Thursday, 26 March 2015
Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015; In Committee
This is an attempt to litigate the issue of section 35P of the ASIO Act, which was debated and canvassed extensively in this chamber last year during the debate on the National Security Legislation Amendment Bill (No. 1) 2014. Because this has been debated very extensively in this chamber and this is an attempt merely to relitigate it—it is not immediately germane to this bill; it has, as it were, been tacked on—I do not want to take too long in responding to Senator Xenophon. But let me make a couple of points to you, Senator.
First of all, section 35P of the ASIO Act is confined to the disclosure of special intelligence operations. Special intelligence operations are themselves a defined term, a defined form of operation that was introduced into the ASIO Act last year. They can only be conducted in exceptional circumstances and only if the Attorney-General is satisfied as to a variety of matters that are specified in the relevant provisions of the ASIO Act. But, to give you the flavour of what special intelligence operations are, they are about things like officers of ASIO, under cover, becoming associated with terrorist cells, for example, in order to gather intelligence. That is what ASIO does, Senator Xenophon: it is an intelligence-gathering operation.
In order to gather human intelligence, or HUMINT, to use the jargon term that is used in the intelligence community, officers subject themselves to very, very serious risk of physical harm. And they are entitled to be protected; they are entitled to be protected from disclosure. You can readily imagine, Senator Xenophon, that if the fact of a special intelligence operation that involved, for example, an undercover ASIO officer or officers penetrating a terrorist cell were disclosed, that could well put the lives of those officers or their families at risk. I know you would not wish to do that, Senator Xenophon—of course you would not. But that is the mischief—