Senate debates

Thursday, 26 August 2021


Foreign Intelligence Legislation Amendment Bill 2021; Second Reading

3:59 pm

Photo of Paul ScarrPaul Scarr (Queensland, Liberal Party) Share this | Hansard source

It's always a delight to follow my good friend Senator Smith, who's going out of the chamber as I pay him a compliment. I'm obviously not reflecting on your leaving the chamber; I'm reflecting on what you said in the chamber and doing so in a complimentary fashion. I'm very pleased to rise to speak on the Foreign Intelligence Legislation Amendment Bill 2021. At the outset I'll pick up on one of the themes that Senator Smith brought to the debate, and that is that it is pleasing that the coalition, my party, and the Labor Party are on the same page when it comes to these critical policy issues with respect to national security. It is important that the governing parties in our political system are on the same page when it comes to national security issues. There's a lot of heritage and tradition in that regard as we look at our history, and from my perspective it's something we should always seek to maintain. I'd like to make three preliminary points with respect to the context in which this bill is being considered.

First, the No. 1 priority of the Commonwealth government is to protect the citizens of Australia. That has to be the No. 1 priority of our Commonwealth government, and that's the context in which we have this discussion with respect to this bill, the Commonwealth government protecting the lives and liberties of our Australian citizens and everyone who is in this country. Second, I want to pay tribute to all of those in our defence forces, our intelligence agencies, our police forces and everyone who supports them because they help to achieve the objective of keeping us safe. I really want to pay tribute to them and I salute them, especially on this day when so many people are doing so much to make others safe in an international context. I want to salute each and every one of the people who keep us safe whilst we sleep at night. Third, in order to keep our country safe and in order to have an appropriate system of governance to keep our citizens and everyone who is residing in our country safe, we must be adaptable. We must be prepared to consider reasonable and proportionate legislative changes to reflect the changing environment, and the changing environment includes technology. It includes technology because, as we all know, it's moving at an incredibly fast pace. It should be recognised that the act that is being amended in this case was first introduced in 1979. A lot has happened since 1979. I see Senator Cash nodding wisely, sagely, as she does. Senator Cash, I'm sure you weren't born at the time, but I was 10 years old, and a lot has changed in terms of telecommunications since that point in time. It is important that our security legislation keeps up to date with those technological changes, and that's what this bill seeks to do.

In relation to the specifics of this bill, it deals with a particular gap in our national defences. I must say that, before this bill was presented, I wasn't aware of this gap in our national defences, so this bill has been somewhat of an education for me with respect to this area of intelligence gathering. The gap is that you potentially have situations where foreign intelligence needs to be collected with respect to particular Australians who might be thought to be acting for foreign powers, but that foreign intelligence needs to be collected in a domestic context. It needs to be collected onshore, and therefore you have a situation which evolves where there can be a mix of foreign intelligence and domestic telecommunications information, and the collection of one, the domestic, can taint the other, the foreign. That's an unacceptable set of circumstances. That needs to be addressed so that foreign intelligence can be gathered, even with respect—especially, perhaps, with respect—to Australians within our own borders who are acting in the interests of a foreign power and whose activities need to be scrutinised by our intelligence agencies. That's the gap which this bill seeks to and does address effectively.

One of the matters we need to always consider with respect to intelligence arrangements is whether or not there are effective checks and balances. This is extraordinarily important. It goes to the heart of our Westminster system. It goes to the heart of our democratic processes. It goes to the heart of our rights and freedoms as individuals in this nation. I'm very pleased that this bill is being proposed in the context of appropriate checks and balances to protect the rights and liberties of every Australian.

