Australia's intelligence agencies already fail to comply with safeguards in national security legislation. Why are they now being given more powers than ever before?

As the Abbott Government prepares to enact sweeping changes to Australia’s national security laws, with the co-operation of the Labor Opposition and only weak recommendations from the Parliamentary Joint Committee on Intelligence and Security to amend the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill, it is worth remembering that this nation’s intelligence agencies already often fail to comply with safeguards built into existing legislation.

It is also worth noting that compliance oversight of these agencies does not involve inspecting all agency activities/warrants and relies heavily on voluntary self-reporting by these same agencies.

Excerpts from the Inspector-General of Intelligence and Security Annual Report 2013–14:

In 2013–14 we reviewed approximately half of the warrants obtained by ASIO. These inspections occur after the Attorney-General has authorised the warrant and usually after ASIO has completed the operation and reported back to the Attorney-General.

During 2013–14 our inspection program identified four errors in ASIO’s execution of warrant powers, each of which constituted a breach of either the ASIO Act or the TIA Act.

My office identified one breach under the ASIO Act relating to delay by ASIO in revoking a warrant. The ASIO Act requires ASIO to inform the minister ‘forthwith’ once the grounds on which the warrant was issued cease to exist. For the warrant in question there was a considerable delay in providing the relevant notification to the Attorney-General.

As noted in previous annual reports, I have a particular interest in ASIO’s use of B-Party warrants because of the potential for intrusive collection of material that is not relevant to security. In 2013–14 there was a modest increase in the use of such warrants following a decrease the previous year. This increase was due to a growth in the number of Australians involved in foreign conflicts. Most of these warrants are reviewed by my office. I am currently consulting with the Attorney-General’s Department about ASIO’s interpretation of the provisions in the TIA that restrict the availability of B-party warrant.

My office identified one instance when ASIO communicated information on Australian persons to a non-approved foreign authority responsible for issuing passports for that country. The case raised complex legal issues and at the end of the reporting period I had not formed a final view on whether approval from the Attorney-General was strictly legally required; however, my view is that at least as a matter of propriety and compliance with the intention of the restrictions the matter should have gone to the Attorney-General.

In one case I questioned whether the justification given for the internal security investigation was sufficient or reasonable, having regard to all of the circumstances. In particular I questioned whether it was appropriate for personal information about a member of the public to be passed to an ASIO officer who had expressed concerns that the individual might pose a risk to the officer’s own personal safety. I was advised at the time that all ASIO staff members could access some ASIO holdings to perform checks on individuals, including neighbours and social contacts that might relate to personal security or safety. I expressed concern that ASIO did not have formal processes in place to ensure that personal information in ASIO’s holdings about a member of the public could not be released to a staff member or accessed directly by the staff member. In my view, this is out of step with community expectations in respect of privacy.

In one instance ASIS had been aware that the person was Australian but this had not been well documented or communicated. This was a breach of the privacy rules. It was subsequently found that there was also a breach of the requirement that ASIS only communicate intelligence in accordance with government requirements and the requirement for ministerial authorisation before taking action to produce intelligence on an Australian person. There is further information on this case below….there had been unauthorised collection against the individual breaching the ISA’s requirement that ASIS ‘obtain ministerial authorisation before undertaking any activity to produce intelligence on an Australian person’ (s.8) after ASIS first became aware of the individual’s dual nationality in July 2012. ASIS investigated the case further. I received a copy of the final report from the Director-General in June 2014, which confirmed there had been a breach of both section 6(1)(b) and section 8 of the ISA, as well as a breach of the privacy rules.

ASIS reported two breaches because the privacy rules were not applied to reporting on a person known to be an Australian person. Inspections by my office identified an additional two breaches where the privacy rules had not been applied. ASIS subsequently amended all four reports and applied the privacy rules retrospectively.

