Civil society has been “completely sidelined and ignored” in the inquiry into the government’s proposed new hacking powers, after no civil or digital rights groups were invited to the only public hearing, Deakin University senior lecturer Dr Monique Mann says.
The Parliamentary Joint Committee on Intelligence and Security (PJCIS) is conducting an inquiry into the Identify and Disrupt Bill, which hands sweeping powers to the Federal Police and Australian Criminal Intelligence Commission to hack into the devices and networks of suspected criminals to ‘disrupt’ their data and covertly take over their accounts.
The PJCIS held its only public hearing as part of its inquiry last week, with those providing evidence including the Human Rights Legal Centre, the Cyber Security Cooperative Research Centre (CSCRC) and the Uniting Church.
But no civil or digital rights organisations were invited to appear before the committee.
Deakin University senior lecturer and Australian Privacy Foundation surveillance committee chair Dr Monique Mann said the lack of civil society participation at the hearing was troubling.
“It’s pretty disappointing that you have the PJCIS inviting mostly pro-law enforcement, pro-government hacking advocates, across a lot of the usual suspects,” Dr Mann told InnovationAus.
“It was good to see the Law Council and HRLC, but I think there was a real lack of civil society representation, particularly given four leading civil society organisations put in a joint submission with expertise specifically in these topics, from law and academia,” she said.
“It’s really disappointing to not have engagement with civil society, particularly when you have people invited to speak at the hearing such as the Uniting Church. I would question where their substantive expertise in matters of national security and surveillance law is.”
The Identify and Disrupt legislation introduces three new warrants, allowing authorities to access and disrupt data of suspected criminals, access the networks of suspected criminal groups and take over their accounts and continue to run them.
While the government has said the warrants will be used for “online serious crimes” such as child abuse and terrorism, they will be accessible for any crime carrying a jail sentence of at least three years, which includes fraud, tax evasion and forgery.
Leading civil organisations Liberty Victoria, Electronic Frontiers Australia, Australian Privacy Foundation and the Queensland Council for Civil Liberties made a joint submission to the inquiry, raising significant concerns with the legislation and their extraterritorial application.
None of these groups were invited to address the committee directly, while many who were invited, including the Uniting Church and the Cybersecurity CRC, were supportive of the bill.
The PJCIS secretariat confirmed to InnovationAus that there are no plans for any further hearings.
Representatives from the Law Council of Australia and the Human Rights Law Council (HRLC) did address the PJCIS, raising significant concerns with the sweeping new powers. After this, the only other organisation to raise a number of issues with the legislation was the Communications Alliance.
The HRLC has labelled the powers in the bill as “absurdly broad” and disproportionate”.
It’s important for civil society to be able to offer input on these important pieces of legislation, Dr Mann said.
“It’s easy to become very discouraged about the process of introducing new laws. Civil society organisations work very hard in terms of defending, upholding and advocating the rights of citizens, so it’s very disappointing to have these perspectives founded in subject matter expertise completely sidelined or ignored from these kinds of forums,” she said.
Other organisations asked to appear at the hearing that were generally in support of the new powers were the Carl Ryan Foundation, a charity focusing on the safety of children online, the Uniting Church of Australia, and the Cyber Security Cooperative Research Centre (CSCRC).
In its submission to the inquiry, the CSCRC said the powers were proportionate, appropriate and safe.
A number of government departments and agencies also appeared before the hearing, including representatives from the Department of Home Affairs, the Australian Federal Police, the Inspector-General of Intelligence and Security and the Commonwealth Ombudsman.
In the joint submission, the coalition of civil liberties groups raised concern with how the new hacking powers will apply extraterritorially, with the warrants accessible by authorities when they don’t know who the suspected criminal is and where they are based.
“These powers effectively extend the reach of Australian law enforcement outside of the sovereign jurisdiction of Australia with significant extraterritorial impacts,” the submission said.
“In absence of a clear transnational regulatory structure supporting transnational government hacking operations in cases where the physical location of the target computer and suspect is not known these proposed laws should be reconsidered,” it said.
These concerns “strike at the heart” of the government’s legislation, and concerns about it being raised may have been why the groups weren’t invited, Dr Mann said.
“The Identify and Disrupt powers will enable Australian law enforcement agencies to conduct extraterritorial government hacking outside of the sovereign state of Australia, which is against the rule of law,” she said.
“Having critical people with expertise in this saying that would have absolutely struck at their proposal from the start – there’s no way they would’ve proceeded without recognising that.”
Without hearing from critical voices, the new hacking powers will likely be greenlit by the powerful committee and proceed easily through Parliament, she said.
“I can very much anticipate when the report is released it’s largely going to endorse these new powers, and they’re just going to pass into law like all the others,” Dr Mann said.
“They’re moving to introduce new laws that have very significant human rights implications in situations where there’s not sufficient oversight or accountability, in a really knee-jerk way and justifying them because of evil wrongdoers on the internet. But the laws aren’t limited to that application, they define a broad range of different things and could apply to journalists and academics.”
A number of other organisations have also been critical of the proposed powers, with the NSW Council of Civil Liberties labelling them a “catch-all formula for abuse” and “next in an accelerating wave, strengthening the powers of the state without any humility about the cumulative erosion of democratic freedoms they entail”.
A group of Senators also raised concerns that a “wide scope of innocent third parties” could be caught up in the coercive powers.
The Standing Committee for the Scrutiny of Bills also questioned a lack of focus on privacy, no judicial oversight and the ability for the powers to be accessed without a warrant in an emergency.