Firstly, the Director-General of Security is required to provide the Attorney-General with a detailed justification of the grounds on which the Director-General suspects a person is acting for or on behalf of a foreign power. That's an important point. Before these powers can be exercised, the Director-General needs to provide the Attorney-General—and I'll say a bit about the context of the Attorney-General—with a case as to why the Director-General suspects that these powers need to be invoked. It's important to note—as Senator Cash would know very well, and my friend Senator Watt, from Queensland, would know very well, given his background—that the Attorney-General in our system of government is not just a member of the executive. The Attorney-General is the first law officer of the nation. With that status come special responsibilities and special expectations, including an obligation to the rule of law; an obligation to stand up for our independent judiciary and our court system; and an obligation, in terms of discharging this particular power, to scrutinise the request for the exercise of intelligence powers such as these. So that's the first check and balance—the Director-General of Security being required to provide the Attorney-General with a detailed justification for the exercise of the powers.

When we move on to the next step in the process, the second check and balance is that the Attorney-General has to be satisfied that the person who is the subject of the application is 'reasonably suspected' by the Director-General to be acting for or on behalf of a foreign power. That standard of reasonableness is extremely important and it contains an objective component. When the Attorney-General is considering an application with respect to the operation of these powers, the Attorney has an obligation to scrutinise the basis of the application and consider whether or not, in all the facts and circumstances, the application is reasonable. And the Attorney-General, as the first law officer of the nation, is responsible for the decision that the Attorney comes to in that respect.

So the first element is the fact that there is a reference to the Attorney-General; the second is the standard to which the Attorney-General has to satisfy—in our case—herself with respect to the power of the application; and then there is the third element of the suite of protections, the checks and balances, that apply in the context of this bill, and they are the broader protections which apply with respect to the exercise of powers relating to security and intelligence. In that context, the first point is that these powers can only be exercised by appropriately trained personnel. There are three elements to that. The first is the actual training. That's the mechanics in terms of the process and what steps need to be gone through, including navigating through the checks and balances, before the powers can be exercised and the relevant procedures activated. That's the first element—the training. The second element is the culture of the organisation in which the personnel are embedded. It is extraordinarily important that the culture of that organisation is appropriate, that they understand the serious nature of these powers and the need to protect the rights and liberties of all Australians. So you've got the training and the culture of the organisation. The third element is the character of each individual staff member or officer who is exercising these powers. That's the third limb, from my perspective, the character of the people, each and every one of them who is exercising these powers. I think you need to get all three right—the specific training, the culture of the organisation and the character of the individual who is exercising those powers—and, first and foremost, is understanding the serious nature of the powers.

The second check and balance in terms of the overall scheme of checks and balances in the intelligence and security space in our nation is that the Attorney-General only approves a foreign intelligence warrant when satisfied, on advice of the Minister for Defence or the Minister for Foreign Affairs. Again, that's appropriate; that's a further check and balance within the executive of our Westminster system of government. And the third check and balance is to satisfy that the collection is in the interests of Australia's national security. That is extremely important as well—that it has to be in the interests of our overall national security. And that comes back to the first point I made at the start of this contribution to this debate—that the first priority of the Commonwealth government is to protect its citizens.

The fourth check and balance in terms of the overall security and intelligence regime is the oversight from the Inspector-General of Intelligence and Security. Again, that is an extremely important oversight function. It should also be noted that part of that function is interaction with the relevant joint parliamentary committee. All of us in this chamber have the opportunity and duty to serve on various oversight committees with respect to the exercise of powers by the executive. And, in the exercise of those oversight powers, we have the benefit of independent reports from people such as the Inspector-General of Intelligence and Security to inform us as to whether there are any issues with respect to the exercise of powers such as this. That also is an important check and balance.

I've taken some time talking about the checks and balances in the context in which this bill is presented, but that should provide to everyone listening to this debate comfort that there is a broad array of checks and balances in terms of the exercise of these powers.

In summary, we have a bill which takes into account the changing circumstances from a technology point of view—from when I was a 10-year-old working with those clunky phones that we all remember; some of us remember! It also fills a definite gap in our intelligence collection regime with respect to that particular circumstance where an Australian is potentially acting for foreign interests within our own border and you are trying to collect foreign intelligence. You potentially can trip up, because you can also uncover domestic information or domestic intelligence and it's very hard to differentiate one from the other. Thirdly, there's a whole suite of appropriate checks and balances. That provides the context in which this bill is presented. On that basis, I'm very happy to commend the bill to the chamber.


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