Major review of intelligence laws makes ‘controversial’ recommendations

By Shannon Jenkins

Friday December 4, 2020

The ASD says ransomware attacks could cost Australia $30 billion and 160,000+ jobs
The ASD says ransomware attacks could cost Australia $30 billion and 160,000+ jobs. (AAP Image/Lukas Coch)

The government has released ex senior public servant Dennis Richardson’s landmark review into the legislation governing Australia’s intelligence community.

Richardson, a former head of the Australian Security Intelligence Organisation and secretary of the Defence and Foreign Affairs departments, admitted that some of the recommendations outlined in the 1,300-page declassified report, released on Friday, would be “controversial”.

The former spy boss made detailed recommendations on how a new Electronic Surveillance Act should be developed, with several agencies to be granted additional powers.

AUSTRAC, for example, should be permitted to access telecommunications data to support its investigations under anti-money laundering and counter-terrorism financing laws, the report said. The powers vested in the Department of Home Affairs should be transferred to the Australian Border Force, and the ABF should be permitted to use tracking devices under the new laws.

State and territory corrective services agencies should also be permitted to access telecommunications data, should their governments request it, the review found.

Richardson has also called for the oversight framework for law enforcement agencies to be rationalised, as the current framework under the Telecommunications (Interception and Access) Act is a “dog’s breakfast”.

In regards to cybercrime, the review said that while the Australian Signals Directorate should be given a greater role onshore in fighting cyber attacks, it shouldn’t be given an onshore crime-fighting role, as this would “dilute its mission”, and it would be “exceedingly difficult to limit ASD’s domestic law enforcement role to a single crime type”.

Read more: Parliamentary committee calls for overhaul of Australia’s data-retention regime

The review found the legal frameworks governing the National Intelligence Community (NIC) protect the values and principles that underpin the NIC and Australia’s democratic society, but “there are some areas in which the legislative framework is unnecessarily complex, leading to unclear and confusing laws for those NIC officers who must interpret and act in accordance with them”.

Richardson noted complex laws can undermine public trust and confidence.

“It should be clear to the Australian public what intrusive powers are available to NIC agencies, the circumstances in which they may be used, and the limits, controls, safeguards and accountability mechanisms that apply. The review has made a number of recommendations designed to alleviate unnecessary complexity,” he wrote.

Currently, ASIO is not legally required to obtain ministerial approval to covertly target Australians overseas. The review has recommended a ministerial approval process for ASIO’s intelligence collection activities in respect of Australians offshore, “where those activities would require ASIO to seek a warrant to undertake them inside Australia”.

However, while ASIO can obtain warrants to collect foreign intelligence inside Australia, a warrant can’t be issued for the purpose of collecting information concerning an Australian citizen or permanent resident.

“We have recommended that this prohibition should not apply where an Australian citizen or permanent resident is acting for, or on behalf of, a foreign power,” Richardson wrote.

Read more: Explainer: how the Australian intelligence community works

The government has released its response to the review, agreeing in full, part or principle to 186 of the 190 unclassified recommendations. The report was delivered to the government last year.

Attorney-general Christian Porter said the government’s response “lays out a pathway for the evolution, rather than revolution”, of intelligence and security agencies.

“The government will ensure that these agencies continue to have the powers necessary to keep Australians safe against new and emerging threats. They will be backed by the oversight necessary to maintain the trust and confidence of all Australians,” he said.

Porter said the creation of a modernised legislative framework to govern electronic surveillance activities — the proposed Electronic Surveillance Act — was key, as the existing framework has “become unnecessarily complex, and in many ways has been outpaced by technology”.

“This will be one of the biggest national security legislative projects in recent history — requiring the repeal and rewriting of nearly 1,000 pages of laws,” he said.

The new framework will replace parts of the Telecommunications (Interception and Access) Act, the Surveillance Devices Act and the ASIO Act. Consultation with industry and the public on the new framework will be led by the Department of Home Affairs.

Some of the recommendations the government will implement include: a new framework for ASIO’s offshore activities; ensuring that oversight is better embedded into intelligence legislation when it is created; and establishing an independent panel to provide technical expertise and assistance to the Inspector General of Intelligence and Security.

Read more: Spy agency could soon be hunting Australian cyber criminals with new powers


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