Govt seeks substantial boost to surveillance powers


news The Federal Government today revealed a wide-reaching program to substantially reform its telecommunications interception and surveillance powers with the aim of bolstering the ability of law enforcement organisations to fight crime, including the introduction of a so-called “data retention” scheme that has attracted a great deal of controversy in Australia under the ‘OzLog’ banner.

The package of reforms which are being promulgated by the Federal Attorney-General’s Department include a number of modifications to four pieces of legislation; The Telecommunications (Interception and Access) Act, the Telecommunications Act, the Australian Security Intelligence Organisation Act and the Intelligence Services Act.

At this stage, the Government has not yet released the precise details of the legislative changes it wants to make. However, Delimiter has seen government documentation suggesting that that the changes are extremely wide-reaching. For example, the Government is seeking to modify aspects of the Telecommunications (Interception and Access) Act that relate to the legislation’s privacy protection clauses, tests for issuing warrants, oversight arrangements and information sharing provisions between agencies, for a start.

Instead of law enforcement agencies being forced to request multiple different types of interception warrants, the legislation would be modified to allow authorities to request a new more comprehensive centralised type of warrant with multiple powers. The interception regime — which allows authorities to request Internet service providers and telcos to intercept the communications of their customers — would be extended to some types of service providers not currently covered by the legislation.

Provisions under the ASIO Act for the intelligence agency to request warrants are to be modernised and streamlined, and the agency is to gain the power to disrupt a target computer for the purposes of accessing the information on it — or even to access other third-party computers on the way to the target machine. The Government is also interested in establishing an offence which would allow Australians to be charged with failing to assist in decrypting encrypted communications. Also on the cards is a data retention protocol which would require ISPs, for example, to retain data on their customers for up to two years. This is an idea which has proven controversial in Australia over the past several years.

In a statement issued this afternoon, Attorney-General Nicola Roxon said that the “potential” reforms would be examined by the Parliamentary Joint Committee on Intelligence and Security through public hearings, noting that this was “the beginning of the process”, and that the Government was seeking “diverse views” before determining which legislative reforms it would pursue.

“We must stay one step ahead of terrorists and organised criminals who threaten our national security,” Roxon said. “At the same time, we need to have the right checks and balances in place to ensure that those who enforce our national security laws do so responsibly. Unlike the Howard Government, the Gillard Government wants to give the public a say in the development of any new laws, which is why I’m asking the Committee to conduct public hearings. National security legislation is important – but also important is the trust and confidence that Australians have in those laws.”

Greens reject the package
However, the Government has already come under attack for promulgating the reforms from the Greens, which views many of the proposed changes as being inappropriate. Australian Greens spokesperson for communications Senator Scott Ludlam today warned against further extending what he said was the “the loosely defined and already over-reaching online surveillance powers” of Australia’s intelligence agencies.

“Today’s announcement starts the next chapter of the ‘data retention’ debate (#ozlog) which the Government should have backed away from,” Ludlam said in a statement. “This is the idea that all our personal data should be stored by service providers so that every move we make can be surveilled or recalled for later data mining. It is premised on the unjustified paranoia that all Australians are potential criminal suspects.”

“Australians are already under a phenomenal amount of government surveillance. Nearly a quarter of a million telecommunications data warrants were granted in 2010-11 according to the annual Telecommunications (Interception and Access) Act report. This includes detailed locational data logged by every smartphone, every minute of the day.”

Ludlam highlighted the fact that the Australian public only knew about the data retention scheme plans ahead of time because of a “courageous” leak.

“That whistleblower understood that giving data retention powers to law enforcement and intelligence agencies undermines the very rights and liberties they are ostensibly empowered to protect,” Ludlam said. “Data retention as envisaged by this government will entrench enormous databases that can be mined for precise patterns of our movements, purchases, interests, friends and conversations. This interception, copying, recording and disclosure of our data is a means to retroactively police the whole population.”

