Secret

by Brian Toohey

  There is no excuse for criminalising anything in this area beyond the standard US definition of an ‘agent of influence’ as a person who is ‘directed by an intelligence organization to use his position to influence public opinion or decision-making in a manner that will advance the objective of the country for which the organization operates’.2 ASIO has long had the power to deal with such agents. No Australian has ever been shown to meet this definition.

  If new legislation can stop any country from covertly influencing Australian policy or elections, fine. Constraints on freedom of expression are different. With rare exceptions, it should be a fundamental democratic right for people to try to influence the opinions of others about all sorts of topics, including public policy. Bret Walker, a former independent monitor of Australia’s national security laws, wrote, ‘Much foreign influence is benign … [including] support for increased trade, travel and cultural understanding … Our politics would be devalued by the implication that good ideas come only from Australia.’3

  Science is a standout example of the benefits of openness—but some commentators want Australian universities to cut joint scientific research with Chinese universities.4 According to a January 2018 US National Science Foundation report, 23 per cent of US international articles in science and engineering are co-authored with Chinese collaborators. Australia’s share is only 6 per cent.5

  Apart from America’s impact on Australia’s defence and national security policies, the predominant influences on our governments are companies, lobbyists, journalists, think tanks, academics, churches and others wanting to sway government policy. Party discipline over how parliamentarians vote on legislation is often crucial—and responsive to campaign donations. The Foreign Influence Transparency Scheme Act banned foreign donations to political parties, but any ban should include the much more influential donations from Australian corporations and unions. Public disclosure should apply to behind-the-scenes approaches to governments and politicians, except perhaps from individuals acting on their own behalf. Others who publicly advocate policy changes should reveal any funding they receive from vested interests. Journalists and academics usually do this, but other commentators and think tanks should be far more transparent about their funding, as should lobbyists not covered by narrow existing regulations.

  It’s no secret that the US influences Australia’s national security policy, even if the full extent of that influence remains behind closed doors. There is nothing necessarily unacceptable about this, but it would be surprising if much has changed in this regard since a congressional committee concluded that during the 1960s the CIA ‘developed a worldwide system of standby covert assets, ranging from media personnel to individuals said to influence the behaviour of governments’.6 As mentioned in Chapter 28, research by a Carnegie Mellon scholar, Dov Levin, found that the US intervened in eighty-one foreign elections between 1946 and 2000 while the Soviet Union/Russia did so in thirty-six.7 The US also succeeded in overthrowing governments, while the Soviets tried and failed.8 If Russia tried, there is no evidence it succeeded.

  Like other countries, China is entitled to put its views to Australian governments through its representatives and media outlets. There is little convincing evidence that China exercises undue covert influence on government policy. Whatever influence it has didn’t stop Prime Minister Turnbull repeatedly criticising China. When announcing the new legislation at a press conference, however, he stressed that China was not the sole target: ‘Interference is unacceptable from any country, whether considered friend or foe.’9 He added that there was no ‘stain’ in registering as a foreign agent. Some journalists’ questions suggested there should be a ‘stain’ if China were involved. China undoubtedly tries to influence or bully people in Australia who have a Chinese background, but there are no significant examples of this changing government policies. In any event, all Australian citizens should be entitled to advocate policy changes, provided they don’t accept clandestine inducements from any quarter.

  Previously, Australia’s intelligence agencies weren’t as eager as they are today to exaggerate a possible threat. JIO head Gordon Jockel sent Prime Minister Malcolm Fraser a stinging analysis of a draft speech Fraser was due to deliver on 1 June 1976, saying, ‘No service is done to the nation by those who portray an exaggerated spectre of Soviet power and of American weakness … The Soviet Union remains far behind the US and our allies in any overall assessment.’10

  Former Labor prime minister Paul Keating won a quick retraction of the offensive imputations in a Sydney Morning Herald article that said confidential sources had suggested if the FITS Bill were to become law he would have to register as an ‘agent of foreign influence’ because he sat on the advisory council for the China Development Bank.11 There is not a jot of evidence that Keating, who received a US$3000 annual board fee, acted as an agent of influence for China. Yet the article implied he should register because he had recently said Australia’s ‘foreign policy should be more independent of the US’. Expressing a view that millions of Australians share does not make Keating a Chinese agent of influence. Others who have served on this board include Henry Kissinger, former governors of central banks and development banks, and former managing directors of the International Monetary Fund. A healthy public debate means all Australians, including Keating, should be free to advocate a wide range of policies without attracting implicit slurs about their loyalty.

  Few believe that an intense effort will go into examining the large number of Australian politicians, academics, think-tank members and journalists who have spoken in support of the United States, accepted US study grants or been on US-paid trips to America. Other problems arise when government insiders become clandestine sources for another country. WikiLeaks published cables in 2010 showing the US State Department had repeatedly stated that the identity of a Labor minister, Mark Arbib, as a ‘protected source’ must be ‘guarded’.12

  The government watered down the FITS Bill after it realised that dozens of vocal businesses, think tanks, lobbyists, law firms, charities and advocacy groups would have been caught in its net. The revised bill excluded charities, arts organisations, most think tanks and lobby groups, among others, but many of the original clauses suppressing freedom of expression were barely changed in the legislation that passed on 28 June 2018.

