The new ASIO laws: some examples to consider

The parliament has passed legislation that permits the Attorney General to authorise certain activities of ASIO and affiliates as ‘special intelligence operations’. We can only assume that ASIO will seek such authorisation when its operatives plan to break the criminal or civil law – the whole point of authorising an operation as a special intelligence operation is that participants will be immune from the consequences of their unlawfulness. It will also be a criminal act to disclose information about these operations.

The parliament is considering laws that will punish people with life imprisonment for a range of new offences associated with ‘subverting society’ (which is a component of the new definition of ‘engaging in hostile activities’). The law contains a defence of advocacy, protest, dissent or industrial action, but it is very unclear how these would be applied.

The government has flagged that it intends to introduce laws that will allow mass meta data retention.

This is the biggest set of reforms to Australia’s national security laws in a long time. What are the consequences of what’s proposed? If we look at local and international examples, and use some imagination, it’s not hard to get pretty worried, pretty fast.

Special intelligence operations

Below is a list of things which are likely to be classified as a special intelligence operation because they would probably involve law breaking. If they so authorised, it would be a criminal offence to report or disclose information about them.

  • Agents and officers raid a couple in their home and hold them captive at gunpoint for an hour, only leaving when they discovered they were at the wrong address. The couple will have no entitlement to compensation for any property or personal damage arising from imprisonment, trespass and assault.
  • A peace activist visits Australia to speak at events and teach in workshops, is arrested and detained (reportedly on security grounds) and ultimately deported. The activist will have no recourse for false imprisonment.
  • Agents kidnap and falsely imprison a young medical student. They attempt to coerce answers from him, making making threats that go beyond what is permitted by the relevant search warrant.
  • An agency spies on confidential discussions amongst political leaders of another sovereign state (a power and less powerful one) during negotiations about a resources agreement.
  • An agency spies on a sovereign country and then assists a private company to improve its negotiating position with that country.
  • Agents tap the mobile phone of the head of another sovereign country to listen to private conversations and track movements of that head of state (and spouse)
  • An agency collects legally privileged information in the course of trade negotiations and provides this information to another foreign country.
  • A botched operation is conducted that results in the death of an innocent bystander (credit this suggestion to the former-Independent National Security Legislation Monitor). Note that if a person with three children dies as a result of a failure to take reasonable care, her family will be unable to make a claim for the cost of raising her dependents. If she is maimed but not killed, she will be unable to make a claim for the cost of her medical care, lost earnings, pain and suffering, and the cost of raising her dependents.
  • Real time data is collected and passed onto a foreign country running a lethal drones program abroad that has killed thousands of people, many of them civilians (including 45 in a single strike). The same program has killed two Australian citizens. Under the second round of natsec reforms, the Australian government will be able to cancel the passports of Australian citizens who might be targets of the lethal drone program to prevent them traveling outside of the area.

ASIO now has over 1700 staff and a budget of just under $400 million. If the US is a guide of what can happen when intelligence agencies are given too much money, staff and political capital, we should be gravely concerned. Below is a list of examples of operations in the US which, if undertaken here, would likely be authorised as special intelligence operations. Again, it would be a criminal offence to report or disclose information about them.

  • Agents use an informant to engage in entrapment, including recruiting poor, illiterate ex-convicts by offering cars and money to carry out the orchestrated operation, involving fake weapons and a manufactured terror plot (which, according to a judge, makes a terrorist out of a man ‘whose buffoonery [is] positively Shakespearean in scope’).
  • An agency recruiting members of an Occupy Wall Street off-shoot to embrace terrorist-like crimes despite its members repeatedly voicing opposition to the tactics.
  • An agency targeting people with mental health problems in sting operations, causing a person to mentally and physically deteriorate as the fake plot unfolds, suffering depression and seizures such that his father must quit work to care for him.
  • Agents coercing a confession by whipping and threatening a person with amputation while he is detained without charge in a foreign country. The confession is used to convict the person of conspiracy, providing material support to terrorists, and conspiracy to assassinate the president. He receives a life sentence in solitary confinement.

Human Rights Watch recently released a report which documents human rights abuses in counter terrorism operations:

Multiple studies have found that nearly 50 percent of the federal counterterrorism convictions since September 11, 2001, resulted from informant-based cases. Almost 30 percent were sting operations in which the informant played an active role in the underlying plot.

Life imprisonment offences

Below is a list of acts that could soon be considered to be subverting society. Unless one of the defences could be successfully argued, they would attract a punishment of life imprisonment:

  • Leaking materials taken from government information systems that demonstrate serious wrongdoing (as per Manning or Snowden.
  • Organising and engaging in denial of service attacks – the online equivalent of a sit in – against government websites, such as that of the President, Prime Minister, the Ministry of Industry, the Ministry of Foreign Affairs, and the Stock Exchange. Training people to organizing these denial of service attacks, or allowing your building to be used to organise them or engaging in preparatory acts for them would all be offences. Unless you could convince a court such conduct fell under an exception within the legislation, all the components of this hypothetical would be an offence carrying a sentence of life imprisonment attached.
  • Providing funds to the Kurdistan Workers Party (PKK) listed as a proscribed terrorist organisation (even though the Australian government is currently proving weapons to Kurdish Pershmergas to fight the Islamic State and cannot guarantee that such arms will not fall into the hands of the PKK).

Data access and retention

Below is a list of things involving your hardware and online activity that now might be done by the government:

  • Accessing your computer (including installing malware) if it is part of the same network as a computer they are targeting, including installing malware. The right to do this became law this week.
  • Collecting (if the rumoured third round of natsec laws gets up) metadata that has the potential to reveal significant personal details despite not accessing the content of the communications. Examples (provided by the EFF) include:
    • That you rang a phone sex service at 2:24 am and spoke for 18 minutes.
    • That you called a suicide prevention hotline from the Sydney Harbour Bridge.
    • That you spoke with an HIV testing service, then your doctor, then your health insurance company in the same hour.
    • That you called a gynecologist, spoke for a half hour, and then called the local abortion clinic number later that day.

Don’t forget, metadata can be used to kill people.

Round one is through the parliament, but there are two more rounds to go. Take inspiration from the late, great Aaron Swartz on the fight to save the open internet:

If we start seeing it as someone else’s responsibility to do this work, and it’s just our job to go home and curl up on the couch … well then next time, they might just win. Let’s not let that happen.

Lizzie O'Shea

Lizzie O’Shea is a lawyer. Her book Future Histories (Verso 2019) is about the politics and history of technology.

More by Lizzie O'Shea ›

Overland is a not-for-profit magazine with a proud history of supporting writers, and publishing ideas and voices often excluded from other places.

If you like this piece, or support Overland’s work in general, please subscribe or donate.

Related articles & Essays