The ongoing creep of the surveillance state has not paused for COVID-19. Indeed, the current architects of this decades-long endeavour — Peter Dutton, Mike Pezzullo and Karen Andrews — have used the unprecedented public health crisis to quietly continue passing new draconian laws.
Since the 2001 terror attack in New York, successive Australian governments have passed at least 90 pieces of national security/counterterrorism legislation with bipartisan approval. While they purport to target terrorists, they encroach on all our rights.
Australia is not a lone wolf in this regard. Seven days after the 9/11 attacks of the World Trade Towers, United Nations Security Council Resolution 1373 encouraged member states to enact domestic anti-terror laws.
According to University of NSW law professor George Williams, Australia took up the call with greater gusto than other OECD countries, such as Britain and even the United States, in terms of the volume and reach of laws passed.
The John Howard government laid the foundations of the post-9/11 surveillance state with the Terrorism Act 2002 (Cth).
A new surveillance law reveals just how far the bow can be stretched when rights are incrementally eroded.
Identify and disrupt
The Surveillance Legislation Amendment (Identify and Disrupt) Bill 2021 passed on August 25 gives the Australian Federal Police (AFP) and the Australian Crime Intelligence Commission (ACIC) “extraordinary” powers to hack into citizens’ online accounts, even taking them over.
These new laws were drafted up when Dutton was head of the Home Affairs Department. Introducing the bill, Dutton claimed the measures were aimed at combating “child sexual abuse, terrorism and the trafficking of firearms and illicit drugs”.
But the law, which took effect in early September, goes much further. The Identify and Disrupt Bill set up a three-tiered warrant system that allows agents to hack into online accounts. The measures are pre-emptive; they can impact people who are not suspected of committing any crime.
Two of these warrants now sit in the Surveillance Devices Act 2004 (Cth). The first is the data disruption warrant, which permits agents to hack into a phone or computer and add, copy, delete or alter data, with the purported aim of disrupting a serious online offence.
The second type is the network activity warrant, which provides the means to collect data on an alleged criminal activity by spying on an online account. This data cannot be used as evidence in court, but it can spark further investigative powers.
Both warrants can be applied to a target computer, including that of a non-suspect.
Inserted into the Crimes Act 1914 (Cth) is the third type of warrant, which permits accounts to be taken over. An account takeover warrant permits the owner of an online account to be locked out of it while evidence is being gathered. Again, it could be applied to a non-suspect’s account.
Manipulating evidence
Despite government assurances that these laws will only be applied to the most severe of crimes, the warrants apply to federal offences carrying a maximum of three years prison.
Critics of the new draconian laws say they allow for authorities to intrude into peoples’ lives and manipulate the data.
“The police and spooks of Australia now have more powers and can reach further inside people’s lives and minds than the notorious Stasi of East Germany ever could”, Civil Liberties Australia (CLA) president Bill Rowlings told Green Left.
“The new law allows faceless federal agents to ‘target and destroy’ people under what is officially called the Identify and Disrupt Bill”, he said. “This awful law multiplies tenfold the powers and reach of government intrusion.”
These powers will allow intelligence agents to manipulate and omit data, Rowlings said. They will likely lead to the manufacturing of evidence, especially among police, who have been shown to wrongfully plant evidence that has led to wrongful convictions.
“Why wouldn’t they plant more ‘evidence’ to suit themselves now they are permitted to do that officially?”, Rowlings asked.
Spying on you
The bill’s explanatory memorandum states it is “anticipated that the Australian Signals Directorate (ASD) may provide assistance to the AFP and the ACIC in relation to data disruption”.
The ASD is one of the nation’s foreign intelligence collection agencies. Until now, it has been restricted from spying on domestic targets.
The chief concern here is the exceptional powers of the ASD, that does not have clear limits like those of domestic agencies.
The AFP raided News Corp journalist Annika Smethurst’s home in June 2019 after she wrote an article in April 2018 that revealed Home Affairs secretary Mike Pezzullo and defence secretary Greg Moriarty were discussing the proposal to turn the ASD on the public. At the time, Dutton was quick to deny it. But by February last year, he said such plans were close to fruition.
Then, Rowlings warned that broadening the ASD’s mandate to internal targets would lead to less transparency and accountability.
The ongoing creep
Prime Minister Scott Morrison and Andrews in June spruiked the success of the transnational crime investigation, Operation Ironside, which led to more than 220 local arrests.
They also welcomed the laws passed under the 2018 TOLA Act, which permits local agents — as well as their US and European counterparts — to foil the barriers created by encrypted data systems.
Further, the PM stated that more surveillance laws were waiting to be passed to allow intelligence and law enforcement agencies “to do their job”. The just-passed hacker legislation was one of these.
“There is not the slightest question … [that] these laws will be abused”, Rowlings said. “If what normally happens occurs, they will be used to target Aboriginal people, the poor, the homeless and the downtrodden.
“When will police and spooks target the real crooks, instead of the false hobgoblins they have created to frighten the community”, he asked?
[Paul Gregoire is a Sydney-based journalist who writes for Sydney Criminal Lawyers.]