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A new Office of National Intelligence will have increased powers to access personal information and scrutinise online activities. But who will monitor the monitor? By Karen Middleton.

New domestic intelligence powers

Australia’s intelligence community is set to increase its monitoring of Australian citizens and bypass privacy laws blocking access to personal information, with its focus also expanding to domestic political activity for the first time since the 1970s.

As part of the overhaul of national security architecture, prompted by last year’s independent intelligence review, the new Office of National Intelligence (ONI)within the prime minister’s department becomes the senior agency and central coordinating body for Australia’s intelligence agencies, now expanding from six to 10.

In replacing the Office of National Assessments, ONI’s remit will be extended from collecting only international open-source information and preparing assessments on how overseas developments affect Australia, to collecting domestic information, too, scanning social media and other online material for local activity that could threaten national security.

ONI will also have access to personal information that other government agencies have collected for other purposes and may be able to access private social media accounts.

Legislation to establish the new office confirms four more organisations will be designated as intelligence agencies – the departments of Home Affairs and Defence, the Australian Federal Police and the Australian Transaction Reports and Analysis Centre (AUSTRAC), which tracks suspect financial transactions. They will be partially exempted from the Privacy Act to enable disclosure of personal information to ONI.

Other departments and agencies right across government will be enabled to effectively sidestep privacy laws and provide Australians’ personal information to ONI voluntarily, apparently without a warrant being required.

The watchdog parliamentary joint committee on intelligence and security is currently examining the ONI legislation.

Security experts have told The Saturday Paper that rapidly changing technology and terrorist methods mean greater sharing of information between government agencies is both essential and inevitable. But they say there must be adequate protections and stronger oversight built in to prevent the system being abused.

The ONI legislation also broadens the definition of public information, allowing ONI to collect some online data that Australians might generally assume to be private. It describes this as “information relating to matters of political, strategic or economic significance to Australia that is accessible to any section of the public”. It appears the phrasing may allow it to include accounts on social media sites such as Facebook, even if they are set to private.

In a submission to the committee, the inspector-general of intelligence and security (IGIS), Margaret Stone, has confirmed this could include “activities in closed forums where membership must be approved by an administrator and/or requires payment of a fee, or where membership is limited to those with specialist skills, knowledge or access to technology”.

“Assessing whether information is accessible to ‘any section of the public’ is more difficult than it may seem,” Stone noted, saying she would scrutinise ONI’s collection activities.

The Department of the Prime Minister and Cabinet and the current Office of National Assessments have taken the unusual step of also making a submission to the parliamentary committee, known as the PJCIS.

Attached to it is a privacy assessment from the Australian Government Solicitor that says the bill’s wording will create what is described legally as “a relevant exception” to the law that usually prevents individual personal information being used or disclosed for a secondary purpose without consent.

“One such exception is where the use or disclosure of the information is ‘required or authorised by or under an Australian law’,” it says.

It says the ONI bill “will enable Commonwealth authorities to voluntarily disclose personal information obtained for the purposes of their own functions to the ONI on the basis the disclosure will be ‘required or authorised by law’.”

To obtain the information, the ONI director-general, Nick Warner – former head of the Australian Secret Intelligence Service – will have to first consult the agency and then make the request in writing.

While the Australian Government Solicitor assessment acknowledges ONI’s scope to collect information will widen, it says what it can do with it will be more restricted and there will be “a stronger and more transparent regime for the handling and protection of personal information than currently exists for ONA”.

The prime minister will be required to draft new privacy rules governing its handling and use.

The inspector-general of intelligence and security said the rules should be made public, as for those applying to other agencies. A spokesman for the Department of the Prime Minister and Cabinet told The Saturday Paper they would be, except for any parts that could identify a classified capability.

In the only other submission to the inquiry, the Law Council of Australia said the privacy commissioner should be consulted. The council says the ONI legislation should include privacy protection measures, such as requiring privacy impact assessments and yearly compliance audits, appropriate training and public reporting on the number of instances in which information is disclosed or used inconsistent with the privacy rules.

The PM&C and ONA submission confirms the new ONI’s role will reach beyond foreign intelligence assessments to also “prepare strategic-level intelligence assessments on other matters of political, strategic or economic significance to Australia”.

Combined with new laws on foreign interference, espionage and foreign influence, the arrangements also herald a new scrutiny of domestic political activity.

The joint submission seeks to allay fears about ONI’s role. “In performing this function, ONI may have access to a greater amount of personal information [relating] to Australians, however, ONI’s assessment focus will remain at the strategic, rather than the individual, level.”

The change reintroduces a focus on subversion absent from the remit of disrupting agencies such as the Australian Security Intelligence Organisation since the first Hope royal commission condemned its heavy-handedness in 1974.

