Wednesday, 2 March 2011
Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010
Bill—by leave—taken as a whole.
I table a supplementary explanatory memorandum relating to the government amendment to be moved to this bill. The memorandum was circulated in the chamber on 9 February 2011.
As senators would be aware, I have foreshadowed an amendment and it has been circulated in the chamber. I think everybody has got it. But I would like to put a couple of questions quickly to the minister at the table before I move that amendment. Senator Collins, I would like to pick you up on the topic that you put to us right at the end of your comments—and thanks for directly addressing some of the issues that I raised in my speech. But let us cut to the chase. If this bill were about intelligence agencies sharing intercepts and intelligence with each other, I probably would not have spoken at such great length. I think that is entirely uncontroversial and reasonable. Intelligence agencies working in silos has been quite frequently cited in the United States context as contributing to the attacks on New York City and the Pentagon—because people were not sharing the intelligence that they had. So I do not object to—and I did not try to raise any kind of controversy about this at any time in my speech—our intelligence and security agencies talking to each other within the boundaries of their act. But my reading—I should say really the reading of the Law Council and some of the other folk who have submitted on this—is that schedule 6, item 12, of the bill quite substantially reworks the kinds of agencies that ASIO will be able to share intelligence with. My reading of page 26 of the bill is that ASIO can share information with whomever it likes, as long as there is some justification provided to the agencies and through the minister. Would this bill and that specific amendment to schedule 6, item 12, allow ASIO to share information with agencies such as the tax office, Centrelink, ASIC or anybody? Maybe that is just a yes or no.
My understanding is that it is only as it currently does with respect to the ATO and Centrelink and there are no changes that would affect the current operations. Let me just take you through a few points on this matter. The purpose of the amendment is to provide that, if ASIO does obtain information relevant to a serious offence, it can provide information directly to the most appropriate agency. There are no plans for ASIO to start dobbing in welfare cheats. As is currently the case, there could be circumstances where it would be appropriate and in the public interest for ASIO to communicate information relating to a serious offence to those agencies—for example, if ASIO obtains incidental information about major taxation fraud. But I stress ‘as is currently the case’. Currently ASIO can provide such information to specified police forces. This bill would enable ASIO to provide the information directly to the ATO or other agency if that agency is the most appropriate agency having regard to its functions. The bill does not provide ASIO with any new collection power. This relates only to information obtained incidentally in the performance of ASIO’s functions. Any communication must be authorised by the director-general or person authorised by the director-general for that purpose under section 18.1.
Can I confirm that it is the case that ASIO already has the power to provide information to effectively anybody that the agency sees fit, through the consent of the director-general, and there is no material change whatsoever? If we can stick to the narrow issue of who ASIO can share intelligence with, is there no change effectively provided in this bill?
Senator Ludlam, it may assist if you repeat your precise question, because at the moment the information available to me simply addresses my earlier comments.
I would like to establish whether the amendments that are contained in this bill allow ASIO to share information with a wider variety of people than it currently has the powers to do. For example, the Law Council raised the issue that ASIO will now be able to communicate information to, for example, a staff member of an authority of a state. I guess that could mean a senior police officer, but it would not necessarily mean a law enforcement officer; it could be someone in a health department. What I am tried to clarify is: is this new; have we expanded the range of people with whom ASIO can directly share intelligence or not?
I suppose in part the answer I give now relates to my earlier comments. The answer is essentially, yes, a wider variety of agencies—because it allows that information now to be communicated directly. So, rather than going through the AFP, the communication can now occur directly to the ATO, which would not have been the case. But the answer is also, no, it cannot be communicated to anybody. I can repeat the criteria that would be involved in how information could be communicated and why it would not just be anybody. If you want me to, I can go back and elaborate on those aspects again.
Thank you, Minister. So we have established one point. When we go back to the remarks you made in your second reading speech, I think we will find that you introduced this bill as relating to sharing of intelligence between intelligence agencies, and we have just established that that is not strictly the case at all; it is about sharing intelligence right across Commonwealth and state agencies according to criteria which we will come to.
