Beware the Secret State - Part Two

The Secret State is becoming more than a concept in Australia as successive governments spend more and more money on surveillance and give more and more surveillance power to federal and state government departments and agencies.

On 5 August 2014 the Prime Minister announced his intention to further broaden surveillance powers via the mandatory retention by service providers of all telecommunications metadata, in order for government agencies to access information on Australian citizens, permanent residents and visiting tourists. 

Between 1 July and 31 December 2013 just one of Australia’s major telecommunications companies received these requests for data held on its customers:

Telstra customer information, carriage service records and pre-warrant checks 36,053

Life threatening situations and Triple Zero emergency calls 2,871

Court orders 270

Warrants for interception or access to stored communications 1,450

Total 40,644

Note: These figures do not include requests by national security agencies.

By 30 June 2014 these requests for data held on its customers in the 2013-14 financial year totalled :

Telstra customer information, carriage service records and pre-warrant checks 75,448

Life threatening situations and Triple Zero emergency calls 6,202

Court orders 598

Warrants for interception or access to stored communications 2,701

Total  84,949

Note: These figures do not include requests by national security agencies.

In addition the centralised database of all Australian telephone numbers including the service and directory addresses provided by the customer, the Integrated Public Number Database (IPND), was accessed by agencies approximately 104,000 times (excluding national security agencies) during the 2013-14 financial year.

Those agencies who can access all this metadata with or without a warrant include; federal, state & territory police forces, Customs, CrimTrac, state anti-corruption agencies, Australian Commission for Law Enforcement Integrity, state & territory corrective services, Australian Competition & Consumer Commission, Australian Securities & Investment Commission, Australian Taxation Office, Australia Post, Dept of Human Services (including Centrelink, Medicare, Child Support Program), Dept of Veterans’ Affairs, Dept of Immigration and Citizenship, Dept of Defence, State Emergency Services, the RSPCA, local councils – and many more.

That the system is open to possible abuse is evident.

The Global Mail reported on 13 December 2013 that:

In November [2013], Federal Police Commissioner Tony Negus admitted his force had accessed the call data of “up to five” members of parliament. Negus made much of the judicial oversight, through the issuing of a warrant, for any interception of the contents of phone calls, emails or SMS messages – but the elephant in the room was his admission that up to five MPs had been the subjects of warrantless data-surveillance, and that no judge had any input at all regarding the propriety of this access….

The extent of use of these powers is surprising – and suggests that it is being used to shirk the hurdle of judicial oversight. No less than 40 government agencies made 293,501 warrantless requests for metadata from internet service providers in the 2011-12 financial year. Just 56,898 of those requests were made by the Federal Police, which has the primary criminal law-enforcement role. The RSPCA, Wyndham City Council, the Tax Practitioners Board and even the Victorian Taxi Directorate also have been allowed to access individual telecommunications data for a ‘law-enforcement purpose’. Why are we giving quangos and a taxi administrator the power to access often highly sensitive personal telecommunications data?

Voters will never know the level of metadata access, with or without a warrant, that has been available to national security agencies in the the last three financial years.

However, they do know that the Abbott Government intends to increase national security agency powers to spy on them, under the National Security Legislation Amendment Bill (No. 1) 2014 before the Senate .

The Australian Human Rights Commission stated that it is particularly concerned about the following elements of the bill which are overly broad in their coverage and which potentially impact upon rights to privacy and freedom of expression:

* Provisions enabling warrants for 12 months access to computers, computer networks and premises in the absence of adequate safeguards

* Blanket immunity to ASIO officers from Australian law in conducting surveillance activities with inadequate, independent oversight

* Strict liability for disclosure of information that could capture the work of journalists, among others.

That the Abbott Government intends to use this new legislation to capture journalists' sources can be inferred from this excerpt from a media report in The Sydney Morning Herald on 31 August 2014:

The Australian government has asked the federal police to investigate if lawyer Bernard Collaery and a former spy can be charged with disclosing classified information after revelations Australia spied on East Timor during sensitive oil and gas treaty talks.

Confirmation of the investigation came as the AFP asked the ABC to hand over material relating to its reports on the clandestine operation.

According to sources, the AFP was particularly keen on getting unedited footage of Mr Collaery's interviews with 7.30, Lateline and Four Corners.

It might also want an extract of an affidavit from the former Australian Secret Intelligence Service agent that reporter Conor Duffy claimed to have obtained.

In the interviews with the ABC and other media organisations, Mr Collaery – who had acted for East Timor and the former  ASIS agent – detailed how the former spy led the operation to insert listening devices into the wall cavity of East Timor's government offices under the cover of an aid project.

Attorney-General George Brandis and solicitor-general Justin Gleeson both said the former spy and Mr Collaery appeared to have breached laws preventing the public disclosure of classified information.

The offence carried a prison term of up to two years.

When asked if it was investigating Mr Collaery and the former spy for breaching commonwealth laws, a spokesman for the AFP said: "The AFP can confirm it has received a referral in relation to this matter. As this investigation is ongoing, it is inappropriate to comment further."

The referral was understood to have come from Senator Brandis or his department, which includes ASIO.

In emailed comments, Mr Collaery said he understood ASIO referred the matter to the AFP because of a suspected breach of section 39 of the Intelligence Services Act.

He noted that current ASIO boss David Irvine was head of ASIS at the time of the spying, which Mr Collaery said was illegal.

"This is the police knowingly or unknowingly trying to base a search warrant on an illegality. 

"The AFP should be investigating [former foreign minister Alexander] Downer and Irvine."

The ABC was considering its response but was understood to be prepared to reject the request, despite intimations from the AFP that it would seek a warrant for the material if it failed to comply.

While it was happy to provide footage that went to air (it was available online anyway), it regarded the unedited footage as including off-the-record information that might reveal the identity of protected sources.