This week at Estimates, there was a sequel to the circumstances around the passage of the “WikiLeaks” amendment earlier this year that expanded ASIO’s powers to gather foreign intelligence to incorporate not merely “non-state actors” but virtually anything relating to Australia or its interests, including commercial interests.

As those who followed the debate will recall, the Attorney-General’s Department, which had carriage of the Intelligence Services Legislation Amendment Bill 2011, found itself in difficulties back in June trying to explain what exactly the expansion of powers was for, having denied that the amendment was in any way connected to or had anything to do with WikiLeaks. After its officers stumbled when responding to Labor senator Louise Pratt about what exactly the amendment would enable ASIO to do that it couldn’t do now, the Department made a highly unusual third submission to the quickie Senate inquiry into the Bill, in which it declared:

“The ability for ASIO to collect intelligence on matters pertinent to Australia‘s national security, foreign relations and national economic well-being would provide, for example, Australian authorities with a better understanding of illegal fishing operations, and enable the relevant Australian authorities to take appropriate action internationally. Illegal fishing puts at risk Australian jobs, investment and the sustainability of fish stocks.”

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Fair enough. Good to know ASIO’s on the job there — who could deny it more powers to chase down illegal foreign ships engaged in an industrial-scale assault on Australia’s fisheries? So at the Legal and Constitutional Affairs Committee’s Estimates hearing on Tuesday afternoon, Greens senator Penny Wright asked how the whole illegal fishing thing was going. The response from ASIO head David Irvine was commendably straight to the point.

“I cannot think of any operation activities that have been conducted in relation to illegal fishing in the last year, if ever. In fact, I am pretty sure that is actually outside our remit,” he told Wright.

Um, what? Outside ASIO’s remit? But it was the basis for an entire expansion of his agency’s powers! Wright pressed Irvine. “I am basing this question on information that I was given that one of the justifications for expansion of ASIO powers at one point was that there was a need to have surveillance over illegal fishing operations. I might ask you to take the question on notice.”

Irvine, perhaps annoyed that time that could be better spent chasing rampant, unfettered internet ideas was being wasted, was having none of that nonsense: “I do not think I need to take the question on notice at all. We have not conducted any activities in relation to fishing.”

So there you have it from the head of ASIO himself. Not merely has ASIO done nothing on illegal fishing, but it’s actually outside ASIO’s responsibilities. So why, one may wonder, was it the sole justification for the expansion of their powers? Wright asked Irvine to confirm that he was repudiating the whole background to her question.

At this point, the penny, so to speak, dropped for Irvine’s deputy David Fricker and he began trying to explain things. But rather than rowing back from his boss’s comments, he only confirmed what Irvine had said. Moreover, he seemed to make a point of dropping the Attorney-General’s Department in it:

“There was a hypothetical example given during the explanation for the changes to the definition of foreign intelligence under the ASIO Act. It was a hypothetical, I believe, not provided by ASIO. It was a hypothetical example of where a foreign intelligence collection requirement might require the assistance capabilities of ASIO. It is not an ASIO function to collect intelligence on illegal fishing. That function does not come under the definition of security under the ASIO Act.”

Irvine then found the appropriate brief and proceeded to read out some bureaucratic boilerplate explaining the need for the expansion of ASIO’s powers based on aligning definitions across different acts … all very innocuous, he assured Wright: “There has actually been very little change, if any at all so far anyway, in what ASIO does on behalf of the foreign intelligence collectors in Australia.”

It’s not unusual for departments and agencies to lose track of which page they are both supposed to be on during the legislative process and committee hearings. But ASIO’s comprehensive repudiation of the basis on which Attorney-Generals argued that ASIO’s powers should be extended is a classic. Not merely has ASIO never had anything to do with illegal fishing, but in fact it’s not even within its area of responsibility.

Indeed the whole argument advanced by the line department was a “hypothetical” the invention of which ASIO had nothing to do with.

Perhaps the Attorney-General’s Department owes the Legal and Constitutional Affairs Committee an explanation for why its evidence was so wrong. Its illegal fishing story appears to be the one that, well, got away.

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Peter Fray
Peter Fray
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