Reform of Australia’s electronic surveillance framework

Australia’s laws governing electronic surveillance are undergoing major reform.

The reform aims to establish clear laws to enable law enforcement and intelligence agencies to access information in response to serious crime and threats to national security. The laws will:

• protect privacy; 
• promote transparency; and 
• be explicit for agencies, oversight bodies, industry and the public.

An interagency taskforce in the Attorney General’s Department is progressing this work. It comprises policy departments, operational agencies and oversight bodies from across the Commonwealth. Prior to 1 July 2022 this work was led out of the Department of Home Affairs.

Why is reform required?

The internet and digital communication have changed the way we live, work and do business. Our laws need to keep pace with these changes.

Law enforcement and intelligence agencies have powers to conduct electronic surveillance and access information in order to do their job. However, current laws are outdated and may be confusing due to their complexity. They are based on outdated technological assumptions and definitions; some dating back to the 1970s. While important legislative amendments have been over the last 40 years this has created a patchwork of overlapping laws; some of which are now inconsistent and incompatible in parts.

Criminals, violent extremists, and other nefarious actors are quick adopters of new technology. The law should be able to accommodate advances in technology. Reform is needed to ensure agencies can continue to keep the Australian community safe, and that the use of electronic surveillance is proportionate.

What will the reform achieve?

The Comprehensive Review of the legal framework of the National Intelligence Community (Comprehensive Review), led by Dennis Richardson AC recommended the current law be repealed, and replaced with a single tech-neutral Act (recommendation 75). The Telecommunications (Interception and Access) Act 1979, Surveillance Devices Act 2004, and parts of the Australian Security Intelligence Organisation Act 1979, will be repealed as part of the reforms.

The objective of reform is to develop a new single Act that:

• better protects individuals’ information and data, including by reflecting what it means to communicate in the 21st century,
• is clear, transparent and usable for operational agencies and oversight bodies, as well as industry who need to comply with the obligations of the framework,
• is modernised, streamlined and as technology-neutral as possible, by updating key concepts and clearly identifying the agencies that can seek access to this information,
• contains appropriate thresholds and robust, effective and consistent controls, limits, safeguards and oversight of the use of these intrusive powers, and 
• ensures that law enforcement and security agencies have adequate and proportionate powers that enable them to identify, disrupt and investigate serious crimes and threats to security.

Where is the reform work up to?

The reform of Australia’s electronic surveillance legislative framework is a significant long-term undertaking. The Government will continue to consult with stakeholders as part of the development of the reforms and while it prepares the draft legislation.

Further information

For further information or assistance please contact:
ElectronicSurveillanceReforms@ag.gov.au