Media release – Cybercrime: Monitor calls for stronger safeguards

Cybercrime: Monitor calls for stronger safeguards

The Independent National Security Legislation Monitor (Monitor) has found that the main safeguard for special cybercrime powers used by the Australian Federal Police and Australian Criminal Intelligence Commission is inadequate.

The Monitor found the powers, that allow agencies to takeover online accounts, disrupt data and conduct broad network surveillance are needed but that the current system for issuing warrants is not fit for the demands of modern, covert, highly intrusive and technology-dependent police powers.

“Unlike traditional police search warrants, these cyber powers are used covertly and it’s unlikely that they will ever result in information that is used in a courtroom” the Monitor said. “They are a useful tool for disrupting cybercrime, but they can collect a lot of information, allow police to takeover on-line accounts or directly delete or alter data – all without the usual kinds of judicial and public scrutiny.”

“These cyber warrants are a powerful tool for police, but they need equally powerful safeguards to protect rights and ensure that they are only used where truly necessary”

“Our system for issuing warrants is based on one that is over 100 years old. It is unsuitable for covert and high-technology operations” the Monitor said.

Unlike many other countries, police warrants in Australia are not issued by courts. Instead they are issued by judges in their ‘personal capacity’ and by Administrative Review Tribunal members – in practice Tribunal members issue most warrants.

“Most Federal criminal warrants are issued by Administrative Review Tribunal members who issue warrants in their personal capacity on top of their main job of reviewing Centrelink, migration, child support and other administrative decisions.”

Despite the technical complexity of these warrants and a range of public interest and human rights issues, there is currently no role for public interest advocates or access to independent technical advice. In contrast, Queensland, Victoria and NSW have public interest monitors or equivalent schemes for State police warrants.

“We need a new system for issuing warrants that allows for independent technical advice and a public interest monitor” the Monitor said.

Background

The full report for this review was tabled in parliament by the Attorney-General on 1 September and is available to view. The report includes an executive summary and 21 recommendations. Further details including submissions and hearing transcripts are also available on the Identify, takeover and disrupt – special powers of the AFP and ACIC page.

About the Monitor

The Independent National Security Legislation Monitor (the Monitor) reviews the operation, effectiveness and implications of national security and counterterrorism laws. The Monitor’s reviews consider whether the laws contain appropriate protections for individual rights, remain proportionate to terrorism or national security threats and remain necessary. The Monitor has access to all relevant material, regardless of national security classification, can compel answers to questions and hold public and private hearings. The Monitor’s reports are tabled in Parliament. The Monitor does not have a complaints function, but welcomes submissions to reviews.

Mr Jake Blight was appointed as Monitor on 26 November 2023 for a three-year term. Mr Blight is the first full-time Monitor since the establishment of the role in 2010.