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The push to expand ASIO’s powers

May 18, 2020 • 16m 34s

Home Affairs Minister Peter Dutton has recently introduced legislation to expand the surveillance powers available to Australia’s domestic spy agency. Lawyers and civil rights groups are concerned the proposed laws are too broad. Today, Karen Middleton on the attempt to expand ASIO’s powers in the midst of a pandemic.

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The push to expand ASIO’s powers

225 • May 18, 2020

The push to expand ASIO’s powers

RUBY:

From Schwartz Media, I’m Ruby Jones, this is 7am.

While the country navigates a health and economic crisis, Home Affairs Minister Peter Dutton has introduced legislation that would significantly expand the surveillance powers available to Australia’s domestic spy agency, ASIO.

Lawyers and civil rights advocates are raising concerns… arguing the proposed laws are too broad... and could contravene a range of human rights.

Today, Karen Middleton on the attempt to expand ASIO’s powers in the midst of a pandemic.

Karen two months ago, just as Covid-19 was starting to impact Australia, the government introduced an interesting bill to parliament. Can you tell me about it?

KAREN:

Yes, it was on March the 5th, which I think was the last scheduled sitting day before the pandemic saw the parliament suspended for a while.

Archival tape -- unknown:

I move that this bill now be read a second time. Now, Mr Speaker, the Coalition government’s first priority is to keep Australia and our community safe…

KAREN:

And it was the telecommunications legislation bracket's international production orders bill. A bit of a mouthful.

RUBY:

Karen Middleton is The Saturday Paper’s chief political correspondent.

KAREN:

It's designed to underpin an agreement that Australia is forging with the United States, which would enable Australian agencies to access telecommunications data that's being stored by American tech companies.

Archival tape -- unknown:

This framework will allow law enforcement to request data directly from communications providers and technology companies in trusted partner countries…

KAREN:

It would bring Australian law into line with the US Cloud Act, and it would also allow the US to access Australian data, and that would be in both cases without consulting each other's governments first.

Archival tape -- unknown:

Allowing targeted and independently authorized access will significantly reduce the time it takes to receive vital data.

KAREN:

ASIO confirmed this week that it could access not only encrypted communications that had been stored, but also live-streamed data. So video and audio, that's live-streamed and messages that are being exchanged between people using an offshore server in real-time. So that is a difference. They can do some of that in relation to Australian servers onshore at the moment. They can't do it with one offshore. And that's the big change. It's got other provisions in it as well, though it also strips back some of the protection for journalists that now exist under Australian law. So in summary, it's a reasonably significant expansion of ASIO's powers would potentially have consequences for press freedom, which really hadn't come to light until this week.

RUBY:

Right so this bill would potentially give ASIO more access to people's data. And it could also mean less protection for journalists,oth fairly contentious issues. Has there been much pushback?

KAREN:

There's a parliamentary committee that examines all of the legislation relating to intelligence agencies, the parliamentary Joint Committee on Intelligence and Security. And it is examining this bill.

Archival tape -- unknown:

For the Hansard record, would you please state your full name and the capacity at which you appear before the committee?

Archival tape -- Margaret Stone:

Margaret Stone.

KAREN:

And a number of people are giving evidence before, including the inspector general of intelligence and security, Margaret Stone. And she gave interesting evidence this week. She raised a number of issues that she said she felt needed to be addressed, in some cases removed or changed.

Archival tape -- Margaret Stone:

Our submissions are directed to this bill and consequently the protections the journalists might require under this bill.

KAREN:

She said she was concerned about the watering down of protection for journalists. She was also worried about some inconsistent definitions between this bill and other similar legislation, which could cause some confusion. She said the way the bill was worded could actually leave the Attorney-General facing urgent ASIO requests without any obligation for ASIO to tell the attorney why the matter was urgent. And it also, she said, lacked some disclosure and accountability provisions that are contained in other legislation. So she was concerned all round that this was problematic, that it could impinge on people's rights. And she said it could seriously undermine trust in the community.

Archival tape -- Margaret Stone:

The only things that are kept secret are those that need for that reason to be kept secret rather than the risk of worrying the public.

KAREN:

You know, this comes at a time when Australia is very critical of China, for example, because it is refusing to disclose details of the origins of the Coronavirus. And, you know, it's a bit ironic, I suppose, that at the time when Australia is criticizing China for the excessive secrecy, that there should be the same complaint now emerging about the way we handle access to information and privacy issues. And there are certainly some people who are raising eyebrows about that.

RUBY:

So Karen - debate about this bill has been happening in parliament - at a time when most of us, most of the country, is focused on the pandemic.

KAREN:

Yes. And interestingly, though, it isn't the only bill related to ASIO that's gone before the parliament in the last week or so.

