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| Australian LNP MP for Warwick George Christensen exercising the peculiar form of free speech fully endorsed by his prime minister, Scott Morrison IMAGE: @maxiedexter |
The Age, 21 January 2021:
When Prime Minister Scott Morrison was invited to condemn far-right conspiracy theories promoted by government members such as George Christensen, he refused. He defended another Liberal backbencher, Craig Kelly, who undermined the government's health message by spreading false information about COVID-19. "There's such a thing as freedom of speech in this country and that will continue," Morrison said.
In fact, there are severe constraints on free speech in Australia, more so than in North America or Western Europe. The Coalition government's 2018 security laws make it an offence to leak, receive or report a wide range of "information, of any kind, whether true or false and whether in a material form or not, and includes (a) an opinion and (b) a report of a conversation". Another clause makes it a serious crime to say anything that harms "Australia's foreign relations, including political, military, and economic relations". Even if ministers should sometimes be circumspect, other people should be free to criticise any country without resorting to disinformation.
Jail sentences for some offences can be 15 or more years, even when little genuine harm results. There is no recognition that leaked information has never killed anyone in Australia. In contrast, secret intelligence generated by Australia and its allies has led to innocent people, including children, being killed in Afghanistan and elsewhere.
Parliamentarians have endorsed the serious erosion of core liberties. The rot set in when they abjectly acquiesced in the Australian Federal Police's raid on Parliament House in 2016, with police accessing IT systems and seizing thousands of non-classified documents to search for the source of leaks to a Labor opposition frontbencher. The leaks revealed problems with rising costs and delays in the National Broadband Network - information that should have been public.
In an earlier era, ASIO and the AFP would never tap phones in Parliament House, let alone raid it. The Parliament should have found the AFP in contempt. Instead, politicians squibbed it.
Last July, the AFP recommended charging ABC journalist Dan Oaks, co-author of the 2017 series "The Afghan Files", which exposed alleged war crimes committed by Australian special forces in Afghanistan. In October, the prosecutor declined to proceed. The law should clearly state the AFP should not pursue a journalist acting in the public interest.
Undeterred, the government is pushing for more powers that undermine free speech and civil liberties. Its International Production Orders bill would give ASIO and the AFP the right to order communications providers in "like-minded" countries to produce any electronic data they request and remove encryption. One downside is that the FBI and a wide range of US security bodies would have reciprocal rights to access private data held by Australian people and corporations. A big stumbling block is that the US law, called the CLOUD Act, prohibits other countries accessing data if they have weaker privacy and civil liberties protections than the US. Australia falls into that category.
Last month, Home Affairs Minister Peter Dutton introduced a bill creating extraordinary powers to affect a wide range of people, not just paedophiles as the government claims. The bill covers all crimes with a jail sentence of three or more years. This includes whistleblowers and journalists and innocent people expressing an opinion that falls foul of foreign influence laws.
If passed, Dutton's bill will give the AFP and Australia's Criminal Intelligence Commission the ability to covertly take over a person's online account to gather evidence of a crime. These proposed new powers should be severely curtailed.
BACKGROUND
InnovationAus, 7 December 2020:
The federal government last week introduced legislation handing new powers to the Australian Federal Police (AFP) and Australian Criminal Intelligence Commission (ACIC) to hack into the computers and networks of those suspected of conducting criminal activity online, specifically targeting the dark web.
The bill introduced three new warrants, allowing authorities to “disrupt” data of the suspected offenders, to access their devices and networks to identify who they actually are, and to take over their accounts covertly.
The laws were introduced without any consultation and with little fanfare from the government, and were quickly met with widespread concerns, and comparisons with the highly controversial anti-encryption powers, which were passed in a rush in the last days of Parliament in 2018.
The Law Council of Australia said the “extraordinary” powers needed to be subject to proper review and oversight and must be referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS).
A Home Affairs spokesperson confirmed the bill would be referred to the PJCIS and would be debated in Parliament after a report is tabled.
“It is important for the PJCIS to consider this critical and complex piece of legislation, the spokesperson told InnovationAus.
The new powers point to authorities wanting to conduct “poisoned water hole” operations, where police or other agencies take over an illegal platform or service on the dark web and continue to operate it in order to obtain the identities of its users.
The network activity warrants in the new bill would allow the AFP to access the device and networks of groups or individuals suspected of taking part in criminal activity online, but whose identities they do not know.
They serve to “target criminal networks about which very little is known”. These warrants would be issued by an eligible judge or member of the Administrative Appeals Tribunal.
Information obtained under one of these warrants could be the subject of derivative use, the explanatory memorandum said, which means it could be cited in an affidavit on application for another investigatory power, such as the issuing of another warrant.
These warrants could be used in combination with the new account take over warrants, which would allow the AFP and ACIC to take over the online accounts of individuals suspected of taking part in criminal activity, covertly and without consent, and would be approved by a magistrate.
The legislation unveiled last week by the government also included “minor amendments” to the Controlled Operations Act, scrapping a requirement that the illicit goods used by authorities as part of an “online controlled operation” be under their control at its conclusion.
This means that if an undercover AFP officer is posing as a drug dealer, any drugs used in the operation must still be in their control at the end of the operation.
“This is intended to address how easy data is to copy and disseminate, and the limited guarantee that all illegal content will be able to be under the control of the AFP and ACIC at the conclusion of an online control operation,” the explanatory memorandum said.
According to Deakin University senior lecturer in criminology Dr Monique Mann, these changes point to the government looking towards “poisoned water hole” operations, where authorities take control of a criminal platform or marketplace and then continue to operate it in order to gather information on its users.
“The amendments to those laws, combined with the computer network operations powers and capabilities, indicates to me that they want poisoned water hole operations,” Dr Mann told InnovationAus.
“Effectively this is giving law enforcement the ability to conduct extraterritorial government hacking of websites around the world, that they don’t know where they are, which is beyond the legal authority of Australian law enforcement,” she said.
“They will potentially be running poisoned water holes and hacking companies where they’re not sure where they are located. That has significant extraterritorial implications for due process for suspects.
“Because they’re going for an expansion of hacking and account takeovers, it shows they’re going to hack into them, take them over and continue to run them as controlled operations. This suite of powers combined in this way is for poisoned water holes, it’s pretty clear.”.....
Australian Parliament, Parliamentary Business, 3 December 2020:
Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020.
Referred to Parliamentary Joint Committee on Intelligence and Security on 8 December 2020.
Note:
Under the amendments found in the aforementioned bill, essentially a member of the Australian Federal Police can telephone an eligible judge and verbally request a Data Disruption Warrant based on the vague requirement of "reasonable grounds".
Likewise a Network Activity Warrant can be granted by a judge or AAT member which is "unsworn" and an Account Takeover Warrant can be granted by a magistrate over the phone - again based on "reasonable grounds".
Nowhere in this bill is a request for such a warrant restricted to activities on so-called 'dark web' sites as is implied by Minister for Home Affairs Peter Dutton, nor does the type/level of Commonwealth or State "serious offence" on which the bill relies to trigger federal government hacking of an individual's digital devices, web sites or social media/chatroom accounts appear to exclude communications by/with journalists, whistleblowers or political/environmental activists acting in good faith.
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