Identify, takeover and disrupt – special powers of the AFP and ACIC

On Wednesday 4^th December 2024 the Independent National Security Legislation Monitor, Mr Jake Blight, and staff from the INSLM office met with a number of academics, as well as representatives of civil society groups and the Law Council of Australia to discuss their preliminary views on the warrants introduced by the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (SLAID Act). The SLAID Act introduced data disruption (DDW) and network activity (NAW) warrants into the Surveillance Devices Act 2004, and the account takeover warrant (ATW) into the Crimes Act 1914 (collectively SLAID Act warrants). 

The roundtable was held in a hybrid format and was attended by:

• Dr Gregor Urbas, ANU
• Dr William Stolz, ANU
• Dr Dominique Dalla-Pozza, ANU
• Dr Brendan Walker-Munro – Southern Cross University
• Dr Philip Glover – Edith Cowan University
• Dr Sarah Kendall – University of Queensland 
• Dr Monique Mann – Victoria University Wellington
• Angus Murray – Queensland Council of Civil Liberties
• Lloyd Babb SC – Law Council of Australia
• Shounok Chatterjee – Law Council of Australia (observer)
• Dr Kristine Klugman – Civil Liberties Australia
• Stephen Banks – New South Wales Council of Civil Liberties
• Lizzie O’Shea – Digital Rights Watch

The roundtable highlighted some of the complex issues arising from the issuing, oversight and information protection arrangements in relation to SLAID Act warrants. Participants provided valuable insights into legal, social and practical issues associated with these warrants and how they are issued and executed. This record outlines some of the key issues discussed.

This is a record of preliminary discussions only and any views expressed should not be attributed to individuals or organisations. This record should not be taken to imply that any individual or group necessarily agreed with positions or options that were discussed.  

Key topics discussed 

Having an independent issuing authority and robust data protections are both seen as crucial safeguards for covert warrants. Some of the practical and legal considerations relevant to these safeguards were discussed. Key topics discussed were:

• who the most appropriate issuing authority for SLAID Act and similar warrants should be
• the current system of having Administrative Review Tribunal (ART) members and judges acting in their personal capacity issue warrants
• whether public interest monitor and/ or independent technical advice should form part of the issuing process
• what practical improvements could be made to ensure an independent issuing authority is appropriately supported and that there is public confidence in the issuing process
• the types of offences that SLAID Act warrants should be available to address
• special categories of data that may be collected under SLAID Act warrants, and how that data is handled across its lifecycle. 

Issuing Authorities

Who should issue SLAID Act warrants?

The covert and intrusive nature of the SLAID Act warrants, along with the unusual nature of a disruption power, means that careful consideration should be given to the arrangements for issuing SLAID Act warrants. The group discussed whether the current system of having ART members and judges acting in their personal capacity as the issuing authority for DDWs and NAWs, and magistrates for ATWs, is appropriate. During this discussion the ongoing review of Australia’s electronic surveillance law was noted.  There was discussion about how any potential reform to the issuing process for SLAID Act warrants would interact with any potential new issuing arrangements for surveillance warrants more broadly. 

Independence

Public confidence in warrant powers is, in part, shaped by the perceived level of intrusion and the appropriateness of safeguards. Having an independent issuing authority who is trusted to apply rigorous scrutiny is an important part of maintaining trust in the use of covert powers in a democracy. Because the public must rely on the decisions of the issuing authority with little or no opportunity for public scrutiny, some participants emphasised the importance of having an issuing authority that is not just independent from the executive, but also perceived as such by the community. It was highlighted that it was important from the public perspective that the issuing authority is not just a rubber stamp for law enforcement, but instead seen as bringing genuine independent review and rigorous consideration to the process.       

There were a variety of views among the group about whether perceptions of independence and rigour of scrutiny require limiting issuing authorities to superior court judges or some other group including magistrates and/or ART members, or whether there are alternative ways to increase the perceived/actual independence of the issuing of these warrants.  

