Liberal Democratic party senator says intelligence authorities will have greater surveillance powers with less oversight

This article is more than 6 years old

This article is more than 6 years old

A key balance-of-power senator says the Abbott government’s national security changes will restrict the liberties of ordinary Australians and increase the surveillance powers of the intelligence authorities, while reducing necessary oversight.



David Leyonhjelm has told the joint parliamentary committee on intelligence and security (JPCIS) he has a number of concerns with changes being proposed by the attorney general, George Brandis.

The Liberal Democratic party senator says the Coalition has produced the first tranche of its proposed counter-terrorism legislation “by raising concerns about returning foreign fighters pursuing violent acts in Australia” – yet the bill before parliament “does not directly relate to the issue of returning fighters”.

A range of groups are due to appear before the committee in Canberra on Monday to raise concerns about the bill.

They include the Law Council of Australia, Australia’s civil liberties councils, the Gilbert and Tobin Centre for Public Law, the Australian Lawyers Alliance and Australia’s media union. The Australian Security and Intelligence Organisation (Asio) is also due back to appear before the committee on Monday. Asio appeared last Friday in an effort to defend the government’s package.

The inquiry deals with the first tranche of counter-terrorism changes. This package gives Asio new powers to carry out surveillance on multiple computers, including whole networks; allows Asio agents (as well as police) to use force in operations; allows more coordination between spy agencies; and creates significantly tougher penalties for the disclosure of intelligence material – a development that has alarmed all the main media companies.

Leyonhjelm contends the government has not made the case to expand current powers given “existing laws were sufficient to thwart the terrorist acts planned by returning Taliban fighters”.

Leyonhjelm has used his submission to the inquiry to argue that the bill, if passed, should be subject to a sunset clause – and should be reviewed by “experts, such as the Independent National Security Legislation Monitor”.

The Coalition is banking on Labor’s support to get its national security legislation passed rather than having to run the gauntlet of the senate crossbench.

Labor has signalled it is inclined to cooperate, provided the laws have appropriate safeguards, and don’t impinge unnecessarily on the privacy of ordinary people.

Over the weekend, the government continued to signal tough action against suspected supporters of terrorism, announcing it would bring in new legislation to cut off welfare payments for suspected terrorism supporters.

On Sunday, Labor’s foreign affairs spokeswoman, Tanya Plibersek, said if the government was proposing additional security powers it would also need to propose additional oversight mechanisms and additional safeguards.

Plibersek pointed out that while the government had been “talking tough” on national security, a convicted terrorist had fled the country on his brother’s passport. She told Sky TV if the Coalition wanted to talk tough it was incumbent on the government to have good security systems in place.

Plibersek said Labor acknowledged there was a tangible domestic security threat posed by fighters returning from Syria and Iraq, but she said the official terrorism alert level had not changed in recent times.

She said parliament would need to “balance these things” – the need for a tight security framework and the right of citizens to have their privacy protected. “If we have additional powers then you need additional oversight,” Plibersek said.

A number of submissions to the JPCIS inquiry are very critical of the bill as it is currently proposed.

Media companies object strenuously to a broadening of secrecy provisions which could expose journalists to criminal penalties if they disclose any information about special intelligence operations (SIOs).

A number of legal experts have told the committee the government has not made an evidence-based case for a significant expansion of Asio’s surveillance powers.

The law council submission says it has “strong concerns about the current proposals for a special intelligence operations (SIO) scheme, which would provide for criminal and civil immunity, provided that certain conditions are met, for Asio officers and other human sources who become involved in criminal activity during the course of an undercover operation”.

The council warns that the legal framework around the scheme risks setting “a lower standard for controlled operations more generally in Australian jurisdictions, with the likelihood that copycat legislation will follow”.

The council has told the committee the bill should not be passed in its current form.

It has urged the intelligence committee to request that “the next appointed Independent National Security Legislation Monitor (INSLM) consider the operation, effectiveness and implications of existing legislation – with a view to addressing the issues which are raised by the bill”.

The broad concerns of the law council are echoed by the Gilbert and Tobin centre.

Its submission says the bill establishes “vague and unduly broad criteria for the issue of a warrant” and internalises the process for the authorisation of surveillance activities by Asio “in even greater secrecy than that which they have historically enjoyed”.

The submission also raises significant issues with the proposed SIO regime.

In public hearings on Friday, Asio and representatives of the attorney general’s department argued that the proposed SIO regime was not unlike the controlled operations which currently apply to police.

Gilbert and Tobin rebuts that argument in its submission. “An SIO may be authorised where it would assist Asio in the performance of one or more very broadly defined special intelligence functions, for example, the collection of intelligence relevant to security.

“A controlled operation, in contrast, may only be authorised where the authorising officer is satisfied that there are reasonable grounds that a serious offence has been, is being, or is likely to be committed.”

It says the proposal for the SIO regime is very broadly drafted, and the secrecy provisions will catch people who will have little idea that they are revealing information that exposes them to the risk of being caught by the new offence.

“There is no requirement that the person is aware that an SIO has been authorised. And, in fact, such knowledge is highly unlikely given the secrecy which surrounds the authorisation process,” the Gilbert and Tobin submission says.

It says the provision might catch a number of third parties.

“It is enough that the person is reckless, that is, aware of a substantial risk, that the disclosed information is connected in even some minor way with an SIO. This is a very low standard,” it says.

“A journalist might, for example, be subject to up to five years’ imprisonment where they publish an article containing any – even very vague – information about an ongoing terrorism investigation that relates to an SIO.

“A teacher who subsequently uses this article as a discussion aid in a legal studies class might also be caught by the offence.

“This first disclosure offence therefore has the potential to have a considerable chilling effect upon public debate about matters that are clearly of national interest.”