House debates

Wednesday, 1 October 2014


National Security Legislation Amendment Bill (No. 1) 2014; Second Reading

9:04 am

Photo of Michael KeenanMichael Keenan (Stirling, Liberal Party, Minister for Justice) Share this | | Hansard source

I present the explanatory memorandum to this bill and move:

That this bill be now read a second time.

I am pleased to introduce the National Security Legislation Amendment Bill (No 1) 2014, which passed the Senate on 25 September 2014.

The bill contains a package of targeted reforms to modernise and improve the legislative framework governing the activities of the Australian intelligence community. It principally amends the Australian Security Intelligence Organisation Act 1979 (ASIO Act), and the Intelligence Services Act 2001 (IS Act).

The bill has the benefit of not one, but two, bipartisan reviews undertaken by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) in 2012-13 and also this year.

The 2012-13 inquiry was referred to the committee by the then Attorney-General, Nicola Roxon. The committee examined a range of potential reforms to Australia's national security legislation, including our intelligence laws.

The committee made 22 recommendations to help ensure that our intelligence agencies retain their capability to respond to current, emerging and future security threats.

That inquiry was chaired by the member for Holt, Anthony Byrne. We thank Mr Byrne for his leadership of that committee; and for his continued participation as deputy chair upon the change in government.

The committee's 2013 report led to the introduction of this bill in the Senate on 16 July 2014. On the government's reference, the committee—now chaired by Mr Dan Tehan MP—inquired into the provisions of the bill and tabled its report out of sitting on 17 September.

The committee unanimously recommended that the bill be passed, subject to the implementation of 16 targeted improvements to improve oversight, accountability and other safeguards. The government accepted all of these suggestions, and moved amendments in the Senate to implement the relevant recommendations. These measures were passed by the Senate on 25 September, and represent valuable improvements to the bill.

The government acknowledges and commends the outstanding leadership of the member for Wannon, Mr Tehan, and the constructive participation of all committee members in that inquiry. We further acknowledge those opposite for their bipartisanship in supporting the bill and its timely passage. We thank you for placing the principles of security and accountability above politics.

My colleague the Attorney-General has commented at length on the elements of the contemporary and evolving security environment that have led to the necessity to introduce this bill. This includes the unprecedented threat presented by foreign fighters, together with developments in technology and its uses, as well as the ongoing threat presented by hostile activities such as espionage.

As the parliamentary joint committee has rightly acknowledged, it is critical that our intelligence agencies are equipped with powers that enable them to function effectively in this environment—both now and into the future.

Outline of measures in the b ill

Against this background, the bill enhances the capability of our intelligence agencies in seven key areas, which I will outline briefly.

(1) Modernising ASIO's statutory employment framework

First, the bill contains amendments to modernise the employment provisions in part V of the ASIO Act to better align them with contemporary organisational needs, and Commonwealth public sector employment practices, including interagency mobility and secondments.

Modernisation of these provisions is necessary. They have not been updated significantly since their enactment some 30 years ago.

The bill also implements consistent terminology to describe persons who are in an employment relationship with the organisation, or otherwise affiliated with it.

(2) Modernising ASIO's warrant based intelligence powers

The second key area of reform is to modernise and streamline ASIO's warrant based intelligence collection powers. These reforms are in line with the majority of recommendations in the parliamentary joint committee's 2012-13 inquiry; and the committee's recommendations on the bill in its 2014 report.

Division 2 of part III of the ASIO Act enables the issuing of warrants authorising the organisation to exercise powers to search premises, to access computers, to use surveillance devices, and to inspect postal or delivery service articles.

The proposed amendments will address a number of practical limitations in these powers. In particular, the bill will ensure that the warrants regime regulating ASIO's intelligence collection powers keeps pace with technological developments, particularly the use of computers and online communications by persons of security interest.

In particular, amendments to the definition of a 'computer' to include computer networks and systems will be of particular assistance, recognising that devices are commonly connected to multiple networks and systems.

ASIO's warrant based powers will remain subject to significant safeguards. These include the high thresholds in the statutory criteria for the issuing of warrants and the exercise of powers under them.

The requirements for ministerial level issuing decisions will continue to apply, and the regime will remain subject to the extensive, independent oversight of the Inspector General of Intelligence and Security (IGIS).

The bill will also insert a number of additional safeguards to the new powers.

In particular, ASIO must report to the Attorney-General on all instances in which material interference or disruption is caused to the lawful use of a computer accessed under a warrant.

ASIO must also report, as soon as practicable, to the Inspector-General of Intelligence and Security and the Attorney-General if reasonable force is used against a person, where authorised for the purpose of executing a warrant.

Much of the intelligence information that is relevant to the security of Australia must necessarily be collected by the organisation on a covert basis.

However, such covert operations are not without risks. In addition to the potential risks to the safety of participants, covert operations can in some instances require participants to associate with those who may be involved in criminal activity—for instance, the commission of offences against the security of the Commonwealth.

Covert operations may, therefore, expose intelligence personnel or sources to legal liability in the course of their work. For this reason, some significant covert operations do not commence or are ceased.

To address this issue, the bill creates a limited immunity for participants in authorised, covert operations.

Just as part IAB of the Crimes Act provides for a limited immunity for covert law enforcement operations, it is appropriate that corresponding protections are extended to participants in covert intelligence operations.

Consistent with the parliamentary joint committee's recommendations in its 2013 and 2014 inquiries, the limited immunity is subject to rigorous safeguards.

In particular, it is restricted to the conduct of a participant in a special intelligence operation that is authorised by the Attorney-General. The participant and the specific conduct must be authorised expressly in advance. There are a number of reporting requirements to the Attorney-General and the Inspector-General of Intelligence and Security, where an operation is commenced, periodically every six months, and where certain conduct is engaged in (namely that which causes death, serious injury or property damage).

As an additional safeguard, the limited immunity from legal liability expressly excludes conduct in the nature of entrapment, serious offences against the person or property, and torture.

(4) Clarifying and improving the statutory framework for ASIO's cooperation with the private sector

The fourth major reform will clarify the legislative basis for certain cooperative information-sharing activities of ASIO.

The bill will insert a provision which confirms ASIO's ability to cooperate, on a voluntary basis, with private sector entities, such as owners and operators of critical infrastructure, in performing its statutory functions.

This will remain subject to the extensive safeguards that already apply to prevent misuse of information shared with private sector entities and to ensure privacy of personal information.

These include offences for the unauthorised disclosure of information, the oversight of the inspector-general, and ASIO's obligations to adhere to the Attorney-General's guidelines which require it to take all reasonable steps to protect personal information collected by ASIO for its statutory functions from loss or unauthorised access.

In addition, as the Attorney-General indicated in the government's response to the parliamentary joint committee's 2014 report on the bill, a review of ASIO's guidelines will be undertaken shortly.

(5) Enhancing the capabilities of Intelligence Services Act agencies

The fifth key reform will implement the recommendations of the parliamentary joint committee to enhance the capabilities of agencies under the IS Act, principally by clarifying or strengthening their powers or functions.

Importantly, the bill enhances the capacity of ASIS to cooperate with ASIO, by improving the statutory arrangements for the collection and sharing of certain security related intelligence.

The bill will also improve the protective security capability of ASIS, which undertakes operations in dangerous locations. These amendments will enable ASIS to provide protective security training—such as training in self-defence—to other persons who are cooperating with it in performing its statutory functions.

(6) Improved protection of intelligence-related information

The sixth key reform concerns measures to modernise and strengthen the secrecy offences in the ASIO Act and the IS Act in relation to the unauthorised communication of intelligence-related information, and the disclosure of the identities of our intelligence personnel.

Unauthorised communication of information / dealing with records

These reforms are complementary to the measures recommended by the parliamentary joint committee in its 2013 report. The committee supported the need for these offences, subject to some largely technical amendments, in its 2014 report. As the committee acknowledged, these new and amended offences are necessary to address significant gaps in the coverage of these offences in the contemporary security environment.

