Wednesday, 13 May 2020
Australian Security Intelligence Organisation Amendment Bill 2020; Second Reading
That this bill be now read a second time.
Keeping Australian communities safe from those who seek to do us harm is, and always will be, the government's No. 1 priority.
An important way the government achieves this is by ensuring that our national security agencies have the powers they need to work in an increasingly complex national security environment.
The Australian Security Intelligence Organisation (ASIO) is facing a wider range of security challenges than at any time in its 70-year history. As the director-general recently noted in his recent annual threat assessment, the number of terrorism leads ASIO is investigating has doubled since this time last year. The director-general also noted that the threat to Australia from foreign interference and espionage is higher now than it was at the height of the Cold War.
The Australian Security Intelligence Organisation Amendment Bill 2020 will modernise ASIO's powers and, in doing so, improve ASIO's capacity to respond to these threats.
The bill does this in two ways. First, the bill repeals ASIO's existing questioning and detention warrant framework contained in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979(ASIO Act), and introduces a reformed compulsory questioning framework.
Second, the bill aligns the approval process for ASIO to use non-intrusive tracking devices with that of law enforcement agencies under the Surveillance Devices Act 2004 and modernises the definition of tracking device to ensure ASIO is able to use the latest and safest technology to perform its functions.
Amendments to ASIO's compulsory questioning framework
ASIO's questioning and detention powers were introduced in 2003 in response to the growing threat from terrorism after the 11 September 2001 attacks in the United States.
These powers enable ASIO, upon obtaining a warrant, to question a person under compulsion to obtain intelligence in relation to terrorism, including a person with knowledge of but not directly involved in a terrorism matter.
ASIO has used these powers sparingly, with the last questioning warrant being used in 2010. No questioning and detention warrants have ever been sought by ASIO.
But although they are rarely used, these powers have produced valuable intelligence that could not have been obtained through other methods.
ASIO's compulsory questioning powers remain a valuable intelligence collection tool, particularly in light of challenges posed by modern technology, such as encryption.
In 2018, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) reviewed these powers and recommended that ASIO retain a compulsory questioning power, but that the detention power should be repealed.
The committee also recommended that the compulsory questioning power be reformed and, in doing so, that consideration could be given to:
The government accepted the committee's recommendations, and the bill will implement these important measures to ensure these powers are fit for purpose in the current security environment.
Importantly, the bill will retain the existing safeguards and reporting requirements of the current questioning framework. To this end, the bill retains provisions permitting the Inspector-General of Intelligence and Security to be present at questioning and to raise concerns with the prescribed authority, who may then choose to suspend questioning in response.
The bill will retain the role of the prescribed authority as an independent person overseeing the execution of the warrant.
The bill also strengthens the right to legal representation during questioning. The bill ensures that a subject may contact a lawyer at any time during questioning, subject to very limited exceptions.
In the case of minors, it will be mandatory that a lawyer be present at all times during questioning of a minor, and the bill also provides that a parent or guardian may also be present.
Amendments to the surveillance device framework
I turn now to the amendments to ASIO's surveillance device framework.
There is an increasing trend towards less sophisticated attack planning by small groups or lone actors using easily acquired weapons, who can move rapidly from planning to action.
The current authorisation level for the use of tracking devices does not provide ASIO with the operational agility it requires in this evolving security environment. It also increases risks to officer safety by requiring ASIO officers to conduct physical surveillance of potentially dangerous targets in circumstances where there may not be sufficient time to go through the current lengthy authorisation process to use a tracking device.
Currently, in order to use a surveillance device ASIO must obtain a warrant from the Attorney-General. The bill proposes changing this arrangement to allow non-intrusive tracking devices, such as a device placed on a vehicle, or in a person's bag, to be authorised internally by a delegated senior ASIO officer.
Devices that require ASIO officers to do something more intrusive, that would otherwise be unlawful, such as where a property or vehicle needs to be entered, will still need to be authorised by the Attorney-General.
This change will bring ASIO in to line with law enforcement agencies, which are permitted to internally authorise non-intrusive tracking devices under the Surveillance Devices Act 2004.
The ability to internally authorise the use of tracking devices will enable ASIO to better respond to security threats, and in turn ensure that ASIO is better placed to protect Australians.
The internal authorisation framework will include numerous safeguards, such as oversight and reporting, while providing ASIO with capabilities to deal with the changing threat environment.
In conclusion, this bill will ensure that ASIO has the powers it needs to deal with current and emerging threats to our nation's security.
The Morrison government is committed to ensuring our security agencies have the powers they need to operate effectively in an increasingly challenging and complex national security environment. I am sure that this sentiment is shared by all members in this chamber.
I commend the bill to the House.