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Saturday, 20 October 2012

ASIO powers: We can't judge what we cannot see

ASIO wants more power to scrutinise
Australians' online communications.
Last week I had a bit of a jaundiced spray against ASIO, Australia's domestic spy agency, in which I said that the organisation is unconstitutional because its activities are invisible to the public. If effective government requires freedom of political speech - as the High Court has decreed - then ASIO can have no part in government since its activities are never talked about, or if talked about then not in sufficient detail. Therefore it is unconstitutional. Apart from that, it appears, ASIO's powers represent an "assault on civil liberties", according to UNSW law professor George Williams. Williams "was speaking at the NSW Council for Civil Liberties dinner in Sydney where a national campaign to roll back the nation's anti-terrorism laws was unveiled".
The anti-terrorism laws have sunset clauses which come into effect in 2016. At that time they can be repealed, amended or made permanent.
The national campaign aims to force decisions of intelligence agencies, which negatively affect human rights, to be subject to a merit review and to ensure any future laws are scrutinised by the community before they are enacted to stop further erosions of civil liberties.
(Emphasis added.) Well, that would be nice wouldn't it? But it falls short in the practicality stakes because, once more, there will never be any publicly-available information about decisions taken by intelligence agencies due to their restrictive secrecy policies. Forcing decisions of intelligence agencies to be "subject to a merit review" could, of course, entail some form of secret cabinet of appointees tasked with reviewing the decisions that have been taken by an intelligence agency. It doesn't necessarily follow that such a review would be a public one. And scrutiny of proposed laws "by the community" may indeed involve public access to information about any such laws, but it will be impossible for the community to have an informed opinion about their merits or otherwise because the public would not have access to specific information about how similar laws had been used - or abused - in the past. Due to the same secrecy policies of intelligence agencies. Checkmate.

So what do we have? We have a bland headline pointing to a talk given at a dinner held by a group of well-intentioned individuals by a university professor who says that ASIO has too much power. (Stifles yawn.) Goodness me, knock me down with a feather. How compelling is that? How likely is such a story to engage the community in such a way as to spark the kind of broad-ranging debate that is required for people living in Australia to understand how ASIO is using all the powers given to it - largely by John Howard, the man who took the nation to war on the strength of a bald lie? I'm sure that ASIO head David Irvine and his senior officers are simply trembling in their shoes at the thought of what could happen as a result of this story being published by Fairfax.

I respect Williams' views, of course, and I wish that when those sunset clauses in those laws kick in the laws will be repealed. But I don't see this kind of story making any difference. There are too many other things to occupy peoples' attention, such as doping scandals in the cycling fraternity and kiddy fiddling perpetrated by Catholic priests. So this story just brings me back to my original point: that ASIO cannot be legal because it is secret. It is not enough to ask Australians to tolerate this agency simply on account of the vagaries of any kind of trust. If ASIO is asking for more powers to avoid "intelligence failures" in addition to the unwarranted powers that it has been granted by governments, then it must come clean and demonstrate exactly why it should be given such powers. In order for that to happen, it is necessary for ASIO to disclose to the public the ways in which it is currently using the powers is already has. Failures must be aired, discussed publicly, and freely. Only in this way can people living in the community be confident that the organisation is not abusing the powers it has, and will not abuse any powers that a government might see fit to grant it in future.

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