Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (10) to (12) on sheet 7672 together:

(10) Schedule 1, item 6V, page 46 (lines 13 to 31), omit section 182A, substitute:

182A Disclosure/use offences: journalist information warrants

(1) A person commits an offence if:

  (a) the person discloses or uses information; and

  (b) the information is about any of the following:

     (i) whether a journalist information warrant (other than such a warrant that relates only to section 178A) has been, or is being, requested or applied for;

     (ii) the making of such a warrant;

     (iii) the existence or non-existence of such a warrant;

     (iv) the revocation of such a warrant; and

  (c) the person knows that the information is about a warrant as set out in paragraph (b); and

  (d) at the time of the disclosure or use, the matter to which the warrant relates is ongoing.

Penalty:   Imprisonment for 2 years.

(2) A person commits an offence if:

  (a) the person discloses or uses a document; and

  (b) the document consists (wholly or partly) of any of the following:

     (i) a journalist information warrant (other than such a warrant that relates only to section 178A);

     (ii) the revocation of such a warrant; and

  (c) the person knows that the document consists (wholly or partly) of the warrant or the revocation of the warrant; and

  (d) at the time of the disclosure or use, the matter to which the warrant relates is ongoing.

Penalty:   Imprisonment for 2 years.

(11) Schedule 1, item 6V, page 47 (before line 4), before paragraph 182B(a), insert:

  (aa) both:

     (i) the disclosure or use is by a person working in a professional capacity as a journalist; and

     (ii) the information or document is disclosed or used in that capacity for the purpose of disseminating information on a matter of public interest; or

(12) Schedule 1, item 6X, page 48 (before line 1), before section 185D, insert:

185CA Evidentiary certificate relating to ongoing Ombudsman matter

(1) The Director-General of Security or the Deputy Director-General of Security may issue a written certificate signed by him or her setting out:

  (a) whether a matter involving the grounds on which a journalist information warrant was issued is ongoing; and

  (b) whether the matter was ongoing on a specified date.

(2) A document purporting to be a certificate issued under subsection (1) by the Director-General of Security or the Deputy Director-General of Security and to be signed by him or her:

  (a) is to be received in evidence in an exempt proceeding without further proof; and

  (b) is, in an exempt proceeding, prima facie evidence of the matters stated in the document.

Note: An evidentiary certificate issued under this section relates to an offence under section 182A.

185CB Evidentiary certificate relating to ongoing enforcement agency matter

(1) A certifying offer of an enforcement agency may issue a written certificate signed by him or her setting out:

  (a) whether a matter involving the grounds on which a journalist information warrant was issued is ongoing; and

  (b) whether the matter was ongoing on a specified date.

(2) A document purporting to be a certificate issued under subsection (1) by a certifying officer of an enforcement agency and to be signed by him or her:

  (a) is to be received in evidence in an exempt proceeding without further proof; and

  (b) is, in an exempt proceeding, prima facie evidence of the matters stated in the document.

Note: An evidentiary certificate issued under this section relates to an offence under section 182A.

Amendment (10) amends the offences in the bill related to the disclosure and use of journalist information warrants. This amendment limits the offence to ensure it only applies when a person knows that the information disclosed or used relates to a journalist information warrant and that the matter to which the warrant relates is ongoing. The aim of this amendment is to ensure openness and transparency and, in practical terms, to allow reporting on matters that may, in the past, have related to journalist protection warrants. While acknowledging that such an offence provision may be necessary to protect ongoing investigations, these amendments prevent the offence from becoming a barrier to sharing information in the public interest.

Amendment (11) seeks to clarify the defences available to someone charged with the disclosure or use of information relating to journalist information warrants. It provides that disclosure or use by a journalist for the purpose of disseminating information in the public interest is a defence. In conjunction with the amendments in amendment (10), this amendment will ensure that journalists are free to report on matters of public interest even if they are the subject of a journalist information warrant.

Amendment (12) allows the Director-General of Security or Deputy Director-General of Security to provide evidentiary certificates relating to whether a matter involving the grounds on which a journalist information warrant was issued is ongoing and whether the matter specified was ongoing on a particular day. These provisions are consistent with others in the act relating to the issuing of evidentiary certificates. Under the same conditions, a certifying officer of an enforcement agency may issue a written certificate relating to the same matters. Again, this is consistent with existing provisions for the use of evidentiary certificates in the act.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The government does not support these amendments. Section 102A makes it an offence for a person to use or disclose information about a journalist information warrant. The offence is punishable by two years imprisonment. Pursuant to section 5.6 of the Criminal Code, this offence will be committed where a person uses or discloses information and is reckless as to whether that information is about a journalist information warrant. Amendment (10) would make disclosure an offence only where the person who discloses the warrant knows that the information is about a journalist information warrant relating to an ongoing matter. The offence provisions serve the dual purpose of ensuring the security and integrity of investigations are maintained against unlawful disclosure and protecting the reputation and privacy of subjects of investigations.

Prohibitions on use and disclosure exist so that any private information, even the mere fact that a person has come to the police's attention, is not incidentally used to embarrass, humiliate or harass the person. Given the sensitive nature of TIA Act powers, for those prohibitions to be meaningful they must be backed up by criminal penalties. The media cannot have it both ways. They have sought protections relating to the identification of their sources, yet they are looking to be able to disclose the information about the target of the warrant—that is, the source. The offence provision is consistent with those already in place in relation to other warrants, including telecommunications interception warrants and stored communications warrants. These offences exist in both Commonwealth and state legislation, including relating to surveillance device warrants. They create a need to know within an agency to protect the privacy of the person who is the subject of the warrant.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

) ( ): I could refer to my earlier comments, Senator Xenophon, but I will add an additional point on these amendments—especially for your staff. The provisions regarding unauthorised disclosure that a warrant has been sought are standard in warrant schemes. I think I can elaborate on Senator Brandis's comments that the explanatory memorandum sets out the rationale for these provisions. Let me read those:

153. Section 182A makes it an offence for a person to use or disclose information about whether a journalist information warrant, has been, or is being requested or applied for, the making of such warrant, the existence or non-existence of such a warrant and the revocation of such a warrant. The maximum penalty for this offence is 2 years imprisonment. Section 182A is consistent with equivalent offence provisions already in place in relation to other warrants, including telecommunications interception warrants and stored communications warrants. These provisions create a "need-to-know" within an agency to protect the privacy of the person who is the subject of a TIA Act warrant.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens will be supporting this amendment for the reasons outlined briefly by Senator Xenophon.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I thank the government and the opposition for their response, but let us put this into perspective. If a journalist discloses after the fact, when, as set out in this amendment, it is clearly in the public interest, that there has been a journalist information warrant sought or obtained—when there is no longer any issue about it being detrimental to the work of the security agency or the authorities but is in fact actually in the public interest—that would still be a criminal offence. How, from a public policy point of view, can that be desirable? There is a threshold in this amendment that says it must be in the public interest for a journalist to disclose that there was a warrant issued.

