Who watches the watchers? Why Australia’s surveillance laws are under fire

Imagine waking up to find your private messages altered, your online accounts taken over and your entire digital footprint monitored – all without your consent.

Under Australia’s current surveillance laws, this isn’t a dystopian fantasy – it’s a legal possibility.

Even behind end-to-end encryption on apps like WhatsApp, private chats with friends or family might be legally intercepted and read in secret, all in the name of national security.

Australia now has more than 100 counter-terrorism, surveillance and security laws, making its legal framework among the most expansive in the democratic world.

UQ Law School’s Associate Professor Rebecca Ananian-Welsh has spent years warning that these laws, designed to protect Australians, could instead erode fundamental freedoms.

“Some of these laws are so secretive and intrusive that we don’t know what they’ve been used for or if they’re doing their intended job,” she said.

“This is very concerning from a civil liberties standpoint.”

How did we get here?

In the aftermath of 9/11, Australia moved swiftly from having no counter-terrorism legislation to leading the democratic world in national security laws.

One particularly controversial law is the Surveillance Legislation Amendment (Identify and Disrupt) Act (SLAID).

Passed in 2021 after minimal parliamentary debate, the Act grants extraordinary powers to law enforcement agencies, including:

• Data disruption warrants – allowing officials to modify, copy or delete data to disrupt online crime.
• Network activity warrants – enabling access to entire networks without identifying the individuals affected.
• Account takeover warrants – permitting control of personal online accounts to gather evidence.

Unlike traditional warrants, SLAID’s provisions allow surveillance without clear identification of targets, while the data disruption powers mean authorities like the Australian Federal Police (AFP) or the Australian Criminal Intelligence Commission (ACIC) can alter digital information.

“With a traditional warrant, you have to identify who you’re investigating and for what purpose,” Dr Ananian-Welsh said.

“But under the SLAID Act, a network activity warrant will grant the AFP or ACIC access to an entire network without needing to know or disclose the identities of the people they are surveilling.

“Moreso, the data disruption warrant allows the AFP or ACIC to not just watch what’s going on, but exercise the power to add, copy, delete or alter digital information if they think a crime may be committed.

“If that information is later used as evidence against a person, how do you know if it’s been changed?”

Review calls for urgent reform

A recent review by the Independent National Security Legislation Monitor (INSLM) delivered a damning assessment: the warrant process is “inadequate and unsustainable”, safeguards are “not fit for purpose”, and urgent reforms are needed.

Dr Ananian-Welsh was among a team of legal experts authoring a submission to the INSLM review.

“The INSLM review was a valuable opportunity to assess whether the SLAID Act’s surveillance powers were necessary, effective and appropriate,” she said.

The review recommended a complete overhaul of the warrant process, including:

• the introduction of a panel of retired judges assisted by ‘public interest monitors’
• replacing the secrecy provisions
• tightening rules on when, to which agency, and for what purpose warrants can be issued.

But Dr Ananian-Welsh says the SLAID Act is only one piece of a much larger puzzle.

“We’re trying to retrofit outdated laws and processes to keep pace with a constantly evolving technological environment of threats, surveillance techniques and policing methods,” she said.

“This challenge is not new. In 2020, former ASIO chief Dennis Richardson famously labelled Australia’s surveillance laws ‘a dog’s breakfast’, calling for a complete rethink to reflect modern realities.”

The big question: freedom or security?

At the heart of this debate lies a difficult question: how much freedom are we willing to sacrifice to stop wrongdoing and terrorism?

Counter-terrorism laws may promise safety, but they also expand state power in ways that can undermine privacy, autonomy and democratic accountability. They also tend to operate in secret and are rarely amended, let alone repealed.

For many Australians, the trade-off may feel abstract until these laws touch their own lives.

Operation Ironside in 2021 showed these powers in action. The AFP, working with the FBI, covertly operated AN0M – an encrypted messaging platform used by criminal networks.

Over 3 years, they intercepted millions of private messages, leading to hundreds of arrests worldwide.

While hailed as a policing triumph, ongoing court challenges question whether the data was lawfully obtained and if the AFP had the right legal warrants.

Regardless, the federal government later authorised AFP’s access to AN0M data – a move upheld by the High Court of Australia in a 2025 constitutional challenge.

Journalists have also been under scrutiny. In 2017, the Commonwealth Ombudsman found that the AFP had accessed journalists’ metadata without the proper warrants, specifically to identify their confidential sources.

Dr Ananian-Welsh has examined cases like these to drive the law reform conversation.

“Protecting your sources is every journalist’s core ethical duty. In today’s landscape of intrusive covert surveillance, it’s difficult, if not impossible, for journalists to maintain their confidences,” she said.

In 2018, just months before a series of AFP raids on journalists, Dr Ananian-Welsh joined forces with former UQ Professor of Journalism Peter Greste to form a research team dedicated to legal analysis and the development of policy papers aimed at driving press freedom.

Their work has since helped change national secrecy laws, whistleblowing protections and press freedom protections, including the introduction of ‘shield laws’ to protect journalists’ sources in Queensland, but challenges still persist.

Why change can’t wait

Terrorism, espionage and cybercrime are real threats, but so is the unchecked expansion of state power.

“Laws designed to protect us should not become tools that undermine the freedoms they claim to defend,” Dr Ananian-Welsh explains.

“Our research and advocacy centres on designing laws so that they protect security without undue or unjustified impacts on human rights,” she said.

“The threat landscape continues to evolve – not only online, but with the rise in hate crime, right-wing extremism and youth radicalisation.

“The research is clear: better protection of rights leads to better security outcomes. Our job is to make sure the protections in place are targeted, justified, well-designed and in the public interest.”

Associate Professor Ananian-Welsh contributes to UQ Law’s National Security and Defence research theme.

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