Aug 27, 2014

Time to codify, not just extend, national security powers

If our security agencies always act within the law, codification of their extensive surveillance powers shouldn't be a threat to them.

Bernard Keane — Politics editor

Bernard Keane

Politics editor

One of the subtler but more important moments in the recent history of national security laws is being played out within the inquiry into the first set of national security law reforms, currently being considered by the Joint Committee on Intelligence and Security. It's to do with the logic behind the constant extension of national security powers in favour of agencies like the Australian Security Intelligence Organisation and the Federal Police at the expense of individual rights. Since the Howard government used the War on Terror to dramatically expand both anti-terrorism laws and the funding of security agencies, the powers of security agencies have constantly increased, with near-annual amendments to legislation like the ASIO Act or the Telecommunications (Interception and Access) Act to grant them further powers. That tradition continued under Labor, but then-attorney-general Nicola Roxon also deviated from the template by asking for a public inquiry by JCIS into an array of new powers or reforms to existing ones, albeit in often vague form rather than as draft legislation. Coalition Attorney-General George Brandis, who served on JCIS in opposition, has commendably followed Roxon's example in seeking a JCIS examination of draft legislation implementing some of the Roxon proposals. As part of the current hearings into the first of Brandis' bills, committee deputy chair Anthony Byrne has floated a couple of ideas that would have the potential to address significant concerns about the remorseless march of security agency powers. One that we discussed last week relates to the idea of external oversight and approval of special intelligence operations, which creates an extendable mechanism for more oversight of agency powers. In essence, it proposes that if agencies want more powers, they need to submit to significantly greater oversight than they currently have, even if the oversight mechanism isn't via public or parliamentary accountability.
"Codification addresses the concerns of some online rights activists -- who maintain that both telcos/ISPs and agencies are already engaged in mass surveillance or data gathering on individuals -- by making such activities illegal."
The other idea has potential to short-circuit the process of endless extension of agency powers. As part of the current bill, the government has proposed that ASIO be allowed to use third-party computers to access those of target computers under a warrant, and to be able to "add, copy, delete or alter data" on those computers in doing so. There's no limitation on how "third-party" computers can be used in this way -- it could involve interfering with an entire company's network, for example, or that of a university. In discussion with Professor George Williams at the JCIS hearing on August 18, Byrne suggested that the proposal be restricted so "that there has to be an established link between any computer that could be linked to the target person or entity that might cause concern to the agencies? ...That would then start limiting the number of computers that could potentially be accessed in a network." The idea sounds innocuous enough, but like the external oversight idea regarding SIOs, it contains a germ that could spread to other forthcoming proposals and significantly alter the way our anti-terrorism laws operate. Byrne's proposal would in effect ban conduct beyond the strict remit of the legislation -- networks or individual third-party computers without a link to a target computer would be explicitly off-limits to intelligence agencies. A data retention scheme drafted along similar lines would restrict telcos and ISPs from retaining any personal data beyond that specified under the scheme, and restrict agencies from obtaining it without a warrant. To the extent that telcos or ISPs currently collect personal data on their customers, and to the extent that intelligence agencies currently access such data without a warrant, that behaviour would become illegal. This would thus codify, as much as extend, agency powers. Codification addresses the concerns of some online rights activists -- who maintain that both telcos/ISPs and agencies are already engaged in mass surveillance or data gathering on individuals -- by making such activities illegal. It also turns the constant extension of agency powers from an open-ended process into a cul-de-sac, because codification would prohibit anything beyond the specific behaviour authorised by legislation. Security agencies and their apologists argue that agencies don't go beyond what is currently permitted under law, and there is certainly evidence that Australia's security agencies are significantly more focused on remaining within the strict letter of the law than their counterparts in the US and the UK. But the people leading agencies change, and workplace cultures change. Codification of agency powers guards against the potential for future abuse -- and takes agencies at their word that they currently stay strictly within the confines of the law. If that's true, they'll have no concerns about the kinds of changes Byrne proposed.

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4 thoughts on “Time to codify, not just extend, national security powers

  1. GideonPolya

    Australian Intelligence already has too much power and funding and should not receive more until it cleans up its act and demonstrably starts protecting Australians from US-backed Israeli state terrorism and subversion (see my detailed and documented dossier sent to the MSM, MPs and the AFP and entitled “Racist Zionism and Israeli State Terrorism threats to Australia and Humanity”: https://sites.google.com/site/palestiniangenocide/racist-zionism-and-israeli ; also see Gideon Polya, “50 Ways Australian Intelligence spies on Australia and the World for UK , Israeli and US State Terrorism”, Countercurrents, 11 December 2013: http://www.countercurrents.org/polya111213.htm ).

