Nameless ASIO powers not accountable, inspector-general warns

By Harley Dennett

October 2, 2014

Doubts have been raised over the accountability and oversight implications for Australian Security Intelligence Organisation officials exercising their new powers under counter-terrorism legislation introduced last week.

Briefing the MPs and senators early this morning, inspector-general of intelligence and security, Dr Vivienne Thom, said the language giving the new powers to the agency, rather than an individual statutory office holder, was “unprecedented”.

Dr Vivienne Thom
Dr Vivienne Thom

“My concern is not just the convenience of oversight, but the accountability of the individual,” Thom said. “In my view it’s better practice to have decisions by nominated individuals.”

The powers relate to the ability for the minister to suspend an Australian passport, but only if the minister receives a request from ASIO because it “suspects on reasonable grounds that a person may leave Australia to engage in conduct that might prejudice the security of Australia or a foreign country”.

Thom suggested the director-general of security, recently taken up by former Defence head Duncan Lewis, or a delegated official should take responsibility personally, as oversight and review of the proposed powers was also explicitly restricted in the bill. Specifically, these suspension decisions will not be subject to review by the Administrative Appeal Tribunal as passport cancellations currently are.

“Such conduct, while serious, has not previously been considered ‘security’ related.”

IGIS would retain the power to review such decisions beyond the reach of the AAT, including whether the person should be informed or given opportunity to make submissions, but only at the direction of the Attorney-General. Thom notes that provision has not been used in recent years.

Officials will also have to work with creative new definitions of the words “security” and “subverting society” in the legislation. Thom says the departure from established definitions — “beyond what people would normally expect” –will have wide implications for ASIO officials as the term is tied to many of their powers’ tests and triggers.

“The effect of the expansion of the definition of security is that ASIO will have the legislative authority to use its powers to gather intelligence about criminal conduct overseas that is not associated with terrorism or activity that would ordinarily be described as relevant to national security,” she said.

“… For example, going overseas to commit an assault as part of a family dispute or to rob a bank could come within the definition of ‘security’ and be a legitimate focus for ASIO attention. Such conduct, while serious, has not previously been considered ‘security’ related.”

As statutory terms, the words can mean anything the legislation defines them to mean.

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