It might be five years down the track or 10 years down the track. Does that mean forever and a day that this will be secret? Does this mean that in 10 years' time, 20 years' time, 30 years' time or 40 years' time, if this bill is in its current form, that journalists will not be able to ever report that a warrant was sought for their metadata even when the exigency or the need for the warrant is no longer apparent and it is also positively in the public interest to disclose that? That is what disturbs me: that fact that we could end up seeing journalists being jailed for disclosing something that would be clearly in the public interest.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I withdraw amendment (26) on sheet 7661.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Australian Greens amendments (36), (37), (38), (39) on sheet 7669 together, as these amendments are all relevant to the same clauses:

(36) Schedule 2, items 3 and 4, page 56 (line 12) to page 62 (line 4), to be opposed.

(37) Schedule 2, item 6, page 63 (lines 6 to 10), omit the item, substitute:

6 Subsection 5(1) (definition of criminal law -enforcement agency )

  Omit "paragraphs (a) to (k)", substitute "paragraphs (a) to (l)".

(38) Schedule 2, item 7, page 63 (lines 11 to 13), omit the item, substitute:

7 Subsection 5(1) (definition of enforcement agency )

  Repeal the definition, substitute:

  enforcement agency means:

  (a) the Australian Federal Police; or

  (b) a Police Force of a State; or

  (c) the Australian Commission for Law Enforcement Integrity; or

  (d) the ACC; or

(e) the Australian Customs and Border Protection Service; or

  (f) the Crime Commission; or

  (g) the Independent Commission Against Corruption; or

  (h) the Police Integrity Commission; or

  (i) the IBAC; or

  (j) the Crime and Corruption Commission of Queensland; or

  (k) the Corruption and Crime Commission; or

  (l) the Independent Commissioner Against Corruption; or

  (m) a body or organisation responsible to the Ministerial Council for Police and Emergency Management-Police; or

  (n) the CrimTrac Agency; or

  (o) any body whose functions include:

     (i) administering a law imposing a pecuniary penalty; or

     (ii) administering a law relating to the protection of the public revenue.

(39) Schedule 2, item 8, page 63 (lines 14 to 24), to be opposed.

As to these amendments, we covered—whether it was last night or the night before, I now cannot remember; it has all started to run together—the issue of the government being able to effectively move the goalposts in terms of categories of data that could be added to the scope of the bill once it is enacted, the number of service providers and companies who could be brought within the scope of the bill and, the third issue, the fact that Attorney-General can unilaterally add agencies to the bill.

The Attorney-General has made much—and I acknowledge the significant change and a significant improvement in the regime that prevails in Australia to date—of narrowing roughly 80 agencies, to use the rule of thumb figure. In theory, it could be much larger than that, because there are in excess of 500 local government authorities in this country. They can, in theory at least, acquire metadata on a warrantless basis by just directly contacting the phone and internet companies. This bill narrows the range of agencies to just under two dozen. But, of course, the door as it closes on one side opens on another: the Attorney-General has allowed himself to unilaterally add agencies back into the bill. We are going back to some of the arguments that we had earlier about this strange 40 sitting day lag that appears where the minister can add an agency; 40 sitting days can pass, which will be six or eight months down the track; and then the parliament is asked to ratify the decision.

Maybe before we go to the substance of the amendments, because what we are proposing to do is remove that power so that if another agency is to come back into the scheme and be able to access people's metadata on a warrantless basis, we believe that is something that the parliament should be engaged in at the beginning of the process and not the end. Just before I put the amendments, what I would like to do is seek your advice, Attorney-General, on what criteria you will bear in mind when agencies come knocking on your door seeking to be included back into the scheme.

That is because, as you have identified earlier in the debate, some—when you read the Telecommunications (Interception and Access) Act annual reports—agencies like Centrelink and a number of others that have no criminal law enforcement role are among the largest users of these authorisations. I want to know what criteria will guide you when Centrelink, if we take them as an example, come knocking at your door—if they are not already there—seeking to be reincorporated within the scheme.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I will answer your question in a moment, Senator Ludlam. Thank you at least for having the good grace to acknowledge the reduction of the number of agencies to 21 from 85, which is a very substantial improvement on the status quo. That is the point I have been making all along. I tried to make it in my speech winding up the second reading debate. The way this debate has proceeded, you could be forgiven for thinking—if you were not familiar with the legislation and were listening in—that this is an invasion of peoples' liberties, whereas in fact what it does is attenuate very significantly and subject to much more rigorous oversight conduct which at the moment is lawful.

Coming directly to your question, the answer is in accordance with the criteria actually set out in section 110A(4). The criteria that the minister must have regard to in considering whether to make a declaration is set out there, particularly in subsection (c). The minister is, among other things, required to comply with the Australian Privacy Principles, with a binding scheme that provides for the protection of personal information and with other matters which you can read yourself. This is not an ungoverned discretion. It is a discretion that is governed by the specific matters set out in proposed subsection 110A(4)(b). Because these are amendments to the Telecommunications (Interception and Access) Act, the discretion is governed generally by the criteria set out in section 180F. That is augmented and strengthened by this bill, which deals with the overarching considerations to be had regard to in accessing information.

You, in an exuberantly rhetorical way, said that the minister can unilaterally add agencies. As a matter of fact, the minister cannot unilaterally add agencies. What the minister can do is promulgate a legislative instrument which adds agencies. But as you well know, legislative instruments are subject to disallowance by either house of parliament.

Lastly, the 21 agencies are set out in the act not by function but by name. In the existing TIA Act additional agencies can be added. That is how we got to this forest of agencies with the capacity to access metadata under the existing act: they do not have to be named agencies; they can be agencies that answer a functional description. That is removed under this act, so that, once again, is a protection which does not exist under the existing law.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I moved identical amendments to those of Senator Ludlam, so therefore I am speaking in support. I have proposed these amendments in order to prevent regulatory creep through the addition of further agencies. The Telecommunications (Interception and Access) Act—

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I did not move them; you are quite correct. I circulated them, yes. They are on the running sheet showing as identical to mine, that is all. Under the Telecommunications (Interception and Access) Act, the distinction between a criminal law enforcement agency and an enforcement agency allows for some agencies that have enforcement functions but not criminal law enforcement functions to have limited access powers. In order to have full access powers an agency must have a criminal law enforcement function.

I take the point that, under this bill, the agencies with access will be named in the bill. I think that is an excellent idea, but this takes account of the fact that additional agencies can be added. The amendment seeks to prevent regulatory creep by omitting proposed definitions of 'criminal law enforcement agency' as set out in clause 110A and 'enforcement agency' as set out in clause 176A altogether and reverting to the current approach in the telecommunications interception act of setting up these agencies in the definitions section. There is an express reference to the Australian Customs and Border Protection Service in the definition of enforcement agency in amendment (38). By virtue of this amendment, the only way for new agencies to be added will be by an amending act, which will enhance parliamentary scrutiny and oversight, and the distinction between criminal law enforcement agency and enforcement agency is thus preserved.