Ludlam said the Greens welcomed a public consultation on the proposed changes, but added that the Attorney-General’s Department was “notorious” for “cheerfully ignoring” the advice of experts, interest groups and the general public when it came to consultations. “This looks like an ambit claim for surveillance overkill, but nevertheless, the Australian Greens will work closely with legal and privacy experts as well as ISPs and concerned citizens to turn back this unwarranted invasion of Australians’ online privacy,” said Ludlam.

Firstly, let me note that there is a lot going on here, with most of it below the surface. It is, perhaps, important to start with summarising what we don’t know, before going through what we do. This is not an uncommon approach to dealing with the Federal Attorney-General’s Department.

What we don’t know at the moment with respect to this package of reforms is virtually any of the detail regarding them. I, and I believe a number of other journalists, have today seen a broad-brush overview document which contains a few pages of high-level themes which will be discussed by the Parliamentary Joint Committee on Intelligence and Security. However, at the moment the media and thus the Australian public have no real idea what the legislative substance of the Attorney-General’s proposals looks like. This situation, will, of course, need to eventually be rectified, as those legislative changes will need to be public to go through Parliament.

However, what we also don’t know is precisely when that legislation will be made available. Will it be publicly discussed by the Parliamentary Joint Committee? Or will that committee only make available the high-level themes which the Attorney-General’s Department is interested in talking about, with legislation to come later on, after the public discussions? That’s unclear at the moment.

We also don’t know where this entire process has had its genesis.

It has been clear for several years that the Attorney-General’s Department has been working on data retention proposals. But today’s release by Roxon details a whole raft of other stuff. New types of comprehensive warrants, the power to access people’s computers (even unrelated computers, on the way to target computers), protection for ASIO officers, new charges for people who won’t follow orders and decrypt things for the Government … there’s a stack in here, and it’s all new.

We don’t know how long AGD has been working on this stuff, and we don’t know who else — which agencies, private sector bodies or even foreign governments — have had a say in it so far. This massive amount of work has just appeared out of thin air and received the stamp of approval of an Attorney-General who has only been in the chair for a few months. Creepy.

What we do know is that Scott Ludlam now has a mammoth amount of work ahead of him to try and find some of this stuff out before Australia’s civil liberties get tossed out with the garbage. Ludlam, the Greens Communications Spokesperson and resident Gibson-esque conspiracy theorist (and, it appears, with good reason), is one of the only figures within the Federal Parliament who is concerned about the erosion of civil liberties through increased government surveillance. Not many voices will be raised in public about this huge package of reforms which Roxon has rubber-stamped; and Ludlam’s will be one of the only ones with parliamentary privilege.

Unfortunately, Ludlam isn’t even on the Committee which will examine the package (in fact, no Green is), but hopefully that can be rectified before its examination of the situation begins. The Greens should have enough parliamentary power to wangle that. If that fails, probably the only other hope for some decent oversight of this package is the presence of independent Andrew Wilkie on the committee. Bear in mind, in addition, that there is no guarantee that this legislation will have problems making its way through Parliament, as the Opposition has been very quiet on these issues, and sometimes sides with the Government on issues of law enforcement.

Ludlam isn’t the only one who has been investigating the issue of data retention over the past year. Delimiter filed a Freedom of Information request on the subject with the Attorney-General’s Department in late January this year. Ever since, we’ve been wrangling with the department on the terms, to try and force it to give us some useful information on just what it’s up to in the area. I’ll have an update on that situation hopefully next week.

In the meantime, the weekend might perhaps be a good time for those who have not yet gotten involved in this struggle to curb law enforcement powers in the digital age to ruminate on the famous quote by Benjamin Franklin: “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.”

Image credit: Mateusz Stachowski, royalty free


  1. I think there’s a big aspect missing from the response to these Government snooping proposals. People who don’t trust the government should be promoting technologies that make snooping harder.

    A campaign to encourage people to use Enigmail/PGP to encrypt their email is just as important asa campaign to defeat these laws.

    • And why do you think one of the proposals is to criminalize refusal to decrypt?

