Traditionally, there’s been a distinction between foreign-focused Australian spying agencies and domestic intelligence bodies. This has served to protect locals on home soil from the range of capabilities that overseas agents have, which locally would be classed as overreach.
Yet, currently, Home Affairs is pressing for laws to streamline and hasten the abilities of foreign intelligence agencies, when agents are investigating Australians abroad, as well back here. And while some of these reforms are welcomed, others invoke the term “creeping surveillance state”.
Introduced on 25 November, the National Security Legislation Amendment (Comprehensive Review and Other Measures No 1) Bill 2021 (the CROM Bill) is the first Orwellian beast current Home Affair minister Karen Andrews has produced. And its scope has put Peter Dutton to shame.
While the bill does make it easier for our foreign spies to act in regard to Australians at imminent risk abroad, it also permits agents to investigate locals domestically without authorisation under circumstances where domestic spying agency ASIO would have to seek a warrant.
Based on the 2018 Richardson inquiry, the CROM Bill is currently under the review of the Parliamentary Joint Committee on Intelligence and Security.
And while some more extreme provisions may be pulled back, the bill will definitely pass with bipartisan approval like all such national security legislation over the last two decades.
They’re watching you alright
The CROM Bill involves five agencies within the Australian Intelligence Community (AIC), one of which is the 2017-established Office of National Intelligence (ONI), which briefs the PM’s office and the National Security Committee on all things spying.
Then there are three international spying agencies involved. ASIS (Australian Secret Intelligence Service) is the foreign spying agency that gathers information via personal contacts, otherwise known as human intelligence. The Department of Foreign Affairs and Trade is its overseer.
Next, is the ASD (Australian Signals Directorate), which falls under the defence portfolio, Dutton’s new baby. It gathers signals data, supports the military, and deals with cyber and information security.
The AGO (Australian Geospatial-Intelligence Organisation) is another international agency under Dutton’s watch. It deals with intelligence regarding human activity, in relation to the collection and analysis of imagery and location data.
The last spying agency caught up under CROM is ASIO (Australian Security Intelligence Organisation). Watched over by Home Affairs, ASIO is often compared to the FBI, and it surveils the public, collecting both human and signals data.
“Twenty years of ad-hoc restructuring”
Submissions to the PJCIS review on the CROM closed on 25 February. Two organisations with a keen interest in upholding our civil liberties submitted documents outlining their concerns about the enhanced abilities international spying agencies would be gifted over citizens and residents.
The Civil Liberties Australia (CLA) submission to the PJCIS queries the need for new terrorism-related powers when such incidents in this country are negligible, and, in terms of the last five years, terrorism has been on the decline globally.
The document further raises questions about several schedules in the bill that serve to “increase the uniformity of agencies and break down barriers between them”, which is of particular concern when breaching the onshore/offshore spying divide.
CROM would alter section 13B of the Intelligence Services Act 2001 (Cth) (the IS Act), which already permits ASIS to assist ASIO in collecting intelligence on our own citizens and residents overseas, so that now ASIS can operate in this capacity on Australian soil.
Another questionable aspect of the legislation that the CLA points to is the changes to part IAC of the Crimes Act 1914 (Cth), which permit agents from certain intelligence bodies to use assumed identities, while operating domestically.
ASIS officers can already do this. But the CROM wants to extend this to the ASD. And, as it can be assumed that agency would be operating chiefly online domestically, this would mean that spies could use fake identities while engaging with potential civilian targets.
So, rather than moving ahead with the specific laws within the CROM Bill, the CLA recommends the government look at launching a Royal Commission into the patchwork of national security and counterterrorism laws that have been passed over the last two decades.
Vaguely defined, broadly applied
The NSW Council of Civil Liberties submission outlines that it understands and supports “the government’s stated aim and the need for law enforcement and intelligence agencies to investigate serious offending and obtain intelligence on security threats”, but the bill raises concerns.
Chief amongst them for the council is the insertion of new section 9D into the IS Act, which allows the heads of ASIS, the ASD and the AGO to authorise actions to be taken immediately in terms of producing intelligence on Australians overseas if there’s an “imminent risk” to their safety.
But, on a more precise reading of the law, what’s revealed is that this measure can be taken when there merely might be a threat, and further, whilst ministerial authorisation would be removed in these instances, the agency head can go as far as to delegate this power to a junior officer.
The submission also takes aim at the ability the bill would provide the minister to authorise international agencies to spy on Australian citizens or residents if they are, or are likely to be, involved with a listed terrorist organisation.
According to the council, the wording of these sections is so broad that it could lead to citizens being surveilled due to activities that aren’t terror-related, such as being part of a community fundraising event or expressing sympathy for an ideal an organisation adheres to.
In its recommendations, the NSWCCL underscores the need to cease the ongoing removal of ministerial approvals when broad intrusive powers are being exercised by these agencies, as well as the necessity for vaguely worded laws to be made more specific.
The creeping surveillance state
“Australia has been subjected to a deluge of intelligence and security legislation since the 9/11 attacks,” Dr Tony Murney makes clear in the CLA submission. “Little has been done however to question the broad spectrum need for such a draconian shift in the balance of power.”
Indeed, the CROM Bill would be the 94th piece of national security/counterterrorism legislation passed at the federal level since the 2001 New York terror attacks, and the laws they’ve set in place have worked to erode the basic rights of all Australian citizens and residents.
“After the initial raft of these laws that grant extraordinary powers to police and intelligence services in Australia were passed, rather than winding them back once the immediate threat was over, as was promised, the powers have been added to incrementally,” lawyer Pauline Wright recently said.
“There is a high degree of secrecy adopted by the federal government and its agencies at the moment,” the president of the NSWCCL told Sydney Criminal Lawyers, “which is leading to a public lack of faith in the accountability of the powers that are being exercised over them and their data.”