Thursday, 10 December 2020
Australian Security Intelligence Organisation Amendment Bill 2020; Second Reading
I table a revised explanatory memorandum relating to the bill, and move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
The speech read as follows—
I move that this Bill now be read a second time.
Keeping Australian communities safe from those who seek to do us harm is, and will continue to be, the Government's number one priority.
An important way the Government achieves this is by ensuring that our national security agencies have the powers they need to work in an increasingly volatile security environment.
The Australian Security Intelligence Organisation Amendment Bill 2020 will modernise ASIO's powers and improve ASIO's capacity to respond to a range of steadily worsening threats particularly in relation to politically motivated violence, espionage and foreign interference.
The Bill repeals ASIO's existing questioning and detention warrant framework contained in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (ASIO Act), and introduces a reformed compulsory questioning framework.
These powers will enable ASIO, upon obtaining a warrant, to question a person under compulsion to obtain intelligence in relation to politically motivated violence (including terrorism), espionage and foreign interference.
The Bill will also align the approval process for ASIO to use non-intrusive tracking devices with that of law enforcement agencies under the Surveillance Devices Act 2004, and modernise the definition of tracking device to ensure ASIO is able to use the latest and safest technology to perform its functions.
The Parliamentary Joint Committee on Intelligence and Security (PJCIS) has comprehensively reviewed the powers in this Bill and supported the retention of a compulsory questioning power for ASIO. The PJCIS made eight recommendations in relation to the proposed compulsory questioning powers.
The Government has amended the Bill to implement all of these recommendations, and I table a revised explanatory memorandum incorporating these amendments.
These amendments further strengthen the significant safeguards that will accompany the compulsory questioning framework in this Bill, including rights to legal representation, and extensive real-time oversight throughout the course of questioning by the Inspector-General of Intelligence and Security.
In conclusion, this Bill will ensure that ASIO has the powers it needs to deal with current and emerging threats to our nation's security.
The Morrison Government is committed to ensuring our security agencies have the powers they need to operate effectively in an increasingly challenging and complex national security environment. I am sure that this sentiment is shared by all members in this Chamber.
I commend the Bill to the Chamber.
I rise to speak on the Australian Security Intelligence Organisation Amendment Bill 2020 and say at the outset that Labor supports the fundamental aims and objectives of this bill. We welcome the repeal of the questioning and detention warrant. It is a repeal that Labor has long advocated. It is a repeal that has been supported by the Parliamentary Joint Committee on Intelligence and Security. It is a repeal that has been supported by the Independent National Security Legislation Monitor. This is a reform that is long overdue. Labor supports and welcomes it and we appreciate that the government, in a long overdue response to the Parliamentary Joint Committee on Intelligence and Security, has brought this repeal forward.
I note that the questioning and detention warrant, which was a power that was brought in in the wake of the September 11 attacks by this parliament and supported at the time by the Australian Labor Party, is a power that has never been used. It is an extraordinary and intrusive power designed to assist our national security agencies to prevent a terrorist attack and it has never been used. Therefore it is appropriate that we repeal this power and Labor supports that objective. Labor also supports the objective of expanding the questioning warrant to cover acts of politically motivated violence, including terrorism, foreign interference and espionage.
Senator Keneally, resume your seat. Senators, we have a debate in progress. There are lots of little meetings going on around the chamber. If you're not participating in the debate, I would ask that you be respectful and leave so that Senator Keneally can make her contribution in silence. Thank you.
The questioning warrant power has been expanded, as I said, to cover acts of politically motivated violence, including terrorism, foreign interference and espionage. Labor supports this expansion. It is appropriate that our national security agencies have the tools available to them to meet the current threat environment. As former Prime Minister Malcolm Turnbull said: there is no set-and-forget when it comes to national security. The tools that our national security agencies have available to them must evolve to meet the current threats. We acknowledge that foreign interference and espionage are at heights not previously seen in Australia, including at the height of the Cold War. It is appropriate that ASIO has the questioning warrant power to be used in circumstances of foreign interference and espionage.
