Constitutional Law – Government Security Agency And Constitutional Validity

Government Security Agency

Introduction

Discussing Constitutional law, Hon Justice Kirby Michael highlights the achievements made by the law while pointing at the need to do things in a better way[1]. Citing the words of architects of the American Declaration of Independence, he disregards the deprivation of justice in the name of ‘insufficient funds’. In his opinion, freedom goes hand in hand with security of justice. At a time when the administration of the Australian Government Security Agency is facing criticism of being redundant there is need to re-examine the emerging laws. This issue seeks to:

• Determine the validity of the proposed Government Security Agency ( referred to as Agency) in Australian system
• Highlight the importance of agency funding and its challenges
• Discuss separation of power between the agency and
• Analyse responsible government

This discussion examines the evolving constitution with reference to the separation of powers and consequences of constitutional changes. The bill looks at national security and foreign intelligence with issues, offences and protection of freedoms[2]. The interrelationship between different agencies explores constitutionalism as a theme in modern government decisions. The success of an instrument of power in government depends on its compliance, operational activities and practices.

Section 3.2 of the new proposed bill defines national security with reference to offences like foreign interference[3] . This gives the bill a foundation in national defence, international relations and a connection between the political, military and economic systems. The security agency affects different bodies in national security. For example, the Australian Intelligence service has six agencies including. These are, The Australian Security Intelligence Organisation (ASIO), Australia Secret Intelligence Service (ASIS), Australian Geospatial Intelligence Organisation (AGO), Defence Intelligence Organisation (DIO), Australian Signals Directorate (ASD) and Office of National Assessments (ONA)[4]. This agency presents annual report to parliament on the operation of the agencies and parliamentary oversight on expenditure in intelligence and security. Similar to the intelligence unit, the new bill proposes an organ that deals with espionage, terrorism, foreign interference and sabotage.[5] This bill addresses national security as “….relevant to the security and defence of a country… and national security of a foreign country”.[6]

An analysis of this definition with a comparison of successful agencies in the Australian system highlights its strengths and weaknesses. The Criminal Code Act of 1995 defines the elements of an offence citing geographical jurisprudence and conduct of an offender in a territory[7]. From the standard jurisdiction in Division 14, an offender is Australian in part or in wholeness or on an Australian aircraft or ship. This excludes the offender in a foreign country. However, Division 15 of the Code includes jurisprudence in extended geographical areas. The Act covers the offences under the Commonwealth Law. The dynamic challenges in international crime creates a new demand for fresh laws that tackle modern day crime against the state[8]. The bill addresses these challenges with an emphasis on espionage and international interference. The bill may appear to be a repetition of the ASIO but drafters argue that there is an increase in secrecy offences, espionage and interference cases. Borrowing from other developed countries like China, Korea and Russia, the bill presents solutions amidst challenges in the political processes and sovereignty matters.

Blackshield & Williams (2010) presents case examples on constitutional law including the Boilmakers case featuring RV Kirby[9]. In this high court case, separation of powers emerges as a challenge to enforcement of a law. The case makes recommendations against the unconstitutional use of excessive power in the name of constitutionalism. Critics of the new bill cite excessive functions allocated to the security system making it irrelevant hence redundant. Research into issues covered in the new bill highlights terrorism as one of the crime acts involving Australia and foreign relations[10]. Politically motivated crime threatens national security hence espionage cases. The introduction of the 2011 Telecommunication Interception and Intelligence Services Legislation Amendment Bill came amidst global concerns of interferences in cyberspace. [11] This bill reinforces other local bills targeting national security challenges such as corruption. [12]The cooperation between agencies under national law for national security explains Hon. McClelland Roberts’s quest to empower ASIO, Defence agencies and Geospatial Organisation.[13]

Separation of Powers

The widening scope of national security to incorporate foreign law incorporates, individual, public global, and terrorist organization[14]. From this analysis, questions of ambiguity in the provisions arise. Among these are the political and economic aspects affecting the legal provisions. Amendments for clarity prevents costly mistakes that could damage an organization reputation, individuals or criminalised groups. Expanding national security to incorporate more practices means an increase in government budget. This raises questions of whether the taxpayer is willing to accommodate this new addition[15]. It is imperative that the government makes decisions based on public interest, necessity and legitimacy. Under the Australian constitution, the citizen protection from tax liability features in the Judicial Review Administrative Decisions Act of 1977. [16]Its interpretation defines an Act with enactment that includes international issues.

