Senate debates

Wednesday, 24 September 2014


National Security Legislation Amendment Bill (No. 1) 2014; Second Reading

9:31 am

Photo of Concetta Fierravanti-WellsConcetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | | Hansard source

As I was saying before the debate was adjourned, it is very much like a computer: you have to have the best hardware possible, but, without the software, the computer will not function properly. Community engagement is the vital software; hence, the government's action to do whatever is possible to keep us safe depends on both working together. It is vitally important that we explain what the legislation is about and earn the respect and trust of all Australians, whom this legislation is designed to keep safe.

As the Prime Minister has indicated, sometimes the delicate balance between the freedoms we enjoy and security arrangements may have to be adjusted such that more restrictions need to be placed on more of us so that more protections can be afforded to others. The safety of our community is of paramount importance. Consequently, additional security measures may be the price that we need to pay to ensure that, as the Prime Minister has said, we maintain the social fabric of an open, free and multicultural nation.

I have been honoured over many years to have been engaged with many communities, including some which are now in the forefront of security matters. I reiterate that this bill and the proposed next tranches of legislation apply to all Australians and are not targeted at one particular community. However, for more than two years, the civil war in Syria, followed by the conquest of much of northern Iraq, has provided a fatal allure for predominantly misguided and disenfranchised young Muslim Australians. It is why I have made a concerted effort in recent months, in my role with responsibility for multicultural affairs and settlement services, to reach out to Muslim communities and, in particular, the leaders and women and earn their trust and respect.

This work, of course, is not new to me. It is part of the process that has evolved for me since my young days, when I was an advocate for multicultural communities, starting with my own Australian-Italian community. I have known some of the leaders in the Muslim community for many years and have worked with them on interfaith and other issues. Hence I have been very pleased to support the Attorney-General in the roundtables with leaders of Muslim communities, not just because of my longstanding involvement but most especially in my current role. This has been an important process. Whilst this is not about religion, regrettably it is the Muslim communities that feel mostly targeted, although I also appreciate that some non-Muslim communities also have concerns.

It is important to put the current issues into context. According to the 2011 census, 466,000 people claimed Islam as their religion, representing 2.2 per cent of the Australian population, which is an increase of 40 per cent since the previous census. It is important to note also that around 179,000 were born in Australia, and almost 39 per cent, just under half, are women and children. People claiming Islam as their faith come from different parts of the globe: Lebanon, Pakistan, Afghanistan, Turkey and Bangladesh, just to name a few. They are different and diverse communities, with the majority living in New South Wales and Victoria followed by Western Australia, Queensland, South Australia, small numbers in the Australian Capital Territory, Tasmania and the Northern Territory.

Most importantly, we must note that young people represent a significant proportion of the Muslim population, with 57.2 per cent of Muslims aged 29 years and under. The vast majority of the communities are law-abiding citizens committed to Australian values and the Australian way of life. They have come to Australia to build a better life for themselves and their families. Many have made commendable contributions to our country, whether culturally, economically or socially.

We are strengthening our partnerships with Muslim leaders in Australia and our region to reinforce that it is illegal for any Australian to support terrorist activities. Let me stress that our concern relates to about 60 Australians who are on the ground fighting in Syria and Iraq and to at least 100 who are providing facilitation in Australia. The overwhelming majority of Australians, including Muslim Australians, find the barbarism of ISIL absolutely and utterly abhorrent.

It is vitally important at this time that all Australians, irrespective of their ancestry, are tolerant and supportive. To turn on each other on the basis of religion or race would be to play straight into the hands of ISIL who want nothing better than to divide us. Given the number of Australians now with hands-on experience and given that we have several times more than we had in Afghanistan, the challenge is much greater. For this reason, the government announced its package of $630 million on 5 August. An important component is the government's commitment to work with Australian communities to combat radicalisation of young Australians.

As part of this package there is $13.4 million to counter violent extremism, and we are developing that package in consultation with communities to address the particular requirements of young Australians at risk. This may include a whole series of measures. There will also be referral and support processes to individuals at risk, to disengage them from their activities and to combat online radicalisation with education programs and, most importantly, working with communities, industry and overseas partners.

The intervention will provide resources and support to help communities work with individuals at risk. Considerable work is already being done quietly and purposefully by various groups and organisations to support young Australians at risk, and we need to focus our efforts on enhancing and building on that work already being done. Tailored interventions need to be developed and delivered in close collaboration with those communities, but this will take time. The incident that occurred overnight—the shooting dead of an 18-year-old, by the police in Melbourne, known to be a terror suspect—reinforces the absolute priority and need for this sort of intervention.

Young people become disenfranchised for any number of reasons. When this happens, they become vulnerable. They turn to drugs, gangs, crimes or other activities. What we are seeing with some young people is this disenfranchisement manifesting itself in radicalisation. They are vulnerable and susceptible to being preyed on by those intent on radicalising them, especially through social media. As was reported in the Sun-Herald recently, the Grand Mufti of Australia, Dr Ibrahim Abu Mohammad, has warned young people not to trust 'Sheik Google and Sheik YouTube', saying that they are 'very dangerous and they have no moral or religious authority'.

It is very clear from discussions with communities and through the recent round tables that the most effective and financially beneficial way to progress our countering-violent-extremism efforts is to work directly with the communities. Community engagement has been an important component of the consultations that the Attorney and I have had with community leaders in Sydney, Melbourne and Brisbane and that I have had in Canberra. I am sure it will be an important discussion point in future round tables in other parts of Australia.

In my 30 years involvement in the diversity that is today contemporary Australia, I have always found that open and honest dialogue is the best way to earn trust and respect. The relationships that I have built up over time enable me now to facilitate introductions and dialogue between key leaders with my ministerial colleagues to advance our necessary objective of keeping the Australian community safe—key leaders such as the Grand Mufti, imams, and influential community stakeholders, including the key women who are at the grassroots of communities affected by radicalisation issues.

