Thursday, 25 September 2014
National Security Legislation Amendment Bill (No. 1) 2014; In Committee
The government does not support this amendment. There are sufficient limitations in the existing authorisation requirements in section 25A(2) and section 25A(4). Section 25A(2) provides that the minister can only issue a warrant if satisfied that there are reasonable grounds for believing that access by ASIO to a computer will substantially assist the collection of intelligence in respect of a security matter as specified in the warrant request.
Section 25A(4) provides that the minister may authorise certain activities if he or she considers it appropriate. One such activity is using the computer to obtain data that is relevant to the security matter in respect of which the warrant is issued. This means that any computer access must be for the purpose of collecting intelligence relevant to a particular security matter and not to some general or abstract notion of security. In addition, the minister could cause warrants subject to conditions which might further limit access if considered necessary or appropriate in particular operational circumstances. The proposed necessary test would impose a de facto last resort requirement significantly and inappropriately limiting the utility of ASIO's computer access warrants. The access would need to be essential or critical to collect the information relevant to the security matter. It would mean ASIO may be unable to access a computer or part of a computer because other methods of collecting intelligence relevant to the security matter exist, even though these methods may be less effective and carry a higher operational risk. This matter was considered extensively by the Parliamentary Joint Committee on Intelligence and Security. That committee came to the view, unanimously, that there was not a need to amend the legislation in this respect. However, it did, by recommendation 3, recommend that consideration be given to including extra material in the explanatory memorandum. As set out in the government's response to the committee's report, which I released last week, the government has accepted that recommendation.
Additional material has been included in the replacement explanatory memorandum to make clear that the thresholds for the issuing of computer access warrants and the authorisation of activities under those warrants are limited to those activities which are carried out for the purpose of collecting intelligence in respect of a specific security matter as set out in the warrant request. Might I refer you, Senator, to pages 75 to 76 of the replacement explanatory memorandum which deals with the matter.