Oz Politics Blog

The Australian Parliamentary Library has released a research brief on the legislative authority of government officials to access and destroy the private computers of individuals should they hold sensitive information.

The case in point was Andrew Wilkie’s book, Axis of Deceit. The Government censored passages from an early draft of the book before publication. Between June and September 2004 (after publication), Government officials also ‘cleansed’ some 74 hard drives belonging to people who had received a copy of the original uncensored manuscript. Cleansing the hard drive necessitated smashing it with a hammer to make sure it was really erased.

According to the research brief,

This case raises several interesting issues around the legality of the incident, and broader policy concerns which arise as a consequence of the incident. Firstly, it is not clear which agency undertook the actions and under what legislative authority it acted. The media reported that the access to computers was undertaken by people identified as officials from the Attorney-General’s Department. It seems that accessing the computers of private individuals on the grounds of protecting security is an operational matter that should not be undertaken by ordinary public servants.

The legal regime governing access to private computers holding information which may compromise Australia’s national security is clearly covered by the Australian Security Intelligence Organisation Act 1979 (‘ASIO Act’) and should be undertaken only under a search or computer access warrant. If the officials involved were in fact from ASIO, they should not be operating outside their legislative framework.

Consent by parties should not allow government officials to undertake action they would not be authorised to do under warrant. It is unclear in this incident whether the participants could complain that their consent was only given under duress due to the threat of criminal prosecution or other action under the ASIO Act.

Finally, there are several broader concerns that arise as a result of this incident, involving lack of certainty when publishing on matters of national security, specific concerns over computer warrants, and the accountability of the government officials involved.

SBS Dateline covered this story on 22 June 2005 in its Sledgehammer Politics episode.