As I have said, you need the hardware and the software to work together for the computer to function properly. Community engagement is the key that will ensure this bill and the additional legislation being introduced will operate effectively. We all know that terrorists and violent extremists represent a small fringe minority of Australian society. Community leaders have made known their opposition to the involvement of young Australians in the conflicts in Syria and Iraq. They have expressed their abhorrence at the devastating actions of ISIL. Indeed, many of the innocent people killed or affected by these conflicts are Muslims. As the Grand Mufti has said, these criminals are committing crimes against humanity and sins against God. Forced evictions, threat of execution and burning of places of worship, including churches, have no place in any faith.

The Australian government will continue to do all it can to support community leaders who play a critical role in dissuading young Australians from travelling to the conflict zone to fight. It is vitally important that the positive narrative of the Australian Muslim community and its contribution is not overshadowed by the negative publicity generated by the actions of a small number.

We are a highly cohesive nation of people from around 300 different backgrounds who speak as many languages. Since 1945, some 7½ million people have arrived here, including 800,000 under our humanitarian programs. Today, one in four of our 23 million people were born outside Australia, and 45 per cent of Australians—almost half of us—were born overseas or have at least one parent who was. The postwar immigration program has benefited our lives in many ways. These changes have enhanced our economic, social and cultural fabric and have enriched us a nation. Our successful multicultural society has been built through the efforts and commitments of millions of Australians, unified by the goal of a prosperous future for all. Australia is a nation of strength in its diversity, and we need to do all we can to protect and to help protect our rich multicultural society.

9:42 am

Photo of David LeyonhjelmDavid Leyonhjelm (NSW, Liberal Democratic Party) Share this | | Hansard source

I rise to speak against the National Security Legislation Amendment Bill (No. 1) 2014. I support the Attorney-General's amendments responding to my concerns about torture and to concerns raised by the Parliamentary Joint Committee on Intelligence and Security. However, the bill, even in its amended form, continues to include concerning provisions. More broadly, the case for the bill has not been made.

I appreciate the Attorney-General's amendment with respect to torture. We have a difference of opinion regarding its necessity. I maintain that torture can fall short of causing serious injury, but the proposed section 35K provides participants in a special intelligence operation with an immunity from criminal and civil liability for certain conduct, provided that it does not cause serious injury. There is no existing provision that would override this immunity in instances of torture and the decency of the current minister and current ASIO staff does not justify having bad law on the books.

Given this, I welcome the exclusion of torture from the immunity, and thank the Attorney-General for this exclusion. Nonetheless, the bill, even in its amended form, continues to include concerning provisions. I have raised my concerns in my submission to the joint committee and in discussions which Attorney-General. But the concerning provisions remain in the bill. These concerns relate to changes to the role of ASIS, to changes to ASIO powers to access computers and to discloses of information about special intelligence operations.

The bill, in schedule 5, seeks to authorise ASIS to cooperate with foreign authorities in undertaking training in the use of weapons. No definition is provided of foreign authorities, so groups such as the Kurdistan Workers Party, a listed terrorist organisation, could be covered. The bill also seeks to authorise ASIS to provide weapons and weapons training for self-defence purposes to an officer of a foreign authority with whom ASIS is cooperating. These provisions would seem to change fundamentally the nature of ASIS. ASIS is our international spy agency. It is not a military force like the SAS. ASIS's legislation prohibits it from undertaking activities that involve paramilitary activities, violence against the person or the use of weapons by ASIS agents. There are only limited exceptions to this prohibition. As such, ASIS should have no particular expertise in weapons and weapons training. While ASIS agents would still be prevented from undertaking paramilitary activities, the provisions of the bill may facilitate ASIS agents in providing weapons and training to underpin those with paramilitary activities. Covert support for paramilitary activities does not have a good track record—think of the CIA—and should not be facilitated.

The bill in schedule 2 amends the definition of a computer so that a warrant authorising ASIO to access data from a particular computer serves to authorise ASIO to access data from one or more computers, one or more computer systems and one or more computer networks. ASIS is not prevented from seeking warrants for such access at present. They just need to specify the access they seek. As such, this provision is an abuse of both language and judicial oversight. The government has committed to update the explanatory memorandum to clarify that a computer access warrant only authorises access to the extent that it is necessary for the collection of intelligence in respect of a specified security matter. While this will be a positive development, the change should be made to the bill. It is the bill that becomes law, not the explanatory memorandum.

The bill also authorises ASIO to make additions, deletions or changes to communications in transit and to third-party computers in order to access data on a target computer. ASIO would be given this power even if less intrusive methods for accessing the data have not been exhausted. As such, this provision would allow the abuse of property. The government's amendment will require material disruption of a computer and non-routine access to third-party computers to be reported to the Attorney-General. This again is a positive development, but reporting should also be directed to the Inspector-General of Intelligence and Security. The bill in schedule 3 also introduces offences for disclosing information on special intelligence operations. There is no public interest exception to the offence. The government has committed to amend the explanatory memorandum to require the Commonwealth Director of Public Prosecutions to take the public interest into account before initiating a prosecution. While this will be a positive development, public interest disclosures should be dealt with in the bill rather than the EM. Moreover, public interest disclosures should not be considered to be an offence that will not be prosecuted. Rather, public interest disclosures should be excluded from offence provisions. As it stands, disclosures remain an offence even if the information was provided by the minister, director-general or deputy director-general; disclosures remain an offence even if the discloser sought to consult with the organisation prior to the disclosure; disclosures remain an offence even if the disclosure does not include information on the identities of participants of a special intelligence operation or information on a current special intelligence operation; and disclosures remain an offence even if the information concerns corruption or misconduct in relation to a special intelligence operation. Disclosures that do not endanger anyone's health or safety, but nonetheless prejudice the effective conduct of a special intelligence operation, give rise to a maximum penalty of 10 years imprisonment. This is excessive—even extraordinary.

