We should be wary of plans to extend cyber spy agency's powers: Deakin expert

Deakin School of Humanities and Social Sciences researcher Dr Adam Molnar studies the use of technology-led surveillance strategies in response to crime and terrorism and the implications for law, cybersecurity policy, and human rights.

He said the private sector, government, and Australian citizens should be incredibly wary of the vague proposals put forward to extend the powers of the Australian Signals Directorate (ASD).

“The changes being proposed look to address extraordinarily complex problems with significant technological and legal implications,” Dr Molnar said.

“It's vital to bring careful and nuanced consideration to how we task various agencies operating in digital environments when it comes to criminal investigation, national security, and enhanced cybersecurity.”

​Dr Molnar explained that the ASD currently has powers to conduct foreign signals intelligence and maintain the security of Australia's critical infrastructure with their primary aim to collect information and produce intelligence on 'non-Australian' targets as a means to address national security interests.

​“While there is certainly a need to continually evaluate the mandate of the ASD, there is no clear need to expand their powers in law at this stage, as was recently echoed by Foreign Affairs Minister Bishop,” he said.

“While the proposal suggested by Home Affairs Minister Dutton is short on concrete details, some of what was mentioned appears to replicate existing powers of other agencies.

“A case in point is what Minister Dutton has suggested on a murky 'cyber effects' power to shut down systems in addressing organised crime, terrorism, and child pornography.

“ASIO already has powers for 'domestic disruption' through their use of 'computer access warrants' (s.25 of the ASIO Act), and can enlist technical assistance from ASD to do so based on an executive agreement between the Attorney-General and the ASD, so this particular proposal seems to raise many more questions and concerns than it does answers at this stage.”

Dr Molnar said even the current arrangement where ASIO uses these very drastic powers of disruption are at present highly problematic from a rule of law, human rights, and due process perspective.

“First, authorisation of these powers to 'add, modify, or delete' information in devices comes from executive authorisation from the Attorney-General and not through an outside power like the judiciary,” he said.

“Further, in a jurisdiction without a meaningful bill of rights, current legislation lacks the necessary wording that would lawfully require a narrow and proportionate application of this law.

“For this reason, as Australia moves into an increasingly digital age, it seems essential that a constitutional bill of rights should accompany these developments.”