By STEVEN TRITTON
The government is charting an audacious new course in the ‘war against terrorism’ and it has important implications for us all. At the time of writing, the Australian parliament has passed the first of three tranches of controversial new national security legislation.
Officially known as the National Security Legislation Amendment Bill (No. 1) 2014, these new laws are an affront to democracy and mark an unprecedented threat to the freedom and privacy of all Australians. The raft of measures will considerably strengthen powers for spy agencies and deepen the coercive surveillance apparatus in Australia. There will be no time limit or sunset clause on the Bill.
The new laws give Australian Security Intelligence Organisation (ASIO) officers much greater power to access computers, computer systems and computer networks. This includes access to any number of computers where only a single warrant needs to be issued, including the potential to monitor “an entire corporate network or an entire internet service provider network or at the extreme end the whole internet.”1
Referring to the new legislation, Greens Senator Scott Ludlam, whose party didn’t support the Bill, said in a media release: “Big brother surveillance won’t make Australia safer. These are unprecedented powers that invade the privacy of all Australians for no security benefit.”2
Australian Lawyers Association President Greg Barns told Fairfax Media that the new laws would give security agencies carte blanche, “to surveil anyone, anytime, anywhere within Australia’s borders and possibly overseas if they have a jurisdictional connection to Australia.”3
Mr Barns explained: “This effectively makes it easier for ASIO to spy on all of us and in the absence of strong privacy protections in Australia, what will happen is inevitably there will be abuses of that power. In particular the fundamental right to privacy will be substantially impacted in a very negative way.”4
Under the new laws ASIO officers will have broad civil and criminal immunity. This means that intelligence officers would not be subject to prosecution if they were to use force or commit a crime in the course of a new class of “special intelligence operation” (SIO). While ASIO employees need to apply to the Attorney-General for authorisation to conduct an SIO, there is no limit on how many operations can be designated as such.
In light of the Edward Snowden scandal that hit the US National Security Agency, the new laws strengthen penalties for the leaking of information. Any intelligence officer found copying or removing classified intelligence material without authorisation could now face up to three years jail. If the officer is found to have passed information to a third party, they could face up to ten years imprisonment.
There are new offences created for anyone found to reveal or share information about an SIO. Whistleblowers and anyone else who discloses an SIO could face up to five years jail, or up to ten years if it endangers someone’s health and safety or prejudices the effective conduct of an operation.
There are deep concerns that journalists could ‘commit’ criminal offences and face jail for publishing stories, even when disclosure is in the public interest.
Seventeen recommendations by the Parliamentary Joint Committee on Intelligence and Security concerning the legislation, that were accepted by the government, still leave wide open the possibility to prosecute journalists and editors.
The recommendations do little to mitigate circumstances of an offence as the Director of Public Prosecutions would be under considerable pressure to prosecute anyone who revealed the information, “particularly if it was serious revelations that embarrassed the government,” said Mr Barns.5
When asked if there should be a public interest defence, Mr Barns replied, “absolutely.” Mr Barns further explained that unlike other jurisdictions such as the United States, United Kingdom and Canada that “have a constitutional right to freedom of speech,” Australia does not “have sufficient human rights protections… and so what it means is an editor would be at risk of being prosecuted and the public interest defence wouldn’t fly.”6
Dr. Binoy Kampmark of RMIT University in Melbourne, in an online article ‘‘Australia’s Police State: ‘Coercive Surveillance’ and the New Security Laws,” elucidated on the wider ramifications of the new laws:
“Turning off the spigot on information about government activity is a fundamental aim of the new laws, a regime in desperate search of an enemy. The enemy, rather than being tangible, security threats of the ‘existential’ sort actually become the writing class, the intelligentsia (if such a term ever deserves to be used in Australia) and those who so happen to publish material on special intelligence operations, notably of the abusive sort.”7
Broadening executive powers with no independent judicial oversight increases the risk such powers will be abused, says Dr. Kampmark:
“When oversight mechanisms for intelligence gathering are diluted, or simply evaded, the prospects for abuse are all but inevitable. Organisations have a habit of getting lazy over time, and this rule of sloth is rather hard to resist in the field of intelligence gathering.”8
It has also emerged the new laws will criminalise disclosures and reporting on SIOs even when “illegal activities” have been conducted by intelligence officers, or a bungled operation results in the death of an innocent person.9
Even more disturbing than procedural abuses, writes Dr. Kampmark, is the “ominousness” of the Bill that “gives a rather bright green light to intelligence officials to run riot in paramilitary fashion against enemies of the state.” With its “scope of the immunity from prosecution, the shoddy compensation regime, and the lessening of oversight,” the new legislation could plausibly “leave the way open to a torture system.”10
In his closing thoughts on the new laws and the spectre of a mandated torture system, Dr. Kampmark warns: “ASIO is being given a broader policing scope, one that involves interrogation, detention, and good old psychological mauling… The Attorney General has all the cards at this point, and is determined to convert ASIO into a playground bully with policing potential.”11
Similar views on the increasingly empowered ASIO come from Professor of Law at the University of New South Wales, George Williams, who spoke of the “extraordinary regimes” federal governments will now be able to implement:
“These provide for preventative detention orders, control orders and questioning and detention by ASIO. None of these regimes can now be found in nations such as the United States and the United Kingdom. Not even Israel allows its domestic spy agency to detain innocent citizens and subject them to jail if they refuse to answer questions.”12
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There are two further tranches of national security legislation to pass through federal parliament at this time of writing, all of which contain disturbing draconian measures.
