Repost from August 2012 , as the laws passed The Senate last night.
I never wanted an older brother, but it seems I have a big brother.
“A Discussion Paper to accompany consideration by the Parliamentary Joint Committee on Intelligence and Security of a package of national security ideas comprising proposals for telecommunications interception reform, telecommunications sector security reform and Australian intelligence community legislation reform”
Some comma’s and full-stops in there would be helpful, and I could write this entire post on the spelling, grammatical and formatting errors I found in this document.
But I’m not going to.
What I’m going to do is try and make this as least painful as possible. Like a dentist. We don’t enjoy it, but we know it’s horribly necessary.
So, I’m only going to focus on Section 4 – which is the Attorney-Generals request to adjust/modify/increase/streamline ASIO’s access to your private life.
I know what you’re thinking (well. some of you, others I wouldn’t even try to understand your minds..), but I bet you’re wondering why someone like myself gives a shit about the powers of ASIO? I have no criminal background, no arrests or charges laid, and I’m certainly not planning on peacefully overthrowing the government any time soon ( That could change if Abbott get’s in, and i know I’m not alone there..).
I am concerned, because I suppose I am now termed a “political activist”. This means I’m truly interested in what the government is doing. This means I care. And this means, that the government can’t spoon feed me bullshit, while I say “Please sir, can I have some more?”
So, I’m going to grab paragraphs from this document, and I’m going to make my comments against them.
Stay with me. this is important. I will translate into actual english where I can.
” Chapter 4 – Australian Intelligence Community Legislation Reform”
(a.k.a – shit we want to change to make it easier to spy on you)
“Proposed reforms seek to continue the recent modernisation of security legislation to ensure the intelligence community can continue to meet the demands of government in the most effective manner”
(blah blah – it’s hard to spy on you, technology is changing, and we want to save money)
At the same time, it is important that legislation governing intelligence agencies continues to include appropriate checks and balances on the exercise of their powers. ‘
“Ensuring these agencies remain accountable for their actions helps to maintain public confidence in and support for the crucial work of intelligence agencies.”
(However.. in a previous section, they have requested that all ASIO employee’s are provided –
“protection from criminal and civil liability for certain conduct in the course of authorised intelligence operations”
NB: The “certain conduct” is the key phrase here, and this level of conduct is signed off and authorised by only one person – the Director. This leads to potential mis-use, corruption, blackmail and lack of discussion over what is considered “appropriate”. I believe it should go to a panel. )
Variation of a warrant.
“Currently, the ASIO Act does not specifically provide for a warrant to be varied if the circumstances justify such a variation. A new warrant is required in every instance where there is a significant change in circumstances. A variation provision may be appropriate to ensure sufficient operational flexibility while maintaining appropriate accountability.”
(ok – I can see their point. But again, the issue here is in the ambiguous wording. Key phrase here “variation”. What concerns me, is at what point does a “variation” become ” a complete change to the details of the initial warrant”. A name change? A location change? These kinds of “significant changes” should certainly have to go back to the courts to request a new warrant. But there seems to be no parameters describing their idea of “variation”.)
Duration of warrants.
” All warrants under the ASIO Act currently last for a maximum of six months, except for a search warrant which must be executed within 90 days. A warrant enabling a search to take place within a six month period would provide operational benefits as the exact timing of the search may depend on a range of unknown and fluid operational factors. Indeed, there have been instances where ASIO was unable to execute a search warrant within the 90 day limit for reasons beyond its control, and a new warrant would be required. . (note the .. at the end of this sentence. not my doing)
To address this, the maximum duration of a search warrant could be increased from 90 days to six months, making it consistent with the other warrant powers in the ASIO Act.”
( Questions – 3 months isn’t long enough? Why not, and what were the circumstances surrounding the above mentioned “failure” to execute within 3 months. We all know, that many many things can change in 6 months. And they also want to have unlimited access to renew this warrant. ( they don’t say unlimited, but nor do they specify a time frame.
