RUBY:

From Schwartz Media I’m Ruby Jones this is 7am.

In a late flurry of activity, the federal government has used the end of the year to introduce controversial new national security legislation.

One proposed new law would give the federal police sweeping powers to combat cybercrime.

But the granting of those powers contradicts the recommendation of a national intelligence review, commissioned by the government.

Today - Karen Middleton… on the law that could empower the federal police to spy on us.

Karen, the federal government recently proposed new laws that would grant extra powers to the federal police. What would it allow them to do?

KAREN:

This is a piece of legislation that suddenly popped up in the second last week of the parliamentary fortnight before the end of the year. It's called the Surveillance Legislation Amendment, Identify and Disrupt Bill (they always have long names) and it effectively gives the federal police the powers to disrupt online activity, intervene and prevent crimes occurring.

RUBY:

Karen Middleton is the chief political correspondent for The Saturday Paper.

KAREN:

It will allow them to attach themselves to computer networks domestically with the help of the Australian Signals Directorate, which is a defence agency that specialises in cyber activity.

And it will be aiming to not only detect and prosecute crime, but try to stop crime from happening.

RUBY:

Right, and so why is the government proposing that the federal police be given these powers? What’s the rationale here?

KAREN:

Well, there's an increasing challenge for law enforcement and intelligence agencies in Australia and around the world in trying to police the activities of people online, particularly on the dark web, where encryption and capacity to hide things, keep things secret is so great now

Archival Tape -- Peter Dutton:

The technology has got ahead of us. And this is the issue around encryption that we've spoken about. So encryption enables safe Internet banking.

KAREN:

that law enforcement agencies, police and spy agencies really struggle to keep ahead of people who are breaking the law.

Archival Tape -- Peter Dutton:

So encryption is good in that sense where it protects us from criminals. But encryption is bad, where it protects criminals from the police. And that's what we're trying to get around.

KAREN:

So people engaged in things like child sexual abuse, organised crime involving drug trafficking or terrorism offences are all using the dark parts of the Internet where police have trouble reaching them.

Archival Tape -- Peter Dutton:

And that's been sort of a lawless place. I've called it the sewer of the Internet, and that's exactly what it is.

KAREN:

And so they argue that they need powers not only to prosecute people when offences are committed and detected, but to stop offences being committed and to and to intervene to interrupt them.

And interestingly, these are the powers or very similar to the powers that were originally proposed for the Australian Signals Directorate ASD.

RUBY:

Can you tell me more about that? What happened to the original plan, and how did these proposed powers end up with the federal police instead?

KAREN:

Well, it was a controversial proposal to give those powers to ASD because it is the agency that focuses on offshore intervention and monitoring of cyber activity. It is the defence agency that defends Australia's systems. So if the Defence Force is the defender of, of territory, the ASD is the defender of systems and its particular focus is cyber crime and activity abroad.

Archival Tape -- Reporter:

“The long arm of the law reaches into a Canberra journalist’s home…”

KAREN:

And it was the subject of Annika Smethurst's report in The Daily Telegraph in I think it was April or May of 2018 warning about this expansion of powers.

Archival Tape -- Reporter:

“The federal police came knocking on Annika Smethurst’s door trying to discover who leaked classified papers to the Newscorp political editor …”

KAREN:

Now, that was the report that saw her home subsequently raided by police.

Archival Tape -- Reporter:

“...the documents obtained by Newscrop detailing a bid by Home Affairs to grant the electronic spy Agency the Australian Signals Directorate the power to spy inside Australia’s borders.”

KAREN:

Some in the intelligence network were concerned that its activities would be reduced or diluted if they were focussing on domestic as well as international activities. And some people were just concerned about giving an agency such a broad remit to effectively spy on its own people.

Australia's intelligence network and legislation has always been careful to distinguish between powers that cover people overseas and powers that cover Australians in Australia. So there was concern about that.

And that concern was reflected in a review that we've seen published recently that was undertaken over a period of 18 months from 2018 and completed 12 months ago.

