In a statement, the Law Council described the new powers sought in the bill as "extraordinary, particularly in respect of warrant-based powers for the Australian Federal Police and Australian Criminal Intelligence Commission to engage in offensive cyber activities and online account takeovers".
The bill was introduced by Home Affairs Minister Peter Dutton. If passed, it would give the AFP and the Australian Criminal Intelligence Commission three new warrants in order that they can handle serious criminal acts online.
Law Council president Pauline Wright said there needed to be a close inspection of the stated operational case, the criteria, thresholds and process for the issuance of warrants, and the arrangements for independent oversight and review.
“There must not be any repetition of the regrettable circumstances that led to the rushed passage of the Telecommunications Legislation Amendment (Assistance and Access) Act 2018 (Cth) (TOLA), where multiple post-enactment reviews of that legislation identified a need for major amendments to fix numerous, serious defects.
“Of particular concern is the issuing of disruption warrants by members of the Administrative Appeals Tribunal, which the Law Council believes should be issued solely by superior court judges, who are appointed in their personal capacities.
“The power to issue disruption warrants should not be conferred on ordinary AAT members, as is proposed in the Bill. In this regard, Australia is already an outlier with our Five Eyes counterparts, all of whom have adopted judicial authorisation models for the issuance of surveillance warrants to their security agencies.
“The Bill will serve only to widen this gap."
The Law Council said it was in the process of reviewing the Bill and expressed the hope that a referral for inquiry and report would be made to the Parliamentary Joint Committee on Intelligence and Security.