RUBY:

Uh huh.

Archival tape -- Peter Dutton:

Thank you very much Mr Deputy Speaker, I move that this bill be read a second time.

KAREN:

This past week, there was another bill that Home Affairs Minister Peter Dutton put into the parliament.

Archival tape -- Peter Dutton:

I present the ASIO amendment bill 2020 and the explanatory memorandum...

KAREN:

Which was ASIO Amendment Bill, which also expands ASIO's powers in a different direction.

Archival tape -- Peter Dutton:

ASIO is facing a wider range of security challenges than at any time in its 70 year history...

KAREN:

Now, it was one of a list of 28 bills that went before the coalition's party room on Tuesday to be ticked off. And it was just sort of slipped in there in the middle of them. It was a bit of a surprise that it suddenly appeared.

RUBY:

We’ll be back in a moment.

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RUBY:

Karen, there are now two bills in parliament that would expand the powers available to ASIO. Can you tell me about the most recent one introduced by Peter Dutton?

KAREN:

The second bill that was introduced last week relates to some controversial questioning and detention powers.

Archival tape -- Peter Dutton:

Mr Deputy Speaker, ASIO’s questioning and detention powers were introduced in 2003 in response to the growing threat from terrorism after the September 11 attacks in the US.

KAREN:

It's never used the detention part of the powers, and it's only used the questioning part once in that whole time.

Archival tape -- Peter Dutton:

ASIO has used these powers sparingly, with the last questioning warrant being used in 2010. No questioning and detention warrant have ever been sought by ASIO.

KAREN:

And they involve arresting and detaining someone for up to seven days and being able to interrogate them for 24 hour periods at a stretch if need be. So a number of people have urged the government to repeal the detention power, but it's resisted that. But now this new bill would repeal the detention aspect. Interestingly, though, it expands the questioning powers.

Archival tape -- Peter Dutton:

ASIO’s compulsory questioning powers remain a valuable intelligence collection tool…

KAREN:

So it's a little bit given, a little bit take. And it also extends ASIO's powers to plant surveillance devices without a warrant. In some circumstances, they would only need to have another ASIO officer approve doing that.

RUBY:

So ASIO would be able to introduce surveillance without needing a warrant.

KAREN:

That's right. In some circumstances, the minister gave the example of planting a device on a car or slipping one into someone's handbag and said that permission to plant those kinds of devices could be obtained just with the approval of a senior ASIO officer. The bill also lowers the age of people who can be questioned from a minimum age of 16 to a minimum of 14. Now, this doesn't seem like much, but it has been the subject of some controversy over a number of years.

RUBY:

Has there been pushback against that idea - of allowing 14 years olds to be questioned?

KAREN:

The president of the Law Council of Australia, Pauline Wright, said she was concerned about the lowering of the age to 14 for people who can be questioned.

Archival tape -- Pauline Wright:

14 is well below the age that is appropriate for somebody to be subjected to coercive questioning.

KAREN:

And she wasn't persuaded by the arguments that it was absolutely essential, she said. There is a significant difference in maturity of a young person aged 14 and a young person aged 16.

Archival tape -- Pauline Wright:

Children as young as 14 don’t have a fully developed cognitive ability, we know that. We know that in fact young people’s brains don’t fully develop in terms of perceptions of consequence until they’re in their early 20s.

KAREN:

And that she was worried about that and subjecting them to what was a. A coercive questioning regime because it's compulsory and you don't have the same right to refuse to answer as you might in other circumstances when you are being questioned.

RUBY:

And what about the proposed change to extend ASIO's powers to plant surveillance devices without a warrant - what did she say about that?

KAREN:

Yes she said she wasn't buying the minister's argument that it was a benign act to slip a tracking device into somebody's handbag or to stick one on their car.

Archival tape -- Pauline Wright:

This would allow it to be approved internally within ASIO. So it’s ASIO authorizing ASIO to do what it likes in terms of that surveillance and tracking.

KAREN:

She said that was significant and that there should be a proper warrant process and not just an internal approval process.

Archival tape -- Pauline Wright:

I think that most Australians would consider that monitoring of their location is a highly intrusive thing. And I think a lot of people would be quite surprised to learn that can happen without a warrant from a court, let alone this internal model of ASIO authorizing ASIO.

KAREN:

The Australian Lawyers Alliance president, Greg Barns, was also worried about the lack of scrutiny. He was particularly concerned, too, about the relationship between lawyers and clients.

Archival tape -- Greg Barns:

Our concern is that what this bill does is to allow ASIO to effectively veto a person’s right to the lawyer of their choice.

KAREN:

Because the bill gives greater powers to the questioners to eject a lawyer that they consider to be disruptive. And it doesn't really define what that means.

