This article is more than 6 months old

This article is more than 6 months old

The Australian Signals Directorate has already spied on Australians in the last year, invoking “rare circumstances” and seeking ministerial approval to extend its powers in an unspecified number of cases.

ASD’s director general, Rachel Noble, indicated in Senate estimates on Wednesday that although the focus of the agency’s powers was directed at gathering intelligence about people or organisations outside Australia, it had also produced intelligence about Australians.

The evidence follows the home affairs department secretary, Michael Pezzullo’s, confirmation on Monday that “detailed consideration” is under way to better use law enforcement to tackle “evils” on the dark web.

In June 2019, the News Corp journalist Annika Smethurst’s home was raided after she reported on government plans to extend ASD’s spying powers to Australians.

Australia knew of dangers facing murdered Balibo Five journalists, book says Read more

The home affairs minister, Peter Dutton, dismissed the report as “absolute nonsense” but has since repeatedly called for a public debate about extending the powers, as recently as February.

Noble said that “while much of our cybersecurity role, and the protection of Australia’s digital borders, is conducted domestically – ASD is prohibited by legislation from producing intelligence on Australian persons except in rare circumstances, and only then under the authority of a ministerial authorisation”.

“This is an important safeguard, and one that is fundamental to ASD’s work,” Noble said in an opening statement tabled at the hearing. “Our responsibility to protect the online safety and privacy of Australians is paramount.”

Asked by senator Jacqui Lambie if any of the “rare circumstances” justifying production of intelligence on Australians had occurred in the last 12 months, Noble replied: “Yes.”

Noble took on notice follow-up questions about the number of incidents and how that compared with previous years.

Noble declined to answer what the circumstances were, explaining that to give an example would reveal classified information.

Earlier, in her statement, Noble said the Australian Cybersecurity Centre had “responded to over 1,275 cybersecurity incidents” since July, more than five a day.

The defence minister, Linda Reynolds, said there was “currently no proposal before government” to extend ASD’s domestic spying powers and noted that the home affairs department was responsible for policy development.

Noble said that home affairs was considering the challenges of “the dark web, the proliferation of cyber crime and the horrors therein”.

ASD’s role was to be consulted on technical advice about its own powers “to help them develop a clear view about where there are gaps”, she said.

In July 2018, the government expanded ASD’s functions to include prevention and disruption of cybercrime conducted outside Australia, which included the power to do so for crimes undertaken or enabled by an Australian person offshore “in special circumstances, subject to authorisation by the minister”, she said.

Noble denied that ASD had given advice about extending its powers to the disruption of cyber crime on Australian telecommunications infrastructure.

On Monday, Pezzullo said the government “will soon consider a new cybersecurity strategy to succeed the strategy that was launched in 2016”.

Pezzullo said that while “connectivity is a positive force for global human interaction and prosperity, in the shadowy creases of the surface web lies the demonically evil phenomenon known as the dark web”.

“As I’ve previously advised this committee, it is the expert view of my colleagues and myself that the only way to hunt and disrupt on the dark web is to better use the lawful capabilities of our law enforcement and technical intelligence functions in closer partnership and under strict oversight.

Liberal senator tells Asio chief his use of term ‘rightwing’ can offend conservatives Read more

“As ministers have said, this is something to which detailed consideration should be given. That process is under way.”

The Australian federal police wants the power to be able to call in the ASD when its hunt for cyber criminals, including those related to child abuse and terrorism, lead back to Australian borders.

In February, the AFP commissioner, Reece Kershaw, told the National Press Club while the AFP is happy with its current powers “there are some challenges there in some additional legislation [that is required]”.

Dutton said he believed it was time to have that conversation, a call he first made publicly mid last year.

“At the moment, if there is a server in Sydney that has images of a five- or six-month-old child being sexually exploited and tortured, then that may not be discoverable, particularly if it’s encrypted and protected to a point where the AFP or the Acic can’t gain access to that server,” Dutton told the ABC.

“It can be a different picture if that server is offshore, so there is an anomaly that exists at the moment.”

In 2013 Guardian Australia reported that the then Defence Signals Directorate offered to share information collected about ordinary Australian citizens with its major intelligence partners, according to a secret 2008 document leaked by the US whistleblower Edward Snowden.