Applications by US and other foreign intelligence agencies to wiretap Australian citizens will be signed off by former Coalition MPs and staffers under a draconian Peter Dutton bill currently being examined by parliament.
The Telecommunications Legislation Amendment (International Production Orders) Bill 2020 was introduced by Dutton in March and is currently being examined by the joint standing committee on intelligence and security.
The bill will enable Australian and foreign governments to agree to arrangements for collecting information on each others’ citizens via electronic surveillance.
The US Clarifying Lawful Overseas Use of Data Act (or CLOUD Act) currently gives US intelligence and law enforcement agencies the power to demand US companies provide surveillance data no matter where in the world it is held, but also prevents other governments from directly requiring US firms to do the same. It also prevents other governments from barring US firms from sharing data with the US government.
Other governments whose agencies want surveillance data currently have to go through a “mutual legal assistance treaty” (MLAT) process that requires assessment by the US government and a US court order.
Australia has a similar process for MLATs orders here, though these currently do not allow telecommunications intercepts. Inter-governmental agreements will enable Australian and US agencies to directly obtain data from each others’ carriers, and the bill will expand the data that can be obtained to include telecommunications intercepts.
Under the International Production Orders Bill, ASIO may seek an order to surveil Australians on behalf of agencies of foreign governments who have an agreement with Australia. Initiating orders will require as little as a verbal approval by the Attorney-General.
Traditionally, law enforcement and intelligence-gathering warrants for surveillance of Australians are signed off by judicial officers. But orders sought under this legislation can be signed off by a member of the security division of the Administrative Appeals Tribunal (AAT).
The security division of the AAT has, even more than the AAT overall, been stacked by the Abbott, Turnbull and Morrison governments with failed Coalition MPs, former staffers and friends of the Coalition.
That means that, alarmingly, the bill would see former Tasmanian MP Andrew Nikolic, who lost his seat in 2016, signing off on requests for the National Security Agency and other foreign intelligence agencies.
The notoriously thin-skinned Nikolic, briefly head of the intelligence and security committee while in parliament, was appointed to the security division of the AAT in 2017 in one of the Turnbull government’s many gifts to MPs who lost their seats, and as part of the Coalition’s ongoing stacking of the AAT, investigated by Inq last year.
Nikolic holds hardline views on national security versus civil liberties. In 2015, he described civil liberties objections to extensions of national security laws as “impractical nonsense” and said debate about national security laws was a “luxury” Australia could no longer afford.
Nikolic isn’t the only Coalition figure who would be signing off on foreign agencies’ requests to spy on us.
Former Coalition staffers Don Morris and Tony Barry, former Queensland National Party Attorney-General Paul Clauson, former Alexander Downer staffer Phoebe Dunn, an array of former state Liberal MPs, LNP “law and order” adviser Dominic Katter, former Christian Porter staffer William Frost, Howard-era Liberal MP De-Anne “regional rorts” Kelly, and former Liberal senate president Stephen Parry are just some of the Coalition’s appointees who work in the security division.
The presence of former members, staffers and allies of the government obliterates the idea of separation between the executive arm of government applying to infringe the liberties of its citizens, and judicial arm which is supposed to safeguard them.
Moreover, the intelligence and security committee has been told by the Commonwealth Ombudsman, which is required by Dutton’s bill to inspect and report on the operation of the scheme, that it has yet to be told whether it will be given the necessary resources to do so.
“If the bill is passed without appropriate funding, my office will not be able to undertake the activities necessary to assure Parliament these new powers are being used appropriately,” Ombudsman Michael Manthorpe told the committee in a submission, noting that the government had only committed to discussing funding in the next budget in October.
Dutton’s bill is part of a wider push by him to again expand surveillance powers and curb civil liberties.
Under a new bill to expand the ASIO Act introduced this week, ASIO will be allowed to detain and question 14 year olds, block lawyers from representing clients, prevent detainees from even contacting lawyers, and even throw legal representatives out of interrogations if they do anything “unduly disruptive”, which includes doing anything other than asking for clarification of questions or providing legal advice to detainees.
The bill is subject to a quick inquiry by the intelligence committee that is to report by 26 June. Another hearing is underway this morning in Canberra.
It seems that, under the cover of a pandemic, Dutton is trying yet another attack on civil liberties.
What do you think of Peter Dutton’s push to expand surveillance powers? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication in Crikey’s Your Say column.
There should be an article everyday, in every paper, about the AAT.
It’s frighteningly surreal and bizarre, this list of “fit and proper persons” : as judged by a clown like Dutton and The Party. Neo-con ideologue zealots appointed to oversee the observational spying on of our citizenry – through the prism of their idea of what it means to be “Australian”?
It’s not an attack on civil liberties, it’s a rending of. An attempt to tear apart and reform “Australia” in their image.
How “unAustralian” can you get?
Last night Late Night Live had a segment on the KGB in post-Soviet Russia. Given his head Dutton would have KGB on steroids. Most people wouldn’t notice, of course. As long as you don’t do anything seen by the repression apparatus as disruptive you won’t be bothered by it. This is the environment that so disturbs us in Xi Jinping’s China, the very thing quoted by those “conservatives” who support the protests in Hong Kong and urge for democratic Taiwan an independent status that Taiwan has not declared for itself.
Well said! The crucial point here is that most voters won’t worry about a bill like this. It is too technical for them and, in any case, it implies that they know what civil liberties really are. That it is being pushed through whilst the general public is distracted is a typical LNP tactic. But even so would the general public be concerned?
The Age this morning did have an article on the ASIO request to interview fourteen year olds and Greg Barns had a good opinion piece warning of the dangers. At the least, pressure will have to be placed on the ALP to oppose this. Especially with the USA descending into desuetude, the temptation to silence anybody who calls for an independent Australia will become even stronger.
Pressure on the ALP? Surely you jest!
The shower that today passes, for want of alternative, as “Labor” will nod this through for the simple reason that the meretricious mediocrities infesting its ranks imagine that one day, sometime, eventually they will be back in office and will be able to play with all these wonderful new toys.
Bah. Humbug.
Agree completely, but something has to be tried.
Voting?
Border Farce already have more powers of arrest without warrant and to disappear people for years without a warrant, it’s called having some vague suspicion that someone on the street might be an unlawful non citizen and locking them up.
This site already abrogates unto itself the right to disappear people.
oops, arrogates to itself.
Just abominable. I hope legal advocates and various industry bodies are marshalling resources to fight this outrageous attack?
“It seems that, under the cover of a pandemic, Dutton is trying yet another attack on civil liberties.”
Bingo!!!. Sneaking in a surveillance bill under the cover of the pandemic is about as low as it gets. This certainly adds fuel to the Covid conspi-acies. These rabid-right surveillance fanatics have really done it this time. Disappearing Dutton was so noticeable by his absence during the cruise ship fiasco only to emerge trying to hobble us with more draconian measures.
These people are becoming very dangerous.