12 July 2012


Currently writing about the Parliamentary Joint Committee on Intelligence & Security inquiry into 'potential reform of national security legislation', ie stronger powers for the Australian Security Intelligence Organisation regarding telecommunications surveillance.

The Government has announced that the Committee has been asked to consider
a package of national security ideas comprising proposals for telecommunications interception reform, telecommunications sector security reform and Australian intelligence community legislation reform. The Inquiry will include examination of:
  • Lawful access to telecommunications, to ensure that investigative tools are not lost as telecommunications providers change their business practices and begin to delete data more regularly. 
  • Safeguards and privacy protections, including clarifying the roles of the Commonwealth and state ombudsmen in overseeing telecommunications interception by law enforcement agencies. 
  • An authorised intelligence operations scheme, to afford ASIO officers the same protections which currently apply to officers of the Australian Federal Police for authorised operations.
Among a range of other matters, the Committee will consult on measures to address security risks posed to the telecommunications sector, and whether the Government needs to institute obligations on the Australian telecommunications industry to protect their networks from unauthorised interference.
The 61 page discussion paper [PDF] accompanying the terms of reference for the inquiry - initiated by Attorney-General Roxon - is disappointingly but unsurprisingly bland, festooned (or festered) with passages such as
As Australia advances, so too do threats to our wellbeing. Meeting the challenges of new technologies and methodologies is a key priority for the Australian Government in the national security sphere. Our law enforcement and security capabilities must keep ahead of terrorists, agents of espionage and organised criminals who threaten our national security and the safety of our citizens. So our law enforcement and intelligence agencies must be equipped with contemporary skills and technologies, and backed by necessary powers – coupled with the appropriate checks and balances and oversight mechanisms society rightly demands.
Very "Yes, Prime Minister" in relation to proposals that were traversed in 2010 in my submissions and articles regarding Australian implementation of the Council of Europe Cybercrime Convention.

It is unclear what - if anything - telecommunications (or the Australian Security Intelligence Organisation) has to do with the impressive statistics about assaults and homicides on page 16 of the discussion paper. Most of the deaths involved kitchen knives, fists, frying pans, broken bottles and other implements ... as far as I'm aware no-one in the past three years has been clubbed to death with a mobile phone. The nature of those crimes means that enhanced powers for the Australian Federal Police and ASIO would be irrelevant; we might hope that the PJCIS and readers of the paper look beyond information that simply does not justify the legislative proposals.

A case can be made that law enforcement personnel need new tools and new powers. Regrettably the discussion paper does not make that case; it is simply disingenuous and reflects badly on the Minister.

I am reminded of the Law Institute of Victoria submission of several years ago, which stated that -
The large-scale collection of information by governments because it may be helpful to some government functions, rather than because it is necessary, constitutes a serious threat to online privacy. The power of the internet should not be used by governments to achieve measures of control that would not be possible without the internet. By way of illustration, the LIV suggests that neither government nor community would tolerate proposals to place telephone intercepts on all phone lines in Australia and record all conversations, or to open all mail, in case such information may be of use to law enforcement agencies. Such proposals would be unacceptable in a democratic society. There is no demonstrable reason why internet communications should be treated differently to other communications. 
Submissions are due on 6 August; the urgency justifying that perfunctory consultation is unclear.