Australia's domestic spy agency has revealed there have been intelligence failures in recent years because of changing technology.

Speaking exclusively to Radio National's Background Briefing program, Australian Security Intelligence Organisation (ASIO) director-general David Irvine says new ways of communicating electronically are white-anting his agency's surveillance powers.

"We have had not near misses, we have had misses," he said.

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"In recent years there have been instances where devices have been used or devices have been used that we didn't know about, and we have missed information."

Mr Irvine would not outline which types of communications were the problem.

"No. I'm not going to go into that kind of operational detail," he said.

"But the fact is when people have lots of telephones and you have a requirement to go on a warrant by device, when people are using various different forms of internet protocol type communications, it becomes more difficult."

Mr Irvine has given his first interview in a year to defend ASIO's request for a series of new national security laws.

Critics including prominent Sydney barrister Phillip Boulten say ASIO has accumulated unprecedented powers in the wake of the September 11, 2001 attacks in the United States and does not need them any more.

"Now that Australia has settled down after more than 10 years following the atrocities of 2001, it is time to reflect on whether we really do need the existing coverage of legislative provisions, let alone whether we need to arm ASIO with a whole raft of new proposed provisions," he said.

'Modernisation of a regime'

A member of the Law Council of Australia, Mr Boulten says ASIO is empire building.

"This is an attempt to get every extra conceivable way of spying on somebody," he said.

"There is no other way that anyone could actually come up with this, to allow this, except to allow ASIO to actually sit in somebody's bedroom full-time," he said.

But Mr Irvine rejects the accusation.

"We are talking about the modernisation of an interception regime," he said.

"It does not mean extensive new powers.

"It means the ability to do what we could do 15 years ago and even 10 years ago and even five years ago ... that we are gradually losing the ability [to do so] unless the law better accommodates the interception capability with the march of modern technology."

Mr Irvine says interception is critically important to ASIO's work and there are now many new ways of communicating electronically that are not covered by the Telecommunications Interception Act, passed more than 30 years ago.

"What's changed is that once upon a time interception was very easy," he said.

"One telephone to another telephone.

"Today there are hundreds of different ways of communicating electronically and the law does not cater for those ways in the way it should," he said.

Expansion of powers

ASIO has put several proposals to the Federal Government, including allowing its officers to commit crimes and not be charged.

It also wants to hack computers of people who have not committed a crime.

And most controversially, it wants telecommunications companies to store phone and internet data for up to two years so it can be searched without a warrant.

Mr Irvine says ASIO already has access to phone and internet records without a warrant, but many telcos no longer need to keep that data for billing purposes.

ASIO wants the government to force companies to keep up to two years of phone and internet records.

Mr Irvine says the proposals are about properly equipping ASIO to do its job.

He says ASIO wants to introduce a single-warrant system so it can intercept whatever device a suspect uses.

"We would like also to be able to collect intelligence through interception based on the fact that a person will use several different devices at any one time," he said.

"[They] will swap sim cards day in, day out."

Mr Irvine explained that current warrants must specify each device used, and do not cover a suspect who uses multiple phones.

"Not in any convenient way at all, no," he said.

ASIO also wants to be able to vary that single warrant itself, without going back to the Attorney-General.

'Really necessary?'

But critics say laws should not be changed for the sake of convenience and that there must be strong justification.

"It is logical that an organisation like ASIO would seek extra powers," Mr Boulten said.

"It would be handy to have every conceivable way of spying on people.

"Yet the best test in determining whether or not to grant extraordinary powers like these to organisations like ASIO is to work out if they are really necessary.

"The case that is presented on ASIO's behalf for these extra powers does not spell out any detailed analysis that would allow conclusions that they need these powers."

Mr Boulten added that the more power an agency has the more chance it will be abused.

"It would be going against the experience of life to think that there will not be rogues amongst the federal police and amongst ASIO," he said.

"Police are regularly, unfortunately in trouble for looking up the address of the movie starlet, of trying to find where the girlfriend lives now, of drawing on the data to try and square up the record in a personal dispute.

"I'm afraid this is what human beings are like."

Agencies concerned

Top law agencies are worried about several ASIO proposals, including the request to allow officers to break the law without penalty.

Mr Irvine explains why ASIO needs this power.

"If an ASIO source were to penetrate a terrorist group that wishes to do harm to Australia and our only source of information about the terrorist group was that penetration and that group was proscribed under Australian law, then technically being part of that group the ASIO officer or source could be breaking the law," he said.

"What I would like to see is the removal of that ambiguity in those sorts of situations."

But ASIO is accused of blurring the line between spying and policing.

Police officers are allowed to break the law in limited circumstances but any resulting prosecution will end up in court and be open to public scrutiny.

This safeguard will not apply to an ASIO officer because their job is to collect intelligence and they do not bring cases to court.

But Mr Irvine says there is still accountability.

"That is exactly why we have the independent inspector general of intelligence and security to monitor and ensure that ASIO acts in accordance with the law and with the utmost probity, and reports to Parliament if that is not the case," he said.

You can listen to the full interview with David Irvine on RN's Background Briefing program this Sunday.