Cabi­net split on Dut­ton spy plan

As crit­ics leak against Peter Dut­ton’s plan to em­ploy the Sig­nals Direc­torate against Aus­tralians, the min­is­ter de­fends the pow­ers as nec­es­sary. Karen Mid­dle­ton re­ports.

The Saturday Paper - - Front Page - KAREN MID­DLE­TON is The Satur­day Pa­per’s chief po­lit­i­cal cor­re­spon­dent.

Home Af­fairs Min­is­ter Peter Dut­ton got what he wanted when the prime min­is­ter de­cided to es­tab­lish the Home Af­fairs Depart­ment last year, de­spite few of his cabi­net col­leagues and none of the se­cu­rity agen­cies ac­tively sup­port­ing its cre­ation.

Now, as the min­is­ter seeks to ex­pand his port­fo­lio’s reach, some in both of those groups are push­ing back.

This week, Dut­ton was asked if the agency that col­lects for­eign in­tel­li­gence in de­fence of the na­tion, the Aus­tralian Sig­nals Direc­torate, should be al­lowed to spy on Aus­tralians as well.

In a round­about way and with a few qual­i­fi­ca­tions, he said yes.

Such a change would be a dra­matic de­par­ture from the op­er­a­tional struc­ture that has gov­erned the work of Aus­tralia’s se­cu­rity and in­tel­li­gence agen­cies for decades.

The Satur­day Pa­per has been told that most of Dut­ton’s col­leagues on cabi­net’s na­tional se­cu­rity com­mit­tee – in­clud­ing Prime Min­is­ter Mal­colm Turn­bull – do not sup­port it.

Prompt­ing Tues­day’s ques­tion to Dut­ton was a re­port by jour­nal­ist An­nika Smethurst in News Corp’s

Sun­day Tele­graph news­pa­per, de­tail­ing cor­re­spon­dence be­tween Home Af­fairs sec­re­tary Mike Pez­zullo and De­fence sec­re­tary Greg Mo­ri­arty.

Ac­com­pa­ny­ing the story was a smart­phone snap of part of a min­is­te­rial sub­mis­sion no­ti­fy­ing Mo­ri­arty and De­fence Min­is­ter Marise Payne of “pro­pos­als from the Home Af­fairs port­fo­lio for fur­ther leg­isla­tive changes to en­able ASD to bet­ter sup­port Home Af­fairs pri­or­i­ties”.

Ex­pos­ing the pro­posal to pub­lic scru­tiny, the re­port quoted Home Af­fairs as want­ing ASD to have pow­ers to “proac­tively dis­rupt and covertly re­move” on­shore cy­berthreats by “hack­ing into crit­i­cal in­fra­struc­ture”.

Se­cu­rity sources con­firmed to The Satur­day Pa­per what has been widely spec­u­lated: that the leak was a de­lib­er­ate move by op­po­nents of any fur­ther ex­pan­sion of Home Af­fairs, to draw pub­lic at­ten­tion to the pro­posal and stop it in its tracks. Po­lice are now in­ves­ti­gat­ing.

Pre­vi­ously called the De­fence

Sig­nals Direc­torate, ASD was given its new name by the Gil­lard govern­ment to re­flect an in­creas­ing en­gage­ment with se­cu­rity agen­cies con­duct­ing non­mil­i­tary work.

But the agency re­mained within the De­fence port­fo­lio, with its pri­mary role to gather in­tel­li­gence abroad and pro­vide it to as­sist both the depart­ment and the Aus­tralian De­fence Force in their mis­sion to pro­tect Aus­tralia’s in­ter­ests.

The Aus­tralian Fed­eral Po­lice and the do­mes­tic spy agency, the Aus­tralian Se­cu­rity In­tel­li­gence Or­gan­i­sa­tion, are re­spon­si­ble for con­duct­ing sur­veil­lance at home and can ask ASD for tech­ni­cal ad­vice when nec­es­sary.

There are strict rules around

ASD’s ac­tiv­i­ties and if it dis­cov­ers an Aus­tralian is caught up in its over­seas net, it must re­port that and ei­ther cease the op­er­a­tion or ob­tain spe­cial au­tho­ri­sa­tion to con­tinue. It can­not con­duct spy­ing op­er­a­tions on­shore.

After the leak, the two de­part­men­tal sec­re­taries and ASD di­rec­tor Mike Burgess jointly is­sued a pub­lic state­ment.

They de­nied any plans to covertly ac­cess Aus­tralians’ pri­vate data but noted that ASD’s cybersecurity role was be­ing en­hanced through leg­is­la­tion.

