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

The Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (Cth) (SLAID Act) amended the Surveillance Devices Act 2004 (SD Act) and Crimes Act 1914 (Crimes Act) and associated legislation to introduce three new warrants for the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC). These warrants allow AFP and ACIC to disrupt serious crime online, identify offenders through intelligence gathering and to takeover online accounts to gather evidence. The Independent National Security Legislation Monitor (the Monitor) is required to review these provisions in accordance with s 6(1E) of the INSLM Act.

Key Issues

The Monitor has released an Issues Paper (available below from the ‘Document’ drop-down menu below) to provide information about how these special AFP and ACIC powers have been used and to explain key issues being considered in the review. These include:

• Use of the powers and their effectiveness at addressing current threats (Chapter 2-3).
• Who should issue the warrants and whether the current issuing arrangements to support independent issuing of warrants are appropriate, including:
  • whether there should be a public interest monitor or similar role,
  • whether it is appropriate for Administrative Review Tribunal members to continue to issue the bulk of warrants,
  • if there should be a specialist issuing body.
  • whether access to independent technical advice is needed to inform decisions about issuing such high technology warrants (Chapter 4).
• Whether the criteria for issuing warrants and authorisations is appropriate, including which offences the warrants should be available for and the breadth of terms such as ‘criminal network of individuals’ and ‘computer’ (Chapter 5).
• Possible gaps in safeguards across the life cycle of data obtained from the warrants (including how it is used, disclosed and destroyed) (Chapter 6).
• Oversight arrangements (Chapter 7).
• Public and ministerial reporting, record keeping and notification requirements (Chapter 8).
• Whether the legislative framework is consistent with international obligations (Chapter 9).

Submitters are welcome to raise other issues associated with the operation, effectiveness and necessity of the SLAID Act powers as well as the safeguards for protecting individual rights and compliance with Australia’s international obligations.

Submissions close on 18 December 2024.