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Electronic Surveillance Reform

​​​​Developing a new legislative framework that is clearer, more coherent and better adapted to the modern world.

The internet and digital communications have forever changed the way we live, work and do business. However, criminals, violent extremists, and other nefarious actors have continued to exploit these advances to profit from and inflict harm on our community. The existing electronic surveillance legislative framework is underpinned by technological assumptions and definitions dating back to the 1970s when the legislation was developed. Ad hoc and frequent legislative amendments have struggled to keep pace, and has created a patchwork of overlapping, and at times inconsistent and incompatible parts. This has created challenges for law enforcement and security agencies that have a legitimate need to exercise electronic surveillance powers to keep the Australian community safe.

The Comprehensive Review of the legal framework of the National Intelligence Community (Comprehensive Review), led by Dennis Richardson AC confirmed this, and found that Australia’s existing electronic surveillance legislative framework is no longer fit for purpose – it is complex, inconsistent, outdated and inflexible. Ultimately, the Comprehensive Review recommended that the Government repeal and replace the Telecommunications (Interception and Access) Act 1979, Surveillance Devices Act 2004, and parts of the Australian Security Intelligence Organisation Act 1979, with one consolidated Act (recommendation 75).

As part of the Government’s response to the Comprehensive Review, the Government committed to holistically reforming this framework. To deliver the Government’s commitment to undertake this critical reform the Department of Home Affairs established an interagency taskforce.

The taskforce comprises relevant Commonwealth policy departments, operational agencies and oversight bodies.

Obje​​ctive

The objective of this 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
  • ensures that law enforcement and security agencies have the powers they need to investigate serious crimes and threats to security
  • 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.

In developing the new framework, these objectives will be balanced against one another. It is intended that streamlining the existing framework will ultimately lead to a reduced regulatory burden.

Consul​​tation

Reforming Australia’s existing electronic surveillance legislative framework is the most significant change to Australia’s national security laws in over four decades. The process involves detailed consideration and extensive consultation with Commonwealth, state and territory agencies, industry, peak bodies, civil society groups, international partners and the community.

The Government is committed to open and iterative consultation throughout the development of the reforms. The Department will provide multiple opportunities for stakeholders to engage and give meaningful feedback. This includes releasing a discussion paper in 2021 and exposure draft legislation in 2022 for public comment. The Department will hold further consultation events, meetings and forums to facilitate dialogue with relevant stakeholders and the public. The feedback received through consultation will inform the finalisation of the bill in 2023.

Discussion paper an​​​d submissions

The discussion paper on the reform of Australia’s electronic surveillance laws is an initial opportunity for public input into the development of the new fr​amework. For more information, see submissions and discussion papers.

Interaction with other Australian Government reforms

The reform of Australia’s electronic surveillance legislative framework is a substantial long term undertaking. It is important to note that there are a number of concurrent Commonwealth legislative reforms underway that will impact the development of the new framework.

The Department will work closely across the Commonwealth to ensure that these reforms are complementary. In the interim, the Government will continue to progress targeted legislative amendments to resolve urgent gaps while the reform process is underway.