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Home Affairs Minister Peter Dutton seeks to allow the agency to plant surveillance devices with no warrant, among a raft of sweeping changes. By Karen Middleton.

Dutton pushing for new ASIO powers

The federal government wants to expand the surveillance, questioning and data access powers of the domestic spy agency, ASIO, putting two key pieces of legislation to a pared-down parliament during the Covid-19 crisis.

Watchdog organisations are raising concerns about both bills, saying they are too broad and could contravene a range of rights.

On Tuesday, the Inspector-General of Intelligence and Security (IGIS), Margaret Stone, told a parliamentary committee examining the first piece of ASIO legislation, the Telecommunications Legislation Amendment (International Production Orders) Bill, that its powers could lead to “cruel and inhuman punishment” without more checks and greater transparency.

The bill was introduced on March 5 and is designed to underpin an agreement Australia is forging with the United States to enable access to telecommunications data stored by American tech companies. It would align Australian law with the US CLOUD Act and also allow the US to access Australian data, without the need to consult each other’s governments first.

Under the bill, ASIO has confirmed it could access not only encrypted communications but also live-streamed data and messages being exchanged via offshore servers in real time.

The agency can already do this for servers located in Australia.

The bill strips back existing protections for journalists and potentially allows ASIO to access telecommunications data stored on an offshore server without a journalist information warrant.

Home Affairs told the parliamentary joint committee on intelligence and security (PJCIS) that external approval would still be required, from either a judge or a member of the Administrative Appeals Tribunal. But the department’s assistant secretary, Andrew Warnes, acknowledged that other existing safeguards providing extra layers of scrutiny would be removed.

Margaret Stone told the committee she was concerned the bill watered down those protections, contained inconsistent definitions, could leave the attorney-general facing urgent ASIO requests for data access without being told why they were urgent, and lacked disclosure and accountability provisions, which risked seriously undermining trust with the community.

“It seems to me you don’t deal with public concern by hiding,” Stone said. “One marker we use is comparison with what happens overseas … On the whole, the processes [in countries such as Britain], I think it’s fair to say, are rather more transparent than here.”

Home Affairs Minister Peter Dutton introduced a second, unexpected ASIO bill into parliament on Wednesday, which abolishes a controversial questioning-and-detention power granted in 2003. Under this, the agency can arrest people suspected of engaging in, or knowing about, terrorism activities and detain them for seven days, restricting the choice and role of their lawyer.

ASIO did not request the detention power and has never used it. It has used the questioning-only power just once.

The government has been urged repeatedly to repeal the detention power. In 2012, the then independent national security legislation monitor Bret Walker, SC, recommended it and his successor Roger Gyles reiterated that call.

Both the PJCIS and IGIS repeated the advice in 2018 when the power was about to expire under a two-year sunset clause. Instead, the government chose to renew it.

With the power set to expire again in September this year, Dutton now wants legislation passed before then.

ASIO’s operating guidelines also have not been updated in more than a decade, despite repeated government assurances – given again this week – that updates were imminent.

While the bill scraps the detention element, it expands the questioning powers, extending them to investigations into espionage and foreign interference. The PJCIS recommended some of those expanded provisions in its 2018 report.

The new bill would give ASIO warrantless powers to plant surveillance devices, approved only by another ASIO officer.

It lowers the age at which people can be questioned from 16 to 14 years – a move arising from the 2015 shooting murder by a 15-year-old boy of New South Wales Police accountant Curtis Cheng – and widens the scope to eject “disruptive” lawyers.

This week, Bret Walker, SC, told The Saturday Paper that although he supported some of the bill’s measures, he was concerned about others.

Walker supported the lowered age for questioning because “14 is not, alas, too young to do terrible things”. He also endorsed extending the regime to espionage and, in principle, foreign interference.

But he warned “foreign interference” was broadly defined in other legislation and, without clarification, the change could lead to people being questioned for simply liaising with organisations that involved foreign governments.

He was also concerned about any move to let ASIO officers authorise their own surveillance practices.

“I certainly think authorisation from within the agency, instead of a warrant from outside the agency, be it judicial or otherwise – I think that’s a backward step,” Walker said. “I think that’s needlessly giving up one of the boosts to legitimacy.”

Introducing the new bill on Wednesday, Minister Dutton said ASIO’s surveillance powers had not kept pace with the nature of threats.

Currently, the agency requires sign-off on warrants from the attorney-general.

“The bill proposes changing this arrangement to allow non-intrusive tracking devices, such as a device placed on a vehicle, or in a person’s bag, to be authorised internally by a delegated senior ASIO officer,” Dutton told parliament.

He said more intrusive and possibly unlawful acts, such as entering a building or vehicle, would still require ministerial approval.

In her evidence on the first bill, Margaret Stone warned its wording could empower relatively junior ASIO officers to lodge international production orders for telecommunications data.

Appearing before the committee on Thursday, ASIO deputy director-general Peter Vickery agreed that should be clarified.

“It is certainly not the intention from anyone in the organisation… that it will be a carte blanche ability for anyone in the organisation to apply for an IPO,” he said.

The Law Council of Australia and the Australian Lawyers Alliance questioned both the new bill’s timing and its contents.

The council’s president, Pauline Wright, is concerned about removing the right to remain silent, subjecting 14-year-olds to “a coercive questioning regime”, having police arrest people on ASIO’s behalf, and the approval process for tracking devices.

“If they slip it into your handbag or attach it to your car, they don’t need a warrant or the attorney-general’s approval,” she said.

Australian Lawyers Alliance spokesman and former president Greg Barns is concerned the bill was tucked into a list of 28 that Coalition MPs approved on Tuesday.

“If this was an ordinary sitting week without Covid, there’d be more scrutiny,” he said. “This is not the sort of legislation that should ever be put in the ‘miscellaneous’ pile.”

He said the bill further undermined the lawyer–client relationship and it was “no exaggeration” to draw comparisons with non-democratic regimes.

“As a lawyer, you read stories about your colleagues in places like China, where this is routine – the interference of the state,” he said.

The PJCIS is examining the second ASIO bill and must report by May 22.

This article was first published in the print edition of The Saturday Paper on May 16, 2020 as "Dutton pushing for new ASIO powers".

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

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