Sticking with clause 12 of schedule 6 for the moment, my reading is that there are two very broad criteria on which ASIO might take this kind of action. One is if the information relates or appears to relate to the commission of a serious crime, and that is reasonably well-defined elsewhere; or if the director-general or his or her delegate is satisfied that the national interest requires the information to be shared. So now we are contemplating the proposition that no crime is being committed or alleged but the DG or his or her delegate is satisfied that the national interest in fact requires this information to be shared. Minister, could you provide us with the definition of ‘national interest’?
The information I have before me has been canvassed with respect to schedule 6. The term ‘national interest’ is currently used in the ASIO Act and has not been defined. The bill does not introduce the concept of national interest to the ASIO Act, but the sort of matters that might be encompassed by the term ‘national interest’ could include matters of importance to Australia’s international relations or to sustaining the economy. However, attempting to confine national interest to specific matters would defeat the purpose of this definition. In a democracy it is appropriate that the government of the day set its priorities and determine what is in the national interest. In the security context national interest may be informed by the National Security Statement and the national intelligence priorities which are set by the government and reviewed on at least an annual basis.
Also with respect to what I indicated earlier, enabling ASIO to cooperate with and assist law enforcement agencies primarily to facilitate technical assistance for interception, including through the National Interception Technical Assistance Centre, the bill enables ASIO, ASIS, DSD and DIGO to cooperate more closely. With respect to this cooperation and to assist one another in the performance of the other security agencies’ functions, it amends ASIO’s communication provisions to provide ASIO with sufficient flexibility to communicate intelligence with other intelligence agencies to complement the amendments to their ability to cooperate.
I will say this as plainly as I can, Minister. I do not think any of the submitters raised issues about intelligence agencies sharing intelligence between each other. I did not address that in my speech or in my questioning. So I am happy to set that issue aside as uncontroversial. I am interested, however, in the fact that we have had an acknowledgement now that there is a vastly broader range of agencies through a set of criteria with which ASIO can now share intelligence and that in fact it does not need to relate to the commission of a crime; it needs to relate to an undefined national interest. I think that is of concern.
Coming to the criteria which you did offer to talk us through before, I understand that there are some broad statutory criteria that are set out in this bill, that is that the relevant information relates to a possible breach of the law the agency administers and that that breach attracts a term of imprisonment of at least one year. So that sets the bar at a certain level. But beyond that, which is very broad, what further criteria will be developed or employed to determine when information should be shared?
You quite rightly suggest that there should be significant safeguards in this respect. I have some further comments in relation to those safeguards, if you will bear with me for one moment. Communication of information by ASIO officers requires appropriate authorisation in accordance with section 18(1) of the ASIO Act. Unauthorised communication of information by ASIO officers is an offence under section 18(2). Any communication must comply with ASIO guidelines under section 8A, including clause 13, which relates to specifically the use, storage or disclosures of personal information. ASIO officers must also comply with relevant internal policies and procedures. ASIO is subject to IGIS oversight. The IGIS operates independently of government and has broad investigatory powers to investigate complaints and conduct inquiries and regular inspections and monitoring of security and intelligence agencies.
I am wondering if you can let us know—and this starts to come close to the purpose of the amendment that I have circulated—whether ASIO will be required to periodically report to the minister and/or the parliament about what agencies it has shared information with and how often. To forestall pushback by the minister or by the officers of the Attorney who have joined us today, I am not intending when I speak about disclosure that we would be publishing sensitive information about national security. We are just seeking really how often has ASIO shared information with somebody outside the intelligence community and the broad nature of it. So we are not interested in state secrets here; it is more about the mechanics of how it is operating. Perhaps while you are taking these matters on board, Minister, can you describe how, if at all, these reporting obligations differ from the status quo as already contained in the ASIO and the T(IA) Act?
