Monday, 24 June 2013
Intelligence and Security Committee; Report
() (): On behalf of the Parliamentary Joint Committee on Intelligence and Security, I present the committee’s report entitled Report of the inquiry intopotential reforms of Australia’s national security
Ordered that the report be made a parliamentary paper.
by leave—I am pleased to present this report. It has been 12 months of intense labour by members of the committee and I have five minutes to speak about it. Recent events such as the Boston bombings and the murder of a British soldier in the streets of London remind us of the impact of terrorist attacks and the continued need for the government and its security and intelligence agencies to maintain vigilance, preparedness for and defence against terrorist attacks.
The committee recognises the need for our security and intelligence agencies to be appropriately resourced, and to be granted powers which are often intrusive, in order to undertake their role. However, these intrusive powers must always be balanced by appropriate safeguards for the privacy of individuals and of the community. This recognises that Australia is a democracy which values personal freedoms and imposes limits on the power of the state. The committee's report reflects these fundamental values.
In May 2012 the then Attorney-General, the Hon. Nicola Roxon, asked the committee to inquire into a package of potential reforms to Australia's national security legislation. The committee was provided with a discussion paper outlining the reforms the government wished to have the committee consider. The committee was tasked with examining potential reform, of which three objectives were: to modernise lawful access to communications and communications data; to mitigate the risk posed to Australia's communications network by foreign technology and service suppliers; and to enhance the operational capacity of intelligence community agencies. The terms of reference contained 18 reform proposals involving 44 specific items across three reform areas. Importantly, the context for the committee inquiry included the serious challenge presented by new and emerging technologies upon agencies' intelligence-gathering capabilities. The committee received 240 submissions. Three submissions were received in largely identical terms from 5,300 individual members of the public. These submitters expressed opposition to the reforms put by the then Attorney-General, particularly with regard to the proposal to introduce a mandatory data retention scheme. I thank all those who contributed to the inquiry.
I note that the committee was faced with several difficulties. These included that the terms of reference were wide ranging and canvassed some of the most complex and significant reforms to national security legislation ever to come before the parliament. The absence of detail in the discussion paper concerning mandatory data retention also significantly impaired both the public discussion and the committee's consideration of the issue. Against this backdrop the committee was deliberate in taking the time needed to examine carefully the issues before it. Despite these challenges, Speaker, I am pleased to advise that the committee has produced a comprehensive and, critically, unanimous report which carefully considers both the needs of our national security agencies and the right of the individual.
The committee made 43 recommendations. In the time available to me, I will note three of the committee's principal recommendations. First, the committee recommends that the Telecommunications (Interception and Access) Act should be comprehensively revised, with the objective of designing an interception regime which is underpinned by clear privacy provisions—provisions which are technologically neutral—by the maintenance of investigative capabilities clearly articulated in enforceable industry obligations and by robust oversight and accountability which supports administrative efficiency. Second, in recognition of the need to ensure the protection of privacy and security of data and critical infrastructure, the committee recommends the adoption of telecommunications sector security reforms. Third, the committee recommends targeted reforms to legislation which supports the AIC in discharging its duties and equips it appropriately to protect the Australian community.
One of the main proposals the committee examined was that of mandatory data retention—that is, a regime which would potentially require telecommunications companies to retain communications data, such as subscriber details, for a period of time. The committee felt that whether or not to introduce a mandatory data regime is ultimately a decision for government. However, the committee has taken note of the views of concerned members of the public, which are summarised in this report. In fact, the option of a committee being asked to recommend the establishment of an intrusive power, without draft legislation, provided an almost existential moment for the committee. With the events of America with PRISM, the public must have confidence in its parliamentary oversight agencies. Therefore, the committee was extremely careful in putting forward a model, if the government chooses to go down that track. It is the government's decision to include intrusive powers and then bring that back to the committee.
In the time available, this work could not have been done without the committee secretariat, particularly Jerome Brown, Robert Little, James Bunce, Cameron Gifford and Simon Lee. I thank the committee members. They are most responsible committee I have served with. They had civil liberties in mind. They had the protections of the community in mind. This committee is the best I have ever worked with; it discharged its duties absolutely admirably.
I commend the report to the House.
I have some observations and comments on the outstanding leadership of the chair of the committee, the member for Holt. Committees work well only when leadership is offered and is present, and the leadership of the chair of this committee, Mr Byrne, has been greatly appreciated. I am glad he got to thanking our team: the committee secretariat and, may I add, particularly the specialist advisers that assisted us with what is in fact a very difficult area of public policy.
I do not intend to try to canvass all of the issues. I will go right to the nub of the matter. The nub of the matter is in recommendation 42, which deals with data retention. Data retention is a matter that the government has been asked to look at in the context of organisations losing their capacity to obtain intelligence information if required, because people will use the facilities where no data is kept and that opportunity to interrogate it would be lost. It is important to understand that, in the Australian context, no data is ever interrogated without a warrant. It requires a warrant either from the Attorney-General—in relation to the security agencies' access—or from law enforcement officers. I think it is very important to understand that, when these issues are discussed in terms of privacy, matters like these are examined only when the warrant system permits it.
I am sorry the Attorney, who was here for my colleague's speech, has left. For my own part, I think the handling of this issue by the government has been appalling. The government should have brought forward, as the chair mentioned, precise recommendations in the form of draft legislation that we could comment on in a meaningful way. The committee came to a view that it was not prepared to comment on it without the government going that extra step.
I want to speak about these issues in the context of some observations made by the shadow Attorney only this weekend. I have long been of the view that terrorism is something that will remain with us far longer than we would like, and I was very surprised when there was a statement by the Prime Minister about where we are, suggesting that 10 years after 9-11 circumstances had changed and the same urgency did not attach to terrorism. But, shortly after, we saw the events mentioned by the chair in Boston and the events in London, and I might add to that what is happening now in Syria. I am not blowing any secrets when I say that from newspaper reports there are suggestions that there are numbers of Australians who have gone abroad to participate in these activities in Syria, who are being trained and prepared in a way which would make them, on return to Australia, highly susceptible to engaging in terrorist activity here. All of the agencies, it is reported, believe that those are matters that they have to examine.
The committee's report has dealt with a lot of matters which, if the members had been given their druthers, they would have put off as well. But we have been able to obtain a remarkable degree of unison of view, which recommends reforms that should be progressed now to ensure that our agencies are able to deal with the threats that remain in a real and substantial way. I think these issues need to be looked at with regard to privacy questions but also with regard to the risks that are there. This matter will be addressed by a new government. I hope whoever is there will be able to deal with these matters, given this report, promptly and quickly and that the substantial reforms that the agencies need will be implemented.