House of Representatives

Second Reading Speech

Mr DUTTON (Dickson - Minister for Home Affairs)

I move:

That this bill be now read a second time.

The Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 will enhance the powers of Commonwealth law enforcement agencies to help combat serious crimes perpetrated using anonymising technologies and the dark web.

As technology has changed, so too has the tradecraft of criminals.

Multiple layers of technologies that conceal the identities, IP addresses, jurisdictions, locations and activities of criminals are increasingly hampering investigations into serious crimes. This includes child sexual abuse, terrorism and the trafficking of firearms and illicit drugs.

Online anonymity, combined with less-traceable cryptocurrencies, allows criminals to trade in the most abhorrent online marketplaces with perceived impunity.

But these activities are not going unchecked.

The recently established Australian Centre to Counter Child Exploitation (ACCCE), working alongside the Australian Federal Police and partner agencies, is targeting the depraved and hidden world of online child sexual abuse, including the pay-per-view and live streaming crime types.

The AFP and ACCCE work closely with state and territory and international partners to dismantle networks of child sex offenders.

In the past 12 months, the ACCCE has intercepted and examined more than 250,000 child abuse material files. Of these, 44 referrals were made to ACCCE's victim identification team, making up more than 4,000 images and 2,200 videos.

As a result of AFP investigations between 1 July 2018 and 30 September 2020, there have been 302 arrests with 2,334 charges laid and, most importantly, 229 children removed from harm. That includes 113 domestically and 116 internationally.

I commend in the strongest possible terms the men and women of the Australian Federal Police, ACCCE and partner law enforcement agencies and all of the staff within the department who provide support to the work of these officers on their collective outstanding work to date and the lives they have saved.

Unfortunately, though, the threat continues to grow.

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.

As a government, we are determined to provide our agencies with all reasonable powers necessary to protect the lives of children and to protect the Australian public from criminals acting anonymously online to perpetrate other serious crimes.

This bill will allow the Australian Federal Police (AFP) and the Australian Criminal Intelligence Commission (ACIC) to shine a light into the darkest recesses of the online world and hold those hiding there to account.

Specifically, it provides the AFP and ACIC with three new powers.

First, the bill provides a new power to collect intelligence through access to online networks. This power will allow investigators to identify offenders and the scope of their offending online, including on the dark web.

Second, the bill will allow agencies to disrupt criminal activity where they see it occurring online. This will allow authorities to limit ongoing criminal activity and protect individuals from further victimisation.

Finally, the bill will allow agencies to take control of a person's online account for the purpose of gathering evidence to expose online criminality.

The AFP and ACIC's existing computer access warrants are not designed to address the new threats perpetrated by the increased use of anonymising technologies by large networks of criminals operating in the online environment. These powers are limited to evidence gathering for particular investigations. The proposed network activity warrant will provide the AFP and ACIC with a new intelligence collection power that will enable them to build a picture of how criminal networks are operating online and inform future investigations.

Network activity warrants will allow officers to access networks being used by criminal gangs whose members are suspected of being involved in serious online offences. This warrant will be available where the members' identities are unknown to authorities, allowing the suspects' online identifying information to be collected as the first step in an investigation.

Consistent with existing powers in the Surveillance Devices Act, a network activity warrant may be issued by an eligible judge or nominated AAT member. A judge or an appropriate AAT member will need to be satisfied there are reasonable grounds to suspect a group is a criminal network and access to the group's computers will substantially assist in collecting intelligence relating to the group's activities. The intelligence must be relevant to the prevention, detection or frustration of an offence with a maximum penalty of at least three years imprisonment.

As this is an intelligence collection power, any information collected using these warrants will not be admissible in criminal proceedings. This ensures the data will only be used to enhance agencies' intelligence picture and inform further investigations.

Criminal offences will apply to any unlawful disclosure of information collected using a network activity warrant, and additional safeguards will protect legitimate users from interference with their devices.

