Remote Access Recommendation

22 09 2014

New recommendations looking into Victorian counter-terrorism laws could see police investigators given the power to add, delete or copy data from target computers, if they believe it could prevent a terrorist act.


A recently conducted review of Victorian counter-terrorism laws has seen thirteen recommendations made for changes to the state’s counter-terrorism measures. The Review Committee consisted of former County Court judge David Jones, retired Lieutenant General Mark Evans and former Deputy Commissioner Kieran Walshe.


The government has backed eight of the thirteen recommendations, with a further four supported ‘in principle’. Among those that have been supported, is the recommendation to amend the Terrorism (Community Protection) Act 2003 (Vic) to allow police remote access to data held on a target computer where there are reasonable grounds to believe that the data will assist the prevention or investigation of terrorist acts.


The report explains that this proposal aims to modify the current legislation in response to the technological developments made since the Act was last substantially amended. The Victorian Police also submitted to the Review Committee that this is also a safer and less intrusive option than physically entering premises where the computer(s) in question are located.


The report proposed that the authority of the Supreme Court be required in order to obtain a warrant allowing remote access to a computer. The report goes on to clarify that such a warrant would only be issued where the Supreme Court is satisfied that there are reasonable grounds for the suspicion that accessing the target’s computer without their knowledge, would be necessary to prevent or respond to a terrorist act.


Under Section 13(a) of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic), “a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with”. The report addressed this in relation to the proposed changes and stated that “the power to issue a covert search warrant is sufficiently constrained to circumstances where the search would be a reasonable and justifiable interference with the right to privacy”. The report noted the need to balance an individual’s right to privacy against the nature and gravity of the relevant offences. With respect to this, the report expressed the view that the nature of the warrant would be both a “reasonable and proportionate interference with [the right to privacy]” so “it would neither be unlawful or arbitrary”.


In its response to the proposed changes, the government expressed the intention to “review the proposal [to allow remote access to target computers] in the context of the more recent Commonwealth initiatives”. It remains to be seen how this proposal will be implemented and integrated into current Victorian legislation. However, the report recommended that the new powers be modelled on those contained within Section 25A of the Australian Security Intelligence Organisation Act 1979 (Cth).

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