Kristina Keneally (NSW, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share 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.