By Professor George Williams and Keiran Hardy -
Snapshot
- The National Security Legislation Amendment Act (No 1) 2014 (Cth) allows ASIO officers operating under a single ‘computer access warrant’ to access data held on multiple computers and computer networks
- The Act creates a ‘special intelligence operations’ regime which grants ASIO officers immunity from civil and criminal liability for unlawful acts done in the course of specially approved undercover operations. Immunity will not be available for acts that cause death or serious injury, involve the commission of a sexual offence, cause serious property damage, or constitute torture
- The Act significantly strengthens existing offences for the disclosure of classified information by intelligence officers, and creates new offences that apply to the copying or recording of classified information. It also penalises the disclosure of any information relating to a special intelligence operation, which poses a risk to journalists reporting on ASIO’s activities
On 1 October 2014, the National Security Legislation Amendment Act (No 1) 2014 (Cth) (NSLAA) passed both Houses of Parliament. The Act is the first of three tranches of national security legislation to be introduced this year by the Abbott Government. Together, they represent the most significant package of anti-terrorism measures since the 2005 London bombings.
The NSLAA is the result of an inquiry into Australia’s national security legislation by the Parliamentary Joint Committee on Intelligence and Security (PJCIS).
That inquiry was undertaken at the request of the previous Labor Government and focused on whether the surveillance and intelligence gathering powers of Australia’s intelligence agencies needed to be modernised in line with technological developments.
In this respect, the NSLAA differs from the second and third tranches of legislation, in which the Abbott Government will put its own stamp on counter-terrorism law.
The second tranche (dealing with the threat of returning foreign fighters) has been introduced into parliament and has been the subject of another PJCIS inquiry, while the government is expected to introduce the third tranche (relating to mandatory data retention) before the end of the year.
The NSLAA makes a large number of amendments to the legal framework surrounding Australia’s intelligence agencies.
Many of these are technical and uncontroversial, such as renaming the defence intelligence agencies and updating employment conditions for officers of the Australian Security Intelligence Organisation (ASIO).
In three key areas, however, the NSLAA introduced substantive new powers and offences which are of much greater concern.
These changes significantly increase the ability of Australia’s intelligence agencies to gather intelligence on Australian citizens, and to keep those activities secret.