I need to jump forward in the document a bit, in order to show how this really effects people – let’s go to:
“Sections 25 and 25A of the ASIO Act currently enable an officer, in the execution of a search or computer warrant, to do any thing that is reasonably incidental to the exercise of powers under that warrant. It is not clear whether this incidental power includes entry to a third party’s premises for the purposes of executing the search or computer warrant. Additionally, it may be necessary to enter a third party premises for the purposes of installing a surveillance device. Clarification of the scope of the incidental power would assist ASIO in executing search and computer warrants.”
(So.. give them extended warrants, which have unlimited renewals, and allow them into your mum’s house, local pub, local hang-out, friends house, workplace etc. to install listening devices. think about it. Unlimited access, for an indefinite amount of time, into any “third-party premises” without having to re-establish the initial reasons for the warrant.)
And then this just underneath
“Subsections 25(7), 25A(5A), 26B(4) and 26C(4) relate to the use of force when exercising a power under a warrant and when entry into a premises is authorised under the warrant. The headings to each of those subsections suggest that the powers in those subsections are limited to entry to the target premises. The provisions relating to use of force are not limited in such a way. Technical amendments may therefore be necessary to correct this drafting anomaly.”
(Drafting anomaly?? Really? Or is that those headings actually mean that the powers are limited to “target premises”, and that you would like them changed to ..well.. not specified.. but instead of specifying, you’ve instead termed it a “drafting anomaly”.. And if these subsections are limited to the target, and ASIO is using force outside of these parameters, then where are they getting the authorisation from?? Bit weird, that section.)
Going to stay on warrants for the moment..
Back to page 48
“Subsection 25A(5) currently restricts ASIO from doing anything under a computer access warrant that adds, deletes or alters data or interferes with, interrupts, or obstructs the lawful use of the target computer by other persons. This prohibition operates regardless of how minor or inconsequential the interference, interruption or obstruction may be.
To address this, section 25A could be amended so that the prohibition does not apply to activity proportionate to what is necessary to execute the warrant.”
(Can anyone say “plant information”?? )
“The ASIO Act currently contains the power to search a premises (section 25). Contained within this is the power to search a person who is at or near the premises where there are reasonable grounds to believe that the person has, on his or her person, records or other things relevant to the security matter (subsection 25(4A)).
Where ASIO assess that a particular person may be carrying items of relevance to security, a search warrant relating to a particular premises must be sought. It is only on or near the premises specified in the warrant that a person may be searched. However, it is not always feasible to execute a search warrant on a person of interest while they are ‘at or near’ the premises specified in the warrant.”
(Walking past the building – subject to searching. Not at the premises. “one way, or another, we’re going to find ya”.. and search ya – and remember.. for an unlimited amount of time, without having to re-prove their case. They are also asking for adjustments to be made, to ensure they can search any and all computers attached to one network..)
Ok – now for what kinds of scenario’s/activities would you expect them to be able to execute all of the above?
According to section 9(1A)(a), before giving an authorisation to produce intelligence on an Australian person, the responsible Minister must be satisfied that the Australian person is, or is likely to be, involved in one or more of the following activities:
- activities that present a significant risk to a persons safety;
- acting for, or on behalf of, a foreign power;.
- activities that are, or any likely to be, a threat to security (for this ground the Minister must also obtain the agreement of the Attorney]General);
- activities related to the proliferation of weapons of mass destruction or the movement of goods listed from time to time in the Defence and Strategic Goods List (within the meaning of regulation 13E of the Customs (Prohibited Exports) Regulations 1958);
- committing a serious crime by moving money, goods or people;
( You going to investigate banks?? I would love that, but I don’t think that’s where you are going with this..)
- committing a serious crime by using or transferring intellectual property.
- committing a serious crime by transmitting data or signals by means of guided and/or unguided electromagnetic energy; and
- activities related to a contravention, or an alleged contravention, by a person of a UN sanction enforcement law.
