We now know what the first tranche of the government’s mooted national security reforms will look like after Attorney-General George Brandis revealed them Wednesday.

The reforms will be based on chapter four of the national security reform report by the Parliamentary Joint Committee on Intelligence and Security, released almost exactly one year ago. That report was based on a long list of proposals put forward by former Attorney-General Nicola Roxon. Chapter four deals with the powers of intelligence agencies and, based on the committee’s recommendations, the reforms will involve:

  • expanding the definition of “computer” in the ASIO Act and warrants issued to ASIO to include other computers used by a target;
  • allowing ASIO to access third-party computers in order to access a target’s computer;
  • a power to vary ASIO warrants, rather than having to cancel one and issue another;
  • allowing secondments involving ASIO staff;
  • clarifying the authority of the Defence Imagery and Geospatial Organisation;
  • allowing ASIO agents to have immunity from non-serious criminal prosecution in a scheme similar to the Australian Federal Police’s scheme for undercover officers (i.e. it won’t extend to serious violent crimes);
  • modernising the now-antiquated rules around ASIO’s use of optical (as opposed to listening) surveillance devices;
  • enabling warrants to be executed by classes of individuals (e.g. ASIO officers) rather than, as currently required, named officers;
  • ASIO’s capacity to work with private sector agencies be placed on a stronger legal footing;
  • ASIO itself be allowed to refer breaches of the prohibition on naming officers for prosecution;
  • power to enter third-party premises to carry out search warrants on targets;
  • allowing reasonable force to be used in searches, but only against property, not persons;
  • allowing the Australian Security Intelligence Services, the Australian Signals Directorate and DIGO to investigate Australians if they are engaged in intelligence or counter-intelligence activities, if the relevant minister authorises it (a power likely to be used in the current Syrian context)
  • where ASIO and ASIS, ASD or DIGO are involved in joint activities relating to an Australian, ASIO standards and protections are to apply; and
  • an evidentiary certificate regime to prevent the revelation of ASIO officers in legal proceedings, but not in relation to the material facts of a prosecution.

What the reforms may not include is allowing “disruption” of a computer e.g. by planting malware, which JCIS recommended be the subject of further consideration. The committee also rejected extending ASIO warrants from 90 days to six months, but instead proposed renewals of warrants, and rejected a power to enable ASIO to search of persons as well as premises. The committee also declined to recommend a single warrants to cover multiple activities relating to a single individual, rather than multiple warrants, instead suggesting conditions if a government should decide to proceed with such an approach.

The most significant reform relate to expanding, with conditions, the power of Australia’s foreign intelligence agencies to pursue Australian targets in certain circumstances, enabling those services to deploy their electronic surveillance capacity against Australians, albeit with the same limits as those that would apply to ASIO surveillance. Being able to access targets’ computer hardware via other systems or computers also creates the potential for controversy — as well any power to plant malware on computers, given bungles like the infamous German bundestrojaner.

However, one recommendation looks likely to be ignored entirely: JCIS wanted the specific legislative text of these reforms to be properly vetted first, both via an exposure draft, and through a parliamentary committee. But the JCIS is now a tame creature under the chairmanship of Liberal backbencher Dan Tehan, and there’s no indication yet that Brandis plans to release a draft for comment before introducing the relevant bill.

Peter Fray

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