Australia’s most invasive online surveillance and disruption powers are being deployed based on warrants issued by under-trained and overworked office holders, leading to calls for a new system that uses retired judges and public interest inputs.
Australia’s national security law watchdog this month reiterated demands for an overhaul in how the “extraordinary” hacking warrants are being issued, after the government set aside his recommendation six months ago.
Independent National Security Legislation Monitor Jake Blight’s review of the powers last year found they had been effective in disrupting crime by allowing authorities to covertly monitor people online, delete their data, and take over accounts.
But some of the powers should never have been given to one agency and missing safeguards are undermining public trust in them while risking inappropriate data collection and inadvertent damage, he warned.
“These are extraordinary and highly intrusive powers, often used covertly and supported by advanced technical capabilities,” Mr Blight told a parliamentary inquiry last week. “They’re capable of affecting large volumes of data and infringing the privacy rights of many people, including those not suspected of any wrongdoing.”
The Surveillance Legislation Amendment (Identify and Disrupt) Act passed in 2021 with bipartisan support, handing the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC) invasive powers to combat online criminal activity under new warrants:
- The data disruption warrant (DDW) allows the AFP or ACIC to modify, add, copy or delete data to disrupt online crime
- The network activity warrant (NAW) allows the AFP or ACIC to collect intelligence about a ‘criminal network of individuals’ or any person electronically connected to that network
- The account takeover warrant (ATW) allows the AFP or ACIC to seize control of a person’s accounts to gather evidence
The powers are truly novel and not all are designed to aid prosecutions. For example, the NAW is an intelligence gathering tool and has helped the ACIC identify a global criminal network operating in Australia for the first time. But this warrant can not be used in a prosecution.
The DDW can be used in evidence but aren’t expected to be because in practice they are a last resort option, allowing authorities to wipe out data in a truly novel power that raised concerns for Mr Blight.
“Data disruption, for example, is an often talked about remedy to various cyber crimes,” he said. “But we must not forget that allowing government officials to disrupt using this power allows them to do things that are otherwise unlawful inside Australia — to destroy, change or corrupt data without any effective form of judicial oversight or review. This is no small thing.”
Mr Blight recommended the DDW be restricted to the AFP to ensure they are only used when ordinary law enforcement options are exhausted.
But his main concern was the principal safeguard of the SLAID powers — how the warrants are issued in the first place.
Currently, SLAID warrants can be issued by retired judges or members of the Administrative Review Tribunal (ART). Most electronic surveillance warrants are issued by the latter and in the case of SLAID it was all of the 47 warrants and extensions issued in the nearly three years examined by Mr Blight’s review.
The ART members do this in their personal capacity and do not necessarily have specialist training in the often highly technical systems the warrants will disrupt. The body, which focuses day to day on reviewing administrative decisions, has reported issuing warrants is a distraction from this core work and adding to its backlog.
“My review found that the current warrant issuing system is not fit for purpose. It is based on a model designed over a century ago for very different, less complex powers,” Mr Blight told the inquiry.
“In practice today it relies on a small number of administrative review tribunal members acting in their personal capacity. They do not have dedicated time, specialist training, or access to independent technical advice or structured public interest input to support them in making these important decisions. I think this is a problem.”
The antiquated warrant system is driving up the risk that warrants will be issued incorrectly, leading to invasive surveillance and data collection that can undermine confidence in the powers and cause inadvertent damage, Mr Blight said.
The warrants allow the collection of data at “a volume and speed that’s extraordinary”, he warned.
“And remember that once data is gathered, it can be shared,” Mr Blight said. “It can be shared, for example, from police to ASIO, who can then share it under ASIO’s powers, or police to ASD, who can share it internationally. The cat is gone once you’ve reached that point.”
Another key difference from traditional warrants — like a search warrant — is the SLAID powers are inherently covert.
“… If that was a simple search warrant of someone’s house, the person would get served the warrant, they’d know their house was being searched, they’d know what was taken, and they would have fairly reasonable access to a lawyer to appeal, to seek an injunction, to challenge the evidence,” Mr Blight said.
“With these modern covert warrants, you’ll never know that you were searched, you’ll never know what was taken, it may never end up in a court. So that fundamental part of oversight in our system, the judicial side, is gone from covert warrants like these SLAID warrants, and increasingly from other warrants.”
Mr Blight’s review reported last September, making 21 recommendations, including modernising the warrant system.
The Albanese government agreed in full to only four, including stripping DDWs from ASIC, in part to two and “noted” the remaining 15, including the warrant system uplift.
It will delay the sunsetting of the powers by three years to make the changes and consider some of the noted recommendations as part of a wider effort to overhaul electronic surveillance laws.
Mr Blight said the government must act sooner, starting with a fit for purpose warrant system modelled on the UK and parts of Australian states’ systems.
He said the UK’s use of a panel of 15 retired judges to issue almost 10,000 warrants a year is working well for police and security services and still gives the public confidence in appropriate use.
A new Australian warranting system should also include the public interest monitor roles that have seen better levels of information considered in decisions in Queensland and Victoria, and add independent technical advisers to support judges.
More SLAID warrants are expected to be sought as more crime moves online and the powers become central to investigations, Mr Blight told the inquiry.
“There are going to be more warrants,” Mr Blight said. “There are not going to be more time in the hours of an ART member’s lunch hour to issue these warrants, or in judges’ time to issue these warrants. So now’s the time to build a system that doesn’t drain or rely on those resources.”
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