Review of Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (Cth)
6 February 2025
On 28 January 2025, the Law Council provided an extensive written submission responding to the INSLM’s Issues Paper.
The patchwork of existing Commonwealth electronic surveillance legislation has exacerbated complexity, introduced inconsistencies with respect to functionally equivalent powers, and undermined coherence. The SLAID Act is one example of ad hoc amendment that has worsened complexity and undermined coherence. Accordingly, we consider this review to be an important opportunity to influence ongoing work within Government towards a harmonised Commonwealth electronic surveillance act.
The Law Council has long supported implementing the guiding principles for a harmonised Commonwealth electronic surveillance act as set out in the Comprehensive Review of the Legal Framework of the National Intelligence Community (Richardson Review). In our submission, we reiterate support for the Richardson Review recommendations directed to consistently and clearly incorporating thresholds of necessity and proportionality into the authorisation criteria for all electronic surveillance powers. The Richardson Review also underlined that electronic surveillance should generally be directed at persons who are under investigation, subject to limited exceptions. Our overarching recommendation is that account takeover and network activity warrants should be subsumed within an exceptional group warrant framework subject to more stringent issuing criteria, in line with the recommendations of the Richardson Review. However, based on publicly available evidence, we remain unpersuaded about the necessity of data disruption warrants which enable the AFP and ACIC to disrupt data by modifying, adding, copying, or deleting it, in order to frustrate the commission of serious offences online.
Electronic surveillance warrants—alongside physical search warrants—are authorised on an ex parte basis. The core difficulty is that, unlike search powers that are exercised under a warrant relating to physical premises, there is limited scope to challenge the validity of covert electronic surveillance powers. Consequently, since the individual will necessarily be prevented from seeking an effective remedy or from taking part in any review proceedings, it is essential that there be adequate safeguards. If the SLAID Act is retained, we have made several detailed recommendations to improve its proportionality:
- On balance, given the limited number of SLAID Act warrants, the Law Council’s primary submission is that all SLAID Act warrants could be issued by judicial officers of state, territory and Federal superior courts. In the alternative, we support further consideration being given to proposals for a new investigatory powers division of the Administrative Review Tribunal. There are advantages and disadvantages to both mechanisms.
- Definitional concepts of ‘relevant offence’ and ‘serious offence’ should be streamlined across all electronic surveillance warrants. That is, in general, an offence that is subject to a maximum penalty of seven years’ imprisonment. There should be no exceptions.
- Existing statutory controls on retention, analysis, use and disclosure of data collected under SLAID Act warrants are no longer fit for purpose, especially given the lifecycle of data. In our submission, we focus on the need to strengthen controls on special categories of data such as information subject to legal professional privilege. Our recommendations are directed to ensuring both more stringent issuing criteria where it is likely LPP information will be collected and the need to establish binding administrative guidance regarding the retention, analysis, use, or disclosure of that information.
- Consideration should be given to requiring a further assessment of privacy impacts after a warrant has been carried out, when the full impacts of privacy infringements are more fully understood.
- Given technical complexity of certain matters in issuing thresholds, such as assessing the availability of less intrusive alternatives, the rigorous scrutiny of SLAID Act warrants would be enhanced by the involvement of public interest monitors. In appropriate cases, scrutiny of SLAID Act warrants would be enhanced by expert advice of independent technical advisors.
- The oversight functions of the Commonwealth Ombudsman should be expanded to allow for broad and flexible oversight of the use of warrants in the context of complex law enforcement operations. This should cover the exercise of powers under multiple, interdependent sources of authority in a single operation.
- There should be report back mechanisms enabling information-sharing between issuing authorities, public interest monitors and oversight bodies to enable information sharing regarding the outcomes of thematic reviews and more generally information regarding inspections by oversight bodies.
We are grateful to the Law Council’s National Security Law Working Group, National Criminal Law Committee and the Law Society of New South Wales for invaluable guidance in preparing this submission. Members of the Law Council’s National Security Law Working Group will be attending a public hearing to be held by the INSLM on 19 February 2025.
Last Updated on 12/02/2025