Understanding Australia’s Approach to Electronic Surveillance
November 14, 2023
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Executive Summary
- Agencies that conduct national-security surveillance. In Australia, a wide range of agencies conduct electronic surveillance for national-security purposes. The most important agencies are:
- The Australian Security Intelligence Organisation (ASIO), the primary domestic intelligence agency. ASIO conducts electronic surveillance for the purpose of collecting intelligence on malicious actors operating against Australia’s interests.
- This includes terrorist organizations, subversive political groups, and dangerous fixated individuals.
- In recent years, ASIO’s primary target has been foreign intelligence services and their affiliates operating in Australia, especially those operating on behalf of the People’s Republic of China (PRC).
- The Australian Signals Directorate, or ASD, which collects signals intelligence and conducts offensive cyber operations.
- ASD is largely limited to foreign targets; it cannot surveillance of domestic targets, but can provide technical assistance to other agencies that are authorized to monitor domestic threats.
- The Australian Secret Intelligence Service (ASIS), which is responsible for overseas human-intelligence collection and covert action. ASIS conducts electronic surveillance in support of its HUMINT operations, typically in collaboration with other agencies.
- The Australian Federal Police, which conducts electronic surveillance to investigate national-security offenses such as terrorism and foreign interference.
- The Australian Criminal Intelligence Commission (ACIC), which is responsible for disrupting and monitoring transnational organized criminal groups, including drug traffickers and cybercriminals.
- Subnational police agencies may also surveil national security targets, including terrorists and transnational criminal groups.
- The Australian Security Intelligence Organisation (ASIO), the primary domestic intelligence agency. ASIO conducts electronic surveillance for the purpose of collecting intelligence on malicious actors operating against Australia’s interests.
- Process and standards for approving surveillance. The process for authorizing surveillance is most permissive for foreign-intelligence collection targeting non-Australians and most stringent for domestic surveillance conducted by police agencies.
- Electronic surveillance by Australian’s foreign intelligence agencies, ASD and ASIS, require ministerial approval if they target an Australian. If not, senior agency officials can typically approve operations.
- Surveillance by other agencies usually requires a warrant.
- Warrants for surveillance conducted by ASIO, the domestic security service, can be approved by the Attorney General.
- Warrants for other agencies, including the Australian Federal Police and Criminal Intelligence Commission, require judicial approval.
- Oversight. Australia’s system features two types of oversight for the use of electronic surveillance for national-security purposes: operational oversight and programmatic oversight.
- Operational oversight evaluates whether individual instances of electronic surveillance were effective, lawful, and proportionate. Operational oversight entities include:
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- Compliance units within each of the operational agencies.
- The Commonwealth Ombudsman, who focuses on AFP and ACIC.
- The Inspector General of Intelligence and Security, which oversees the Australian Intelligence Community.
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- Legislative and other programmatic oversight operates at a higher level of abstraction, reviewing the effectiveness and proportionality of the enabling legislation. The most important such entitles include:
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- The Parliamentary Joint Committee on Intelligence and Security, which oversees intelligence agencies.
- The Parliamentary Joint Committee on Law Enforcement, which oversees surveillance activities conducted by law-enforcement agencies.
- The Independent National Security Legislation Monitor, typically a former judge, who reviews national security legislation and proposed bills to evaluate their effectiveness, probity, and proportionality.
- Royal commissions and independent reviews, two types of special inquiries convened by the Government to address pressing questions.
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- Operational oversight evaluates whether individual instances of electronic surveillance were effective, lawful, and proportionate. Operational oversight entities include:
- Surveillance laws. Australia’s electronic surveillance regime is codified in a suite of legislation laid down over the past fifty years and routinely refined by Australia’s Parliament.
- Australia’s Telecommunications and Other Legislation Amendments (Assistance and Access) Act, known as TOLA, enables agencies to leverage private companies’ technical capabilities for law enforcement and intelligence purposes. The law provides for three types of support:
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- Technical assistance requests, which indemnify companies that assist voluntarily.
- Technical assistance notices, which compel companies to use existing systems to support agency operations.
- Technical capability notices, which require companies to build new capabilities to support operations.
- When enacted, TOLA attracted criticism from some civil-society groups, who feared that it would facilitate mass surveillance and enable the government to break methods of encryption widely used by ordinary citizens.
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- Australia’s Telecommunications and Other Legislation Amendments (Assistance and Access) Act, known as TOLA, enables agencies to leverage private companies’ technical capabilities for law enforcement and intelligence purposes. The law provides for three types of support:
- Transparency. Transparency about how agencies use these powers is more limited.
- For law enforcement agencies, annual reporting provides the overall numbers of authorisations that are approved or refused, but offers little insight into the typical basis for refusal or key factors driving approval.
- Intelligence agencies release little quantitative data about their operations.
- Reforms. Australia is currently undertaking an initiative known simply as Electronic Surveillance Reform, or ESR. The reform would replace Australia’s existing electronic surveillance laws—which currently span multiple acts—with one consolidated piece of legislation.
- ESR is the most complex national security law reform attempted in forty years.
- The Australian government has undertaken an extensive public engagement program to explain the ESR initiative and solicit feedback.
