Federal powers to covertly investigate cyber-enabled crime must be carefully scrutinised to ensure the quest to identify offenders does not unduly infringe on the rights of innocent members of our community, the Law Council of Australia said today.
Giving evidence at a public hearing for the Independent National Security Legislation Monitor (INSLM) review of Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (Cth) (SLAID Act), the Law Council, represented by expert members of its National Security Working Group, welcomed examination of the the necessity and proportionality of the warrant powers provided under the SLAID Act.
"As noted by our experts, the SLAID Act introduced three new warrant powers for the Australian Federal Police and the Australian Criminal Intelligence Commission: data disruption, network activity and account takeover warrants," Law Council of Australia President, Juliana Warner said.
"At the time of their introduction, we raised concerns that these warrants departed sharply from the traditional focus of investigative powers on the collection of admissible evidence of specific offences, and had the potential to cause significant loss or damage to large numbers of non-suspects, who may be lawfully using the computer networks or systems being targeted.
"There remain substantial risks and consequences related to these warrants, combined with a limited scope for someone to seek an effective remedy of their own accord, or take a direct part in any review proceedings.
"As a longer term proposal, we have recommended that the SLAID Act warrants be subsumed into a harmonised Commonwealth electronic surveillance framework, and that such warrants are best issued by judicial officers of state, territory and Federal superior courts.
"We have also supported the introduction of a public interest monitor regime to assist in the warrant issuing phase, to provide the decision maker with valuable support and to test submissions put forward by those seeking to rely on the warrant the warrant.
"In its submission to the INSLM, the Law Council particularly focused on the potential for these warrants to inadvertently capture communications subject to legal professional privilege (LPP). Accordingly, the Law Council has argued that material subject to LPP is expressly considered as part of a warrant's issuing criteria, as well as the need for specific safeguards regulating use, retention and disclosure of that information."