When considering these disclosure offences we should remember that keeping secrets is ASIO's job. It is not the job of everyday Australians. It is most definitely not the job of media organisations. We must not forget that it is the role of ASIO to serve the public; it is not the role of the public to serve ASIO.

I will have amendments addressing each of these concerns regarding the role of ASIS, ASIO powers to access computers, and disclosures of information about special intelligence operations. I apologise to the Senate for the delay in the presentation of these amendments. I had hoped to make some progress on these issues in my recent discussions with the government, but these discussions have not borne fruit.

I note that a convincing case has not been made for other measures in the bill, such as changes in schedule 4 to empower ASIS to gather information on Australians overseas, and changes in schedule 6 to introduce new offences for making and copying records and to increase penalties for exiting disclosure offences. Problems with schedule 6 are addressed in Senator Ludlam's amendment—an amendment which I support.

So there are significant problems throughout the bill. Taken as a whole, it could well be described as contrary to the rule of law and detrimental to our liberties. More importantly, a convincing case has not been made that current national security legislation is inadequate. As such, I oppose the bill in its entirety.

You may not find my arguments convincing. You may not be convinced by the arguments of the other voices in this chamber against the bill, but these are not the only arguments against this bill. Thirty submissions on this bill were received in the three-week window provided by the parliamentary joint committee on intelligence and security. These submissions outline numerous arguments against the bill. To my mind many of these arguments were not addressed by the joint committee in its report, and many have not been aired in this Senate debate. Moreover, if more time was given for consideration of this bill I suspect that more arguments against it would surface. If you are uneasy about voting on a bill when the arguments have not been aired I urge you to vote against it.

To those still inclined to support the bill on the basis of the current security environment and the decency of the government and our security agencies, I say this. The security environment will change, the government will change, and our security agencies will change, but this law, if enacted, will remain. I urge my fellow senators to oppose this bill.

9:52 am

Photo of Glenn LazarusGlenn Lazarus (Queensland, Palmer United Party) Share this | | Hansard source

As the Leader of the Palmer United Party in the Senate I would like to announce on behalf of my fellow Palmer Unity colleagues Senator Lambie and Senator Wang, and Senator Muir of the Australian Motorist Enthusiasts Party our clear and unequivocal support for this bill.

We are in the midst of difficult and challenging times. The global unrest is at an all-time high. The unrest is both coordinated and uncoordinated and is being experienced throughout all levels of society across many countries. In Australia, as a nation we have upgraded our alert levels in response to this unrest.

Upgrading our alert levels is important, however it is also imperative that we have the power, capacity, resources and capability to respond to risks—importantly, risks which are far more covert, sinister and veiled than risks traditionally encountered in the global environment. We must provide our people and organisations responsible for maintaining the safety and security of our country with the necessary support to undertake their role with confidence, quickness, certainty, diligence and precision.

This bill will modernise and improve the ability of ASIO and ASIS to undertake their work in protecting the safety and security of our country, and it will also enhance our country's capability to penalise those who compromise the safety and security of our country. It is imperative that Australia has the capacity to protect our shores. Not only do we need this level of capacity for our people on a day-to-day basis; we also need this capacity given increased risks around high-profile events such as the upcoming G20 summit. It is imperative that Australia has the capacity to protect our shores. Not only do we need this level of capacity for our people on a day-to-day basis; we also need this capacity given increased risks around high-profile events such as the upcoming G20 summit.

Last week I awakened to the fact that we had some 800 police across Queensland and New South Wales conducting raids. The police had received intelligence regarding threats on the safety of everyday Australians. The intelligence suggested that members of a terrorist group living in Australia were plotting to harm innocent people at random in order to gain media coverage for their cause. I would like to thank the federal and state police for their work in foiling this terror plot on our home soil.

It should be noted that this work was also supported by the work of ASIO and ASIS in securing the necessary intelligence to inform relevant authorities of the risk and need to act. While we support this bill, I would also like to inform the chamber and the people of Australia of our intent to take additional steps to further strengthen Australia's safety and security capabilities by introducing an amendment to strengthen the penalties for anyone who exposes the identity of an ASIO or ASIS officer.

We are in the midst of difficult and challenging times. Not only has our country become the target of extremists who seek to hurt us and hinder our way of life; we are also contributing to an international campaign to reduce the threat and impact of terrorism globally which is raising the potential for attacks against our country.

The threat is real, it is concerning and we must act quickly, decisively and comprehensively to protect the safety and security of our wonderful country. The reality is that the threat of attack is coming from both outside our country and from within. Advancement in technology and communication masking means the world is a very different place and those seeking to attack have the benefit of complex and highly sophisticated technology. It is for this reason that our country should and must increase our capacity to deal with these threats and provide the people and the organisations charged with protecting our shores with the necessary tools, rights, capabilities and powers to keep our country safe.

The brave and hardworking men and women keeping our country safe are undertaking at times extremely dangerous and highly sensitive work. Many are putting their own lives at risk to protect our country and our way of life. We cannot expect these brave men and women to protect us to the fullest extent possible with their hands tied behind their back. These men and women need all the support and capability necessary to perform their roles with precision, professionalism and success. We cannot and must not compromise on this.

Many of these men and women work undercover, take part in special operations and participate in activities which require high levels of secrecy. Their anonymity is key to their success and safety and to the safety and security of this country. And yet, despite this, as the legislation stands, if a person discloses the identity of an ASIO or ASIS officer, the penalty for doing so is only a maximum of one year's jail. This is a trivial penalty for a significant breach of trust. By exposing the identity of an ASIO or ASIS officer, not only are you compromising the safety and security of the officer working to protect our country; you are also directly compromising the safety and security of this country. Further, once the identity of an ASIO or ASIS officer is exposed, the officer can no longer work in the industry. Their career is effectively over. That is why, the Palmer United Party along with the Motoring Enthusiast Party is putting forward an amendment to strengthen the penalties in this area.