The second tranche of new national security legislation, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill will make it a criminal offence for Australian nationals to travel to, or remain in, any area declared by the foreign affairs minister as a “no-go zone.”
These zones will be declared according to the presence of “terrorist” organisations engaging in hostile activities, and could be anywhere in the world. Anyone returning from a proscribed area will be compelled to prove they had not engaged in any terror-related activity.
The new laws restricting Australian citizen travel to “no-go zones” are “unprecedented among western democracies, according to terrorism experts.”13 Professor George Williams says the laws could criminalise anyone travelling to a no-go zone regardless of their reason for the visit, unless demonstrated for a specific “legitimate” reason as identified by the government:
“A person could escape conviction only by proving that they went to the area solely for a reason identified by the government as legitimate. The Bill says that it is a defence to enter a no-go zone such as to provide humanitarian aid or visit a family member. On the other hand, a person could be jailed if they went there to visit a friend, undertake freelance journalism, for a religious pilgrimage or to conduct business.”14
The new laws will broaden the existing prohibition on “engaging in armed hostilities in a foreign State” with the substitute phrase “engages in subverting society,”15 thus targeting anyone committing subjectively-determined activities not necessarily related to terrorism.16
As Professor of International Law at the University of Sydney Ben Saul said in his submission to the Parliamentary Joint Committee on Intelligence and Security:
“The Explanatory Memorandum is entirely misleading to suggest (at p. 7) that the definition of this offence is similar to the definition of a ‘terrorist act’, since the latter also includes the conjunctive requirements that conduct be intended to (a) advance a political, religious or ideological cause and (b) coerce or influence a government, or intimidate the public.”17
As Prof. Saul outlines, this means “subverting society,” “transforms many ‘garden variety’ crimes under foreign national law (such as assault, malicious wounding, or arson), into an Australian national security offence.”18
The third piece of legislation is the Telecommunications (Interception and Access) Act 1979. This Bill will be revised with new security amendments and is expected to be introduced to federal parliament later in 2014. The amendments to this Bill will require telecom companies retain their customers’ Internet and phone metadata for a period of up to two years. The amendments will permit security and law enforcement agencies to access this data without warrants.
Steve Dalby, regulatory chief of iiNet, Australia’s second-largest Internet provider, said in his submission to the Senate Standing Committee that the amendments threatened the civil rights of Australians and are incompatible with any democracy. He described the metadata retention scheme as indicative of “a regime obsessed with surveillance of the general population and the compilation of digital dossiers on every citizen, including children and the innocent…”19
Under current government-mandated regulatory requirements, all Australian telecommunications and Internet service providers are required to maintain interception and data collection capabilities for government surveillance purposes.
Fairfax Media revealed in December 2013 that security and law enforcement agencies are accessing massive flows of communications and Internet metadata from the customers of telecom companies.
“Australia’s leading telecommunications company, Telstra, has installed highly advanced surveillance systems to ‘vacuum’ the telephone calls, texts, social media messages and Internet metadata of millions of Australians so that information can be filtered and given to intelligence and law enforcement agencies,” wrote Phillip Dorling in an article published in the Sydney Morning Herald on 6 December 2013.20
That law enforcement agencies already have authorised access to massive flows of data was confirmed by a spokesperson from Telstra who told Fairfax Media the company was “required to provide reasonable assistance to law enforcement and national security agencies in response to lawful requests from these agencies.”21
Few people are aware that private data on Australian citizens is circulated amongst the ‘Five Eyes’ intelligence-sharing group of nations that includes the US, Britain, Canada, Australia and New Zealand.
Assurances of oversights on intelligence sharing about Australians among the Five Eyes nations has been criticised in the Inquiry into the Comprehensive Review of the Telecommunications (Interception and Access) Act 1979.
