Submission: Electronic Surveillance Reform Discussion Paper

In late 2021 the Department of Home Affairs released a Reform of Australia’s Digital Surveillance Framework Discussion Paper. The Discussion Paper includes a range of proposals to reform Australia’s laws governing electronic surveillance to be “clearer, more coherent, and better adapted to the modern world.”

Digital Rights Watch made a submission providing feedback on the Discussion Paper. In it, we emphasise human rights should be at the centre of this reform process–for what is the point of national security legislation if not to protect Australians’ rights?

In particular, we highlight the need to:

  • introduce a comprehensive federal human rights framework,
  • recognise the right to privacy at the federal level, and
  • emphasise digital security as a right of all citizens that should not be sacrified for surveillance purposes.

In our view, the new surveillance framework should:

  1. confine authorisations and warrants to the minimum necessary number of agencies and only add to this via a clear and transparent process;
  2. avoid an overly general definition for communications that does not permit nuance, respect individual rights and the capcity to tailor different powers to a demonstrated need by surveillance agencies;
  3. simplify warrants but not at the expense of the individuals’ rights, and subject them to a necessary and proportionate test;
  4. raise the threshold in the definion of a “serious criminal offence”
  5. introduce a double lock system as standard;
  6. provide for the relevant Minister should provide an annual (or more frequent) report that details the number of warrants issued under national security legislation and publish judicial records of these decisions; and
  7. prescribe an independent public intrest advocate to make submissions on any warrant application.

Read our submission in full here. [PDF]