We must take the safety and security of our country seriously. We must take the most care possible to ensure the safety of those working hard to protect us. We must afford them the highest level of security. Therefore, we are recommending that the penalty for disclosing the identity of an ASIO or ASIS officer or affiliates is increased from a light penalty of up to one year's jail to a serious crime of up to ten years jail.

Exposing the identity of an ASIO or ASIS officer should be a serious offence and the penalty should be sufficient to warn people off from engaging in such stupid and dangerous acts. Exposing the identity of an ASIO or ASIS officer is a serious breach of national security and should be treated accordingly.

In summary, I love Australia, I love our way of life and I love our freedom. I along with all Australians feel that our great country must be protected. Many people have fought and died for our great country. Everyone in this chamber has a responsibility to ensure that we act to protect the interests of all Australians and to ensure that we enable our country the capability to keep our country safe and secure.

I note that the safety and security of our country must be balanced with human rights and the need for our people to enjoy reasonable levels of privacy, but safety and security must come first. Let us ensure that we continue to protect our great country and give those protecting our great country the resources, capability, power and scope to do their jobs and do them well. The Palmer United Party supports this bill and we seek the chamber's support of our amendment to further strengthen the safety and security of those protecting our country.

10:01 am

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I too support the second reading stages of this bill and for the bill generally, but I do have a number of reservations. Fortunately we will be having, I hope, what will be a constructive committee stage of this bill in order to discuss those concerns and in order to appropriately consider the amendments that have been put up.

There is no question that one of the key roles of the state is to protect the public from terrorist acts. That is axiomatic. Public safety is a paramount consideration. But, if you accept the necessity of intelligence agencies—and I do; it is a no-brainer—then you have to accept the necessity for those intelligence agencies to operate in secret and have adequate powers and resources to do their jobs. If you do not accept that they must operate in secret, then you are not being serious about protecting the public. For example, for ASIO to exist it needs a high degree of operational secrecy. It needs to assure all its current and future sources and partners, here and abroad, that it will keep their secrets. Failure to do so, in one case, affects its credibility in all cases. Any compromise of ASIO's credibility, when it comes to protecting its secrets, in one area could affect its credibility in relation to sources and methods in all areas. Similarly, if we are to have an effective ASIS it needs a high degree of operational secrecy. To deny its operational secrecy is to deny its ability to exist. National security is and must be a key goal.

A key role of the state to protect its citizens from harm, from terrorist attacks, must never be an alibi for abuse of power. I have grave misgivings, therefore, about some provisions in this bill that impose harsh penalties for disclosure of intelligence information, with no consideration given to a public-interest exemption. Let me give two examples that are not hypothetical. The first relates to so-called witness K. I refer to reports that the Australian government had breached international law by ordering ASIS to bug East Timor's cabinet rooms during the 2004 bilateral negotiations over the Timor Sea treaty relating to oil and gas. This cannot possibly have any anything to do with national security. East Timor is no threat to Australia. At the time of the special operation carried out by ASIS East Timor was the poorest country in Asia, and during the Indonesian occupation it had suffered the largest loss of life relative to total population since the Holocaust.

A key whistleblower here is a former Australian spy, who is said to be the director of all technical operations for ASIS, which allegedly conducted the bugging operation using the Australian aid program as a cover. This aspect of the allegations is extremely disturbing. If the espionage operation used the Australian aid program as a cover then it has endangered the safety of the good, well-intentioned Australians who go overseas to many parts of the globe in order to work with those who are less fortunate. The Age editorial of 11 December 2013 stated:

… deceit of this kind brings suspicion on all non-government aid workers, irrespective of who they are and what they do. It runs the risk of endangering all legitimate aid workers who seek to help the disadvantaged.

…   …   …

Aid agencies operate in extreme and difficult conditions, often on the front line of danger and often in countries where they are constantly at risk from brutal regimes. They dare to help when no one else will. To deploy intelligence agents under the cover of aid workers is to exploit the fragile trust that aid agencies must forge with their host country. It weakens their security because it discredits their altruism.

We should be grateful to the ex-ASIS whistleblower and to others like him. The whistleblower, known in the press as Witness K, has not endangered Australia's national security. Instead he has shone a light on a most disreputable episode in Australia's foreign policy. It is unjust to pass a law that would send someone like him to prison for up to 10 years. It is unjust to pass a law that would deprive someone like him of his freedom for a substantial period of his life without any consideration of his motivations—or, indeed, of the public interest considerations in respect of his actions. Whistleblowers like him do not appear to be motivated by money or career prospects. Rather, they appear to be moved by a sense of duty to answer the call of basic human morality. This bill makes no distinction between people like him and people who would do us harm.

Let me put this in perspective so that the Attorney does not misunderstand where I am coming from on this. If there is a special intelligence operation and, as a consequence of that special intelligence operation, there are people working undercover with a terrorist cell and the identity of a person is disclosed, that is a very serious matter and I support the government in treating it as a very serious matter because you could effectively be passing a death sentence on that person—an undercover operative working in a very sensitive operation—by disclosing their identity. So I get where the government is coming from and I commend it for wanting to strengthen the legislation where the lives of intelligence operatives and our sources are put at risk.

But, in the case of Witness K, there is a clear distinction. That is something that I think is very, very different to the circumstances which I have just set out. In circumstances where, as I believe, it was in the public interest to know about that operation, in a matter where international law, I believe, was breached, that person, Witness K, cannot be treated in the same light as someone who is endangering the lives of security operatives who are working to protect Australia's interests.

My colleagues will also be familiar with the case of Dr Mohamed Haneef, an Indian national who was arrested at Brisbane Airport on 2 July 2007 in connection with a failed Glasgow bomb plot. Dr Haneef was held for 12 days before being charged with providing support to a terrorist organisation. This is an offence for which he could have been jailed for up to 15 years. The charge was unsustainable and was quickly dropped. Meanwhile, his immigration visa was cancelled on character grounds. This was later found to be unlawful. The Hon. John Clarke QC conducted an inquiry into the Haneef case. He concluded that Haneef was 'wrongly charged' because an individual AFP officer, Commander Ramzi Jabbour, had 'lost objectivity' and was 'unable to see that the evidence he regarded as highly incriminating in fact amounted to very little'. No disciplinary action was recommended against Commander Jabbour.

