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The newly passed Surveillance Legislation Amendment (Identity and Disrupt) Bill 2020 (Cth) has provided the Australian Federal Police (AFP) with new powers to infiltrate and disrupt online crime. 

The Bill establishes three principal powers that will “bolster authorities’ ability to keep up with evolving technologies to protect Australians.” These three powers are categorised as warrants and include the following: 

  1. Network activity warrants: which enable the AFP to virtually intercept criminal information online; 
  2. Data disruption warrants: which grant the AFP to ability to modify, add, copy, or delete data if it will prevent the execution of serious criminal offences online; and 
  3. Account takeover warrants: which permit the AFP to take command of online accounts and utilise this warrant in conjunction with other investigatory powers. 

Commentators have in the past come forward to raise concerns over the Bill’s intrusive nature and the low bar of authorisation for granting of these warrants. The network activity and data disruption warrants must be issued by an eligible judge or nominated member of the Administrative Appeals Tribunal, whereas the account takeover warrants only need to come from a magistrate. Moreover, the threshold for authorisation of these warrants is merely a belief of a ‘relevant offence’, which is loosely defined as a ‘serious Commonwealth offence’. Accordingly, many have argued that the government has failed to implement any safeguards in situations of data mismanagement and handling. To quell these concerns, Home Affairs Minister, Karen Andrews, introduced a sunset clause amendment to note that these surveillance powers expire after five years of operation. This is designed to create a “reasonably necessary and proportionate” level of concern to warrant data disruption and account surveillance. Additionally, a public interest test has been established for media personnel as extra protection for individuals working in a professional capacity as a journalist. 

Labor MP Andrew Giles noted that even tax offences or trademark offences may enliven the law, which is why many are worried that the AFP may have the power to circumvent the traditional regulatory framework and become overly intrusive. This becomes especially problematic for notions of free speech and privacy. 

The Independent National Security Legislation Monitor will have the ability to review the Bill after three years and the Parliamentary Joint Committee on Intelligence and Security Bill after four, but until then, it will be interesting to see how this new law proves to operate in the real (or digital) world.

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