Thursday, 26 August 2021
Foreign Intelligence Legislation Amendment Bill 2021; Second Reading
The Foreign Intelligence Legislation Amendment Bill 2021 addresses serious gaps in Australia's foreign intelligence capability. In these uncertain times it is more important than ever that Australia's intelligence services have the capacity to detect any potential threats and are not trying to do so with one hand tied behind their back. This legislation simply brings Australian foreign intelligence interception laws in line with our Five Eyes partners, as the inquiry of the Parliamentary Joint Committee on Intelligence and Security has found. It is underpinned, of course, by robust safeguards and oversight, which I will talk to in a moment.
The first of these reforms will allow intelligence agencies to intercept communications for the purpose of foreign intelligence where the geographical location of the sender and recipient cannot be determined prior to interception. This reform itself does not grant intelligence agencies new powers. It simply updates the law to reflect the reality of modern communications and to ensure existing powers can continue to be used. That's an important point to make, and I stress it. It was much easier to determine the origin of communications 20 years ago. These days it's increasingly difficult to do so.
But the nature and scope of foreign communications warrants remain unchanged. ASIO is responsible for obtaining foreign intelligence inside Australia and is the only agency that may apply for or obtain foreign intelligence warrants, including section 11C warrants. Section 11C warrants do not allow bulk collection of foreign communications now or in the future. The law requires that the collection of foreign intelligence under section 11C warrants be highly targeted, and this will not change. The act and the amendments do not permit indiscriminate collection.
Foreign communication warrants have been a critical part of Australia's foreign intelligence legislative framework for more than 20 years. These warrants are issued by the Attorney-General at the request of the Director-General of Security and on the advice of the Minister for Defence or the Minister for Foreign Affairs. The circumstances in which the warrants may be exercised and the conditions that apply to them are approved by the Attorney-General and remain under the stringent oversight of the IGIS. These warrants authorise the interception of foreign communications for the purpose of obtaining foreign intelligence.
The other major reform in the bill closes the loophole on those in Australia working for a foreign power. The Richardson review recommended reforms to allow foreign intelligence to be collected on onshore Australian citizens and permanent residents who are acting for or on behalf of foreign powers. It's an illogical situation where foreign intelligence can be collected on an Australian working for a foreign power offshore but that same intelligence cannot be collected under a warrant on that same Australian onshore.
Unfortunately, there are circumstances where Australian citizens and permanent residents are of legitimate foreign intelligence interest—for example, where an Australian citizen is recruited for foreign espionage purposes. As the Richardson review observed, an Australian serving the interests of a foreign government remains an agent of a foreign power whether they are onshore or offshore. It is important that our intelligence agencies can obtain information to protect and promote Australia's national security foreign relations.
Now I would like to address some attempts made earlier in this debate to conflate the foreign intelligence reforms in this bill with the Foreign Influence Transparency Scheme. There is no connection between the two. The Foreign Influence Transparency Scheme provides the public with visibility of the nature, level and extent of foreign influence on Australia's government and politics. The scheme is not in any way related to the legal framework governing the collection of foreign intelligence by Australia's intelligence agencies. It does not in any way suggest that an individual is engaged in espionage.
In contrast, this bill enables the Director-General of Security to seek a warrant to collect foreign intelligence on Australians acting for or on behalf of a foreign power. There is a strenuous process and safeguards in place. The Attorney-General cannot issue a warrant unless satisfied the person is, or is reasonably suspected by the director-general to be, acting for or on behalf of a foreign power. The safeguards contained within the broader foreign intelligence warrant framework will continue to apply. These include, first, that collection activities are conducted by specifically approved personnel; second, that the Attorney-General may approve a foreign intelligence warrant only when satisfied on advice from either the Minister for Defence or the Minister for Foreign Affairs that the collection is in the interests of Australia's national security, foreign relations or economic wellbeing; third, that warrants must not exceed a six-month duration. The IGIS will also continue to have oversight of agencies' activities under these warrants. The IGIS has extensive powers akin to those of a standing royal commission, and is an essential safeguard.
I point out that the term 'foreign intelligence', defined in section 5 of the TIA Act, means 'intelligence about the capabilities, intentions or activities of people or organisations outside Australia'. The term 'foreign power' is defined in section 4 of the ASIO Act:
(a ) a foreign government;
(b) an entity that is directed or controlled by a foreign government or governments; or
(c) a foreign political organisation.
It's absurd to suggest, as Senator Patrick has tried to today, that the bill would permit the Director-General of Security to seek a warrant for any Australian acting for or on behalf of a foreign power merely because they are on the Foreign Influence Transparency Scheme Public Register. The existing warrant thresholds must still be met, in addition to the requirement to be acting for or on behalf of a foreign power, before a warrant can be obtained to collect foreign intelligence. There are robust safeguards around the issuing of these warrants. To conflate this bill with the Foreign Influence Transparency Scheme is irresponsible and, frankly, shows a lack of understanding about both the bill and our current foreign intelligence framework.
In conclusion, our national security laws must continue to keep pace with the evolving operational environment and changes in technology. The Comprehensive Review of the Legal Framework of the National Intelligence Community, known as the Richardson review, made clear that the Telecommunications (Interception and Access) Act 1979 has not kept up with the modern communications environment and that both targeted and substantive reforms are required. The reforms in this bill include robust oversight and safeguards, and the crucial bottom line is that this bill will help intelligence agencies protect Australians. It will make it easier to uncover terrorist plots and other serious threats to Australia's national interests now and into the future. Without the proposed changes, gaps in foreign intelligence collection will continue to grow and Australia will not have visibility of possible threats, creating serious risks. This bill is required with urgency.
I really caution senators who have been critical of the fact that we are working to ensure the passage of this bill this week—today. Given the situation with COVID-19 and state lockdowns, we simply don't know with any degree of certainty how long the parliament will be able to sit and deliberate. The fact is that each day these reforms are not in place is a day that Australians are put at risk, that our agencies miss critical foreign intelligence about threats to Australia and Australians, and that harms our national interests. Our government makes no apology for putting the safety and security of every Australian first.
I recognise and commend the Australian Labor Party at this particular point in time for their recognition of the vital importance of this bill and their constructive work through the Parliamentary Joint Committee on Intelligence and Security, chaired ably by Senator James Paterson. The bill has had oversight by the Parliamentary Joint Committee on Intelligence and Security, and it's worth noting that the recommendations from their inquiry have been adopted in full by the government. These strengthen even further the robust safeguards and oversight that the government has provided with this bill, and it is commended to the Senate.