George Brandis's creeping spy powers
The first hint the government would push for the expanded spying powers came at the end of last month, in an exclusive story in The Daily Telegraph. The Sydney tabloid is a favourite of the government’s, and the piece revealed what would become a key message: the Australian Security Intelligence Organisation (ASIO) would be given “the ability to tighten the national security net on potential jihadists”.
Asked about it that day, Prime Minister Tony Abbott rammed home the message that the mooted legislative changes would target jihadists returning to Australia. Using not so much a dog whistle as a foghorn, he conflated the threat they posed with the challenge of responding to people seeking asylum. Language that had worked so well at the last election was repurposed and redeployed: “We’ve stopped the illegal boats; we will ensure we stop the jihadists as well.”
It was not a throwaway line. In case anyone missed it, he used it again the next day in the meeting of Coalition MPs, signalling that he wants his troops to take this message back to their electorates.
A year ago, amid global debate about extensive surveillance activities by American intelligence agencies, a parliamentary committee in Australia released a report responding to spy agencies’ requests for more powers.
An election was looming and there was no appetite anyway for immediate action, as the world discussed material leaked by Edward Snowden that revealed the National Security Agency’s predilection for intercepts.
Now, however, the government is talking up the threat posed by jihadists returning to Australia from Iraq and Syria and using the report of the joint parliamentary committee on intelligence and security as an alibi for sweeping changes to give spy agencies powers they have long sought.
Members of the committee have told The Saturday Paper that it is misleading to suggest the mooted changes were designed to target jihadists. Instead, they are part of a long wish list of powers from security agencies, directed at a range of possible threats.
Although the extra powers might be useful in targeting homegrown terrorism, the main rationale was modernising and boosting counter-espionage capabilities to deal with threats such as Chinese cyber-hacking.
A year after the committee published its report on “Potential Reforms of Australia’s National Security Legislation”, the federal government intends to act.
“I will be introducing legislation in the next sitting fortnight to give effect to the recommendations in chapter four of that report,” Attorney-General George Brandis told the senate on June 25.
“They are recommendations which deal with the powers of Australia’s national security agencies.”
More interesting than what he said was the context in which he said it. Brandis was responding to a pre-arranged question from a Coalition MP about what the government was doing to “keep Australia safe from the threat of returning foreign fighters and violent extremism”.
The chapter four recommendations include allowing ASIO to hack into a “third-party” computer of an unrelated person in order to access the target computer; allowing the “disruption” of a targeted computer, which privacy advocates argue could pollute evidence and lead to a target being framed; and broadening the scope of interception warrants so they apply to an entire network of computers or all devices associated with a person.
Other changes include facilitating joint operations between ASIO and the Australian Secret Intelligence Service (ASIS) and the Australian Signals Directorate (DSD), which operate overseas; allowing the attorney-general to renew warrants, which would remove the need for ASIO to apply for a new warrant after six months; and introducing “named person warrants”, allowing ASIO to use multiple powers against a single target covered by one catch-all warrant.
Under such powers, spooks could hack into entire computer networks, even using the computers of innocent third parties to access their target. And once they’ve hacked in, they could install surveillance devices or malware to disrupt communications or erase their digital footprints.
Independent MP Andrew Wilkie, a former intelligence officer, was a member of the committee that, over the course of a year, examined the extra powers sought by spy agencies.
“It’s not just about jihadists or the threat of extremist Muslims. The more common security challenge we have to deal with every day is the threat of espionage and computer espionage,” he says.
“The suite of reforms reflect the whole range of threats, including the threat to Australia from other countries. It’s no secret China has a very aggressive espionage program, but so do a number of other countries, including [some] in our region.”
In the senate, Brandis’s answer started with a riff on the threat posed by up to 150 Australians who are involved in some way in the conflict in Iraq and Syria, where the terrorist group the Islamic State of Iraq and the Levant has declared an “Islamic caliphate”.
They face up to 25 years’ jail if they are found to have supported a terrorist group. Some passports have already been cancelled. But Brandis then flagged the “additional legislative measures” the government would pursue, based on chapter four of the committee’s report, giving spy agencies new powers to snoop online.
These extra powers for online interception will be the first in a series of national security reforms pursued by the government, which is also looking at enhanced powers to investigate citizens fighting abroad and ensure the evidence gathered is admissible in Australian courts. The latter relates directly to the threat of returning jihadists, but the chapter four changes were devised with other threats in mind.
Greens senator Scott Ludlam says he is not surprised the government is starting with the chapter four changes, given that Brandis’s chief of staff, Paul O’Sullivan, is the former head of ASIO.