To date, the guidelines governing ASIO’s work have limited its reach and effectively entrenched the right to peaceful protest and other lawful political activity in Australia. Those guidelines are being reviewed. ASIO remains a statutory authority but has moved from the Attorney-General’s Department to Home Affairs.

The head of the Strategic and Defence Studies Centre at the Australian National University, Professor John Blaxland, says the powers of the inspector-general of intelligence and security and the PJCIS need boosting to guarantee accountability in the new regime. “Power can corrupt, and to avoid the people who are operating in a very secretive space from abusing that power, the checks on that power need to be robust,” he said.

Blaxland, who co-wrote the official history of ASIO, says the provisions of the Intelligence Services Act requiring warrants for actions against Australian citizens should be explicitly added to the ONI legislation but that the warrant system should also be updated. He says the inspector-general’s expanded remit to cover the actions of all 10 agencies must also be explicit, to ensure her office is properly funded and resourced.

Blaxland says that with the boundaries of illegal activity blurring, powers to let federal and state agencies interact and share information must also be spelt out.

He echoed the argument that prompted the system overhaul – that without more cooperation, agencies can’t keep ahead of national security threats.

“It’s in that space between finding out something’s wrong and getting the warrant and acting on the warrant that things can go pear-shaped,” Blaxland says. “That’s what’s leading intelligence practitioners to say this isn’t fast enough.”

Centre Alliance senator Rex Patrick has drafted a private member’s bill aimed at expanding the PJCIS’s role beyond just scrutinising legislation and the intelligence agencies’ administration and spending to include their operations – something now only open to the IGIS, who has the powers of an enduring royal commission. He says parliament should be wary of agencies’ reach extending into ordinary Australians’ political and private lives.

Patrick says both the IGIS and PJCIS should be strengthened, pointing to Australia’s international security partners – especially Canada – where legislatures play stronger watchdog roles.

“If the intelligence community won’t trust elected members of parliament to examine their operations, at home and abroad, how can the parliament and public be fully confident that these very powerful agencies won’t one day be turned to partisan advantage by the government of the day in what could amount to a high-tech police state?”

Former ONA analyst and now independent MP Andrew Wilkie is similarly concerned. “I have a natural suspicion of anything in Australia that extends the power of the security services – the power of the state – because I believe Australia has already reached what I call a pre-police state,” he says.

But Wilkie takes “zero comfort” from calls to beef up the PJCIS, saying it has too few critical voices and tends to be “hawkish”. Other security sources say the IGIS’s power is appropriately greater.

Wilkie is the only non-major-party MP to have served on the committee, after the Greens insisted then prime minister Julia Gillard appoint him as part of their minority government agreement.

He is no longer a member and the committee again consists only of Liberal and Labor members, with governments believing minor parties and independents would undermine bipartisanship.

Another former analyst, Clinton Fernandes, now professor of International and Political Studies at the University of New South Wales, says the various new laws may mean agencies more closely monitor the activities of environmental and other protest organisations. But he says ONI’s central role as the new “tsar” of Australian intelligence is appropriate and suggests Wilkie is being “a bit alarmist”.

“I would avoid the words ‘police state’,” Fernandes says. “The term he’s looking for is ‘surveillance state’, or ‘intelligence state’… The effect of this is to give ONI the ability to reach down and get any information they want.”

He says renewed monitoring for subversion made parliamentary oversight even more important. The PM&C spokesman said the government was still considering further oversight measures recommended in last year’s review.

The government is also introducing other security legislation that would sidestep privacy restrictions, to permit telecommunications and technology companies to hand over so-called backdoor access keys to their customers’ encrypted information. The Assistance and Access Bill would allow the companies to enable access to encrypted sites, devices and applications voluntarily. It would also enable security agencies to force them to create and provide access if they refused, under threat of jail.

And it gives ASIO the power to seek a warrant to demand passwords, PIN codes or fingerprints to unlock personal smartphones, either from the phone’s user or from an associate with the information, with refusal punishable by up to five years’ jail.

After what the digital civil liberties group Digital Rights Watch calls “a ridiculously short” public consultation period in which 15,000 submissions were nevertheless lodged, the Coalition’s party room approved the bill this week.

The Greens are among those raising privacy concerns, warning it also creates a greater risk of hacking and will allow the information to be shared with Australia’s “Five Eyes” partners – the US, Britain, Canada and New Zealand. “It is akin to opening your mail, and allowing Donald Trump to read it over your shoulder,” says Greens senator Jordon Steele-John.

While the government dismisses the concerns, it’s a prospect that might make even more people sit up and take notice.

This article was first published in the print edition of The Saturday Paper on Sep 22, 2018 as "Information overlord". Subscribe here.

Karen Middleton
is The Saturday Paper’s chief political correspondent.