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George Brandis may target returning jihadists with retrospective laws George Brandis may target returning jihadists with retrospective laws
(about 2 hours later)
The Abbott government will consider retrospective laws to deal with the risk posed by jihadist fighters returning to Australia, after a first round of national security reforms boosting the powers of intelligence agencies and punishing officers who remove secret material.The Abbott government will consider retrospective laws to deal with the risk posed by jihadist fighters returning to Australia, after a first round of national security reforms boosting the powers of intelligence agencies and punishing officers who remove secret material.
The attorney general, George Brandis, has also indicated the Coalition is yet to make a final decision about mandatory data retention laws – a legal regime that would mean the private communications data of Australians is held by telco companies for two years or more – but Australia’s top spy is strongly pushing the government in that direction.The attorney general, George Brandis, has also indicated the Coalition is yet to make a final decision about mandatory data retention laws – a legal regime that would mean the private communications data of Australians is held by telco companies for two years or more – but Australia’s top spy is strongly pushing the government in that direction.
Brandis said further legislation to deal with the issue of Australian jihadists fighting in Iraq and Syria would be introduced in the spring sittings of parliament, adding to the first tranche of national security legislation to be presented to the Senate on Wednesday. Brandis said further legislation to deal with the issue of Australian jihadists fighting in Iraq and Syria would be introduced in the spring sittings of parliament, adding to the first tranche of national security legislation presented to the Senate on Wednesday.
Asked whether those measures could have retrospective effect to allow the prosecution of people already overseas who return to Australia, Brandis said the decision was yet to be made.Asked whether those measures could have retrospective effect to allow the prosecution of people already overseas who return to Australia, Brandis said the decision was yet to be made.
“Let's not get ahead of ourselves. I am reviewing these laws as we speak,” Brandis said.“Let's not get ahead of ourselves. I am reviewing these laws as we speak,” Brandis said.
“Ordinarily, it's not the Australian government's view that there should be retrospective legislation but all aspects of the matter will be taken into account in the review. No such decision has been made.”“Ordinarily, it's not the Australian government's view that there should be retrospective legislation but all aspects of the matter will be taken into account in the review. No such decision has been made.”
David Irvine, the chief of the Australian Security Intelligence Organisation (Asio), confirmed that “tens” of Australians had already returned from fighting but he would not comment on whether they were in the community and being actively monitored or subject to some other action.David Irvine, the chief of the Australian Security Intelligence Organisation (Asio), confirmed that “tens” of Australians had already returned from fighting but he would not comment on whether they were in the community and being actively monitored or subject to some other action.
About 60 Australians were currently fighting in Syria and agencies were also looking at about 150 people in Australia who had inclinations to support the extremist movements, Irvine said. About 60 Australians were now fighting in Syria and agencies were also looking at about 150 people in Australia who had inclinations to support the extremist movements, Irvine said.
It is already illegal for an Australian citizen to enter a foreign state and engage in hostile activity, but police and security agencies have highlighted gaps that make it hard to gather evidence to enable the prosecution of returning fighters.It is already illegal for an Australian citizen to enter a foreign state and engage in hostile activity, but police and security agencies have highlighted gaps that make it hard to gather evidence to enable the prosecution of returning fighters.
Earlier this month Brandis flagged a potential change that would enable the government to “certify” a particular region or a particular conflict “so that if it is demonstrated that an Australian has returned from that region, there can be a presumption that they were there for no good purpose”. This is likely to make it easier for Australian authorities to detain and prosecute people. This month Brandis flagged a potential change that would enable the government to “certify” a particular region or a particular conflict “so that if it is demonstrated that an Australian has returned from that region, there can be a presumption that they were there for no good purpose”. This is likely to make it easier for Australian authorities to detain and prosecute people.
Following weeks of government rhetoric about the need to reform laws to deal with national security threats, Brandis abandoned plans to scrap the independent national security legislation monitor – an oversight body that faced the axe as part of the Coalition’s “red tape” repeal day. One of the Liberal party’s natural allies, the Institute of Public Affairs, warned against the “entirely unjust” prospect of retrospective laws and described mandatory data retention as a “very significant expansion” of the surveillance state.
Simon Breheny, director of the thinktank’s legal rights project, said it was a basic principle that people should be aware of their legal obligations without having those rules changed after the fact.
“It really doesn’t matter what area of law you’re talking about and it doesn’t matter whether you’re going after the worst bad guys; the principle should always be that retrospectivity is something that is not just avoided but never even contemplated,” he said.
After weeks of government rhetoric about the need to reform laws to deal with national security threats, Brandis abandoned plans to scrap the independent national security legislation monitor – an oversight body that faced the axe as part of the Coalition’s “red tape” repeal day.
The decision to keep the monitor represents a concession to Labor, which had signalled its willingness to work constructively with the government on national security reforms so long as the oversight regime was not weakened.The decision to keep the monitor represents a concession to Labor, which had signalled its willingness to work constructively with the government on national security reforms so long as the oversight regime was not weakened.
The legislation to be presented to the parliament on Wednesday afternoon will largely implement the recommendations outlined in chapter four of a report completed more than a year ago by the parliamentary joint committee on intelligence and security (PJCIS). The same committee will review the bill by September when a vote is expected. The legislation presented to the parliament on Wednesday afternoon would largely implement the recommendations outlined in chapter four of a report completed more than a year ago by the parliamentary joint committee on intelligence and security. The same committee will review the bill by September when a vote is expected.
