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New Australian Anti-Terror Laws Could Bring the Mandatory Recording of Private Data

The government says the changes are being made due to the internal security threat posed by Australian jihadists. Advocates disagree.

by Paul Gregoire
Aug 6 2014, 4:15pm

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This article originally appeared on VICE Australia.

At a joint press conference on Tuesday afternoon, Australian Prime Minister Tony Abbott and Attorney General George Brandis, announced a further raft of proposals for an expansion of Australia’s anti-terrorism laws. At the same time they also announced that the long slated plans to water down the Racial Discrimination Act had been dropped.

This was the second announcement of proposed changes to national security legislation in the last three weeks. The first saw Brandis present the National Security Legislation Amendment Bill (No. 1) 2014 to parliament on July 16. The 128-page bill streamlines and strengthens the operating processes of the Australian Security Intelligence Organization (ASIO) and other intelligence agencies. It also marked the first proposed changes to national security laws since the Edward Snowden leaks of June, 2013.

And while the government states that many of the changes are being made due to the internal security threat posed by Australian jihadists returning from overseas conflicts, such as Syria and Iraq, civil liberty advocates disagree with some of these claims.

On Tuesday the second series of proposed amendments were announced, along with an extra $630 million in funding for security agencies, including ASIO, the Australian Federal Police and the Australian Secret Intelligence Service. The proposed amendments, which will be presented to parliament after the winter break, include a new offence of travelling to designated areas where terrorist activities are being carried out. They will allow ASIO to request the suspension of a dual citizen’s passport, and broaden the definition of terrorism to include the promotion or encouragement of terrorist acts.

Brandis also confirmed at the press conference that the federal cabinet had agreed in principle to a planned data retention regime. This “third tranche” of new legislation, which will not be introduced until later in the year, would see telcos being required to record public metadata for a period of two years.

Executive officer of Electronic Frontiers Australia Jon Lawrence said the government is calling to implement the data retention program under the threat of returning jihadists, but they already have the ability to carry this out using target data preservation orders. “They know who these people are. They should already be getting this data retained by the internet service providers and telcos of these individuals that they're concerned about,” he said.

“There's simply no justification whatsoever for any new powers based on this argument and particularly there’s no justification for rushing through any society-wide surveillance program, which is exactly what this would be. It is waving the big scary terrorism flag in order to get what ASIO wants, just because it makes their life a little bit easier.”

But while the proposals announced on Tuesday are yet to be introduced to parliament, the National Security Legislation Amendment Bill (No. 1) 2014 already has been. The bill, which amends the Australian Security Intelligence Organization Act 1979, is set to be debated in parliament after the winter break.

Dr. Nicola McGarrity, director of the Terrorism Law Reform Project at the Gilbert and Tobin Centre of Public Law at UNSW, said there are two reasons for concern about the bill. The first is the accountability framework for ASIO in relation to changes to the definition of a computer and the practicalities of this when applying for warrants.

McGarrity explained that they’re expanding, “the definition of a computer beyond simply an individual computer or a computer system, to computer networks as a whole. Our concern is that not only is there a complete absence of definition of what a computer network is in the legislation… but also if you were going to expand the ability of ASIO to not only get a warrant for an individual computer, but to get a warrant for a whole network of computers, that you would need to see some strengthening of the criteria for granting that warrant.”

Lawrence raised concerns over a proposed new ability for ASIO operatives to be able to disrupt a target computer. He believes this could allow for the adding and modifying of data, which could lead to situations of people being framed, as well as diminishing the ability to use computer data as evidence in trials.

The second area of concern, McGarrity said, is the secrecy surrounding ASIO’s activities being significantly increased. The bill contains what has been dubbed the “Snowden Amendment,” which targets whistleblowers. The sentencing has increased for an intelligence operative or contractor who reveals confidential information about intelligence operations from two to 10 years. It also creates a new offence for unauthorized copying or removal of intelligence documents by ASIO employees.

The bill introduces a new type of operation called a special intelligence operation (SIO). ASIO operatives are allowed to engage in illegal activities whilst working on an SIO with immunity from prosecution. A new offence has been created that would apply to a person who discloses any information relating to an SIO. The sentencing for this new offence is from five to ten years and has dire implications for journalists.

“So what that could mean is that the authorizing of a special intelligence operation is secret. Let's say for example a journalist published an article about how they've discovered some information about a national security investigation that's being undertaken by ASIO… without knowing that there's been a special intelligence operation certificate granted. In those circumstances that journalist could find themselves subject to a five year term of imprisonment,” McGarrity said.

Tim Vines, vice president of Civil Liberties Australia explains that since September 11, Australia has passed about sixty terrorism laws, which has resulted in some of the most extensive anti-terrorism legislation in the western world. He sees this new legislation as a continuation of this trend.

“With this bill in particular, we're seeing features of that, such as the new power to disrupt and interfere with a targets computer, even if that involves going through another innocent person's computer to access the target's machine. And we're seeing new powers to get to a target's property by invading the property of an innocent third party as well,” Vines said.

Vines rejects claims that the new legislation is a response to Australian jihadists. He said many of these proposals were raised at a joint parliamentary committee in 2010, prior to the current Syrian crisis or issues surrounding the returning jihadists. Indeed data retention was first raised by the government in 2010 at the parliamentary inquiry into The Adequacy of Protections for the Privacy of Australians Online.

A spokesperson for the Attorney General’s office told VICE that the amendments made in the first bill respond to recommendations contained in Chapter Four of the Parliamentary Joint Committee on Intelligence and Security report and some of the measures do apply to the returned Australian jihadist issue, stating that this is outlined in the second reading speech, which was tabled at the time of the bill’s introduction.

Follow Paul Gregoire on Twitter: @paulrgregoire

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