Eight ways Tony Abbott is trying to trade freedom for security
A
series of law enforcement and intelligence gathering bills to be
considered by parliament will affect the rights of all Australians
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 whistleblowers 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 whistleblower 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.
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