(NB: a “serious crime” is considered anything with a jail term “over 12 months”. Not 12 months, but over.
My issue here is the wording ” is likely to be”. How is this determined? Because I am spending my time on a beautiful Saturday afternoon analysing an ASIO document, could they deem me to ultimately be “likely” to do something. Adding to this, they also wish to include a new provision of ” involved or likely to be involved, in intelligence or counter intelligence activities”. There goes Wikileaks. And they also wish to include another section, which, if you publicly name an ASIO officer ( currently this has a jail term of 12months, thus not allowing it to be called a “serious crime”, to be added.)
There’s plenty of other dubious comments within this section, but seeing as it really is a lovely day outside, I kinda want to get amongst it. However, I am going to touch on one more section that truly concerns me, and that’s the overarching power of the Director-General of Security. As I mentioned before, I don’t believe power should sit so heavily in one persons hands. These are the terms of what he/she wants to be able to do.
“With the enactment of broad overarching laws criminalising security related issues, many of those targets under investigation are involved in activities that breach the criminal law. Increasingly, those laws are capable of capturing the activities of persons who are associating covertly with targets, notwithstanding that their activities are for lawful intelligence collection purposes.
For example, under Part 5.3 of the Criminal Code, it is an offence to intentionally provide training to or receive training from a terrorist organisation where the person is reckless as to whether the organisation is a terrorist organisation. Therefore, if an ASIO officer or human source is tasked to collect covert intelligence in relation to a terrorist organisation, they may be open to criminal liability under the Criminal Code if, in the course of collecting the relevant intelligence, they receive training from that organisation.
An authorised intelligence operations scheme would significantly assist covert intelligence operations that require undercover ASIO officers or human sources to gain and maintain access to highly sensitive information concerning serious threats to Australia and its citizens. A scheme similar to the controlled operations scheme under the Crimes Act 1914 could be developed to apply to ASIO officers and human sources operating under the ASIO Act, with appropriate modifications and safeguards that recognise the scheme would operate in the context of covert intelligence gathering investigations or operations.
Should an authorised intelligence operations regime be pursued, it will be critical that it achieves an appropriate balance between operational flexibility and appropriate oversight and accountability. Key features that may contribute to such could include:
- the Director]General of Security to issue authorised intelligence operation certificates which would provide protection from criminal and civil liability for specified conduct for a specified period (such as 12 months)
( One persons say so. This DG could be manipulated, or manipulate these codes for personal/political use )
- oversight and inspection by the Inspector]General of Intelligence and Security (IGIS), including notifying the IGIS once an authorised intelligence operation has been approved by the Director]General
(Again.. One person’s authority and oversight )
- specifying conduct which cannot be authorised (eg, intentionally inducing a person to commit a criminal offence that the person would not otherwise have intended to commit and conduct that is likely to cause the death of or serious injury to a person or involves the commission of a sexual offence against any person), and
(that’s ok. But the opposite isn’t, where by they specify what they are able to do AND not get charged for it.)
- independent review of the operation, effectiveness and implications of any such scheme, which could be conducted five years after the schemes commencement.
( Five years later? Bit fuckin late by then)
So, in summary, this whole section of the document is way too ambiguous, not specific enough, and allows too much power into the hands of one person. I for one, do not believe this is a way to ‘secure the country’ – I believe it is a way to grow the police state we are seeing increase day by day. Add these above issues, with the new legislation just passed allowing unlimited access to all of our internet history, and you can see we have some real problems heading our way.
Glad you made it to the end. I know it’s full on, and I’ve had to read it 2,3,4 times in order to get my head around it. I’m just worried that these ongoing, unlimited powers will be used against good people who just want to protest against what our government is doing to us, and not just be used against criminals who really need to be held accountable. Just the fact that I’ve mentioned the word ASIO in this document will ‘ping’ their systems to review my blog.
Comments welcome, and please correct me if I’ve read in error. I’m more than willing to discuss this, and my opinions – as we know, everyone has an opinion – and this is mine.