Last week was a busy one on the national security front for Attorney-General Nicola Roxon.

On Friday she announced she had written to the Joint Committee on Intelligence and Security to ask it consider changes to national security legislation via public hearings. A detailed description of the government’s proposals wasn’t released. According to Roxon’s office, the terms of reference for the JCIS inquiry will be officially released late this week once they were agreed.

JCIS is likely the most high-powered committee in Parliament. It is chaired by Victorian MP Anthony Byrne, and includes Philip Ruddock, George Brandis, David Johnston, John Faulkner and Andrew Wilkie. A recent addition was new backbencher Kevin Rudd.

The proposals relate to Telecommunications (Interception and Access) Act 1979, the Telecommunications Act 1997, the Australian Security Intelligence Organisation Act 1979 and the Intelligence Services Act 2001.

A draft terms of reference is circulating unofficially; they may yet change before finalisation, but they cover:

  • Government-supported proposals for strengthening privacy protections on communications intercepts, standardising warrants and reducing agency access;
  • Governments supported proposals for more information sharing; and
  • Governments supported proposals for making ASIO’s warrants easier to use and updating employment issues within that agency.

It’s the proposals not supported by the government but recommended for inquiry that are more interesting. They include:

  • Simplifying and extending communications intercept powers
  • Overhauling the way ASIO agents have immunity from prosecution for their actions
  • “Expanding the basis of interception activities”
  • Make it easier for ASIO to break into people’s computers and to do so by using third party premises or equipment
  • Require industry to help in decrypting information
  • Making it easier for anyone who names an ASIO officer to be prosecuted
  • Requiring telecommunications providers to harden the security of their networks.

Most significantly, the draft refers to “tailored data retention periods for up to 2 years for parts of a data set, with specific timeframes taking into account agency priorities, and privacy and cost impacts” — i.e. data retention, in which your entire communications history, including your internet history, is recorded by your ISP so that the government can examine it, which the government has been mulling in secret for two years.

There shouldn’t be any surprise the government wants to expand the powers of law enforcement and intelligence agencies barely a year after the power to pursue organisations such as WikiLeaks was added to ASIO’s powers (aka the illegal fishing amendment) and while the government’s draconian cyber-crime bill remains before the parliament. ASIO’s enabling legislation alone has been significantly amended 13 times since 9/11 (plus more machinery or minor changes). But, compared to previous rush jobs where senate committees conducted blink-and-you’ll-miss-it inquiries into expansions of ASIO powers, the government’s willingness to conduct a proper inquiry before developing legislation is to be commended. As it points out, that’s not something the Howard government ever bothered with.

What is surprising is the timing.

In 2009, the Rudd government established the Office of the Independent National Security Legislation Monitor, to which Bret Walker QC was appointed in April 2011. Walker produced his first annual report in March this year. Given the timing, Walker clearly stated it was intended to set out matters of principle, raise issues and identify a work program, rather than provide a traditional annual report.

The government has also, by its own admission, put off a scheduled COAG review of all counter-terrorism legislation at Commonwealth and state level, but swears it’s about to start.

The government says that process relates to counter-terrorism and is therefore different in focus to these proposals. On Walker, a spokesperson for Roxon told Crikey “although the focus of the Independent National Security Legislation Monitor’s work is different to the subject of the PJCIS referral, it will be open for Mr Bret Walker SC, to participate in the inquiry. In addition, the Attorney intends to consult with Mr Walker before introducing draft legislation.”

Friday also saw Roxon hosting Janet Napolitano, the head of the vast $50 billion US security theatre bureaucracy, the Department of Homeland Security, in Canberra. Napolitano was here to announce the signing of four statements integrating Australia more closely with the United States on counter-terrorism and the pursuit of organised crime, drug traffickers and those who would inflict “economic damage”, a term of employed as part of the War on Filesharing. DHS has a specific area, ICE, devoted to shutting down websites alleged (though not necessarily proven) by record companies and movie studios to be involved with filesharing.

The statements signed on Friday are on Countering Transnational Crime, Terrorism and Violent Extremism; Supply Chain Security; Collaborative Targeting and Frequent Traveller Facilitation.

The statements are short on detail and long on bureaucratic boilerplate (the statement on Global Supply Chain Security promises to “improve information sharing and analysis to identify and respond to evolving threats by supporting the development and maintenance of risk management guidelines”, words to make any terrorist shudder). But some points stood out. The statement on Countering Transnational Crime, Terrorism and Violent Extremism spoke at length about greater targeting of “specific local communities” by “reaching out” and “information-driven, community-oriented policing efforts to prevent violent crime and extremism, including by intervening early to disrupt radicalisation processes and providing appropriate support to at risk individuals”.

Although, oddly, there’s not a “Muslim” to be seen in the entire document.

The FBI’s “information-driven, community-oriented policing” efforts in the US — most of which appear to revolve around sending agents into Islamic communities and finding volatile individuals to ply with guns and explosives and then arresting them — are outside Napolitano’s remit as head of DHS but her department’s extensive reliance on profiling of Muslims bodes ill for any additional co-operation by Australian authorities. The separate statement on Development of a Framework for Co-operative International Targeting and Assessment discusses more closely integrating US and Australian travel alert systems and the intention to “utilise mutually developed, scenario-based rule sets geared to detect illicit travel”. DHS’s reliance on profiling prompted a long, detailed submission from Muslim groups recently to a current US Senate inquiry into racial profiling.

Napolitano also had some other engagements while she was here, speaking at ANU last Thursday on “Achieving Security and Privacy”. Her remarks were noteworthy for Napolitano dismissing the idea that there was a trade-off between security and privacy because “the plain fact of the matter is that you cannot live free if you live in fear. Security is a prerequisite if we wish to exercise the rights we cherish”.

Something for parents of toddlers, or 95-year-olds, to bear in mind when next they consider travelling in the United States.

Peter Fray

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