And it found that ASD should not be given those powers because it is an international agency and there should be a separation between the two. It found the federal police should be responsible for monitoring activity online, onshore and, if necessary, disrupting it.

But the review specifically warned against giving the federal police an explicit disruption power without carefully defining that because there was a risk it could allow police to overreach and it could undermine the rule of law that says that we don't disable or destroy someone's property, including a computer, until a court has determined that a criminal offence has taken place.

RUBY:

So the review recommended against the federal police being given these disruption powers. But the government's going ahead with it anyway?.

KAREN:

That's right. And that's where it gets very interesting. Dennis Richardson, the author of the review, who's a very well respected figure in the intelligence community, said that he really didn't think that it was necessary to give disruption powers.

And in fact, it was a dangerous move to give an explicit disruption power that isn't well defined to the federal police.

He raised that issue of the rule of law and democratic principles, points out that the rule of law underpins our democracy and says you are taking a difficult and dangerous step if you are allowing police to do things that see them acting as, and I quote, judge, jury and executioner in a situation where decisions are made quickly and they could well be determining whether an offence is being committed or not and actually destroying somebody's property.

So you can't have police, he's arguing, going in and destroying these computers or disabling them without the oversight of some kind of judicial body. And that is what this power potentially could allow it to do.

RUBY:

We’ll be back in a moment.

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RUBY:

Karen, let’s talk about the Richardson Review, which recommends against allowing the AFP to have these disruption powers. What else does the review say?

KAREN:

It was a huge review, really, it looked at the entire web of intelligence legislation and there's a lot of it especially since the September 11, 2001 attacks almost 20 years ago.

Archival Tape -- Reporter:

“A sweeping review of Australia’s national intelligence laws is recommending an overhaul of electronic surveillance powers, labeling the current situation ‘a dog’ breakfast’.”

KAREN:

And it was trying to work out where the gaps were because technology has moved on so much since then, but also where the loopholes and overlap is and where it could be made simpler.

Archival Tape -- Reporter:

“The inquiry was undertaken by former ASIO boss Dennis Richardson, who made more than 200 recommendations in a 1600 page report.”

KAREN:

So Dennis Richardson, who undertook this review, is a very accomplished member of the intelligence community.

Archival Tape -- Patricia Karvelas

“Welcome.”

Archival Tape -- Dennis Richardson

“Thanks, Patricia,”

KAREN:

He’s a former head of ASIO. He's also been a former secretary of both the Defence and Foreign Affairs departments and an ambassador to the United States. So he's very familiar with the chief amongst our five eyes allies and how their intelligence networks work. So he was in a good position to conduct this review.

Archival Tape -- Patricia Karvelas

“You found the key principles that underpin our intelligence services are sound, so why have you recommended so many changes?”

Archival Tape -- Dennis Richardson

“Essentially technological change, Patricia.
The various acts have had to be changed multiple times. They're now very opaque, difficult for the public to understand and very often difficult for the agencies to follow themselves.”

KAREN:

And it really is a root and branch review that took 18 months. He's been very careful to go through and assess all of the submissions and proposals that came from various intelligence agencies.

Archival Tape -- Dennis Richardson

“All of that needs to be streamlined, modernised. That'll be a good thing for agencies. It'll be a good thing for parliament, it'll be a good thing for governments, and it'll be a good thing for the general public.”

KAREN:

And interestingly, he's made sure that he has declared what it was that each one of them was asking for and specifically where he disagrees with them, he says why. And that's a way of avoiding any of those agencies coming back to a future government and taking advantage, perhaps of the silence of a report like that. If that hadn't been done to say, oh, look, the report didn't say anything about this proposal, why don't we go ahead and do it?

