ASIO in legislation
ASIO was established in 1949 on an executive order, or charter, from Prime Minister Ben Chifley. This charter detailed the role, functions and limits of Australia’s new security service. The service was to have no role in enforcing criminal laws—a feature which remains to the present day. The charter—titled The Prime Minister’s Memorandum to the Director-General of Security, being a Directive for the Establishment of a Security Service—also required direct communication between the Director-General and the Prime Minister of the day.
Importantly, the charter established the service as an independent body, directing it ‘be kept absolutely free of any political bias or influence’. It would operate under the executive of the government with specific requirements relating to staff and secrecy, rather than as an instrument of the government under the conditions of the Public Service Act. Political independence remains central to ASIO’s business today.
In 1949, the service was officially named the ‘Australian Security Intelligence Organization’ and the charter was re-issued on the appointment of Charles Spry the following year.
Following his appointment as Director-General of Security, Spry expressed concern about the Organisation’s existence by directive, remarking ‘if it could be established by a signature of a Prime Minister, it could be abolished in a similar way’. Central to his concern was the wellbeing of his staff whose job stability was potentially tenuous under the existing arrangements.
Spry approached then Prime Minister Menzies with a suggestion that the Organisation be permanently established by an Act of Parliament to give its role and functions certainty, and provide stability to its workforce.
And so the charter establishing ASIO was replaced by the Australian Security Intelligence Organization Act 1956.
Prime Minister Menzies’ intention in re-shaping ASIO as an independent statutory body is clear in comments to parliament:
The bill itself is a short one. It does no more than is necessary to give statutory authority for the existence and operation of the Australian Security Intelligence Organization, to define its functions in terms which, though broad, are sufficient to exclude activities in which such a service should not be engaged, and to secure the proper rights of officers and employees of the service as officers of the Commonwealth.
(Commonwealth, Parliamentary Debates, House of Representatives, 24 October 1956, Australian Security Intelligence Organisation Bill 1956, Second Reading)
The ASIO Act was later revised and greatly expanded in 1979 following recommendations arising from the Royal Commission on Intelligence and Security. This new legislation created a great deal more clarity as to ASIO’s functions—in particular what we can and can’t investigate and our use of special powers such as search and telecommunications interception warrants. Notwithstanding a number of subsequent legislative reforms, the ASIO Act 1979 remains the Organisation’s governing legislation.
Telecommunications interception and other technical surveillance tools are fundamental to our ability to detect acts of sabotage, espionage and terrorism.
ASIO has operated under formal ‘telephonic’ communications interception legislation since 1960, when Attorney-General Barwick introduced a bill to define the way in which opportunities could be pursued to gather information by interception and under warrant. The legislation determined how warrants for interception would be prepared, issued, controlled and implemented. It also created strict obligations for ASIO on how information was gathered, used and stored.
The legislation has been enhanced or amended more than 80 times to keep pace with threats, technology, information management practices and the Australian public’s expectations. The tools we use have also changed over the years—it’s hard to imagine now, but some early technical surveillance was recorded on vinyl records!
What has remained consistent, though, is the principle that the access to people’s otherwise private conversations should be limited to the most serious cases.