Archival tape -- Greg Barns:

You can just see how easily this power will be misused. And this idea that ASIO can choose your lawyer if you don’t have one, is again a recipe for corruption. You’re just going to get tame lawyers that ASIO likes or lawyers with no expertise being brought into the interview room.

KAREN:

He was also saying he considered it would it wasn't an exaggeration to draw comparisons with other regimes that are not democracies

Archival tape -- Greg Barns:

The sort of powers that ASIO want are the sort of powers one expects in countries like China, Russia other countries where you’ve got authoritarian regimes in operation and where the rule of law is not thought of as being essential. So these are deeply concerning developments.

KAREN:

And he said as a lawyer, his stories about your colleagues in places like China, where there is such a regime and greater interference of the state. And he was concerned about the suggestion that we might be moving in a similar direction.

RUBY:

So, the Home Affairs Minister Peter Dutton is the person driving these changes. What has he said about why he thinks they are necessary?

KAREN:

Well, particularly in relation to the new bill that he introduced last week, he said that it was absolutely necessary that ASIO be given these expanded powers in relation to its questioning and in relation to surveillance. He said that things have changed and that ASIO's powers have not kept up with the methods that are being used by people engaged in nefarious activities. And he emphasized that what he described as more intrusive powers like actually breaking in somewhere would require the approval of a minister. So he was trying to reassure people that this was not giving ASIO unfettered powers to spy on them.

RUBY:

And Karen, the timing here is interesting. We've got two bills which both expand ASIO's powers being debated while we're in the middle of this health and economic crisis.

KAREN:

Yeah, that's right. And I think that's what's upset, certainly those lawyers groups, and will raise some eyebrows that this is being sort of pushed through in a bit of a hurry. And Pauline Wright agreed with this.

Archival tape -- Pauline Wright:

This is a bill that should not be rushed. It really does need that full period of time so that it can be properly scrutinized by civil society and the parliamentary joint committee.

KAREN:

Interestingly, you know, it's been two years since the last round of recommendations that the detention powers be abolished and yet the government hasn't been in any hurry to do that. The powers expire in September this year. And all of a sudden we're now seeing the minister say we urgently need to have this bill approved. And of course, he's piggybacked expanded powers onto that abolition. And that's what's making people a little bit alarmed.

RUBY:

And is it looking like these bills will pass?

KAREN:

Well, the way these things often work is that the parliamentary joint committee makes recommendations to the government and it usually listens. And so there's often amendments made. But in the end, that committee is a bipartisan committee.

It only involves liberal and labor members, which has also been a point of contention because it doesn't have anyone from the crossbench on it. And generally speaking, in the end, the major parties will support the legislation in its final form, even if they're not entirely happy with it because Labor likes to be co-operative on matters of national security. So I expect ultimately that the bills will both pass.

RUBY:

Karen, thank you so much for your time today.

KAREN:

Thanks, Ruby.

RUBY:

Also in the news:

The Victorian Premier Daniel Andrews has announced that cafes, restaurants and pubs will be able to reopen from next month as part of a staged reopening of the hospitality industry.

Existing physical distancing requirements will continue to apply, meaning each person will need four square metres of space, and tables will need to be spaced at least 1-point-5 metres apart.

Venues will also be required to take the contact details of every customer to help with rapid contact tracing.

**

And the Trade Minister Simon Birmingham says the Australian Government may initiate a World Trade Organisation dispute… if China proceeds with imposing tariffs on Australian barley.

China has threatened to impose an 80 percent import tariff on barley… with a final decision due on Tuesday.

The trade spat comes as Australia pushes for an investigation into the origins of coronavirus

**

I’m Ruby Jones, this is 7am, see you tomorrow.

Home Affairs Minister Peter Dutton has recently introduced legislation that would expand the surveillance powers available to Australia’s domestic spy agency. Lawyers and civil-rights groups are arguing the proposed laws are too broad, and could contravene a range of human rights. Today, Karen Middleton on the attempt to expand ASIO’s powers in the midst of a pandemic.

Guest: Chief political correspondent for The Saturday Paper, Karen Middleton.

Background reading:

Dutton pushing for new ASIO powers in The Saturday Paper
The Saturday Paper
The Monthly

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7am is a daily show from The Monthly and The Saturday Paper. It’s produced by Ruby Schwartz, Atticus Bastow, and Michelle Macklem. Elle Marsh is our features and field producer, in a position supported by the Judith Neilson Institute for Journalism and Ideas. Brian Campeau mixes the show. Our editor is Osman Faruqi. Erik Jensen is our editor-in-chief. Our theme music is by Ned Beckley and Josh Hogan of Envelope Audio.

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225: The push to expand ASIO’s powers