Privacy and Hacking Powers: Is there an Implied Right to Privacy in the Use of Computer Surveillance Powers in Australia?

Is there an Implied Right to Privacy in the Use of Computer Surveillance Powers in Australia?

Abstract

On 3 September 2021, Australia’s Commonwealth Parliament passed the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (Cth). In doing so, they added to an already expansive regime of warrants and authorisations, enabling law enforcement and intelligence officers to break into, search, seize and even destroy computers, devices, or networks. These powers are largely untested in terms of judicial appeal and administrative review and are some of the most privacy-intrusive powers given by any legislation anywhere in the world. In examining the scope and interference enabled by these powers, we conclude that officers seeking warrants to hack into or damage computers, devices or networks in Australia have an implicit duty to consider the effect of their actions on the suspect’s privacy.