Bear with me, Senator, whilst I deal with at least part of your question. Unfortunately, listening to the detail of your question and being advised on it is a challenging task at the moment. ASIO is required to periodically report to the minister. ASIO’s guideline 13.4, made under section 8A of the ASIO Act, requires ASIO to keep records of all requests made to access personal information and all personal information received in response to a request. ASIO also has internal policies and procedures made in consultation with the IGIS. All ASIO records can be inspected by the IGIS, who may consider issues of legality, compliance with ministerial directions and guidelines, internal policies and procedures, as well as the propriety of ASIO’s actions. Additionally, ASIO is required to keep the minister informed of its activities and provide regular reporting to the Attorney-General. In the light of the existing oversight and accountability mechanisms, a more specific requirement to report to the minister is not strongly justified. I suppose this takes us to the Greens proposed amendments in relation to ASIO’s annual report.
The ASIO Act already requires ASIO to report on the activities of the organisation during the year. This would clearly encompass ASIO’s activities under the cooperation and assistance provisions in proposed section 19A. The level of detail proposed in the Greens amendment would get it to ‘operational’ detail, which would not be appropriate for inclusion in the unclassified annual report. It would be open to the Attorney-General to issue a direction to ASIO, requiring ASIO to report to the Attorney on requests made under the proposed cooperation and assistance provisions. In the light of all the existing reporting mechanisms, safeguards and oversight mechanisms, a specific reporting requirement of the nature suggested by the Greens is, in the government’s view, not warranted. Senator Ludlam, I am not sure whether there is another element of your question that I have not covered. You may want to revisit that if that is the case.
Thank you, Minister. I would hate to boil your answer down to a yes or no. It sounded suspiciously like a no. I have the highest respect for the IGIS and it is certainly a very important role. I presume that view is shared by everybody. But I was asking on behalf of the parliament. Again, to pre-empt your comments about tabling detailed national security or sensitive information, that is not the intention at all. Just to summarise, there will not be any greater degree of reporting under the drafting of this bill, whether or not the Greens amendments are supported, about these excursions outside ASIO’s traditional area of interest. To come directly to the point, if the Australian tax office is in receipt of information from ASIO or if the tax office requests some assistance from ASIO in the performance of its functions, are there any public reporting obligations or is there any way of tracing that activity at all? Or is it all internal?
I think it is fair to encapsulate my earlier comments with a yes. The excursions that you are referring to will be reported under existing mechanisms.
Minister, could you perhaps spell out for us whether we will find that in the annual report, for example? Will I get a list, however it is to be done, of agencies outside the intelligence community at the end of each year or each quarter—I do not think we will necessarily be seeking to put that in the public domain—that have used ASIO services in any given year? Where will we find that?
Bear with me one moment, Senator. I am sure that you will appreciate that there is a difference between this information being reported and the level at which it is reported, as opposed to your question, which is: where am I going to get a list from? Under the T(IA) Act there will be reporting by the agency which obtained the assistance. This reporting will be included in the TIA annual report, which will be tabled in parliament. As I have already mentioned, ASIO will be reporting under its current legislation. The Attorney-General will also be able to direct further reporting, particularly with respect to areas where public reporting may not be appropriate. This is one of the rationales behind the expansion of the joint parliamentary committee.
That goes some way towards satisfying the intention of the Australian Greens amendment and it is appreciated that you have been able to clarify that for us. I will still obviously be proceeding with the amendment because, as you have observed, our proposal goes somewhat further. But at least there will be something there. I want to confirm that the kind of information that we are discussing here regarding communications includes information about an individual’s movements—their associations, their business activities and their financial status.
This information, even though it has no immediate nexus with the possible commission of an offence and it is under the national interest clause that we were discussing earlier—that kind of quite detailed intelligence about Australian citizens or others who live here or Australian citizens who live overseas—can now be transferred to other agencies whether or not they are inside the intelligence community and even though there is a complete absence of any allegation of an offence having been committed. Can I just confirm that that is the case?
Senator Ludlam, can I clarify whether your question is in relation to information being available with respect to a particular individual performing an offence or in relation to information that becomes available indirectly and separate to the individual performing the offence? There is obviously information that becomes available to security agencies that is in relation to an offence, but ancillary information involving other individuals is not necessarily directly related to them performing an offence themselves.