Part 1 of the Agency Bill identifies the recruitment and employment of government agents with more training for the Australian Police service. Part 3 of the bill also has a monthly surcharge of $ 1000 on government contractors with property in Canberra, Darwin, Townsville, Brisbane and Perth.[17]Applicants to the Government Security jobs are also liable for a $100 fee and employees. With reference to the 1942, Uniform Tax Case the constitution allows Parliament to impose taxation with provision for grant applications[18]. Questions about sources of revenue to sponsor this new office emerges. This bill shows a gap between the formation of new laws and the amendment existing ones. An identical bill is a recipe for criticism based on grounds of proportionality, a principle of right and competing interests.[19]This explains why there is controversy over the bill and interference with the prima facie. 

An example of this is in the Federal Case (1998) 194 CLR 355 featuring Project Blue Sky v Australian Broadcasting Authority.[20]In this case, judges applied wide interpretation of statutes in an effort to give clarity in the midst of conflicting provisions. In the case, there was need to clarify inconsistencies in the stated Act. Coherence and statutory interpretation raises concerns about the costs and benefits of the law.  [21]Among the cases dismissed by the high court because of unfairness is the Paciocco v Australia and New Zealand Banking Group Ltd.[22] In the case, the penalties for a litigation were unenforceable because of a rejected notion that had conflicting laws. In the preliminary judgement, issues of payment on the fees and penalties presented unfainess.[23]The process of making law in Australia involves time spent analysing bills. The formation of the ‘Agency’ bill involves an interconnection between interstate legislation, foreign affairs and taxation. The amendment of the said bill indicates proposed new charges which present a new burden to the people affected.

Political interference in Constitutional law is common and involves separation of power in the main organs of government. Conferring powers to the public service and the dismissal of holders of Government Security personnel on grounds that they hold unsound political doctrines is controversial.[24]  In a high court case between Cunningham v Commonwealth, politicians stood in support of statutes that favoured them.[25]Conflict of interest arises when there is interference in roles and emerging principles. This principle supports responsible government trough the cooperation between the Agency and the lawmakers. Although parliament is responsible for making laws, the Bill gives the Agency a role of managing the lawmakers on grounds of security. In the proposed ‘Agency’ bill, Members of Parliament, Senators, Staff and aspiring politicians declare their background information for approval by the Agency. This may have consequences and raises concerns about the delegated legislation in which the Act of Parliament bestows powers to an “Agency”.

Constitutional Validity

Constitutional Case number CLR 559 featuring ASIC v Endensor Nominees Pty Ltd raises questions about the role of government officers and statutory agencies . [26]In the case, legal statutes empower administrative systems. For effective government institutonal design of the proposed ‘Agency’accountability is prime. By empowering the Minister for Government Security the Bill adheres to separation of power in which the administrative part of government works within its limit to support parliament. Despite existig challenges, both Parliament and the Agency face limitations. Although the bill is valid in law, there is need to address overlapping functions that could create a rift between the Executive, Legislature and Judiciary. For example, it is necessary to address Part 4d which mentions the dismissal of emmployees with divergent political views. This is bound to interfer with the legal provisions of the freedom of expression in accordance to Article 19 of ICCPR[27]. In this article, all citizens have a right to hold an opinion without facing interferences. However, the article also gives restrictions based on respect for other peoples opinion and national security issues. In this case the ‘Agency’ bill makes the restrictions in line with the protection of national security.