In a submission to the Legal and Constitutional Affairs Committee, Wikileaks founder Julian Assange accused Australian government agencies of providing misleading evidence to a parliamentary inquiry.22Responding to the Assistant Inspector General Jake Blight’s affirmations that data sharing on Australians “is regulated tightly by the Intelligence Services Act,” the WikiLeaks submission stated:
“In fact, the revelations of [US National Security Agency whistleblower] Edward Snowden have documented shared and integrated 5 Eyes databases, and that untargeted, bulk interception, collection and sharing of algorithmic analysis of private communications are routine among the 5 Eyes intelligence agencies.”23
The Wikileaks submission dated 24 September 2014 concludes:
“By expanding the scope of surveillance overreach to anyone that was ‘in the interest of Australia’s national security, Australia’s foreign relations or Australia’s economic wellbeing’, almost anyone could be caught, rendering the ‘strict oversight’ a gesture, a meaningless gesture in the context of mass surveillance, collection and sharing of intelligence.”24
The new security laws will give security and law enforcement agencies additional and stronger powers to spy on Australians, and much more of our data will be harvested and retained for arbitrary surveillance purposes, be that on home soil or of interest to intelligence agencies abroad.
There has been little public scrutiny and debate of the new laws, which have the unwavering support of the opposition Labor Party. Certainly, questions have been asked and objections raised, but these have all but been muffled by the cacophony of melodramatic hypotheticals and reactions to the dramatic events in the period during the passage of the Bills in parliament.
Paul Farrell of The Guardian expressed the sentiment of many journalists by lamenting the absence of a “concerted campaign” and “unified push by the media to stop” the passing of the National Security Legislation Amendment Bill (No. 1) 2014 in the Senate.25
Returning to a point made earlier in this article, lawyer Greg Barns rightly points out that one reason why this legislation sailed through parliament with little resistance is because Australia doesn’t “have a human rights act.” In comments to Fairfax Media, he said: “This sort of legislation is much easier to strike down in places like Canada and the UK where you got these rights that people can enforce. Here there’s nothing to hold it back. Nothing to stem the tide.”26
Raising the spectre of the new security laws paving the way toward authoritarianism, Tasmanian Independent federal MP Andrew Wilkie warned: “At some point in the future we’ll have spies kicking in doors and using force with no police alongside them and that is another step towards a police state.”27
In further remarks on National Security Legislation Amendment Bill (No. 1) 2014, Mr Wilkie told the House of Representatives:
“Why is the government – with the opposition’s support – wanting to overreach like this? I can only assume the government is wanting to capitalise on and exploit the current security environment… It is clearly overreach by the security services who have basically been invited to write an open cheque.”28
Commenting on the new laws and the potential impact on civil liberties and expansion of executive power, Dr. Kampmark remarked:
“It is no exaggeration to suggest that the current swathe of proposed laws risk placing Australia, not merely on a police state footing, but a garrisoned footing. Terrorism, for all its fearful properties, remains an idea, a tactic and a method. The consequences of responding to it are quite something else. Shredding civil liberties is the first step to admitting a failure in dealing with the very problem a society should resist.”29
The federal government’s draconian national security agenda has enjoyed an otherwise far less contentious reception amid the sensationalised theatre of terrorism. Indeed, there is a “delicate balance between freedom and security,” as Prime Minister Tony Abbott put it. But that delicate balance is threatened as our freedoms, rights and privacy are systematically eroded by the state. As Mr Barns opined, “it is the sort of legislation one would expect to find in an authoritarian society.”30
Professor Henry Giroux in a recent article, ‘Totalitarian Paranoia in the Post-Orwellian Surveillance State’, writes that “if the first order of authoritarianism is unchecked secrecy, the first moment of resistance to such an order is widespread critical awareness of state and corporate power and its threat to democracy…”31
Raising such “awareness” in Australia is now more “critical” than ever.
