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What’s really happening on national security laws

Mooted reforms to national security legislation need to be seen separately from the Syria/Iraq situation — and the process by which those reforms are overseen is important, too.

The looming reforms to national security legislation need to be seen outside the context of the current events in Iraq/Syria, despite the efforts of the government and parts of the media to link the two.

The push to reform national security laws began in earnest in 2012 when then-attorney-general Nicola Roxon asked the Joint Committee on Intelligence and Security to consider a long list of proposals, mainly centred on telecommunications interception and the acts under which intelligence agencies — especially the Australian Security Intelligence Organisation  — operated. Some proposals, such as data retention, had been pushed by the Attorney-General’s Department from the moment Labor was elected in 2007, without success. After an extended inquiry, JCIS reported last year, not long before the election.

The other source of national security law proposals has been Bret Walker SC, the former Independent National Security Legislation Monitor. During his three-year term, he made a number of recommendations about national security laws — to expand some, to do away with others — and didn’t even get the courtesy of a response from either the Gillard government or the current government, until he declared in his final report that there was some urgency in addressing problems around preventing Australians going to Syria to fight with Islamic fundamentalists. The government has had that report since the end of March.

The Roxon package had three parts: an overhaul and updating of the current telecommunications interception regime (which, separately, a Senate inquiry initiated by Greens Senator Scott Ludlam is examining as well); an updating and in some cases expansion of the powers of intelligence agencies (mainly ASIO); and what is now known as Telecommunications Sector Security Reform (TSSR), aimed at better security of critical information infrastructure. It was also split into proposals the government wanted to go ahead with, ones it was keen on but wanted the committee’s views on, and ones like data retention that it wanted to get a general sounding on.

The argument for an overhaul of the telecommunications interception regime was backed by the committee, with some qualifications, spread over 18 recommendations; the current regime has been stitched together over a long period, with some internal inconsistencies and absurdities. One change proposed by Roxon and backed by security agencies is to curb the number of agencies that can access metadata without a warrant — currently a long list of government and non-government agencies (famously including the RSPCA) can get your phone records without any judicial oversight. And the committee also recommended standardisation of the warrant thresholds for accessing content data, although that raises the question of what standard you use — agencies want a lower standard, opponents want a higher standard. The committee also recommended a single, more flexible warrant regime that could enable agencies to tailor warrants for specific purposes and types of information.

But to whom the regime applied was a more complex issue, and this is a key point to watch for in the draft the government will bring forward — does it apply merely to telecommunications companies and ISPs, or does it extend further, to other services providers like social media providers? That is, will the government seek to bring Google, Facebook and Twitter into the purview of Australia’s interception regime — and if so, how? The JCIS view was that such services were already caught by the current regime, and thus it did not need to be “extended” so much as clarified. But enforcement is another question altogether.

Some parts of the ASIO Act 1979 still have the legislative equivalent of sideburns and flares.”

It was as part of this new framework that the then-government ventured the idea of data retention, albeit without committing to the idea. Having discovered the perils of trying, as it did under Kevin Rudd, to develop such a controversial proposal in secret, complete with secret discussions with sometimes recalcitrant ISPs, the Attorney-General’s Department has under the current government emphasised its desire to consult more widely about the proposal. And its energies instead have been directed at developing the TSSR, in consultation with the Department of Communications, as well as preparing to subject ISPs to a new range of costs associated with a graduated response scheme at the behest of the copyright cartel; it may be that the government figures it will have enough difficulties in coming months with ISPs without imposing another costly and deeply unpopular regulatory regime on them.

The third component was a series of reforms to the laws around how our intelligence institutions, and particularly ASIO, work; some parts of the ASIO Act 1979 still have the legislative equivalent of sideburns and flares. The committee supported most of the Roxon proposals, which ran from the administratively anodyne to significant extensions of powers in areas like accessing third-party computers in order to bug a target’s computer, and planting malware on a target’s computer — something the committee didn’t endorse but wanted further consideration about. The committee also declined to support giving ASIO agents the power to search individuals as well as premises, and rejected a proposal to double the length of ASIO warrants.

The recommendations in Bret Walker’s final report cover quite different issues and are of more topical origin. Walker, after consultation with ASIO, wrote:

While the Syrian conflict is not directly comparable to conflicts in Afghanistan and Pakistan in the 1990s and 2000s, the potential for individuals who travel to foreign conflict zones, including Syria, to become engaged in activities of security concern after their return to Australia, including committing terrorism offences within Australia, is worryingly real. In the INSLM’s opinion, it justifies urgent attention to the possibility of improving the CT Laws to enhance their prevention and protective efficacy.”

Walker recommended, inter alia, a new temporary passport suspension power and an interim suspension mechanism to better enable ASIO to work with the Department of Foreign Affairs and Trade to stop Australians going to conflict zones. Walker also recommended the Howard government’s repeal of restrictions on dual citizenship be reconsidered.

Except for the administrative fixes for the ASIO Act, none of these varying proposals are without their problems. The power to suspend or cancel passports can be used not merely to prevent would-be terrorists from going abroad, but as we’ve seen, for preventing a whistleblower from giving evidence in relation to the activities of the Australian Security Intelligence Service. Planting malware on a target’s computer can lead to debacles like the German government’s “Bundestrojaner”, which allowed third-party access not merely to a target’s computer, but to law enforcement systems. The view that companies like Google, Facebook and Twitter are already, legally, subject to Australia’s telecommunications interception regime may be regarded by those firms far less indulgently post-Snowden than when JCIS reported. And the TSSR process is likely to impose both additional costs on telcos and ISPs (so much for deregulation) and extend the powers of the government to directly control communications infrastructure, raising further concerns about surveillance (the mechanism by which the TSSR would be administered can be seen in this document obtained from the Department of Communications).

A recurring theme of the JCIS report and Walker’s final report was the need for adequate scrutiny of legislation — JCIS repeatedly complained that it didn’t have draft legislation before it to examine in detail, and in some cases specifically recommended that any legislation resulting from the reform package come back before the committee. Roxon, whatever her faults as AG, established a precedent that significant reforms should be vetted in a public inquiry. But that committee has no power to vet legislation unless asked to by the government. And Walker’s entire role has been abolished.

The debate about any new legislation should be as much about the oversight of that legislation as about the contents of it. But in the rising tide of media hype about jihadis returning from Syria, we’re unlikely to get sensible discussion on either.

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