Australian spy law review says Asio should seek approval before targeting citizens overseas

An extensive review of Australia’s intelligence laws has found that Asio should seek government approval before targeting citizens overseas.

© Provided by The Guardian
Photograph: Mike Bowers/The Guardian

The 1,300-page review, completed by former Asio director general Dennis Richardson, was released by the attorney general, Christian Porter, on Friday.

It makes 203 recommendations, 13 of which are classified. Porter said the government would accept all but four of the public recommendations.

Richardson recommended that the Asio Act should be amended so that it required ministerial authorisation for offshore intelligence collection relating to Australians, if those activities would require a warrant should they have occurred inside Australia.

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Porter would not be drawn on whether any particular Asio activity had raised Richardson’s concerns, but said it was likely he considered specific case studies.

Asio has repeatedly emphasised a focus on foreign interference in the past two years, after spending much of the past two decades monitoring the threat of Islamic extremism after the 9/11 attacks. Guardian Australia understands its recent overseas operations include cases relating to Australians who joined Islamic State.

The Asio director general would still be able to authorise overseas warrants without ministerial approval under the changes, but only under certain circumstances, and such decisions would have to be reported to the minister and the intelligence watchdog within a defined period.

The Richardson review, which was commissioned in May 2018, is considered the most comprehensive of its type since the Hope royal commissions in the 1970s and 1980s.

Its findings will be a roadmap for an extensive overhaul of the intelligence community, which has had 124 new acts introduced since the 9/11 attacks.

Porter said there was clear need for such an overhaul. When authorising warrants under current laws, he said, he had to refer to a laminated A3 sheet of paper that he constantly carried with him which contained an index of the various bits of legislation he had to consider.

The review covers the legal framework governing 10 agencies, including Asio, the Australian Secret Intelligence Service, the Australian federal police, the Australian Criminal Intelligence Commission, the financial watchdog Austrac and the Department of Home Affairs.

© Photograph: Mike Bowers/The Guardian
Attorney general Christian Porter says the government will ignore a recommendation that Acic should be subject to the Freedom of Information Act.

The classified review was completed last December, and an unclassified version was completed by June. Porter denied that its release was timed to increase pressure on China, in a week when the diplomatic relationship between the countries reached another low point.

The four recommendations the government disagreed with included not extending a section of the Intelligence Services Act which allowed Asis to assist Asio in Australia. Porter said that although Richardson had recommended scrapping that section, because of concerns the agencies could be competing in Australia, the government would instead allow Asis to continue to provide assistance, but only at Asio’s request.

Richardson also recommended that Australian Defence Force members should not have immunity from offences under the Telecommunications Act, as occurs with members of other agencies, as it was unclear why they needed it. Porter said the government had found “narrow circumstances” under which those immunities could be required.

Porter said the government disagreed with a recommendation that would allow the parliamentary joint committee on intelligence and security to be able to request that the intelligence watchdog, the inspector general of intelligence and security, conduct an inquiry into the legality and propriety of particular operations. He said this would maintain “complete purity” between the oversight agency and parliament.

The government will also ignore a recommendation that Acic should be subject to the Freedom of Information Act.

The shadow attorney general, Mark Dreyfus, and shadow home affairs minister, Kristina Keneally, said in a joint statement that they welcomed the release of the report, but were deeply concerned about the delay in releasing it.

“Given the unclassified report runs to 1,300 pages and includes 203 recommendations, and has only been provided to Labor today, Labor will now carefully study this report before providing our response,” the statement said.

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