I apologise, Parliamentary Secretary, but I think your question may have confused matters further. My intention in this instance is to work out the scope of the information that can be shared and to clarify the fact that there is actually no need for an offence to be alleged or be anywhere on the horizon. Information that ASIO collects on people through phone taps or other forms of surveillance it undertakes can now be shared with any Commonwealth or state agency, subject to the criteria we have discussed, whether or not any offence or alleged offence is anywhere on the horizon.
It is envisaged that this could include information about individuals’ movements, associations, business activities, financial status or communications, even where this information has no immediate nexus—I stress that point because it relates to my earlier attempt to clarify this—with the possible commission of an offence. However, the key point is that any such communication must meet the required threshold—that is, the Director-General or a person authorised by the Director-General for that purpose must be satisfied that the national interest requires the communication of that information. This is an important threshold as any decision under this provision could be reviewed by the Inspector-General of Intelligence and Security for legality and propriety.
There was that old ‘national interest’ again, which we have just established is not defined anywhere in ASIO’s act or anywhere else. I will move the amendment shortly because I am not sure how much further it is going to possible to get with this. I have got two further questions. One of them relates to the origin of this reform, if you could call it that. Was this proposed by ASIO? Did it come from within these agencies or has there been a demonstrated need from outside the intelligence community, from the kind of other state and Commonwealth authorities that we have spoken of, for the powers of surveillance by clandestine security agencies? I am just wondering what the origins of this bill in fact were.
Senator Ludlam, while the officers go back into the origins for me, let me go back to your earlier comments in relation to the national interest not being defined. I have to differ with you in your interpretation of my earlier remarks. I would not accept that it is not defined. Rather that definition or interpretation may be fluid under the circumstances I previously outlined.
The amendments are not responses to any specific recommendations but address general issues raised in various reviews. The Smith review, the National Security Statement and the Counter-terrorism white paper all highlighted the importance of increased interoperability and intelligence sharing among the national security community. The capabilities of intelligence, security and law enforcement agencies need to remain under constant review so that we can address the challenges of the contemporary environment. Part of this ongoing review is considering whether these agencies and the legislation under which they operate continue to be appropriate for the modern national security context. These amendments have been identified as necessary to support the government’s broader national security policy framework.
Thank you. It is probably a bit cheeky to ask whether that was just copied straight off ASIO’s website. I draw your attention to clause 19A in schedule 6 of the bill. Proposed subsection (3) goes into what kind of resources ASIO may make available to the various people it may now find itself working with. The clause talks about the ‘services of officers and employees, and other resources, of the Organisation available to the body’. We have been speaking today mostly about intelligence hoovered up in the course of ASIO’s normal work being delivered to various other agencies. This appears to go substantially further than that, so I am just wondering if, for example, ASIO personnel and resources might be utilised in other agencies or in the context of a multi-agency taskforce for purposes that are unrelated to obtaining, correlating and evaluating intelligence relevant to security. For example, could ASIO personnel be used to request and conduct interviews with people for purposes unrelated to the fulfilment of ASIO functions and would they have to identify themselves as ASIO personnel if that were being done?
I am advised that the use of resources must be related to their functions. It is possible that ASIO could provide assistance with human-source intelligence collection to another agency. This would be most likely in a context where another intelligence agency may not have anyone well placed to obtain the intelligence and ASIO is able to do so. However, in the context of assistance to law enforcement, ASIO staff would not conduct interviews for police as such records would be inadmissible as evidence in court. ASIO has internal policies and procedures with respect to the activities of officers. These are prepared in consultation with the Inspector-General of Intelligence and Security.
Thanks, Minister. I do not know how to address these various proposed subsections, but proposed section 19A(1)(a) through to (d) list ASIS, DSD, DIGO and a law enforcement agency. So let us set them aside for the moment, because that I think is in the normal process of the way that these various agencies work. Paragraph (e) states:
an authority of the Commonwealth, or an authority of a State, that is prescribed by the regulations …
and so on, which we have spoken of. This seems reasonably black and white: the answer to the question I put to you before was yes. If the tax office, through the various criteria and processes that we have discussed earlier, needs help from ASIO, for example, to interview somebody for some reason in the national interest, ASIO would be within its power to make somebody available. I put what I am asking in two parts. First of all, is that a correct reading of the way that this act will work?
