Changes to Australian Security Laws Will Make Illegally Obtained Evidence Permisable in Court

Image courtesy of Network 10 

Politicians are preparing to scrap decades worth of laws that protect citizens from wholesale spying and guarantee the right to a fair trial—and they haven't even read the legislation they want passed.

A public hearing was held yesterday (Monday, August 18th) in a squirrely back room of Parliament on the raft of legislation being hurried through as part of the National Security Amendment Bill (No.1) 2014.

ASIO is pushing for the new laws which are being sold to the public as necessary to guard against terror. Prime Minister Tony Abbott, Attorney General George Brandis and ASIO director general David Irvine have been keen to link the laws to the threat of Australian jihadis fighting overseas.

However the Bill does not mention Islamists or jihadis at all—instead they contain a mountain of radical changes which include:

• Forcing courts to accept illegally obtained information
• Giving immunity from prosecution to ASIO, its affiliates and anybody involved with a special intelligence operation when they break the law, including if they only "believed" their actions to be part of the operation
• Wiping away existing protections such as the need for ASIO to get a warrant to put a tracking device on someone.
• Allowing wholesale tampering with information and hacking of computer networks
• Increasing the jail terms from 2 to 10 years for leaking information plus removing the Attorney-General's discretion on when to prosecute

There were no members of the public to witness the "public" meeting, held in a room that smelt like rubber stamps. A gaggle of politicians including Senator Penny Wong sat on one side of the laminate tables, as part of the Parliamentary Joint Committee on Intelligence and Security. A procession of poorly funded advocacy groups such as Civil Liberties Australia and Electronic Frontiers Australia pleaded their case in turns before them.

Most asked for more time to read and understand the massive and complex proposed laws before they progress to Parliament for debate.

The Law Council of Australia voiced concerns that victims of a special intelligence operation would not even be able to tell their lawyer what happened to them.

Electronic Frontiers Australia said the definitions contained in the computer hacking provisions were so broad they could apply to the entire internet.

But it soon became clear, by the vague and general questions, that the politicians themselves had not read the legislation on which they are to report or compared it with the laws they would replace.

South Australia Senator David Fawcett referred to the explanatory memoranda, and at least used his iPad to search terms in the legislation—but when asked if he had actually read the text of the Bill, he admitted that no, he had not.

Senator Fawcett may be praised for honesty as he was clearly not alone. Media requests have been put to other committee members present, who have not yet responded.

Member for Berowra Philip Ruddock kept asking why the right to privacy should trump the right to life almost as though it were a debate on abortion.

"You're putting words into our mouths," protested Roger Clarke of Electronic Frontiers Australia. "Nobody has ever suggested that."

Member for Bass Andrew Nikolic asked why ASIO shouldn't have the same immunity from prosecution as the Australian Federal Police, seemingly unaware that unlike ASIO the AFP must bring charges against a person through the Director of Public Prosecutions, so the accused person has a fair trial before an independent court. The Law Council of Australia pointed this out, but it appeared to make little impact.

Courts do not accept illegally obtained evidence—but that is a protection the legislation would also do away with.

Committee members brought up IGIS as a protection—the Inspector General of Intelligence and Security, an independent watchdog overseeing six intelligence agencies including ASIO.

But IGIS has a staff of 12 and a budget of $4.27 million. ASIO has a staff of 1778 and a budget of $642.25 million, which has just been flagged to increase again.

South Australia Senator Penny Wong was only present for two of the submissions before vanishing. Other members of the committee such as Senator Stephen Conroy and Member for Sydney Tanya Plibersek were not there at all.

The Committee must scrutinise the legislation and report on it before it is introduced to Parliament for a second reading. Attorney General George Brandis, who is also head of ASIO, has asked the report to be tabled by September 8. The Parliament then debates the substance of the legislation—which observers say many will not actually look at closely.

"It's not unusual I'm afraid for politicians to take briefings from staff members and not read the legislation," said Mr Clarke. "They seem to believe that what is in the explanatory memorandum is what is in the Bill and that's not the case. It's what is in the Bill that matters."

The third reading will be the final consideration by Parliament where it can be voted into law.

Read up on the bill here:

Parliament overview page for the Inquiry into the National Security Amendment Bill (No.1) 2014

Terms of reference page

Explanatory memoranda page

Text of the Bill with the actual legislation: the exact words of these laws count. Nothing else matters.

@alisonbevege