I want to emphasise here that the inquiry found that Commander Ramzi Jabbour was 'impressive, dedicated and capable', yet he was acting selectively, even cynically. He was keeping evidence that might exonerate Dr Haneef from the magistrate who was detaining the doctor in the Brisbane lockup, and also keeping evidence from immigration minister Kevin Andrews, who cancelled his visa. This is where this bill is weak: it assumes a best-case scenario at all times and impeccable behaviour by all concerned. Yet Commander Jabbour was not a bad person. Indeed, the inquiry found that he 'presented as a committed, professional and competent individual, and was held in high esteem by the officers he led'. If this operation or something like it had been a special intelligence operation—the Haneef case was an overt, not a covert, operation, but it could just as easily have been a covert operation—the details could not have been reported unless the reporter was willing to risk up to 10 years in prison. It should not be left to prosecutorial discretion whether a reporter should be tried in such a case. There must be a public interest exemption or, at the very least—and I am moving an amendment to this effect—public interest matters must be considered in the course of fixing a penalty.

On the issue of disruption of target computers and third-party computers—and I am grateful to the Attorney-General's office for the communications I have had with them; I will refer to the response I received just a few minutes ago—I want to set out the concerns that have been expressed to me by people who work in the field of cybersecurity. The bill allows the targeting of third-party computers. In other words, it allows ASIO to break into computers belonging to innocent people in order to obtain covert access to a target. What happens when ASIO accesses the servers of an internet services provider to read the emails of a target? If ASIO has obtained the cooperation of the company or the systems administrator by virtue of the ASIO affiliates scheme, then they will be able to do what they need to do with no disruption to the network. So far, so good—but what happens if ASIO decides to breach a system without the consent of the company? If the company spots the intrusion and tells all its clients it has been attacked, would that be disclosing information about a special intelligence operation? The Attorney-General's office has indicated to me in an email, and I am grateful for the information, that would not be the case; but it would be useful in the context of the committee stages to confirm that, because it is a real concern that has been expressed to me.

Another problem I can foresee is that an attempt to enter a network undetected is usually accompanied by privilege elevation, seeking to elevate low-privilege users to super users. This is because user accounts can only read/write their own data and run some applications but systems accounts can read/write any data and run all applications. Successful privilege elevation would allow ASIO continued access via so-called rootkits or backdoors. A backdoor is a method of bypassing normal system authentication accomplished by installing software on the host using remote access administrative tools and exploiting vulnerabilities in the target system such as default administration accounts. While a symmetric backdoor can be used by anyone, an asymmetric backdoor can only be used by the attacker. A rootkit is a stealthy backdoor which provides persistent, privileged access to a system. It is usually installed after the attacker has gained system-level access. It can alter system logs and registry values. What happens if another outfit—an individual hacker, a group of hackers or a foreign government's signals intelligence directorate—detects a rootkit and also gains access after ASIO has done its job? Won't the target be permanently weakened? So the question I pose, and I pose it genuinely and sincerely, is: what safeguards are there so we will not make systems more vulnerable to those who have evil intent towards Australians as the result of an intelligence operation?

On the issue of oversight, as their own Rt. Hon. David Davis, a leading figure on the backbenches of the UK Conservative Party and editor of The Future of Conservatism: Values Revisited, has argued:

Security services handpick recruits who are intelligent, tricky, quick-thinking and determined: the sort of people who will pull out all the stops to protect the public.

This is exactly what our spies should do. However … it is inevitable that any big bureaucracy–government departments or agencies–will at some point misuse the powers it has and the data it holds.

… … …

If we can't trust government departments, the Met or even our health service to respect our privacy and personal information, we should not trust the security services either.

As David Davis points out, 'We cannot expect James Bond to behave like Mother Teresa. That is why there must be clear limits on the spies' powers.'

I would like the Senate to call on the government to investigate the establishment of a committee, independent from the executive arm of government, to oversee Australia's intelligence services in a similar way to the Foreign Intelligence Surveillance Act, FISA, court in the United States or the Parliamentary Control Panel, the G10 Commission and the Confidential Committee of the Budget Committee in Germany; I move my second reading amendment to that effect. There is clear judicial oversight in the United States. The FISA Court, consisting of 11 federal judges who are appointed by the Chief Justice of the United States, meets in secret, allows only the government to appear before it and provides an annual report to Congress concerning its activities. There is also clear legislative oversight in the United States. The intelligence committees and judiciary committees in the Senate and House of Representatives exercise general oversight over all intelligence collection programs and committee members are regularly briefed. Members of congress receive detailed briefings prior to each reauthorisation. I note that the Attorney's counterpart in the United States, Eric Holder, has done some interesting work in terms of metadata and protocols in place with the media. The media has protocols and safeguards in place so there are not needless metadata searches of journalists, for instance, when contacting their sources. I think that is important and we need to look at emulating that.

There is also excellent oversight in Germany. The parliamentary control commission exercises legislative oversight over the intelligence agencies. The chancellery is obliged to inform this committee at least once every six months about the activities of the intelligence services. The commission can request documents and data and can conduct hearings with members of the intelligence services. The parliamentary control committee's deliberations are kept secret. The parliamentary control committee also appoints the four standing and the four deputy members of the G10 Commission, which serves as a permanent control body for intelligence activities. The commission reviews and authorises all requests for surveillance activities subject to the G10 law. The chair of the G10 Commission needs to have the qualifications to serve as a judge. It meets at least once a month and can schedule on site 'control visits' at German intelligence facilities.

