Paul Farrell theguardian.com, Thursday 25 September 2014
A series of law enforcement and intelligence gathering bills to be considered by parliament will affect the rights of all Australians
Proposed national security legislation changes include sweeping new powers to seize digital data. Photograph: Martin Barraud/Ocean/Corbis
The Australian prime minister, Tony Abbott, has argued that some freedoms may need to be sacrificed in order to protect Australians. Citizens are now being asked to support a shift in “the delicate balance between freedom and security”.
But what is that shift and how far should it go? The federal government is embarking on a series of major changes to our law enforcement and intelligence gathering power. Many of these changes are confusing, highly technical, and are being brought forward in a series of different bills that are at very different stages.
What they will all affect are the rights and freedoms of Australians. The debate that occurs over the coming months in federal parliament and in the public domain will shape how digital rights, personal liberties and freedoms are protected in years to come.
Here are eight of the key changes being proposed across three separate bills and how they could affect your rights and freedoms.
National security reform bill one
This bill was introduced into the Senate in July by the attorney general. It was then sent to the joint committee on intelligence and security, which proposed some small changes to the legislation. It is now being debated in the Senate. The three points below are found in this bill.
1) Journalists and whistle-blowers face jail for intelligence reporting
Australian journalists could face prosecution and jail for reporting about certain spy operations, even if there is a public interest in the release of the information. This bill creates a new offence punishable by five years in jail for “any person” who discloses information relating to “special intelligence operations” and raises serious concerns about press freedom in Australia. While Brandis has said that the new offence is not aimed at journalists, the joint committee review did not recommend changes to the law – meaning journalists could still face penalties down the line if they knowingly report on these types of operations.
Separate offences have also been created that only apply to current and former intelligence operatives and contractors in a move which appeared to directly address the risk of documentary disclosures being made following revelations by the US National Security Agency whistle-blower Edward Snowden – who Brandis has previously labelled a “traitor”.
2) Computer hacking powers for intelligence agencies
New powers could allow ASIO to obtain massive warrants for effectively the whole of the internet as part of changes to computer access laws. Under these changes, ASIO will be given new powers to obtains warrants to disrupt and target “third party computers”. But as constitutional law expert and University of New South Wales professor George Williams told Fairfax Media, the new laws could effectively allow agencies to gain access to one “network” that effectively covered all of Australia. Depending on the scope of these warrants and how they are interpreted, this could involve quite serious invasions of privacy.
3) Immunity from prosecution for uses of force by ASIO officers involved in “special intelligence operations”
One of the most controversial aspects of this legislation allows ASIO officers to use force during certain types of operations. Traditionally, the intelligence agency was about just that – intelligence gathering. But changes in this bill seem to indicate a shift permitting them to engage in a much broader range of activities that were traditionally left to other law enforcement agencies.
They won’t be able to kill or seriously injure or commit a sexual assault – but the fact remains that this does permit a level of force to be used by ASIO officers in these types of special intelligence operations. An amendment to the bill was subsequently moved by the government to helpfully clarify that it does not permit torture.
National security reform bill two
This bill was introduced into the Senate on 24 September. It has not yet been debated, and will likely go to the joint committee for intelligence and security for their consideration first. If that is the case it will not be debated in the Senate for at least another month. The four points below are found in this bill.
4) Expanding detention without charge powers
Controversial orders to hold people with charge that were introduced by the Howard government are set to be not only retained but expanded under this bill.
Preventative detention orders allow a person to be detained without charge for up to 14 days and their use is shrouded in secrecy. They were set to expire last year, but the case is now being made for their renewal for another 10 years.
The only types of these orders ever made were issued last week in the major counter-terrorism operation in Sydney under NSW legislation. The AFP even refused to confirm how many people were being detained under these orders, and there is currently an indefinite order prevention publication of any details about them.
The new act also seeks to lower the threshold for when police officers can apply for these orders from having a “belief” to a “suspicion” While it may seem semantic this is an important distinction that lowers the bar for applying to a court for the orders.
Legal experts have questioned the need for this entire regime to exist – given there are already substantial powers to hold and detain people under the existing criminal code, and particularly seeing as there doesn’t seem to have been much use for these laws over the past decade.
5) Restricting freedom of movement and association with control orders and prohibited contact orders
Control orders and prohibited contact orders will similarly be retained under the new bill if it succeeds in passing. Control orders allow a judge to impose restrictions on the movement of a person without finding them guilty of an offence, while prohibited contact orders limit their associations.
Both of these orders will be expanded to increase the range of reasons they can be sought, including restricting the movement or associations people who have been involved in foreign incursions and return to Australia.
6) Life imprisonment for people who fight, or even prepare to fight, overseas in a foreign country
An aggressive deterrent is being put forward where people who fight or intend to fight in a foreign country could face life imprisonment. The government is radically reshaping the foreign incursion laws to create life sentences for people who engage in foreign incursions, prepare for foreign incursions, give or receive goods or allow the use of buildings or vessels for foreign incursions.
7) Prohibiting travel to a region, or even an entire country, unless a person can demonstrate a legitimate reason for being there
In a separate offence that requires a lower threshold of evidence than the previous incursion law, an entire country can be declared a “no-go zone” that could see entrants to the country jailed for 10 years if they cannot point to a legitimate reason for their trip.
The new offence would criminalise a person entering or remaining in a “declared area” by the foreign affairs minister if they enter or remain in an area that has been proscribed.
The defendant would need to demonstrate they had a legitimate reason for being there – which could include journalism, aid work or government duties – to avoid being subject to the offence. Australian Lawyers Alliance spokesman Greg Barns has raised serious concerns about whether this law is necessary or proportionate – and what value it would serve given the existing laws surrounding incursions.
National security reform bill three
This is the last package of national security legislation and is likely to be mainly about electronic surveillance. It is much more difficult to consider what impact it will have, as the government still appears to be considering what changes they will make. But they have given some indications of what they would like to see, and the one point below outlines this. The attorney general has flagged the bill for introduction later this year.
8) Mandatory data retention of Australians web and mobile data for two years
Mandatory data retention would largely be for the purposes of allowing web and mobile data to be seized by law enforcement and intelligence agencies. This sort of retention potentially exposes Australians to significant intrusions into their private lives, allowing broad access to who, when and where a person emailed or call somebody.
The proposal has created additional concerns because of the weak safeguards around access to this sort of personal information already in place. Under the current laws, thousands of local, state and federal agencies can request access to Australians’ personal data – or metadata – without a warrant. Access to this data is so easy there were over 300,000 requests for Australians’ personal data in 2013. It raises serious concerns for all citizens, but also poses major difficulties for journalists and their sources, who can easily be exposed through these laws.
Eight ways Tony Abbott is trying to trade freedom for security | World news | theguardian.com