The case between Melbourne Corporation v Commonwealth highlights separation of power at the federal level. [28]The case refers to the Constitution of Australia in relation to the Melbourne Corporation which limited legislative powers. In the case valid law under the Commonwealth umbrella needs to recognise the role of the state when exercising function. In adressing separation of powers, the division of powers arises. In this case, the bill has to address jurisdiction at the Commonwealth as well as the state level. As a federal law the Government Security Agency seeks to recruit enforcement officers withn roles similar to the Australian Federal Police. In this case, clarity in the separation  of pwers is key. Coordination of activities to address both domestic and international law matters is a complex implimentation process.  In addition to other security agencies this new bill proposes the inclusion of a security agency dealing with public officers. Coordination challenges arise because law enforcement and strategic implimentation involves prioritization.

Australia’s espionage laws require constant updates because of the emerging trends in terrorism. Lack of loyalty from public servants explains the increase in unethical practices. This calls for structural changes to address serious issues and responsibilities.[29] In the proposed Agency bill, a person serving as a public official should not be party to any sabotage or espionage, or foreign interference cases. [30] Responsible government entails accountability in decision-making and performance. In order to gain public confidence, the bill needs to make constitutional significance. Issues relating to the Agency and its interception of the telephone and emails could raise concerns about privacy matters. There is need for separation of powers in terms of the administrative functions. This is critical in the delivery of this concept. Dealing with the contentious issues ensures that the right agency addresses the subject matter but it is also important to consider individual rights and freedoms. Addressing matters arising is also important for future interpretation of the bill and its application as a constitutional law. 

Foreign Interference and Espionage

The bill also mentions the need to have a Government Security ID card. This is critical for the safety of staff and agency systems. However, the mandate to influence the executive organ rests on the effectiveness of the legislature. The execution of powers of the Executive under the Governor-Generals office includes the powers of ministers[31]. This should be clear from the involvement of Parliament and Judicial agencies. Failure to demarcate the roles brings conflict in the implementation process. The fact that the Agency requires those aspiring to join politics to submit details about their nationality and religion is contentious because Section 116 of Chapter IV of the constitution Supports individuals freedom of religion[32]. However, in an era where cloud computing and internet networks are popular communication tools, privacy and cybersecurity become an issue. Guarding information at the Security Agency is one way to manage emerging threats in the communication sector. However, parliament cannot ignore issues about legislating the law within different locations. With reference to Part 2 ii) detaining MPs, Senators and the Parliament staff brings an overlap between the judicial powers and the Executive. The security agency does not hold judicial powers and mistakes arising from its application presents validity challenges as seen in the Minogue v Victoria (2018) HCA 27.[33]The use of biometric data also compromises privacy because it exposes people’s background information, health and physical information. Exposing personal information in the era of technology development is inevitable but it breaks trust. In Plaintiff M174/2016, v Minister for Immigration and Border Protection failure to comply with the legal directives could lead to jurisdictional error[34].

Responsible government means implementation of constitutional changes in response to emerging issues of public concern. The amendment refers to the establishment of a new agency to deal with a wide array of issues. The inclusion of exceptional circumstances highlights the significance of security at the local and international level. The increased emphasis on terrorism and espionage cases explains the details in Part 1-4.  Security as an issue of national concerns involves numerous agencies. Although the bill proposes solutions to modern day insecurity challenges, it needs wide scale consultation on technical issues such as the enforcement in an IT environment.[35]

Conclusion

The controversial legislation in Australia featuring the Australian Government Security Agency seeks to address emerging security challenges. Focusing on local and international security elements, the bill features challenges in the law enforcement. Designed with additional legislation, the bill also faces implementation challenges. Controversies over its similarities with other security challenges brings to question the cost verses benefit factors. The new bill comes with additional costs to the taxpayer, and it mentions new elements that may politicise the implementation process.  Overlapping roles and functions raise questions about its existence as an Act and not an amendment. As a result, the ‘Agency’ comes out as a critical organ designed to handle emerging trends in modern day security systems. The fusion of powers for improvement needs further research to establish the need for an agency that is different from the existing ones. Separation of power explains the role of the Legislature, Judiciary and the Executive with reference to National Security cases. Case examples discuss loopholes and successes in the adjudication of the Australian statutory laws.

