Review of electronic surveillance laws

By Tom Ravlic

December 7, 2021

Dennis Richardson
Former secretary of the Department of Defence Dennis Richardson. (AAP Image/Mick Tsikas)

The federal government has announced a detailed review of laws related to electronic surveillance in order to determine what can be done to make it easier for law enforcement and intelligence agencies to track and apprehend bad actors.

This review of electronic surveillance follows numerous appearances by Mike Burgess, the director-general of the Australian Security Intelligence Organisation, before parliamentary committees and in the media during which he outlined concerns about ASIO’s inability to track certain extremist actors online.

A discussion paper called Reform of Australia’s electronic surveillance released by the Department of Home Affairs this week for public comment places the concerns of ASIO and other law enforcement agencies at the centre of the review.

It says that there are times when access to specific information is required by agencies to protect the community from “serious crimes and threat”.

“Without access to this information, law enforcement agencies could not prevent and prosecute the most serious criminal activities, such as child sexual abuse, organised crime and cybercrime,” the discussion paper says.

“For ASIO, access to this information and data is critical to protect Australia from serious national security threats, such as terrorism or foreign interference with our democratic institutions.”

Electronic surveillance issues are covered by a range of laws including the Telecommunications (Interception and Access) Act 1979, the Surveillance Devices Act 2004, and part of the Australian Security Intelligence Organisation Act 1979.

“These Acts protect several different kinds of information and data from unauthorised access, and only allow government agencies to lawfully access information and data in limited circumstances,” the discussion paper says.

“The Acts also require companies that own telecommunications infrastructure and provide telecommunications services, to protect this information and to assist government agencies to gain access to it in certain circumstances.”

Dennis Richardson, the former secretary of the Department of Defence, reviewed the existing framework in a review of the legal framework for the intelligence community.

Richardson found that the laws currently in place were outdated, inconsistent, complex and inflexible.

“This puts at risk the effectiveness of protections for people’s information and data, and the proper governance of agencies who access this information,” this discussion paper says.

“It also creates difficulties for agencies when investigating serious criminality and threats to national security.”

The federal government has set a submission deadline of 11 February 2022 for interested parties wanting to comment on the discussion paper.


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