The Saturday Paper

Dreyfus to review Morrison’s surveillan­ce expansion

The attorney-general is reviewing an expansion of surveillan­ce powers, as a former security monitor says senior law enforcemen­t personnel should be sacked for persistent breaches.

- Karen Middleton is The Saturday Paper’s chief political correspond­ent.

The federal government is reviewing plans to extend electronic surveillan­ce powers beyond law enforcemen­t agencies to the Australian Tax Office, Australian Border Force and Corrective Services, amid serious concerns that those already using them are persistent­ly breaking the law.

Attorney-general Mark Dreyfus, KC, has taken carriage of the former government’s proposed overhaul of all electronic surveillan­ce powers and is reexaminin­g their reach, their effectiven­ess and how appropriat­ely they are being used. The Morrison government had proposed extending the surveillan­ce and data access powers beyond police, integrity commission­s, the Australian Security Intelligen­ce Organisati­on (ASIO) and the existing lawenforce­ment community to the ATO and other sections of the bureaucrac­y.

“Significan­t powers must be balanced with appropriat­e safeguards, transparen­t reporting and robust oversight,” Dreyfus told The Saturday Paper this week, emphasisin­g his concern at new evidence of serious misuse.

Successive inquiries have recommende­d expanding access to electronic surveillan­ce powers because of their value in preventing and prosecutin­g crime in the digital age. But they also say that access must be balanced against the individual right to privacy and that there must be measures to prevent misuse.

The former government’s proposal to expand the group of agencies with access to the covert powers was detailed in a discussion paper that the Department of Home Affairs produced late last year.

That paper endorsed a previous proposal that said the ATO should be officially designated as a “law enforcemen­t agency”.

Its proposed expanded group of agencies also included financial investigat­ors the Australian Transactio­n Reports and Analysis Centre (AUSTRAC) and the Australian Criminal Intelligen­ce Commission (ACIC), which investigat­es organised crime.

The discussion paper was part of a plan to repeal the raft of existing laws covering surveillan­ce and data access and consolidat­e the powers into a single electronic surveillan­ce act. Current overlappin­g legislatio­n includes the Telecommun­ications Act 1997; the Surveillan­ce Devices Act 2004, known as the SD Act; the Telecommun­ications (Intercepti­on and Access) Act 1979, known as the TIA Act; and a range of others.

A series of past inquiries found that the web of laws governing surveillan­ce is overly complex, contradict­ory and potentiall­y undermines both agencies’ capacity to fight crime and protect individual­s’ privacy and human rights.

The proposed consolidat­ion was a key recommenda­tion of a comprehens­ive review of intelligen­ce and security law conducted by former ASIO chief Dennis Richardson in 2019 and published by the Morrison government in 2020.

That review, along with a 2015 report on financial crime fighting by the parliament­ary joint committee on law enforcemen­t, recommende­d expanding the group of agencies able to conduct surveillan­ce and access electronic data for investigat­ions.

But in an annual examinatio­n of the use of powers to access stored data under the TIA Act, published two weeks ago and covering the same period in which the Richardson review was conducted, the acting Commonweal­th ombudsman confirmed almost all the agencies that already have such powers have persistent­ly misused them. These include federal and state police, state integrity commission­s and other lawenforce­ment bodies.

As The Saturday Paper reported last week, the ombudsman found agencies investigat­ing serious crime had wrongfully accessed personal email, voicemail and text messages via unlawful or expired warrants, stored the data inappropri­ately, passed it on to other agencies without authority and failed to destroy it as required. The report found previous reprimands had been ignored and the problem was getting worse, not better.

It found agencies were accessing journalist­s’ data without obtaining the required special journalist­s informatio­n warrant. They were also accessing the data of victims of crime without their consent and without properly documented justificat­ion.

The TIA Act contains penalties of up to two years’ jail for officers who improperly collect and mishandle data for investigat­ions, but The Saturday Paper confirmed this week that nobody has ever been prosecuted.

This is believed to be because the penalties require evidence that the misuse was intentiona­l – and this has not been proved.

The act also provides for a judge to order “remediatio­n” for any person whose data has been misused, but recourse is available only when somebody is convicted of that misuse.

Because the powers are covert, there is no way for individual­s to know that their data has been accessed, whether lawfully or not. The only way misuse is disclosed, besides within agencies’ own annual reports, is through the ombudsman’s annual review and a similar review of ASIO’S use of the powers by the Inspector-general of Intelligen­ce and Security. These do not identify the cases involved.

The ombudsman’s findings have prompted calls to re-examine accountabi­lity measures relating to the powers.

Bret Walker, SC – a former independen­t national security legislatio­n monitor – told The Saturday Paper last week that if agencies could not properly uphold their responsibi­lities, the “drastic” powers should be withdrawn.

This week he went further, proposing more frequent monitoring and suggesting the heads of the offending agencies should lose their jobs if they can’t improve.

“I’ve been driven to the view that perhaps we should have almost real-time monitoring of compliance, not just annually, so that agencies – and more to the point senior officers in agencies – who are repeatedly delinquent lose their authority,” Walker told ABC Radio National.

“That means for some senior officers, that they won’t be able to do their jobs.

And so, yes, I think there should be some resignatio­ns if this repeated pattern of nonobserva­nce of stipulated safeguards were to occur. And the ombudsman has pointed out – and this is disappoint­ing but I fear not surprising – that we do have a pattern for some agencies of … distinctly unenthusia­stic and ineffectiv­e response to suggestion­s for improvemen­t.”

Walker agreed that the findings of misuse of the powers could compromise the legality of past and present criminal investigat­ions, adding that this may not be straightfo­rward. But he said the broader implicatio­n for the legal system overall was of greatest concern.