    Pro-Zionist Mainstream Media censorship assists this dangerous perversion Thus on 26 August 2014, The Guardian Australia published an article by Bill Rowlings OAM (CEO, Civil Liberties Australia), “Will ASIO spy on world leaders at the G20 – soon you won’t be allowed to ask”, The Guardian Australia,: http://www.theguardian.com/commentisfree/2014/aug/26/will-asio-spy-on-world-leaders-at-the-g20-soon-you-wont-be-allowed-to-ask .

    I attempted to post the following carefully researched comment but it was CENSORED by The Guardian Australia, presumably for containing things that the endlessly censoring Guardian Australia (see “Censorship by the Guardian Australia”: https://sites.google.com/site/mainstreammediacensorship/home/censorship-by-the-guardian-a ) does not want its readers to read, know about or think about :

    CENSORED COMMENT. Excellent article by Bill Rowlings. Some further key points must be made in the interests of Australian liberty.

    1. Australia shares its intelligence with the “5 eyes” (the US, UK, Australia, Canada and New Zealand) but no mention is made of the 6th eye, the Israelis. According to the Sydney Morning Herald’s Phillip Dorling: “The United States National Security Agency routinely shares intelligence data with Israel without first sifting through it to remove information about US citizens or the citizens of close allies including Australia, according to a top-secret agreement disclosed by US intelligence whistleblower Edward Snowden” (Google “US shares raw intelligence on Australians with Israel”).

    2. Australian Intelligence is set to receive hundreds of millions of dollars more and more draconian laws violating our human rights from the Coalition – it is on the crest of a foreign-manufactured wave of Islamophobia, anti-Arab anti-Semitism and “terror hysteria” and all on account of the Sunni rebels in Iraq and Syria who are evidently prepared to try to match US Alliance barbarity with barbarity of their own. It is likely that hundreds of ISIS rebels have been blown to bits in disproportionate US “turkey shoot” responses to the awful beheading and there is a clear prospect of tens of thousands more rebels to be thus killed due to an “endless” and disproportionate US Alliance involvement in this civil war that threatens a lucrative non-Russian gas supply for Europe.

    3. There is no mention by Australian Intelligence, politicians and media of Australian “foreign fighters” involved in the horrendous war crimes of Israeli state terrorism in Gaza, the Occupied Territories and the wider Middle East, not least in the latest Gaza Massacre involving 2,100 killed, 10,000 wounded, 450,000 rendered homeless and 1.8 million people traumatized in response to zero (0) Israeli deaths from Gaza rockets in the previous year.

    4. In the last 50 years only 4 Australians have been killed by “terrorists” in Australia, 3 of them in the Hilton Bombing (that many believe was actually due to an operation-gone-wrong of Australian Intelligence) and the other a medical clinic security guard killed by a Right to Life fanatic (none of the “terrorists” were Muslims).

    5. In contrast, Australian Intelligence does not deserve more money and powers when it demonstrably fails to protect Australian citizens and their relatives from the ACTUALITY of Israeli and dual citizen Australian-Israeli tasering, shooting, bombing, killing, mangling, torturing, kidnapping, robbing, and imprisoning Australians and their relatives, in addition to large-scale Israeli violation of Australian sovereignty through huge passport fraud, spying and subversion of MPs, media and institutions (for a detailed and documented dossier sent to Australian MPs, media and the AFP Google “Racist Zionism and Israeli State Terrorism threats to Australia and Humanity”; also Google “ways Australian Intelligence spies”). END CENSORED COMMENT.

  2. j.oneill

    I am far from the first person to remind people that Australia is unique among the so-called western democracies in not having a statutory Bill of Rights. Rather than address this issue successive governments make further and further inroads into our civil liberties, all rationalised under the threat du jour. The net result is that we have a situation that is far from a democracy in protecting the fundamental rights of all citizens.

    George Williams wrote an excellent article on the point with regard to freedom of speech in the SMH last week. His modest proposal was for freedom of speech to be incorporated into the Constitution. I would go further and suggest a wholesale Charter of Rights along the lines of either the Canadian or New Zealand models.

    The alternative is to slip further and further down the path to a security state where no-one has any safeguards against zealous politicians and the ever expanding ambitions of the spook agencies.

  3. Luke Hellboy

    Just tell the security agencies that if they have nothing to hide, they have nothing to fear. They’ve been parroting that line since Sir Francis Walsingham, spymaster of Queen Elizabeth I.

  4. klewso

    Two words – “Sayed Latif”.

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