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Note: All links accessible at time of publication
- Ben Grubb, ‘New laws could give ASIO a warrant for the entire internet, jail journalists and whistleblowers’, The Sydney Morning Herald, 24 September 2014 at www.smh.com.au/digital-life/consumer-security/new-laws-could-give-asio-a-warrant-for-the-entire-internet-jail-journalists-and-whistleblowers-20140923-10kzjz.html
- Scott Ludlam, ‘Big brother surveillance won’t make Australia safer’, Greens MPs, 25 September 2014 at http://scott-ludlam.greensmps.org.au/content/media-releases/big-brother-surveillance-won%E2%80%99t-make-australia-safer
- Ben Grubb, ‘Parliament ‘bullied’ to pass national security laws, says Greens senator Scott Ludlam’, Sydney Morning Herald, 24 September 2014 at www.smh.com.au/digital-life/consumer-security/parliament-bullied-to-pass-national-security-laws-says-greens-senator-scott-ludlam-20140924-10lir9.html
- Dr Binoy Kampmark, ‘‘Australia’s Police State: ‘Coercive Surveillance’ and the New Security Laws’, Global Research, 27 September 2014 at www.globalresearch.ca/australias-police-state-coercive-surveillance-and-the-new-security-laws/5404645
- Ben Grubb, ‘Media reporting of ASIO killings illegal under new national security laws, says law expert’, The Sydney Morning Herald, 30 September 2014 at www.smh.com.au/federal-politics/political-news/media-reporting-of-asio-killings-illegal-under-new-national-security-laws-says-law-expert-20140930-10o9i2.html
- Dr Binoy Kampmark, ‘Torture in Oz’, Counterpunch, 26-28 September 2014 at www.counterpunch.org/2014/09/26/torture-in-oz/
- George Williams, ‘Anti-terror laws need proper scrutiny’, The Sydney Morning Herald, 6 October 2014 at www.smh.com.au/comment/antiterror-laws-need-proper-scrutiny-20141002-10p6dg.html
- Gay Alcorn, ‘No-go travel zones unprecedented among western democracies’, The Guardian, 22 September 2014 at www.theguardian.com/world/2014/sep/22/no-go-travel-zones-unprecedented-among-western-democracies
- Ibid, George Williams, ‘Anti-terror laws need proper scrutiny’
- See the Bill’s ‘Explanatory Memorandum’ at http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/s976_ems_d5aff32a-9c65-43b1-a13e-8ffd4c023831/upload_pdf/79502em.pdf;fileType=application%2Fpdf
- Louise Yaxley, ‘ASIO’s new powers to expand beyond terrorism’, ABC, 2 October 2014 at www.abc.net.au/worldtoday/content/2014/s4098922.htm
- Ben Saul, ‘Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 Submission 2’, 1 October 2014 at www.aph.gov.au/DocumentStore.ashx?id=afbda131-d9cd-4e92-bf72-841387181161&subId=300635
- Stephen Dalby et al, ‘Submission to the Senate Standing Committee on Legal and Constitutional Affairs’, iiNet, 29 July 2014 at www.iinet.net.au/about/mediacentre/papers-and-presentations/20142807-tia-act-1979.pdf
- Philip Dorling, ‘Telstra’s data ‘vacuum’’, The Age, 6 December 2013 at www.theage.com.au/technology/technology-news/telstras-data-vacuum-20131205-2yucb.html
- Julian Assange, ‘Comprehensive revision of the Telecommunications (Interception and Access) Act 1979 Submission 46’, WikiLeaks, 24 September 2014 at www.aph.gov.au/DocumentStore.ashx?id=4beba0d7-5e7b-4ca7-ac75-30d717fbd871&subId=300612
- Paul Farrell, ‘Journalists and whistleblowers will go to jail under new national security laws’, The Guardian, 26 September 2014 at www.theguardian.com/commentisfree/2014/sep/26/journalists-and-whistleblowers-will-go-to-jail-under-new-national-security-laws
- Ibid, Ben Grubb, ‘Parliament ‘bullied’ to pass national security laws, says Greens senator Scott Ludlam’
- Matthew Knott and Ben Grubb, ‘New national security laws pave way for ‘police state’, says Andrew Wilkie’, The Sydney Morning Herald, 1 October 2014 at www.smh.com.au/federal-politics/political-news/new-national-security-laws-pave-way-for-police-state-says-andrew-wilkie-20141001-10ojxq.html
- Dr Binoy Kampmark, ‘Winding back the Liberties: The New Anti-Terror Laws in Australia’, The Rule of Law Institute of Australia, 25 September 2014 at www.ruleoflaw.org.au/anti-terror-laws-in-australia/
- Ibid, Ben Grubb, ‘Parliament ‘bullied’ to pass national security laws, says Greens senator Scott Ludlam’
- Henry Giroux, ‘Totalitarian Paranoia in the Post-Orwellian Surveillance State’, Truthout, 10 February 2014 at www.truthdig.com/report/page4/totalitarian_paranoia_in_the_post-orwellian_surveillance_state_20140210
STEVEN TRITTON has written two articles for New Dawn: ‘Sleepwalking into the Surveillance Society’ (No. 145, July-Aug 2014) and ‘Australia: The End of Freedom?’ (Special Issue Vol. 8 No. 5). Steven co-authored Australia’s Security Nightmares with a chapter on raising awareness about national security challenges in 2012. Steven can be contacted at firstname.lastname@example.org