#notinmyhome

On 18 July 2017, the then-Prime Minister Malcom Turnbull announced that a new portfolio for Home Affairs would be established with the Hon Peter Dutton at its helm. The “Department of Home Affairs” was established on 20 December 2017 as a part of the Home Affairs Portfolio with the Department of Prime Minister and Cabinet’s justification that:

The establishment of the Portfolio brings together Australia's federal law enforcement, national and transport security, criminal justice, emergency management, multicultural affairs and immigration and border-related functions and agencies, working together to keep Australia safe.

?There are four operational agencies and bodies that have transitioned to the Portfolio:

?Australian Border Force (ABF)

Australian Criminal Intelligence Commission (ACIC)

Australian Federal Police (AFP)

the Australian Transaction Reports and Analysis Centre (AUSTRAC).

The Australian Security Intelligence Organisation (ASIO) will join the Portfolio following the passage of legislation.

The intention that underpinned the creation of this mega-intelligence portfolio and the consolidation of immigration, intelligence and security agencies was that “the new portfolio will be similar to the United Kingdom’s Home Office arrangement - a federation, if you will, of border and security agencies”. In his speech announcing the creation of Home Affairs, Prime Minister Turnbull clearly stated that:

“now let me be quite clear - this is not a United States-style Department of Homeland Security. The agencies will retain their current statutory independence, which is such a vital aspect of our Australian system” and continued that “now I understand that some of those who are concerned about the enhancement of our national security arrangements I am announcing today want to be assured that the civil liberties of Australians are not eroded… I am determined that the protections and oversight we’re establishing today on very strong foundations will remain a fundamental feature of our system. There will be stronger oversight, stronger oversight under these new arrangements”.

In my view, that was a promise made to the Australian community that:

1. Security agencies would remain independent under Home Affairs;
2. Civil Liberties would not be eroded; and
3. There would be stronger oversight of security agencies under Home Affairs.

In stark contrast to that promise, we have instead seen:

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• The rapid introduction of widely criticised surveillance legislation including the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (“TOLA”), the legislation to enable mass-biometric facial recognition being the Identity-matching Services Bill 2019 (“the Capability”), the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 (“the IPO Bill”) and the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (“the ID Act”).

• The Parliamentary Joint Committee on Intelligence and Security’s (“PJCIS”) recommendations being ignored on each of the abovementioned Bills. Concerningly, this also includes circumstances where the Government has supported recommendations but failed to implement them with a specific example being funding for oversight of the TOLA where the PJCIS recently noted that “[despite] the Committee’s recommendations in these inquiries, the Office of the Commonwealth Ombudsman said that funding has not yet been provided in relation to its oversight functions in the TOLA Act”.

• The PJCIS recently feeling sufficiently compelled to have to make the following recommendation (Recommendation 5) in its ‘Advisory report on the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020’

The Committee recommends that, where a Bill proposes to give operational or intelligence agencies specific new or expanded powers, those agencies should, in addition to providing input to any departmental submission, provide a separate unclassified submission to the Committee which should, at least, outline the necessity and proportionality of the proposed new or expanded powers. Such a submission should include, where appropriate, case studies on the current environment and how the use of any proposed new or expanded powers will assist the agency in the carrying out of its functions.

The Committee also recommends that the Department of Home Affairs not make any further submission to the Committee that purports to be authored by, or submitted on behalf of, the “Home Affairs Portfolio”.

• A large number of civil society organisations, academic and industry advocates making submissions to inquiries with serious concerns about the significant erosion of civil liberties that flow from the legislation being pushed by the Home Affairs Portfolio. Those submissions can be found in the inquiries into the TOLA, the Capability, the IPO Bill and the ID Act. As an author and co-author of submissions into each of these inquiries, I can attest to the hundreds of hours spent in producing comprehensive and considered submissions.

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• Concerns being expressed by all levels of review of Home Affairs powers, including:

1. The Independent National Security Legislation Monitor who stated in relation to TOLA that:

“in a number of respects the TOLA reforms fail to provide for adequate, or sometimes any, reporting or record-keeping. Trust is essential to the exercise of the powers conferred by TOLA and the public’s acceptance of them. Trust is eroded where the public has inadequate insight into or knowledge of the exercise of the powers. While confidential and sensitive information must be appropriately protected, that is not a licence to keep all such information from the public if it can be conveyed within limits”.

2. The PJCIS recommended, at Recommendation 1, in relation to the Capability that:

“the Identity-matching Services Bill 2019 be re-drafted taking into account the following principles:

???????????????????????????????????????????????????????????????????????????????????????????????????i.?????the regime should be built around privacy, transparency and subject to robust safeguards,

????????????????????????????????????????????????????????????????????????????????????????????????ii.?????the regime should be subject to Parliamentary oversight and reasonable, proportionate and transparent functionality,

??????????????????????????????????????????????????????????????????????????????????????????????iii.?????the regime should be one that requires annual reporting on the use of the identity-matching services, and

??????????????????????????????????????????????????????????????????????????????????????????????iv.?????the primary legislation should specifically require that there is a Participation Agreement that sets out the obligations of all parties participating in the identity-matching services in detail.

3. The PJCIS reiterated its concerns about oversight of the Home Affairs’ surveillance powers in a comment regard the IPO that:

The Committee considers that robust oversight arrangements provide assurance to the Australian community that these necessarily intrusive powers are used proportionately and appropriately to investigate and prosecute the commission of serious crimes and uphold Australia’s national security. The Committee, therefore, reiterates that an essential component of a robust oversight regime is adequate resourcing, and recommends that the Government ensure the Commonwealth Ombudsman has sufficient resources to oversee telecommunications powers.

4. In relation to the ID Act, the PJCIS recommended that:

“the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 be amended so that the issuing authority for all of the new powers introduced by the Bill, including emergency authorisations, must be a superior court judge (either of the Federal Court or a State or Territory Supreme Court), except for Account Takeover Warrants which may be granted by an Eligible Judge”.

In my view, this final recommendation was paramount and it was not adopted in the final reading of the Bill before it came law and these powers are authorised by warrant issued by an eligible judge or nominated AAT member.

It seems clear to me that the promise made by the Government about the role of Home Affairs, the oversight of its powers and the importance of not dismantling Australians’ civil liberties has not been kept. Unlike all other Western Democratic countries, Australia does not have an enforceable human rights framework at a Federal level that would enable citizens to check and balance these powers. Moreover, much akin to the United States Foreign Intelligence Surveillance Court, the power vested in Home Affairs appears to operate in the shadows.?

The importance of national security is clear to me; however, it's time for Australians to demand that a similar enthusiasm is put behind introducing a human rights framework. Such a task would be, in my mind, as simple as a Constitutional amendment to require that Australia maintains legislation that ratifies and makes available to its citizens the freedoms and protections afforded by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.