“The cybersecurity func­tion en­tails pro­tect­ing Aus­tralians from cy­ber­en­abled crime and cy­ber-at­tacks, and not col­lect­ing in­tel­li­gence on Aus­tralians,” the state­ment said. “These are two dis­tinct func­tions, tech­ni­cally and op­er­a­tionally.”

But they added: “In the ever chang­ing world of cybersecurity as of­fi­cials we should ex­plore all op­tions to pro­tect Aus­tralians and the Aus­tralian econ­omy.”

The state­ment says the agen­cies “would never pro­vide ad­vice to Govern­ment sug­gest­ing that ASD be al­lowed to have unchecked data col­lec­tion on Aus­tralians – this can only ever oc­cur within the law, and un­der very limited and con­trolled cir­cum­stances”.

Peter Dut­ton was asked about the pro­posed ex­pan­sion dur­ing a Tues­day news con­fer­ence he had called to an­nounce the ap­point­ment of a new deputy AFP com­mis­sioner fo­cused on Com­mon­wealth transna­tional and se­ri­ous or­gan­ised crime.

Dut­ton out­lined why he sup­ported an ASD change, ze­ro­ing in on the cy­berthreat from “so­phis­ti­cated crim­i­nal syn­di­cates” and par­tic­u­larly child pornog­ra­phers.

“In the child ex­ploita­tion space we know that there are so­phis­ti­cated net­works on­shore and off that are stream­ing live prod­uct of chil­dren be­ing ex­ploited on­line,” Dut­ton said.

“Now, if we had a ca­pac­ity to dis­rupt that and to de­stroy those net­works, would we want to con­sider it? Of course we would.”

The widely held view within the se­cu­rity and in­tel­li­gence com­mu­nity – and in cabi­net’s top ranks – is that that ca­pac­ity al­ready ex­ists, not least within the AFP, whose com­mis­sioner An­drew Colvin was stand­ing be­side Dut­ton as he spoke.

The AFP has re­cently re­ceived an ex­tra $70 mil­lion in fund­ing to­wards that work. Colvin said any change to ASD was a mat­ter for pol­i­cy­mak­ers.

The Sun­day Tele­graph re­port quoted the Home Af­fairs sub­mis­sion as say­ing the ex­pan­sion would en­able ASD to “counter or dis­rupt cy­ber-en­abled crim­i­nals both on­shore and off­shore”.

It also said the plan was for the min­is­ters for Home Af­fairs and De­fence to au­tho­rise such ac­tiv­i­ties, by­pass­ing the at­tor­ney-gen­eral, who oth­er­wise re­tains the power to sign off on war­rants.

On the day the new se­cu­rity ar­range­ments were an­nounced in July last year, the then at­tor­ney-gen­eral Ge­orge Bran­dis em­pha­sised the ne­ces­sity of the first law of­fi­cer’s on­go­ing check­sand-bal­ances role.

This week, Dut­ton dis­missed as “com­plete non­sense” sugges­tions he planned to spy on Aus­tralian cit­i­zens and in­sisted any change “would be ac­com­pa­nied by the usual pro­tec­tions, in­clud­ing war­rant pow­ers ei­ther with the AG or with the rel­e­vant jus­tice, what­ever the case might be”.

The is­sue of du­elling min­is­te­rial pow­ers also high­lights on­go­ing con­fu­sion about how the new Of­fice of Na­tional In­tel­li­gence, within the Depart­ment of Prime Min­is­ter and Cabi­net, will re­late to the Depart­ment of Home Af­fairs and which will have su­pe­rior author­ity in in­tel­li­gence mat­ters.

There is also a prac­ti­cal prob­lem with seek­ing to ex­pand ASD’s re­mit.

Its fo­cus cur­rently is on help­ing to dis­rupt ac­tiv­i­ties abroad, not on prose­cut­ing crim­i­nals.

ASD uses covert meth­ods not able to be dis­closed pub­licly, com­pli­cat­ing mat­ters if agen­cies needed to rely on ev­i­dence it gath­ered to sup­port a do­mes­tic crim­i­nal pros­e­cu­tion.

The pres­i­dent of the Aus­tralian In­sti­tute of Pro­fes­sional In­tel­li­gence Of­fi­cers, Dr Phil Kowal­ick, told The Satur­day Pa­per this week that his or­gan­i­sa­tion did not sup­port ex­tend­ing ASD’s role to in­clude spy­ing on Aus­tralians on­shore.

“Our po­si­tion is that Aus­tralia al­ready has the ca­pa­bil­ity to in­ves­ti­gate crim­i­nal mat­ters at the Com­mon­wealth, state and ter­ri­tory lev­els and [has] pro­cesses in place to en­able those in­ves­ti­ga­tions legally and with proper process and war­rants must be ap­proved through the courts,” Kowal­ick said.