      • Good thinking, both of you. Perhaps a mass movement to encrypt our e-mails, use onion routers etc. on the internet and introduce additional obfuscation technologies might overload them to the point where their surveillance becomes useless. I have nothing to hide, but I object to these generally incompetent legislators gaining oversight over my life.

    • Fiction is starting to look more like reality every day in this area *sigh*.

      And the public’s relationship with the Attorney-General’s Department is starting to look less and less like an episode of “Yes, Minister” and more and more like Franz Kafka’s ‘The Trial’.

  2. “And why do you think one of the
    proposals is to criminalize refusal to

    Obviously because the government doesn’t want people to communicate in ways they can’t read. Nonetheless, I’d prefer to have emails they can’t read without my help. Then it’s *my* decision to defy them, or co-operate.

      • …we CAN make it technically a lot harder for their spying to work.

        We can do better than that. Feed them all the rubbish and FUD they want over the NBN, then use old-school to bypass the spying.

        Nobody uses the internet for sedition these days. This includes mobiles and fixed phones.


  3. Creepy is an understatement. What kind of a nut-job comes up with this stuff and finds it acceptable?

  4. Wait wait wait. I changed my mind. This data retention is actually a good idea, HOWEVER, it’s important to take it one step further. All politicians and law enforcement must be required to wear 24/7 voice recorders. We have the technology to do this and we need to make sure they are doing the right thing by the Australian people. Everything should be logged including a GPS stream so we know what was said where. Audio files should automatically uploaded on an hourly basis be made available to download for us to check.

    They have absolutely no reason to refuse this if they have nothing to hide… oh and the best part is no one will be able to claim any “gibsonesque conspiracies” are taking place since everything will be out in the open. Kill two birds with one stone. Win win etc.

  5. Move along now, move along, nothing to see here, no problems at all, Ms Rocksoff has assured the media that the public will be consulted about these essential measures to ensure our freedom, and we all know what ‘public consultaion’ means, don’t we…

    … you know, a cuppa with Jim and the folks from the Australian Christian Lobby after Sunday church in the holy city (thats Canberra to the insiders), but of course that well known god botherer, ex PM Ruddo won’t get to have an iced vovo with them, seeing as how he is a bit of a security risk himself these days…

    … the light on the hill isn’t getting dimmer any more, Roxon and her cadre of grey, soulless twats just extinguished it by vomiting up this pile of bile, should go well with the excretia TPP sandwich the yanks have served up…


  6. I wonder if our dear incompetent ALP was able to think of this by themselves or did their handlers at the US embassy requested it. Maybe it’s because they hate our freedoms. Three questions need answering: Why is it necessary NOW? Is our security threatened more now than at any stage in the past? Will information collected on Australian citizens be available to “friendly” foreign governments when they request it?

    • Information is already available to foreign governments and any public servant that wants it – that was part of the data sharing legislation that the Labor party and the National-Liberal coalition joined forces to pass in 2010 despite objections from the greens that there were serious privacy issues.

      We can be sure that once the equipment is in for two year data retention then the periods will be extended. We can also be sure that just as ASIO and AFP were targeting anti carbon tax protesters that this legislation is not about making us safer, it is about preparing the country for monetary default and the final surrender of sovereignty and assets. Agree with the comments further down – this isnt a Labor or National Liberal coalition issue. This is a problem with both parties. Given our strategic and resource positions, we will only ever get the governments the US allows us to have, both parties are treasonous.

  7. “I wonder if our dear incompetent ALP was able to think of this by themselves or did their handlers at the US embassy requested it. ”

    If the LNP was in government do you really think it would be any different? If the US says jump, ALL Australia governments will ask how high.

  8. As Renai said “Bear in mind, in addition, that there is no guarantee that this legislation will have problems making its way through Parliament, as the Opposition has been very quiet on these issues, and sometimes sides with the Government on issues of law enforcement.”