This approach also ensures that ASIC and ACCC do not get themselves onto the list of government approved, government sanctioned nosy parkers. Those two agencies already have large and intrusive powers, sometimes in excess of those enjoyed by agencies more properly considered criminal law enforcement bodies. Those powers should not be further expanded, particularly as they may be used to pursue trivial infractions such as collusion among service stations over petrol prices.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I obviously have a fundamental disagreement with you about this. The Australian Competition and Consumer Commission and the Australian Securities and Investments Commission are the two principal economic regulators in this country. They keep the operation of our free market system honest and they ensure that markets operate free of abusive conduct or manipulative conduct.

I think it is a very superficial view, if I may say so, to think that the kind of market manipulation, cartel conduct or abuse of market power which it is the responsibility of the Australian Competition and Consumer Commission to police and to enforce the provisions of its act with a view to preventing is a trivial matter. I say this with some feeling because for several years before I came to this place this is what I did. Competition law was my field of practice, and I acted for the ACCC and against the ACCC on many occasions. I have seen in my own professional experience many, many instances of very serious market manipulation, cartel conduct and collusive behaviour at the expense of consumers, which it is absolutely in the public interest to prevent. There are criminal penalties now under the Competition and Consumer Act.

In relation to the Australian Securities and Investments Commission, that is the principal corporate regulator in this country. It is our principal guardian against white-collar crime and commercial fraud within the corporate sector. The thought that either the ACCC or, even more so, ASIC do not have a very important law enforcement, including criminal law enforcement, role is quite wrong. An article by Mr Greg Tanzer in this morning's Australian Financial Review has been drawn to my attention. Mr Tanzer, as you may know, is a commissioner of ASIC, who argues very strongly for the retention of urgency within the list of relevant criminal law enforcement bodies. Mr Tanzer says, among other things:

… in the two years to November 2014 ASIC used telecoms data in more than 80 per cent of our insider trading cases.

He goes on to say that the powers sought here are no different in kind than existing powers under the TIA Act already. Mr Tanzer writes:

Changes to the TIA Act do not give law enforcement agencies any new powers but aim to ensure crucial existing powers retain their utility and are not eroded because of profit-driven changes in commercial practices.

Telecoms data is crucial in combating corporate crime.

I know you take a libertarian point of view and I know that is one of the points of difference between you and perhaps the Greens senators. May I say, through you, Madam Temporary Chairman O'Neill, to the Greens senators: the Greens senators have always been at the absolute forefront in their outrage at corporate crime and white-collar crime in this country. I can understand Senator Leyonhjelm's libertarian, anarcho-capitalist point of view, which I do not share but I understand, but I cannot for the life of me understand why the Greens would wish to disable the investigative capability of the agency charged with policing against white-collar crime from having a power akin to police forces and anti-corruption bodies which it has at the moment but would not have if this amendment were to be carried.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Thank you, Attorney. I must admit I am a little confused. I thought this bill was all about serious crime—terrorism, paedophilia and organised crime are the terms I think that I have heard you use several times. White-collar crime, I suppose, at its most extreme end could perhaps be called organised crime, but it absolutely could not be called paedophilia or terrorism. Insider trading, as I am sure you are aware, is not actually illegal in some countries, including across the ditch in New Zealand. It certainly does not qualify as serious organised crime.

This reinforces, I guess, my prediction that this is mission creep—this is regulatory creep. We are not just talking about serious crimes. This legislation will be used for all kinds of crimes. I doubt very much whether its impact on terrorism or paedophilia or serious organised crime will be very great at all, but it will be very substantial on matters that really do not warrant such intrusive powers.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Obviously, corporate crime is not terrorism and corporate crime is not paedophilia, but I would maintain unhesitatingly that serious organised corporate fraud, market manipulation, insider trading and white-collar crime at the serious end absolutely are forms of organised crime. We obviously have a philosophical difference about that. And it is not mission creep, as you say, Senator, because these powers already exist. These powers already exist under the status quo. We have shed three-quarters of the agencies by whom these powers are exercisable, but we have included ASIC and the ACCC on the list for that reason.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Labor will be opposing these amendments for much the same reasons as Senator Brandis outlined. But I should also highlight, in relation to this discussion about trivial offences, that, in the amendments introduced by the government in the House, the new threshold that Labor argued for through the joint committee process with respect to access ensures that gravity is one of the factors taken into consideration. This is a very important point to be made here.

We sought to clarify with the Greens in relation to the Greens amendments essentially the point that Senator Leyonhjelm made earlier, which is that they are indeed identical. Like Senator Brandis, I was somewhat surprised at the Greens' approach in relation to ASIC and the ACCC and we could not get back from the Greens confirmation that they understood that the effect of their amendments was that they would be removing from the list ASIC and the ACCC. If I recall correctly—and sorry if I am verballing you, Senator Ludlam—this issue was not addressed in your comments introducing these amendments. It is quite a serious issue, as highlighted by Senator Brandis. I too read the article in today's Financial Review, but there is another aspect to that article, by Greg Tanzer, that I would like to go to. He reports:

Telecoms data is crucial in combating corporate crime. This sort of information is commonly the first source of important information for further investigations and is frequently used to identify suspected offenders or verify preliminary suspicions. Without this data many offences and offenders would never be detected …

This is a very serious issue. As I said, the amendments to which the government has already agreed through the process of the joint committee and that were dealt with in the House ensure that we are not talking about the trivial matters that Senator Leyonhjelm is referring to. Indeed, in the evaluation process of a request for access, gravity is one of the important factors taken into account.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I thought we might have been right on the verge of finally winning one. My hopes were dashed!

The TEMPORARY CHAIRMAN: I am sorry to mislead you there, Senator Ludlam. I am glad that we corrected the record—thank you, Senator Collins.

That is all right. It has been a complex process. I move Australian Greens amendment (40) on sheet 7669:

(40) Schedule 2, Part 2, page 68 (after line 12), at the end of the Part, add:

47A At the end of Division 6 of Part 4 -1

  Add:

Division 7—Destruction of information or documents

182C Destruction of information or documents obtained under authorisation

Authorisations under Division 3 by the Organisation

(1) If:

  (a) information, or a document, that was obtained by the Organisation in accordance with an authorisation under Division 3 is in the Organisation's possession; and

  (b) the Director-General of Security is satisfied that the information or document is no longer required, and is not likely to be required, in connection with the purpose for which the authorisation was given;

the Director-General of Security must cause the information or document, including any copies of the information or document, to be destroyed as soon as practicable.

Authorisations under Division 4 by an enforcement agency

(2) If:

  (a) information, or a document, that was obtained by an enforcement agency in accordance with an authorisation under Division 4 is in an enforcement agency's possession; and

  (b) the head (however described) of the agency is satisfied that the information or document is no longer required, and is not likely to be required, in connection with the purpose for which the authorisation was given;

the head (however described) of the enforcement agency must cause the information or document, including any copies of the information or document, to be destroyed as soon as practicable.

