Australia’s intelligence and law enforcement agencies appeared unhampered in preparing and carrying out a vast array of anti-terrorism raids overnight and this morning, allegedly in part to disrupt a plot to kill a random member of the public. The lack of data retention laws, the dearth of “special intelligence operation” powers for ASIO and apparent limitations on ASIO’s ability to access whole computer networks in order to target one person’s computer don’t appear to have been a problem in Sydney and Brisbane.

However, the chances of having any sort of intelligent debate about the need for new powers for security agencies will recede further amid the tabloid headlines about terrorism even if, as with Mohamed Haneef, the allegations of security agencies turn out to be wrong or wildly overblown. The review conducted into the government’s first set of national security reform proposals by the Joint Committee on Intelligence and Security and released yesterday will likely disappear without trace, despite the important issues it has raised.

On this first set of proposed legislation, for once, Crikey has been more sanguine about national security laws than other media outlets. The entire mainstream media made a submission to JCIS about the chilling effect proposed laws relating to revealing information about a new category of ASIO covert operations (“special intelligence operations” or SIOs) would have; The Guardian made its own separate submission. The problem with the level of media concern (as ASIO’s then-head David Irvine explained) is that the proposed laws mimic those already in place relating to the Australian Federal Police’s covert operations, which have been operating for years without any demonstrated “chilling effect”.

The real concern is the lack of the (themselves inadequate) external oversight and accountability arrangements that apply to the AFP’s “controlled operations” in the government’s bill for SIOs: if ASIO wants to join the AFP in having special operations that journalists could go to jail if they reveal, and in which ASIO officers could break the law while participating, then like the AFP there should be some basic external checks on both the establishment of such operations and their continuation and finalisation.

“It’s the authorisation issue that is important, not fanciful torture scenarios.”

The ability of ASIO officers to break the law (except for serious violent offences) while engaged in an SIO prompted a bizarre rant today by Fairfax’s Paul Sheehan, who appeared unaware that JCIS had already reported on the bill. At Crikey, we’ve long complained that the mainstream media doesn’t provide enough coverage of these issues, so we’re reluctant to complain when it does, even if it’s Paul Sheehan. But his argument that SIOs would enable ASIO agents to torture people is over-the-top and an offensive distraction. Any law-breaking under an SIO has to be prospectively (not retrospectively) authorised by the Director-General of ASIO. And unlike the CIA, there is no demonstrated history of torture on the part of Australian agencies. From what we know of the Mamdouh Habib and Izhar ul Haque cases, the nearest ASIO comes to torture is standing by while a future Egyptian vice-president does it, or taking someone to a local park and using obscure metaphors in the dirt as threats.

It’s the authorisation issue that is important, not fanciful torture scenarios. The committee responded to a push by deputy chair Anthony Byrne for an external, independent authorisation process — say, a current or former judicial figure — for SIOs, taking it entirely out of the hands of ASIO. As a compromise, the committee agreed that the Attorney-General, rather than the Director-General, should authorise SIOs (thus, in Sheehan’s scenario, the AG would have to give the tick to torture). This manifestly fails to address the need for genuine external oversight of the authorisation process, even if, as the committee also recommended, the Inspector-General of Intelligence and Security has greater powers to vet the SIO process. Does anyone seriously believe most of our recent attorneys-general — from Philip Ruddock to Robert McClelland to Nicola Roxon to George Brandis — would push back against an ASIO request for an operation? (Mark Dreyfus might have been an exception, but he wasn’t in the job long enough for us to know).

The Attorney-General compromise keeps the SIO process, complete with freedom from legal sanction and draconian penalties for journalists even just “recklessly” revealing information about it, in-house. Nor is the role of the Inspector-General of Intelligence and Security any comfort, given the serious questions that remain over Vivienne Thom’s handling of the case of the ASIS whistleblower and Bernard Collaery, in which a whistleblower revealing genuine wrongdoing and his lawyer face jail simply for doing what Thom’s predecessor, Ian Carnell, told them to do.

These important nuances, of course, will likely get drowned out in the steady march to another war in Iraq and the drumbeat of “terrorism terrorism terrorism”.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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