The agency’s watchdog, tasked with unravelling the breach, has echoed growing concern about flawed and confusing new anti-terror laws. By Karen Middleton.
ASIO officers broke law on warrant
While Australia’s domestic spy agency, the Australian Security Intelligence Organisation, was running a foreign-intelligence operation early last year, its officers broke the law.
During what was described as a “multi-faceted, multi-agency” operation, they collected intelligence without a warrant, mistakenly believing they didn’t need one.
The agency’s lawyers weren’t told when the operation changed, meaning officers acted without proper legal advice and, at times, outside the complex web of laws governing their work.
Officers were also seconded to ASIO from other agencies for the operation without legal authorisation and were then inadequately managed and supervised. The required reports were not filed.
These were the findings of a 16-month investigation by the Inspector-General of Intelligence and Security (IGIS), the security agencies’ watchdog, after ASIO discovered and reported its mistakes.
The IGIS found the breaches were inadvertent but ASIO’s procedures had not kept up with legislation and it had provided “little, if any” compliance training to ensure its officers actually understood the laws under which they worked.
It found the “significant problems” in planning and executing the operation had stemmed from “systemic weaknesses” in compliance.
“Whilst operational staff complied with ASIO’s operational planning procedures, these procedures were inconsistent with other ASIO policies and were insufficient to ensure that ASIO acted lawfully,” the IGIS said in its recently published annual report.
On Thursday, in response to written questions, ASIO’s director-general of security Mike Burgess told The Saturday Paper that his agency is “committed to operating legally and ethically and takes compliance seriously”.
“ASIO is also committed to a culture of transparency and robust independent oversight, and we continue to work with the IGIS to identify where processes can be further improved,” he said.
He said the Australian community rightly expected intelligence agencies to be subject to scrutiny and oversight.
“There is a high degree of compliance with formal and procedural requirements – from time to time there will be human administrative errors.”
Burgess said his predecessor, Duncan Lewis, had accepted the IGIS’s report and the implementation of her recommendations was under way. He said ASIO had upgraded its training and IGIS had acknowledged it had also improved its procedures for reporting breaches.
The ASIO breach highlights the pressure a huge volume of national security legislation is placing on those tasked with its execution. Those responsible for its drafting and scrutiny are also feeling the strain.
In some cases, national security legislation has been found to grant powers beyond the declared objectives – apparent unintended consequences, which are causing alarm for watchdogs both inside and outside of government.
Last week, the IGIS lodged a submission with another oversight body, the parliamentary joint committee on intelligence and security (PJCIS), which is investigating federal laws designed to force tech companies to grant security agencies access to encrypted communications.
Parliament passed the encryption laws late last year, despite strong warnings from the tech industry and some legal experts that they could be dangerous.
The government agreed the PJCIS should examine the laws again.
In her submission last week, IGIS Margaret Stone raised ongoing serious concerns about how the laws are drafted, especially about ASIO’s powers to make voluntary assistance requests and compulsory assistance orders.
Stone found the legislation’s wording meant people subject to compulsory orders did not have to be told about them. She said the orders could also apply both before an underlying warrant was executed and after it ceased.
She found people could be subject to arbitrary arrest and detention because the orders did not have to detail where their subjects had to attend, the assistance required, or the time frame.
Stone cautioned that people could face up to five years’ jail for breaching an order they did not know existed.
ASIO was also not required to delete information obtained under an assistance order that was no longer required, despite the ASIO Act requiring it.
Margaret Stone found the Telecommunications (Interception and Access) Act allowed agencies to grant tech companies and individuals immunity from civil liability for providing access to someone else’s encrypted data without having to demonstrate the action was reasonable or proportionate.
She found limits and safeguards were inconsistent and sometimes missing and that ASIO’s operating guidelines, which are issued by the attorney-general, had not kept up with technology.
They have not been updated since 2007, despite the PJCIS recommending an update in 2014. Attorney-General Christian Porter told The Saturday Paper the minister for Home Affairs, Peter Dutton, was now responsible for any update of the guidelines.
Porter said the federal government was committed to protecting Australians from terrorism and responding to ever-evolving security threats.
“Amendments to legislation happen regularly during the parliamentary process – that is not unusual or concerning, but is a reflection that national security legislation often deals with issues on which people have strongly held but different perspectives,” Porter said.
He said the PJCIS’s recommendations for change were “almost always accepted”.
“The government continues to monitor the operation and effectiveness of national security legislation, to ensure that it strikes the right balance between protecting individuals’ rights and protecting the community from individuals who pose threats to national security,” he said.
The PJCIS has been pushing back against initial – and sometimes amended – versions of national security laws, deeming regularly that they are not good enough.