  The flood of new laws did not stop with the passage of this law. Complex draft legislation, blandly named the ‘Assistance and Access’ Bill, was released in August 2018 that would allow the authorities to ‘add, copy, delete or alter’ data after people had been forced to hand over their phones and computers in defined circumstances.13 Tech companies would have to comply with similar requests about their customers’ data. If they refused, they would be subject to a jail sentence of up to five years, or a fine of up to $10 million. Individuals could face a fine of up to $50,000.

  The barely amended bill was passed in December 2018 after only four days of parliamentary scrutiny, with the Morrison Government boasting that the new law was a world first. But beating China and the US in these stakes is nothing to boast about. The new law lets ASIO and eleven other agencies issue ‘technical assistance notices’ and ‘technical capability notices’ to a wide range of technology companies, including manufacturers of smart phones and other devices, internet service providers, social media platforms, software developers and many others. The notices can force these companies to help the agencies access their customers’ encrypted messages surreptitiously, sometimes prior to encryption; remove electronic protection; alter or remove data; build in new technology to gain entry; and insert software to conduct covert surveillance of the devices’ owners.

  A politician (the attorney-general) usually authorises technical assistance notices. The Law Council of Australia has been concerned that it is unclear whether the more intrusive technical capability notices require a warrant from a court.14 The council’s 2018 president, Morry Bailes, said it is also seriously concerned that the new law al
lows the agencies to detain individuals to provide compulsory assistance without them being allowed to contact a lawyer.15 Some tech employees are concerned that the agencies could compel them to do things without telling their employer.16

  The government insisted it won’t build vulnerabilities into communication systems, but a wide range of knowledgeable opponents of the bills, including tech giants, say this is unavoidable.17 One concern is that introducing flaws into systems could damage Australia’s $3.2 billion IT export industry.18 As well as weakening the overall system, the problem with inserting malware or a virus is that it can escape and end up in the hands of criminals, as happened with the NSA’s malware called WannaCry, which in 2017 was used in ransomware attacks on hundreds of thousands of systems.19 It is not publicly known what malware or viruses the Australian agencies will insert on devices under the new encryption law, but there is a good chance that the NSA will supply them.

  Scott Ludlam, a tech-savvy commentator and former Greens senator, noted that the Internet Engineering Task Force, which is responsible for setting key technology standards, ‘has rejected the development of any system designed to aid state actors [to] compromise the security of Internet communications’.20 He said that a proposal to break the security architecture of the internet is ‘so blindingly misconceived that the standards body that oversees the whole medium has told the government in writing to shelve it’.21

  The Morrison government stressed that the new law will help catch terrorists and paedophiles, but it also covers minor offences that are normally dealt with in local courts. This is because it applies to offences with a maximum sentence of three years’ jail where convictions often lead to little or no jail time. If terrorists and paedophiles were really the main target, the threshold could have begun with offences having a maximum sentence of over ten years.

  The twelve agencies can act on requests from foreign countries, with no apparent safeguards about whether the information can be used for sinister activities such as extrajudicial executions. The law’s purposes, including the protection of Australia’s ‘foreign relations’ and ‘national economic well-being’, are so broadly defined that a request for access would be hard for a court to deny.

  It takes a special kind of arrogance for Australia’s political leaders and their intelligence bosses to presume they know better than most international specialists. At the time of writing, it is unclear what amendments the winner of the 2019 federal election might make to this law, which has all the hallmarks of a modern police state. The only safe option is to scrap it.

  45

  THE NATIONAL SECURITY SUPREMO

  ‘The state has to embed itself invisibly into global networks and supply chains, and the virtual realm, in a seamless and largely invisible fashion, intervening on the basis of intelligence and risk settings, increasingly over a super scale and very high volumes.’

  Michael Pezzullo, head of Home Affairs1

  Ignoring the dangers, the Turnbull Government created an overarching new bureaucratic structure to run the nation’s immensely powerful security apparatus. Called the Home Affairs Department, it incorporates ASIO, the Australian Federal Police, the Australian Border Force, the Australian Criminal Intelligence Commission, and the Australian Transaction Reports and Analysis Centre. It also has responsibility for immigration; border control; transport, cyber and critical infrastructure security; and countering foreign interference, among other duties.

  The creation of the new department was not recommended by an independent report. A former senior Defence official and Immigration Department head, Michael Pezzullo, drove its formation; he also happened to be its first head. Labor has supported the new departmental structure, if not all the details. ASIO was previously an independent agency within the attorney-general’s portfolio, while the AFP had earlier been in the former Justice Department. While the attorney-general (AG) has retained responsibility for issuing warrants for phone intercepts, four junior ministers in the Home Affairs portfolio have gained the power to approve requests for control orders that can put people under house arrest, including those who haven’t been convicted of a crime. Although all the agencies are supposed to remain independent within Home Affairs, the decision to put so much power in the hands of one Cabinet minister, initially Peter Dutton, and a single departmental supremo, Pezzullo, weakened the checks and balances inherent in the previous portfolio arrangements.