Labor also supports expanding the questioning warrant power to persons as young as 14, but only in cases of politically motivated violence, as the legislation stipulates, and where the person being questioned is in fact the subject of the investigation. It's important for those who are watching this debate to note and understand that the questioning warrant power is not a law enforcement power; it is an intelligence power. It has been given to our intelligence agencies in order to prevent a terrorist attack. We must recognise the reality that extremist groups, whether they are far-right extremists or from Islamic jihadism, are targeting younger and younger individuals, usually males, to radicalise and to provoke to acts of violence.
We should recall that the person who fired the gun that murdered Curtis Cheng, a New South Wales Police force civilian employee, was only 15 years old. That was an act of politically motivated violence. It was a terrorist attack. It is appropriate that our national security agencies are able to use this questioning warrant power in order to prevent a terrorist attack, including when one is being planned by a person as young as 14, because the evidence is extremist groups are seeking to radicalise and target younger and younger people to carry out these attacks.
I acknowledge that there has been significant concern in the community about the safeguards that would apply to the questioning of minors. I would note for those watching this debate that in this legislation a number of safeguards do apply to the questioning of minors. Many of these are in addition to the safeguards that apply to adults. There is a high threshold for obtaining a questioning warrant; the requirements for children include the following. The Attorney-General must consider the best interests of the child when issuing a warrant. Questioning may only occur in the presence of a lawyer and a parent, guardian or another person acceptable to the child. There is a right to legal advice for all persons, adults and children, including representation during questioning sessions. For minors there is a limit of two hours on continuous questioning periods. Minors also have the right to disclose to particular persons their questioning after the questioning has occurred. And there is the ability to seek judicial remedy in relation to the warrant and the ability to contact the IGIS—the Inspector-General of Intelligence and Security—or the Ombudsman to make complaints about the process. So there are several safeguards built into this legislation.
There are safeguards as well in relation to prescribed authorities. Prescribed authorities play an important role, and always have done so, in relation to the questioning warrant power and, had it been used, the questioning and detention warrant power. A prescribed authority will oversee the execution of a questioning warrant and provide directions in accordance with the legislation. A prescribed authority can be a former superior court judge, an AAT member or another experienced legal practitioner. They cannot be an ASIO employee, a member of an intelligence, security or law enforcement agency, other than the AFP, or an AGS lawyer or IGIS official.
The bill originally proposed to change the qualifications for a prescribed authority. The bill as it was originally presented to the parliament would have allowed for a person with 10 years experience in a legal capacity to be appointed as a prescribed authority. The Parliamentary Joint Committee on Intelligence and Security considered this matter, and it came to a conclusion and made a recommendation in its report that a prescribed authority should have 10 years experience but must additionally be a Queen's Counsel or Senior Counsel. That was in order to assure ourselves and the community that the people acting as prescribed authorities had the relevant senior experience. We acknowledge that the government has accepted that recommendation and moved it as an amendment in the other place to this legislation.
The legislation also previously included a sunset in 2030 and did not include a requirement for a legislative review. Again the Parliamentary Joint Committee on Intelligence and Security considered that matter, and the committee came to a view that this extraordinary and intrusive power, whilst it is appropriate, must be accompanied by appropriate safeguards and parliamentary oversight. Therefore, the intelligence committee made a recommendation to the government that the sunset be shortened to 2025 and that a review occur in 2023. I acknowledge that the government has accepted that recommendation and incorporated it as an amendment in the House of Representatives.
This bill also makes some changes to ASIO's surveillance device warrant framework, allowing the internal authorisation of the use of tracking devices in certain circumstances. Labor members on the intelligence and security committee participated in questioning of our national security agencies in relation to the necessity for that change. We are satisfied that that is an appropriate authorisation change and we support that aspect of the bill. As I said, Labor supports overall the fundamental aims and objectives of this legislation, welcomes the repeal of the questioning and detention warrant, welcomes and supports the expansion of the questioning warrant to acts of foreign interference and espionage, and welcomes, with appropriate safeguards in place, the ability for ASIO to question minors as young as 14 where they are the subject of the investigation and only in relation to acts of politically motivated violence.