That work echoes concerns of the IGIS, the independent national security legislation monitor (INSLM), the Law Council of Australia and other respected organisations.
According to a list maintained by law academics Dr Dominique Dalla-Pozza of the Australian National University, Dr Keiran Hardy of Griffith University and Dr Nicola McGarrity and Professor George Williams of the University of New South Wales, federal parliament has enacted 83 separate pieces of national security legislation since the September 11, 2001 terrorist attacks on the United States.
One of Australia’s most respected lawyers, Bret Walker, SC, said this week that the volume and hasty drafting of legislation was “a problem”.
Walker was the first INSLM, appointed for three years when the position was created in 2011. He argues that too many special laws are being written and enacted to combat the terrorism threat when it can be addressed under existing criminal law.
“It largely comes about from a well-meaning but inappropriate belief that these problems are most appropriately dealt with by legislation,” Walker told The Saturday Paper.
He said terrorism was wrongly being portrayed as a problem threatening the very existence of Australia.
“It’s not an existential problem,” he said. “It’s a murder problem that we should take seriously.”
Walker said he was “all in favour” of the special expenditure and infringement of privacy required for appropriately safeguarded surveillance – when it was effective.
“One needs to ask what more is necessary,” he said, suggesting that whenever issues around terrorism arise “someone just says, ‘Oh, let’s have another law’ ”.
But this approach risks “the possibility that we’ll confuse legislation with prevention”.
Walker said it was more important to direct funds to properly resource security and law-enforcement agencies.
He said parliament is not correctly engaging with the problem.
“Why would we do for terrorism what we don’t do for domestic violence?” he asked, referring to powers of detention, control and questioning, and noting that family violence claims many more lives than terrorism.
“It’s thought to be popular politics to be able to point to ever-more-special laws. I think it’s at the political level that the failure occurs – failure properly to test whether yet another law is really needed and whether a new law has an appropriate level of safeguards.”
Back in 2011, in his first INSLM yearly report, Walker noted most national security legislation was being enacted on the grounds of an urgent and extraordinary threat.
He rejected the argument made at the time that such laws required only light scrutiny because they were temporary. He said they were likely to be permanent and should be examined closely from the beginning.
“Otherwise, there is likely to be an unfortunate embedding of temporary extraordinary powers more or less permanently,” he wrote.
Walker said this week he remains concerned about the creep of special terrorism measures into other parts of the criminal law.
“That seems to me to be something that we – voters, citizens, residents, lawyers – should all be looking at,” he said.
One group that has being doing that is the Law Council of Australia.
Its president, Arthur Moses, SC, told The Saturday Paper that the breadth of legislation allowed security agencies to “pick and choose” which to rely on.
“This is unsatisfactory,” Moses said this week. “As a direct result of this, there are a myriad of unintended consequences which infringe the rights of citizens and the freedom of the press. It is important that the parliament review this legislative framework with the benefit of expert advice. This will assist in ensuring these laws are applied appropriately, not disproportionately.”
Moses said politics has driven the legislative program.
“Regrettably, we have seen in Australia an increasing move towards legislation that has been rushed for political purposes without adequate consultation,” he said. “Such consultation could have identified clear deficiencies … There are a myriad of laws that overlap and are confusing as to their scope and reach.”
Moses said the Law Council supported ongoing review but that it was “only meaningful if expert advice is not ignored”.
Recently, the PJCIS wholly rejected proposed government legislation that would legalise the use of facial recognition technology for security purposes, recommending it be completely redrafted.
It has previously prompted substantial redrafting of the encryption laws and of separate legislation to temporarily exclude from Australia dual nationals linked to terrorist groups and to strip some of citizenship.
While the federal Home Affairs minister, Peter Dutton, and Attorney-General Christian Porter have redrafted legislation on the basis of advice from the various oversight bodies, not all recommendations have been adopted.
The PJCIS’s second report on encryption laws is due next year.
Separately the current INSLM, Dr James Renwick, is also examining them.
Renwick recently hinted at concern about the volume and nature of legislation.
In a speech to the Lowy Institute in June, he said his job involved assessing whether security laws worked, went too far and properly dealt with human rights concerns.
“In a sceptical world, it is no longer enough for any government or minister to say ‘Just trust us’ or ‘If you knew what I know, you would be satisfied’,” Renwick said.
He said the encryption laws involved “many controversies” and that national security laws were “often unsettling in their novelty and reach”.
The Saturday Paper understands Renwick plans to spell out his concerns about the security legislation in his final annual report next year.
Increasingly, watchdog bodies are reaching out to the wider community to assess the likely impact of these laws.