As previously reported, the bill would allow Asio to use a third-party’s computer to access data in a target system. It would allow the overseas intelligence agency, the Australian Secret Intelligence Service (Asis), to collect information about Australians overseas and share it with the domestic agency, Asio. As previously reported, the bill would allow Asio to use a third-party’s computer to access data in a target system. It would allow the overseas intelligence agency, the Australian Secret Intelligence Service, to collect information about Australians overseas and share it with the domestic agency, Asio.
Brandis said the bill would also fill a gap in existing legislation whereby it was not unlawful for an officer of Asio to illicitly copy or remove material from Asio.Brandis said the bill would also fill a gap in existing legislation whereby it was not unlawful for an officer of Asio to illicitly copy or remove material from Asio.
He said it was already an offence for officers to disclose confidential information to a third party, punishable by up to two years in jail. That penalty would increase to 10 years.He said it was already an offence for officers to disclose confidential information to a third party, punishable by up to two years in jail. That penalty would increase to 10 years.
The new offence of illicitly copying or removing intelligence material would carry a jail term of up to three years, Brandis said. The new offence of illicitly copying or removing intelligence material would carry a jail term of up to three years, Brandis said. He said these information disclosure changes went beyond the recommendations of chapter four of the joint committee’s report, but were not driven by any particular incident.
He said these information disclosure changes went beyond the recommendations of chapter four of the PJCIS report, but were not driven by any particular incident. Further legislation dealing with terrorism-related criminal offences is expected to be presented to parliament after the winter recess.
The bill will be referred to the PJCIS for review and report by early September ahead of the expected parliamentary vote. Further legislation dealing with terrorism-related criminal offences is expected to be presented to parliament after the winter recess.
Brandis said the possibility of introducing data retention laws was “under active consideration by the government”.Brandis said the possibility of introducing data retention laws was “under active consideration by the government”.
A mandatory data retention scheme would require telephone companies and internet service providers to hold onto customers’ details for a specified period of time. A mandatory data retention scheme would require telephone companies and internet service providers to hold on to customers’ details for a specified period of time.
Brandis said such action reflected “the way in which western nations are going” but added that it was “not a decision Australia has yet made”.Brandis said such action reflected “the way in which western nations are going” but added that it was “not a decision Australia has yet made”.
Irvine gave a strong signal, however, that Australia’s intelligence community was arguing the case for the government to push ahead with data retention, describing such measures as “absolutely crucial”.Irvine gave a strong signal, however, that Australia’s intelligence community was arguing the case for the government to push ahead with data retention, describing such measures as “absolutely crucial”.
“As there is increasing sophistication in communications almost every Asio investigation and a very large number of law enforcements investigations depend at least in the first instance on access to retained data,” Irvine said. “We don’t collect it and retain it ourselves.”“As there is increasing sophistication in communications almost every Asio investigation and a very large number of law enforcements investigations depend at least in the first instance on access to retained data,” Irvine said. “We don’t collect it and retain it ourselves.”
The Greens vowed to fight any effort to bring forward a data retention regime.The Greens vowed to fight any effort to bring forward a data retention regime.
The Greens senator Scott Ludlam said intelligence-gathering powers should be targeted and proportionate “without indiscriminately placing all Australians under surveillance”.
Ludlam called on the revived national security legislation monitor to scrutinise the first bill, saying he was concerned the expanded powers “may allow Asio to implant spyware on computer networks operated by entirely innocent bystanders”.
“A bill expanding Asio’s powers has become an almost annual event, with privacy protections lagging far behind,” he said.
Earlier on Wednesday the opposition leader, Bill Shorten, said Labor would cooperate with the government on law reforms but stressed the “need to have a diligent and effective independent monitor to ensure there are no abuses of national security”.Earlier on Wednesday the opposition leader, Bill Shorten, said Labor would cooperate with the government on law reforms but stressed the “need to have a diligent and effective independent monitor to ensure there are no abuses of national security”.
A short time later Brandis said the independent national security legislation monitor would be retained given the “extensive new legislation” on its way.A short time later Brandis said the independent national security legislation monitor would be retained given the “extensive new legislation” on its way.
Brandis said the previous decision to scrap the monitor, an office previously held by Bret Walker SC, was budget-related and “not something we particularly wanted to do”.Brandis said the previous decision to scrap the monitor, an office previously held by Bret Walker SC, was budget-related and “not something we particularly wanted to do”.
The shadow attorney general, Mark Dreyfus, said the government had erred by “labelling one of the safeguards that protect the rights of the Australians as red tape”. The shadow attorney general, Mark Dreyfus, said the government had erred by “labelling one of the safeguards that protect the rights of the Australians as red tape”. He called on the government to act quickly to appoint a replacement for Walker, whose term expired.
The independent MP Andrew Wilkie, a former employee of the Office of National Assessments, said the government should allow more time for its bill to be scrutinised. Wilkie said mandatory data retention would make the job of security services easier but also represented “an unprecedented extension of the power of the state”.
“We need to be very careful at times like this,” he told Sky News. “We do live in a risky world … but the question is how far do you go? If you ask the intelligence and security agencies what powers they want, they will ask for the world, but you can’t give them the world … Whatever we do there have to be safeguards.”
Brandis said he was proceeding cautiously rather than rushing through changes because the government should act to protect public safety in a “careful and considered” manner.