The May 2014 inspection confirmed one breach of the ISA, where an ASIS officer who had not been approved for training in or the use of weapons discharged a firearm in a skills maintenance session in March 2014….. a further two breaches of the ISA relating to the unapproved use of weapons by ASIS officers during the reporting period: one at a skills maintenance session in September 2013 and one at a firing range in December 2013.

In January 2014, DSD separately provided to me their final report on a breach of the ISA which occurred during October 2013, where incomplete records had resulted in DSD conducting intelligence collection activity on a person known to be Australian. During the reporting period I continued to inspect cancellations of ministerial authorisations and non-renewal reports to the Minister for Defence under sections 10 and 10A of the ISA. In September 2013, as part of our regular inspection of DSD activities, I asked DSD to confirm that intelligence collection against several subjects had ceased (as had been advised by DSD to the Minister for Defence). DSD advised that collection against one subject had continued for several months beyond the expiry of the ministerial authorisation, in breach of the requirements specified in the ISA.

In two cases there were breaches of the privacy rules as the presumption of nationality was not applied reasonably by DSD. In both cases, intelligence collection activity occurred against Australian persons in circumstances where DSD already had information indicating that the individuals concerned were Australian persons, but in each case members of staff had failed to make appropriate inquiries of existing DSD records. In addition to these cases being breaches of the presumption rule in the privacy rules, the action taken to produce intelligence on an Australian person was inconsistent with the ministerial authorisation requirement in the ISA. During 2013–14, I assessed two instances where DSD communicated information about an Australian person not in accordance with the privacy rules. Both incidents resulted from a failure to follow established compliance processes.

During my 2013–14 inspection program, a breach of Section 133(1) of the AML/CTF Act was identified whereby ASIO communicated AUSTRAC information to a foreign intelligence agency without first receiving appropriate undertakings for the protection and use of the information.

Health Services Union NSW is experiencing interesting times

Snapshot from NSW Court Lists

The Age 14 October 2014:

Controversial unionist Kathy Jackson has sought a delay in a $1.4 million lawsuit brought against her for alleged widespread fraud and theft citing her serious mental health problems.

It emerged in the Federal Court that Ms Jackson has also recently lodged a WorkCover claim against the Health Services Union where she sprung to national prominence as a "whistleblower" exposing the crimes of former Labor president Michael Williamson.  She is now being pursued for alleged corruption.

Ms Jackson on Tuesday, through her lawyer, applied in the Federal Court to have the HSU's lawsuit against her adjourned until February due to her health problems as she was unable to provide instructions to her lawyer.

But the HSU's lawyer, Mark Irving, attacked the last minute application and flagged it would seek to cross-examine the doctor who provided the report on Ms Jackson to check its "veracity".

"Having a medical report in one's back pocket for the best part of a fortnight and dumping it upon us at the last moment ... this is a continuation of quite disgraceful behaviour. It is quite extraordinary and unacceptable behaviour," he said.

"Things get worse for people who are being sued for significant amounts of money - what the (medical) report does not proceed to say at any stage is that she is not capable of providing rational instructions."

Justice Richard Tracey again criticised Ms Jackson for not abiding by court orders in the case saying it was "inexcusable". "I am conscious of the many inexcusable failures to comply with the court's orders. It's a matter that I have taken very seriously," he said.

Justice Tracey signalled he was reluctant to give the HSU summary judgement in the case - which would involve Ms Jackson being required to pay the HSU about $700,000 - as it was an "extreme step". 

He gave Ms Jackson until early November to provide affidavits about her "capacity to give instructions". ….

Read the rest here.

A message for Yamba's funky hair studio Paul

Although it's  been quite a while between drinks at the table of knowledge at the local watering hole a quorum of members was in attendance today and, boy-oh-boy, it was a not-to-be-missed occasion.

Just one item was raised in general business and, golly gee, it was white-hot.

Long-time Yamba resident Cliff, who's been in town since the year dot, told the gathering he and his missus were absolutely blown away when they heard a local hair dresser was seeking to employ a backpacker at a local cut n curl salon.

