[Update: in a doorstop interview on 2nd July, Attorney-General Brandis said the following:
ATTORNEY-GENERAL: Legislation that I will be introducing into the Senate in the week after next will give effect to the recommendations, the 21 recommendations in Chapter-Four of the Joint Parliamentary Committee Report on Intelligence and Security. That was, as I say, a bipartisan report. That legislation will primarily be directed to agency powers and also aspects of the Telecommunications Interception Act, which is a 1979 act, an act that actually predates the internet. Now I’m not saying that the legislation that will be introduced the week after next will be the only legislative reform because it won’t be. The Government is, as I said a moment ago, looking carefully at all existing legislation that bears upon this issue, in particular the terrorism provisions of the criminal code, to ensure that there are no gaps in our capacity to keep Australia safe.
That would seem to indicate that even the more controversial recommendations, such as a new power to ‘disrupt computers’ will be included in the proposed legislation.]
Attorney-General George Brandis last week announced that he would be introducing legislation during the next sitting week (starts 14th July) ‘to give effect to important recommendations of the report of the Parliamentary Joint Committee on Intelligence and Security in its report into potential reforms to Australia’s national security legislation.’
Brandis has stated that the legislation to be introduced will be based on the recommendations in Chapter Four of the JCIS report.
Consultation, Scrutiny and Oversight
Before we review the specific recommendations, let’s skip to the end of the list (see #41 below). The Committee was clearly concerned about the manner in which previous extensions of surveillance powers (there have been over 50 security-related legislative changes since 2001) have been rushed through the parliament without the opportunity for meaningful public consultation and committee scrutiny.
Unfortunately, it seems that Mr Brandis intends to use the cover of the current conflict spreading across Syria and Iraq, and the involvement of Australians in that conflict, to again rush these new extensions to surveillance powers through the parliament.
Mr Brandis’ choice of cufflinks late last month (see photo), only reinforces the impression created by his choice for his Chief of Staff (Paul O’Sullivan, former head of ASIO) that he is likely to be more concerned with increasing the powers of the intelligence agencies than in protecting civil liberties.
It is therefore comforting to read in The Guardian, that former Attorney-General (now Shadow) Mark Dreyfus has signalled that the ALP will not ‘rubber stamp’ the legislation to be introduced, and has called for “public consultation on an exposure draft of the legislation.”
Separately, the government is also attempting to abolish the Independent National Security Legislation Monitor (INSLM). The INSLM provides a much-needed independent and holistic view of all legislation in the national security sphere and thereby provides an important and effective protective mechanism for monitoring systemic or legislative failures to recognise or enforce rights. Dreyfus is also highly critical of the government’s plans to abolish the INSLM, so the government may struggle to get the repeal bill through the Senate.
Committee Recommendations
Chapter Four of the JCIS report includes a total of 22 recommendations, some of which are fairly innocuous and probably quite justified modernisations of some now quite dated legislation – at least in the case of the ASIO Act, the original version of which is now 35 years old.
These include such items as (numbers are from the report):
- 27: clarifying the authority of the Defence Imagery and Geospatial Organisation.
- 30: aligning the surveillance device provisions within the ASIO Act with those in the Surveillance Devices Act 2004.
- 32: enabling warrants to be executed by ‘classes of individuals’ (ie ASIO officers) rather than named officers, as is currently the case.
- 34: giving ASIO itself the power to refer breaches of the prohibition on naming officers for prosecution.
Some of the other recommendations in chapter four however are far from innocuous. Those that are of concern are as follows.
21: allowing ASIO to ‘enable the disruption of a target computer for the purposes of executing a computer access warrant.’
This is a particularly worrying proposal, though the Committee stopped short of recommending it be implemented, instead urging ‘further consideration’, so it may not be included at this point. How ‘disruption’ comes to be defined should the government seek to proceed with this proposal will be a key issue. Such a power would create the potential for the framing of innocent parties and for the pollution of evidence that could ultimately be counter-productive by providing a basis for reasonable doubt about the integrity of evidence presented in any prosecution by ASIO.
22: allowing ASIO to access third-party computers and communications in transit in order to access a target’s computer
Though this would be subject to ‘appropriate safeguards and accountability mechanisms, and consistent with existing provisions under the Telecommunications (Interception and Access) Act 1979’, this recommendation is also very concerning as it could affect entirely innocent parties. There is also a Senate review of the TIA Act underway which may impact on any decision to proceed with this proposal in the short term.
35: power to enter third-party premises to carry out search warrants on targets.
The Committee itself recognised the ‘exceptional nature’ of this potential new power and stressed that there are very limited circumstances in which it should be exercised.
38: surveillance of Australians by ASIS, ASD & DIGO
Subject to ministerial approval, this would allow the Australian Security Intelligence Service (ASIS), the Australian Signals Directorate (ASD – formerly DSD) and the Defence Imagery and Geospatial Organisation (DIGO) to investigate Australians believed to be involved in intelligence or counter-intelligence activities. These activities are to be subject to ‘ASIO standards and protections’ (recommendation 39).
This last proposal is arguably the most significant and will blur the lines between the domestic remit of ASIO and the foreign-focused remit of the other intelligence agencies (ASIS, ASD & DIGO).
It is also not dissimilar to the United States’ Executive Order 12333, originally signed in 1981 by President Reagan, which extends the powers of US intelligence agencies beyond the scope of legislation, and outside the Congressional oversight regime. It was used as the legal basis for much of the NSA’s mass surveillance activities revealed by Edward Snowden.
This proposal will be justified in relation to the activities of Australians involved in the current conflict in Syria and Iraq, which have received significant coverage in the media, but deserves very close scrutiny to ensure it is not used by current or future governments to avoid legislative protections and parliamentary oversight.
Mandatory Data Retention
The proposal for a mandatory data retention scheme, by far the most controversial issue considered by the Committee, is not included in chapter four. The Committee wisely avoided making any clear recommendation about its adoption or otherwise, instead calling it ‘ultimately a decision for Government’, so it’s not expected to be included in this tranche of legislation. It certainly hasn’t gone away though and is likely to rear its ugly head again sometime in the next 12 months or so.
NSW Police Commissioner Andrew Scipione weighed in yesterday, and while admitting that law enforcement had not ‘done enough to explain why we need to do it’, suggested that Australians should approach the issue in the same way that we approach supermarket loyalty programmes. The Commissioner is apparently ‘perplexed’ that while (many) Australians are prepared to trade some privacy for discounts and special offers, 80% of us oppose exactly the sort of warrantless mass surveillance that he seems to think is essential to maintaining our security.
It is unfortunate that as distinguished a law enforcement officer as Commissioner Scipione has such an unsophisticated view of this issue. In particular, he seems not to understand that loyalty programmes involve an informed choice by an individual to provide certain information to organisations that are not heavily armed and which lack arrest powers.