Thursday, 26 August 2021
Foreign Intelligence Legislation Amendment Bill 2021; Second Reading
[by video link] I rise to speak on the Foreign Intelligence Legislation Amendment Bill 2021. It is important that our national security laws continue to keep pace with the evolving operational environment and changes in technology. I have spoken regularly over the years about these issues and most especially regarding issues surrounding foreign interference and foreign influence in Australia. The Comprehensive Review of the Legal Framework of the National Intelligence Community, the Richardson review, made clear that the Telecommunications (Interception and Access) Act 1979, the T(IA) Act, has not kept up with modern communication. Accordingly, targeted and substantive reforms are required. The bill rectifies two critical gaps in the foreign intelligence collection framework. Without the proposed changes, gaps in foreign intelligence collection will continue to grow and Australia will not have visibility of critical intelligence and possible threats, creating serious risks.
Addressing urgent operational amendments ahead of more substantive reform was recommended by the review. Firstly, the reforms will update the foreign communications warrants provision in the T(IA) Act to reflect changes in communications technology. This bill will enable agencies to intercept a communication to determine whether the communication is a foreign one. Currently 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 Australian onshore. As the review observed, an Australian serving the interests of a foreign government remains an agent of a foreign power whether they are onshore or offshore. Hence, secondly, the bill allows for the collection of foreign intelligence on Australians in Australia who are acting for, or on behalf of, a foreign power. The 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.
Having said that, the bill does include robust oversights and safeguards. The T(IA) Act prohibits the interception of domestic communications, communications that both start and end within Australia, under a section 11 warrant even where that interception is incidental or unavoidable. When section 11C was introduced in 2000 this made sense. At that time the primary communications technologies were telephone and fax and it was simpler for agencies to determine whether a communication was foreign prior to interception based on country and area codes. With the advent of advances in technology, such as mobile phones, messaging apps and the internet, it may be impossible at the point of interception to ascertain if communications are foreign or domestic. Currently, to avoid breaching 11C, agencies do not intercept foreign communications where there is a risk of incidentally intercepting domestic communications. So there's a real risk that agencies are missing critical foreign intelligence. The bill will allow intelligence agencies to intercept communications for the purposes of foreign intelligence where the geographic location of the sender and the recipient cannot be determined prior to interception.
I note the bill will not grant intelligence agencies new powers. It will simply update the law to reflect the reality of modern communications and ensure existing powers can continue to be used. As I indicated earlier, robust safeguards will accompany these changes. Foreign communications warrants can only be used for the purpose of obtaining foreign intelligence from foreign communications—for example, relating to foreign terrorists or cyberthreats. The warrant request must specify how the risk of the incidental interception of domestic communications will be minimised. The Attorney-General will ensure a mandatory written procedure pertaining to the warrant: to identify domestic communications that may have been incidentally intercepted; to destroy any domestic communications that are so advised unless it appears to relate to activities that present a significant risk to life; to notify the IGIS, the Inspector-General of Intelligence and Security, of any identified communications not destroyed; and to deal with any other matter relating to intercepted communications. I stress that a warrant cannot be issued unless the mandatory procedure is in place. Before issuing this procedure the Attorney-General must consult with the ministers for defence and foreign affairs, the IGIS and the Director-General of Security, and the procedure must be reviewed at least every three years. There is no doubt that using incidentally intercepted domestic communications that relate to activities that present a significant risk to life will allow agencies to share life-saving intelligence.
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. They must be highly targeted, and this will not change. The act and these amendments do not permit indiscriminate collection. Foreign communications 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 D-G 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 A-G and remain under the stringent oversight of the IGIS. These warrants authorise the interception of foreign communications for the purpose of obtaining foreign intelligence, enabling agencies to identify threats to our national security, including malicious cyberactivity targeting Australian interests and terrorist communications. Under the TIA Act, 11C warrants are only available where service or device based warrants under 11A or 11B would be ineffective. So this is a warrant of last resort. In all cases, the use of foreign communications warrants is proportionate and highly targeted.
One of the recommendations of the review was to allow foreign intelligence to be collected on Australian citizens and permanent residents onshore who are acting for, or on behalf of, foreign powers. These amendments will close the current legislative gap 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 Australian onshore. 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. It is important that our agencies can obtain information to protect and promote Australia's national and economic security and our foreign relations.
