Australia’s ‘hacking’ Bill passes the Senate after House made 60 amendments


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Image: ACT Policing

Two Australian law enforcement bodies will soon have the power to modify, add, copy, or delete data, after the Bill allowing such activity was waved through the Senate on Wednesday morning.

The Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020, now awaiting Royal Assent, hands the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC) three new powers for dealing with online crime.

The first of the warrants is a data disruption one, touted as a way to prevent “continuation of criminal activity by participants, and be the safest and most expedient option where those participants are in unknown locations or acting under anonymous or false identities”. This warrant gives the cops the ability to “disrupt data” by modifying, copying, adding, or deleting it.

Failure to comply could land an individual with 10 years of imprisonment.

The second is a network activity warrant that would allow the AFP and ACIC to collect intelligence from devices or networks that are used, or likely to be used, by those subject to the warrant.

The last warrant is an account takeover warrant that will allow the agencies to take control of an online account for the purposes of gathering information for an investigation.

The Parliamentary Joint Committee on Intelligence and Security (PJCIS) recommended the passage of the so-called “hacking” Bill earlier this month, provided that its 33 other recommendations were met. Shadow Minister for Home Affairs Kristina Keneally confirmed in the Senate on Wednesday the government has implemented “wholly or substantially” 23 of the 33 recommendations through legislative amendments or changes to the Bill’s explanatory memorandum.

These include strengthening the issuing criteria for warrants, including considerations for privacy, public interest, privileged and journalistic information, and financial impacts; reviews by the ISLM and the PJCIS; sunset powers in five years; and good-faith immunity provisions for assistance orders.

Of the other 10 PJCIS recommendations, four have been accepted by the government and will be incorporated into its response to the national security legislation review.

The House of Representatives on Tuesday passed the Bill, with a total of 60 amendments, and while Labor has thrown its support behind the Bill as a result of the amended document being a “better Bill”, the Australian Greens have not.

“Unsurprisingly, the two major parties are in complete lockstep with each other and are leading us down the road to a surveillance state,” Greens Senator Lidia Thorpe said.

“In effect, this Bill would allow spy agencies to modify, copy, or delete your data with a data disruption warrant; collect intelligence on your online activities with a network activity warrant; also they can take over your social media and other online accounts and profiles with an account takeover warrant.

“What’s worse, the data disruption and network activity warrant could be issued by a member of the Administrative Appeals Tribunal — really? It is outrageous that these warrants won’t come from a judge of a superior court.”

She said it was not clear that these warrants were even needed, noting the Bill “does not clearly identify a gap in existing powers”.

“The scope of the new powers is disproportionate compared to the threats of serious and organised cybercrime to which they are directed,” she said.

“There is a lack of evidence justifying the need for warrants of this nature, beyond those already available … no other country in the Five Eyes alliance has conferred powers on its law enforcement agency that this Bill will.”

The Bill is now awaiting Royal Assent.

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