The G10 Commission not only authorises surveillance programs but also controls how these programs are implemented regarding the collection, storage and analysis of personal data. The intelligence agencies have to justify their surveillance requests and specify their scope and targets. The German oversight mechanism belongs to the legislative branch and does not include judicial review. I indicate parenthetically that they have those safeguards in Germany as a result of the excesses of the Stasi in communist East Germany and their enormous surveillance of citizens. When Germany was reunified this was the response, in a sense, to deal with those excesses. These are safeguards so the awful excesses of the Stasi are never repeated in Germany.

By comparison, Australia currently has the weakest oversight mechanisms. This is not a criticism of this government. This is something that has occurred—it is almost a cultural issue—over a number of years. It lacks institutionalised review of surveillance programs from both the legislative and judicial branches of government. Despite claims that Australia's courts may be unable to evaluate intelligence expertly, courts routinely evaluate complex evidence in other areas from complex corporate transactions to elaborate taxation schemes and highly structured trust arrangements. Courts do not typically object that they lack expertise in the complex areas of commercial litigation, taxation, mergers and acquisition deals. I believe our judicial officers have the capacity to provide the sort of oversight that they have in the United States, Germany and the United Kingdom.

Finally, I want to refer to the comments made by Bret Walker SC on the national security amendments on ABC's Lateline program last night in an interview with Steve Cannane, the presenter of the program. I will refer to this more in the committee stage of this bill, but I think it is fair to say that Mr Walker had some views as the former first Independent National Security Legislation Monitor and as someone who is highly respected in the legal profession nationally in this country. There are concerns about what the implications will be of releasing information in the instances I have given of witness K. In the Haneef case clearly there were some issues that were unsatisfactory. If it had been a covert operation, it would have led to significant penalties for anyone reporting on it. Mr Walker SC does distinguish between that and someone deliberately sabotaging a special intelligence operation—and I acknowledge the risk that poses to the men and women of our security services and their associates whose lives would be at risk if that information were disclosed. That is why we need to have appropriate and significant penalties.

But it was put to Mr Walker whether the same sort of penalties ought to apply if, for example, there were politically embarrassing leaks from the intelligence service that did not endanger lives. I think that what Mr Walker said—his caution in respect of that—ought to be heeded. I am concerned that there is no distinction made between someone who is clearly acting in the public interest where there is no question of an intelligence officer's life being at risk or indeed the operation being at risk, such as the witness K example with respect to East Timor.

These are matters that need to be explored in the context of the committee stages. I have provided the Attorney-General's office details in advance of some of my concerns, because I do want there to be a constructive discussion in relation to this. I genuinely want to engage with the government in respect of this, but I have concerns that some parts of the legislation have gone too far without adequate safeguards. I think that is why the committee stage of this particular bill is particularly important.

10:21 am

Photo of Jacqui LambieJacqui Lambie (Tasmania, Palmer United Party) Share this | | Hansard source

I rise to speak to the National Security Legislation Amendment Bill (No. 1) 2014. This bill seeks to make several amendments to legislation used by two of our major intelligence agencies—the Australian Security Intelligence Organisation, ASIO, and the Australian Secret Intelligence Service, ASIS. Before I detail my reason for supporting this bill, I want to thank those officers and their families for their service and loyalty to Australia. While I do not consider them rough, I believe that a variation of a famous quote from George Orwell is one way of describing the situation we now find ourselves in: we sleep soundly in our beds because rough men and women will visit justice on those who will do us harm.

Because of the very secretive nature of the work, ASIO and ASIS officers do not receive public recognition for their acts of bravery and sacrifice, but I know that the vast majority of Tasmanians appreciate and value the contribution that the Federal Police, ASIO and ASIS officers give to our nation. So, thank you for your service.

There are some in this chamber and in our community who think that we have a choice about whether we wage war or not. They forget that war and conflict is sometimes visited and forced upon people. When that happens you do not have a choice on whether you fight or not. I am glad our nation has a history of fighting for what is right, and against the bullies and thugs who impose their culture on us.

The bill contains a number of reforms to modernise and improve the legislative framework governing the activities of the Australian intelligence community—primarily ASIO—and those agencies assisting them, to gather intelligence to protect our nation against national threats. The bill came about after the Joint Parliamentary Committee on Intelligence and Security released a report in June 2014 making a number of recommendations to give ASIO officers and their peers in other agencies the powers that they need to detect and deal with threats against our country.

Where the bill makes some changes of an administrative nature, these appear to have support from all members and senators. The bill gives appropriate powers to ASIO, ASIS and other intelligence agencies to share information which they should have had, and need, to fight the real threats that certain individuals, groups and even other nations may pose to this country.

The bill provides extensive additional warrant powers to provide them with the tools they need to keep pace with technologies to uncover and to continue to foil plots of terrorism against our nation. The bill will give ASIO and ASIS the powers they need to work with private entities when they need to gather intelligence using geospatial imagery and similar methods to gather critical information on terrorists and others who seek to harm Australia.

Probably the most contentious part of the bill is schedule 3, which provides ASIO with the framework to conduct controlled intelligence operations which will be called 'special intelligence operations'. The framework of these special intelligence operations largely mimic operational powers that the federal and state police already have to investigate organised crimes, including those by outlaw motorcycle gangs and drug dealers. The bill was reviewed by a Senate committee, which made 17 recommendations to strengthen the accountability of ASIO staff in performing their duties under the powers given to them under the bill. As I understand it, the government has supported all of these recommendations and has amended the bill to reflect that.

The amended bill will require ASIO to seek approval from the Attorney-General before a special intelligence operation would commence or vary in its tasks or goals. Special intelligence operations will be restricted to a six-month period and only extend beyond that time if the Attorney-General approves this. Government employees conducting special intelligence operations will receive the exemptions from committed offences and civil liability. They will not be exempt if their actions cause death or serious injury to any person, or their actions involve sexual offences or their actions result in significant loss or damage to property. Over the past few days Senator Brandis has also added the offence of torture to this list. Again, this legislation is not unusual and, in fact, closely mimics the same legislation given to the federal and state police to use in the collection of evidence in undercover operations on crime.