    This also concerns me very much as Liberal Governments tend to be more extreme when it comes to legislation like this. ie stay quiet about it, let Labor take ALL the heat/flak/hostility from the electorate and then when the Liberals romp in (i hate politics) at the next election they (new government) will just let it slide/turn a blind eye to it. Because it’s what they (both sides of politics, again i hate politics) want as well guaranteed and it’s as far as I’m concerned a done deal.

    The Liberals would not have the balls to stand up against this period.

  9. Ah, yes. (Hard) Labor at its most constructive.

    Anybody remember Bob’s Australia Card? Actually, the little bit that the Federal Commissioner for Health “was not permitted to tell anyone about a person’s details“? Except that — as some of us who read the entire Bill discovered — he/she/it was allowed to share the info with whomever he/she/it pleased! Just a little tidbit tucked away…

    Some words of wisdom from another hidden gem:

    Political violence
    Susan Pinto amd Grant Wardlaw
    Canberra: Australian Institute of Criminology, December 1989
    (no, it’s not in the AIC TOC, or even in the site map.)

    Terrorist violence

    Much of the discussion which follows predictions of an increased level of terrorism seems to be predicated on the assumption either that terrorism generally can be defeated (that is, reduced to a low enough level so as not to occasion great national or international concern) or that, given the will (manifested by adequate security measures), any country can reduce the probability of attack against it to a very low level. In fact, neither of these assumptions is realistic. Worse, they are dangerously unrealistic. The danger is that accepting them can lead to an uncritical acceptance of security measures domestically, and military measures internationally, which may themselves be counterproductive, destabilising and contribute to further terrorism.

    Ron asks “I wonder if our dear incompetent ALP was able to think of this by themselves…”

    Yes, Ron, they can. Just because we think they ain’t got the brains doesn’t mean they don’t have any. However, it is true they haven’t yet removed the shrink-wrap. Get it? “SHRINK- – -wrap“???


  10. Wow when did Australia become the police state?

    “Government is also interested in establishing an offence which would allow Australians to be charged with failing to assist in decrypting encrypted communications.”

  11. Wow. I normally only read Delimiter for commentary on the NBN and I happened to see this article. Don’t we have the tinfoil hat brigade here.

    Firstly, your lives aren’t that interesting. No one, including the government, wants to intercept your communications or listen to you. There are no conspiracy theories here, there is no warrantless wiretapping fantasy in Australia like what happened in post-9/11 USA. The vast majority of these reforms are to allow law enforcement to adapt to the changing technology space in which they operate.

    Law enforcement barely has the resources to monitor the communications of people that ARE committing crimes let alone some paranoid teenager who downloads too much porn from the comfort of his parents house.

    s.5D of the Telecommunications (Interception and Access) Act is quite specific as to what ‘serious offences’ are that warrant the interception of a telecommunications service. (Murder, Kidnapping, Terrorism, Serious drug importations, arson, offences punishable by at least 7 years imprisonment). So unless you’re suspected on engaging in any of those sorts of offences, get back to your porn and happy whacking.

    Also, keep in mind that ASIO obtains telephone interceptions under a completely different section of the Act than what law enforcement agencies do.

    The reporting obligations on law enforcement to the Ombudsman are incredibly onerous. Requiring law enforcement to detail what use was made of intercepted communications. The Ombudsman is quite open in it’s criticism of law enforcement. I would suggest some of you go and have a look at some of the annual Commonwealth Ombudsman reports into telecommunications interceptions to see this.

    I think conspiracy theories are allow to perpetuate in an environment when those commenting have very little knowledge of or about the organisations and powers they are commenting on.

  12. Everything will be all right, you accept the Government’s NBN nonsense so why get concerned now?

    In any case the NBN will make their snooping faster. So all is OK.

    PS I know a great deal about these powers. Cannot let Delimiter dismiss people because they think they know more – the arrogance of that conspiracy sentence is breathtaking. I also laughed at the sentence “The reporting obligations on law enforcement to the Ombudsman are incredibly onerous.” You have obviously never seen Government Departments use compulsory powers – I have first hand experience for over 20 years. That is a nearly worthless safeguard in practice. Watch out Big Brother is here.

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