Authorisations under Division 4A by the Australian Federal Police

(3) If:

  (a) information, or a document, that was obtained by the Australian Federal Police in accordance with an authorisation under Division 4A is in the Australian Federal Police's possession; and

  (b) the Commissioner of Police is satisfied that the information or document is no longer required, and is not likely to be required, in connection with the purpose for which the authorisation was given;

the Commissioner of Police must cause the information or document, including any copies of the information or document, to be destroyed as soon as practicable.

This is reasonably simple and we already traversed the reasoning behind it earlier in the debate, but to refresh our memory: this amendment requires that metadata obtained under the data retention legislation should be destroyed when it is no longer relevant to the matter under investigation. Earlier in the debate, we addressed the idea that, after the two-you mandatory retention period, stuff that had been collected for no other purpose than that people were being forced to collect it under the terms of the bill would be destroyed. However, this goes to the material being retrieved—and we have already discussed at length the fact that there are in excess of three-quarters of a million of these warrantless authorisations reported to the ACMA every year. Once that material is no longer relevant to any kind of investigation, it should be destroyed. We know that it is not. Not just the intelligence agencies are amassing it but the law enforcement agencies and other agencies are collecting it. There is no obligation as far as I am aware—please correct me if I am wrong, Senator Brandis—on the part of any of these agencies to destroy anything that they collect on a warrantless basis.

The software tools for aggregating and mapping this information are way more sophisticated than most people realise. I think the numbers increment by 10 or 15 per cent every year. So 750,000 this year, maybe 720,000 or 730,000 the year before. All of the records that are being grabbed are also being compiled. They are being stored; they are being compiled. And there is no question at all that it effectively means that the private records of phone and internet use, location, data and whatever else are being authorised, collected, archived and kept. This material—we do not know absolute numbers, because that material is not recorded—on tens or potentially hundreds of thousands of people is being stored.

So I struggle to imagine a justification whereby material is accessed on a warrantless basis for a range of matters—everything from quite serious matters to quite trivial matters. Many people who support these schemes have been at pains to tell us that this is about preliminary discovery so that people can be excluded as persons of interest and not pursued by more intrusive means. Why would you require the retention of their material? Why not instruct agencies to dispose of it when it is no longer needed? That would be in accord with the Australian privacy principles that were legislated and, to my mind, improved by this government about this time last year.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Ludlam, I think you make a very good point, but the way you expressed yourself at the end there was wrong. We are not requiring the retention of metadata—we are not requiring it at all. The bill does not include a requirement that it be destroyed at a particular time, which is the effect of your amendment.

Senator Ludlam, I understand the point you are making and, as I say, I think it has a lot to be said for it. It is for that reason that the government adopted recommendation 28 of the PJCIS that the Attorney-General's Department oversee a review of the adequacy of the existing destruction requirements that apply to documents or information disclosed pursuant to an authorisation made under chapter 4 of the TIA Act and held by enforcement agencies and ASIO. The committee further recommended that the Attorney-General report to parliament on the findings of the review by 1 July 2017. As I say, the government has accepted that recommendation and that review will be conducted. As well as that, you will be pleased to know, Senator Ludlam, in respect of ASIO there is an agreement between ASIO and the National Archives, which was reviewed in 2012, in relation to retained material. The retention and destruction of data by ASIO is going to be examined by the Inspector-General of Intelligence and Security later this year. So there are in fact two reviews. There is the IGIS review this year and the Attorney-General's Department review, which will report within a little over two years. The government will consider what those reviews have to say. I tend to agree with you, Senator Ludlam, that it is desirable that there should be a destruction date in relation to data in certain defined circumstances. But we will await and be informed by the review in making decisions concerning that issue.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Labor will be opposing this amendment for much the same reasons as Senator Brandis outlined. As he has indicated, the matter was canvassed by the Joint Parliamentary Committee on Intelligence and Security, which noted that there were existing protocols in place around the retention and destruction of documents—one example that Senator Brandis just gave. It is important that we review those and come with a satisfactory outcome from those processes.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I withdraw Australian Greens amendments (41) and (42) on sheet 7669. They were consequential to earlier amendments that, regrettably, I did not have the numbers to pass. So I will not be proceeding with moving those. I move amendment (43) on sheet 7669:

(43) Schedule 3, item 7, page 77 (after line 29), after subsection 186B(1), insert:

  (1A) For the purposes of paragraph (1)(a), the Ombudsman must inspect the records of each enforcement agency at least once every 6 months in relation to authorisations under Division 3, 4 or 4A of Part 4-1.

This is the last Australian Greens amendment that we will bring forward. Its purpose is fairly simple. It is to explicitly require the Commonwealth Ombudsman to examine every six months the records of agencies which have access to metadata. The Ombudsman has been brought more closely into the orbit of oversight of the regime. I do not think at the moment that this regime, particularly access to metadata, has anything like the amount of oversight that it is going to need, given the volume of requests that go through and the evident problems and issues that have been well canvassed during this debate. Nonetheless, the Ombudsman does have a closer role. I would like to know the degree to which the Ombudsman's office will be given a greater amount of resourcing to conduct those additional activities.

We would like to see the Ombudsman have that regular and very cyclical inspection and reporting obligation—the inspection, therefore, being every six months. The reason for this is simple. Unlike the warranted access to material which has that judicial oversight—it is sought through the AAT or it is sought through judges—there is no such oversight role. I am not sure that many people realise that there are probably thousands of people in agencies around this country who are authorised to be in receipt of a two-page form, a double-sided piece of A4 paper, with the target individuals or networks or devices that are handed directly to the phone companies or the internet service providers, and then the material is forthcoming. There is no intermediary. There is no judicial oversight. So, at the very minimum, we would like that to be the Commonwealth Ombudsman, given that the proposal to bring bulk or intrusive metadata within the warranted regime was rejected. This is really a last ditch attempt to providing a greater measure of transparency and oversight to a system that I believe is fundamentally broken.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Ludlam, the government does not support your amendment. I should acquaint you with the fact that the Commonwealth Ombudsman was in fact closely involved in drafting these powers. These were the powers that the Ombudsman's office, as one of the integrity agencies, thought were appropriate to it to best discharge its oversight obligations—that is, the powers that are already in the bill, which your amendment would change.

Can I draw your attention, please, to paragraph 685 of the explanatory memorandum, which reads:

Under subsection 186B(2), the Ombudsman is not restricted in the frequency with which the Ombudsman may inspect the records of an agency. For example, the Ombudsman could choose inspection cycles of twelve months, six months, three months or some other period to inspect the records of any particular agency. This flexibility is intended to cater for the significant differences in the size, structure, functions, and internal systems and procedures of the various criminal law-enforcement agencies, the variable nature and flow of investigations and to ensure the new inspection regime is sufficiently responsive to differing contingencies encountered during an inspection. Depending on the circumstances, this may necessitate other adaptive approaches, including, for example, staged or rolling inspection programs, a quarter-sized inspection four times a year, or inspecting different field offices at different times if that was more convenient for the agency from an operational perspective or logistically more feasible.