As recent, high-profile international events demonstrate, in the wrong hands, classified or sensitive information is capable of global dissemination at the click of a button. Unauthorised disclosures on the scale now possible in the online environment can have devastating consequences for a country's international relationships and intelligence capabilities.

Accordingly, the bill will address a legislative gap by creating new offences applying to unauthorised dealings with an intelligence-related record, including copying, transcription, removal and retention. Currently, no such offences exist. Each new offence will attract a maximum penalty of up to three years imprisonment.

In addition, the bill introduces new maximum penalties of 10 years imprisonment for existing offences involving unauthorised communication of intelligence-related information, which at two years imprisonment are disproportionately low. The higher maximum penalties better reflect the gravity of such wrongdoing by persons to whom this information is entrusted.

These changes, combined with the existing espionage offence punishable by a maximum of 25 years imprisonment, will create a three-tier structure of unauthorised dealing offences that jeopardise the security of intelligence-related information.

In line with recommendations of the parliamentary joint committee in its 2014 report, the offences contain express exceptions for persons who communicate or record information, or deal with records, for the purpose of making a disclosure to the inspector-general.

Disclosure of identity offences

In addition, and as a result of amendments moved in the Senate by the Palmer United Party, the bill increases the penalties applying to offences in the ASIO Act and the Intelligence Services Act for persons who disclose the identities of intelligence personnel.

Currently, these offences carry a maximum penalty of just one year imprisonment, which is manifestly inadequate. It fails to provide sentencing courts with an adequate basis on which to denounce and penalise appropriately the wrongdoing inherent in these offences. The lives, safety and livelihoods of our intelligence personnel depend on maintaining absolute confidentiality about their identities.

As the Senate recognised in supporting these amendments, a maximum penalty of 10 years imprisonment will serve as an appropriate penalty and deterrent for conduct that sentencing courts find to be at the more serious end of the spectrum, in accordance with ordinary principles of criminal sentencing.

The government thanks the Palmer United Party for its foresight in moving these amendments and agrees with the persuasive case for reform that it has advanced, as has been recognised by a majority of the Senate.

(7) Renaming of Defence agencies to better reflect their roles

The seventh and final key reform is to formally amend the names of DIGO and DSD to the Australian Geospatial-Intelligence Organisation and the Australian Signals Directorate respectively. While these agencies have been known by their updated names for some time, the bill will place this on a statutory footing and better reflect the roles that they play in protecting Australia's national security.

Concluding remarks

This bill is a significant contribution towards ensuring the future capability of Australia's intelligence agencies.

More broadly, it is the first step in the government's commitment to maintaining security and, where necessary, improving Australia's already strong national security laws.

We have undertaken a further review of these laws, with a view to proactively addressing any gaps to ensure our agencies can respond effectively to emerging security threats.

Following this, we have introduced a further bill, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill, which is presently before the parliamentary joint committee for inquiry. We will introduce a third tranche of legislation in the spring sittings addressing the important issue of data retention.

The government's No. 1 priority is to keep Australians safe. We are committed to working with parliament, the private sector and our international partners to protect Australians and our interests from those who would seek to do us harm.

May I, again, thank the parliamentary joint committee and acknowledge, again, the chairmanship of the member for Wannon, and its members on all sides of the chamber who have worked so hard to support this important priority.

I commend this bill to the House.

9:20 am

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | | Hansard source

The National Security Legislation Amendment Bill (No. 1) 2014 stems from work which began under the former Labor government in 2012. In May 2012, the then Labor Attorney-General, the Hon. Nicola Roxon MP, asked the bipartisan Parliamentary Joint Committee on Intelligence and Security to conduct a broad inquiry into the potential reforms to Australia's national security laws. The Labor government released for community debate and consultation a national security discussion paper, which formed the basis for the PJCIS's inquiry. The PJCIS held both public and private hearings in 2012 and took evidence from a range of witnesses. Its final report was tabled on 13 June 2013.

It is worth noting the comprehensive process of consultation which the committee undertook in that inquiry. A broad range of community views were taken into account in that process. I will quote from the PJCIS report:

Letters inviting submissions were sent to over 130 stakeholders in both federal and state government, the telecommunications industry, civil liberties and privacy non-government organisations, and peak legal bodies and associations with an expected interest in the reforms canvassed.

The Committee received 240 submissions and 29 exhibits. Three submissions were received in largely identical terms from some 5,300 individual members of the public.

The commissioning of the PJCIS inquiry was just one part of the Labor government's broader approach to updating and improving Australia's national security laws. In 2010, the Labor government established the Independent National Security Legislation Monitor, a statutory office responsible for the ongoing review of national security laws. The inaugural monitor, Bret Walker SC, has provided an invaluable service to the nation in the four reports he produced in his three years in office. In 2012, Prime Minister Gillard launched the COAG review of counterterrorism laws, whose report I tabled in May 2013.

I expect that as the government introduces the successive pieces of national security legislation it has now foreshadowed, it will draw on this work. Where it departs from the considered recommendations of the Parliamentary Joint Committee on Intelligence and Security, the COAG review and the independent monitor, it should be able to provide good reason for doing so. I welcome the government's abandonment of its ill-conceived proposal to abolish the monitor and I call on the government to appoint a new office holder as soon as possible. I am heartened that the Liberal Party senators and members of the PJCIS share this concern. They too have called on the government in their report on this bill to appoint a new monitor as soon as possible.

Each of these measures—the establishment of the monitor, the commissioning of the joint intelligence committee inquiry and the COAG review—showed our government's commitment both to protecting the Australian community from security threats and to making sure that our laws are appropriate, balanced and fair. Labor will always make sure that our security agencies are adequately resourced and empowered, but we are also committed to protecting civil liberties and human rights. We will not abandon the values and the protections which make Australia such an open and free society.

I give this background because it is important to understand the context of this legislation. The government has indicated that it will bring forward a range of legislative responses to the threat of terrorism arising out of recent developments in Syria and Iraq. This bill—the first of several the government has introduced into the parliament or foreshadowed—may certainly have some implications for our security agencies' ability to handle this threat. However, we should be very clear about the content and intent of the legislation we are debating today.

This bill implements the recommendations contained in chapter 4 of the 2013 Parliamentary Joint Committee on Intelligence and Security report entitled 'Australian intelligence community legislation reform'. The bill updates the legislation underpinning our intelligence agencies to take account of technological and social developments and to take account of the agencies' experience of current arrangements, their experience of what works well and what could be improved. It is in the nature of a modernisation, a finetuning of legislation which is now some decades old.

Many of the measures in the bill are largely uncontroversial, though worthy, adjustments to intelligence legislation, including updating ASIO's employment framework, improving ASIO's ability to work and share information with other organisations, enabling ASIS to better cooperate with ASIO, improving ASIS's protective security capability while operating in dangerous environments and renaming our defence agencies to better reflect their roles. Though it is perhaps impossible to separate this legislation from current events in public debate, we should be clear that these are reforms intended to endure well after current threats have faded. We should debate their content on that basis. Subsequent bills, which do not so squarely implement the outcome of a process as lengthy and as exhaustive as the 2012-13 PJCIS inquiry, may merit a different approach.

Labor understands the importance of national security legislation both to agencies and to the community. We understand that some of the commentary and debate about national security at present has caused agitation in the community. I want to assure the community that we will be treating any proposed reforms with the care, the caution and the seriousness they deserve. The provisions of this bill have of course aroused some community concern, particularly among the media. I want to touch on two issues which have been particularly controversial. First, I acknowledge the concerns many have raised about the offence provisions in the new special intelligence operation scheme provided for ASIO in this bill. I know that this has caused particular alarm among some journalists.

