Inspector General of Intelligence and Security calls for legal changes to strengthen privacy protections and meet national security objectives

The intelligence watchdog, the Inspector General of Intelligence and Security, has backed reform of Australia’s surveillance regime to ensure the legal framework better balances the dual objectives of privacy and national security.



The IGIS – the independent statutory authority which polices the intelligence community – has used a submission to a new Senate inquiry into online surveillance by Australia’s security services to call for reform of the Telecommunications (Interception and Access) Act 1979 to ensure the law properly protects national security, consumer privacy and recognises the need public accountability.

The watchdog says it agrees with a key recommendation by the federal parliament’s joint committee on intelligence and security in May 2013. That inquiry recommended the insertion of an objectives clause into telecommunications legislation which makes explicit the dual objectives of the regime – namely “to protect the privacy of communications” and “to enable interception and access to communications in order to investigate serious crime and threats to national security”.

The IGIS has used the opportunity of the new Senate inquiry to endorse that broad direction, adding its voice to the views of legal experts and other bodies charged with oversight of the intelligence and police services.

The Abbott government has thus far resisted calls for an inquiry, or for any substantial reform of the surveillance framework. Attorney general George Brandis has said the current legal regime serves the national interest.

The IGIS, which sits in the prime minister’s portfolio but is not subject to ministerial direction, notes in the submission that “in general, it is not the role of the IGIS to comment on current or proposed government policy”. But it says its experience watching Asio “may assist the committee in the current inquiry”.

The latest Senate inquiry was opposed by the Coalition, but it was established by the Greens with Labor’s backing.

It was sparked in part by disclosures from the former National Security Agency contractor-turned-whistleblower Edward Snowden about Australia’s online surveillance activities. The disclosures, published by Guardian Australia, include evidence that agencies attempted to listen in on the mobile phone of the Indonesian president, and also targeted the phones of his wife and their inner circle in 2009; and Australian intelligence offered to share metadata collected from ordinary citizens with its major intelligence partners in 2008.

The watchdog says an overhaul of the telecommunications interception legislation is justified because while the objective of the law “is to prohibit interception of telecommunications or access to stored communications except in certain prescribed and regulated circumstances – the range of exceptions has grown and may continue to expand”.

“An objectives clause along the lines proposed recognises the need to balance the privacy of users of the telecommunications services in Australia with Asio’s investigative requirements for security and foreign intelligence purposes,” it says.

The privacy act provides “a useful benchmark reflecting community expectations.”

The May 2013 inquiry by parliament’s intelligence and security committee also recommended the attorney general’s department re-examine “proportionality tests” in the processes used to approve communications interceptions.

But the IGIS warns that any reworking of proportionality tests, including any proposal to apply a consistent standard, needs careful examination to ensure privacy is not compromised.

The watchdog says the exercise of Asio’s “often highly intrusive” interception powers will, almost always, not be apparent to the subject. “These powers should only be considered for use when other, less intrusive, means of obtaining information are likely to be ineffective or are not reasonably available.”

The IGIS also gives cautious backing to more public disclosure of Asio’s use of its powers under the telecommunications interception act. It notes that the attorney general does not include this data in a regular report to parliament, and suggests officials “could consider whether the public reporting regimes of similar organisations overseas might provide useful models of alternative reporting approaches.”

The watchdog notes “the standard of warrant materials is high and the error rate is low”.

“Comprehensive recordkeeping in Asio is essential to ensure Asio complies with the legislation and to enable effective oversight,” it says. “Any proposal to change the recordkeeping regime should enhance accountability requirements.”