Australian Intelligence Service

References

Australian Constitution. (n.d.). Chapter IV: Freedom of Religion and Belief in Australia. Retrieved from aphref: file:///C:/Users/BAT/Downloads/http___www.aphref.aph.gov.au_house_committee_jfadt_religion_relchap4.pdf

Baker, C. (2018). Home Affairs and Integrity Agencies Legislation Amendment Bill 2017. Parliament of Australia. Retrieved from Parliament of Australia: https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1718a/18bd067

Betz, D. J. (2017). Cyberspace and the State: Towards a Strategy for Cyber-power. Routledge.

Blackshield, T., & Williams, G. (2010). Australian Constitutional Law & Theory: Commentary and Materials (5 ed.). Federation Press.

Chan, C. (2014, November 19). Australian tax controversies and human rights. Retrieved from Wolterskluwercenrtral : Chan,C. Australian tax controversies and human rights. Walters Kluwer, 2014

Common Wealth Consolidated Acts. (1995). Criminal Code Act 1995-Schedule the criminal code . Retrieved from AustLii: https://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/cca1995115/sch1.html

Cunningham v Commonwealth , 90 ALJR (HighCourt 2016).

Government, A. (2017, July 1). Administrative Decisons ( Judicial Review) Act `1977. Retrieved from Federal Register of Legislation: https://www.legislation.gov.au/Details/C2017C00238

Hancock, N. (2018). Terrorism and the law in Australia: Legislation, Commentary and Constraints. Parliament of Australia. Retrieved from https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp0102/02rp12

Kirby, M. (2004). Law and Justice in Australia: Room for Improvement” [2004] QUTlawJJI 19; 920040 4 289, from: https://www5.austlii.edu.au/au/journals/QUTLawJJl/2004/19.html

ICCPR Article 19. (2018). Freedom of Information, Opinion and Expression. Retrieved from Australian Human Rights Commission: https://www.humanrights.gov.au/freedom-information-opinion-and-expression

MacAskill, E., Borger, J., Hopkins, N., Davies, N., & Ball, J. (2013). GCHQ taps fibre-optic cables for secret access to world’s communications. The Guardian, 21. Retrieved from https://cyber-peace.org/wp-content/uploads/2013/06/GCHQ-taps-fibre-optic-cables-for-secret-access-to-worlds-communications-_-UK-news-_-The-Guardian.pdf

Melbourne Corporation v Commonwealth ( 1947), HCA 26, ( 1947) 74 CLR 31 (High Court August 13, 1947).

Minogue v Victoria ( 2018), HCA 27 (High Court June 20, 2018).

Moller, K. (2012). Proportionality: Challenging the critics. Internationsl Journal of Constitutional Law, 709-731

Parliament of Australia. (2018). 3. General issues across the Bill. Parliamentary Business. Retrieved From: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/EspionageFInterference/Report/section?id=committees%2Freportjnt%2F024152%2F25709

Paciocco v Australia and New Zealand Banking Group Ltd, 90 ALJR 835 (High Court 2016). Retrieved from https://www.adelaide.edu.au/press/journals/law-review/issues/38-1/alr-38-1-ch09-macalincag.pdf

Parliamentary Education Office. (2018). Uniform Tax Case 1942: Closer look-Governing Australia: Three levels of law making. Retrieved from PEO: https://www.peo.gov.au/learning/closer-look/governing-australia/uniform-tax-case-1942.html

Perram, J. (2016, November 1). Constitutional Principles and coherence in statutory interpretation. Federal Court of Australia. Retrieved from https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-perram/perram-j-20161118

Plaintiff M174/2016 v Minister for immigration and border protection, HCA 16 (High Court April 18, 2018).

