The Albanese government has passed new laws to reduce the level of independent oversight that covers this nation’s intelligence agencies, which, thanks to the earlier work of then home affairs minister Peter Dutton, sees some international agents gifted with the ability to surveil domestically.
Passed on 7 August, the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023, served to implement a “further 10 outstanding recommendations” of the 2020 released Richardson review into the National Intelligence Community legal framework.
The predecessor of this legislation, the No.1 bill, was passed by the Morrison government in late 2021, which is telling, as when it comes to construction of the surveillance state, in the world’s most secretive democracy, both majors are working in tandem, with contrary opinions not permitted.
Indeed, this new bill is only the latest of the 90-odd pieces of national security/counterterrorism legislation that have been passed with bipartisan approval since 9/11. And each of these bills, whilst bolstering the reach of intelligence agencies, have been incrementally eroding citizens’ civil liberties.
Drafted by his office, attorney general Mark Dreyfus explained, during his second reading speech on the bill, that amongst its various amendments, the legislation provides ASIO agents with defences for four crimes involving tampering with carriage services, data or digital communications.
ASIO agents have further been tossed the ability to “use, record and disclose spent conviction information” of those its surveilling, even though under the Commonwealth spent convictions scheme, old convictions over minor crimes are to be completely wiped from an individual’s record.
Federal Labor also removed the ability of the Commonwealth Ombudsman to act as a watchdog over ASIS, the Australian Geospatial-Intelligence Organisation, the Australian Signals Directorate (ASD), the Defence Intelligence Organisation and the Office of National Intelligence.
And the freedom of information exemption has been expanded to “documents relating to suspicious matter reports and suspicious transaction reports beyond just those in the possession of the Australian Transaction Reports and Analysis Centre to ensure consistency in handling”.
The old major parties club
The Parliamentary Joint Committee on Intelligence and Security reviews national security bills to supposedly curb government overreach. But the PJCIS is notorious for having been a closed-door Labor-Coalition club that approves security and surveillance laws, with overreach all the better.
The recent Dreyfus bill appears to have foiled this arrangement, however, as a provision, hotly contested by the Coalition, was successfully passed to provide that PJCIS membership is expanded from 11 to 13 members, and this appears to leave the door open for nonmajor party participation.
The recent outburst by Senator James Paterson regarding this amendment underscored the way that the PJCIS is perceived by the majors, as the Liberal senator outlined that the PJCIS only being comprised of “parties of government” is essential for trusted negotiations in the national interest.
Sydney Criminal Lawyers spoke to Greens Senator David Shoebridge, who countered Paterson’s claims in the chamber, about the implications of the laws, the sections he attempted to have struck down, and how the bill’s passing shows security state building is alive and well under Albanese.
The National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill passed the Senate last week, after having made its way through the lower house in May.
David, last week, you described the new bill as containing “positives and negatives”.
So, overall, how would you say this piece of legislation contributes to the national security edifice that’s been legislated over the last two decades? Are we back to constructing the national security state?
This bill did contain one small positive together with a series of genuine negatives from the perspective of the Greens when it comes to national security legislation.
There has been the better part of one hundred pieces of federal legislation that have together massively strengthened “the security state”, reduced parliamentary oversight and, most definitely, reduced civilian oversight of the security apparatus.
This legislation slightly expanded the membership of a joint parliamentary committee that oversees the intelligence services.
It’s likely that the expanded membership will allow for the inclusion of Andrew Willkie, as an independent member on that committee.
This expansion breaks the complete stranglehold of Labor and the Coalition over that committee, which is useful, however it’s in the context of a committee where the evidence is secret, the deliberations are secret and it’s a very marginal change.
That element of the legislation may produce a tiny amount of scrutiny going forward.
Against that were yet more exclusions from regular oversight. Remarkably, the bill excluded ASIS, the Australian Geospatial-Intelligence Organisation (AGO) and the Defence Intelligence Organisation from oversight from the Commonwealth Ombudsman.
There had been in existence a memorandum of understanding that in practice had seen the Ombudsman have very limited oversight of those organisations, for security reasons, but this has now entrenched that as a legislative exclusion.
We see that as a significant backwards step, especially given that a key Ombudsman role is to look for maladministration, and there’s no reason to think these organisations are free from that.
Home Affairs was drafting and introducing all these national security/counterterrorism bills under Morrison, but now we have the Attorney General’s Department delivering this one, is this of significance?
This is part of the new architecture since Labor came into office, which sees some of the elements of national security, such as the Australian Federal Police, and elements of the surveillance state move from Home Affairs into the Attorney General’s portfolio.
But the hope was that would produce some winding back of the last two decades of ever more centralising and secretive powers. However, as this bill shows the trend is still the same, whether it’s Labor or the Coalition.
