"We cannot accept a new species of warrant that is based on the notion that the role of law enforcement is to stop possible future offences from being committed where the breadth of their application is so wide," NSWCCL secretary Michelle Falstein said in a submission to an inquiry into the bill, being conducted by the Parliamentary Joint Committee on Intelligence and Security.
"The minister’s focus on the need to, for example, delete online child abuse material, distracts from the real implications of this bill and pretends law enforcement agencies are not already taking appropriate action against such material." The submission was one among 13 released on Monday.
The bill, introduced on 3 December 2020, seeks to give the AFP and the ACIC three new warrants in order that they can handle serious criminal acts online.
- "Data disruption warrants to enable the AFP and the ACIC to disrupt data by modifying, adding, copying or deleting in order to frustrate the commission of serious offences online;
- "Network activity warrants to allow agencies to collect intelligence on serious criminal activity being conducted by criminal networks, and;
- "Account takeover warrants to 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."
The Senate Standing Committee for the Scrutiny of Bills said in its first report for the year that these additional powers, if granted, could unduly trespass on personal rights and liberties.
The NSW body appeared to agree with this conclusion, describing the bill as "a catch-all formula for abuse of power without demonstrated need or regard for proportionality".
Falstein said the main issues with the three new warrants were:
- the breadth of their application;
- the widening of spy agency remits to allow intelligence gathering on Australian citizens; and
- the overall risk of abuse of power.
She pointed out that while Home Affairs Minister Peter Dutton had focused on child sexual abuse, terrorism and trafficking of firearms and illicit drugs in the second reading of the bill, the warrants proposed would apply to any Commonwealth offence that had a maximum jail term of three years or more.
"This is an extraordinary catch-all, encompassing fauna importation, fraud, and importantly, such vaguely worded offences as ‘communication and other dealings with inherently harmful information by current and former Commonwealth officers’ under sections 121 and 122 of the Criminal Code," Falstein said.
"These secrecy provisions have already been used to intimidate whistleblowers in several high-profile cases over the last few years. They are framed in a way that prevents vital information regarding government wrongdoing from ever coming to the attention of the public."
Dismissing "the ritual reassurances" from Dutton about "robust safeguards", Falstein said: "Enough is enough."
The NSWCCL proposed three amendments to the bill:
- restricting the scope to specific offences;
- creating a Public Interest Monitor; and
- limiting the power to issue warrants.
Falstein noted that a Public Interest Monitor existed "in Queensland and Victoria and, to some extent, in NSW in the form of the Surveillance Devices Commissioner to protect the public interest regarding applications by law enforcement agencies for various warrants and use of other covert, surveillance and coercive powers".
"It is important to note the NSW and Queensland positions were created by Liberal and National Party governments respectively," she added.
Regarding the issuing of warrants, Falstein said this power should be limited to judges. "Magistrates are not tenured and often do not have the background needed to properly examine requests under pressure and to be prepared to reject them."
And, concerning the scope of the bill, she said: "The application of the proposed warrants must be restricted to the specific offences which are ostensibly the areas of concern as set out by the minister: child sexual abuse, terrorism, and trafficking of drugs and firearms. The Bill’s application to any Commonwealth offence with a maximum term of imprisonment of three years or more must be removed."
Dutton has asked the PJCIS to report back by 5 March so that the bill can be passed during the autumn sittings of Parliament.