The Inspector-General of Intelligence and Security has flagged concerns about the breadth of the government’s expansion of national security reform powers, including the possibility of foreign intelligence agencies being empowered to intercept the communications of Australians.

The Joint Committee on Intelligence and Security held its first hearings today into the National Security Legislation Amendment Bill (No. 1) 2014, the first tranche of the government’s national security reforms. The committee also made available a series of submissions, including from ASIO, ASIS and media organisations, as well as the IGIS, Dr Vivienne Thom.

Thom’s submission raises the issue of “ASIO affiliates”, a new concept to be added to the Australian Security Intelligence Organisation Act 1979. The bill enables ASIO affiliates to undertake a variety of roles, including:

  • For senior affiliates, the power to make decisions relating to warrants;
  • To obtain telecommunications data and intercept communications; and
  • To use a surveillance device without a warrant as part of an agreement with ASIO.

Her submission makes clear an issue that has also been raised by privacy groups — that affiliates will potentially extend to foreign spy agencies:

“Staff of foreign government bodies would appear to be covered by the definition of an ASIO affiliate if they are performing functions or services for ASIO under some type of memorandum of understanding or similar arrangement.”

This means that National Security Agency or GCHQ spies could be given broad interception powers over Australians, as these foreign spies could be deemed “ASIO affiliates” under a simple memorandum of understanding between agencies. “There is no requirement for any central register of ‘contracts agreements and arrangements’ which would assist in determining who is an ASIO affiliate,” Thom said. “Indeed, such agreements and arrangements need not be in writing. As such it may not always be clear who falls within the class of an ‘ASIO affiliate’ for the purpose of oversighting the numerous legislative powers and restrictions that are dependent on the term.”

Thom also criticised the lack of reporting requirements around the controversial “special intelligence operations” (SIO) provisions, which would allow ASIO officers to break the law as part of a covert operation and ban anyone from revealing information about such operations, including journalists. Significantly, as Crikey flagged, the proposal from the government has significantly fewer reporting requirements than a similar scheme for Australian Federal Police officers, on which the proposed ASIO scheme is based.

“Unlike the scheme that applies to police,” Thom said, “the proposed scheme for ASIO has no external authorisation requirement, less likelihood of judicial scrutiny and no detailed reporting requirements … The reporting obligations for special intelligence operations proposed by the bill are limited to reporting on the extent to which the special intelligence operation has assisted ASIO in the performance of one or more of its special intelligence functions and providing basic statistical information.”

Virtually all of Australia’s mainstream media (AAP, the ABC, APN, ASTRA, Bauer Media, Commercial Radio Australia, Fairfax, FreeTV, News Corp, SBS, and The West Australian) also made a collective submission, with the Media Entertainment and Arts Alliance severely criticising the proposal (The Guardian made a separate submission).

“The insertion of proposed section 35P could potentially see journalists jailed for undertaking and discharging their legitimate role in a modern democratic society — reporting in the public interest. Such an approach is untenable, and must not be included in the legislation.  This alone is more than adequate reason to abandon the proposal as the proposed provision significantly curtails freedom of speech and reporting in the public interest … SIOs by their very nature will be undisclosed. This uncertainty will expose journalists to an unacceptable level of risk and consequentially have a chilling effect on the reportage of all intelligence and national security material.”

Media outlets also raised concerns about the impact on whistleblowers of the provisions and the possible impact of enhanced surveillance powers on the ability of journalists to maintain confidentiality for sources.

The only response from a very nervous Attorney-General’s official at this morning’s hearings was that the SIO proposals weren’t intended to target journalists. Challenged by deputy chair Anthony Byrne as to why the bill hadn’t been drafted to reflect that journalists were not intended to be caught, officials were unable to explain it. “So we should just accept your assurance?” said Byrne.

Expect more on this issue, given both the unanimity of the media position and the committee’s concerns.