[Theme music starts]

ELIZABETH:

From Schwartz Media, I’m Elizabeth Kulas. This is 7am.

We don’t know exactly what happened or what ASIO was investigating; those details remain secret. What we do know is early last year the spy agency broke the law while conducting an operation. Karen Middleton on the complex legislation that guides ASIO officers and the risks it poses for compliance.

[Theme music ends]

ELIZABETH:

Karen, the last few weeks have contained some difficult revelations for ASIO, the domestic spy agency. What's been happening?

KAREN:

Well, the Inspector General of Intelligence and Security publishes an annual report every year, and that report often includes some mistakes that agencies have made in the intelligence space. So ASIO and ASIS, and a number of other agencies sometimes make errors through the year and the Inspector General lists those errors. It's often difficult to tell which of those areas are more basic and which ones are more serious.

ELIZABETH:

Karen Middleton is The Saturday Paper’s chief political correspondent.

KAREN:

But in her last annual report, the Inspector General, Margaret Stone, outlined an incident that involved ASIO having broken the law inadvertently because its officers apparently didn't fully understand the legislation that they were working under. And this appeared to be a more serious incident, and I confirmed that when I spoke to some people about it.

It involved a foreign intelligence operation that involved a number of different agencies, and they described it as a multifaceted, multi-agency operation. And what happened in the end was that ASIO officers ended up operating without a warrant, wrongly believing that they didn't need one.

ELIZABETH:

Hmm. Do we know anything more about the operation, what it was doing or where they were?

KAREN:

No. And that's where this secrecy blanket falls fairly heavily.

ELIZABETH:

Hmm.

KAREN:

So these things are described in very benign terms and not a lot of information is provided. We know it was early last year. We know that ASIO did self report, so it did go to the Inspector General, say we've discovered that we made a mistake and this does happen from time to time. But it does appear that this was a more serious error than some of the others that have been reported.

[Music starts]

ELIZABETH:

And do we have any information about how something like this happens? I mean, how agents for our top security agency end up breaking the law?

KAREN:

Well, what was explained in this case was that the officers liaise with the lawyers for the agency because the law is very complicated and the officers need to make sure that they are operating within it. And what happened in this event was that the operation changed and we don't know exactly how, but the change in the operation meant that the law that they were operating under was a different one, and they didn't keep in close enough contact with the lawyers. And so they weren't informed that they had different requirements for the new aspect of the operation. And that meant that they were effectively operating outside the law.

They also seconded some officers from other agencies for this operation. And it turns out that they did that without the proper legal authorisation. Those officers were then not properly managed or supervised. And then some reports that were supposed to be filed weren't filed. So it seems there were a number of layers of problems that all went to the issue of compliance and the governance rules that the agency was operating under.

The Inspector General said that the agency had offered little, if any, training on compliance to those officers, that there were significant problems in planning and executing that particular operation and that they stemmed from systemic weaknesses in compliance.

But, ASIO has acknowledged the problems that it’s had and the director general Mike Burgess told me last week that they’ve changed those processes to make sure there is proper training for compliance and that that doesn’t happen again.

[Music end]

ELIZABETH:

So that’s their processes but have they updated their operating guidelines and if so when did that happen?

KAREN:

Well, this is interesting too, because the way operate, ASIO operates its under a whole raft of different acts, different pieces of legislation. But there are these overarching guidelines that are traditionally issued by the Attorney-General and used to be issued reasonably regularly and they specify the kinds of work that ASIO is involved in and what it can and can't do. But we haven't actually had an update of those guidelines since 2007.

[Music starts]

KAREN:

Back in 2014, seven years later than that, there were suggestions made that the guidelines should be updated. But those updates have not been done. And so the Inspector General was saying that this is needed to be done as a matter of urgency, because we're dealing with even just new technologies that are not reflected in the guidelines currently in place.

[Music ends]

ELIZABETH:

We’ll be right back.