  ASIO is already too powerful, having been transformed into a formidable arm of executive government—a process that began when John Howard was prime minister. The AFP has also accrued more powers, and an appetite for using them. Instead of being placed in a new department eager for them to exercise their authority, ASIO and the AFP should be in separate departments, have fewer powers and face much better resourced external scrutiny. The changes are an emphatic illustration of how far the nation has moved from the days when Prime Minister Robert Menzies scrapped proposed espionage and secrecy laws in 1952.2

  The day before George Brandis left the AG’s job in February 2018, journalist Karen Middleton reported that he had told a closed meeting of ASIO officers that he feared the new departmental structure could make the intelligence organisation vulnerable to political interference.3 She said Brandis quoted from the Pezzullo speech cited above where he said that the state had to embed itself invisibly into global networks and supply chains, and the virtual realm, in a seamless and largely invisible fashion. Pezzullo’s words gave scant comfort to those concerned about growing totalitarian tendencies in Australia. However, we are yet to reach the American situation, where a two-year investigation concluded that 1271 US government organisations and 1931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the country.4

  Pezzullo, a passionate Catholic, said globalisation had created a ‘dark universe [in which] evil is becoming much more manifest … You can never stop thinking about how to improve your security settings [because] homes are no longer sealed off from the outside.’5 A former senior Defence official, Paddy Gourley, responded to Pezzullo’s almost apocalyptic vision of the future by noting that murder rates have gone down in Australia (as have overall crime rates). He said, ‘The main danger for people in their houses comes from their inhabitants; in the last 50 years, thousands of women in Australia were murdered in their homes by their partner.’6

  Pezzullo also said, ‘The very architecture of security has to be reengineered. This Home Affairs enterprise will, in effect, create the third force of security, the third pillar … [Its] security power is designed to protect the home front acting on a global scale, organised into a single enterprise to deal with the interconnected globalised threats that we face at home, recalling that home is not what it used to be.’7 It’s unclear what the second pillar is, but he says the first is Defence, which projects hard power abroad. Pezzullo set out what he saw as the seven major threats to Australia in the speech in March 2019. The list included Islamic terrorists, but not white supremacists.8 Two days later, an Australian white supremacist murdered 50 people praying in two Christchurch mosques in New Zealand.

  Home Affairs has not merely overseen the existing security laws: it has taken the lead role in creating new legislation to feed new forms of multifaceted information about individuals into its centralised databases. It led the push to adopt new ‘identity matching’ legislation that lets it amalgamate and disseminate a wide range of biometric and other identifying information on most Australians. Although not always accurate, facial-recognition technology is applied to photos from passports, drivers’ licences, and so on.9 The program is expected to incorporate other biometric and fingerprint data. No warrant is needed for approved agencies to gain access.

  A researcher with Human Rights Watch warns that Home Affairs has broad powers to add and share new identity-matching information,10 while the Law Council cautions that a strict line should be drawn between using identity matching to investigate seriou
s crimes, such as terrorism, and using it to fine jaywalkers and litterers. Otherwise, the council says, the system could ‘creep towards broad social surveillance of Australia’s citizens’.11

  Home Affairs was instrumental in introducing the draft bill in August 2018 to greatly expand the ability of security agencies and police to force people and companies to give them access to encrypted messages on their electronic devices and computers.12 The bill became law on 6 December 2018, with almost no time for proper parliamentary scrutiny of the final version. No other country has gone to such extreme lengths to force companies to alter their systems to facilitate access by the security agencies, and, as noted earlier, such alterations could potentially introduce damaging weaknesses.

  Middleton reported that when Pezzullo was giving evidence to the Parliamentary Joint Committee on Intelligence and Security, he downplayed concerns about the lack of external warrants to approve notices to companies to help an agency gain access to encrypted data. He gave a dismissive answer to the committee hearing on 19 October 2018: ‘If we were to say to you that a notice is a warrant, and through an incantation and the sprinkling of some magic dust on it, all of a sudden greater oversight was achieved—it’s the same person. It’s the attorney-general of the Commonwealth rigorously discharging their ministerial responsibilities.’13 However, it would be different if a court had to issue a warrant to make a company do something it insisted would introduce a weakness into its system. This would not be the same as letting a politician called an attorney-general sprinkle magic dust to ensure it was all legal and above board.

  On 16 November 2018, the inspector-general of intelligence and security, Margaret Stone, told the same committee when referring to the authorisation of notices, ‘This is not abracadabra. It’s not an incantation. It has to be real.’14 Stone also said she was ‘very concerned that the inspector-general’s office doesn’t appear in the legislation’ it was expected to oversight. Middleton made the point that the other members of the Five Eyes intelligence club (the US, UK, Canada and New Zealand) all received the draft encryption bill and were kept informed about what was happening, unlike Stone or the Commonwealth ombudsman, Michael Manthorpe. Apparently, Pezzullo’s priorities were to keep this Anglo-Saxon club happy rather than giving timely information to the Australian watchdogs whose responsibility it is to oversee the conduct of our intelligence and security agencies.