Why ASIO Needs Power To Pry

The recent plans to give ASIO access to taxation and financial transaction records pose little apparent threat to privacy and civil rights, suggests Geoffrey Barker.

Government plans to expand the powers of Australia's covert domestic intelligence agency will inevitably and properly concern groups and individuals sensitive to privacy and civil rights issues.

So it is perhaps surprising that little detailed attention has yet been paid to legislation now before Federal Parliament to give the Australian Security Intelligence Organisation (ASIO) access to taxation and financial transaction records as well as to other advanced investigative techniques, including computer hacking.

How the issue plays out may well be determined by public hearings on the legislation to be conducted next month by the Joint Parliamentary Select Committee on ASIO. Certainly ASIO has a large stake in the legislation: effective counter-espionage activities increasingly require access to financial records and to computer intrusion.

Two questions arise. Do the Government's proposed amendments to the ASIO, Financial Transaction Reports and Taxation Administration acts really threaten the privacy and civil rights of Australians? And what public benefits are likely to flow from the proposed amendments?

On balance it seems clear that safeguards built into the legislation ensure that Australia has little to fear from what will be the first changes to ASIO's powers since 1986. Indeed, given technological innovations since 1986, Australia could gain more in terms of protection from espionage than it might lose in privacy terms.

There may be legitimate concerns, especially over ASIO's having legal access for the first time to financial transaction and tax records. But Australians can take comfort from the checks and constraints under which ASIO will have access to tax information and to financial transaction reports prepared by the Australian Transaction Report and Analysis Centre (AUSTRAC).

To access tax data, ASIO will need the consent of the Attorney-General and the agreement of the Taxation Commissioner. The watchdog Inspector General of Intelligence and Security (IGIS) will have oversight. Moreover, the head of ASIO will have to be satisfied that the tax information being sought is necessary before approaching the Attorney-General for a warrant.

ASIO access to AUSTRAC data will also be constrained. Unlike State police forces, ASIO will not have online access to the data designed to keep track of suspicious money transfers. ASIO will be unable to "trawl" AUSTRAC files; it will have to say what it wants and why it wants the data and ASIO officers will have to collect the material physically from AUSTRAC's Sydney premises. Again, the IGIS will have oversight.

These limited expansions of ASIO's power are necessary and justified because modern espionage, as recent US cases have shown, is often detected through individual financial records. People get paid and spend money. Comparing spending patterns with income can provide intelligence agencies with vital insights.

Other amendments that will allow ASIO to hack into computer systems, install tracking devices and penetrate private delivery services are driven by technological changes since the 1986 amendments to the ASIO Act. ASIO already has powers to enter computers under its search and enter powers; the new amendments will merely enable it to access computer data remotely and with less physical peril.

Despite the limited nature of the amendments, there are bound to be lingering suspicions about enhancing the powers of an organisation which works in the shadows and which in the past has played fast and loose with the rights of many Australians, especially those on the political Left.

Yet quite apart from the external checks to which ASIO is now subject (Parliamentary hearings, the IGIS and media scrutiny), the recent report on data encryption technologies prepared by the former ASIO deputy director-general, Mr Gerard Walsh, provides considerable reassurance about contemporary ASIO attitudes towards individual rights.

Mr Walsh warned that data encryption now provided "a powerful shield behind which criminals and others may operate". But he argued against what he called "major legislative action" to safeguard law enforcement and national security interests (and the current amendments do not deal directly with encryption issues).

Instead, Mr Walsh noted with apparent approval that data encryption was helping to shift the balance of advantage from the pervasive modern State back towards individual citizens, acknowledging that "our time is characterised by a mistrust of all powerful institutions which seek to limit the freedoms of ordinary citizens".

It was an enlightened observation and it suggests that contemporary ASIO accepts that it has too much to lose to go outside the law. The amendments now being proposed would in no way tempt it to do so.