The Inspector-General of Intelligence and Security (IGIS) will ensure rigorous oversight over this power. This is appropriate given this power is limited to the collection of intelligence rather than evidence. IGIS oversight will ensure these warrants are closely scrutinised and agencies act with legality, propriety and in line with human rights obligations.

A data disruption warrant will allow the AFP and ACIC to remotely modify data held in computers to frustrate the commission of relevant offences. For example, investigators who become aware of child abuse images being shared online will be able to modify or delete that material to prevent its further spread. This will halt the further victimisation of children in the images while police work to bring their abusers to justice.

A judge or AAT member will need to be satisfied there are reasonable grounds for suspecting that a criminal offence is being committed, and disruption is necessary and proportionate to the seriousness of the offence.

These powers will be accompanied by robust safeguards to ensure they are exercised with due care and consideration for the property of third parties. Data disruption warrants are limited to interference with data and cannot be used to damage physical property or confiscate funds.

Oversight of the disruption activities will be conducted by the Commonwealth Ombudsman. This is consistent with the general oversight arrangements for the activities of these agencies under similar computer access powers.

Currently, law enforcement cannot use information obtained under an investigatory power to facilitate an account takeover. The account takeover power will allow officers to take over online accounts and gather evidence about a person's online criminality and their associates' activity. This power will allow law enforcement to uncover identities of individuals operating online and identify potential victims.

Through the new account takeover warrant, AFP and ACIC will be authorised to take control of a person's online account to gather evidence leading to prosecutions of a serious offence. Officers will also be able to gather evidence about the activity of a person's associates.

For example, current powers enable an AFP officer to obtain a password to a forum account that can be accessed through a device if the device is suspected to be used to distribute child abuse material. This does not allow taking full control of their online account. The account takeover power will enable an officer to obtain exclusive control of the online account and prevent the person's continued access to a forum and the further dissemination of child abuse material.

A magistrate will need to be satisfied there are reasonable grounds for suspicion an account takeover is necessary for the purpose of gathering evidence for a serious offence. The nature and extent of the suspected criminal activity must justify the account takeover.

An account takeover warrant is limited to activities necessary to take control of an online account. When issuing a warrant, the magistrate must consider the existence of alternative means of obtaining the evidence sought and the extent to which the privacy of any person is likely to be affected.

Law enforcement officers are required to restore access to the holder of the target account upon expiry of the warrant, if the account is lawful, such as a social media or internet banking account.

The Commonwealth Ombudsman will provide oversight of the AFP and ACIC's use of the account takeover powers. This is consistent with the general oversight arrangements for the activities of these agencies.

The Ombudsman is required to inspect agencies' records and report to the Minister for Home Affairs every six months. This report must be tabled in parliament.

Respective agencies will also be required to provide statistics relating to the use of data disruption warrants, network activity warrants and account takeover warrants in annual reports to the minister. For data disruption warrants and network activity warrants, this information will be included in the Surveillance Devices Act annual report, and for account takeover warrants, this information will be included in the Crimes Act annual report. The minister is required to table the reports in parliament.

These key new powers are critical in enabling law enforcement to tackle the fundamental shift in how serious criminality is occurring online. Without enhancing the AFP and ACIC's powers, we leave them with outdated ways of attacking an area of criminality that is only increasing in prevalence. This bill demonstrates the government's commitment to equipping the AFP and ACIC with modern powers that ensure serious criminality targeting Australians is identified and disrupted as resolutely in the online space as it is in the physical world.

In conclusion, I want to commend the work of the officers in particular who have been involved in the department in compiling the work associated with this bill. I'm supported by a fantastic group of professional individuals within the Department of Home Affairs and within the agencies within the Home Affairs portfolio. But in particular today I wish to recognise Andrew Warnes and Jessica Bock for their work and the work of their team, for their professionalism, and for the way they have worked tirelessly to bring this bill to fruition. Our country will be a safer place when this bill passes and is implemented and utilised by the AFP and the ACIC. The officers of the home affairs department, including Andrew, Jessica and their team, should be incredibly proud of the work that they have put together to enable this bill to be presented here to the parliament.

I commend the bill.

Debate adjourned.