CTH Considers Bill for New Law Enforcement Powers to Identify and Disrupt Serious Online Crimes

On 3 December, the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 (Cth) (‘the Bill’) was introduced to the House of Representatives. The Bill will amend the Surveillance Devices Act 2004 and the Crimes Act 1914 for the purpose of granting three new law enforcement powers relating to serious online crimes to the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC). These new powers are:

1. data disruption warrants,
2. network activity warrants and
3. account takeover warrants.

In his Second Reading Speech, the Minister for Home Affairs, Mr Peter Dutton stated:

The Minister focused specifically on the findings of the Australian Centre to Counter Child Exploitation (ACCCE). The Minister stated that the ACCCE has identified a 163 per cent increase in child abuse material downloaded on the dark web in just three months between April and June this year compared to the same period last year.

Data Disruption Warrants

According to the Explanatory Memorandum, a data disruption warrant will provide the AFP or ACIC with a covert power to ‘add, copy, delete or alter data to allow access to and disruption of relevant data in the course of an investigation for the purposes of frustrating the commission of an offence’.

Under the Bill, a law enforcement officer of the AFP or the ACIC may apply to an eligible Judge or nominated Administrative Appeals Tribunal (AAT) member for a data disruption warrant if the officer suspects on reasonable grounds that:

• one or more relevant offences are imminent or likely to be committed, 
• those offences involve or are likely to involve computer-stored data, and
• disruption of the data is likely to substantially assist in frustrating the commission of the offence or offences.

In determining whether to issue a data disruption warrant, the eligible judge or nominated AAT member must be satisfied that the officer’s grounds of suspicion are reasonable and the warrant is ‘justifiable and proportionate’ to the offence. The judge or AAT member must also have regard to the nature and gravity of the conduct, the likelihood that the warrant will frustrate the commission of the offence, the existence of alternative means of frustrating the commission of the offence and whether any previous warrant has been sought or issued relating to the same alleged offence.

Network Activity Warrants

Under the Bill, a network activity warrant will operate as an intelligence collection tool which will permit access to devices and networks used to facilitate criminal activity in order to discover the scope of the criminal operation and the identities of involved persons. Importantly, information obtained under such a warrant will be strictly for intelligence purposes and will not be permitted to be used as evidence in criminal proceedings.

If the Bill is passed and assented, the chief officer of the AFP or the ACIC will be able to apply to an eligible Judge or nominated AAT member if there are reasonable grounds for suspecting that:

• a group of individuals are engaging in or facilitating criminal activity constituting the commission of one or more relevant offences,and
• access to data held in computers will substantially assist intelligence collection regarding the criminal network with respect to a matter relevant to the prevention, detection of frustration of the relevant offence or offences.

Account Takeover Warrants

Currently, only consensual account takeovers are permitted. If the current Bill is passed and assented, an account takeover warrant will authorise the AFP or the ACIC to perform a covert forced account takeover. However, an account takeover warrant will only authorise the action of taking control and locking a person out of their account. Accessing data, gathering evidence and other undercover activities such as assuming a false identity will require a separate warrant. Thus, an account takeover warrant is not intended to operate in isolation but instead, is granted if it is necessary for the purpose of gathering evidence however evidence-gathering activities will require separate warrants.

An AFP or ACIC officer may apply to a magistrate for an account takeover warrant. In determining whether to issue an account takeover warrant, the magistrate must be satisfied the applicant has provided reasonable grounds for suspecting that:

• one or more relevant offences have been, are being, are about to be or are likely to be committed,
• an investigation into those offences is being, will be or is likely to be, conducted, and
• taking control of the accounts is necessary for investigative purposes to enable evidence to be obtained.

Oversight

Data disruption warrants will be overseen by the Commonwealth Ombudsman, consistent with existing warrant regimes in the Surveillance Devices Act 2004 (Cth). Network activity warrants on the other hand will be overseen by the Inspector-General of Intelligence and Security (IGIS) as this is consistent with other intelligence collection powers available to other agencies such as the Australian Security Intelligence Organisation (ASIO). However, the Bill notes that the IGIS and the Commonwealth Ombudsman, since they both have functions in relation to the AFP and the ACIC, will be able to transfer matters and share information with the other body. Finally, the AFP and the ACIC will be required to make six-monthly reports to the Commonwealth Ombudsman and the Minister for Home Affairs regarding the use of account takeover warrants and annual reports to the Minister that are required to be tabled in Parliament.

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Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 (Cth) and supporting documents available from TimeBase's LawOne Service