[Advertisement]

ELIZABETH:

Karen, we're talking about ASIO officers breaking the law in the course of their work. How much has this got to do with the complexity of the legal framework that they’re now operating under?

KAREN:

Yes, I think what this highlights really is the incredible pressure that people are under because the law is now so complicated and there's so much of it. We've seen huge volumes of national security legislation passing through the parliament, and that is putting a strain, clearly, as this demonstrates, on the people trying to operate under those laws, but also on the people drafting them and the people whose job it is to scrutinise them. And that's the Inspector General and the Intelligence Committee. The Commonwealth Ombudsman and a number of other organisations, the Independent National Security Legislation Monitor is another one.

Some of the criticisms that have been made about the pace of that and the intensity of it go back quite a long way. I spoke last week to a very prominent and respected lawyer in Australia, Bret Walker SC, who was actually the first Independent National Security Legislation Monitor when that position was created back in 2011.

And at the time, he was warning about the nature of the legislation that was being put into parliament. He was warning that it needed to be scrutinised very closely. There was an argument being made at the time that it was only going to be temporary and therefore we didn't need to waste time scrutinising it too closely because it wasn't going to be in for very long.

ELIZABETH:

Hmm.

KAREN:

Because it was responding to extraordinary circumstances relating to terrorism. And he said, look, if this legislation is introduced and passed, it's likely to be there for a very long time, if not forever. And so it has to be scrutinised from the beginning.

And when I spoke to him last week, he said that that remains the case. He thinks that that is what's happened, that legislation has gone in, in some cases not scrutinised well enough, and it is still around. And it does underline the importance of making sure that we do get these things right. We don't just gloss over it lightly thinking that we won't need to use it very often.

ELIZABETH:

So some of these were passed as emergency measures and they’ve stayed on the books, they’re essentially now the status quo?

KAREN:

Yes, that's right. Some critics of the legislation or people who are worried about the spread of it, point out that it also has moved into the criminal domain. So it isn't just about terrorism anymore. Similar restrictions are being applied to outlaw motorcycle gangs and other criminal activity, and they're being applied before someone commits an offense. So we've got things like control orders, prevention orders, temporary exclusion orders for people who've gone and joined into fighting overseas for alleged terrorist organisations, citizenship stripping powers. And then most recently, we've seen the encryption laws that the government has introduced, which are very controversial about getting access to our encrypted data on our devices, our smartphones and the like.

[Music start]

ELIZABETH:

And on those encryption laws in particular, who's been scrutinising those closely?

KAREN:

We've seen a number of inquiries into that legislation. When it was first introduced last year, there was controversy about it.

Archival tape — Unidentified female newsreader:

‘Australian authorities will soon be able to access anyone’s Whatsapp or iMessages conversations.’

Archival tape — Unidentified male newsreader:

‘These internet giants have long fought these proposed changes describing them as ‘unprecedented’....’

KAREN:

The tech industry doesn't like it because it is pushing the tech industry to provide a doorway into encrypted materials that doesn't exist in smartphones at the moment. So they were concerned they were going to have to build a way of weakening those encryption protections. And they were also worried about breaching the privacy of their clients.

Archival tape — Attorney General Christian Porter:

‘The Assistance and Access Bill is a very necessary and proportionate response to these challenges. The legislation introduces new tools that complement existing powers available to law enforcement and national security agencies.’

KAREN:

In the end, the legislation was passed with some changes made after an inquiry by the Parliamentary Joint Intelligence Committee.

But the committee insisted that it be allowed to review the law after it had been in place for a while. And it's undertaking that process at the moment. And separately, the Independent Security Legislation Monitor is doing another review.

So from two different perspectives, that law is being scrutinised and the Inspector General of Intelligence and Security, Margaret Stone, put in a submission to the Parliamentary Inquiry just a week or so ago, that while some of her concerns had been addressed in the amendments that were made, others have not. And she still thinks that a lot of change needs to be made. And she's concerned about the potential impact of the elements of that law.