As I have previously mentioned in this place, we live in a society characterised by extreme activism and perhaps ecoterrorism. We have seen vocal minorities disregard the rule of law in pursuit of their objectives, sometimes in conjunction with like-minded overseas players. I have used the example of 2015 satellite analysis of bushfires confirming that 40 per cent of fires were deliberately lit, 47 per cent were accidental and only 13 per cent were caused by lightning strikes. Are such people lone actors or part of a sinister collective conducting international ecoterrorism? Of those recent bushfires in the Northern Hemisphere, arson was recorded in Turkey, Greece, Sicily and Algeria. The actions of such operatives caused loss of life and properties, and damage to economies and economic security.
Robust safeguards will accompany reforms to allow foreign intelligence to be collected on Australians acting for, or on behalf of, a foreign power. The law will continue to prevent the request of a foreign intelligence warrant on Australian persons who are not acting for, or on behalf of, a foreign power. The D-G of Security will be required to provide the Attorney-General with a detailed justification of the grounds on which there is a suspicion that the person is acting for, or on behalf of, a foreign power. The Attorney-General cannot issue a warrant unless satisfied the person is, or is reasonably suspected by the D-G, of acting for, or on behalf of, a foreign power.
The safeguards contained within the broader foreign intelligence warrant framework will continue to apply. Collection activities are conducted by specifically approved personnel. The A-G may only approve a foreign intelligence warrant when satisfied on the 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. Warrants must not exceed six months duration. The IGIS will also continue to have oversight of agencies' activities in relation to the act and the amendments—noting that IGIS has extensive powers akin to those of a royal commission. IGIS remains an essential safeguard.
What are some practical examples of how this legislation will be vitally important? Are we protecting Australians from terrorist threats? Intelligence agencies look for foreign terrorist groups that are inciting violence against Australians. One way that intelligence agencies can do this is by looking for foreign terrorist organisations that are sharing instructional material, such as their bomb-making videos, with their members and other potential terrorists. Agencies can develop highly targeted techniques to collect foreign communications that match the digital fingerprint of instructional material known to be produced by foreign terrorist organisations. At present, 11C warrants cannot be relied on in these circumstances, because of the possibility that intelligence agencies may inadvertently collect a domestic communication—for example, two people in Australia sharing the same bomb-making video. These amendments will enable intelligence agencies to better protect Australians by identifying these types of threats from foreign terrorist organisations.
To protect Australians from terrorist threats, agencies analyse communications from offshore terrorist groups to find previously unknown associates. The objective is to identify offshore terrorists who are targeting Australia or Australians, or who are communicating with terrorists inside Australia. There have been instances where agencies have identified that a group based overseas is using a special messaging app to communicate exclusively with its members. A technique was developed to uniquely identify these communications. A section 11C warrant could not be relied upon, again, because of the risk that terrorists based in Australia could be using the same app to communicate between themselves. Amending the law will enable intelligence agencies to better protect Australians by identifying threats from foreign organisations.
Agencies collect intelligence on how other countries and their agents might be acting in ways that are contrary to our interests. Sometimes agents of a foreign power are Australians but acting in ways that are contrary to our national interests—for example, they might be a foreign citizen who also has Australian residency who is assisting a foreign government to procure military or sensitive dual-use technology or materials. Indeed, I have raised concerns about this very circumstance in speeches in this place, especially in relation to the acquisition of strategic assets and, most especially, by entities under the control or associated with foreign totalitarian regimes. In this role, they are effectively conducting business on behalf of a foreign power.
Agencies can collect foreign intelligence on agents of foreign powers outside of Australia. However, if the agent of a foreign power is an Australian citizen or holds Australian residency, there is no legal mechanism to collect foreign intelligence in Australia, where their activities may be of greatest concern to us. This leads to an intelligence gap, given that an Australian serving the interests of a foreign government is the agent of a foreign power—as I said, regardless of whether they are in Australia or overseas.
This bill will enable agencies to collect vital foreign intelligence that is important to secure our national interest in an increasingly competitive global environment. The techniques used by foreign cyberactors often have unique features that stand out on the telecommunications network and that can be specifically targeted for detection—for example, intelligence agencies can detect foreign hackers concealing their attacks to look like normal, harmless network communications between two computers. In reality, they contain commands to launch destructive ransomware attacks. But in some cases hackers, including hackers based in Australia, also hide secret communications using the same techniques—for example, two hackers might use these techniques to share ransomware victim details. As the two hackers could be based in Australia, 11C warrants cannot be used in these circumstances, given the possibility that intelligence agencies may inadvertently collect secret communications between two Australian based hackers. Amending the law will enable intelligence agencies to better protect Australians from foreign hackers. And, as I've said, the safeguards in the bill will require the destruction of any domestic communications inadvertently collected, other than those which appear to reveal a significant risk to a person's life.
So if I may, in closing: this is an important bill so that our national security laws can continue to keep pace with the evolving operational environment and changing technology. I commend the bill to the Senate.