SIOs are counterespionage and counterterrorism operations in which ASIO officers work undercover, infiltrating groups which would do us harm. In the course of working undercover in such groups, undercover ASIO officers may have to break the law. The new SIO scheme is modelled on the arrangements which have applied to undercover AFP operations for some years now. It provides immunity from criminal prosecution for ASIO officers in such circumstances, though this immunity does not extend to torture, to any conduct causing serious harm or death, to sexual offences or to serious damage to property.

The establishment of the SIO scheme was supported by the independent monitor. SIOs will comprise only a very small proportion of ASIO activity and are subject to strong oversight. Labor has, in fact, insisted on safeguards stronger than originally proposed by the government, which I will come to later.

The danger to which undercover ASIO officers could be exposed if the nature of a SIO were to become known is obvious. Given the potentially fatal consequences for the small number of ASIO officers to be involved in SIOs, the bill makes it an offence to disclose information relating to a SIO.

Some in the media have objected to the offence provisions to be contained in section 35p of the ASIO Act on the basis that it might inhibit the work of journalists. It has been suggested that journalists and others might unwittingly breach section 35P. Concerns have also been aired about the position of whistleblowers. Labor understands these concerns.

The media are right to vigorously defend press freedom; it is a crucial part of our democratic system. It was in part due to these concerns that Labor ensured the government's bill was referred back to the PJCIS for further scrutiny with the opportunity for community input, including from the media. The committee made a number of recommendations to improve the design of this offence, each of which Labor has supported in amendments in the Senate. The bill has been amended to confirm that no-one can breach section 35P unless, at the very least, he or she is aware of a substantial risk that information relates to an SIO and it is unjustifiable to take the risk. Clear exceptions to the offence have been established for information disclosed to a person's lawyer, for disclosures to the intelligence watchdog, the Inspector General of Intelligence and Security, and for disclosures to a court. The legislation now confirms that the DPP will take account of the public interest in the publication of information in deciding whether a prosecution is appropriate. SIOs must now be approved by the Attorney-General, providing the highest level of political accountability possible. With these amendments and clarifications, Labor will support the new SIO scheme. The community should be reassured of the limited scope of the offence provisions. Labor would not, and will not, ever support laws which prevent journalists who report on national security and related matters from doing their job. We would never support, as the Greens have cynically suggested, 'jailing journalists for national security reporting'. The fourth estate provides a crucial form of accountability and oversight of our national security agencies.

SIOs will only ever comprise a very small part of ASIO's work. Like other aspects of ASIO's operations, they are subject to the oversight, at an operational level, of the independent Inspector General of Intelligence and Security. Amendments we insisted upon put it beyond doubt that IGIS will be able to scrutinise SIOs without hindrance. Section 35P will not criminalise the good-faith activities of journalists. As clarified, a journalist will only contravene that provision where they are aware of the dangers of reporting on an SIO. No-one can inadvertently breach this provision, but where journalists are aware of the possibility of endangering undercover ASIO officers we expect them to act responsibly.

However, I want to make it clear to those who are worried about these laws that we hear their concerns. It is essential we maintain community confidence in our security agencies, which must necessarily work in secret. We can only empower those agencies to do their important work if the community is assured, through appropriate oversight and accountability, that they are meeting community expectations. This work—building confidence and dealing with community concern—is a key task for government. In the case of the SIO scheme, the government has not explained itself well. It has allowed some misunderstandings of what this legislation enables to gain currency. There is always room for reasoned disagreement about the scope of security powers, but some commentary about the SIO scheme has simply misunderstood the nature of that scheme and the operation of section 35P within it. Labor will support these provisions as amended, but we will continue to monitor the operation of the SIO provisions to make sure they do not unduly limit the rights we hold dear. We will insist the government do the hard work of building confidence in our security agencies and we will revisit these measures if necessary.

Secondly, I would like to dispel some of the more unfounded concerns about the changes this bill makes to ASIO's computer access warrants. I have seen some material circulating which suggests that the bill would authorise warrants for ASIO to access the entire internet. I want to reassure the community that this is simply not the case. The definition of 'computer' as relevant to ASIO warrants has been updated to reflect technical developments. The amendments are intended to do nothing more than honour the original, decades-old intention of the warrants scheme in modern conditions.

As the PJCIS noted in its original report:

…in an environment of rapidly evolving technology, the capability of ASIO should not be degraded by the definition of 'computer' in the ASIO Act being obsolete...the term 'computer system' may not be sufficient to include a multiplicity of computers operating together.

This does not mean, as has been incorrectly asserted, that a warrant could in practice take on absurd breadth, encompassing huge swathes of computer systems or, absurdly, the entire internet. Under the legislation, for a warrant to be issued there must be reasonable grounds to believe that access to the computer or computers specified will substantially assist the collection of intelligence in respect of an important security matter.

Though the new definition of 'computer' is intended to afford ASIO flexibility to deal with changed technology, the legislation makes clear that warrants are to be expressed with precision and specificity. These are targeted measures pursued for clear security goals. As amended, section 25A of the ASIO Act will provide:

(3) The target computer may be any one or more of the following:

(a)   a particular computer;

(b)   a computer on particular premises

(c)   a computer associated with, used by or likely to be used by, a person (whose identity may or may not be known).

As to the authorisation in the warrant, the act will provide in section 3A that the warrant must:

(a)   be signed by the Minister; and

(b)   authorise the Organisation to do specified things, subject to any restrictions or conditions specified in the warrant, in relation to the target computer; and

(c)   if the target computer is or includes a particular computer—specify the computer; and

(d)   if the target computer is or includes a computer on particular premises—specify the premises; and

(e)   if the target computer is or includes a computer associated with, used by or likely to be

used by, a person—specify the person (whether by name or otherwise).

The bill empowers ASIO to access, under warrant, specified third party computers in order to access data in a target computer. As the PJCIS noted in its further report, this does not enable access to content on the third party computer. It authorises the use of that computer only as a 'conduit' to the target computer. Again, this is an attempt to grapple with technical changes in honouring the original intent of the ASIO warrant scheme.

Ultimate protection against misuse of computer access warrants is provided by the warrant process itself, in which warrants are authorised by the Attorney-General. The case for each warrant sought by ASIO must be made to the Attorney-General quite meticulously. The agency must justify its request with real rigour. No Attorney-General of Australia will authorise a warrant for ASIO to access the whole of the internet, and each and every individual warrant authorised is subject to the oversight of the Inspector-General of Intelligence and Security.

Again, I know that developing community confidence in these arrangements is difficult. Australians are rightly sceptical of government powers, and of agencies which operate in secret. Again, I think the present government has failed to clearly make the case for these provisions. It has failed to dispel some of the more extreme misunderstandings of what the computer access warrants can authorise, and to assuage the legitimate anxieties of many in the community.

As I have said, most of this legislation is uncontroversial, routine updating of legislation which has been on our statute books now for some decades. Nonetheless, Labor will always insist that national security legislation be subject to very cautious scrutiny.

This bill has been preceded by a long period of careful work and broad consultation. Conscious of concerns about the more controversial measures I have just discussed, Labor insisted that the bill be sent back to the PJCIS for further examination. It is clear that this scrutiny has been valuable in allowing considered public debate and in ensuring that the parliament appropriately balances necessary security powers against the rights and democratic values that our nation holds dear, and that suitable checks and balances are in place to ensure that these powers are always used correctly.

The PJCIS recommended over a dozen important improvements to this bill, and each of these recommendations was accepted by the government and Labor supported amendments to the bill to implement them.

We will continue to monitor the implementation of this legislation to make sure that the correct balance is struck between properly resourcing our security agencies and preserving appropriate safeguards.

As the government brings forward further bills dealing with national security matters, Labor will continue to play the role of a critical but responsible opposition. We will offer the government our assistance in getting the balance right, but our support should not be taken for granted if the government seeks to rush through ill-conceived proposals. I commend the bill to the House.

