The Identify and Disrupt Bill 2021, passed both Houses of the Australian Parliament on 25 August 2021. It gives the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC) the power to disrupt data by modifying, adding, copying or deleting data in order to frustrate the commission of serious offences online. That seems at first glance a good thing, but the objection has been raised that with this power come excess, the ability now to not just go after the bad guys, but also political types too. The critiques are detailed below. But, this thing is in now. I did not even know of its existence until today.
Summary
Amends: the Surveillance Devices Act 2004 and Telecommunications (Interception and Access) Act 1979 to: introduce data disruption warrants to enable the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC) to disrupt data by modifying, adding, copying or deleting data in order to frustrate the commission of serious offences online; and make minor technical corrections; the Surveillance Devices Act 2004 to introduce network activity warrants to enable the AFP and ACIC to collect intelligence on serious criminal activity by permitting access to the devices and networks used to facilitate criminal activity; the Crimes Act 1914 to: introduce account takeover warrants to enable the AFP and ACIC to take over a person's online account for the purposes of gathering evidence to further a criminal investigation; and make minor amendments to the controlled operations regime to ensure controlled operations can be conducted effectively in the online environment; and 10 Acts to make consequential amendments.
https://me.getup.org.au/petitions/repeal-the-identify-and-disrupt-bill-2021
“The Identify and Disrupt Bill 2021 grants the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC) the power to modify, add, copy, or delete data, on a person’s online accounts.
So what this means is that the AFP can log into your Email, your Facebook, Instagram any other social media, and not only view it but actually alter it however they want. They can send emails on your behalf, they can post things on your behalf, they can engage in criminal activity on your behalf in order to reach their objective. And if they want to throw you under the bus, you’re just collateral damage.
This will not only turn Australia into a bigger surveillance state, but it will make the government the enemy of Australians.
Do you really want to live in a country where the government controls every online account you have?”
That sounds bad, real bad. Now over to legal lexperts:
https://melbactivistlegal.org.au/2021/08/26/identify-and-disrupt-bill/
“What constitutes a “relevant offence” is broad, but purportedly means a “serious Commonwealth offence” or a “serious state offence” that has a “federal aspect.” “Seriousness” is characterised by an offence carrying a maximum sentence of three or more years’ imprisonment.
MALS is concerned that this language captures offences with a “federal aspect” that have been levelled at activists in the past, and hence would trip off the low threshold to use such warrants against activists in order to identify and disrupt their activities.
For example, anti-war activists that have staged protests on the Pine Gap surveillance facility in Alice Springs over the past decades, would be subject to the warrants, because the actions took place on Commonwealth land (federal aspect) and the offences levelled at them attracted maximum sentences of seven years (serious offence).
Similar circumstances apply to anti-war groups that have protested on military bases or refugee activists who have protested in Parliament where Commonwealth land and/or property is an aspect of the charges brought against the activists, and the sentencing times are likewise.
Anti-mining and climate action groups would also be ‘eligible’ for identification and disruption with the bill, because they “oppose critical infrastructure projects” and may be considered a “criminal network of individuals” or, that they are an “electronically linked group of individuals” that have the potential to cause “substantial loss or damage to critical infrastructure or property” (emphasis added).
This means the scope of this bill is much more than meets the eye.
The warrants would be issued by a judge, an Administrative Appeals Tribunal (AAT) member, or in the case of an “Account Takeover Warrant,” a magistrate.
Members of the AAT are appointed by the Governor-General, and work on a full-time or part-time basis for a term of up to seven years. Members may be reappointed, and are part of the government, not the judiciary. The tribunal has a history of government cronyism and stacking that makes the independence of the AAT questionable at best. The Government has rejected the recommendation to limit the power to issue warrants to judges, saying it would be a “departure from long-standing government policy.”
MALS has been tracking the evolution of the bill and notes that a ‘sunset’ period of 5 years has been introduced, where the provisions for each warrant purportedly expire. But it is useful to note that as we’ve seen in the United States, “national security laws” face little-to-no political opposition and are often reauthorised successively, sometimes for many decades. This means sunsets are of little comfort, especially given the bipartisan support of this bill in Australia.
Likewise, we note there has been some “consideration” introduced to the bill for journalists and their sources, but that these protections are extremely weak as they hinge on the interpretation of the phrase ‘public interest’ which the Federal and High court have historically interpreted to be limiting. Legal practitioners also remain vulnerable. For example, if a lawyer or journalist assists a government whistleblower in a manner deemed to be ‘incitement’ it will be a relevant offence for the warrants under Section 11.4 of the Commonwealth Criminal Code Act.”
Yikes! And now it is law.