I gather that’s especially so as this is the number two bill, passed in the aftermath of the Coalition’s Comprehensive Review Bill 2021, which specifically noted in its title that it was the first of a series.
Well, there’s a golden rule in the federal parliament that’s rarely spoken about and that’s, whatever ASIO wants it gets, regardless of who the minister is.
You moved an unsuccessful amendment to have two sections of the legislation revoked. You’ve already mentioned the removal of Commonwealth Ombudsman oversight, which you attempted to prevent.
But there was also a law regarding the Commonwealth spent convictions scheme, which sees individuals convicted of relatively minor crimes have their records wiped after a 10 year period and, therefore, they no longer have to disclose their past wrongdoings.
Why did you want to see these laws scrapped? Why are they so problematic?
The bill provided ASIO with an unfettered capacity to share information about spent convictions, which are in the interest of allowing people to get on with their lives and to not be forever trapped by a past criminal record for relatively minor offences, where the conviction is more than a decade old.
The general law says spent convictions can’t be used against people.
However, this allows ASIO an unlimited capacity to share information of spent convictions in regard to Australian citizens and that again is putting our notion of national security ahead of long-standing civil liberties.
On the Ombudsman amendment, organisations like the Australian Signals Directorate and the Defence Intelligence Organisation have extraordinary surveillance powers, and even if they are notionally targeting foreign nationals, inevitably they’re targeting foreign nationals’ interactions with Australian citizens.
They have a huge capacity to trespass upon our traditional civil liberties, our rights to privacy, and we can see no argument at all to exclude the Ombudsman’s oversight.
It’s not as though the Ombudsman is a revolutionary body, constantly upending these institutions in the name of public interest and public disclosure.
The Ombudsman is a very modest and restrained – I would say too restrained – oversight body, but even that’s too much it seems for the Albanese government.
In terms of the positives, as you’ve mentioned, Dreyfus broadened the scope of the PJCIS to potentially include nonmajor party representation.
Why do you consider the Albanese government has apparently committed to bringing an end to what used to be the old major parties club that functioned as an ensured way of building the bipartisan national security state?
The Coalition assertion was that this was to solve an internal Labor political fight, where there were too many internal Labor nominees for positions on the PJCIS.
The intelligence and security committee is considered a high status committee, where MPs get access to supersecret information and, therefore, it’s highly contested amongst Labor and the Coalition.
From my perspective as a Greens senator, it’s that kind of club.
The Coalition’s analysis was that this was a way for Albanese to resolve those internal tensions by expanding the membership of the committee and, therefore, find a further slot for a Labor politician to resolve that internal tension.
A more charitable view would be that the attorney recognised that there was some merit in having, at least in appearance, that independence in this oversight committee.
There was some discussion in the debate about Anthony Albanese having offered a position to Andrew Wilkie, who has a history of working within the security agencies, so he’s seen as less antagonistic to the institutional players.
The reason the debate was so heated on this is because for members on the right of Labor and the Coalition, this committee is seen to be a very close club controlled by Labor and the Coalition and, without exception, it produces unanimous reports in support of the national security state.
In fact, they celebrated during the debate that the PJCIS has been operating for seventeen years and has produced only one dissenting report in all that time.
From that perspective, any potentially contrary voice in the committee is damaging to the club’s interest of rock-solid unquestioning allegiance to the expansion of the security state.
The PJCIS amendment that was made sees committee membership upped from eleven to thirteen members of parliament and one of these extra seats may go to a nonmajor party member.
In its seventeen years of operation, this committee has only ever had one member who wasn’t from either Labor or the Coalition, the so-called “parties of government”.
That happened with the Gillard minority government, as it was a condition of Andrew Wilkie’s support for that minority government that he be put on the committee. And as soon as her government fell, he was ejected by the incoming Rudd administration.
For the hawks in both Labor and the Coalition, this is a committee that should never permit a contrary voice.
David, since Albanese took office, the NACC, climate legislation, AUKUS and the Voice have all turned attention away from the national security state that both major parties have been constructing over the last two decades.
Considering this latest national security bill did include measures such as broadening the PJCIS, do you see any indication that the Albanese government is pulling back on the authoritarian creep in this nation?
There is no evidence of any substantive change in policy moving from Dutton to Albanese, when it comes to the increased militarisation of our society and the ever-creeping expansion of the security state.
This was the National Security Amendment (Comprehensive Review Amendment No.2) Bill 2023, and that this is number two tends to tell an ugly little truth.
And lastly, as we had come to expect over the decade of Coalition rule, should we now be looking forward to more national security legislation providing further laws that encroach upon our civil liberties?
This is the second time we’ve been at odds with Labor over new national security measures just this calendar year, and it’s part of a continuing arc of AUKUS, Quad, defence expansion and integration into the United States military.
The new laws form part of that seamless expansion of the worst parts of our nation’s state bureaucracy: the military, security, surveillance state.