Security law overreach

The powers sought by ASIO are scary to contemplate ... Civil liberties people suggest ways to trim down the open slather ... Computer network surveillance ...Special Intelligence Operations ... Unauthorised disclosures ... Kevin Childs surveys the latest news from the secret state 

New and enhanced security measures

WITH what seems like a terrifying lack of scrutiny and comment, police state-style powers are being rushed forward.

That, at least, is the view of the Councils for Civil Liberties across Australia on aspects of the National Security Legislation Amendment Bill (No.1) 2014.

In their submission to the parliamentary joint committee on intelligence and security, the councils say:

"Persuasive evidence has not been provided to justify some of the new or enhanced security powers being proposed in this Bill."

In order to pare back on some of the extraordinary proposed powers a new statutory framework for the conduct by ASIO of special intelligence operations is proposed. 

The CCLs say justifications for the encroachment on human rights put forward in the explanatory memorandum and the Department of the Attorney General's submission are, in the main, "superficial and tokenistic".

For instance, the definitions of a computer and of a target computer as part of the computer access warrants regime are "ridiculously expansive and will allow for extraordinary and disproportionate invasion of the privacy of unknown numbers of non-suspect persons".

The civil libertarians say a tighter and clearer definition of a computer network must be developed or alternative terminology developed to set unambiguous boundaries as to computers or groups of computers covered by an access warrant, including limits on how wide a location can be specified.

"Access should not be permitted to any computer or computers unless reasonable grounds can be established for believing they hold data of importance in relation to security and that the target person had use of or access to these computers.

In addition, there should be a stronger burden of proof required for access to multiple computers beyond those on a household or local network. A two-tier warrant system would deliver a better safeguard."

The CCLs would like redrafted definition and warrant provisions to be prepared before parliament resumes consideration of the legislation. 

Definition of a computer network is unclear and uncertain

The councils also say that to protect the level of permissible disruption - especially to third party computers - there's a need for a less imprecise and open-ended limitation.

It asks that consideration be given to limiting the type of data that may be collected or interfered with as a safeguard against arbitrary interference with privacy.

Other accountability measures which should be considered, include:

• Limiting the power to specified categories of third parties (currently the Bill allows access to "any other computer or communication in transit");
• Creating a duty to notify third parties of the use at an appropriate time; and
• Creating a duty to rectify any interference made with a third party computer.

Those exercising the power to access third party computers should have to show the access would result in substantial operational and security benefits and that other methods of obtaining the information had been exhausted.

Deep unease also surrounds a proposed special intelligence operations (SIO) regime for ASIO.

The regime will provide ASIO officers and affiliates with immunity from criminal and civil liability when 

operating in an authorised special operation. 

The civil liberties councils suggest a body independent of and external to ASIO, which would be be required to authorise SIOs after the first three months, instead of the current proposal for SIO authorisations up to 12 months that can be renewed internally indefinitely. 

And as with other extraordinary new proposed powers for ASIO, the councils say the provision for SIOs should be subject to review and a sunset clause after three years. 

Special Intelligence Operation in progress

The Bill introduces two new offences relating to unauthorised disclosure of information relating to an SIO. 

Disclosures by any person including persons who are recipients of an unauthorised disclosure carry maximum penalties of five years' imprisonment and ten years for an aggravated offence.

"The Bill fails to draw an important distinction between disclosures which undermine the effectiveness of particular operations and endanger the lives of those involved in them, on the one hand, and on the other, public interest disclosures, for example those regarding any aspect of ASIO activity generally which might legitimately be considered a cause for concern.

The Bill provides for very limited defences largely relating to legal obligations to disclose or to the performance of ASIO functions. As a result, these provisions could, for example, be used to prosecute journalists who report in the public interest on information they receive about SIOs."

An accused person may not be aware that the information relates to an authorised SIO. They can be convicted on the basis of recklessness if they are aware of a substantial possibility that the information is in any way connected to an SIO.

The penalty is five years.

What makes this even more alarming is the broad range of activities that fall within the scope of SIOs. Under the amended ASIO Act, an SIO will mean an operation for which SIO authority has been granted by the Director General of Security or the Deputy Director General and, "may involve an ASIO employee or an ASIO affiliate in special intelligence conduct".

This extremely broad definition may catch activities that, if disclosed, could reveal serious government wrongdoing without posing a security threat.

"No agency of the state should be shielded from public scrutiny in this way. We are concerned that in addition to preventing publication of information which is harmful to Australia's national security interests, the new offences could be used to prevent or deter publication or disclosure of important information regarding the use and misuse of official power." 

Such laws would be a major deterrent to legitimate whistle-blowers, to the freedom of the media to report on abuses of power by ASIO and on debate relating to intelligence and counter terrorism issues.

More broadly, and when considered in conjunction with the increased penalties and new offences applying to unauthorised disclosures by ASIO employees and contractors, "these provisions will have a chilling effect on the operation of democracy in this country". 

As the new anti-terror laws were being revealed a government media blitz began on two more tranches of significant and controversial terror related laws. Confusing and unhelpful, say the civil libertarians.

"The national security and counter-terrorism legislation is large and complex and a much amended body of law. It is obviously far more effective to bring all the proposed amendments forward at the same time."

This would allow the community and the parliament to gain a more coherent understanding of the cumulative impact of all proposed changes.

"As it now appears that all foreshadowed changes will be coming forward over the next parliamentary session, there is no good reason for not proceeding in this more orderly and measured way."

The submission was written by Dr Lesley Lynch, secretary of the NSWCCL, and Liberty Victoria's Young Liberty for Law Reform and endorsed by the councils for civil liberties nationwide.