Cliff says he and his good wife have drawn a line in the sand and will not be frequenting the place that hosts Paul who placed the ad on Gumtree until things change drastically.

Footnote: Cliff's missus reckons anyone who uses "coastel" is dead-set suss.

NSW Politics: who owns you, pretty baby*

You are a politician facing a state re-election campaign in five months time.

Your political party has just been through a gruelling time at a corruption inquiry.

A powerful multinational media corporation operates in Australia. 

It has a proven track record for corruptly making payments to police and government employees for information, for unlawfully hacking phones and voicemails to obtain material for news stories and gossip columns - with an editor and one of its former journalists gaoled, as well as multiple other employees arrested for their involvement in these activities.

This media corporation asks you to appear in an advertisement for its newspapers.

Do you say yes or no?

Well if you are NSW Premier Mike Baird you say - Yes!

And this is the result.............

http://youtu.be/3EkZR9f9mvU

I spoke with the Premier's office on 17 October 2014 and a staffer confirmed that it actually was him in the advertisement, but could not say if he had received payment for his appearance.

It would seem that along with Prime Minister Abbott, Mike Baird has decided that being joined at the hip to U.S. media mogul Rupert Murdoch is a good political move.

* With sincere apologies to The Four Seasons for mangling their lyrics.

Quote of the Week

Rates of anxiety and depression on the New South Wales north coast are almost twice the state average of 10 per cent. 

[ABC North Coast NSW radio, 10 October 2014]

Why is the NSW Baird Government removing surgical facilities from the new $80 million Byron Central Hospital?

In September 2014 it was reported that the early works contract for the new $80 million Byron Central Hospital had been awarded and, that main works construction on the greenfields site was to begin in 2015.

On 16 October 2014 the Echo Netdaily reported on the possible privatisation of surgical services within this hospital:

The NSW Parliament is today set to debate controversial government plans to privatise the proposed Byron Central Hospital after a move by the Labor opposition yesterday to force the coalition to release all documents related to the development.

It comes as a residents group revealed the Ewingsdale landowner of the surrounding land where plans are being pushed through for almost 200 dwellings, a nursing home and shopping centre is the daughter of one of Australia’s richest beef barons who has been buying up prime farmland nearby.

Byron Shire Council last week narrowly approved pushing the so-called ‘seniors’ development through to its development application (DA) stage, outraging local resident groups who say it should have been deferred for more time to consider the contentious plan which contravened the shire’s new Local Environment Plan (LEP).

But comments by Ballina MP Don Page, following the council decision, that he wanted the private sector to provide surgical services at the hospital has sparked the move in parliament to try and throw light on the hospital plans and the push for privately-run services.

Labor’s shadow health minister Walt Secord says his call for papers, known as a Standing Order 52, in the NSW Legislative Council yesterday will be debated this week.

‘It’s an extraordinary step, but this is about finding out the National Party plans for Byron Central Hospital’, Mr Secord told Echonetdaily.

He said Mr Page’s comments to the ABC in favour of a privately-run service followed an announcement by state health minister Jillian Skinner last month that the central hospital’s project team was ‘undertaking a market sounding process to determine whether there is interest from private providers to deliver surgical services at the facility’.

Read the rest of the article here.

The aforementioned debate did take place and Greens MLC Jan Barham from the Northern Rivers spoke up for the people of Byron Bay Shire and revealed what government members were obfuscating that day -  that surgical facilities had been entirely removed from the architectural plans for this hospital.

NSW Legislative Council Hansard [Proof Copy] 16 October 2014:

Ms JAN BARHAM [10.55 a.m.]: I support the motion moved by the Hon. Walt Secord. I urge members to have a history lesson on this matter because both sides have misrepresented the situation. As to Byron Central Hospital, I spent 10 years attending meetings and dealing with the processes conducted under the former Government for its delivery, only to be thwarted time and time again. For example, a Central Coast hospital was proposed and it was suggested that Byron would lose its two hospitals and get one large hospital in Ballina. I apologise to the Minister for Ageing, who outlined the Government's position, but he is incorrect. The previous process was always followed carefully and stringently, with wide consultation on delivery of the supply plan for the new Byron Central Hospital.

