The national security committee has called for a series of changes to the federal government’s plan to hand sweeping new hacking powers to the AFP before it is passed by Parliament.
The Parliamentary Joint Committee on Intelligence and Security (PJCIS) tabled its report on the Identify and Disrupt bill on Thursday afternoon, recommending the legislation be passed if a number of amendments are made.
These include strengthened oversight, the shoring up of judicial reviews and better consideration of privacy issues around the new powers. Labor has offered bipartisan support for the PJCIS report but wants the powers to only apply to “serious offences”.
The national committee also took aim at the authorities providing classified submissions to the inquiry, and ordered Home Affairs to stop making submissions on behalf of the “Home Affairs portfolio”.
The Identify and Disrupt bill hands sweeping hacking powers to the AFP and ACIC to access the computers and networks of those suspected of conducting criminal activity online, specifically targeting the dark web.
The legislation introduces three new warrants which would allow authorities to “disrupt” the data of suspected offenders, access their devices and networks to identify who they are and take over their accounts covertly.
The network activity warrants would allow authorities to hack into the devices and networks of groups of individuals suspected of taking part in criminal activity online when their identities are not known.
The proposed powers have stoked significant concerns about their potential impact on the privacy and civil liberties of Australians, a lack of judicial oversight over them and the potential for innocent people to be caught up in them.
The national security committee recommended that the remits of the PJCIS, Inspector-General of Intelligence and Security, and Commonwealth Ombudsman be expanded to cover the intelligence functions of the AFP and ACIC, including the use of these new powers.
The committee also wants these intelligence agencies to provide an unclassified submission outlining the “necessity and proportionality of the proposed new or expanded powers”, including case studies were possible.
Home Affairs has been ordered to not make submissions in the future on behalf of the “Home Affairs portfolio”.
A number of new reviews of the hacking powers have been recommended too, including annually by the AFP and ACIC, one by the Independent National Security Legislation Monitor within three years and another by the PJCIS in four years.
The PJCIS has called on the government to insert a sunset clause for the new powers for five years after royal assent.
Strengthened judicial oversight for the warrants is also on the list, including a requirement that the issuing authority for the warrants must be a superior court judge, except for the account takeover warrants which can still be granted by an eligible judge.
The PJCIS recommended that privacy issues and the potential impact on third parties be considered by the authorities and the judge before a warrant is issued, with a sworn affidavit to be required setting out the grounds for the needs for an account takeover warrant.
The proposed hacking powers will apply to any “relevant offence”, defined as those which carry a jail sentence of at least three years. The PJCIS called for a review of Commonwealth legislation to decide whether these concepts need to be made consistent, and if the threshold should be upped to seven years imprisonment.
In additional comments to the report, the participating Labor Senators said this recommendation does not go far enough, and “relevant offences” should be replaced with a new concept of “serious offences” in line with the Interception and Access Act.
“We are not suggesting that other types of offences are not serious. We are simply pointing out that the government – and the agencies – have failed to make the case for why these extraordinary new powers are needed to ‘collect intelligence, conduct investigations, disrupt and prosecute’ crimes that are not ‘child abuse and exploitation, terrorism, the sale of illicit drugs, human trafficking, identity theft and fraud, assassinations and the distribution of weapons’,” the Labor Senators said.
Labor accused the government of “deliberately mischaracterising” the type of offences the new powers will apply to by only referring to these serious offences.
A number of digital and civil rights organisations made submissions to the inquiry on these issues, but were not called to appear before the only public hearing held as part of it in March.
A group of Senators also raised similar issues, including that a “wide scope of innocent third parties” may be caught up in the coercive and broad powers.
Earlier this year Prime Minister Scott Morrison claimed that the Identify and Disrupt Bill did not have bipartisan support, despite it still being subject to the PJCIS inquiry.
Shadow home affairs minister Kristina Keneally said this was a “flat out lie”.
“That bill is currently before the bipartisan committee…it hasn’t had its report come down yet. It is wrong from Mr Morrison to claim that Labor doesn’t support this bill,” Senator Keneally said.
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