So the mischief that your amendment seeks to address is already provided for by clause 186B(2) of the bill in a way which—with the advice of the Ombudsman, as the relevant integrity agency—will actually enhance rather than diminish his capacity to oversee the compliance by agencies with the provisions of this bill. I should also remind you that the intelligence agencies are subject to the Inspector-General of Intelligence and Security as well.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Labor will be opposing this amendment because we feel, given what has occurred in recent times, that it is now redundant. Proposed section 186B(1) already provides that the Ombudsman must inspect the records of relevant agencies, and the Ombudsman's office is indeed a highly experienced oversight body. We have, however, demanded and received an assurance from the government that the Ombudsman will be effectively resourced to exercise his new responsibilities. As such—given, as Senator Brandis highlighted, the consultation that occurred with the Ombudsman himself—we have no doubt that he will be an effective and diligent watchdog over the data retention scheme.

Question negatived.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I move amendment (13) on sheet 7672:

(13) Page 84 (after line 31), at the end of the Bill, add:

Schedule 4—Disclosure by journalists

Australian Security Intelligence Organisation Act 1979

1 Subsections 35P(1), (2) and (3)

  Repeal the subsections, substitute:

Unauthorised disclosure of information

(1) A person commits an offence if:

  (a) the person discloses information; and

  (b) the information relates to a special intelligence operation; and

  (c) the person knows that the information relates to a special intelligence operation.

Penalty:   Imprisonment for 5 years.

Unauthorised disclosure of information—endangering safety, etc.

(2) A person commits an offence if:

  (a) the person discloses information; and

  (b) the information relates to a special intelligence operation; and

  (c) the person knows that the information relates to a special intelligence operation; and

  (d) the person intends the disclosure of information to endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.

Penalty:   Imprisonment for 10 years.

Exceptions

(3) Subsections (1) and (2) do not apply if:

  (a) the disclosure was in connection with the administration or execution of this Division; or

  (b) the disclosure was for the purposes of any legal proceedings arising out of or otherwise related to this Division or of any report of any such proceedings; or

  (c) the disclosure was in accordance with any requirement imposed by law; or

  (d) the disclosure was in connection with the performance of functions or duties, or the exercise of powers, of the Organisation; or

  (e) the disclosure was for the purpose of obtaining legal advice in relation to the special intelligence operation; or

  (f) the disclosure was to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986; or

  (g) the disclosure was by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act; or

  (h) the disclosure was:

     (i) by a person who was working in a professional capacity as a journalist, or an employer of such a person; and

     (ii) published in good faith in a report or commentary about a matter of public interest; and

     (iii) the report was not likely to enable an ASIO employee, ASIO affiliate, a staff member of ASOS or an IGIS official to be identified.

Note: A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.

  (3A) Without limiting paragraph (3)(h), a disclosure is about a matter of public interest if it relates to one or more of the following:

  (a) a matter that increases the ability of the public to scrutinise and debate issues of national security;

  (b) a matter that would promote the integrity and accountability of the Organisation, ASIS or the Inspector-General of Intelligence and Security in relation to national security and other related issues;

  (c) conduct that:

     (i) contravenes a law of the Commonwealth, a State or a Territory; or

     (ii) contravenes a law of a foreign country; or

     (iii) is engaged in for the purpose of perverting, or attempting to pervert, the course of justice; or

     (iv) is engaged in for the purpose of corruption; or

     (v) constitutes maladministration; or

     (vi) constitutes an abuse of public trust; or

     (vii) involves an official of a public agency abusing his or her position as an official of that agency; or

     (viii) could, if proved, give reasonable grounds for disciplinary action against an official of a public agency.

Crimes Act 1914

2 At the end of subsection 3ZZHA(2)

  Add:

  ; (g) the disclosure is:

     (i) made by a person who is working in a professional capacity as a journalist, or an employer of such a person; and

     (ii) published in good faith in a report or commentary about a matter of public interest; and

     (iii) the report or commentary is not likely to enable an officer of the Australian Security Intelligence Organisation, a staff member of the Australian Secret Intelligence Service, or a staff member of the Inspector-General of Intelligence Services to be identified.

3 At the end of section 3ZZHA

  Add:

(3) Without limiting paragraph (3)(h), a disclosure is about a matter of public interest if it relates to one or more of the following:

  (a) a matter that increases the ability of the public to scrutinise and debate issues of national security;

  (b) a matter that would promote the integrity and accountability of the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service or the Inspector-General of Intelligence Services in relation to national security and other related issues;

  (c) conduct that:

     (i) contravenes a law of the Commonwealth, a State or a Territory; or

     (ii) contravenes a law of a foreign country; or

     (iii) is engaged in for the purpose of perverting, or attempting to pervert, the course of justice; or

     (iv) is engaged in for the purpose of corruption; or

     (v) constitutes maladministration; or

     (vi) constitutes an abuse of public trust; or

     (vii) involves an official of a public agency abusing his or her position as an official of that agency; or

     (viii) could, if proved, give reasonable grounds for disciplinary action against an official of a public agency.

Criminal Code Act 1995

4 Paragraph 119.7(2)(b) of the Criminal Code

  Repeal the paragraph, substitute:

  (b) the person publishes the advertisement or item of news intending to encourage the recruitment of persons to serve in any capacity in or with an armed force in a foreign country.

5 After paragraph 119.7(3)(b) of the Criminal Code

  Insert:

  ; (c) the publication of the advertisement or item of news was not in the public interest.

This amendment addresses issues relating to disclosures of information by journalists, through amendments to the Australian Security Intelligence Organisation Act 1979, the Crimes Act 1914 and the Criminal Code Act 1995. These amendments address changes to these acts made by the previous bills in this tranche of legislation, primarily the National Security Legislation Amendment Act (No. 1) 2014.

Make no mistake about it, these issues go to the heart of press freedom in this country in relation to the ability of investigative journalists to do their work. These bills insert into these acts new offences relating to the disclosure of information relating to a special intelligence operation, as well as for publishing advertisements or items of news that contain information about recruitment of people to armed forces in a foreign country. I want to make it clear that, in relation to any publication of information in respect of a special intelligence operation that could endanger the lives of those involved in the operation or other lives directly as a result of that disclosure of information, I do not oppose the imposition of a penalty. If we are talking about endangering lives—if, for instance, there is an ASIS or ASIO officer whose life is put in real danger by the disclosure of their identity—then that is a serious matter. But we are talking about a whole range of other circumstances where there can be no such consideration; where there is no question of any lives being endangered; and where, in fact, what is being endangered by not publishing that information is very much the public interest and some key democratic principles.

At the time that the bills were being considered in respect of section 35P, I expressed my concerns about the provisions relating to disclosure of information and how this would impact on journalists reporting on matters in good faith and in the public interest. At the time, I also moved an amendment to include the consideration of the public interest as a defence to these offences. This amendment expands on these original concerns to address the matter more fully. I am grateful to the mainstream media organisations that I have spoken to—major media organisations which have been very helpful with useful suggestions as to how this clause could have real protections for journalists who are doing their job in the public interest.

