work constructively with the opposition, in the national interest, to deliver much-needed reforms and powers to enable our agencies to keep up with the changes in technology and protect the Australian community.

I will note that the government has added two amendments such that, when a national emergency has been declared, the minister's power to modify administrative arrangements does not apply to account takeover warrants, bringing the bill into conformity with the Surveillance Devices Act and the Crimes Act and aligning the periods for reporting to the Ombudsman with those of other agencies, as recommended by the PJCIS. I acknowledge those amendments and advise that we are pleased to see them.

These are extraordinary powers. In reviewing its support for the bill and in its committee considerations, Labor accorded the highest priority to ensuring that the government had provided the strongest case that these powers were absolutely necessary and proportional. The explanatory memorandum sets out that these powers apply to the most serious of crimes, including child abuse and exploitation; terrorism; the sale of illicit drugs; human trafficking; identity theft and fraud; assassinations; and the distribution of weapons. Those calling for these powers embed their justification in the context of these most appalling and chilling crimes. In many ways they're right to do this, for, dismayingly, this is how the worst of criminals think. We must also be alert, though, to any surveillance creep. It's obviously much easier to justify the introduction of extraordinary powers by focusing on only the most serious crime, especially crimes like child abuse, exploitation and terrorism. But it is incumbent on the government and its agencies to engage in the more difficult task of justifying the introduction of extraordinary powers by reference to how the powers could actually be used.

Labor is concerned that the definition of 'relevant offences' under the Surveillance Devices Act includes all offences against the law of the Commonwealth that are punishable by a maximum term of imprisonment of three years or more. That does include the types of crimes that I have listed above—like terrorism and child exploitation—but it also includes tax offences, trademark infringement and a range of other offences which objectively do not fall within the categories of child abuse and exploitation, terrorism, the sale of illicit drugs, human trafficking, identity fraud and theft, assassinations and the distribution of weapons. The intelligence and security committee heard concerns from experts that this is too broad a focus for these powers, encompassing too many minor offences. That's why Labor members added additional comments to see that this bill is tied to serious offences. It would be an important constraint on the use of these new warrant powers and it would limit their application to offences that carry a maximum of at least seven years in jail and to other specified offences. As I noted, however, the government is progressing the recommendations of the Richardson review, which will go some way to addressing this concern.

Labor does not play politics with national security legislation. Our committee work and our negotiation on amendments regarding the Surveillance Legislation Amendment (Identify and Disrupt) Bill testify to that, which is why I cannot conclude my remarks today without noting that we were very disheartened when, in June, Mr Morrison tried to blame Labor for somehow delaying this bill. The amended bill only passed the House yesterday. It only came out of the committee very recently. Yet almost three months ago, apparently—or so Mr Morrison said—Labor was blocking its passage. Three months ago the bipartisan intelligence and security committee, chaired by my colleague Senator Paterson, was still conducting its hearings and drafting its report. We were still doing the work of scrutiny that the Australian public would hope its elected officials do and take seriously. We were doing that together on the committee, constructively, in a bipartisan way and in the national interest, and I acknowledge my Liberal colleagues on the committee for that commitment that they bring. It is cause for dismay that Mr Morrison would publicly seek to undermine that bipartisan cooperation, and it is cause for dismay that Mr Morrison simply flat out lied on an issue of national security.

Labor's goal in supporting this bill is to ensure that our agencies have the tip of the spear when confronting the most serious cyber-enabled crimes and that the AFP and the ACIC have the settings appropriate to a crime landscape that is forever changing with technological advances. It is a more robust bill as a result of the PJCIS's recommendations, and, as a result, Labor will be supporting it. It is vital we continue to work constructively in the interests of national security.

Lidia Thorpe (Victoria, Australian Greens) Share this | Link to this | Hansard source

[by video link] I rise to speak on the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020. Unsurprisingly, the two major parties are in complete lock step with each other and they are leading us down the road to a surveillance state. The bill proposes to amend the Surveillance Devices Act 2004 and the Crimes Act 1914 to give three new powers to the Australian Federal Police and the Australian Criminal Intelligence Commission, or ACIC.

The first are data disruption warrants to allow offensive data-disruption powers to stop the suspected commission of an offence using a computer. These warrants can also be given with compulsory assistance orders. These orders compel any person with relevant knowledge or expertise to help the AFP or the ACIC to disrupt data. If they don't help, they could be landed with 10 years imprisonment. The second are network activity warrants. These enable the ACIC or the AFP to monitor the computer related activities of criminal groups to collect intelligence, instead of, say, investigating an offence to obtain evidence. The third are account takeover warrants, which authorise the AFP or ACIC to take control of online accounts that are suspected of being used to commit an offence to enable an investigation.

