When good is not good enough: evaluating the proportionality and necessity of the Australian government hacking warrants

Abstract

ABSTRACT In August 2021, the Commonwealth government passed the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (Cth), authorising warrants that enable government hacking for investigation of past or future crimes. This article analyses the Act to understand the potential intrusions of data disruption warrants on the privacy of individuals. Taking the importance of privacy as extending beyond the individual to the collective political health of the community, it assesses whether the intrusions on privacy by data disruption warrants are limited to what is necessary to address problems that are demonstrated by the government, and whether its use is limited to what is proportionate to achieve these legitimate aims. The analysis reveals there has been some attempt by the government to ensure necessity and proportionality. However, there are significant shortcomings to these safeguards that must be ameliorated. Further, the analysis demonstrates that the government justified these new powers with disproportionate reference to the need to curb online child sexual exploitation. The Act offers a compelling case study of securitisation of online child sexual exploitation to legitimate wide-ranging changes to digital surveillance powers. Recommendations are made for the urgent improvement of the Act.