Inspector General of Intelligence and Security also wants increased budget for effective oversight of expanded surveillance

This article is more than 6 years old

This article is more than 6 years old

Australia’s intelligence watchdog has called on the Abbott government to clarify various elements of its national security reforms – and also increase its budget so that it is in a position to carry out effective oversight in an environment where the surveillance footprint is being significantly expanded.

In a public hearing in parliament on Friday, the Inspector General of Intelligence and Security (IGIS) said the Australian Security Intelligence Organisation (Asio) should be required to report more extensively on the use of new powers proposed in the Coalition’s national security reforms.

IGIS said the government should consider adding a requirement to the first tranche of its security legislation requiring Asio to report on instances where it used force in operations, where it accessed third party property, or where it disrupted computers.

The inspector general, Vivienne Thom, told the hearing that Asio would need to train its agents to ensure they used force on operations appropriately. “It’s quite a serious power to give somebody,” she noted.

The intelligence watchdog also raised a concern that the new laws would allow Asio to retain “a significant amount of information” about people who were “not relevant to security”.

The IGIS pointed out there was no requirement in the current proposal for Asio to delete information about non-suspects it picked up in the process of gaining access to computer networks under the new single warrants.

Friday’s hearing of parliament’s joint parliamentary committee on intelligence and security was convened to consider the Abbott government’s first tranche of security reforms.

This package gives Asio powers to surveil multiple computers, including whole networks; allows Asio agents (as well as police) to use force in operations; allows more coordination between spy agencies on operations; and creates significantly tougher penalties against the disclosure of intelligence material.

Some of the submissions to the inquiry published Friday are blistering in their criticism of the proposals.

And the disposition of members of the intelligence committee on Friday suggests they don’t intend to simply rubber stamp the package introduced in the last parliamentary sitting fortnight by the attorney general, George Brandis.

Both Liberal and Labor MPs raised a number of pointed questions and concerns about the proposals as drafted – particularly about the use of force, the privacy implications associated with broadening the surveillance footprint, and about the stiff disclosure penalties for whistleblowers and any media organisations intending to publish leaked material that might be categorised as a “special intelligence operation”.

The new secrecy offences have raised profound alarm in the Australian media industry, with publishers and broadcasters concerned the changes will effectively criminalise the publication of intelligence stories.

Guardian Australia revealed this week the specific concerns of the Media Entertainment and Arts Alliance about the proposed legislation – and the fact all of Australia’s major media organisations, under the banner of Your Right to Know, would be making a critical submission to the inquiry.

That joint submission from AAP, ABC, APN, ASTRA, Bauer Media, Commercial Radio Australia, Fairfax Media, FreeTV, MEAA, News Corp Australia, SBS, and the West Australian says: “The insertion of proposed section 35P could potentially see journalists jailed for undertaking and discharging their legitimate role in a modern democratic society – reporting in the public interest.”

“Such an approach is untenable, and must not be included in the legislation. This alone is more than adequate reason to abandon the proposal as the proposed provision significantly curtails freedom of speech and reporting in the public interest.”

Representatives of Brandis’s department, and the head of Asio, David Irvine, appeared jointly on Friday to defend the package.

Witnesses from the attorney general’s department moved to play down the potential for journalists to be caught by the new penalties, which did not apply to “legitimate reporting” of national security matters, according to Jamie Lowe, an assistant secretary from the department.

The officials told the hearing the test of whether publication would be caught or not was “recklessness”.

“This is not a strict liability offence,” Lowe told the committee.

“The prosecution must still prove that the person who communicated such information was at the time of the communication reckless as to the possibility that the information related to a special intelligence operation.”

Irvine made it clear, however, that the law would apply to journalists and third parties to intelligence disclosures. “There are no exemptions for journalists.”

The Asio director general used Friday’s appearance to brush aside the voluble concerns from the media industry. Irvine suggested media organisations weren’t lobbying against comparable special operations carried out by police. “Are people concerned because this is Asio and it’s secret? I’d like to know the answer.”

Australia’s chief spy was asked during his appearance why his agency needed “special intelligence operations” – the new category conferred in the legislation.

Irvine told the committee the categorisation would deal with ambiguities that existed currently in the operational framework. He said for many years Asio had conducted covert operations using “sensitive and secret sources”. Some of those operations may “sail close to the wind” in terms of breaking existing laws.

Giving immunity to agents working undercover was a necessary protection to safeguard national security, he argued. “The only reason for introducing this concept of SIOs is to remove the ambiguity we have been operating in for some time.”

He was also pressed on why parliament should give Asio the power to use force during operations. Irvine was told by Labor MP Anthony Byrne that the intelligence committee had rejected that idea once before, and he did not see a reason to change that stance.

Irvine again argued this would remove an ambiguity in the current framework. He said the current law was unclear as to whether agents could use force against an object or against a person.

The Asio director general was asked why force shouldn’t just be left to police, who were trained to deal with those situations.

Irvine said some operations were so sensitive that Asio did not want police present. “Simply, there may be operations with a particular level of sensitivity where it would not be appropriate to have law enforcement along.”

The hearings on the bill will continue in Canberra on Monday.