This was to en­sure that if a case pro­ceeded to pros­e­cu­tion, the ev­i­dence pro­duced could be used.

“Aus­tralia also has mech­a­nisms that en­able in­tel­li­gence col­lec­tion that safe­guard Aus­tralia and Aus­tralian in­ter­ests through cer­tain agen­cies, ASD be­ing one,” he said. The ac­tiv­i­ties of those agen­cies were au­tho­rised at min­is­te­rial level.

Kowal­ick said: “The ques­tion seems to be whether and un­der what cir­cum­stances those in­tel­li­gence col­lec­tion agen­cies should be given pow­ers to take ac­tion on is­sues that would re­quire them to turn their at­ten­tion to crim­i­nal mat­ters and what that would mean for prose­cut­ing those of­fences.”

He asked: What is the prob­lem that would be reme­died by mak­ing this change?

“It seems to me that there’s scope for dis­cus­sion on what prob­lem govern­ment would be seek­ing to ad­dress by ex­pand­ing ASD pow­ers and what would be the mech­a­nism for ad­dress­ing that prob­lem,” he said.

“Giv­ing ASD greater pow­ers – it’s not nec­es­sar­ily the most ap­pro­pri­ate thing to do. You need to have a dis­cus­sion about the prob­lem, look at what we al­ready have in place and [at] what’s the gap we’re try­ing to fix.”

For­eign Min­is­ter Julie Bishop says there is none.

After Sun­day’s leak, Bishop was asked di­rectly if se­nior pub­lic ser­vants were plan­ning for the ASD to spy on Aus­tralians.

“No,” she said. “The cur­rent laws safe­guard the pri­vacy of Aus­tralians but also pro­vide us with an op­por­tu­nity to keep Aus­tralians safe … I don’t see any na­tional se­cu­rity gap and I cer­tainly be­lieve the cur­rent laws safe­guard the pri­vacy of Aus­tralians but also keep Aus­tralians safe.”

She em­pha­sised that view came from the ex­perts. “I take my ad­vice from our se­cu­rity and in­tel­li­gence agen­cies and they have not raised with me any is­sue that would re­quire an ex­pan­sion of ASD pow­ers such that you would use them against Aus­tralians.”

That ad­vice in­cludes the find­ings of the in­de­pen­dent in­tel­li­gence re­view that formed the ba­sis last year for over­haul­ing the na­tion’s se­cu­rity struc­ture.

The re­view rec­om­mended the es­tab­lish­ment of what is now the Of­fice of Na­tional In­tel­li­gence – a re­struc­ture of the old Of­fice of Na­tional As­sess­ments – to play a co­or­di­nat­ing role. It also rec­om­mended turn­ing ASD into a statu­tory author­ity, a move that was leg­is­lated ear­lier this year.

The 2017 in­tel­li­gence re­view did not rec­om­mend es­tab­lish­ing the Depart­ment of Home Af­fairs.

“We con­sider the broad ar­chi­tec­ture of Aus­tralia’s over­sight ar­range­ments re­mains ap­pro­pri­ate and does not re­quire fun­da­men­tal change,” it said.

An­nounc­ing the cre­ation of Home Af­fairs on the same day as un­veil­ing the re­view, Prime Min­is­ter Turn­bull said it did not men­tion es­tab­lish­ing a Depart­ment of Home Af­fairs be­cause that was out­side its re­mit. But the re­view did not iden­tify any fur­ther gov­er­nance gaps be­yond its pro­posed changes, which in­cluded beef­ing up its role in ad­vis­ing govern­ment and busi­ness on cybersecurity while con­tin­u­ing to re­strict its own ac­tiv­i­ties to off­shore sur­veil­lance.

It said the then-ex­ist­ing ar­range­ments rep­re­sented “a care­fully con­structed ar­chi­tec­ture” and re­flected “ap­pro­pri­ate di­vi­sions of re­spon­si­bil­ity while also in­cor­po­rat­ing im­por­tant checks and bal­ances”.

In a sub­mis­sion last month to a Se­nate com­mit­tee that was ex­am­in­ing the leg­is­la­tion to turn ASD into a statu­tory author­ity and ex­pand its cybersecurity role, the In­spec­tor-Gen­eral of In­tel­li­gence and Se­cu­rity, Mar­garet Stone, also warned against any move to in­ter­pret the change as cre­at­ing an on­shore re­mit.

“Noth­ing in the In­tel­li­gence Ser­vices Act would al­low ASD to ac­cess re­stricted data on a com­puter phys­i­cally lo­cated in­side Aus­tralia – even where do­ing so would as­sist in gath­er­ing in­tel­li­gence or dis­rupt­ing crime,” Stone’s sub­mis­sion says.