In your commentary just then you said that you inferred that the answer would be yes. I would argue to the contrary—that, on the suggestion that ASIO may be a force for hire, this is simply not the case. It is unlikely that an agency would see any merit in being involved in a multi-agency team if it were totally removed from their functions. Agency heads have to agree to any cooperation or assistance arrangements under these provisions. The provision of assistance in areas not directly connected to the functions of an agency might be considered in other contexts, such as providing assistance of a technical nature, as in relation to telecommunications interceptions or translations. However, agencies have finite and limited resources, which acts as a self-regulatory constraint, and I can assure senators that ASIO is not simply waiting around for requests for assistance from other agencies.
There are no plans to prescribe other agencies by regulation in the near future, and the regulation-making power has been included to provide flexibility should the government consider it necessary or desirable to enable the agencies to cooperate with or provide assistance to other agencies in the future. This could be important, for example, in the context of future multi-agency teams and taskforces that include members of or are led by other agencies.
Thank you, Minister. That last part was helpful. I realise I am probably firing four questions at you at a time, which must be a bit difficult. Let us come to the point. Can ASIO personnel conduct interviews with people on behalf of another agency? If they can, would they be required to disclose what their home agency was?
The answer, at least to the first part of your question, is yes. There is a difficulty with the second aspect of your question because, in terms of public reporting of those activities, that may not be the case as per the other requirements in those broader reporting arrangements as I outlined. In response to the second element of your question, the answer would be consistent with their existing policies and procedures, so that may or may not be the case. I am not sure if you would like me to clarify that further with a bit more time.
I think we have clarified this quite a bit. I appreciate your, along with the officers at the table, taking some time to talk us through it. The more I hear, the more I wish I had moved a number of other amendments on the way through, but I will have to suffice with simply voting down the bill when push comes to shove in a few moments.
So ASIO personnel can conduct interviews on behalf of other agencies completely unrelated to the law enforcement, intelligence and security community even if there is no hint of the commission of, or allegation of, a crime being committed. It rests on the definition in this instance of national security, whatever that might be.
My final question—and I will then move the amendment that we have circulated—is whether the minister can describe whether there is any relationship between this amendment to the TIA that we are discussing today and the proposal—if you call it that—for data retention that has also been discussed at some length, whereby internet service providers and other telecommunications carriers would be required effectively to keep every digital trace that all of us leave in the course of our normal lives to be made available to the same intelligence community we have been discussing today. Is there any crossover at all between these two proposals?
There is no connection to retention of data. No government decision has been made about a data retention scheme and I am not in the position to go into the policy arguments on this occasion.
It is a great shame. I move Australian Greens amendment (1) on sheet 7032:
(1) Schedule 6, page 29 (after line 5), after item 17, insert:
17A Before paragraph 94(1A)(a)
(aa) the total number of requests made under paragraph 19A(2)(b) to the Organisation during the year for co-operation and assistance under section 19A; and
(ab) the name of each body which made a request under paragraph 19A(2)(b) during the year; and
(ac) a summary of the purpose or purposes for which each request under paragraph 19A(2)(b) during the year was made; and
I do not know that I need to speak to this amendment at great length, apart from to note that I can entirely understand why the minister, who is here representing the executive, would be opposed to an amendment like this, but I am dumbfounded at the rest of the senators denying the parliament access to this information—in redacted form. We are not asking for national security sensitive information to be put into the public domain. I am dumbfounded that a whole heap of senators are about to file in here and vote against their having access to this information on behalf of the people who elected us. I find that extraordinary. I understand why the executive does it, although I strongly disagree with it; I do not understand what is about to happen. A number of senators are about to file in here and vote against allowing themselves access to this information. While perhaps the bill will not expand the legally defined mandate of ASIO, I think it will greatly expand its operations well outside the area for which it was established. This is something that we will regret the next time we come to an amendment to the T(IA) Act or the ASIO Act.