The Greens are the ones who led the push to get this legislation reviewed by the committee when the government—with the help of the opposition, mind you—tried to push this through the parliament. We tried to refer this bill to the Senate Legal and Constitutional Affairs Legislation Committee; however, this failed and it was referred to the closed shop, Labor-and-Liberal PJCIS. So the Greens aren't allowed onto that committee to make decisions or contribute to those decisions and neither is anybody else. It's a closed shop between Liberal and Labor, who may as well join as one and forget the rest.

In effect, this bill would allow spy agencies to modify, add, copy or delete your data with a data disruption warrant or collect intelligence on your online activities with a network activity warrant. Also, they could take over your social media and other online accounts and profiles with an account takeover warrant. What's worse is that the data disruption and network activity warrants could be issued by a member of the Administrative Appeals Tribunal. Really? It is outrageous that these warrants won't come from a judge of a superior court appointed on their personal capacity. The bill also limits court oversight in decisions concerning the issuing of these warrants when criminal proceedings have already started.

It is not clear that these powers are needed. The Richardson review recommended that law enforcement agencies not be given specific cyberdisruption powers like those in this bill. The Richardson review concluded there was not a material gap in existing investigative powers which could justify effectively placing the AFP or ACIC in the position of judge, jury and executioner. The proposal to give specific intelligence collection powers to the AFP and ACIC under network activity warrants does not clearly identify a gap in existing powers. They're not telling us everything. They're expecting us to make decisions without real, genuine, informed consent.

The scope of the new powers is disproportionate compared to the threats of serious and organised cybercrime to which they are directed. There is a lack of evidence justifying the need for warrants of this nature beyond those already available to the AFP and ACIC. No other country in the Five Eyes alliance has conferred the powers on its law enforcement agencies that this bill will. What's more, the government moved 60 amendments in the other place, as a block, at the last moment, and now we're all here, expected to jump through hoops, without the time to scrutinise the legislation properly.

I foreshadow a second reading amendment in my name and further substantive amendments that would go some way to improving this terribly flawed, problematic legislation. This country lacks a robust human rights framework that would provide adequate protection against the abuse of powers contained in this bill. In the absence of those safeguards, the Australian Greens cannot endorse the expansion of the already considerable powers possessed by the Australian Federal Police and the ACIC to intrude into the privacy of everyday, law-abiding people.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to 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.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

[by video link] Thank you very much for allowing me the opportunity to speak on this bill, the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2021. I must say I am very concerned that it has been dropped on the Senate. In the very last minutes or hours, we found out that this bill is on. That has caused some difficulty for me because there are some amendments to this bill that I intend to move, and I foreshadow that I intend to move an amendment in the committee of the whole. This bill seeks to broaden powers in relation to the AFP. In principle, I support what the government is trying to do, but this bill gives further powers to our police force. These powers are used in secret and are quite coercive, and they require the appropriate checks and balances. I note that Senator Roberts raised some concerns in this area as well, noting that these powers can potentially be abused.

I intend, in Committee of the Whole, to move an amendment—it's an amendment that I've moved before—that seeks to expand the powers of the PJCIS to look at matters that are operational and go to information gathering by our intelligence services. The importance of this is something that I raised in my first speech, basically pointing out that the parliament of course has the power to conduct oversight of our intelligence agencies but it simply doesn't, because it has carved out that ability in the Intelligence Services Act. The parliament has censored itself or prevented itself from conducting intelligence oversight. That is an aberration amongst our Five Eyes nations. We see very strong oversight from the US in the Senate. It's the same in the UK. We are effectively not doing our job properly. I have on several occasions sought to remedy this. I mentioned it in my first speech. On 7 December 2017, I gave much greater detail. I moved an amendment on 9 May 2018 to the Home Affairs and Integrity Agencies Legislation Amendment Bill 2018.

I moved an amendment on 26 June 2018 to the National Security Legislation Amendment (Espionage and Foreign Interference) Amendment Bill 2018. I also moved a private member's bill in relation to this. I moved a similar amendment in relation to the Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019. I did that on 29 July 2019. On 3 September 2019 I moved an amendment in relation to the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019. On 10 December I moved an amendment to the Australian Security Intelligence Organisation Amendment Bill 2020.

I have consistently sought to move an amendment to increase the ability to balance out the powers with some appropriate checks and balances. I might point out that, on each occasion I've done this, Labor has committed from an intent perspective. They've said they recognise the intent—in fact, they have their own bill that does exactly this. People might recall that in the last sitting week I moved a motion in relation to a referral to the Legal and Constitutional Affairs Committee in relation to the operation that grounds the claims that are before the ACT court in relation to Bernard Collaery and witness K, who has now been dealt with by the court. Labor stood up at this time and said, 'We will investigate this. We will move a referral when we get into government after we have amended the Intelligence Services Act to permit the PJCIS to conduct these sorts of investigations.' Well, Labor, money where your mouth is: I'm going to move this amendment in the Committee of the Whole and I anticipate that you will support it. You keep saying that you want to have the PJCIS conduct oversight, as it should, but consistently you [inaudible].

