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Wednesday, 25 August 2021
Page: 5155

Senator THORPE (Victoria) (09:53): [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.