Project Blue Sky v ABA [1998] HCA 28, CLR 355; 153 ALR 490; (High Court of Australia May 1, 1998). Retrieved from https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1998/28.html?stem=0&synonyms=0&query=Project%20Blue%20Sky

Remeikis, A. (2018). Australian bill to create back door into encrypted apps in advanced stages. The Guardian. Retrieved from https://www.theguardian.com/technology/2018/apr/13/australian-bill-to-create-back-door-into-encrypted-apps-in-advanced-stages

Vivienne, T. (2014, December 3). Review of Administration and Expenditure No. 13. Retrieved from Inspector-General of Intelligence and Security: file:///C:/Users/BAT/Downloads/4.%20Inspector-General%20of%20Intelligence%20and%20Security.pdf

[1] Kirby, M. Kirby Michael-“Law and Justice in Australia: Room for Improvement” [2004] QUTlawJJI 19; 920040 4 (2) Queensland University of Technology Law and Justice Journal. Law and Justice Journal 289

[2] Parliament of Australia. General Issues across the Bill. 2018

[3] Ibid, Section 3.2

[4] T. Vivienne. Review of Administration and Expenditure ( No 13, 2013-2014)

[5] Parliament of Australia, Section 3.3, subsection 90.4 ( 2)

[6] ibid, Section 3.4

[7] Common Wealth Consolidated Acts, Criminal Code Act of 1995, Part 2.7, Geographical jurisprudence

[8] D. Betz, Cyberspace and the State: Towards a Strategy for Cyber-Power, 2017, Routledge

[9] R v Kirby; Ex parte Boil makers’ Society of Australia, ( 1956) 94 CLR 254, In Blackshield & Williams, 2010

[10] N. Hancock, Terrorism and the law. Research Paper No.12 2002

[11] M. Ewen, J. Borger, N. Hopkins & James, B; 2013. GCHQ taps fibre-optic cables for secret access to worlds communications, The Guardian, 2013

[12] C. Barker, Home affairs and integrity agencies legislation amendment Bill 2017, Parliament of Australia

[13] Ibid

[14] Parliament of Australia, Section 3.42, Section 3. 55

[15] Chan, C. Australian tax controversies and human rights. Walters Kluwer, 2014

[16] Administrative Decisions ( Judicial Review) Act 1977, No. 59, 1977

[17] Parliament of Australia, Part 3-4

[18] Parliament Education Office, 1942, Uniform Tax Case

[19] K. Moller, Proportionality: Challenging the critics. International Journal of Constitutional Law, Vol 10 (3), 2012

[20] Project Blue Sky v Australian Broadcasting Authority, ( 1998) 194 CLR 355

[21] P. Justice, Constitutional principles and coherence in statutory interpretation, Federal Court of Australia, 2016

[22] Paciocco v Australia and New Zealand Banking Group Ltd ( 2016)

[23] Ibid, p, 236

[24] Parliament of Australia, Part 4

[25] Cunningham v Commonwealth ( 2016) 90 ALJR 1138

[26] Australian Constitution 75 ( v), ASIC v Edensor Nominees Pty Ltd, CLR 559

[27] ICCPR Article 19, Freedom of information, Opinion and expression, Australian High Commission of Human Rights

[28] Melbourne v Commonwealth, (1947) CLR 31

[29] Betz, D, Cyberspace and the state, towards a strategy for cyber power,

[30] Parliament of Australia, Sect 3.206

[31] Parliament of Australia, Part 2

[32] Australian Constitution, Chapter IV, Section 116

[33] Minogue v Victoria ( 2018) HCA 27 ( 20 June 2018)

[34] Plaintiff M174/2016 v Minister for Immigration and border protection ( 2018) HCA ( 18 April 2018)

[35] A. Remeikis, Australian bill to create backdoor  into encrypted apps in ‘advanced stages’, The Guardian,