A senior attorney-general bureaucrat has struggled to explain to a Senate committee the rationale for amendments broadening ASIO’s remit to spy on organisations overseas and tried to duck questions about whether the amendment would enable ASIO to spy on WikiLeaks.

In a confusing performance yesterday afternoon, Geoff McDonald, a Band 2 SES officer from the Attorney-General’s Department, appeared before the Senate’s Legal and Constitutional Affairs Committe conducting hearings into the bill to widen ASIO’s remit for spying overseas. The usual job of bureaucrats in such settings is to be across the bill in such detail that they can handle any and every question on it, because in such hearings there is no minister to run interference or to take policy questions.

The amendment has been described within the bureaucracy as the “WikiLeaks amendment” because it will enable spying on non-political organisations like the whistleblowing website, which currently isn’t captured by the spooks’ remit.

The central question under discussion yesterday was the extent to which the current legislation is wide enough to allow ASIO to spy on foreign organisations that threaten Australia’s interests. Coalition Senator and foreign policy buff Russell Trood was insistent in questioning the Law Council, which has made a submission criticising the amendment, that the current Act was not wide enough to incorporate non-state actors.

The current definition allows ASIO to apply to the attorney-general to spy on foreign governments or foreign political organisations, but would be dramatically widened under the amendment to allow spying in relation to anything to do with “the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic well-being”.

Pressed by Greens Senator Scott Ludlam to describe an example of a non-state actor that could not currently be placed under surveillance under the current legislation, McDonald invoked an example of someone engaged in the trading of nuclear material unconnected to a government, although he admitted the current legislation caught most organisations that might be involved in such activities by virtue of being “foreign political organisations”.

But quizzed by Labor Senator Louise Pratt to provide further detail, McDonald, who appeared unsure of what the current ASIO legislation enabled, struggled: “If someone is involved in nuclear proliferation, that’s the sort of crime, or feeding that sort of crime, is clearly the sort of thing we’re thinking of here.

“Foreign countries are already picked up under foreign relations, but a corporation’s not. If it’s nuclear it’s probably security anyway, what kind of intelligence might you want on a foreign corporation?”

He replied: “Well you could have someone who is, you can’t get any connection between the person and some foreign government trying to do the proliferation…”

But Pratt asked him to use a non-proliferation example — “or am I wrong in assuming that proliferation is not always going to be picked up under security?”

“No you could get someone who’s in the supply chain of that,” McDonald replied, “OK, so the person might be involved, it could be a supply chain to wherever it’s going, whether it be a foreign government or whatever, where the item of import to proliferation is going to be supplied from A to B and then B to C and quite often is covered like that so they…”

Pratt: “So is that economic or security on that basis?”

McDonald: “Well it could be national security … is one of the more likely ones, or economic … depending on the circumstances.”

As Pratt initially noted, being security-related, that example is already caught by current legislation. So we remain none the wiser about what specifically the government has in mind about what it wants ASIO to go after that it can’t get now.

McDonald tried to insist in an opening statement that the amendment had nothing to do with WikiLeaks, and went to some lengths to claim it had been under development for an extended period of time predating last year. But he refused to answer a direct question from Ludlam on whether ASIO was currently spying on WikiLeaks, could spy on the organisation, or would be enabled to do so.

In an extended exchange with Ludlam, McDonald declared he “didn’t know enough about WikiLeaks to know whether they’re covered by the existing legislation or they’re not… I would be surprised if a group like that would be caught by this. But it’s speculative for me to be talking about such cases.”

This made for an odd contrast with McDonald’s insistence on addressing the WikiLeaks issue in his opening statement, before even being asked.

“I don’t think it’s speculative at all,” said Ludlam, and kept pushing. A hesitant McDonald then changed tack: “Anything that is done with implications for security … we heard from the Law Council, can already be caught … there are all sorts of allegations about what WikiLeaks have done and what they haven’t done, and some of those things that people have said they’ve done would probably be caught under the definitions in the ASIO Act … but I can’t get into saying one way or the other…”

McDonald then refused to explain further, declaring he’d explained “the parameters” of how the amendment was going to work and wouldn’t go further.

Asked what the hurry was with the bill — the committee’s hearings have, at the government’s insistence, been brought forward and the inquiry rushed — McDonald declared: “I can assure you it is very important to get … there are practical reasons behind it…”

“I don’t feel any better informed I’m afraid,” Ludlam concluded. Indeed.

Peter Fray

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