REFORMING POWERS

The Australian government recently signalled its move to replace the existing patchwork of surveillance laws with a unified piece of legislation, in what it has described as the “most significant reform to Australia’s national security laws in more than four decades”.

The proposal is set out in a discussion paper entitled ‘Reform of Australia’s electronic surveillance framework’, published by the Department of Home Affairs last month.

The discussion paper outlines the government’s plan to repeal the Surveillance Devices Act 2004, Telecommunications (Interception and Access) Act 1979 and parts of the Australian Security Intelligence Organisation Act 1979 in favour of a “single, streamlined and technology-neutral Act”.

The new Act would govern telecommunications interception, covert access to stored communications, and the use of listening and tracking devices under a single law.

Previously, according to the report, “Acts protected several different kinds of information and data from unauthorised access, and only allowed government agencies to lawfully access information and data in limited circumstances.”

Key words — limited circumstances.

Authorities say existing laws were becoming unnecessarily complex, confusing and based on outdated assumptions that cannot be easily applied to modern communication technologies.

So now, they are stepping in to ‘fix’ this.

Problem, reaction, solution.

The moves follow a comprehensive review in 2019 by the National Intelligence Community — comprised of Australia’s intelligence and federal law enforcement agencies — which found that the legal framework is no longer fit for purpose and requires ‘wholesale reform’.

Some pieces of legislation was developed when circuit-switched carrier networks were the normal and Voice Over IP and Over-the-Top (“OTT”) communications were unheard of.

In line with the recommendations, the government’s proposal also seeks to refine the types of communications to which the legislation applies in order to ensure that Australia’s surveillance laws are “technology-neutral” and “relevant to both current and future technologies”.

In other words, they hope to make it as broad as possible for sustainability.

Importantly, this legislation could result in new-age OTT and Unified Communications providers being subject to similar requirements for interception/data retention that traditional carriers are.

The discussion paper also flags that the new laws could apply to a much broader range of information beyond the conventional “communications” that fall within the current scope of the Telecommunications (Interception and Access) Act 1979.

This includes cloud-hosted data (for example, electronic documents stored using Google Drive or Dropbox), data generated by IoT devices (including smart vehicles or home appliances), draft or unsent emails and instant messages, and information from the use of smart phone applications.

In the future, it could include technologies we haven’t even heard of yet.

The proposal is said to consider the extension of additional surveillance powers to agencies including the Australian Transaction Reports and Analysis Centre, the Australian Taxation Office, Australian Border Force and Australian Criminal Intelligence Commission.

These entities currently don’t have the power to access this type of sensitive data easily, if at all.

State and territory corrective service agencies could also be given access to telecommunications data, if their respective governments request it.

Consolidate the legislation and streamline this power to all pieces of the prison country.

Australia’s confusing network of spying abilities are about to morph together.

DOMESTIC SURVEILLANCE

We first reported plans for a universal surveillance act in March 2021, when it was floated Australia would soon introduce a centralised bill to solve the mess caused by.. too many legislative pieces.

Australia’s tangle of electronic surveillance laws

“The central area for reform is a new electronic surveillance Act, which will be a new landmark in Australia’s national intelligence legislation.”

For nearly 20 years now, politicians on both sides have rushed through a series of ad-hoc surveillance laws without any oversight.

From the time of the 11 September 2001, through to 1 August 2019, Parliament passed more than 124 Acts amending legislative frameworks, making more than 14,500 individual amendments.

That’s more than one new act every eight weeks and it’s fair to say that politics has often trumped good governance.

So, the change was initially welcome. Let’s sort out this mess.

However, quickly took a turn.

The review, done by former ASIO chief Dennis Richardson, ultimately called to not strengthen judicial oversight of intelligence activities, but to lessen it.

“Recommendation 30: Ministers should continue to authorise ASIO and Intelligence Services Act agency activities. These authorisations should not also be subject to judicial or other independent authorisation,” he wrote.

“Ministerial authorisations, together with IGIS [Inspector-General of Intelligence and Security] oversight, provide appropriate protections and accountability for intelligence warrants and authorisations, and should continue without additional judicial or other authorisation,” the government wrote in their response to the review.

The Law Council of Australia has expressed “grave concern” about this.

“This would reinforce Australia’s status as a major outlier within the Five Eyes Alliance,” wrote Pauline Wright, the Law Council’s president.

“The United States, United Kingdom, Canada, and New Zealand all have judicial authorisation requirements for their intrusive intelligence collection-powers,” she wrote.

“For the public to have trust and confidence in covert activities it is essential the utmost independence and rigour applies when granting authorisations. Judicial authorisation is essential to creating and maintaining that state of trust.”

Some funny business is going on here, folks, and the government is now moving.

Is a universal piece of legislation really the best answer to an overblown surveillance network?

What could a broad, centralised, departmentally sharable framework hold for the privacy of Australians?

Unlike the mainstream media who report these types of changes once it’s too late, there is still time to influence how this bill will ultimately look like, as submissions are now being requested:

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The government is seeking submissions on the discussion paper by 11 February 2022. It intends to release an exposure draft of the proposed legislation for public comment in late 2022.

The feedback received from stakeholders through consultations on this draft bill will then inform the finalisation of the bill in 2023.

Information found here.

Submission form found here.

Spread the word, raise your voice.

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