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.
Documents
Submissions list
Issues paper
Research
Transcript
Submissions
Anyone interested in making a submission to this review may do so. Submissions close on 18 December 2024.
For further information on making submissions, please see Making submissions.
Hearings
Private hearings are used where evidence is sought about classified matters including information that, if made public, may prejudice law enforcement capabilities or operations. Private hearings were held on:
- 23 July 2024 (AFP)
- 29 July 2024 (ACIC)
Summaries of these private hearings can be found under the ‘transcripts’ tab in the documents section above.
A public hearing is planned for February 2025. Further details will be posted here when they are available.
Review Process
We will review and consider all submissions received by the due date. The Monitor and INSLM staff have already had a number of meetings with including government agencies, civil society groups, industry groups and academics – and will continue to do so throughout the review.
A public hearing will likely be held in February to gather further evidence on issues raised in submissions. Some private hearings with government agencies and round table meetings may also be held. Summaries of private hearings and round table meetings will be made available on the INSLM website.
Once enough information has been gathered an analysed the Monitor will prepare a report for the Attorney-General. This report will be tabled in parliament. It is difficult to predict exactly when a review will be completed, but we are working towards completing this review by April 2025.