The Standing Committee for the Scrutiny of Bills said in its first report for the year that it was essential that legislation enabling coercive search powers be tightly controlled, with sufficient safeguards to protect individual rights and liberties.
The bill, introduced on 3 December, seeks to give the AFP and the ACIC three new warrants in order that they can handle serious criminal acts online.
The three new powers listed are:
- "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."
- why those eligible to issue data disruption and network activity warrants should not only be judges;
- why each type of warrant should be issued for 90 days initially as opposed to a shorter period;
- why the bill did not require that the issuing authority consider whether the warrants were proportionate to the nature and gravity of the offence and the likely value of the information or evidence sought to be obtained, as well as the degree to which privacy of third parties would be affected; and
- the nature of the defects or irregularities that will not lead to the invalidity of actions done under a purported warrant or emergency authorisation.
Regarding the use of coercive powers without a warrant, the committee said no explanation had been provided as to when it would be impractical to apply to a judge or a nominated member of the Administrative Appeals Tribunal for a warrant.
The panel noted that a judge, AAT member or magistrate was not allowed to destroy information obtained by using these power without a warrant.
"...retaining evidence obtained improperly for investigative purposes has serious implications for personal rights and liberties," the committee said. "It is possible that authorisations might be improperly made with the knowledge that the information could still be retained for an investigation.
"It is not clear to the committee that the explanatory memorandum provides sufficient justification for retaining information coercively and covertly obtained by a law enforcement officer in circumstances that have not been approved by a judge, AAT member or magistrate.
Another issue raised was the powers the bill proposed to give law enforcement agencies to conceal their activities after a warrant had ceased to be in force.
"...while the committee acknowledges there may be difficulties in knowing when the process of concealment may be complete, there are scrutiny concerns in allowing agencies to exercise coercive or intrusive powers after a warrant has ceased to be in force," it noted.
The committee said it had scrutiny concerns that the coercive powers in the bill could adversely affect third parties who were not suspected of wrongdoing.
The bill gives the AFP and ACIC access to third-party computers, communications in transit and account-based data. Of this, the committee said the bill did not "specifically require the judge or nominated AAT member to consider the privacy implications for third parties of accessing third-party computers or communications in transit.
Another aspect of the bill that troubled the panel was the compelling of third parties to provide information. "A person who is capable of complying with the order but fails to do so would be subject to significant penalties of up to 10 years imprisonment, or 600 penalty units, or both," the committee noted.
"These provisions could result in a person not suspected of any wrongdoing being compelled to provide information which could lead to access to their own personal information held on a computer or device, or in relation to an
"The committee reiterates that it expects explanatory materials to provide a strong justification when introducing or expanding coercive or intrusive powers that could have a substantial impact on innocent third parties. However, in this instance, the explanatory materials provide limited justification for impacting on the privacy of third parties in this way."
The other members of the panel are Senator Dean Smith (deputy chair – Liberal Party, WA), Senator Kim Carr (Labor, Victoria), Senator Perin Davey (National Party,NSW), Senator Janet Rice (Australian Greens, Victoria) and Senator Paul Scarr (Liberal Party, Queensland).