Thursday, 10 December 2020
Australian Security Intelligence Organisation Amendment Bill 2020; Second Reading
I rise to sum up the debate in the Senate on the bill before us, the Australian Security Intelligence Organisation Amendment Bill 2020. Keeping Australian communities safe from those who seek to do us harm is and will continue to 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 volatile security environment. The bill before us, the Australian Security Intelligence Organisation Amendment Bill 2020, will modernise ASIO's powers and improve ASIO's capacity to respond to a range of steadily worsening threats, particularly in relation to politically motivated violence, espionage and foreign interference.
The bill before the Senate repeals ASIO's existing questioning and detention warrant framework, contained in division 3 of part III of the Australian Security Intelligence Organisation Act 1979, and introduces a reformed compulsory questioning framework. These powers will enable ASIO, upon obtaining a warrant, to question a person under compulsion to obtain intelligence in relation to politically motivated violence—and this violence includes terrorism—espionage and foreign interference. The bill will also align the approval process for ASIO to use non-intrusive tracking devices with that of law enforcement agencies under the Surveillance Devices Act 2004 and modernise the definition of 'tracking device' to ensure ASIO is able to use the latest and safest technology to perform its functions.
The Parliamentary Joint Committee on Intelligence and Security, otherwise known as the PJCIS, has comprehensively reviewed the powers in this bill and supported the retention of a compulsory questioning power for ASIO. The PJCIS made eight recommendations in relation to the proposed compulsory questioning powers. The government has amended the bill to implement all of these recommendations, and I know, Acting Deputy President Fawcett, you are aware of those recommendations. I understand that I will be tabling a revised explanatory memorandum incorporating those amendments, and I have that here for the officials. These amendments further strengthen the significant safeguards that will accompany the compulsory questioning framework in this bill, including rights to legal representation and extensive real-time oversight, throughout the course of questioning, by the Inspector-General of Intelligence and Security.
The amendments to the Australian Security Intelligence Organisation Amendment Bill 2020 that I have referred to in my speech were prepared, as I've stated, in response to recommendations of the Parliamentary Joint Committee on Intelligence and Security and advice of the Senate Standing Committee for the Scrutiny of Bills. Certainly I would thank both those committees for their work in comprehensively reviewing this bill. The government amendments that I have referred to provide that a legal practitioner who is appointed as a prescribed authority must have engaged in legal practice for at least 10 years and must be a Queen's Counsel or Senior Counsel. This is an important amendment that will ensure that the prescribed authority is well qualified and experienced to carry out their role overseeing questioning. The bill as drafted requires the Attorney-General to consider the minor's best interests, and this includes their mental health and cultural needs amongst other matters. The committee recommended that the bill clarify that the Attorney-General must consider the best interests of the child as a primary consideration, and an amendment has been included to implement this recommendation. I also advise that the government has accepted the committee's recommendations that the PJCIS commence a further review of ASIO's questioning powers by 7 September 2023 and that the powers sunset on 7 September 2025. I also advise that the government has made amendments in line with the committee's recommendations to clarify that the making of a public interest disclosure to an authorised internal recipient under the Public Interest Disclosure Act will not contravene secrecy offences in the bill. The amendments also clarify that ASIO must not use a tracking device without authorisation, where doing so is prohibited by a law of the Commonwealth, a state or a territory.
Recommendation 3 of the committee is:
The Committee recommends that the Australian Security Intelligence Organisation Amendment Bill 2020 and the Intelligence Services Act 2001 be amended to allow the Committee to request a written or oral briefing on any matter in relation to any questioning warrant …
The government notes this recommendation. The committee will have an opportunity to request briefings on questioning warrants as part of a further review, commencing before 7 September 2023.
In addition to the amendments which respond to the committee's recommendations, the government proposed amendments to further strengthen the bill's safeguards. These additional safeguards will: ensure IGIS or IGIS officials cannot be denied entry to a place of questioning and may possess communications devices; ensure that a permitted disclosure under the bill's secrecy offences includes disclosure by a minor to a parent or guardian; and clarify the operation of certain provisions related to the oversight and complaints functions performed by an IGIS official. The government is of the opinion that, collectively, what these amendments will do, or have done, is strengthen the bill and improve the operation of the bill.
Australian security and intelligence agencies face a complex and evolving threat environment. The Director-General of ASIO has, indeed, described the current threat from espionage and foreign interference as greater now 'than at the height of the Cold War'. These sophisticated activities threaten our universities, our government officials, our media institutions and our parliament—key institutions of Australia's democracy—in an attempt to undermine our authority. ASIO's inability to use its existing compulsory questioning powers against suspected spies is a serious gap in Australia's national security legislative framework. Again, in terms of what the bill before the Senate is seeking to do, it introduces important reforms to the Australian Security Intelligence Organisation Act 1979 to ensure ASIO's powers are appropriately tailored to the current security environment, bearing in mind that the Director-General of ASIO has described the current threat from espionage and foreign interference—I will remind senators—as greater now than 'at the height of the Cold War'.
In conclusion, this bill will ensure 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 note from speeches given by other senators in this chamber that this sentiment is shared by those senators. On that basis, I will commend the bill to the Senate.