9:40 am

Photo of Adam BandtAdam Bandt (Melbourne, Australian Greens) Share this | | Hansard source

Everyone in this place wants to make Australia safer, but there are provisions in the National Security Legislation Amendment Bill (No. 1) 2014 that will not make Australia safer. Unscrupulous governments use people's legitimate fears to illegitimately take away their freedoms. Whilst there are parts of this bill that are uncontroversial and could be supported, there are other parts that will fundamentally remove rights and freedoms from people who have done nothing wrong and are not even suspected of having done anything wrong.

The opposition is going along with it. Labor is keen to sign up to Prime Minister Tony Abbott's khaki campaign and cannot move quickly enough to help get these laws through the parliament. The country is going to be the poorer for it.

If these laws pass, our security agencies could inadvertently kill an innocent bystander, and journalists would not be able to report on it. Whistleblowers would not be able to point out that an operation was bungled and resulted in somebody, who happened to be standing in the wrong place at the wrong time as an innocent member of the public, being killed. The whistleblower would face going to jail for pointing that out.

This throws an even greater shroud of secrecy over already secret operations in an environment where we do not have an independent monitor in the way that we have had under previous governments. There are examples in our recent history where we can see that it is only because of the scrutiny of the media or the courage of a whistleblower that we, the Australian people, have found that about what is being done in our name and when the line has been crossed.

Under these new laws, if it were deemed to be a special intelligence operation, we may never have found out that the Australian government had an involvement in bugging the East Timorese, and individuals who wanted to blow the whistle or report on that wrongdoing, because it was in the public interest, would now face jail if this legislation goes through.

This new category of special operations is to be decided on by the Attorney-General. They are limitless in number, and we will never find out that an operation has been determined in this way. So, as a result, journalists have rightly said: 'How do I know if I report on something that I am not inadvertently contravening this section?' That tells us two things: one is that whistleblowers and journalists, who now want to act in the public interest and draw attention to failings or mistakes by our security services, face jail themselves for acting in the public interest. In Australia we certainly would not see the kind of reporting by an Edward Snowden that we have seen elsewhere.

But more worryingly, it is going to have a chilling effect. This provision, if it goes through, will muzzle the media. It will have a chilling effect, because every journalist and every editor will now be worried about whether or not they are going to go to jail if they report on an operation in connection with our security services, and so they are going to be less likely to do it.

It is more than that; it is more than the attack on whistleblowers and journalists who are seeking to bring to light the operations of secret agencies where they step over the line. This bill also significantly expands the ability of the government agencies and of the government itself to access people's computers, their mobiles and their tablets, even where they are suspected of having done nothing wrong. Even if you are not a suspect, your computer can be accessed and it can be modified. The security services can put files onto your computer simply because you happen to be on the same network as someone who is a suspect.

Now, that is just wrong. If you are not suspected of having done anything wrong why should the security services be able to access your computer, phone or tablet? That is a fundamental step in this country that we are taking and one that, if most people knew about it, they would be very concerned, because what this legislation does is redefine what counts as a computer. It is not just one or more computers; it is one or more computer systems, or one or more computer networks or any combination of the above. Anyone with a basic understanding of a network will know that computers at a university might all be connected to the same network and there might be thousands and thousands of people who have access to those computers at that university. If this bill goes through then all you need is one warrant to access every computer on that network.

It is the same in the workplace. There may be hundreds of people and hundreds of computers connected to the one network. Even further, if you just read the legislation as it is, the internet is a network of networks, or a combination of networks. So a single warrant could access the entire internet.

I heard the shadow Attorney-General speaking with some confidence, saying, 'No. You can't access the entire internet from one warrant.' Well, the real Attorney-General refused to rule that out in the other place. When we get to the details stage I will ask the relevant minister here to confirm whether what the shadow Attorney-General said was right. It is very clear to clarify. The question is this: is there an upper limit on how many computers can be accessed from one warrant? A simple reading of the legislation says 'no'.

In the other place, at the Attorney-General said 'no'. And if Labor, in its desperation to be a small target on these issues and to get this legislation through this place as quickly as possible, is now saying, 'Oh, no, you can't access broad networks of computers from this,' well, I am sure that someone from the government will come in and clarify that, because I think the shadow Attorney-General has it wrong.

The shadow Attorney-General also let the cat out of the bag when he said yesterday—which is reported in the papers today—that he cannot be absolutely certain that a journalist will not go to jail for reporting on a story that someone got killed in a bungled ASIO raid. So, the opposition, which is quite happy to sign up to this bill, cannot be certain that if a journalist does their job and reports on a bungled ASIO raid that sees an innocent member of the public killed, then that journalist will not go to jail.

Given that uncertainty, the government and the opposition should support the amendments which we are going to move. We will move amendments that will allow the uncontroversial parts of this bill to go through but that will retain the ability of whistleblowers and journalists to act in the public interest.

We accept, as the Greens, that there should be some limits on revealing information that could potentially endanger an operation or endanger the life of someone who is involved in an operation. So we are not going to seek to remove that section—that will stay. Any argument that somehow opening up access to journalists and whistleblowers to report on the public interest will endanger people is a furphy because that section will stay. What will go, under the Greens amendments, is the section that turns legitimate whistleblowing and legitimate reporting into a crime where someone could go to jail. I strongly hope that Labor supports this amendment and that that is a sign to the government that it has got the balance wrong, and that that forces the government to have a rethink. Then we can at least put in some protections in that regard.

Secondly, when it comes to how wide a warrant can be, I do not believe that anyone who is sitting at home on their iPad who has done nothing wrong or who is jumping on their computer at work should themselves be the subject of an ASIO warrant simply because someone connected to that network is also the subject of a warrant. We accept, though, that times have moved on and it is now the case that a single person may have multiple devices in their home. They may have a phone, a tablet, a laptop and a desktop. So we accept that there may be a case for saying that the definition of 'computer' now needs to be updated.

We will move to limit the number of devices that can be accessed from a single warrant to 20. That should be more than ample to cover the needs of any single warrant served in respect of a particular person. If 20 is not the right number or there needs to be the capacity in certain instances to get more then we are happy to have a talk about how to fix that as well. Maybe it should be 25, maybe it should be 30 or maybe it should be that a judge can decide in an individual instance that an unlimited number is okay. But if Labor and the government refuse to support a sensible limit on the number of devices that can be accessed from the one warrant, whether it is 20 or something else, then the shadow Attorney-General and Labor's argument dissolves because it is then absolutely crystal clear that an unlimited number of devices can be accessed from the one warrant because Labor and the coalition will be standing in lock-step saying, 'There is no upper limit.'

So I hope that the greater reporting on this bill that has happened over the last few days and the legitimate concerns that have been raised by people about the breadth of new powers being given to our security agencies that still do not have independent monitoring and oversight, as well as the concern about what it will mean for reporting, gives people pause for thought. We should not be rushing legislation through this place under cover of what is going on in the broader community and thinking that somehow a hothouse of fear is the best time to make sober decisions about whether to permanently trade away people's freedoms and rights.

The case has absolutely not been made that anything in relation to whistleblower protections, the journalists' protections or the warrant protections will in any way make Australia safer. The government do not come in here and say, 'There are activities that we could have prevented if only we had these additional powers.' Instead, we have a government desperate to hide behind a uniform, as we have seen them do many times before, and to switch the national conversation away from the inherent unfairness of this government, using any excuse they can to remove people's rights and freedoms. As I said at the start, unscrupulous governments use people's legitimate fears to illegitimately take away their freedoms.

If the measures in this bill actually had the prospect of making us safer then we would consider them but they do not. We should not be supporting the bill and we certainly should not be rushing it through. I hope the opposition will be having more than one speaker on this and I hope it is doing more than simply rolling over and giving the government everything it wants. I hope that by the end of this debate we have altered this bill so that we can keep Australia safe while protecting our freedoms as well.

