Opportunity to ‘undo’ raft of surveillance powers passed by Coalition

Denham Sadler
Senior Reporter

The restructuring of the Home Affairs Department by the new Labor government and the ongoing review of surveillance powers offers an opportunity to “undo” many of the privacy-invasive digital-focused laws passed during the Coalition’s time in power, Deakin University senior lecturer Dr Monique Mann says.

Labor this week unveiled its Administrative Arrangements Order, revealing that responsibility for the Australian Federal Police (AFP) from the Department of Home Affairs to the Attorney-General’s Department.

This comes five years after former Prime Minister Malcolm Turnbull moved the AFP into the new Home Affairs super-portfolio.

The new order “transfers responsibility for criminal justice, law enforcement policy and operations, and protective services from the Home Affairs portfolio to the Attorney-General’s portfolio”.

Clare O’Neill has been appointed as the new Minister for Home Affairs and Cyber Security.

The former Coalition government passed a number of digital surveillance laws during its recent time in government through Home Affairs, handing significant new powers to the AFP and other agencies. These included the mandatory metadata retention laws, encryption-busting powers and the Identify and Disrupt Act.

While in Opposition, Labor offered support to all of these pieces of legislation, which the Coalition argued were about national security.

This transfer of power away from Home Affairs, along with the ongoing review into Australia’s surveillance laws, presents a significant opportunity to unwind some of these digital law enforcement powers, Dr Mann said.

“Home Affairs as a super agency under [former minister Peter] Dutton in particular was a terrible bureaucratic structure in relation to having all of these agencies in this super department, with some concerning issues in relation to independence. It’s good that’s starting to perhaps be wound back, but what that looks like and how it operates in practice we don’t know,” Dr Mann told InnovationAus.com.

“This is an opportunity to potentially undo all the things passed under the Liberal government, but I’m also a bit reticent that there will be any substantive change because all these laws were passed with bipartisan support from Labor.

“The broader reform process underway is an opportunity to undo or reconsider the legal framework governing the exercise of surveillance powers in this country. This is a viable opportunity to make changes and I’ll be interested to see the extent to which Labor diverts from their predecessors and starts making meaningful reform that protects the rights of citizens as opposed to the empty arguments in relation to national security.”

A more significant change would be to remove ministerial discretion and decision-making in relation to these surveillance powers, Dr Mann said.

“A lot of the surveillance laws aren’t authorised by a judge or a superior court, they’re left to ministerial authorisations. On the whole, moving the AFP out of Home Affairs is breaking up some of this centralised law enforcement power and separating out law enforcement from intelligence agencies, that’s good,” she said.

“More broadly though, rather than attempting to deconstruct this bureaucratic mess of Home Affairs, what actually needs to happen is the rolling back of ministerial executive power and replacing it with judicial and independent oversight. Moving it out doesn’t solve some of those issues in that the laws are still approved by the minister.”

Australian Lawyers Alliance national criminal justice spokesperson Greg Barns welcomed the transfer of AFP out of Home Affairs.

“The culture at the AFP needs to change. Raids on journalists and the embrace of the aggressive law enforcement culture of Home Affairs has undermined the commitment of the AFP to the rule of law,” Mr Barns told InnovationAus.com.

“The new Attorney-General Mark Dreyfus has committed to restoring the culture of law enforcement, which we welcome.”

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