A new bill before parliament will significantly increase ASIO’s powers to conduct offshore surveillance and extend surveillance to organisations such as WikiLeaks, just months after legislation widened ASIO’s power to share the results of its spying.

The Intelligence Services Legislation Amendment Bill 2011 was introduced into the House of Representatives in March without debate and is currently the subject of an inquiry by the Senate Legal and Constitutional Affairs Legislation Committee. The inquiry deadline has been brought forward from September to June. So far there have been just six submissions (including ones from the Attorney-General’s Department and Queensland Police predictably supporting the bill) — reflecting the small number of stakeholders who are across the significance of these sorts of changes to legislation affecting intelligence services.

In March, ASIO’s powers to share information from wiretaps and computer access with other agencies were significantly expanded by the Telecommunications Interception and Intelligence Services Legislation Amendment Act, which sailed through Parliament with the support of the government and the Opposition, to the fury of the Greens.

The new bill goes further and expands ASIO’s power to undertake surveillance activity offshore in two keys areas:

  • Currently the collection of foreign intelligence is limited to when the Attorney-General “is satisfied that the collection of that foreign intelligence is important in relation to the defence of the Commonwealth or to the conduct of the Commonwealth’s international affairs”. Under the bill, those criteria will be expanded to “the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic well-being”; and
  • “Foreign intelligence” is redefined to relate to “intelligence about the capabilities, intentions or activities of people or organisations outside Australia”. Under current legislation, it is limited to “intelligence relating to the capabilities, intentions or activities of a foreign power”. Similarly, the concept of a “foreign power” has been redefined — currently it applies to “a foreign government, an entity that is directed or controlled by a foreign government or governments, or a foreign political organisation”. Under the bill, it will become “people, organisations and governments outside Australia”.

The new definitions free ASIO up to undertake surveillance offshore in relation to Australia’s economic interests – for example, the negotiation of BHP and Rio’s new iron ore contracts in China. But it also enables ASIO to spy on people and organisations overseas that do not fit the current definition of “foreign powers”.

As Dr Patrick Emerton of Monash’s Castan Centre for Human Rights Law points out in the centre’s ubmission, the current definitions in the act already allow for “non-state actors” (for example, who might be engaged in terrorist activities aimed at Australia) to be targeted — “most non-state organisations that threaten the security of Australia would be captured by the existing notion of foreign political organisation”. The expansion, however, would enable Julian Assange and WikiLeaks to be targeted by ASIO. As Emerton says in the submission:

“Currently, information about WikiLeaks probably would not constitute foreign intelligence — because WikiLeaks is (arguably) not a foreign political organisation, and its activities do not threaten Australia’s security (as defined in section 4 of the Australian Security Intelligence Organisation Act 1979 (Cth)). But WikiLeaks is an organisation, and Mr Assange is a person, outside Australia, and their activities evidently do have implications for Australia’s foreign relations. This example shows how the notion of “person or organisation outside Australia”, combined with the notion of “Australia’s foreign relations”, very considerably expands the scope of ASIO’s potential activities.”

Other non-political groupings — in the strict sense — such as Anonymous would also be legitimate targets under the revised definitions. One Anonymous operation brought down the www.aph.gov.au site and two Australians were subsequently convicted for participating.

As the Law Council explains in its submission, the current threshold test for spying on Australians domestically is significantly more stringent than that for overseas, and must relate to matters that are important in relation to security, which is then defined against several criteria. The amendments would enable much easier surveillance of Australians who go overseas and participate in political action.

Potentially, they may also enable surveillance of Australians engaged in action online, even if they are still in Australia, as long as it relates to “the capabilities, intentions or activities of people or organisations outside Australia”. For example, Australians participating in Anonymous operations, or perhaps even supporting WikiLeaks or other whistleblower organisations online, may now be legal targets of ASIO surveillance even though they are in Australia and not doing anything that relates to Australia’s security.

The bill also makes life easier for ASIO by expanding the remit of computer search warrants to include any information on the computer during the life of the warrant, not just when it was issued; ensuring ASIO can share employment-related information about people without them ever being able to access that information and clarifying ASIO’s immunities from Commonwealth and state civil and criminal laws.

“The government brings forward a bill expanding ASIO’s powers once or twice a year, consistent with the unrestrained funding and staffing increases the agency has received,” Greens Senator Scott Ludlam told Crikey. “This current bill is the most ambitious we’ve seen. It will allow our clandestine intelligence agency to pursue covert campaigns against organisations like WikiLeaks or get involved in commercial espionage, presumably on behalf of Australian exporters.”

One of the ironies of national security legislation, of course, is that the Opposition, which is usually to be found instinctively saying “no” to anything proposed by Labor, disappears on the issue, ensuring the passage of these bills. “The government won’t need to justify such extraordinary overreach,” said Ludlam. “Because they know the opposition will vote for anything with ‘national security’ in the title. I think it’s a profoundly dangerous and unnecessary expansion of ASIO’s powers.”

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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