Australia’s national intelligence agencies have dismissed concerns surrounding laws currently before Parliament that would provide them with expanded data-gathering powers in circumstances where an Australian person’s safety is in imminent risk.
The Bill in question, if passed, would enable national intelligence agencies to undertake activities to produce intelligence where there is, or is likely to be, an imminent risk to the safety of an Australian person, such as from terrorist attacks or kidnappings.
It would also allow these agencies to seek ministerial authorisation to produce intelligence on Australians involved with a listed terrorist organisation rather than having to obtain multiple, concurrent authorisations to produce intelligence on individual Australian persons who are suspected of being involved with a listed terrorist organisation.
Opposition of the Bill has primarily come from the Law Council of Australia (LCA), which told the Parliamentary Joint Committee on Intelligence and Security (PJCIS) it was unsure whether the expanded powers would be proportionate to their operational objectives.
In a submission to the PJCIS, which is responsible for scrutinising Australia’s intelligence powers, the LCA said there are no safeguards to prevent agency heads from using its intelligence-gathering powers on an Australian in situations where they are not in imminent risk.
“There is no requirement that the agency head must also assess the nature and degree of the imminent risk to the person’s safety, and be satisfied that it is sufficiently serious as to warrant the exercise of powers in the absence of a ministerial authorisation,” LCA wrote in its submission to the committee.
“For example, there is no requirement to be satisfied that there is a risk of death or serious harm to the person.”
The LCA added it was also concerned about expanding the influence of a single ministerial authorisation so it can enable intelligence-gathering of entire terrorist organisations due to the broad nature of such an authorisation.
The council specifically noted the lack of an exhaustive list for what is deemed to be “involvement with a listed terrorist organisation”.
“The Law Council notes that the concept of a person’s ‘involvement with’ a listed terrorist organisation has the potential to be extremely broad, covering both direct and indirect forms of engagement,” it said.
“The Law Council suggests that consideration is given to placing more precise statutory parameters on the concept of ‘involvement with’ a listed terrorist organisation.”
In response to these concerns, representatives from the Department of Home Affairs, Australian Security Intelligence Organisation, Australian Signals Directorate (ASD), and the Office of National Intelligence said these expanded powers would only be used in “niche circumstances”.
“In an operational sense, when we kind of try to apply these new provisions to real-world situations what we’re trying to do is save minutes and possibly hours in operational circumstances where an Australian person has been kidnapped overseas,” ASD Director-General Rachel Noble said, when explaining the “imminent risk” powers.
Noble said waiting for ministerial authorisations is not always possible in “imminent risk” situations as overseas kidnappings and mass casualty events can often occur in the middle of the night.
Addressing the LCA’s concern regarding ministerial authorisations potentially being too broad for gathering intelligence on listed terrorist organisations, a Home Affairs representative said the authorisations would only be used by intelligence agencies to investigate members of the class that directly participate in listed terrorist organisations.
Home Affairs electronic surveillance assistant secretary Paul Pfitzner said authorisations for agencies to perform intelligence activities on a listed terrorist organisation would only allow them to investigate individuals who recruit others, provide and receive training, provide financial or other forms of support, and advocate on behalf of the organisation.
“We don’t want to pretend that we’ll necessarily be able to capture every scenario, situation, or circumstance that might arise in the course of an intelligence agency undertaking their work and finding how people may or may not be involved with a particular terrorist organisation,” Home Affairs electronic surveillance first assistant secretary Andrew Warnes added.
In terms of accountability, Pfitzner said all intelligence agencies who collect data about terrorist organisation individuals through ministerial authorisations would have to keep a list of these identified individuals and provide reasons why they are classified as being part of those organisations.