I apologise for the delay in circulating this late amendment, but that was caused by the fact that the government brought this legislation on this morning basically unannounced. As crossbenchers, we work with the government on legislation making sure that we understand what it is we are voting on and making sure that we can contribute by way of amendments. We don't need to have a blitzkrieg of bills where we don't have an opportunity to participate in our democracy and to put forward amendments. I thank very much the clerks and the drafting office for assisting me this morning in getting this amendment circulated as quickly as possible. Again, the government has not done democracy any favours this morning.

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

I rise to sum up debate on the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2021. In the first instance I would like to thank my colleagues for their contributions to the debate. I'd also like to reaffirm that the Morrison government's first priority is ensuring the safety and the security of all Australians. We make absolutely no excuses for that. It is therefore vital that our law enforcement agencies have effective tools to protect the Australian community. This bill is one part of the government's response to the challenges posed by anonymising technologies and cyberenabled crime, such as offending perpetrated on the dark web. What we are now seeing and what we are aware of is the increasing use of the dark web and anonymising technologies has significantly degraded agencies' ability to identify and disrupt serious crime occurring online. I do note the comments made by the Australian Greens, by Senator Patrick and by Senator Roberts on behalf of One Nation, but let's make sure we are putting this bill into perspective.

This bill introduces three measures to enhance the ability of the Australian Federal Police and the ACIC to identify and disrupt serious crime online. Data disruption warrants authorise the deletion or modification of data. We are going to refer here to child exploitation material—that is what they are looking at—to frustrate the commission of serious offences online. On any analysis, I would say that child exploitation material is an absolute disgrace. Network activity warrants enable the AFP and the ACIC to collect intelligence on criminal networks operating online. And account takeover warrants allow law enforcement to take control of online accounts, in order to gather evidence about a person's online criminality and the activity of their associates. What these reforms will do is equip agencies with the tools and powers they need to protect the Australian community from serious criminals operating online. Again, I would like to highlight the types of behaviour we are addressing, including terrorists, organised crime and those who seek to harm our children.

The bill is also supported by strong safeguards and oversight to protect the privacy of Australians and ensure that the powers are only used where necessary, proportionate and reasonable. The bill will substantially boost the capacity of the Australian Federal Police and the Australian Criminal Intelligence Commission to identify and disrupt serious criminal activity occurring online, particularly activity by criminals who seek to use the dark web and other platforms to evade law enforcement. That is what they are doing. They are utilising these technologies, the dark web and other platforms, to evade law enforcement.

The arrest of more than 290 criminals as part of Operation Ironside earlier this year was a testament to the dedication and hard work of our law enforcement agencies, but what it also demonstrated is the persistent and ever-evolving threat of transnational, serious and organised crime, and their increasing tendency to seek out and use technology often operated exclusively for the criminal market to conceal their offending. In the case of Operation Ironside, ingenuity and world-class capability gave our law enforcement an edge. That is a good thing, when you look at what we are now confronted with in 2021.

This bill is just one more step the government is taking—and we make no apology for protecting Australians—to ensure that our agencies maintain that edge. The bill has been extensively reviewed by the Parliamentary Joint Committee on Intelligence and Security, with a report tabled by the committee on 5 August 2021, and the government thanks the committee for its review of these important reforms. Let me make it clear: the Morrison government does not accept serious crime in our communities and neither should we accept it online. Our laws must keep pace with technology if our agencies are to continue to do the job that we expect of them. That job is consistent with the Morrison government's first priority, to ensure the safety and security of all Australians. With those brief comments, I commend the bill to the Senate.

The Acting Deputy President:

The question is that the second reading amendment moved by Senator Hanson-Young on behalf of Senator Thorpe be agreed to.

Question negatived.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

by leave—In the spirit of not calling divisions, could we just please have the Greens' vote in relation to this recorded.

Claire Chandler (Tasmania, Liberal Party) Share this | Link to this | Hansard source

That is so noted.

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

by leave—I will just put on the record Senator Griff's position supporting this amendment as well.

Claire Chandler (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that the bill be read a second time.

Original question agreed to.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Again, could we have the Greens' opposition to this bill recorded, please, and any others who may need to have theirs articulated as well.

Claire Chandler (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Senator Roberts, are you seeking the call? We will come back to you. We will take it that you are seeking to record your vote against—we will come back to you.

Bill read a second time.