9:55 am

Photo of Andrew WilkieAndrew Wilkie (Denison, Independent) Share this | | Hansard source

I rise to speak on the National Security Legislation Amendment Bill (No. 1) 2014. This is disgraceful, absolutely disgraceful. Here we are with some of the most sweeping, far reaching, deep reforms to Australia's national security legislation in memory yet, when you look at the speaker list, there is the minister for the government, there is the shadow for the opposition and, it appears, one Labor backbencher.

Clearly the government and the opposition—with the exception of the member for Fremantle—do not understand the role of this place. It is to bring ideas in, to bring bills and motions in, to explain them, to fight for them, and, in particular, to explain why there is a need to rush a bill in the way this is being rushed. It is to come in and make the case and explain why the controversial aspects of this bill are there—things that I will describe later as obvious flaws in this bill. It is to come here and make the case why things are missing from this bill.

But where are you? You think you can just ram it through the Senate and bring it into the House of Representatives and in an hour, if we are lucky, the business will be done and we will be left to live with the most sweeping reforms to Australia's national security legislation probably since Federation, and that is not good enough. And it is not good enough to come in here and say it is okay to rush things because of these dire security circumstances.

And it is certainly not good enough to come in here and refer to the 2013 Parliamentary Joint Committee on Intelligence and Security report into these reforms and say that this report backs these reforms. It does not. The fact is, the committee—and I was a member of the committee at the time—was fundamentally handicapped because it did not have a detailed exposure draft to work to. We had basically a handful of pages from the then Attorney-General which pointed us in a particular direction and we were asked to pass comment. Time and time again and in the report's findings, we make the point that we could not properly scrutinise these reforms. In fact, recommendation 41 says among other things that the draft amendments 'should be released as an exposure draft for public consultation'. That has not occurred. The recommendation also states:

The Government should expressly seek the views of key stakeholders, including the Independent National Security Legislation Monitor and Inspector-General of Intelligence and Security.

In addition, the Committee recommends the Government ensure that the draft legislation be subject to Parliamentary committee scrutiny.

Where is the scrutiny? There is no scrutiny going on. There is one speaker for the government and two speakers for the opposition. Again it is left to the crossbench in this place just as it was left to the crossbench in the Senate to take a stand and to hold the government to account.

The fact is this is being unnecessarily rushed. It is a fact that raids over the recent weeks have occurred, quite effectively I understand, with the current laws of the land. None of what is in this bill would have made any difference to the raids that have already occurred. So there is no rush. There is time to get it right.

We do need to modernise our national security legislation. I accept that. We need to modernise the legislation, for example, to make it a technology neutral. So we do need to get it right and getting it right means a proper debate in this place, a debate where a number of obvious flaws could be identified. The media has understandably made much in recent days of the notorious section 35, which would make it an offence punishable by up to 10 years imprisonment for a journalist if he or she was to disclose a special intelligence operation. That will have the effect of shutting down the media. It will also have the effect of discouraging the media from trying to work cooperatively with the government and security agencies because they will hope deniability will be some sort of defence if they are to deliberately or inadvertently report some sort of special intelligence operation.

But there is another issue here. Why are we adding a penalty of 10 years? Do have a problem we need to fix? No. The fact is there is already a penalty for the media disclosing a special intelligence operation conducted by the Australian Federal Police, and that penalty has never been applied. So why on earth are we extending it from a couple of years to 10 years? It is clearly overreach by the security services which have been invited to write an open cheque. The government, which wants to beat its chest and look tough on national security, said: 'We'll sign that!' And the opposition, which is desperate to look just as strong on national security, said: 'We'll countersign that cheque too!' No-one has even made the case that there is a requirement for such a measure in this bill.

But that is not the only thing. These special intelligence operations, apparently, can be authorised by the minister. There is no requirement for any judicial authorisation or oversight of such an operation. That is another fundamental flaw in this bill. Most ministers are very good most of the time; but when we have such sweeping reforms to our legislation we must ensure it is absolutely watertight and prevents some minister, at some future point in time, overreaching and going too far.

That is another problem with this bill: there is no judicial authorisation for special intelligence operations. I do not accept the words of the government, nor those of the opposition, about the limits that would apply to a network of computers that might be under surveillance. The fact is, when you look carefully at this legislation, there are scant limits on the breadth of a computer network that can be surveilled. Again, we have good ministers most of the time; but what about when we have a bad minister? In another security environment, when someone wants to overreach and go further, these laws would allow that minister to go much further than the reassuring words of the government and the opposition today would indicate.

And what is this about ASIO having the right to use force? Up until now, ASIO would have the Federal Police with them—people who are trained, armed, equipped and have a culture around the proper use of force; but with this bill ASIO will be able to barge in and do whatever they want when it comes to the use of force. I will tell you what that will mean: it will mean, more and more, that ASIO will go in alone. A spy agency will go in alone and use force. More and more, they will do away with the inconvenience of having to take the Federal Police along with them. Before we know it, at some point in the future, we will have spies kicking in doors and using force with no police alongside them, and that is another step towards a police state.

These are some of the problems with the bill. But what about all the things that are missing? We do need to update our national security legislation. We do need to ensure that genuine problems are rectified. One of the problems we have at the moment is there is no parliamentary oversight of intelligence operations. I make that point again: there is no parliamentary oversight of intelligence operations. At the moment the only political oversight, if I can use that word, is by the ministers who have responsibility for the particular agencies; for example, the Attorney-General keeps an eye on ASIO and the foreign minister keeps an eye on ASIS. But there is no oversight by the people's House. There is no oversight by the Parliamentary Joint Committee on Intelligence and Security because that committee, by legislation, only has oversight of administrative matters. Compare this with the United States and the United Kingdom where similar parliamentary committees have operational oversight. In fact, as recently as just last year, the British intelligence and security committee was given such power. At least our colleagues in the US and the UK understand that if you are going to give security services powers, especially more powers, then it should be up to the representatives of the people to keep an eye on the use of those powers. I have circulated an amendment which seeks to rectify this. It seeks, in essence, to remove the limits on the oversight power of the Parliamentary Joint Committee on Intelligence and Security. I hope the government and the opposition see the merit in supporting that and will understand it is doing nothing more than bringing our parliamentary intelligence and security committee into line with similar committees in the United States and the United Kingdom.

Now back to section 35P and the concerns that have been expressed about it. It would appear to be a bullying act to send a message to the media: 'Don't you try to report on us. Don't you try to hold us to account. Just go away and report on other things and accept our press conferences and media releases when it comes to security.' It is clamping down on free speech. It is clamping down on having visibility of what the intelligence agencies are up to. The other problem associated with that is this bill does not seek—nor has the government flagged any intention—to amend the Commonwealth Public Interest Disclosure Act, which currently carves out—that is, excludes—intelligence material and intelligence officials from the whistleblower protections contained in the Public Interest Disclosure Act. Over two parliaments now, regrettably, we have whistleblower protection being denied to intelligence officials; we have intelligence material not being covered by whistleblower protection; we are now, in this parliament, going to ramp up the penalty for the media if they dare report an inappropriate intelligence operation. My colleague, the member for Melbourne, has quite appropriately referred to what happened in East Timor, where we now know the Australian Secret Intelligence Service planted listening devices in the Timorese offices—not because Timor is a security threat but because we wanted an Australian company to have a commercial advantage, get a better deal and get the contract. How grubby is that? And what better example is there of a time when the media should report something, bring it to the public's attention and let the public understand what our security services are up to? The fact is: we have very good security services, and most of the time they are doing a very, very good job. But the fact is that sometimes they err and sometimes the people that direct them or supervise them err, and we need to have safeguards in place, such as the media or whistleblowers, to shine a light on those problems and bring them to the public's attention.

