For a number of years, Crikey has been warning about government overreach, the growth of the surveillance state and the ludicrous imbalance between freedom and security in Australia. But at the moment, the sudden surge of criticism of the national security laws passed last night needs some perspective. Some of the claims being made about the laws need to be ratcheted down a bit, especially these:

1. “ASIO can now get a warrant for the entire internet.”

This claim relates to the proposal, which has been under consideration since 2012, to allow ASIO to target computers of people identified in warrants via third-party computers. Labor’s Anthony Byrne, the deputy chair of the Joint Committee on Intelligence and Security, tried to limit the extension to computers directly linked to the target computer when the bill was being considered by that committee. But the committee ended up recommending (and the government accepting) that the extension only be limited “to the extent that is necessary for the collection of intelligence in respect of a specified security matter”. That, is no general fishing expeditions, but not the tight codification proposed in hearings by Byrne, which would be focused on indicating as much what agencies couldn’t access as what they could.

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But the issue ultimately is “get a warrant” — there must be an external authorisation of such a request from ASIO, whether tightly focused or absurdly over-wide. ASIO can’t simply initiate its own over-wide surveillance program — or it’s breaking the law if it does.

2. “Journalists can be jailed for revealing intelligence operations.”

In fact, they can be jailed for revealing information about a narrow range of covert operations called “special intelligence operations”, which must be authorised by the Attorney-General, in the same way that has long applied to anyone who reveals information about the Australian Federal Police’s “controlled operations”. The designation of an operation as an SIO can’t be retrospective, it can’t involve activities that would otherwise require a warrant (like surveillance), and the designation must apply to a specific individual and to specific conduct that would otherwise breach the law — that is, it would be very difficult (although arguably not impossible) to construct an SIO that could be open-ended in terms of what it would permit a specified officer to do.

As Crikey has repeatedly explained, the problem with the SIO provision isn’t the way it replicates the relevant provision of the AFP’s “controlled operations” (e.g. to jail people who reveal them) but the way it doesn’t replicate them — in the external oversight arrangements that apply to the AFP’s operations; the only external oversight of SIOs will be by the Inspector-General of Intelligence and Security, which is little reassurance given Vivienne Thom’s performance.

3. “Whistleblowers can be jailed for revealing intelligence operations.”

They can, in the same way that journalists can, except that under the changes recommended by JCIS, whistleblowers can now go to the IGIS to reveal wrongdoing in SIOs without the threat of jail. The fact is, the government already has more than enough ammunition to fire at whistleblowers: it is engaged in an outright war against them under existing laws. The additions to its armoury against whistleblowers contained in the bill, which relate to prohibitions on intelligence officials collating material, Edward Snowden-style, are mere minor additions to its existing array of weapons.

4. “The government has reversed the onus of proof for people accused of being foreign fighters.”

No, it hasn’t. Rather than some unprecedented overturning of the core principles of justice, establishing an offence and making available defences that a defendant can use against prosecution for them has been done before in relation to a variety of greater or lesser crimes. In any event, the bill addressing the foreign fighters issue is set for a JCIS inquiry in coming weeks, so lawyers will have an opportunity to tease this one out if they disagree with that interpretation.

5. “The legislation allowed torture.”

It never did — this was a beat-up by Senator David Leyonhjelm and a far-right Fairfax columnist. In any event, it’s now been explicitly ruled out.

***

These explanations aren’t to defend elements of the legislation — we’ve explained time and again, and often been the only ones doing so, how the power to “disrupt” a computer under warrant is dangerous both for the target of the warrant and even, potentially, for ASIO. We’ve argued how these extensions of powers require extensions of oversight. The “Snowden” amendments perpetuate George Brandis’ disgusting war on whistleblowers, signalled by his craven pursuit of the ASIS East Timor whistleblower and lawyer Bernard Collaery. And the government has yet to appoint a new Independent National Security Legislation Monitor.

But taking a cool and rational approach to this legislation is important, because there’s worse to come. The foreign fighters bill extends preventive detention and control orders — mechanisms that, as we’ve pointed out seemingly endlessly, the then-Independent National Security Legislation Monitor Bret Walker SC urged to be abolished. And then there’s data retention, which will be introduced later in the year.

Data retention is a far greater direct threat to whistleblowers and journalists (and politicians) than anything in the bill passed last night. If media outlets like News Corporation are concerned about the chilling effect of the SIO provisions, then they should be screaming blue murder about the prospect of the police and ASIO being able to track every journalists and every source and all the calls they make. Instead, News Corp outlets like The Australian have been cheering on data retention, but that’s another story.

So the big fights are to come on national security powers. Misplaced hysteria now doesn’t help the chances of having a proper debate that can draw out the weaknesses in the case put forward by the government and national security apologists.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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