Schedule (3) of the bill also makes it a criminal offence to disclose information about a special intelligence operation that would endanger the health and safety of the staff working on it or which would endanger the effectiveness of the operation. When the Senate committee reviewed the bill, it was concerned that the offences for disclosing information about special intelligence operations would prevent disclosure of relevant information by persons in some legitimate circumstances. For example, whistleblowers, including undercover ASIO operatives, who have seen something that they knew was wrong and wanted to report it to their agency, or to the oversight agency or to the Attorney-General.

The committee recommended that the bill be changed to allow disclosure about special intelligence operations in certain instances, including: disclosure of information for the purpose of obtaining legal advice; disclosure of information by any person in the course of inspections by the Inspector-General of Intelligence and Security, the regulator of ASIO or oversight agency, or as part of a complaint to the Inspector-General of Intelligence and Security or other proactive disclosure made to the Inspector-General of Intelligence and Security; or communication of information by Inspector-General of Intelligence and Security staff to the Inspector-General of Intelligence and Security or other staff within the office of the Inspector-General of Intelligence and Security in the course of their duties.

Whilst I acknowledge this would allow whistleblowers to raise concerns with ASIO's regulator if powers were being abused under special intelligence operations, I wonder what would happen if the Inspector-General of Intelligence and Security failed to act on those disclosures. That could happen. It has happened in other states in this country—Queensland, being one, has learnt this through royal commissions. To overcome the possibility of that happening and preventing accountability, the legislation in Queensland states that if whistleblowers report their concerns to an authorised agency and that agency fails to act within six months of the disclosure then the whistleblowers may take their concerns to a member of parliament.

In closing, it is important to note this point: we would not be in this position, where there are armed guards on high alert patrolling our national parliament and where we are debating legislation that undermines personal rights and freedoms, if we had cracked down and taken a harder line with the enemy we face today—the sharia law extremists of 10 years ago. We would not be worried about beheadings and acts of gross violence from sharia extremists if the politicians of the past had cleaned up our own backyard of sharia supporters.

On that note, I am very disappointed by the latest public comments of Mr Keysar Trad, spokesman for the Islamic Friendship Association of Australia, who attacked my views on sharia law. He is not being very friendly or honest. Mr Trad must stop playing the victim and become more truthful with the Australian people. This latest war with extremists and their threat to Australia is not about any religion. It is all about support for a law, and that law is sharia law.

Everyone knows that our enemies support Sharia law. Everyone knows that the people who are planning to cause mass killings and beheadings of innocents in Australia and to commit terror attacks want Sharia law imposed on our country and, indeed, on the rest of the world. So, right now, the question every Australian must ask is: do I support or sympathise with Sharia law? If the answer is yes then those people, as I have already said in the past, should get out of Australia, because you clearly have divided loyalties and you breach section 44 of our Constitution. You cannot support or offer sympathy for Sharia law in any way, formally or informally, because part of the official deal of living in Australia and being a citizen is that you have undivided loyalties. Our Constitution is clear, Australian citizens must exclusively support only one law and Constitution, and that is Australian law and the Australian Constitution.

In the middle of war and during a high national security threat it is time that our law and our Constitution were obeyed by all. You either reject all laws other than Australian law, or you lose all rights as an Australian citizen. If you want to express support for Sharia law, then do not play the victim, or attack my right to free speech, or try to intimidate me. Just get out of Australia and leave us in peace. My message for Mr Trad and other Sharia law supporters is simple: if you want Sharia law so much, if you want to defend it, then go and live in a country that has Sharia law. There are plenty to choose from. Australia does not have Sharia law and never will. Good luck; now get out.

I support the bill before the parliament and urge senators to support the Palmer United amendments to increase penalties for those found guilty of disclosing the identities of ASIO and ASIS agents. I thank all the public servants who are placing their lives on the line to protect ours.

10:31 am

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party, Attorney-General) Share this | | Hansard source

May I begin by thanking all honourable senators for their contributions to this debate. This is quite a historic debate. The Australian Security Intelligence Organisation has served Australians well and has kept our country safe for 65 years since it was inaugurated during the last year of the Chifley government, in March 1949. The powers and functions of ASIO were the subject of comprehensive review by Justice Hope in the Hope report of 1977, on the basis of which the current ASIO Act was drawn. The amendments, which the government brings to the Senate today, are the most significant set of amendments to the ASIO Act and to the powers and functions of ASIO since the time of the Hope report. So this, as I say, is a debate of some historical significance.

Not all of the subject matter of the bill is directed to ASIO. There are amendments as well to the statutes governing other national security intelligence organisations, in particular, the Australian Secret Intelligence Service and others, and there are many consequential amendments. However, I think it is fair to say that, far and away, the most important of the amendments in the bill are the amendments to the powers and functions of ASIO.

ASIO, as I said a moment ago, has served our country well and has kept our people safe for 65 years since the time the first Director General of ASIO, Sir Geoffrey Reed, was appointed by the Chifley government. It is very timely, therefore, that this debate comes at a time when we have just appointed a new Director General of ASIO, Duncan Lewis, a former distinguished commander of Australia's Special Forces and secretary of the Department of Defence, who commenced his role on Monday of last week.

The bill before us is the fruit of long, bipartisan cooperation. I want to thank the Australian Labor Party for their support and their significant role in the shaping of these measures. I also want to acknowledge and thank other minor party and crossbench senators who have indicated their support for these reforms, in particular, the Palmer United Party and Senator Xenophon, who have already spoken today.

The history of this legislation arises from a reference to the Parliamentary Joint Committee on Intelligence and Security by Attorney-General Roxon during the life of the last parliament to undertake a comprehensive review of Australia's national security legislation. One of the topics that the PJCIS report examined was the powers of the agencies including, in particular, the powers of ASIO, and 22 recommendations were made in chapter 4 of that report in relation to ASIO powers. This bill adopts 21 of those 22 recommendations.