The fact that the government, with the opposition's support, is rushing through flawed legislation—flawed because of problems and deficiencies within it—has to raise the question: why? Why is the government, with the opposition's support, wanting to overreach like this? I can only assume that the government wants to capitalise on and exploit the current security environment. I can only assume that the security services are absolutely delighted that they have been invited to fill in a blank cheque. In some ways, this is a distraction. It is another distraction from the fact that our heightened security environment is a result of us helping to start a war that has run for 11½ years, fomented more turmoil in the Middle East and caused more angst within our own community. Perhaps it is to distract us from the fact that we were, until recently, giving broad diplomatic support to the Syrian rebels that included the Islamic State. Now, all of a sudden, the Islamic State has gone from being—I think to quote the Prime Minister, or words of the Prime Minister to this effect—one of the goodies to one of the baddies. This is outrageous. This is absolutely outrageous.

In closing, can I just say this: we do need to be continually reviewing our laws, including our national security legislation. We do need to be modernising that legislation when it needs to be modernised, particularly with changing technology. We do need to look for ways to make this country safer, but we do not make this country safer by this; nor do we give the community any confidence in the parliament, or that they are, in fact, safer, when they see governments rushing through legislation that is full of controversial and problematic sections and is missing the things that are really needed. Hopefully, at least the government and the opposition will see the sense in supporting both the amendments being moved by my colleague, the member for Melbourne, and also my own amendment, because those amendments would go, at least, some small way to rectifying this bill and to genuinely making this country somewhat safer.

10:10 am

Photo of Cathy McGowanCathy McGowan (Indi, Independent) Share this | | Hansard source

I rise to speak about the National Security Legislation Amendment Bill (No. 1) 2014 and why I will not be supporting this bill in this House. The security of our nation and our people is paramount, and this bill is the leading edge of the government's expansion of anti-terrorism laws. I fully support the government taking steps to introduce relevant legislation to counter the insidious march of terrorism in all its forms. Our current suite of laws is not providing the necessary powers to our law enforcement and intelligence agents, and technology has advanced in leaps and bounds. Once again, our laws need to be amended to ensure that Australia can effectively monitor and police in this ever-changing technological world.

The government, with bipartisan support from the opposition, says: this legislation is what is needed. I say: it may be the legislation that is needed, but my biggest concern is that the people of Australia have been neither effectively consulted nor included in the development of this bill. I support the concerns stated by the Law Council of Australia that:

The tight timeframes for the present inquiry limits the capacity of the Law Council and other organisations to provide detailed analysis in relation to these proposals.

When legislation of such significance to all Australians is under development, it is imperative that everybody—individuals, organisations, communities and business—has adequate time to scrutinise and comment. The lack of independent scrutiny of this bill and the lack of time members and senators have been given to consider the complexities are my greatest concerns. I share Professor George Williams' view, when he says:

… the extent to which its changes would extend the powers of government at the expense of citizens is unexpected …

This bill allows greater surveillance of computers, grants immunity from protection to intelligence officers engaged in special operations and exposes journalists to jail for publishing even more general information about terrorism activities. My colleagues on the crossbench have adequately described some of the problems and gaps. But, as an independent member of parliament and as a community representative, today my focus is the impact of these changes on the community.

There is much fear in my community—and, I know, in other communities around Australia—about the terrible work of terrorism around the world and how it impacts, particularly in our major cities. I have been approached by many people in Indi sharing their fears. They are scared for their family and friends. They do not want to lose the free life that we have in Australia. The consequence of this fear has been such that families have come up to me and said they are not travelling overseas to attend weddings. More extremely, members of my small communities are not going to Melbourne or Sydney for footy matches, terrified of what might happen to them in the cities. And they do not understand it. Young people and young leaders have come and spoken in this parliament about the huge implication of this fear on them and their life—the undercurrent of racism; the undercurrent of religious bigotry; the undercurrent of people being different; the undercurrent of the impact when we use fear as a weapon. This fear in my community is devastating. It makes me scared; it makes the people I live with scared. And the consequences will be with us for a long time. It causes lack of trust—lack of trust in the government and lack of trust in our institutions. It causes community to fight community and this impact will be with individuals and communities for a very long time.

So this is not a time to rush through legislation. This is a time for considered approaches. This is a time when we should be our best selves, as the Prime Minister reminds us; not only in parliament to be our best selves as politicians but to call on our communities to be their best selves—to be our most inclusive selves and to be our wisest selves. It is a time to bring our community with us. It is a time to build community confidence. It is a time to help people understand what is happening and to explain that this really is legislation that is going to make our community better.

In closing, I think that we as a country have done a wonderful job in building a coalition of the willing overseas. It is my hope that we can invest in time to build a coalition of the willing in Australia. This is a time, I believe, for 'Team Australia' to play to the whole team, not just a small select group.

10:15 am

Photo of Melissa ParkeMelissa Parke (Fremantle, Australian Labor Party, Shadow Assistant Minister for Health) Share this | | Hansard source

I wish to start my comments on the National Security Legislation Amendment Bill (No. 1) 2014 by making reference to a case that came before the UK House of Lords in 2004 in relation to the detention of foreign terror suspects indefinitely without trial under the UK's Anti-terrorism Crime and Security Act. Lord Hoffmann, in his dissenting judgement, said:

This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.

…   …   …

The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.

Tony Abbott made a speech to the IPA in 2012, in which he referred to the coalition as the 'freedom party'. However, Prime Minister Mr Abbott now believes that 'the delicate balance between freedom and security may have to shift' and that 'there may be more restrictions on some so that there can be more protection for others.' I do not support a number of key elements in this bill and I am aware that there are further, even more controversial bills coming before the parliament in the near future.

I question the premise of the government's general approach to this area of policy, which is essentially that freedoms must be constrained in response to terrorism and that the introduction of greater obscurity and impunity in the exercise of government agency powers that contravene individual freedoms will both produce and are justified in the name of greater security.

So far, the debate on this issue has occurred within a frame that posits a direct relationship between, on the one hand, safety and civility in our everyday lives, and on the other, the powers that impinge upon and make incursions into individual freedom. If we want to continue our lives free from terrorism and orchestrated violence, so the argument goes, we have to accept shifting the balance between freedom and constraint away from the observance of basic rights and towards greater surveillance, more interference and deeper silence. Let me say that no-one should be fooled into believing it is as simple as that.

The truth is that the remarkable peace, harmony and security that we enjoy in Australia is in fact produced and sustained by our collective observance of freedoms and human rights, rather than existing in spite of such values and conditions. It is wrong to say that we have been complacent about security on two counts. First, because we have strong, well-resourced and competent security agencies and, second, because our commitment to a way of life that puts faith in freedom, respect and tolerance, and that puts faith in democracy and the rule of law, is itself productive of peace and shared security.

These are the reasons we must be so careful when we legislate to constrain those freedoms because, contrary to the reductive argument that says we are making a straight trade of less freedom for more safety, the reality is likely to be—and, indeed, has proved to be many times in the past—that constraining our fundamental liberties achieves nothing more than making us less free, and in fact does ourselves harm through licensing the abuse of powers.

In the wake of the past few weeks, delivery by government—assisted by many media outlets—of existential threat and panic/don't panic messages, has caused many people in the Australian community to feel, understandably, confused and anxious. Members of Australia's Muslim communities may fear that the Prime Minister's 'restrictions on some' message applies particularly to them. If that is the case, then surely it is an approach that can only foster fear, mistrust and division, the very opposite of what is needed in terms of investing in community harmony, safety and human security in its broadest sense.

I recognise the process by which this bill has come forward and, of course, I understand that it contains a number of amendments to the Australian Security Intelligence Organisation Act that represent unobjectionable adjustments put forward off the back of the report of the inquiry into potential reforms of Australia's national security legislation. I am also grateful for the recent consideration of the draft bill provided by the Joint Standing Committee on Intelligence and Security. I believe the amendments that the committee has recommended represent improvements, but not, in my view, sufficient improvements.