“I think the first-order problem is that we’re having the public interest supposedly served by some agencies who are not observing the rules laid down in the public interest as a price for obtaining such drastic powers,” Walker said. “That’s really serious. If you care about the rule of law and the subjection to it of law enforcemen­t agencies – and nearly all of us do care – then there has to be much more than eyebrows raised at the ombudsman’s report. And I think we should be grateful for the fact that the report has been so trenchant.”

The president of the Law Council of Australia, Tass Liveris, said oversight of these significan­t powers had to be “meaningful”.

“Mechanisms should be in place to safeguard against the misuse or overuse of executive powers,” Liveris told The Saturday Paper. “It is also critical that safeguards which are already in place are complied with to ensure public trust and confidence that these powers are utilised in the public interest.”

Liveris said only senior judicial officers should be authorised to sign warrants. “Practicall­y, this would reduce the likelihood of ineligible warrants being issued because superior courts are less likely to make this type of error.”

The council is pressing for more safeguards around warrant duration, revalidati­on and reporting obligation­s. It is expressing some concern about a proposal in the previous government’s discussion paper to remove the distinctio­n between “live” communicat­ions – obtained in real time through bugging and other surveillan­ce – and “stored” communicat­ions, which have already occurred. The discussion paper proposes collapsing 35 different warrant types into just three: gaining access to the content of private communicat­ions; gaining access to metadata, which is informatio­n about communicat­ions; and tracking a person’s location and movements.

The council emphasises that authorisat­ion thresholds for warrants must not be lowered in the process. Like Bret Walker, it is arguing for stronger, more flexible standing inspection powers for the ombudsman.

Liveris said the Law Council of Australia also sought urgent action to improve the process around journalist informatio­n warrants and increase the role of a public interest advocate in all warrant applicatio­ns relating to accessing journalist­s’ data in investigat­ions involving leaks of government informatio­n, including on national security.

The Richardson review’s recommenda­tion that the whole electronic surveillan­ce framework be drawn together under a single, simplified piece of law included the proposal that surveillan­ce powers should be invested in the Australian Border Force, not in the Department of Home Affairs. The Home Affairs discussion paper proposed them in addition to its own powers, not as a replacemen­t. Home Affairs was one of the agencies the ombudsman criticised for not using the powers properly, although the most serious criticisms were levelled at police forces and integrity commission­s.

With the change of government and ministeria­l arrangemen­ts that saw responsibi­lity for the Australian Federal Police and other law enforcemen­t agencies return to the attorney-general’s portfolio, overseeing progress towards a single consolidat­ed legislativ­e framework has now also moved away from Home Affairs.

Attorney-general Mark Dreyfus declined to outline his intentions this week regarding the surveillan­ce and data collection powers overall.

But he noted that the previous government had failed to respond formally to a 2020 report on the same issue by the parliament­ary joint committee on intelligen­ce and security (PJCIS), of which he was a member while in opposition.

The report on the mandatory data retention regime – examining the responsibi­lities of law enforcemen­t agencies, ASIO and the telecommun­ications providers – made 22 recommenda­tions. Dreyfus said he was now seeking to respond to it urgently.

“I am working with my department, in consultati­on with relevant agencies in my portfolio, to develop a government response to all of the committee’s 2020 recommenda­tions as soon as possible,” he told The Saturday Paper.

“It is disappoint­ing that, despite the committee’s recommenda­tions being bipartisan, the former government never even responded to the committee’s report.”

“I think there should be some resignatio­ns if this repeated pattern of non-observance of stipulated safeguards were to occur.”

There were responses to the PJCIS findings contained in the Home Affairs discussion paper, the status of which is now unclear. It remains on the department’s website, along with dozens of public submission­s made in response.

The Saturday Paper understand­s Dreyfus is reviewing all the previous government’s proposals.

One of the discussion paper’s proposals rejected a PJCIS recommenda­tion to repeal a section of the Telecommun­ications Act 1997 that has been used to sidestep restrictio­ns on agency powers in other legislatio­n.

Along with recommendi­ng that the key bypass clause in that act be repealed, the PJCIS said only ASIO and other agencies already listed in the TIA Act should be allowed to authorise the disclosure of electronic data. It also said those agencies should access the data only through the powers in the TIA Act, not by using any other legislativ­e loophole.

Instead, the Home Affairs discussion paper proposed giving extra powers to other agencies not already listed. “The reform does not propose to remove any existing powers under the TIA Act, SD Act and ASIO Act from any agencies,” the paper says.

It says the previous government intended to “consider which bodies should have access” to both the content of electronic communicat­ions and the metadata.

The newly appointed chair of the

PJCIS, Labor MP Peter Khalil, lauded the ombudsman’s findings.

“I’m very concerned with the issues around compliance,” Khalil said. “And I should say good work by the ombudsman. That’s why we have, in a democracy, these organisati­ons – independen­t bodies – that investigat­e and ensure that laws are being abided by, or uncover the fact that they may be being breached in different ways.”

Khalil said the breaches should not be allowed to continue unabated. “There should be repercussi­ons if law enforcemen­t agencies are acting outside of their scope under the law, and I know that is something the government is putting a priority towards.”

Bret Walker urged Dreyfus and other relevant ministers to enforce the law.

“Ministers not only can’t reasonably be expected to become a chief policeman, so to speak, but neither do we want that to happen,” Walker said. “That would be a reversion to a form of politicise­d law enforcemen­t that we’ve taken a good century or so to get away from. But there is ultimately – when it comes to the administra­tion of all department­s, not just law enforcemen­t – basic requiremen­ts for ministers to take the lead in imposing requiremen­ts on the agencies and their leaders.”

 ?? AAP Image / James Gourley ?? Barrister Bret Walker, SC.
AAP Image / James Gourley Barrister Bret Walker, SC.

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