“This was cooked up long before Iraq started floating into the abyss. The real reason for this is that the agencies want continual expansion of their powers,” Ludlam says. “The powers are being expanded and the checks and balances are not.”
“There’s no question at all that a lot of these tools are directed towards economic espionage or repulsive activities like bugging the East Timorese. My concern is we would never know to what extent they are used against civil society and climate change groups.”
As the government struggles to sell its unpopular budget and pass key measures through an unpredictable senate, which convenes for the first time on Monday, it is trying to steer the debate towards a topic where it believes it is on surer ground and has the upper hand over Labor. Some in the opposition are concerned the government is trying to set up a “legislative Tampa moment”, referring to the dilemma Labor faced in the lead-up to the 2001 federal election as the Howard government dispatched special forces to turn around a Norwegian freighter that had rescued stricken asylum seekers.
Shadow attorney-general Mark Dreyfus cautions that Labor will not simply rubber-stamp legislation without proper scrutiny. He says it is vital the government heed recommendation 41 of the committee’s report, which says there must be an exposure draft of any legislation for public consultation and review by a parliamentary committee.
“Not only should Labor be shown exposure legislation but so should the Australian public before the government brings legislation into the parliament,” he says.
Brandis said on Wednesday that he intends to introduce legislation into the senate in the week starting July 14.
Recommendation 41 also says any changes should be reviewed by the Independent National Security Legislation Monitor – whose position has been abolished as part of the Abbott government’s red-tape repeal – and by the inspector-general of intelligence and security.
Dreyfus says national security legislation does need to be updated in the light of technological advances, but this is something that has been under way for years, rather than just in response to the flare-up in the Middle East.
“These are recommendations that comprehensively address a range of issues across our national security framework,” Dreyfus says of the committee’s report. “They are relevant to matters that go well beyond the current conflict in Syria and Iraq.”
As a former intelligence officer at the Office of National Assessments, Wilkie understands why intelligence agencies are pushing for changes in a world where it no longer suffices to seek one phone interception warrant against someone who may be communicating via five devices.
He also explains the controversial proposal for allowing ASIO to access a “third party” computer. “Just as other countries come through someone else’s computer or a succession of computers to hide their activity, it’s a logical approach for our agencies to want to be able to do that, too.”
But Wilkie says that intelligence agencies will always ask for extra powers and it is the job of parliament and the government to weigh up the privacy issues and the loss of personal liberty.
“The intelligence agencies are clearly of the belief all these proposals will make them more effective. It’s logical from a security point of view,” he says. “The issue is not: would it enhance Australia’s security? In every case it would. But having a police state would also enhance our security.”
The “third party” access raises concerns that ASIO could secretly access computers of those whom it could argue may have been the subject of espionage; for instance, resource companies, journalists or politicians. The computer owner may never know ASIO was there.
As far back as March 2008, the attorney-general’s department was already petitioning the new Labor government for law changes to enhance their powers for online surveillance and data retention.
In mid-2012, then attorney-general Nicola Roxon asked the joint committee to examine and report back on a range of measures. She provided the committee with a discussion paper from her department, summarising the changes requested by security and intelligence agencies.
The data retention issue dominated public debate but proved too difficult for the committee, which said the privacy implications were so significant it should be a question for government. Brandis has not yet signalled movement on data retention but may tackle it later. The controversy over data retention overshadowed other changes considered by the committee. Its report was tabled on June 24, 2013.
Brandis points to the committee’s report as evidence of bipartisan support for legislative change. But as he served on the committee in the previous parliament, he knows that its report contains a lot of caveats and did not endorse changes to laws without further review. Although comprehensive, the committee’s report was hamstrung by circumstances.
In an introduction to the report, the committee’s then chair, Labor MP Anthony Byrne, wrote: “The lack of any draft legislation or detail about some of the potential reforms was a major limitation and made the Committee’s consideration of the merit of the reforms difficult.”
Professor of international law at the University of Sydney, Ben Saul, sounds a warning: “Amidst global concern about security agencies having too much power and always pushing the boundaries of what they say they need, it is pretty extraordinary that Australia is sleepwalking into more surveillance powers without proper consultation and scrutiny.”
For now, the government is testing the water with its first suite of national security reforms to be introduced to parliament amid public concern about returning jihadists. Stay tuned for an escalation in rhetoric as it prepares to demonstrate its tough credentials and dares Labor to differ.
This article was first published in the print edition of The Saturday Paper on Jul 5, 2014 as "Hiding spies behind jihad". Subscribe here.