[Music ends]

ELIZABETH:

What are some of the areas of concern that she has that are still outstanding around that piece of legislation?

KAREN:

Well, she focused particularly on the way that the legislation allows ASIO to make what are called voluntary assistance requests and compulsory assistance orders to tech companies. So they can either ask tech companies and their staff to cooperate, or they can force them to cooperate. And the way the legislation is worded, she points out that there's a risk it could lead to arbitrary arrest and detention because it doesn't require that particular details be included in some of these orders.

So it doesn't say that they have to stipulate, for example, on a compulsory order where someone has to attend, the assistance that they have to render, and how long that assistance has to be for. And she says that the effect of some of these missing details is that a person could actually be subject an order and not even know about it. They’re not even required to be served with the order. And therefore, they could inadvertently breach the order and end up facing five years jail. So she's pointing out, I guess, some of what looks to an outsider like sloppy drafting, but that that it can have quite serious implications for an individual's rights.

ELIZABETH:

So someone could be sent to jail for up to five years for breaching an order that they may not actually know has been issued against them?

KAREN:

Well, theoretically, the way the law stands at the moment and remember, it has been passed, that appears to be the case. Yes.

[Music starts]

ELIZABETH:

So, Karen, how seriously does the government take all of this? I mean, there are wide concerns from the Inspector General, from academics, other observers, including some of them, as I say, the government appointed. How seriously is the government taking those criticisms?

KAREN:

It does take them seriously. It listens to the voices of the experts. The Parliamentary Joint Committee has particular status in the parliament. There are no other committees that are, have as high status as that committee. And the government listens very carefully when it gets recommendations from the committee.

But increasingly, some of those criticisms and recommendations haven't been accepted. There's an interesting test in one recent piece of legislation covering facial recognition technology, in which that committee pushed back and said this should not be passed. This legislation has to be scrapped and you have to start again. Now, it's very unusual for it to push back so strongly. And it'll be interesting to see if the government accepts that and redraft it or whether it decides it wants to proceed and only make some small changes. So it is listening to these concerns by respected people, but increasingly it's not always absorbing all of them.

The government set in place a review of all of our intelligence legislation and how it fits and how it is being used by the intelligence community. And Dennis Richardson, who's a former chief of ASIO is conducting that review. He's due to hand down his findings in a month or so. Now, I don't know whether they'll be made public, but that's probably the best chance I think we've got of getting a sense of overview of how all of these laws are working together, whether the agencies are acting properly or not, and maybe some of the principles that should underpin the laws, not just the black and white letter off them, but what they say about Australia's values and whether or not we're heading in the right direction as we try to keep people safe.

ELIZABETH:

Karen thanks so much for this, you’ve done such amazing work on security agencies and following legislation like this.

KAREN:

Thanks Elizabeth.

[Music ends]

[Advertisement]

[Theme music starts]

ELIZABETH:

Elsewhere in the news:

Cardinal George Pell has been granted another bid to overturn his child sexual abuse convitions. The High Court announced on Wednesday morning that the court’s full bench of seven judges will consider Cardinal Pell’s case for an appeal. As Australia’s most senior Catholic figure, he was jailed in March for the rape of one choirboy and for sexually assaulting another at St Patrick’s Cathedral in East Melbourne more than 20 years ago. Pell is currently serving a six-year jail term. He is now able – in principle at least – to apply for bail, although it is understood that he won't do so at this stage.

And in New York, US President Donald Trump has delivered a major speech at the Economic Club to investors saying he would no longer allow China to cheat the US on trade. He said that if a deal couldn’t be reached, the US would raise tariffs further. And of China, he claimed, quote “their supply chains are cracking very badly and they're dying to make a deal.”

This is 7am. I’m Elizabeth Kulas. See you Friday.

[Theme music ends]