2011-05-30 Why the new ASIO bill must be stopped

A new development in global law harmonization against the perpetual War on Everything is a new amended bill being passed through Australian Parliament, which will further fatten up ASIO’s capabilities to spy on Australians and anyone else abroad. Crikey reports on the bill’s proposed changes:

“Foreign intelligence” is redefined to relate to “intelligence about the capabilities, intentions or activities of people or organisations outside Australia”.
Under current legislation, it is limited to “intelligence relating to the capabilities, intentions or activities of a foreign power”. Similarly, the concept of a “foreign power” has been redefined — currently it applies to “a foreign government, an entity that is directed or controlled by a foreign government or governments, or a foreign political organisation”. Under the bill, it will become “people, organisations and governments outside Australia”.

That’s pretty damn broad.

Bascially, anyone who organises in groups to campaign about political and social issues, such as antiwar activists, environmental activists, refugee advocates, anti-censorship activists – anyone who communicates with others overseas to campaign against Australian government policy – will be able to be targeted by ASIO under these new laws.

Crikey suggests that groups without a specific political agenda, such as Wikileaks and online lulz masters Anonymous, may also be targets. By this logic, so could the Australian Pirate Party, which pits itself against hawkish and well-funded copyright lobby groups, and whose sister parties in Europe have been subject to civil lawsuits and police investigation.

Presently there are 10 suggestions regarding this bill tabled in the Senate. Only half of these submissions are critical of the amendment.

The Law Council of Australia and the Castan Centre for Human Rights Law at Monash University have responded with the voice of common sense, but this overall dismal response, reflects amongst other things, the need for a truly cohesive and energetic civil liberties movement in Australia. (An Australian Bill of Rights is also wanting, but that’s a whole other depressing story in itself).

This is the latest chapter in the widening scope of ASIO’s activities and jurisdiction since 2001. As Daniel Baldino, who has written an excellent paper (.pdf) on the growing intelligence behemoth in Australia has pointed out: “Under Australia’s National Counter-Terrorist Plan (2003) …ASIO has been drawn into the arena of domestic policing. Previously, the agency had no powers to detain and interrogate members of the community…For the first time in its history, ASIO could detain people without charge, trial or conviction and conduct compulsory questioning for information gathering.”

The Castan Centre’s submission to the Senate points out that the most obvious motivation behind this new ASIO bill is the ongoing effort to silence Wikileaks. This makes perfect sense: Wikileaks is a unique mix of principles and structures that aims to trigger reform in both the political and media milieu – two spheres which are dovetailed together by association and funding. Most importantly, Wikileaks is stateless – claiming no allegiance to any sovereign nation or territory – as it exists solely online and is mirrored by thousands around the world who have devoted web server space to the cause. Of most relevance to ASIO however, is that Wikileaks’ chief Julian Assange is an Australian national - and that his organization has immense support amongst his fellow citizens, many of whom have formed alliance networks online.

What is perhaps underestimated by certain quarters is the power of political embarrassment (although there is no doubt that this would not be underestimated by those who have followed the Wikileaks story closely). The seeds of this new ASIO bill had been sown from late 2010, when Wikileaks began publishing its ‘mega-leak’ of secretly classified U.S diplomatic cables – including dispatches from the U.S Embassy in Canberra. The Australian government, in the classic trait characteristic of Commonwealth nations, sees its relationship with the U.S as unshakeable and forever ideologically intertwined. So intertwined in fact, that when it was revealed via Wikileaks that a currently serving Labour minister was/is a mole for the Americans, a small blip appeared in the Australian news media cycle - but that minister still has a job. In private, the Gillard government was in damage control. As The Age later reported, frenetic intelligence reporting on Wikileaks was already taking place. Assange, already aware of Australian intelligence keeping tabs on his team and it support base, confronted Julia Gillard with this on a particularly riveting episode of Q and A. It’s easy to figure that this new legislation is a move by ASIO to cover its hide retroactively for surveillance activity it is already conducting.

Under Item 7 - Paragraph 27A(1)(b), the wording of the bill is as follows:

“This item will amend the conditions for the issue of foreign intelligence warrants under the Australian Security Intelligence Organisation Act 1979 […]This item will amend this condition so that the issuing Minister may issue a warrant for foreign intelligence collection if satisfied, on the basis of advice received from the Defence Minister or the Foreign Affairs Minister, that the collection of foreign intelligence relating to that matter is in the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic well-being. The new conditions recognise the broader nature of the contemporary threat environment.“

This excerpt highlights how the Intelligence Services Legislation Amendment Bill 2011 is reactionary law-making at worst – criminalizing the exposure of political embarrassments, hastily drafted with no adequate consideration of public debate, the knee-jerk response of a state apparatus that is on the defensive about its reputation and efficacy.

Such bills that have passed through Australian parliament into law, each more draconian than the last, defy the understanding of ordinary citizens and legal professionals alike. With each successive wave of legislation, due process is further abrogated into meaninglessness: accountability mechanisms are dismantled with the endless extension of sunset clauses and delay of review procedures (witness similar recent developments in the U.S with the Patriot Act), the reversal of the burden of proof principle, and the conflation of intelligence with evidence. The arbitrary grip of unanswerable law enforcement and intelligence power is tightening further while we watch with buckets of popcorn in our laps.

There has been a quiet, defeatist acceptance of these newly imposed realities on the Australian public for various reasons. The hackneyed and anti-logical “I’ve got nothing to hide” argument is frequently cited with a shrug of the shoulders by people who have not been adequately informed of new developments in the law and who have been blindsided by spin. Then there is an acquiescent leadership and opposition in parliament, which routinely disregards its citizens’ civil liberties due to its mortal fear of appearing soft on preordained geopolitical agendas. Tying all these factors together is a flaccid, stenographic culture of journalistic practice that merely parrots such legislation instead of methodically tearing it apart.

With each new ‘dragnet’ style law that is enacted, only the public suffers, for those who administer such laws are blithely unaccountable. Severe political pressure has been applied to Wikileaks for some time – and less controversial but equally legitimate community groups are now under threat.

This article also appears on the author's blog, No Meritocracy