One critical point to grasp is the fact that the proposed laws are not a response to recent events involving the emergence of Islamic State and the existence of people with criminal intentions based on their adherence to an extreme and deranged world view. It was a surprise, therefore, to see the editorial in The Australian on Monday where, under the heading 'Home-grown terror threat needs new tools to fight it' rushed to conclude:

The new counter-terrorism laws are not an attack on free speech; they are a protection against an evolving threat.

before acknowledging that 'any new counter-terrorism laws should be scrutinised by the parliament' and that 'there is also a role for the media and other non-government groups to offer an analysis of proposed laws, alongside laws currently operating.'

That analysis and commentary certainly should be occurring, but it is hard not to have the sense that there is too much fierce agreement in this space at the moment as a result of people believing that we currently face some completely new and unprecedented terror threat. The reality is, as we have seen from very well-publicised operations recently, that law enforcement agencies have clearly been able to operate effectively on the basis of existing laws and that there has not been convincing evidence of inadequacies in the existing framework that warrant the broad extension of powers that we see here.

I am particularly concerned that this bill entrenches and amplifies the lack of protection for whistleblowers regarding intelligence information, and penalises with up to 10 years jail the legitimate actions of journalists and others doing their jobs in holding the government to account in the public interest. There have been numerous examples of government defence, intelligence and law enforcement agencies here in Australia and elsewhere abusing their powers that have only come to light via WikiLeaks, Edward Snowden and other whistleblowers regarding, for instance, the improper mass surveillance of civilians; the misuse of our aid program; and spying on foreign governments, including for the commercial benefit of corporations.

There are concerns that the offence does not make any distinction between someone acting to sabotage a security intelligence operation and potentially putting security officers' lives at risk, which should rightly attract significant penalties, and persons disclosing information in the public interest when no such danger is present but which may potentially be politically embarrassing. There is no comfort from the explanatory memorandum stating that there will be a prosecutorial discretion to consider the public interest when deciding whether to prosecute a person. This kind of consideration should attract a specific exemption in the legislation, otherwise, as others have noted, there is a very real danger that the provisions will produce a chilling effect on the willingness of the media to report legitimate matters of public interest.

We are assured that the significant impunity for breaking the law that is granted to security officials engaged in SIOs only applies when the officers are carrying out their duties as authorised and is not a green light for corruption or abuse of power. It is unsatisfactory in my view that the external oversight of special intelligence operations is limited to the Inspector-General of Intelligence and Security rather than the more extensive oversight that applies to the AFP's controlled operations. The member for Denison has just highlighted the deficiencies in Australia's oversight of intelligence services relative to other countries such as the UK.

On the question of press freedom and media scrutiny, the editorial in the West Australian yesterday took issue with the new specific provisions, arguing: 'They fail to strike a balance that does not unduly limit the ability of journalists to report on matters of national security. Any controls of this sort must be carefully considered and minimised. In this instance there is a concern that the impetus to act on the terrorist threat may have led to the proposed laws being rushed and not considered as fully as they might have been.' I would contrast the curious yet telling gulf between the nicely timed, neatly packaged and government facilitated media access to the recent AFP anti-terror operations and the utter silence, stonewalling and denial of access to operations that involve asylum seekers. On this I agree with Mark Day, who wrote in Monday's Australian:

Last week we saw much commentary about how state and federal police provided on-the-spot video and still pictures of their raids against a terror group believed to be planning a random beheading in Australia.

How fortunate it was for the government that the raids came precisely as the parliament was considering new anti-terror powers—tougher laws to protect our freedoms by removing them.

Raids of this nature involving 800 coppers for one arrest are obviously newsworthy. Police PRs were beside themselves with delight. You want pictures? How many?

They fed the narrative of a government alert and anything but insouciant.

Now make the obvious comparison. For more than a year the government has refused to give any detail about any “on sea” activity related to people smuggling or asylum-seekers. This is because secrecy suits it.

Secrecy is the government’s starting point. When you seek information from government, no matter how trivial the issue, the default position of any army of PRs is denial, obfuscation or the positioning of as many hurdles as possible to make information gathering difficult.

That was Mark Day in the Australian this week.

I understand that one of the legitimate bases for this bill is the necessary adjustment to cover the kinds of technological change that have occurred over the last 20 years, and I note the considered comments by the shadow Attorney-General in this regard. I nevertheless have concerns about the scope of the provisions, especially in relation to computers and computer networks, including access to third-party hardware or communications. These provisions are the equivalent of a physical search warrant for a house that also allows you to search an arbitrary number of other houses. The JSCIS report notes that public submissions were made by the Gilbert and Tobin Centre of Public Law calling for two categories of improvement in this area: the first being a 'minimal intrusion test' requiring other options for gaining the required intelligence to have been used before ASIO has recourse to a computer network or third-party asset or communication, and the second being a further refinement in terms of scope so that a warrant would only access those parts of a target computer that are reasonably necessary for the acquisition of the relevant intelligence. Unfortunately, neither of these proposals were taken up as recommendations. Instead, the broad requirement that access must be reasonable in all the circumstances was considered sufficient. In my view, this is one of the areas where we may be licensing the potentially improper infringement of privacy and the possible misuse of personal information and communications without due consideration to the dangers involved and without due care and restriction when it comes to those powers.

For an example of how this government regards the so-called balance between security and freedom, one can look to the proposed abolition of the Independent National Security Legislation Monitor. The Prime Minister announced the abolition of this critical office and function earlier this year as part of that government's war against red tape. Other casualties of this bizarre war of self-harm include environmental protections, financial services safeguards, and the framework to address climate change and encourage the development of renewable energy. In this way the so-called war on red tape is unpicking the vital threads of our social fabric, our social compact.

With this bill the essential oversight of security legislation and powers is being undermined when it should be strengthened. As others have noted, the Attorney-General was an active member of the Joint Committee on Intelligence and Security when the committee issued a report with respect to the very legislation we debate here, calling for the assessment of the draft bill by the Independent National Security Legislation Monitor. Of course, thanks to the government, that position has been vacant since April and was to be scrapped. I am glad that as a result of the outcry on this aspect of security oversight in particular the government has reversed its position—though unfortunately not in time for this bill to have been appropriately scrutinised. I believe that at the very least this legislation should incorporate sunset clauses so that the provisions can be subject to review and discontinuance if not found to be necessary or not found to be working appropriately.

I want to conclude by returning to the point I made at the beginning about what is really at issue when we expand the capacity and power of state agencies to infringe upon the privacy and freedom of citizens and, at the same time, constrain the ability of citizens to examine and discuss the use of those powers. There is a lot of talk about the danger of complacency when it comes to security threats, including terrorism. I do not see evidence of that complacency, and none has been put forward. Australia is a remarkably secure and peaceful nation. Our law enforcement, intelligence and defence agencies and personnel do excellent work on our behalf. If there is any complacency, it is in relation to the very dangers that lie in failing to recognise, value and speak up for our fundamental rights, values and freedoms. We have seen what happens when state agencies exercise improper power without effective safeguards, without effective oversight and accountability mechanisms. We would all do well to reflect upon this now as we consider changes in this bill and in others that seek to reset our laws and values in ways that may not only be ill-designed to protect us from dangers and horrors we seem inclined to overstate, but might also in fact wear and fray the fabric of our freedom, trust and faith in government.

10:29 am

Photo of Michael KeenanMichael Keenan (Stirling, Liberal Party, Minister for Justice) Share this | | Hansard source

I thank all honourable members for their contribution to this debate. This National Security Legislation Amendment (No. 1) Bill will implement a series of targeted reforms to modernise the legislative framework governing the activities of the Australian intelligence community. It is imperative that the statutory framework governing these agencies' operations keeps pace with the contemporary evolving security environment. The important reforms in this bill will help ensure that our intelligence agencies maintain their capability to protect Australia and Australians against current emerging and future security threats.

