Constitutional Law: Validity of Government Security Agency in Australian System

This article examines the proposed Government Security Agency in the Australian system, discussing its validity, funding challenges, separation of power, and responsible government. It analyzes the evolving constitution with reference to the separation of powers and consequences of constitutional changes. The article also highlights the importance of agency funding and its challenges.

Constitutional Law
(Words 2372)
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Agents and Constitutional Validity
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 way1. 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 freedoms2. 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.
Government Security Agency
Section 3.2 of the new proposed bill defines national security with reference to offences like
foreign interference3 . 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
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
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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
territory7. 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 state8. 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 Kirby9. 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 relations10. Politically motivated crime threatens
national security hence espionage cases. The introduction of the 2011 Telecommunication
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
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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. 12The cooperation between agencies under
national law for national security explains Hon. McClelland Roberts’s quest to empower
ASIO, Defence agencies and Geospatial Organisation.13
Agency Funding and Its Challenges
The widening scope of national security to incorporate foreign law incorporates, individual,
public global, and terrorist organization14. 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 addition15. 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. 16Its 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.17Applicants 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 applications18. 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
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
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interests.19This 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.20In 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. 21Among 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.23The 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.
Parliament Supremacy and Separation of Powers
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.25Conflict 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”.
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
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Constitutional Case number CLR 559 featuring ASIC v Endensor Nominees Pty Ltd raises
questions about the role of government officers and statutory agencies . 26In 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 ICCPR27. 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. 28The 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.
Responsible government
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.
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
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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.
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 ministers31. 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 religion32.
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 27.33The 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
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)
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breaks trust. In Plaintiff M174/2016, v Minister for Immigration and Border Protection
failure to comply with the legal directives could lead to jurisdictional error34.
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.
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,
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