Lawyers warn proposal to spy on classes of Australians, not individuals, 'will be abused'

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EXCLUSIVE: The wide-ranging L'Estrange intelligence review includes a recommendation that would expand the powers of the country's overseas spy agencies to target Australians involved with terror groups.

Australia's overseas spy agencies would be given new powers to gather intelligence on "classes" of Australians with suspected links to terrorist organisations, under one of the recommendations of a government-commissioned review.

The powers would be designed to help the government track the activities of Australians fighting with terrorist groups overseas without the need to target specific individuals.

The agencies would be allowed to monitor Australians with any involvement with terrorist groups, not just formal members.

Foreign spy agency ASIS, the cryptographic intelligence agency ASD and the military mapping agency AGO would all be granted the new powers if the Turnbull government decides to enact Recommendation 16 of the L'Estrange Review.

A spokesman for the prime minister said no decision had been made, although other sections of the report have already been used as the justification for setting up a new Office of National Intelligence.

Under current laws, only ASIS can target "classes" of Australians, and only if the agency is helping the Australian Defence Force.

But the L'Estrange Review recommends removing that limitation and instead allowing surveillance of classes "irrespective" of whether or not it is in aid of Defence, for a period of up to six months that could be renewed.

The agencies would need the approval of the relevant minister before gathering intelligence.

The foreign minister Julie Bishop is responsible for ASIS, while the AGO and ASD will soon both fall under the Defence department, controlled by minister Marise Payne. Those ministerial authorisations would also need the approval of the Attorney-General.

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L’Estrange promises safeguards

The co-author of the review Michael L'Estrange said his recommendation included protections to prevent spy agencies abusing their powers.

"We've actually built into that recommendation some very important safeguards," Mr L'Estrange, the former head of the foreign affairs department, told ABC Radio on Wednesday.

He said the agencies would be required to maintain a list of the Australians in the group under surveillance that would be monitored by the Inspector General of Intelligence and Security.

The ability to target groups of people rather than individuals was important in the age of ‘lone wolf’ terror attacks, he said, and when more and more Australians are associated with terrorist groups overseas.

“Doing it on an individual basis can be slow, and it needs to be extremely agile and nimble in response to the challenges that we face,” he said.

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Lawyers slam ‘McCarthyist’ overreach

A number of lawyers have expressed concern the powers would be “abused” and that the information gathered about Australians overseas could easily be fed back to domestic agencies, like the police and ASIO.

“Without proper judicial scrutiny, these powers will be abused,” Greg Barns, of the Australian Lawyers Alliance, told SBS World News.

“There's absolutely no evidence that the security threat in Australia is such that you need this enormous expansion of powers.”

“This McCarthyist overreach, it didn't work in the 1950s and it won't work now.”

Mr Barns said he was concerned people would be targeted on the basis of their religion or race.

“This is a return to the era where people who are said to have met with someone who may have a link to particular association are then targeted.”

The Intelligence Services Act 2001 – which regulates ASIS, the AGO and the ASD and is the law that would be amended by the proposal – already allows the foreign spy agencies to share information with their domestic counterparts, at both the state and Commonwealth level.

Rob Stary, a defence lawyer in Melbourne with experience representing returned foreign fighters, said Australia’s spy agencies “work hand in glove” with the domestic police.

“It’s naïve to think there is a separation of roles. That just doesn’t happen.”

Foreign fighters regularly have their communications with their families tapped by agencies that do have warrants, he said.

“People would be alarmed if they knew how much information the government compiles against individuals when they’ve not been engaged in any wrongdoing,” Mr Stary said.

“I’m alarmed by it.”

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