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Two federal watchdogs leave their positions, raising issues on access to encrypted data and questioning of minors. By Karen Middleton.

National watchdogs’ warnings about security laws

Two key national security watchdogs have offered a final warning as they leave office about the intrusive powers being granted to Australia’s security agencies.

The inspector-general of intelligence and security, Margaret Stone, who finished her five-year term on Sunday, raised concerns in her last written submission to parliament’s joint committee on intelligence and security (PJCIS) about proposed changes to the powers of the Australian Security Intelligence Organisation relating to tracking devices, external scrutiny and interrogating children.

Dr James Renwick ended his three years as the independent national security legislation monitor on June 30. The government tabled his final report, examining the government’s encryption laws, in parliament this week.

Renwick, who is being replaced by Western Australian lawyer Grant Donaldson, SC, concluded the encryption laws are necessary but placed caveats on his support, saying they could be considered proportionate “only if the central recommendations … are implemented”.

Renwick said only the Administrative Appeals Tribunal should be able to authorise voluntary and compulsory access notices, not agency heads or the attorney-general.

He proposed appointing an investigatory powers commissioner to examine the access notices and advise on their approval.

Renwick said the power to access encrypted data should be extended to anti-corruption bodies, including the proposed national integrity commission.

He rejected the government’s argument that the notices were relatively insignificant mechanisms and that the more important content still required a warrant.

“I consider that there is a greater need for safeguards in the virtual world than in the physical world, for both reasons of trust and the wide and unknown impact of technology,” he wrote.

He also recommended narrowing the law’s definition of a “serious offence”.

The ASIO bill is the latest in a raft of national security legislation pushed through parliament in recent years in a high-tempo period for the security agencies.

In her submission on proposed changes to the ASIO Act currently before parliament, Margaret Stone noted the spy agency’s existing questioning powers exceeded those of the United States’ Central Intelligence Agency and Britain’s MI6. “To the best of my knowledge, no other Five Eyes country has comparable legislation,” she wrote.

The new ASIO bill scraps the draconian questioning-and-detention power, which has long been criticised as excessive and unnecessary – including by the watchdogs – and has never been used. It also removes ASIO’s power to strip-search.

While reining in some powers, the legislation increases others. Its separate questioning power would remain, and a warrant would no longer require authorisation by a judge, only the attorney-general.

Margaret Stone, whose replacement hasn’t been announced, noted this also departed from the practice in other Five Eyes jurisdictions, where the trend favours increased external authorisation.

Where such approval is still required, the bill expands the categories of authorities who can give it – no longer only judges and senior AAT members but any lawyer who has practised for at least 10 years.

It also expands grounds for obtaining a questioning warrant and lowers the minimum subject age from 16 to 14 years.

For the first time, minors could be questioned without a parent, guardian or chosen lawyer present. ASIO could appoint an interim lawyer and, provided that person was present, questioning could begin.

Stone didn’t express a view on the questioning of minors, saying it was outside her remit, but she drew attention to it and said her office may seek expert guidance to ensure the child’s best interests and vulnerabilities were considered.

Stone highlighted that ASIO would be able to authorise its own tracking devices without the attorney-general’s approval and the definition of both “tracking” and “device” would be widened.

The authorising officer would no longer have to be satisfied that someone was themselves prejudicial to security in order to install tracking devices, just that they might be able to substantially assist in a security matter.

The new ASIO bill also effectively sidesteps some existing state and territory restrictions that prevent ASIO from using tracking devices without obtaining a warrant.

It would particularly affect Victoria and the Australian Capital Territory.

The PJCIS has not yet issued its report on the ASIO bill but it will likely echo some of the concerns that Stone and others, including legal and human rights organisations, have expressed.

The ASIO bill will also have a knock-on effect for its foreign-focused equivalent, the Australian Secret Intelligence Service.

Under the Intelligence Services Act, ASIS can’t do anything in relation to Australians abroad which for ASIO would require a warrant.

But the bill paves the way for ASIS to also use devices to track Australians overseas, in support of ASIO operations.

The government is running out of time for its bill to pass, with its unpopular questioning-and-detention powers due to expire on September 7.

Without bipartisan support, it may have to do what it’s done before and push out their inbuilt sunset clause instead.

This article was first published in the print edition of The Saturday Paper on Aug 29, 2020 as "Farewell addresses".

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