Firstly, in relation to disclosure of information, these amendments introduce a concept of 'knowingly disclosing information relating to a special intelligence operation, disclosing information with the intent of endangering the health or safety of any person, or prejudicing the effective conduct of a special intelligence operation'. Further, the amendments provide exceptions to this offence which are consistent with existing whistleblower protections. They also include an exception where the person was working in a professional capacity as a journalist and published in good faith as a matter of public interest, and where the report was not likely to enable staff of security organisations to be identified.

The amendments also provide an extensive definition of what matters can be considered to be in the public interest. These include matters that increase public debate and promote the integrity and accountability of security organisations or officials, and matters relating to conduct that contravenes certain laws or standards. These amendments provide the same defences in relation to disclosing information about delayed notification search warrants under the Crimes Act.

The amendments also address issues relating to the publication of certain matters under the Criminal Code. The new offences in the act relate to the publication of recruitment material, and, in essence, I believe these offences are suitable

However, there is capacity for these offences to capture media organisations in the following ways. Firstly, it is possible that a journalist could publish a story that contains information about recruitment—for example, an investigative piece that looks at recruitment strategies of terrorist groups or how an individual has been personally affected by this. Secondly, it is possible that a major news organisation with many publications could unwittingly publish an advertisement that, while it does not overtly seem so, relates to recruiting activities—for example, for a town meeting that turns out to have recruiting elements, unbeknownst to the news organisation.

To address these concerns, the amendments in this item change the existing offence from a person being reckless to the fact to a person publishing with the intention of encouraging recruitment. Further, in relation to the offence of publishing more detailed information about recruiting, these amendments provide that the offence can only apply where the publication is not in the public interest. This would, for example, come into effect when a story is published about recruitment taking place at a certain location and time for the purpose of raising public awareness.

I want to briefly raise a matter that relates to ASIS, not ASIO, but the principles are the same. There is, of course, the issue in respect of the allegations that ASIS planted electronic surveillance, electronic bugs, in 2004 in the East Timorese cabinet room, allegedly to gather information regarding negotiations of the Timor Sea treaty, the sharing of energy resources between Australia and Timor. That cannot be seen, on any reasonable basis, as a national security issue. In March 2014 the International Court of Justice ordered Australia to stop any such behaviour. Bernard Collaery, a former Attorney-General of the Australian Capital Territory, representing East Timor, alleged in 2013 that his offices had been raided by ASIO. A key witness, known as Witness K, was detained and had his passport cancelled, which of course has all sorts of consequences for Witness K. I am not sure whether he has been charged.

My concern is with cases such as that, cases of botched operations, and it does happen from time to time. As good as our intelligence agencies are, as good as the AFP is, there are occasions when they get it wrong, where they have exceeded their powers, and it is in the public interest to expose that. There is no protection for journalists, as I see it, under the current legislation or 35P. We know what the Media, Entertainment and Arts Alliance, representing journalists in this country, have said about this. And leading academics are concerned that section 35P in its current form is simply too restrictive and draconian and needs to be amended.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

This is an attempt to litigate the issue of section 35P of the ASIO Act, which was debated and canvassed extensively in this chamber last year during the debate on the National Security Legislation Amendment Bill (No. 1) 2014. Because this has been debated very extensively in this chamber and this is an attempt merely to relitigate it—it is not immediately germane to this bill; it has, as it were, been tacked on—I do not want to take too long in responding to Senator Xenophon. But let me make a couple of points to you, Senator.

First of all, section 35P of the ASIO Act is confined to the disclosure of special intelligence operations. Special intelligence operations are themselves a defined term, a defined form of operation that was introduced into the ASIO Act last year. They can only be conducted in exceptional circumstances and only if the Attorney-General is satisfied as to a variety of matters that are specified in the relevant provisions of the ASIO Act. But, to give you the flavour of what special intelligence operations are, they are about things like officers of ASIO, under cover, becoming associated with terrorist cells, for example, in order to gather intelligence. That is what ASIO does, Senator Xenophon: it is an intelligence-gathering operation.

In order to gather human intelligence, or HUMINT, to use the jargon term that is used in the intelligence community, officers subject themselves to very, very serious risk of physical harm. And they are entitled to be protected; they are entitled to be protected from disclosure. You can readily imagine, Senator Xenophon, that if the fact of a special intelligence operation that involved, for example, an undercover ASIO officer or officers penetrating a terrorist cell were disclosed, that could well put the lives of those officers or their families at risk. I know you would not wish to do that, Senator Xenophon—of course you would not. But that is the mischief—

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Mr Chairman, on a point of order, my amendment does not say that or do that. I respectfully suggest to the Attorney that he read my amendment. It does not do that.

The CHAIRMAN: Senator Xenophon, there is no point of order.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

That is the purpose of section 35P of the ASIO Act, which was inserted, over the objection of crossbench senators, last year. It is no answer to say that perhaps prohibition should only apply to a current operation but not to a past operation, because often people need protection for years, or even decades, after an intelligence operation. You know, Senator Xenophon, the Australian government protected the identity of Vladimir and Evdokia Petrov until the day they died, 30 or 40 years after the Petrov affair.

It strikes me as a crowning irony in this debate that those who are extremely concerned to protect the confidentiality of journalists' sources would, in the next breath, expose the confidentiality of intelligence operations. I know that is not your motive, Senator Xenophon, but it is the effect of the argument against section 35P.

This was looked at by the first PJCIS report, recommendation 28, and adopted in a bipartisan manner. I should say that the section 35P protections of ASIO are modelled on the longstanding protections of the Australian Federal Police for protected operations by AFP officers; they are modelled on like protection provisions that exist under state and territory law for state and territory police officers. It should never be controversial, frankly, that the identity of officers involved in covert operations should be protected.

Lastly, this is not a provision about journalists, as I have said many times. This is no more a provision about journalists than the law relating to drink-driving is a law about journalists. This is a law that makes it an offence for anyone in the community to disclose or prejudice a covert operation. That is what section 35P does. We had that debate in this chamber last year. Section 35P was passed in the teeth of a reasonably furious media campaign. But, mindful of the sensitivity of the press freedom issue that some journalists and news organisations have raised, additional protections were added. In particular, the Director of Public Prosecutions himself issued a directive which is available on his website setting out certain public interest criteria that would be applied in enforcing section 35P.

As well, I made a directive to the Director of Public Prosecutions requiring the consent of the Attorney-General for any prosecution under section 35P. So if it were thought that a prosecution was in some way inappropriate or inimical to the freedom of the press, by requiring the Attorney's consent—that happens in a number of cases, but they are unusual—it would mean that the Attorney-General of the day, whoever he or she may be, as the responsible political officer would accept personal and public responsibility. So it would not merely be a matter of prosecutorial discretion exercised by the Commonwealth DPP; it would be a matter of the Attorney-General of the day accepting public and political responsibility as well. So there are safeguards. I will defend to the utmost, Senator Xenophon, the proposition that the confidentiality of covert operations ought to be protected, as it is in section 35P, by criminal sanction.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

The Attorney has grossly misrepresented my position. If he remembers, during the debate in respect of section 35P there was an amendment moved, from memory, by Senator Lambie, then a member of the Palmer United Party, to increase the penalty from five years to 10 years in circumstances where lives were endangered by someone disclosing a special intelligence operation. I supported that. I supported that because there must be no ambiguity when it comes to information that could lead to a person involved in a special intelligence operation having their life endangered or, indeed, having the lives of their family members endangered by virtue of the disclosure of their identity. I just want to make that absolutely clear. I would be grateful if the Attorney would acknowledge this: I have never argued that endangering the life of a person by disclosing information should not be a most serious offence.