Archival Tape -- Dennis Richardson

“There's a difference between knowing the law and understanding the law, that is understanding why Parliament seeks the balance between civil liberties on the one hand, and national security on the other”

KAREN:

One of the things that he did, suggest was that there should be a simplification of a lot of the surveillance powers under one single electronic surveillance act. And the impact of that, it seems, might be to avoid some of those loopholes that some agencies may well be exploiting at the moment and make sure that the law is clear and it's easily upheld.

RUBY:

OK, so this legislation, it came before parliament a couple of weeks ago, but it's the end of the year now. So what has to happen with it next? What's the process?

KAREN:

Well, the process is that the government puts a piece of legislation like this into the parliament and then sends it off to the Parliamentary Joint Committee on Intelligence and Security, known as the PJCIS. It's a very important committee made up of only Liberal and Labour members. It analyses every piece of intelligence and security legislation and makes recommendations to government for if modifications are required. So it will go through that process. Those recommendations will come back to government next year, and it will then decide whether the legislation for surveillance powers for the AFP will need any adjusting or whether it can proceed as it is. And generally, at the end of that process, the Labour opposition will be pleased enough or satisfied enough with the result of that committee process that it will then support the legislation.

So the government generally doesn't need the support of minor parties and independents because it will have both government and opposition MPs.

Archival Tape -- Adam Bandt

“The powers that Labor and Liberal are about to give the Attorney-General unfettered, in this bill, will be so far-reaching that they can be used to clamp down on civil society organisations and political advocacy groups, including environment, human rights and refugee groups. “

KAREN:

And importantly as well, that process has already been followed with another piece of legislation that affects the powers of ASIO.

Archival Tape -- Peter Dutton:

“Keeping Australian communities safe from those who seek to do us harm is, and always will be, the government's No.1 priority.”

KAREN:

And this bill went before the parliament and was actually voted on before the end of the year, right on the last day. In fact,

Archival Tape -- Peter Dutton:

“An important way the government achieves this is by ensuring that our national security agencies have the powers they need to work in an increasingly complex national security environment.”

KAREN:

The ASIO powers repeal a very draconian power that ASIO had been given way back after the September 11 attacks 19 years ago to question and detain people. There's been a number of watchdog bodies that have said subsequently they should be repealed and the government has kept on delaying and delaying the repeal of those powers.

This bill that went through the parliament finally repeals those powers, but it also boosts some separate questioning powers that ASIO has, which has raised some more concerns with organisations like the Law Council about the breadth of those powers and has also lowered the age of people who can be questioned lawfully under these powers from 16 to 14.

And children's rights advocates are concerned about that. So it was a bit taking away with one hand and giving with another. But we have seen that process completed now. And it's been a very busy end of the year, surprisingly, for national security legislation, just as the parliament rises.

RUBY:

Do you think that timing is interesting, Karen, that we're seeing not one, but two pieces of legislation that would affect national security being debated right at the end of 2020?

KAREN:

Well, the government is pushing through national security legislation a lot. So really, it's a sign that there's always this kind of thing going on. The volume of legislation that has been enacted since September 11, 2001, is enormous.

Our whole security landscape has changed. And this is a government that's constantly pushing forward security legislation. So in that sense, I guess it's not surprising. But when we're in a busy part of the end of the year, when there's not a lot of time to focus because there's so much going on, I guess it's you know, it's a bit of a worry that when we're seeing new ideas being put forward right at the last minute and it's good that we have a process where they're forced to take some time and assess this, even if it is only the major parties looking at it and take a breath before the parliament has to ultimately decide sometime in 2021.

RUBY:

Karen, thank you so much for your time today.

KAREN:

Thanks, Ruby.

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RUBY:

Also in the news today…

The NSW Government has issued health warnings after a Sydney man tested positive for COVID-19.

The man drove international flight crews to and from the airport.

It's the state's first locally acquired coronavirus infection since December 3.

And the Federal Government has announced it will appeal to the World Trade Organization over China's decision to impose tariffs on Australian barley earlier this year.

The tariffs threatened over $2.5 billion worth of trade.

I’m Ruby Jones, this is 7am. See ya tomorrow.