Thursday, 25 September 2014
National Security Legislation Amendment Bill (No. 1) 2014; In Committee
The government does not support this amendment. When one introduces sunset provisions one does so because a view is taken at the time the legislation is passed, because of the particular character of the provisions sought to be sunsetted, that it is prudent to have a termination date—usually some years into the future—at which the necessity and utility of the provision can be reassessed. And if the government and parliament of the day on that future date do not consider otherwise, the provision automatically expires.
But this regime is by no means a temporary regime. We do not foresee that the augmentation of ASIO's powers by these provisions is something that is going to expire. It is essential to ASIO's ability to collect intelligence relevant to security that it can have close access to entities or individuals of security concern. Currently, some significant operations are not able to commence because such close access may enliven security offences—for example, those relating to associating with terrorist organisations. I appreciate Senator Leyonhjelm's desire to ensure rigorous oversight. As the PJCIS acknowledged, this outcome is achieved by the current bill with that committee's recommended enhancements which the Senate has not adopted. I note that the controlled operations scheme for law enforcement agencies such as the Australian Federal Police is not subject to a sunset clause either. Similarly, the limited immunity from liability in section 14 of the Intelligence Services Act is not subject to a sunset provision.
What we are asking the Senate to adopt in the measures which you seek to sunset is a provision which is consistent with existing laws of other intelligence agencies and the Australian Federal Police, which are not sunsetted. It is a set of provisions that reflect the core business of ASIO which, for as long as ASIO exists, are likely to continue to be needed. That is a judgement that we can make in the here and now, and not in years to come.
Of course, because of the particular character of national security legislation, because it does involve sometimes unusual intrusions on the liberties and privacy of the citizen, the government subjects this kind of legislation to a superabundant level of scrutiny, to which more commonplace legislation is not subject. It is subject to the IGIS, as you know, and it is also subject to the Independent National Security Legislation Monitor who, at any time, can come back to the government and say, 'I no longer consider these provisions to be necessary, and recommend that they be repealed or amended.'
So, Senator Leyonhjelm, I understand why you say what you say but, through the superabundant review processes which apply to this legislation, the concern you express is already accommodated by those arrangements. In any event, it is the government's view—and it is consistent with analogous legislation in intelligence and law enforcement—that this is not the sort of provision which is suitable for a sunset clause.