For the first time in one of his reviews, Renwick specifically sought the views of industry on the encryption laws.
Separately, the IGIS has established a permanent civil society reference group to advise on the real-world impact of security laws.
UNSW’s Professor Williams told The Saturday Paper there was a pattern of rushed legislating on security.
“They’ve passed laws that are not fit for the statute book,” Williams said. “There’s always a sense of political urgency to this, there’s political point-scoring.”
Williams said the drive for bipartisanship affected contestability.
“The lack of scrutiny, of checks and balances, means in Australia really, the quality of these laws depends on the work of parliament,” he said. “And when parliament is in agreement that these laws simply must be passed and the drafting and quality of the laws can be secondary, you end up with our current predicament of a vast number of counterterrorism laws being enacted, many of which are poor quality and overbroad.”
The PJCIS’s members traditionally come only from the Liberal and Labor parties. Independent MP and former intelligence analyst Andrew Wilkie served on it for three years – the only crossbencher to do so, as part of the deal that delivered minority government to Labor’s Julia Gillard in 2013.
Wilkie also says legislation is being pushed through too fast.
“The security agencies are being asked to fill in a blank cheque,” he says. “They’re professionals and they want to have all the tools they need to get the job done… The failure is by government in not being able to stand up to them and rein them in. Who wants to be the minister who stands up to them and then something happens? So, no government or opposition wants to be caught out. But that doesn’t let them off the hook. They do have to be prepared to keep some restraint on these agencies.”
George Williams praised Bret Walker for having been prepared to raise such concerns about overreach, concerns that both Labor and Coalition governments ignored.
Williams has also written about the expanded application of counterterrorism laws into the broader criminal domain, particularly control orders used in a crackdown on bikie gangs.
On Wednesday, the High Court handed down a judgement in a case involving a member of an outlaw motorcycle gang, Damien Charles Vella, who had challenged the validity of a control order brought against him under New South Wales law.
Vella’s lawyers asked the court to rule that the law was unconstitutional, arguing it breached judicial independence.
The court ruled 5-2 that the Crimes (Serious Crime Prevention Orders) Act 2016 was valid and threw out Vella’s challenge.
But in her reasons as part of the majority judgement, Chief Justice Susan Kiefel said she almost ruled the other way, effectively sounding an alarm about how national security laws are being drafted.
Kiefel’s written reasons warned that legislation can risk impinging on judicial independence when its wording contains assumptions that restrict what a court can find. Such assumptions can leave the court having to rubber-stamp government policy – a move which would render a law invalid because the constitution demands the court be independent.
The NSW act provides for the use of control orders against people aged 18 and over who have been convicted of serious crimes or are reasonably suspected of being involved in them.
It says a control order can be made when it “would protect the public by preventing, restricting or disrupting” serious criminal activities.
Chief Justice Kiefel noted the wording assumed both that public protection was necessary and that such a control order provided it.
The wording authorises the court to make orders as it deems “appropriate” to protect the public from risk.
Kiefel said that wording made the public risk “an assumed fact” that did not allow the court discretion to assess whether it existed.
A British judgement in a different case supported the government’s interpretation of the wording and the High Court majority of five judges, including Kiefel, found the NSW law was modelled on that.
But Kiefel stated that if not for the role of that British case from 2010, R v Hancox, her view would be different.
She said she “would have been inclined” to interpret the NSW law as giving “an eligible court such a limited role that it could be concluded that the court had been enlisted by the legislature to do the work of the executive”.
On the key question of whether the NSW law was invalid, she wrote: “If that conclusion were reached, the answer to Question 1 would be ‘Yes’. But the British judgement meant it was ‘No’.”
The judgement is a reminder that the High Court is not empowered to act as an arbiter of values. Without a bill of rights, it cannot rule on the fairness or reasonableness of Australia’s laws, only on whether they are valid under the constitution and whether they are being upheld. The other work is up to parliaments.
Australia is the only country among similar democracies not to have a bill of rights. While advocates say it is long overdue and would better uphold rights and freedoms, critics warn it could undermine democracy by giving too much power to an unelected body – the court – rather than requiring accountable parliaments to put the protections in law.
While a bill of rights is not up for consideration, Australia’s national security laws are being examined overall in a comprehensive review of the intelligence community’s legal framework.
That report, by former ASIO chief Dennis Richardson, is due next month. Among all the investigations, it may be the only inquiry with the scope to examine not just the reach of the laws governing the work of security agencies but the principles that are meant to underpin them.
This article was first published in the print edition of The Saturday Paper on Nov 9, 2019 as "ASIO officers broke law on warrant".
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