I note that the measures in this bill have been formulated and further refined with the benefit of two bipartisan inquiries undertaken by the Parliamentary Joint Committee on Intelligence and Security. The committee's first inquiry was completed in 2013 under the chairmanship of the member for Holt, the Honourable Anthony Byrne. It recommended a number of reforms to Australia's national security legislation including intelligence legislation. This report led to the introduction of this bill, which represents the government's response to chapter 4 of that report.

Following the introduction of the bill in the Senate on 16 July, the Attorney-General referred it again to the committee under the chairmanship now of the member for Wannon, Mr Dan Tehan. The committee made 17 recommendations in its advisory report on the bill, tabled out of sitting on 17 September. It recommended passage of the bill subject to a handful of targeted amendments to enhance oversight and accountability particularly with respect to ASIO's warrants and its special intelligence operations. As the Attorney-General announced on 19 September, the government supports all of these measures and moved amendments in the Senate on 25 September to implement them.

In addition, the government tabled a replacement explanatory memorandum elaborating on the justification for various measures in this bill in line with the committee's recommendations. This is now included in the revised explanatory memorandum tabled in the House. The government has also supported the amendments moved by the Palmer United Party and passed by the Senate to address the manifestly inadequate maximum penalties applying to offences for the disclosure of the identities of our intelligence personnel. The proposed 10-year maximum penalty will ensure that sentencing courts have discretion to impose a fitting penalty in relation to conduct at the most serious end of the spectrum including that which places at risk the lives or safety of the dedicated men and women who serve their country.

I want to move to respond to some of the specific points that have been made in this debate. I would like to thank the opposition for their express support for this bill, as amended in the Senate, to include the government's responses to the parliamentary joint committee's recommendations. As honourable members in both the government and the opposition have acknowledged, the measures in this bill will, with the benefit of the recommendations from that committee, strike an appropriate balance between ensuring that our agencies have adequate powers and providing for necessary limitations and safeguards. The bill has undergone a rigorous and thorough process of scrutiny—and I might just say that, whilst we welcome the bipartisanship that has been shown on this bill, clearly, from some of the comments from individual members, that bipartisanship is not necessarily shared by everybody within the opposition, but I will move to that a little later.

I want to address the comments of the member for Melbourne and member for Denison. I note that the Australian Greens and the member for Denison have made various comments about measures in this bill which have focused on special intelligence operations, disclosure offences and computer access. As the Attorney-General mentioned repeatedly in the Senate, all of these points were examined in detail by the parliamentary joint committee. We are comfortable that they have been dealt with appropriately.

On the specific issue of special intelligence operations, I note that adoption of this scheme was supported by the parliamentary joint committee in its 2013 and 2014 reports. The former Independent National Security Legislation Monitor similarly recommended the adoption of such a scheme. A comparable regime for covert law enforcement operations, known as 'controlled operations', exists in part 1AB of the Crimes Act.

On the issue of disclosure offences where concerns were shared by the member for Melbourne and the member for Denison, suggestions that they will unacceptably prevent acts of whistleblowing, it is important to note that none of the offences will disturb any of the existing mechanisms for making legitimate disclosures of suspected wrongdoing. This includes the making of disclosures in accordance with the Public Interest Disclosure Act and the making of complaints to the Inspector-General of Intelligence and Security. In addition, any person can report suspected offences to the Australian Federal Police.

To avoid any possibility that the offences could be perceived as disincentive to persons who may wish to make appropriate internal disclosures, the government's amendments, as agreed to by the Senate, insert express exemptions for disclosure to the Inspector-General of Intelligence and Security or his or her staff. To the extent that the Greens appear to support wider exemptions that would permit the unauthorised dissemination of sensitive intelligence related information to the world at large, the government makes no apology for criminalising such conduct. This is not, as has been wrongly suggested, about preventing the release of information that might simply embarrass the government of the day or expose it to criticism; this is about providing a necessary and proportionate limitation on the communication of information that relates to the core business of intelligence agencies. I need hardly add that unauthorised disclosures of intelligence related information particularly on the scale that is now possible in the online environment can have devastating consequences for a country's international relationships, for a country's intelligence capabilities and, very importantly, for the lives and safety of our intelligence personnel.

The member for Denison had concerns—and I understand that these concerns are also expressed by the member for Indi—about limited consultations on this bill. Really, it is simply an incorrect assertion that this bill has been rushed through this parliament. I have made repeated references in my contribution, in my introduction are now in the summing up, to the reports that were done by the very effective bipartisan operating in the Parliamentary Joint Committee on Intelligence and Security. They conducted not one but two inquiries which attracted considerable public interest and participation. The government has also consulted the Inspector-General of Intelligence and Security on the draft bill. In addition, the inspector-general's submission and evidence to the inquiry are all on the public record. This is consistent with the committee's intent that there should be consultation on, and further scrutiny of, provisions of the bill. As the Parliamentary Joint Committee on Intelligence and Security acknowledged in its report, 'Full and proper consultation was undertaken.' This is evident in the report it has produced, which represents a very significant concentration of effort.

I again want to commend in this House the member for Wannon, who, as chairman of that committee, led those consultations. He is a very diligent member. The work that he has done within time frames has been exceptional. I want to commend him and others on that committee for the work that they have done in improving this bill. It is a committee whose thoughts and recommendations are taken very seriously by the government. The fact that this bill has evolved in relation to the report that they made is, I think, ample evidence of that.

Before I conclude, I want to turn to the remarks from the member for Fremantle. I understand that the member for Fremantle has strong views about this. I respect that she has a right to disagree with the government. I understand that she has echoed some of the concerns that have been made by the member for Melbourne, the member for Denison and the member for Indi. I will not repeat the government's response to those particular points, but I want to address something that she mentioned, which I do not believe any other member of this House has mentioned in this debate. This is a very important myth to dispel—the idea that the government directs our law enforcement or intelligence agencies over the timing of operations. That is absolutely wrong. It is an insult to both the acting commissioner of the Australian Federal Police and to the director-general of intelligence—who, quite frankly, would not accept an improper order from this government. We would never seek to make it and if we did, they would not undertake it.

Operational decisions about terror raids and, for that matter, criminal raids are taken by our law enforcement agencies independent of government. They do not respond to the government's political agenda. In relation to the raids that the member for Fremantle specifically addressed, those raids were taken because the law enforcement and intelligence community had had very credible intelligence that a random act of violence was going to occur on Sydney streets within days. The idea that our law enforcement or security community would sit around and wait for harm to come to random members of the Australian community is ludicrous. The idea that somehow they were directed by the government to do that because we were looking at legislation in this House is completely and utterly wrong. The member for Fremantle should repudiate any such ludicrous suggestions.

May I conclude by acknowledging the work of the Parliamentary Joint Committee on Intelligence and Security. As I said, their work has been excellent. It has been thorough and constructive, and their reports are bipartisan. I thank my colleagues from all sides of the chamber for recognising the need for these important reforms and for placing principles of security and accountability above politics. Your work is a testament to the high quality of parliamentary scrutiny that is rightly applied to Australia's national security legislation and has rightly been applied in the case of this bill. This is an important bill. It secures the security of the Australian community and I wholeheartedly commend this bill to the House.

Photo of Ross VastaRoss Vasta (Bonner, Liberal Party) Share this | | Hansard source

The question is that this bill be now read a second time.

A division having been called and the bells having been rung—

As there are fewer than five members on the side for the noes, I declare the question resolved in the affirmative in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.

Question agreed to, Ms McGowan, Mr Bandt and Mr Wilkie voting no.

Bill read a second time.