All of this is in the absence of the independent national security legislation monitor who was spoken of years ago. I think this place passed enabling legislation to get that office on its feet a year ago and that office still does not exist. Every Senate estimates I turn up and ask whether that office exists yet and it does not. So we are working in a vacuum against a backdrop of the continued creeping expansion of the powers of clandestine security and intelligence agencies, and it is the role and the purpose of this Senate to set some limits on those agencies. This is quite a strong example. The coalition did not bother even asking a single question of the minister on the way through this whole debate. It has been left to the Australian Greens to do it and now we are about to vote to deny ourselves access to that information, which I think is shameful. I thank the minister for the answers provided. I thank the officers from the Attorney’s office who have come to try and help enlighten us a little bit through this murky debate and I strongly commend this amendment to the Senate.
With respect to the Greens amendment, it is the government’s view that the ASIO Act already requires ASIO to report on the activities of the organisation during the year. This would clearly encompass ASIO’s activities under the new cooperation and assistance provisions in section 19A. The level of detail proposed in the Greens amendment would get into operational details which would not be appropriate for inclusion in the unclassified annual report. It would be open to the Attorney-General to issue a direction to ASIO requiring ASIO to report to the Attorney on requests made under the new cooperation and assistance provisions. In light of all the existing reporting mechanisms, safeguards and oversight mechanisms, a specific reporting requirement of the nature suggested by the Greens is not warranted.
Details such as the names of organisations requesting assistance and the purpose would reveal operational details about the activities, practices and methods of intelligence agencies. The existing requirement for ASIO to report on its activities will enable ASIO to provide a general level of detail on cooperation and assistance without disclosing sensitive operational details. Additionally, consistent with the current practice, ASIO will also keep the Attorney-General informed of its activities on a regular basis. The ASIO Act also requires the Director-General of ASIO to regularly consult with the Leader of the Opposition for the purpose of keeping him or her informed of matters relating to security. Finally, with respect to the national security intelligence monitor, this is an important appointment that requires close consideration of candidates, and the Prime Minister is doing this as we stand.
That the amendment (Senator Ludlam’s) be agreed to.
I move government amendment (1) on sheet AF255:
(1) Page 33 (after line 5), at the end of the Bill, add:
Schedule 8Membership of Parliamentary Joint Committee on Intelligence and Security
Intelligence Services Act 2001
1 Subsection 28(2)
Repeal the subsection, substitute:
(2) The Committee is to consist of 11 members, 5 of whom must be Senators and 6 of whom must be members of the House of Representatives.
2 Paragraph 8(1)(b) of Schedule 1
Repeal the paragraph, substitute:
(b) either of the following happens before the Committee reports on the matter:
(i) the Committee as so constituted ceases to exist;
(ii) the constitution of the Committee changes;
3 Paragraph 18(1)(a) of Schedule 1
Omit “5”, substitute “6”.
4 Transitional—existing appointments not affected
The amendments made by this Schedule do not affect an appointment, made before the commencement of this item, of a Senator or member of the House of Representatives as a member of the Parliamentary Joint Committee on Intelligence and Security.
The government proposes to amend the bill by including an additional schedule 8, which will expand the membership of the Parliamentary Joint Committee on Intelligence and Security. The amendment consists of four items. The first item proposes a government amendment to subsection 28(2) of the Intelligence Services Act 2001 to expand the membership of the committee from nine to 11 members. As a result of the increase in membership of the committee, item 3 proposes to increase the quorum of the committee from five to six members. Item 2 clarifies paragraph 8(1)(b) of schedule 1 of the Intelligence Services Act to ensure the committee may continue to use evidence taken by or produced to it during the same or another parliament, even where the committee ceases to exist or its membership changes. Finally, item 4 includes a transitional provision to ensure the amendment does not affect the appointment of members to the committee before the commencement of this government amendment.
This committee provides an important role in the scrutiny of administration and expenditure of Australia’s security and intelligence organisations. I recommend the government amendment to the Senate.
The opposition will be supporting this amendment. We see the sense of restructuring the committee along the lines foreshadowed in the amendment.
Question agreed to.
Bill, as amended, agreed to.
Bill reported with amendments; report adopted.