Wednesday, 24 September 2014
National Security Legislation Amendment Bill (No. 1) 2014; Second Reading
I rise to speak against the National Security Legislation Amendment Bill (No. 1) 2014. I support the Attorney-General's amendments responding to my concerns about torture and to concerns raised by the Parliamentary Joint Committee on Intelligence and Security. However, the bill, even in its amended form, continues to include concerning provisions. More broadly, the case for the bill has not been made.
I appreciate the Attorney-General's amendment with respect to torture. We have a difference of opinion regarding its necessity. I maintain that torture can fall short of causing serious injury, but the proposed section 35K provides participants in a special intelligence operation with an immunity from criminal and civil liability for certain conduct, provided that it does not cause serious injury. There is no existing provision that would override this immunity in instances of torture and the decency of the current minister and current ASIO staff does not justify having bad law on the books.
Given this, I welcome the exclusion of torture from the immunity, and thank the Attorney-General for this exclusion. Nonetheless, the bill, even in its amended form, continues to include concerning provisions. I have raised my concerns in my submission to the joint committee and in discussions which Attorney-General. But the concerning provisions remain in the bill. These concerns relate to changes to the role of ASIS, to changes to ASIO powers to access computers and to discloses of information about special intelligence operations.
The bill, in schedule 5, seeks to authorise ASIS to cooperate with foreign authorities in undertaking training in the use of weapons. No definition is provided of foreign authorities, so groups such as the Kurdistan Workers Party, a listed terrorist organisation, could be covered. The bill also seeks to authorise ASIS to provide weapons and weapons training for self-defence purposes to an officer of a foreign authority with whom ASIS is cooperating. These provisions would seem to change fundamentally the nature of ASIS. ASIS is our international spy agency. It is not a military force like the SAS. ASIS's legislation prohibits it from undertaking activities that involve paramilitary activities, violence against the person or the use of weapons by ASIS agents. There are only limited exceptions to this prohibition. As such, ASIS should have no particular expertise in weapons and weapons training. While ASIS agents would still be prevented from undertaking paramilitary activities, the provisions of the bill may facilitate ASIS agents in providing weapons and training to underpin those with paramilitary activities. Covert support for paramilitary activities does not have a good track record—think of the CIA—and should not be facilitated.
The bill in schedule 2 amends the definition of a computer so that a warrant authorising ASIO to access data from a particular computer serves to authorise ASIO to access data from one or more computers, one or more computer systems and one or more computer networks. ASIS is not prevented from seeking warrants for such access at present. They just need to specify the access they seek. As such, this provision is an abuse of both language and judicial oversight. The government has committed to update the explanatory memorandum to clarify that a computer access warrant only authorises access to the extent that it is necessary for the collection of intelligence in respect of a specified security matter. While this will be a positive development, the change should be made to the bill. It is the bill that becomes law, not the explanatory memorandum.
The bill also authorises ASIO to make additions, deletions or changes to communications in transit and to third-party computers in order to access data on a target computer. ASIO would be given this power even if less intrusive methods for accessing the data have not been exhausted. As such, this provision would allow the abuse of property. The government's amendment will require material disruption of a computer and non-routine access to third-party computers to be reported to the Attorney-General. This again is a positive development, but reporting should also be directed to the Inspector-General of Intelligence and Security. The bill in schedule 3 also introduces offences for disclosing information on special intelligence operations. There is no public interest exception to the offence. The government has committed to amend the explanatory memorandum to require the Commonwealth Director of Public Prosecutions to take the public interest into account before initiating a prosecution. While this will be a positive development, public interest disclosures should be dealt with in the bill rather than the EM. Moreover, public interest disclosures should not be considered to be an offence that will not be prosecuted. Rather, public interest disclosures should be excluded from offence provisions. As it stands, disclosures remain an offence even if the information was provided by the minister, director-general or deputy director-general; disclosures remain an offence even if the discloser sought to consult with the organisation prior to the disclosure; disclosures remain an offence even if the disclosure does not include information on the identities of participants of a special intelligence operation or information on a current special intelligence operation; and disclosures remain an offence even if the information concerns corruption or misconduct in relation to a special intelligence operation. Disclosures that do not endanger anyone's health or safety, but nonetheless prejudice the effective conduct of a special intelligence operation, give rise to a maximum penalty of 10 years imprisonment. This is excessive—even extraordinary.
When considering these disclosure offences we should remember that keeping secrets is ASIO's job. It is not the job of everyday Australians. It is most definitely not the job of media organisations. We must not forget that it is the role of ASIO to serve the public; it is not the role of the public to serve ASIO.
I will have amendments addressing each of these concerns regarding the role of ASIS, ASIO powers to access computers, and disclosures of information about special intelligence operations. I apologise to the Senate for the delay in the presentation of these amendments. I had hoped to make some progress on these issues in my recent discussions with the government, but these discussions have not borne fruit.
I note that a convincing case has not been made for other measures in the bill, such as changes in schedule 4 to empower ASIS to gather information on Australians overseas, and changes in schedule 6 to introduce new offences for making and copying records and to increase penalties for exiting disclosure offences. Problems with schedule 6 are addressed in Senator Ludlam's amendment—an amendment which I support.
So there are significant problems throughout the bill. Taken as a whole, it could well be described as contrary to the rule of law and detrimental to our liberties. More importantly, a convincing case has not been made that current national security legislation is inadequate. As such, I oppose the bill in its entirety.
You may not find my arguments convincing. You may not be convinced by the arguments of the other voices in this chamber against the bill, but these are not the only arguments against this bill. Thirty submissions on this bill were received in the three-week window provided by the parliamentary joint committee on intelligence and security. These submissions outline numerous arguments against the bill. To my mind many of these arguments were not addressed by the joint committee in its report, and many have not been aired in this Senate debate. Moreover, if more time was given for consideration of this bill I suspect that more arguments against it would surface. If you are uneasy about voting on a bill when the arguments have not been aired I urge you to vote against it.
To those still inclined to support the bill on the basis of the current security environment and the decency of the government and our security agencies, I say this. The security environment will change, the government will change, and our security agencies will change, but this law, if enacted, will remain. I urge my fellow senators to oppose this bill.