Balancing the greatest grab for power by security agencies since 9/11

If I were Attorney-General I would put an end to the relentless expansion of resources and power that security agencies in this country have accumulated over the past decade. I would certainly be highly sceptical of the proposals served up earlier this month which provide for less judicial oversight and greater incursions into privacy. The Australian Security Intelligence Organisation, the Australian Secret Intelligence Service and the Australian Federal Police have been on clover since 11 September 2001. To paranoid politicians who pander to fears that such an event could happen in Australia they have found a receptive audience. Taxpayer handouts are no problem, new headquarters a must, and budgets for operations and routine surveillance have been escalating. Not content with the increase in legislative power that has come in the aftermath of September 11 and Australia’s sycophantic commitment to the American’s never ending and convenient War on Terror, the spooks are it again.

On 9 July 2012 the Joint Committee on Intelligence and Security announced it would look at Attorney-General Nicola Roxon’s quest to increase the powers of security agencies. A discussion paper from Ms Roxon’s Department was released setting out what the spies want. It’s a frightening list if you care about liberty and the right of individuals to assume that privacy means something more than lip service.

As is the usual case the proposals are dressed up in the language of there being a whole range of new cyber and transnational electronic threats out there and that Australia needs to be kept safe from evil. Ms Roxon, according to the discussion paper, wishes to progress or discuss initiatives such as enabling warrants to be varied by the Attorney-General and extending the duration of search warrants from 90 days to six months. There is also a proposal to “clarify” that reasonable force can be used by ASIO not just on entry to premises but during a raid.

The discussion paper also describes how it is proposed that a single super warrant against a target can be obtained, rather than multiple warrants. And there are going to be onerous obligations on ISPs and telecommunications companies to store customer data for two years and to allow government to see business plans and proposed network expansion plans and designs. ASIS would get the power to give weapons to its operatives overseas, presumably so they can kill people.

Make no mistake; this is the most significant grab for legislative power by security agencies in Australia since they took advantage of the hysterical political climate create by September 11 and the Bali bombings. If these proposals become law, the capacity of security agencies to spy on citizens, to bully telecommunications providers and to inflict violence on persons subjected to raids, will be significantly enhanced.

The sense one gets from the A-G Department’s discussion paper is that security agencies want to be allowed to slip under the radar of judicial and broader community scrutiny even further than they are able to do today.

What makes these proposals even more problematic is that Australia does not have adequate human rights protections so that aggrieved individuals can seek remedies in our courts. Ms Roxon is part of a government that promised much on human rights when it came to office in 2007 but has delivered absolutely nothing other than a tokenistic parliamentary committee.

There is no doubt that we live in a global environment where there are threats to national security and to the security of individuals. But vague rhetoric about such matters does not justify the preparedness of government to allow security agencies to be released from fundamental obligations such as respect for liberty and privacy. And that is the difficulty with Ms Roxon and her Department’s proposals. They are not justified by any evidence. The community is expected to sit back and be assured that threats of such magnitude exist, and that the existing powers contained in security agency and criminal legislation are not sufficient to adequately deal with them. It’s an example of the “trust us, we know what we are doing” approach and it is misplaced and dangerous when so much is at stake in terms of human rights and protections.

But if the Australian Parliament is to be asked to vote on at least some of the amendments to laws such as the Intelligence Services Act 2001 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth), should they not demand that the government consider strengthening human rights protections at the same time? If not a human rights act, then how about strengthening privacy laws so that if there are breaches of privacy which are not reasonable or justified by ASIO, for example, an individual has an enforceable right to compensation?

Ms Roxon and Prime Minister Gillard are justifying these proposals on the basis that they follow the UK and the US. In those countries, however, there are human rights protections which provide some check on a rampant security agency. Australians are not so protected, as noted above. So until that happens we should not allow security agencies to expand their powers.

Greg Barns is a barrister and was until recently National President of the Australian Lawyers Alliance.