26 Jan Reform of Australia’s electronic surveillance framework

The Australian Government has committed to reform Australia’s laws governing electronic surveillance. This is the most significant change to Australia’s national security laws in over four decades.

The process involves detailed consideration and extensive consultation with Commonwealth, state and territory agencies, industry, peak bodies, civil society groups, international partners and the community.

Consultation

As the first step in public consultation, the Government has released the Reform of Australia’s electronic surveillance framework  discussion paper. The paper provides an overview of how the Government proposes to reform Australia’s electronic surveillance legislative framework.

The intention

The intention of the reform is to develop a new legislative framework that is clearer, more coherent and better adapted to the modern world.

The existing electronic surveillance legislative framework is underpinned by technological assumptions and definitions dating back to the 1970s when the legislation was developed. Ad hoc and frequent legislative amendments have struggled to keep pace, and have created a patchwork of overlapping, and at times inconsistent and incompatible parts. This has created challenges for law enforcement and security agencies that have a legitimate need to exercise electronic surveillance powers to keep Australian safe.

The Richardson Report

The Comprehensive Review of the legal framework of the National Intelligence Community (Comprehensive Review), led by Dennis Richardson AC confirmed the need for reform, and found that Australia’s existing electronic surveillance legislative framework is no longer fit for purpose – it is complex, inconsistent, outdated and inflexible. Ultimately, the Comprehensive Review recommended that the Government repeal and replace the Telecommunications (Interception and Access) Act 1979, Surveillance Devices Act 2004, and parts of the Australian Security Intelligence Organisation Act 1979, with one consolidated Act (recommendation 75).

Objective

The objective of this reform is to develop a new single Act that:

• • • Better protects individuals’ information and data, including by reflecting what it means to communicate in the 21st century;
    • Ensures that law enforcement and security agencies have the powers they need to investigate serious crimes and threats to security;
    • Is clear, transparent and usable for operational agencies and oversight bodies, as well as industry who need to comply with the obligations of the framework;
    • Is modernised, streamlined and as technology-neutral as possible, by updating key concepts and clearly identifying the agencies that can seek access to information; and
    • Contains appropriate thresholds and robust, effective and consistent controls, limits, safeguards and oversight of the use of these intrusive powers.

In developing the new framework, these objectives will be balanced against one another. It is intended that streamlining the existing framework will ultimately lead to a reduced regulatory burden.

Interaction with other Australian Government reforms

The reform of Australia’s electronic surveillance legislative framework is a substantial long-term undertaking. It is important to note that there are a number of concurrent Commonwealth legislative reforms underway that will impact the development of the new framework.

The Department of Home Affairs will work closely across the Commonwealth to ensure that these reforms are complementary. In the interim, the Government will continue to progress targeted legislative amendments to resolve urgent gaps while the reform process is underway through to 2023.

Privacy

Surveillance is a diminution of privacy. Concurrent with electronic surveillance reform in December 2019 the Attorney-General announced that the Australian Government would conduct a review of the Privacy Act 1988. This review was announced as part of the Australian Government response to the Australian Competition and Consumer Commission’s Digital Platforms Inquiry. We refer you to our ICT Insider Australia November 2021 article to understand the extent of related and equally significant reform currently underway in Australia, including eSafety which so clearly demonstrate the need to balance privacy and access to information through surveillance for the prevention of crime.

Related Australia – US – UK Events

Australia – US Cloud Agreement

In December 2021 Australia and the United States signed a landmark agreement that will facilitate access to electronic data for investigations of serious crime, including terrorism and child sexual abuse. The agreement is authorised by the Clarifying Lawful Overseas Use of Data (CLOUD) Act, a bill the US Congress passed in 2018.

The CLOUD Act Agreement will help ensure Australian and US law enforcement agencies are able to timely access electronic data to prevent, detect, investigate and prosecute serious crime, including child sexual abuse, ransomware attacks, terrorism and the sabotage of critical infrastructure over the internet.

Australia – UK Cyber and Critical Technology Partnership

On 20 January 2022 Australia agreed a Cyber and Critical Technology Partnership with the United Kingdom that will help shape a positive technology environment and maintain an internet that is open, free, peaceful and secure.

The partnership outlines four key areas for closer cooperation:

• • • Tackling malign actors;
    • Promoting values and a positive vision for technology;
    • Strengthening global technology supply chains; and
    • Harnessing technology to solve global challenges.

Request for public submissions – Australia’s electronic surveillance framework

The Department of Home Affairs welcomes submissions in response to the Reform of Australia’s electronic surveillance framework discussion paper.  The closing date for submissions to the discussion paper is 5.00pm AEDT on 11 February 2022.

Consultation and timing

The Government is committed to open and iterative consultation throughout the development of the reforms. The feedback received through consultation will inform the finalisation of the bill in 2023.

Discussion paper and submissions

The discussion paper on the reform of Australia’s electronic surveillance laws is an initial opportunity for public input into the development of the new framework. If you would like assistance in formulating your response, please contact us.