But I do draw the Attorney's attention to comments made by Tim Wilson, the Human Rights Commissioner—an appointment that the Attorney made. He has raised concerns about section 35P. He made the point in an opinion piece that:

As former independent national security legislation monitor Bret Walker has argued, in its most extreme form 35P could stop the reporting of a citizen being killed during a botched special intelligence operation. I have no doubt that is not the intention of the government, or any in the near future. But that shouldn't mollify critics.

He expresses real concerns in respect of that.

My concern is that section 35P in its current form does not give protection to journalists where there is no question of revealing the identity of someone involved in a special intelligence operation. We are aware of raids in the past that have been botched by our police and intelligence operatives. Things have gone wrong. It seems to me that in those circumstances there will be no protection for journalists reporting that. We have very fine journalists in this country such as Cameron Stewart who report on these matters. He is highly regarded. I think that he would be constrained in reporting on those sorts of issues.

The government seems to be coming from the position that intelligence agencies can do no wrong. Well, they are not infallible. They do make mistakes. We have seen throughout history that this is a very dangerous position to take. The media plays a vital role in exposing those intelligence operations which have gone wrong, where it is in the public interest to disclose them and where there is no question of any lives being endangered by that disclosure.

I just want to make it clear on the record that I supported an increase in the penalty from five years to 10 years in order that if disclosure endangered the life of someone involved in a special intelligence operation that should be treated seriously by the courts. But this is about ensuring that the media can do their job in cases where there is a clear public interest to disclose an intelligence operation that effectively goes wrong.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Xenophon, I do not for a moment suggest—and I said this before—that you would wish to oppose a provision that protects the lives and health of ASIO officers. But you are directing yourself to subsection 35P(2), which is on the aggravated offence. It carries a penalty of imprisonment of 10 years. The problem with your argument, Senator Xenophon, is that, under subsubsection 35P(2)(c), there is an element that:

(i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation; or

(ii) the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.

That carries the higher range penalty of 10 years imprisonment.

Senator Xenophon, you detained the Senate for some time this morning arguing very persuasively, if I may say so, the case for having a purpose test and an effects test so that unintended consequences could be caught as well as deliberate conduct in relation to another provision of the bill before the chamber. The same logic that you advanced earlier on in the debate applies here. Disclosure may not be intended to or for the purpose of endangering lives or health. It is very unlikely to be. But that may be the incidental effect of it. That is why, if it is the inadvertent or incidental effect of it, we need section 35(1), which does not contain those limitations.

As well, although I spoke about life and health as the extreme case here, there are more consideration at play than merely that. For example, there are operational techniques. To disclose operational techniques is not necessarily to endanger the life or health of agents or officers engaged in an operation, although it could, either currently or in the future, but it certainly prejudices the capacity of ASIO to effectively carry out those operations if its tradecraft, if its techniques, if its wherewithal, are the subject of public disclosure.

Let us be realistic here, Senator Xenophon. ASIO is a covert intelligence gathering body. It was established in 1949 by the Chifley government to be a covert intelligence gathering body. That is what it does and because we are a liberal democracy that cares about values like personal freedom and the freedom of the press, when we establish a covert intelligence gathering body in the middle of a liberal democracy what do we do? We subject it to the most stringent limitations and oversight mechanisms and accountability mechanisms, and the architecture of those mechanisms, including the Parliamentary Joint Committee on Intelligence and Security, including the Inspector-General of Intelligence and Security, including various requirements of accountability to the Attorney-General, including reporting requirements to the parliament, has been integral to the confidence that the Australian people have had in ASIO since 1949. That confidence, I believe, has never been significantly prejudiced because although over the years ASIO has made mistakes, frankly it has not made many, in the scheme of things, since 1949. So, Senator Xenophon, the essence of your proposition is that it should not be against the law to disclose the special intelligence operation of an agency which was designed and built to operate covertly. That is what you are saying.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

No I’m not.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

That is the effect of what you are saying, whether you are prepared to acknowledge it or not, and I fundamentally disagree with you

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Not only am I prepared not to acknowledge what the Attorney has said, but I repudiate what he says because the amendment is clear—it must be in the public interest. There is a whole framework there in respect of the public interest. Let me give one example. On 4 August 2009 there was a front-page story by The Australian's Cameron Stewart, one of the most respected journalists in this country. It was headed 'Army base terror plot foiled', and it related to a plot by Islamic extremists in Melbourne to launch a suicide attack on an Australian Army base being uncovered by national security agencies. TheAustralian's story caused a massive fuss at the time. So I am not accused of plagiarism, I am reading from a piece from a MediaWatch story on this on 6 October 2014. I am going to confine my remarks to Mr Stewart's story. There was a huge fuss at the time, with the AFP and the Victorian police accusing Cameron Stewart of putting their operation at risk by reporting the police raids on the day they were going to take place. Cameron Stewart, in response to MediaWatch questions on 3 October 2014, was asked whether he believed his scoop would have been blocked by the new law. It was unclear, because ASIO was also part of Operation Neath, said Mr Stewart—he said he suspected it could have been declared a special intelligence operation under those new provisions, and he did not see how it could have been possible to publish his stories without breaking the law and being liable for jail. Does the Attorney consider that Mr Stewart should be charged under section 35P for that front-page story in The Australian newspaper on 4 August 2009?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

No I do not, and he could not be. Let me explain very simply why he could not be. The activity about which Mr Stewart reported was the execution of a search warrant, it was not a special intelligence operation. ASIO does not need and has never needed a special intelligence operation authorisation to execute a search warrant. In fact, the search warrant powers of ASIO I think have been powers of ASIO since the original ASIO Act of 1955. ASIO was created in 1949 but it was put on a statutory footing I think in 1955. If Mr Stewart was apprehensive that that was so, Mr Stewart is wrong, and the example Senator Xenophon gives is wrong. If that is what concerns you, I can relieve your concerns entirely. Section 35P does not apply to search warrants.