Until February 2014, architectural plans that were shown to community members—who had served for more than 20 years on committees discussing the delivery of a new hospital—included surgery services. The services plan that was completed in 2002 and put out for public consultation included surgery.

The idea of removing surgery services from the hospital, as proposed in the current planning process, is abhorrent to the local community. People feel that promises have been broken and they deserve answers. Members may note that I have put questions on the Notice Paper about these issues. I recently attended a forum at which design plans for the hospital were released, and committee members were shocked to see that the previous architectural plans had been changed to remove surgery services. It was the first they had heard of it. There has been a lack of consultation and notification about this process. People who have the community's interests at heart and who have voluntarily given so much time and energy to local health issues and to this project, were shocked. That night they expressed their displeasure about what was occurring. [my red bolding]

The Government is unwilling to tell the community why surgery services have been dropped or what process is being undertaken to ensure that Byron shire retains those important services. A new proposal should be developed and presented in a manner that conforms with normal processes so the public can access it conveniently. The process must be transparent. There has been misinformation but the important issues are service delivery and good public health services—about which I have put a question on notice. Tourism is also an important consideration. Unfortunately, visitors who engage in dangerous and adventurous activities often use local health services and facilities. I welcome this important motion but I caution members to recognise, observe and acknowledge the history of this matter. The Byron shire community have put in a lot of effort to ensure they get a hospital that meets their needs. I look forward to these issues being considered and resolved.

On a vote in the Lower House the motion passed and the Baird Government is now obliged to supply to Parliament all documents, including but not limited to ministerial briefing notes, email correspondence, financial documents, memos, file notes, meeting papers and meeting minutes relating to the new Byron Central Hospital and Maitland Hospital.

These documents should be interesting to say the least, as one local resident in a submission to the NSW Minister for Planning & Environment in September 2014 outlined how planned surgical services were whittled away before being removed from the building design:

As a member of Byron Bay Hospital Aux, I have been interested in the planning process for the new Byron Shire Central Hospital since the first consultants were engaged by the Dept to consult with the local community, so probably for over 20 years. Along every step of this process I have attended numerous public meetings as well as meetings of the planning committee and was always assured that there would be no downgrading of the services available at the Byron Bay or Mullumbimby Hospitals until the new Hospital was built and we would keep all the current services available at both Hospitals and indeed add to these services, when the new hospital was built. I was astounded to see that the plans currently on exhibition make no mention of operating theatres or day surgery. The initial proposal incorporated two "state of the art" operating theatres. This later became theatres for day surgery procedures and now we have non{e} at all!. As Byron Bay Hospital has facilities for day surgery and has had some form of theatre since it's inception, I find it totally unacceptable that the new Central Hospital has none at all and I say this whilst being well aware that the Area Health Board is looking for expressions of interest for a private provider to build operating theatres on the site, for them to buy back services from. I wish to strongly object to the fact that there is not allowance for operating theatres in these plans. These plans must include provision for at least day surgery in the event that no private provider is found, otherwise the people of the Byron Shire have been duped by the Health Department. This Hospital underwent a very lengthy and painful community consultation, there was much ill feeling in both communities over the loss of both hospitals. The community only agreed to the one Central Hospital provided there was no loss of services. They would not agree to what is now proposed in these plans. 

Once again the North Coast Nationals appear to have blindly endorsed a flawed health services plan for the Northern Rivers region.

Culture on the Clarence, Skinner St, South Grafton - Sunday 19th October 2014

Culture on the Clarence: showcasing the talent of the Clarence Valley with a fantastic lineup of local musos, food and community groups, October 19, 2014.