Are the AFP Legally Spying on Australian Citizens?

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WHAT HAPPENED, AND WHY CAN THE AFP DO IT?

You may remember in June 2019, the Australian Federal Police have raided the home of News Corp Australia journalist Annika Smethurst in an investigation of her publication of a leaked plan to allow government spying on Australians. Shortly after that, Home Affair minister Peter Dutton proposed a plan to create ‘new powers to spy’ on Australians, and a year later in June 2020, Scott Morrison unveiled a $ 748 million-dollar cyber security initiative to expand Australia’s cyber security workforce.

Eventually, two years after Dutton’s proposal,  in September 2021, a Surveillance Legislation Amendment (Identify and Disrupt) Bill 2021 was passed by both houses, and it assented on the 3rd of September 2021.

The new Surveillance Legislation Amendment Bill amended the Surveillance Devices Act 2004 (SD Act), the Crimes Act 1914 (Crimes Act), as well as associated legislation to introduce new law enforcement powers to enhance the ability of the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC) to combat serious online crimes, with a focus on terrorists, paedophiles and drug traffickers operating in the dark web and the use of other criminal anonymising technologies, such as the use of bespoke encrypted devices.

WHAT NEW POWER HAS THE AFP&ACIC GOT?

The Bill introduced three new powers for the AFP and the ACIC, they are:

  • Data disruption warrant — 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 — allow agencies to collect intelligence on serious criminal activity being conducted by criminal networks; and
  • Account takeover warrants — 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.

ON WHAT BASIS CAN WARRANTS BE GRANTED TO THE AFP&ACIC

Applications for these warrants must be made to an eligible Judge/magistrate or nominated Administrative Appeals Tribunal (AAT) member.

Data disruption warrant

A data disruption warrant may be sought by a law enforcement officer of the AFP or the ACIC if that officer suspects on reasonable grounds that:

  • one or more relevant offences are being, are about to be, or are likely to be, committed; and
  • those offences involve, or are likely to involve, data held in a computer; and
  • disruption of data held in the target computer is likely to substantially assist in frustrating the commission of one or more of the relevant offences previously specified that involve, or are likely to involve, data held in the target computer.

Network activity warrants

A network activity warrant may be sought by the chief officer of the AFP 5 or the ACIC (or a delegated Senior Executive Service (SES) member of the agency) if there are reasonable grounds for suspecting that:

  • a group of individuals are engaging in or facilitating criminal activity constituting the commission of one or more relevant offences; and
  • access to data held in computers will substantially assist in the collection of intelligence about those criminal networks of individuals in respect of a matter that is relevant to the prevention, detection or frustration of one or more kinds of relevant offences.

Account takeover warrants

The magistrate needs to be satisfied on reasonable grounds of that:

  • an account takeover is necessary for the purpose of enabling evidence to be obtained of a serious Commonwealth offence or a serious State offence that has a federal aspect.
  • In making this determination, the nature and extent of the suspected criminal activity must justify the conduct of the account takeover.

Along with the above-mentioned factors, the Bill also requires agencies to make six-monthly reports to the Commonwealth Ombudsman and the Minister for Home Affairs on the use of account takeover warrants during that period. There are also annual reports to the Minister for Home Affairs that are required to be tabled in Parliament.

WHAT ARE THE SAFEGUARDS?

It is stated that the Bill contains necessary safeguards, including oversight mechanisms and controls on the use of information, to ensure that the AFP and the ACIC use these powers in a targeted and proportionate manner to minimise the potential impact on legitimate users of online platforms. However, the explanatory memorandum of the Bill states the Bill does not provide for merits review of decision making, and there does not appear to be any independent party appointed to contest the issue of a warrant.

As a result, it won’t be possible to seek a second opinion on whether these warrants are “justifiable and proportionate”. In this regard, at National Criminal Lawyers, we understand that criminal law is a matter of Human Rights. For this reason, we take pride and passion in representing and protecting people thinking their rights may have been breached due to flawed decisions by the court or tribunal.

If you wish to get in contact with our team at National Criminal Lawyers, contact our office at 02 9893 1889, or click here to schedule a free consultation.

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