The other example you give, Senator Xenophon, is wrong too. You refer to allegations in relation to spying on East Timor. These are only allegations. But the allegations are in relation to ASIS, the Australian Secret Intelligence Service. Whether those allegations be true or false, this is about ASIO. So, with the two examples you give, one is about the wrong agency and the other is about the wrong procedure. Section 35P applies to neither.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I indicate my support for Senator Xenophon's amendment. It is well known in free speech circles that 35P went too far, even to the extent that the member for Grayndler, Mr Albanese, wrote in the public forum to that effect. Free speech advocates including Bret Walker, Professor George Williams and Tim Wilson, amongst others, have expressed concerns about 35P. The distinction that Senator Xenophon's amendment makes is between recklessness and intention, and I think the amendment brings it back into the realm of intention in an appropriate fashion. There are safeguards in it to protect ASIO personnel, and the grave danger here is that, as we almost did with the torture issue, we would be giving cover for misbehaviour by ASIO agents that, if it was reported, if it was brought to the public's attention, would constitute a crime, so it would be a crime to report what ought to be a crime.

Senator Xenophon's amendment nominates what would be in the public interest and what it would not be a crime to report, which includes maladministration, an abuse of public trust, an officer of a public agency abusing his or her position and action which gives a reasonable ground for disciplinary action. I think the amendment is appropriate and ought to be adopted.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Labor noted its concerns about section 35P and its effect on freedom of the press when this was last agitated. We asked the government to refer the matter to the Independent National Security Legislation Monitor and, despite initial objection, the government agreed to do this. The monitor will be holding hearings and reporting back to the government on this matter in the coming months. It would be inappropriate to pre-empt that process with amendments tacked onto an unrelated bill. As a result, Labor will not be supporting this amendment. I note that Senator Xenophon has also sought to amend other disclosure provisions in Commonwealth law and, again, it is not appropriate for these matters to be agitated in this bill.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I am grateful to Senator Collins, not for not supporting the amendment but for pointing out that Roger Gyles is looking at these matters. But I think there is an urgency in dealing with them now. I understand what the position is. I hope—hope against hope—that, depending on what Mr Gyles concludes, this will be re-litigated, revisited or whatever. I have a serious concern about this.

I will refer to what the Australian Financial Review's international editor, Tony Walker, has said. In the Australian Financial Review on 27-28 September 2014, he said that it:

… will have a chilling effect on reporting of security matters in an environment in which parliamentary oversight provisions are extremely weak.

The legislation will sit on the statute books like a rotting carcass.

Cameron Stewart, who reports on security matters for the Australian, in responding to Media Watch questions on 3 October 2014, said this—and it is very telling:

… Australians will know less than they deserve to about what is happening inside security agencies at a time when they are larger and more powerful than ever before.

I would pose a question to the Attorney—and this is a question that could relate to any attorney. It could be that he could be Attorney for the next 20 years but there will be a successor to the Attorney one day. Under these provisions in respect of 35P, is it not the case that the Attorney has a wide discretion as to what can be declared a special intelligence operation? Could that not, for instance, declare that the execution of a warrant itself could be a special intelligence operation?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

No, Senator, because the warrant application procedure under the ASIO Act and the special intelligence operation procedure under the ASIO Act are quite separate. I hope my staff can remind me of the section that deals with special intelligence operations. The special intelligence operation is the most complex kind of covert operation that ASIO will undertake. It will be undertaken rarely. It requires a series of criteria specified in the ASIO Act to be satisfied before the Attorney authorises it. The application for a search warrant is a much more straightforward procedure. To compare a special intelligence operation to the execution of a search warrant is to compare two procedures, one of which is a very complex and unusual procedure and the other of which is not an especially complex and a much more common procedure.

Senator Xenophon interjecting—

But, Senator Xenophon, if ASIO wanted a search warrant they would apply for a search warrant, and it is a lot easier to get a search warrant than it is to get authorisation for a special intelligence operation.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I thank Senator Xenophon for bringing this amendment forward tonight. I can guarantee that this is not the last time that this chamber will deal with the issue of the fact that the Australian government, with the support of the Labor Party, last year sought to effectively criminalise forms of national security reporting. I did not expect Senator Brandis, who was the sponsor of that bill, to have changed his mind, and nothing that he has said tonight has been particularly surprising. The reason that this amendment was brought forward and the reason that the Australian Greens are supporting it is that it gives the Australian Labor Party a chance to do something about the buyer's regret that it suffered last year.

The data retention campaign and bill has been a little bit different, but last year, after the ASIO bill passed, there was a remarkable outpouring of anxiety, concern, alarm and, I would say, regret from some in the Press Gallery and from some in the Australian Labor Party. We are giving you the opportunity tonight to do something with that buyer's regret and fix the mistake that was made when the ASIO bill passed into law last year. I am very pleased to join with my crossbench colleagues in providing the kind of opposition that this country needs on matters such as this and to provide the Labor Party with the chance to do something with some of the concerns that it expressed after it supported Senator Brandis last year.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I do not want to prolong the debate—and I expected Senator Ludlam to say what he had to say; he has his view and I have mine—but I just wanted to add to my remarks to Senator Xenophon. It has been pointed out to me that not only in a practical sense would ASIO never seek a special intelligence operation authorisation where all it needed was a search warrant, it actually cannot.

The jurisdiction under section 35C and 35D are the relevant provisions of the ASIO Act. The jurisdiction to grant approval to a special intelligence operation is only exercisable in circumstances where there would otherwise but for the authorisation be a breach of the civil or criminal law. That is a not uncommon provision in relation to covert operations. For example, if an officer engages covertly, pretending to be a member of a terrorist cell, for argument's sake, he could find himself engaged in conduct which might constitute the offence of preparation for a terrorist act—playing along, as it were, with the cell that he was trying to penetrate. These are matters of fine operational judgement. But the point I am making to you, Senator Xenophon, is that because a special intelligence operation can be authorised under section 35C of the ASIO Act only in circumstances involving conduct that would otherwise breach the criminal or civil law, it could not—it actually is a matter of law, not just practicality—overlap with a search warrant application, because of course to execute a search warrant is not a breach of the criminal or the civil law.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I have two quick questions in relation to that. Can the Attorney confirm that under no circumstances can the execution of a warrant ever be declared a special intelligence operation?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The answer to your question is yes. There are no circumstances.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Finally, given the review of Roger Gyles QC, the new, or relatively new, national security monitor, is the government open to amending section 35P, depending on the outcome of Mr Gyles's considerations?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

We would not have given Mr Gyles this reference if we did not have an open mind and were not prepared to consider his recommendations. So of course we will consider Mr Gyles's recommendations when we receive them. I mentioned two, but as Senator Collins has, rightly, reminded me, there are actually three oversight mechanisms that we have introduced post the debate: firstly, my direction under the Commonwealth DPP Act to the Director of Public Prosecutions that a prosecution of a journalist under section 35P could be engaged only with the Attorney-General's consent; secondly, the Commonwealth DPP's own guidelines, which further limit and add additional elements to the exercise of his prosecutorial discretion in a case like that; and, thirdly, the review of this provision which the Prime Minister and I referred to Mr Roger Gyles so that he could bring an independent mind to bear on the issues—in good faith, obviously—that you and other colleagues have raised.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I am grateful that the government has an open mind to any recommendations that Mr Gyles may make, even if not to my amendments. So, that is something, and I am looking forward to Mr Gyles's recommendations in due course.

The CHAIRMAN: The question is that amendment (13) on sheet 7672 be agreed to.