“Ac­cess­ing data lo­cated in­side Aus­tralia is prop­erly an ac­tion that re­quires an ASIO or po­lice war­rant. A change which ex­tended the im­mu­nity or which changed ASD’s fo­cus for its covert or in­tru­sive in­tel­li­gence-re­lated ac­tiv­i­ties to peo­ple and or­gan­i­sa­tions in­side Aus­tralia would be a pro­found one – the pro­posed ad­di­tional func­tion re­lat­ing to cy­ber­crime is not such a change.”

In its own sub­mis­sion to the Se­nate in­quiry, the ASD said: “ASD’s mis­sion con­tin­ues to see the agency op­er­ate in the slim area be­tween the dif­fi­cult and the im­pos­si­ble.”

The leg­is­la­tion was sub­se­quently passed. Any fur­ther ex­pan­sion of its role would re­quire new leg­is­la­tion.

Dut­ton’s re­sponses on Tues­day caused some fur­ther ir­ri­ta­tion among his min­is­te­rial col­leagues, not least be­cause he was talk­ing about ASD as if it were part of his port­fo­lio.

“We need to look at the ca­pac­i­ties within the Aus­tralian Fed­eral Po­lice, within the agen­cies within the Home Af­fairs port­fo­lio oth­er­wise, in­clud­ing ob­vi­ously a look at the ca­pac­ity of ASD,” Dut­ton said.

In an in­ter­view the next day, For­eign Min­is­ter Julie Bishop sug­gested by im­pli­ca­tion that ASD was not Dut­ton’s to di­rect.

“[It] is in the Depart­ment of De­fence and is an­swer­able there­fore to the min­is­ter for De­fence,” she told Sky News.

“But if you are talk­ing about ex­pand­ing pow­ers in re­la­tion to Aus­tralians, that is a mat­ter for ASIO and the Aus­tralian Fed­eral Po­lice.”

Speak­ing on Syd­ney’s Ra­dio 2GB on Thurs­day, Dut­ton de­nied there was any dif­fer­ence be­tween him and Bishop.

“Peo­ple are adding two and two to­gether here and get­ting some­thing other than four,” he said.

But he raised the pos­si­bil­ity once again of ex­pand­ing ASD’s pow­ers and again men­tioned stamp­ing out child ex­ploita­tion.

“We have the abil­ity po­ten­tially to dis­rupt some of those servers,” Dut­ton said. “And at the mo­ment, the ASD for ex­am­ple, which is a govern­ment agency, could dis­rupt that server if it was in op­er­a­tion off­shore but not if it was op­er­at­ing out of Syd­ney or Mel­bourne.”

He agreed with Bishop that there was “no pro­posal on the ta­ble” to ex­pand its pow­ers.

“We’re look­ing at op­tions at the mo­ment and if we’ve got a pro­posal to put for­ward, we’ll put it for­ward.”

For­mer de­fence depart­ment sec­re­tary, now con­sul­tant, Paul Bar­ratt sug­gests the idea is also caus­ing angst in ASD it­self.

“There would be peo­ple in ASD who would be deeply of­fended at the no­tion that their tal­ents would be directed to spy­ing on their fel­low Aus­tralians, rather than de­fend­ing the na­tion,” Bar­ratt says.

“You get these kinds of leaks when peo­ple feel that some­thing is se­ri­ously amiss.”

To­wards the end of his Tues­day news con­fer­ence, Dut­ton was asked what he would say to “cyn­ics and scep­tics” who be­lieved his cen­tralised port­fo­lio has made him too pow­er­ful.

He urged peo­ple to “cut through the hype and look at the facts”, in­sist­ing those agen­cies be­ing moved from the at­tor­neygen­eral’s port­fo­lio into his own were re­tain­ing their au­ton­omy.

“The idea of the Home Af­fairs port­fo­lio is that we don’t get to a sit­u­a­tion where Amer­ica found it­self post 9/11, and that is that there wasn’t a proper ex­change of in­for­ma­tion, which was ev­i­denced in the se­cu­rity fail­ings,” Dut­ton said.

“We wanted to pre-empt to make sure that there was a con­tin­u­a­tion and an en­hance­ment of the way in which all of that in­for­ma­tion was ex­changed, and that’s the idea of the Home Af­fairs port­fo­lio – it pro­vides that co­or­di­na­tion.”

Many in the in­tel­li­gence and se­cu­rity com­mu­nity are still to be con­vinced. And some of those cyn­ics and scep­tics are peo­ple Dut­ton sits with at the cabi­net ta­ble.


Prime Min­is­ter Mal­colm Turn­bull and Home Af­fairs Min­is­ter Peter Dut­ton.

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