Concern that recommendations to add crucial safeguards to the surveillance bill have been ignored
The Law Council of Australia is concerned that the Bill 2020 amending the surveillance legislation (identify and disrupt) as passed today has failed to adopt the main recommendations of the Joint Parliamentary Committee on Intelligence and Security (PJCIS) which included the implementation of essential safeguards.
The Chairman of the Legal Council, Dr Jacoba Brasch QC, said: “the failure to implement the Committee’s recommendation that there will be judicial issuance of the new extraordinary warrants is particularly disappointing”.
“The Law Council considers that the important extent and the intrusive scope of these mandates require the examination of the judicial officers, as recommended by the PJCIS.
“These warrants have the potential to cause significant loss, damage or disruption to legitimate computer users who are not suspected of wrongdoing.
“While Legal Counsel understands that there is an intention to address these issues in the longer-term development of the new electronic surveillance legislation, the PJCIS recommendations were specific to the three new mandate-based powers in this legislation, which are new, extraordinary and intrusive.
“The Law Council agrees with the PJCIS that all of its recommendations – and in particular those relating to the judicial issuance of warrants – are essential to the reasonable and proportionate exercise of the new powers and to the public’s confidence in their exercise in law. any time of the time these powers are in effect.
“Postponing review and implementation for an indefinite period, potentially years, does not provide any meaningful guarantee or assurance.
“Despite the disappointment, the Legal Council recognizes that several of the changes made to the legislation during the parliamentary debate implement the valuable safeguards recommended by the PJCIS, which in turn endorses the recommendations of the Legal Council made during its investigation.
“This is particularly the case for issuance criteria, including the insertion of explicit thresholds of necessity and proportionality, and requiring specific consideration of potential impacts on legitimate computer users who are not suspected of wrongdoing. “