Submission No. 5 - Privacy - New South Wales
Submission to the Parliamentary Joint Committee on the
Australian Security Intelligence Organization on the Australian
Security Intelligence Organisation Legislation Amendment Bill 1999
As Privacy Commissioner I appreciate the opportunity
to make a brief submission on the proposed bill. In the time available
for submissions it has not been possible to explore issues raised by the
amendments. The major claim on the resources of my office at present is
being devoted to the commencement of New South Wales privacy legislation.
I would therefore prefer not to make a commitment to expand on the propositions
contained in this submissionin evidence before the Committee.
The provisions of the Bill could be said to increase
ASIOs powers by conferring specific powers which have not been previously
legislatively codified. There is an arguable public interest in ASIO having
the formal power to cover the kind of activities that are reasonably necessary
to investigate and detect threats to national security, subject to appropriate
accountability provisions. Accordingly there seems little point in addressing
each of the proposed new powers in detail in an attempt to determine whether
it is reasonably justified.
However, taken together, the existence of such powers
and the possibility that they will be widely can be seen to undermine
peoples reasonable expectations of privacy. Without conceding that these
powers are acceptable from a privacy point of view, it is probably more
constructive seek to resolve this impasse by developing the two areas
of trust and accountability in relation to ASIOs activities.
I am aware that the legislation currently being considered
by the Joint Committee provides limited opportunities to consider these
two issues of increased trust and accountability. However I would suggest
that it is unreasonable to suppose that one can assess the impact of increased
powers without drawing back and reviewing the overall framework in which
these powers are to be exercised.
On the one hand, it may possible to promote greater public
trust in ASIOs ability to exercise its powers responsibly and in a way
which does not intrude on individual to a greater extent than is necessary.
This would be achieved by a more candid and open discussion of the need
for increased powers, for example the power to intercept mail carried
by a delivery service or to alter programs or data on a target computer.
ASIOs activities are largely exempted from the Privacy
Act. Recognising this the Inspector General in his 1990-1991 Report, reported
that ASIO was preparing a privacy policy for internal use. I am not aware
of whether this policy was ever finalised. The policy should be published
or republished, given a higher public profile and if necessary reviewed
in the light of the increased powers conferred by this legislation.
Trust would also be promoted by more comprehensive public
reporting, for example in relation to the issue of ministerial warrants.
There can surely be little objection to aggregated reporting on the extent
to which recognised legal powers are made use of where this is not done
in a way which might disclose individual investigations.
Accountability could be seen to reinforced in some respects
in the proposed legislation by the creation of new prohibitions on the
disclosure of taxation and financial transaction legislation and by the
extension of the warrant system for specified activities. These provisions
could be further strengthened.
For example the system of ministerial authorisation of
warrants should be reviewed. As an accountability measure it inspires
limited confidence given that ministers are likely to be apprehensive
about the potential political fall-out should they decline to issue a
warrant. The expansion of the circumstances in which warrants can be issued
calls for a more arms length process using judicial officers. The confidence
in judicial officers as best able to assess the scopes of the organisations
activities have already been demonstrated by the Hope Royal Commissions
into ASIO.
So far as the proposed restrictions on disclosure of
taxation and financial transaction information are concerned, there is
potential conflict between the anticipated privacy benefits and calls
for greater accountability. It could be asked, how individuals can be
protected against the misuse of their financial information if there is
no way of reporting this to outside bodies. On balance I would consider
that the benefit to be obtained from removing the temptation to disclose
the financial details of political opponents and other people of interest
overrides the loss of accountability which might arise from being able
to identify the persons about whom such information is obtained and used.
An issue of some topical interest to the people of New
South Wales relates to the communication of information by ASIO to state
police services. This is not a topic on which it is easy to make informed
comment given the confidential nature of these information exchanges.
Some light was shed on the topic as a result of the 1985 Judicial Inquiry
into the convictions of Alister, Dunn and Anderson and the temporary release
of the Hilton Bombing Archives by the New South Wales Government in 1995,
which included ASIO assessments provided to the New South Wales Police
Special Branch.
As a result of evidence before the Wood Royal Commission
into the Police Service, the New South Wales Special Branch was closed
in March 1997. The final Report of the Royal Commission found that the
Special Branch lacked accountability, operated an ineffective and outdated
intelligence system, had limited investigative success and opened dossiers
and files on people who could not reasonably be of interest to the Branch.
The circumstances of the Branchs closure raises the question of how far
there is effective accountability for information provided by ASIO to
state police services.
The Privacy Committee, whose powers I inherit, maintained
an interest in the information handling processes of the Special Branch
from the time of the Committees 1978 report into Branch records up until
the time of the Branchs closure and the disposal of its records. The
following observations are based on the experience of the staff of the
Committee in trying to establish the parameters of Branch accountability.
Communication of information held by ASIO to state police
services is primarily covered by section 19 of the Act and indirectly
covered by section 40 (with the amendment to section 40(1) in the proposed
legislation dealing with assessments in relation to prescribed administrative
action). The exchange of information between ASIO and police services
is also regulated by memoranda of understanding between the Commonwealth
and states. The terms of some of these memoranda have been published,
but this has occurred on what appears to be an essentially haphazard basis.
I would suggest that proper accountability in this area requires at least
ready public access to the terms on which information is exchanged and
the responsibilities attaching to the process.
Christopher Puplick
Privacy Commissioner.
A copy of this submission is also available from the
Committee Secretariat.
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