A Home Affairs national security bill that enhances the ability of foreign-focused intelligence agencies to spy on domestic targets, while reducing the need for oversight, sauntered through both federal houses on 30 March as if it wasn’t dramatically expanding the reach of the surveillance state.
The 94th piece of national security/counterterrorism legislation passed since 9/11, the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 1) Bill 2021 allows for situations where foreign intelligence agencies can spy on locals at home without a warrant.
The bill significantly erodes the onshore/offshore distinction between which jurisdictions agencies can operate within, while it’s long been understood that traditionally domestic agencies operate under stricter guidelines.
During her second reading speech on the bill, home affairs minister Karen Andrews stressed that “extraordinary powers require extensive oversight”, and in her next breath, went on to outline that her bill significantly cuts down authorisation red tape for intelligence agents.
The Australian Muslim Advocacy Network (AMAN), however, was keenly aware that the bill had passed through both houses of parliament without any fanfare or media attention, despite the broad scope of intrusions permitted due to its lack of safeguards or clearly defined applications.
And a major reason for AMAN being so on top of how this piece of legislation, and others like it, are proceeding through parliaments is that it’s the Australian Muslim community that cops the brunt of these types of laws, despite a gaping lack of evidence that it is warranted.
Surveillance state victims
“The Muslim community has been over surveilled for the last twenty to thirty years, certainly since September 11,” Australian Muslim Advocacy Network director Adel Salman told Sydney Criminal Lawyers.
“So, we’re very sensitive to any additional powers given to any security agencies, whether they be police or intelligence, to provide them with the ability to do more surveillance and spying upon the Muslim community,” he explained.
According to Salman, in this country, being a Muslim means flagged as being a security risk. A devout Muslim who associates with many other committed adherents to the Islamic faith is assessed as high-risk, while non-practicing Muslims are still considered to pose some level of risk.
In terms of the Andrews bill, what concerns Salman most is the broad discretion given to the spying agencies themselves, and when ministerial authorisation is required, the legislation does not make it clear what the criteria is and whether there is any oversight once a directive has been issued.
“Intelligence agencies are being given broader powers and discretions to surveil. And given we’ll probably be the victims – and we call it victims intentionally – of oversurveillance by these agencies, we absolutely have a right to be very concerned,” the AMAN director underscored.
Spying on a “class of persons”
Solicitor Rita Jabri Markwell is the legal advisor to AMAN. She points to a number of problematic provisions with the Andrews bill that due to their being left relatively undefined leave them open to quite broad interpretation and application.
Amendments to the Intelligence Services Act 2001 (Cth) now enable certain foreign intelligence agencies – ASIS, the ASD and AGO – to seek ministerial authorisation to spy on “a class of Australian persons” who are suspected to be involved with a proscribed terrorist organisation.
As Jabri Markwell warns, “class of persons” has no definition or safeguards, yet the law allows agencies to produce intelligence on a whole group of people with a single ministerial authorisation, rather than the expected need to obtain a separate sign-off on each individual to be spied upon.
“Parliament’s own Human Rights Committee suggested the circumstances that can trigger this sweeping ministerial power are infinite,” she advised. “And not only is ‘class of persons’ not defined, but there is no objective standard for evidence required.”
The solicitor explained that due to the breadth of the law and the lack of evidence that’s needed, an Inspector General of Intelligence and Security review is not only unlikely but would plausibly prove unproductive as well.
“Without these safeguards, there is every chance this law will violate the right to privacy and enable political abuse and corruption of power,” she added.
Class of persons or entire religion
Jabri Markwell also outlined some very dangerous implications a law in the currently shelved Religious Discrimination Bill 2022 would have had if coupled with the provisions of the new Andrews bill.
The solicitor pointed to section 37(2) of the RD Bill, which provides that the basic antidiscrimination protections for religions within the legislation don’t apply in relation to Commonwealth laws or programs relating to law enforcement, national security or intelligence when reasonably necessary.
“With this as a backdrop, the national security laws just passed seem that much more ominous,” Jabri Markwell continued. “It is reasonably foreseeable that a ‘class of persons’ could be defined by religion.”
But, as the AMAN legal advisor outlined, this stipulation didn’t seem to concern Australian politicians in reviewing the bill as “religion is strangely entrenched in our counterterrorism laws”.
“These laws have validated and spread misinformation that religion, specifically Islam, causes terrorism,” she asserted.
“It’s directly responsible for shaping misunderstandings about the relationship between Islam and terrorism in the mainstream media and fuelling racist nationalist movements.”
The last 18 months have seen a shift in the approach to the terror threat in Australia, with the activities of far-right white supremacist groups starting to be considered terrorist in nature.
ASIO head Mike Burgess explained in October 2020 that 30 to 40 percent of his domestic spying agency’s workload is now focused on the far-right extremist element.
Indeed, the most extreme terrorist attack committed by an Australian national over recent years was the Christchurch massacre that saw an Anglo gun down 51 Muslims worshipping at mosques on 15 March 2019. This action was heavily influenced by white supremacist ideology.
But in terms of the effect this shifting focus on the terror threat has had on the Australian Muslim community, Salman says, it may have taken some of the heat off it in terms of the media, but when it comes to on the ground surveillance, Muslims, especially the young, are still at the top of the list.
The AMAN director gave a clear example of how the bias continues. He pointed to the anti-lockdown protests outside Melbourne parliament late last year, where mock hangings and direct threats of violence were made against politicians by the predominately white right-wing demonstrators.
“They happened to be white people. I guarantee you if they were Muslims, they would have been arrested, locked up and who knows what their fate would have been,” Salman said in conclusion.
“So, I don’t know that the focus on the far-right has reduced in any meaningful way the level of double standards that’s being applied.”