Labor members support the Committee’s report and its 34 recommendations.
We do, however, believe that Recommendation 10 can and should go further.
All members of the Committee have acknowledged that the powers in the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 are extraordinary.
The need for these extraordinary new powers has been justified by reference to the most serious types of offences. In the Explanatory Memorandum, for example, the Government has said that:
This Bill addresses gaps in the legislative framework to better enable the AFP and the ACIC to collect intelligence, conduct investigations, disrupt and prosecute the most serious of crimes, including child abuse and exploitation, terrorism, the sale of illicit drugs, human trafficking, identity theft and fraud, assassinations, and the distribution of weapons.
This statement deliberately mischaracterises the breadth of the new powers. As all members of the Committee have acknowledged, the new powers will enable the AFP and the ACIC to collect intelligence, conduct investigations, disrupt and prosecute all “relevant offences” (as defined in the Surveillance Devices Act 2004).
The definition of “relevant offence” includes all offences against the law of the Commonwealth that are punishable by a maximum term of imprisonment of 3 years or more. This includes the types of crimes listed in the Explanatory Memorandum – but it also includes tax offences, trade mark infringement and a range of other offences which do not fall within the categories of “child abuse and exploitation, terrorism, the sale of illicit drugs, human trafficking, identity theft and fraud, assassinations, and the distribution of weapons".
We are not suggesting that other types of offences are not serious. We are simply pointing out that the Government – and the agencies – have failed to make the case for why these extraordinary new powers are needed to “collect intelligence, conduct investigations, disrupt and prosecute” crimes that are not “child abuse and exploitation, terrorism, the sale of illicit drugs, human trafficking, identity theft and fraud, assassinations, and the distribution of weapons".
It is obviously much easier to justify the introduction of extraordinary powers by focusing only on the most serious crime types, especially crimes like child abuse and exploitation and terrorism. But it is incumbent on this Committee, and the Parliament, to require the Government and agencies to engage in the more difficult task of justifying the introduction of extraordinary powers by reference to how the powers could actually be used.
Labor members consider that Recommendation 10 and the other recommendations in the Committee’s report go a long way to ensuring that these new powers will only be used in relation to the most serious offending. However, in recognition of the extraordinary nature of these new powers and the way in which the Government and agencies sought to justify their introduction, Labor members think the Committee should have gone further by recommending that the references to “relevant offence” in the bill be replaced by a new concept of “serious offence”.
We note that there are a number of different definitions of “serious offence” in Commonwealth legislation. Our preference would be to adopt a definition that is broadly consistent with the definition of “serious offence” in the Telecommunications (Interception and Access) Act 1979.
Hon Anthony Byrne MP
Deputy Chair
Hon Mark Dreyfus QC MPSenator Jenny McAllister
Senator the Hon Kristina KeneallyDr Anne Aly MP