During the 43rd Parliament, I sat on that committee, and I want to take the opportunity to pay tribute, in particular, to Mr Anthony Byrne who chaired the committee during its hearings and who conducted a very, very comprehensive and important inquiry in a spirit of immaculate bipartisanship and professionalism. I want to thank all the other members of the committee as well. The fact that the committee was able to produce a bipartisan report should of itself provide reassurance to those who may be sceptical of this legislation, but it commands the endorsement of the Australian political mainstream. It commands the endorsement of both sides of politics and of successive Labor and coalition governments.

It fell to me as the incoming Attorney-General to deal with the recommendations of the PJCIS report and, as I have said, the government decided to adopt 21 of the 22 recommendations in relation to the powers of the agencies.

When the bill was prepared—and, as you know, Mr Acting Deputy President, I introduced it into the Senate in the last sitting week before the winter recess—it was referred again to the PJCIS and, with the change of government, there was a change of the chairmanship of the committee. It is now chaired under the admirable leadership of my colleague Mr Dan Tehan, the member for Wannon. The PJCIS examined the bill and it came back with 17 further recommendations, six of which involve relatively minor legislative change. I am pleased to be able to tell you that the government was able to accept all of those 17 recommendations and those recommendations which involve legislative change will be incorporated in the government amendments, which I will move in the committee stage.

This has been an impressive example, if I may say so, of the parliament through its committees working with the executive government and the agencies of the executive government to reform our law in the national interest. It has been an impressive example of the parties putting patriotism above partisanship and working together for the common good. As I said before, it is very timely that this bill should be before the Senate for consideration at this time. It is a lamentable fact but an unavoidable truth that Australia at the moment needs the protection of its intelligence services perhaps as never before. Certainly, there has been no time since the Cold War or perhaps even no time including the Cold War when the domestic threat posed by those who would do us harm has been so immediate, so acute and so present in the minds of our people. Tragically, we saw that illustrated as recently as overnight in Melbourne.

The approach that the government has taken to this legislation is to give the agencies the powers they need to keep Australians safe. The protection of the public is the paramount duty of government. Every duty, every obligation and function of government is secondary to the paramount obligation to keep our people safe. However, because we are and must always continue to be a free liberal democracy we must always be very careful in crafting our laws to keep our people safe, to ensure that we do not overreach and that the powers that are entrusted to our security agencies are subject to rigorous oversight. That has been the philosophy that we have brought to this legislation, to give the agencies strong powers and to subject those powers to strong safeguards and strong oversight mechanisms.

I have listened with respect to the contributions of those who criticise this bill. I listened with respect, in particular, to the contributions of Senator Leyonhjelm and Senator Xenophon. I want to thank Senator Leyonhjelm and Senator Xenophon for making themselves available to speak to me and my staff so that we could consult them on the bill. Senator Xenophon has indicated his support for the bill, subject to one reservation which, if I may, I will deal with in the committee stage.

Senator Leyonhjelm has indicated his opposition to the bill. It disappoints me that that is the position you have taken, Senator, but I understand and respect your philosophical approach. I understand and respect the fact that you believe that the power of government should be used sparingly, if at all, in a free society. If I may presume to paraphrase your political philosophy in a sentence that, I think, is it. But may I remind you, Senator Leyonhjelm, that freedom is not a given. A free society is not the usual experience of mankind. Freedom must be secured and particularly at a time when those who would destroy our freedoms are active, blatant and among us. It is all the more important that our freedoms be secured by those with the capacity and the necessary powers to keep us safe. I want to reassure you, Senator Leyonhjelm, that the powers that are invested in the agencies by this bill are a proportionate, a judicious and a limited response to the threats we face, and I want to extend that assurance to all members of the Australian public.

I thought, if I may say so, my colleague Senator Lazarus put it very well in the contribution he made a few moments ago when he said, 'I love this country, I love our way of life and I love our freedoms.' Every man and woman in this chamber would share those noble sentiments of Senator Lazarus, but most of us also accept that to protect and secure those freedoms it is necessary to empower the agencies of government to protect us from those who would shred them.

I wonder if I might deal with the particular issues that have been foreshadowed, by way of amendment, by the Greens, by Senator Leyonhjelm and by Senator Xenophon for the committee stage debate. Let me conclude by once again thanking the Labor Party for its bipartisan contribution to this debate. Let me in particular thank the successive chairs of the PJCIS Mr Anthony Byrne and Mr Dan Tehan and the members of that committee for their outstanding work. Let me acknowledge and pay tribute to the recently retired Director-General of ASIO, Mr David Irvine, largely on whose watch this legislation was prepared and among whose legacies to the organisation this legislation will be; and the officers of the Attorney-General's Department, led by Jamie Lowe, who have, at a departmental level, made such a significant contribution to its preparation. Let me end where I began: this government will do what is necessary to keep Australia safe and we will do so in such a manner as will keep Australia free.

10:47 am

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

Mr Acting Deputy President, before you put the question to a vote, I seek leave to make a short statement.

Photo of Christopher BackChristopher Back (WA, Liberal Party) Share this | | Hansard source

Leave is granted for one minute.

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

I thank the chamber. I just want to put some notes on the record because Senator Xenophon had not moved this second reading amendment at the time I made my contribution earlier in the debate.

The Australian Greens will support Senator Xenophon's amendment because he is obviously seeking to establish an oversight structure that does not exist in Australia at this time. We support it with some reluctance, obviously, as citing the Foreign Intelligence Surveillance Court in the United States, which is effectively a court that operates entirely in secret, is not a particularly good template or model for independent oversight of intelligence agencies. But, nonetheless, we understand Senator Xenophon's intention and that it is simply one example of an entity that is cited and the Australian Greens would support the intention of the amendment, even if we do not believe that the FISC necessarily provides the best working model for open, public oversight, which we do agree that Australia needs.

Photo of Christopher BackChristopher Back (WA, Liberal Party) Share this | | Hansard source

The question is that the second reading amendment moved by Senator Xenophon be agreed to.