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Issue #1542      4 April 2012

ASIO gets its new powers — and no one will tell us why

Well, we never found out why, and now we’ll never know. The bill to significantly expand ASIO’s powers to spy on Australians sailed through the Senate with the support of Labor and the Coalition.

Scott Ludlam of the Greens.

Just when we needed a bit of that mindless negativity for which the Abbott-era Coalition has become famous, they fell into line with Labor. The Greens, in the form of Scott Ludlam, were the only ones asking questions.

And the key question remains unanswered: what exactly is it that ASIO cannot currently do that it could do under the bill’s amendments to the circumstances in which it can gather foreign intelligence?

An official of the responsible department, the Attorney-General, struggled to answer that question at the brief committee hearings the bill received a fortnight ago as part of the unseemly rush to get it through Parliament. He claimed activities associated with weapons proliferation was an example, only to be brought up short by a Labor senator who noted that was already covered under ASIO’s power in relation to Australia’s security.

Afterward, the Attorney-General’s Department produced a bizarre third submission to the committee claiming illegal fishing was an example of an activity currently outside the scope of ASIO’s powers.

The real answer of course has always been in plain sight: the amendment is designed to enable ASIO to spy on people involved with WikiLeaks, which currently falls outside the definitions of foreign states, people connected with a foreign state or foreign political organisations. The amendment is informally known within the Attorney-General’s Department as “the WikiLeaks amendment”.

But the Department’s official line is that it has nothing to do with WikiLeaks and was developed long before WikiLeaks began releasing diplomatic cables.

So Ludlam returned to the issue, asking the government’s duty minister – the minister or Parliamentary Secretary rostered on to carry legislation through the chamber – repeatedly to explain what it was that ASIO couldn’t investigate that it could under the amendments.

In such circumstances, a duty minister is supported by Departmental officials and, usually, an adviser from the office of the portfolio minister, who sit in the “adviser’s box”, the desks tucked up at the very end of the chamber on both sides. When you go into the adviser’s box, you should be fully across the legislation in question and have a full array of Q&A-type briefs for the duty minister to read from, addressing every single possible question that could be asked. You need to be ready to spring a response out to the minister in a matter of seconds.

As it was, given Ludlam had already identified his concerns at the inquiry hearing, it should have been straightforward to furnish the duty minister with some clear responses.

Instead, officials put in a shocker, and left David Feeney, in particular, looking silly as they served up wholly inappropriate material that frequently had nothing to do with what Ludlam had asked. It led to this brilliant moment from Feeney in response to a further demand by Ludlam that the government explain what the bill would permit ASIO to do that it couldn’t currently do:

“Two points, Senator. The first is that ASIO’s mandate, if you will – and that is my word – is set out in the section I am looking at here, which is where ‘security’ is defined. It is part I, section 4. There we see the definition of security: ‘security’ means’: and then it is set out in paragraphs (a), (aa) and (b). I think we see there a codification of some of the issues that you are looking for. I guess that when one contemplates the Cold War one is contemplating an environment that is dramatically transformed today.

“We are obviously not today working in an environment where there is something of a global contest between two clearly discernible ideologies and constellations of nation states. What we are looking at today is, firstly, a multipolar international environment where non-state actors are particularly relevant and, secondly, an environment which has been transformed by technology.

“So the sorts of materials you were talking about and the sorts of tools that are required to monitor the movement of those materials, I think, have greatly changed, and as legislators we need to make sure that that is something we remain abreast of.”

As Ludlam later said, it was rather like Feeney was pouring a bag of cement into Hansard.

This wasn’t Feeney’s fault, but that of the officials nearby who clearly hadn’t prepared a proper answer even to questions that knew were coming, let alone providing a minister from outside the portfolio with a clear grasp of the rationale for the bill.

Liberal George Brandis briefly joined the debate, and demonstrated a far more coherent grasp of what was going on than Feeney, but that’s only to be expected from the shadow minister. Brandis was there to report that the Coalition would be joining Labor in blocking the Greens’ amendments and passing the bill, but he felt sufficiently galled by Ludlam’s efforts to question the bill to plead that he, too, was concerned about encroachments on civil liberty and he, too, was sceptical about calls to increase the powers of intelligence agencies.

But as with his failure to object to the former Howard government’s systematic assaults on civil liberties in the name of counter-terrorism, plainly Brandis wasn’t concerned quite enough – not even to participate in the committee inquiry into the bill. He left it all to the now-departed Russell Trood.

The Greens’ amendments to restrict the effect of the expansion of ASIO’s powers were defeated 34-9. As the numbers suggest, a large number of senators couldn’t be bothered turning up to vote.

Still, at least ASIO can now spy on Julian Assange and Attorney-General’s bureaucrats can stop making up stuff about illegal fishing as a cover story.  

Next article – Spaniards in mega-strike over attack on labour

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