Some participants said that only the independence of a superior court judge would be commensurate to the level of intrusion permitted under SLAID Act warrants, and that these judges possessed the skills necessary to apply the types of considerations relevant to those warrant applications. Another participant observed that magistrates are also able to issue warrants that are complex and intrusive and they have (for a long time) been the issuing authority for physical search warrants. It was also noted that the vast majority of phone interception warrants are authorised by ART members.  There was discussion about whether special arrangements are needed for SLAID Act warrants because they are (unlike most search warrants) entirely covert and unlike search and interception warrants they are very unlikely to end up being used in evidence and subject to challenge that way. 

Practicality

The group discussed the practicality of requiring SLAID Act and other similar warrants to be issued by superior court judges and discussed various options and models as outlined below. This discussion included noting that the number of SLAID Act warrants was small when compared to electronic surveillance warrants in general. While it might be practical to require superior court judges to issue SLAID Act warrants without much additional imposition on their time, this would not be so if all electronic surveillance warrants were transferred to judges. 

It was noted that agencies should ensure their applications meet the relevant evidentiary and procedural thresholds, and are presented in a way that makes the work of the issuing authority as easy as possible. There was brief discussion about the duty of candour and the role of oversight. 

Support to issuing authorities 

Different ways to support the work of issuing authorities were discussed including:

• having a specialist pool of issuing authorities who received additional training and independent technical support;
• the potential use of a ‘public interest advocate’ role; and 
• the utility of feedback from an oversight body from inspections of operations that rely on warrants (including actually what happened and also inspections re candour).

There was discussion about whether technical complexity is a reason to require that the issuing authority be a superior court judge, as lower court judges and magistrates and some ART members may also have experience dealing with warrants that have technological aspects on a regular basis.   

Two existing models were discussed as examples of ways to support issuing authorities. First, the United Kingdom’s Investigatory Powers Commissioner’s Office (IPCO), which has a Technical Advisory Panel. Second, the use of an independent ‘advocate’, such as public interest monitor (PIM) in Queensland and Victoria, or the Surveillance Devices Commissioner (SD Commissioner) in New South Wales. 

In addition to the provision of independent technical advice, one attendee raised the idea of further ensuring the availability of human rights expertise throughout the whole warrant process, with a view to ensuring decision makers at each point have the best material available before them. 

IPCO

The group considered the adaptability of the UK IPCO model in the Australian context, highlighting the benefits in having dedicated technical expertise and capability to inspect warrants as part of the same office as those involved in the issuing process, in comparison to the current Australian system where reliance on judges and ART members acting their personal capacity limits access to the resources normally available to them in their official capacity. Also, in Australia there is no obvious way for oversight bodies to provide direct information (including classified information) to issuing authorities. 

The group also discussed some practical considerations that may arise when considering the IPCO model for Australia, such as the difficulty that may arise for agencies seeking warrants from a centralised body in a geographically large country when compared to the UK. It was noted that a similar model had been recommended in broad terms by the former INSLM, Dr James Renwick SC, as part of a report on the Telecommunications and other Legislation Amendment (Assistance & Access) Act 2018 and related matters (TOLA Report). 

It was noted that the ‘pool’ of retired superior court judges willing to issue warrants may be larger in the UK than it is in Australia.  There was a suggestion that retired state Supreme Court and district judges could potentially also be used, noting the value of relevant criminal law expertise. 

PIM/SD Commissioner

The group discussed whether having a PIM or SD Commissioner could assist the issuing authority when considering warrant applications as well as raise the efficiency and quality of warrant applications for law enforcement agencies. Some members expressed support of having an independent advocate. The differences between the work of the PIMs and SD Commissioner was also briefly discussed, including the greater number of applications that are reviewed by the SD Commissioner when compared to the PIMs in Queensland and Victoria, and the potential for influence over the standard and quality of warrant applications in their jurisdiction. There were some comments to the effect that while scrutiny of every warrant may be valuable it might not be necessary for the advocate to exercise their right to appear in every instance – though the issuing authority could still call for them. 

