Government and governance, National security | Australia

10 September 2021

To keep the use of newly expanded security powers in check and assure the public, the Morrison government must not hesitate in passing an Integrity Measures Bill, William Stoltz writes.

An untold story of the last two years is the Morrison government’s quiet but steady expansion of the powers of Australia’s security and intelligence agencies.

Australia’s security and intelligence landscape has been shifting since 2019 through a multitude of complex bills that have garnered relatively little attention despite their importance. Many of the changes are rational modernisations of cumbersome and outdated laws that don’t match the technologically charged nature of modern espionage and crime.

Yet the government’s legislative agenda has not merely been about tidying up old legislation, it has also significantly grown the powers of Australian agencies in the face of an increasingly hostile operating environment.

Importantly, the government has made it much easier for a multitude of agencies to intercept the digital communications of Australians and foreigners for a wider range of national security purposes.

Recently the government introduced a new bill to expand the ability of the Australian Security Intelligence Organisation (ASIO) to intercept the communications of Australians working for foreign powers, both here and overseas. Arguably, this is a necessary reform to deal with the increasing threat of foreign interference.

This comes hot on the heels of a multitude of other changes to national security laws, including allowing intelligence and law enforcement agencies to forcibly take over online accounts, new powers for agencies to damage or block digital communications, and new authorisations for agencies to access stored communications data and exchange it with United States counterparts.

More on this: Podcast: Australia’s new intelligence jigsaw

As a result of this expansion in powers, agencies including ASIO, the Australian Signals Directorate (ASD), the Australian Criminal Intelligence Commission (ACIC), and the Australian Federal Police (AFP) also have a greater social obligation to outwardly assure the public and the telecommunications sector.

They should be told that not only will these digital powers be used proportionately, but that they will properly protect the sensitive data they collect – which is no mean feat in an era of increasing cyber warfare.

They should therefore reconsider whether the high degree of secrecy they adopt towards discussing their operations publicly is counter-productive to maintaining public trust. The public needs to feel that agencies’ extraordinary spying powers won’t be misused, and that their retention of large amounts of sensitive data won’t be compromised by foreign powers.

Since the establishment of Australia’s intelligence community, clear legal demarcations have existed around which agencies could collect intelligence on Australians and which could not, as well as for what purposes Australians could be targeted. The logic was that Australian citizenship and the rights it entailed meant that surveillance on Australians should be more operationally limited and legally constrained than on foreigners.

Crucially, the Morrison government’s national security reforms have removed many of these traditional distinctions between foreign and domestic intelligence collection and the different treatment of Australian and foreign targets, respectively.

For example, the government’s Foreign Intelligence Legislation Amendment Bill, introduced in August, will allow ASIO to continue intercepting online communications where it cannot easily establish if a target is Australian or not.

More on this: ASIO sounds the alarm

Further, recent amendments to surveillance legislation that expands the cyber operations of the AFP and the ACIC also now provides an avenue for ASD – traditionally a solely foreign intelligence agency – to deploy its cyber capabilities domestically to support domestic law enforcement.

Much of the Morrison government’s national security legislation has been put to Parliament with minimal time for review either by the Senate and House of Representatives or the special committees that examine such legislation more closely. There can be very good operational reasons for rushing security legislation through, and swiftly evolving technologies have necessitated rapid legislative adaptations among Australia’s allies, but there are risks to this.

For one, the government’s decision to repeatedly rush complex, significant security bills through Parliament may be straining the limits of the opposition’s bipartisan support for national security reforms, as they are being given less and less time to consider new proposals.

Further, not pausing to better explain these new powers to the public can play into narratives of the ill-informed, or the downright conspiratorial, who are already inclined to believe that Australia’s intelligence agencies comprise a ‘deep-state’ bent on achieving mass surveillance.

Finally, the expansion in national security powers overseen by the government will place great strain on the nation’s chief intelligence watchdog, the Inspector-General of Intelligence and Security (IGIS), a powerful yet small organisation with a paltry budget compared with the agencies it must scrutinise.

Sadly, while new powers for agencies have been passed at record speed, the Integrity Measures Bill, which will grow the oversight remit of the IGIS, has not been progressed by the government for some time.

To keep agencies’ use of their new expanded powers in check, the government’s number one priority for national security law reform must now be to pass the Integrity Measures Bill. This will ensure the IGIS has the resources it needs to keep Australian intelligence activities as ethical, proportionate, and unintrusive as possible while still giving them the powers they need to protect Australians.

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