Constitutional limitations

In discussing the practicality of superior court judges being the issuing authority for SLAID Act and other similar warrants, some members of the group noted constitutional issues that would need to be considered if greater support was to be provided by courts to judges acting in their personal capacity when issuing warrants. There was also brief discussion of whether disruption warrants are more akin to a judicial role like proceeds of crime then a surveillance warrant. 

Reporting and oversight

In discussion around the need for public confidence in the use of covert powers, the issue of public reporting was raised. It was noted that there was very little detailed reporting on how the powers were used making it difficult for academics and civil liberties groups to understand and make submissions on the full impact of these warrants on privacy and human rights.

Concern was raised about what protections would be available if the police or issuing authority get it wrong. It was noted that given a person subject to a SLAID Act warrant is unlikely to find out about the warrant’s existence, there is an increased reliance on oversight bodies (the Inspector-General of Intelligence and Security and the Ombudsman). In light of this, some considered there may be benefits to increased reporting from the AFP and ACIC, as well as more overt indication from oversight bodies that they have performed inspections and reviews and found no problems with warrant usage and candour of applications. It was noted that information such as how often a human rights concern arises under a warrant, or a PIM intervention occurs may be useful. There was acknowledgment that not all information about covert warrants could be reported without undermining the utility and purpose of the warrant.

Relevant offences

The group briefly discussed the definition of a ‘relevant offence’, including whether the current general three-year offence threshold is too low. It was observed that the SLAID Act was described as being introduced to address serious online offences such as child exploitation material and trafficking and not for other offences. It was suggested that the threshold should specifically reflect the offending conduct it was introduced to combat, highlighting that this is what justifies the cost to protect the Australian community from these serious offences. Serious crime imposes substantial costs on the community, and police receive a lot of resources to combat this crime.  The cost of robust issuing arrangements is very small compared to both of these and is important to public trust in invasive police powers. 

Noting the desirability of establishing a practical and cost-effective issuing arrangement, it was observed that narrowing the relevant offences to what is needed would reduce the scope, the number of warrants and potentially even the cost associated with the system for issuing warrants. 

Handling of information collected under warrants

Special Categories

There was some discussion as to whether there are sufficient protections applicable to the collection, use, and retention of special categories of data under the warrants, such as medical information, journalist sources, data relevant to Indigenous data sovereignty principles, and in particular legal professional privilege (LPP). 

One attendee provided a practical example of the lack of understanding investigators have of LPP which undermines the confidence in the ability for lawyers and their clients to freely discuss the issue. 

Another attendee questioned whether it would be appropriate to carve out LPP as it would not be practical to tailor a warrant to specifically exclude such information. Both legal and policy protections may be needed. 

It was also suggested that, given the purpose of these warrants are to address serious cyber-enabled crime that occur outside ordinary channels of professional communication, for example on the dark web, it is unlikely that data collected will involve LPP information. An attendee raised that other targeted offences such as foreign interference could plausibly raise a connection to LPP material. 

Lifecycle of Data

The group discussed the need for IT systems to be shaped to comply with the law, rather than the law being amended to fit IT systems that were built without appropriate safeguards. 

There was discussion about the types of requirements that could be applied to the analysis, retention and disposal of data collected under SLAID Act warrants to limit intrusion to privacy. Some options included limits on the time data is held for and rules for when/how data should be reviewed to see whether it is still necessary, or should be disposed.  Transparency around data combining and who information is disclosed to (esp overseas) was also noted as potentially important. 

Non-interference Obligations 

A member of the group observed the potential international relations risks that may be associated with difficulties in identifying the physical location and ownership of data and online activities when operating in cyberspace. The group discussed whether it would be appropriate to introduce a statutory requirement to consult with the Department of Foreign Affairs and Trade, or some other non-legislative mechanism for consultation, to address concerns associated with these risks. 

Thanks and Submissions 

In closing the Monitor thanked participants for their valuable insights and again noted that this discussion was intended to be preliminary and informative.  Formal views from individuals and organisations would be included in written submissions to the review.