I note that the Parliamentary Joint Committee on Intelligence and Security also asked the government—not in the form of a formal recommendation—to consider whether an additional safeguard in relation to minors should be implemented, and that is a child advocate. The committee considered that this is an extraordinary and intrusive power—it is the most extraordinary and intrusive power that ASIO has—and considered that, while the expansion to minors as young as 14 was appropriate in the narrow and defined circumstances with the safeguards the bill contains, there should be consideration, as the warrant power is being given to ASIO, as to whether or not a child advocate should also be part of the process. The intelligence committee has invited the government to come back to it on answering that question. I also flag that I expect that that and the other matters that are highlighted in Labor members' additional comments to the intelligence committee report should be considered as top-order issues for the review in 2023.
In the time remaining I want to turn to an issue where Labor does have a point of difference with the government. The bill removes a safeguard put in place for the issuing of questioning warrants. That safeguard was put in place by John Howard. His Liberal Attorney-General Daryl Williams put in place a safeguard that the questioning warrant power had to be not only issued by the Attorney-General but signed off by an independent issuing authority—a judge acting in a personal capacity. This is a double-lock mechanism to ensure that an intrusive and extraordinary power is used appropriately and lawfully and that the public can have confidence that there is independent oversight and authorisation of such an extraordinary power.
Labor has long supported that the extraordinary powers where they are necessary, as they are in this case, to keep the community safe should also be accompanied by safeguards that ensure democratic rights and freedoms are protected. This was the approach taken by Labor senator John Faulkner when these warrant powers were first introduced in the wake of September 11 and it is the approach Labor takes today.
I note that in the House of Representatives the shadow Attorney-General, Mark Dreyfus, moved an amendment to restore the Howard safeguard. Labor members support the retention of John Howard's safeguard to ensure that independent issuing authorities sign off on the use of these extraordinary powers. I note that in the other place the government voted against the retention of the Howard safeguard. I invite government senators here today to reconsider that position. I anticipate that, given the vote in the House of Representatives, I may be unsuccessful in that request. Nonetheless, I state for the record that, when Labor do come to government, we will—and we make a commitment here today—move to restore John Howard's safeguard to ensure that this extraordinary questioning warrant power is appropriately authorised by not just the Attorney-General but an independent issuing authority.
In the time I have remaining I acknowledge the work done by ASIO in keeping Australians safe. There is no doubt that ASIO has used these powers sparingly. These powers have been used only 16 times since they were provided in 2004. They have not been used since 2010. That's notable because the threat level for terrorism was raised in 2014 and yet ASIO has judiciously and sparingly used these powers. Labor members expect that ASIO will continue to judiciously and sparingly use these powers, particularly in the context of them having been expanded. I acknowledge ASIO's work and state again that Labor supports this legislation. I flag in the seconds remaining that I will seek leave to move amendments to this legislation to restore John Howard's safeguard—the independent issuing authority.
I rise to speak on the Australian Security Intelligence Organisation Amendment Bill 2020. It's funny, this place. Out there in the community, in the real world, we teach our kids that if they see the wrong thing they should speak up, that if someone does the wrong thing, they should say something, and that, if they do say something, they will be protected, because telling the truth and exposing corruption and bad behaviour are better than staying silent. In the real world, where most of us live, we teach our kids honesty and integrity; however, when you come into this place, that is completely reversed. In here, the government threaten people who speak up. They threaten people who see something wrong. They threaten whistleblowers, journalists and activists, because the home affairs minister, Peter Dutton, is scared and feels threatened—the fragility. The 'never ever could be Prime Minister', the Minister for Home Affairs, is running scared. So what does he do? He sends his big spy agency to harass, intimidate and threaten anyone he doesn't like or he doesn't agree with—weak. What a joke.
These ASIO laws could punish journalists breaking politically significant stories, stories like the conduct of the type of person the Attorney-General is and has been; stories exposing the hypocrisy of the member for Aston, Alan Tudge, who talks big on family values but has none where it matters; and big—
These include big, nationally significant stories like the absolutely and totally barbaric conduct of the Australian elite SAS and the horrific war crimes they committed in our name. These laws will also have a chilling effect on activists and grassroots communities—activists like the thousands upon thousands of people who stand up in cities all around this country to say that Black Lives Matter, the grassroots mob who rally and shut down cities every Invasion Day, reminding you all that we are still here and, until you do the right thing by us, we will keep on demanding our rights. How fragile the Minister for Home Affairs is, that he would rather stop brave whistleblowers from speaking out and protecting the public's right to know. This is while the minister talks big on the freedom of speech.
For this government, freedom of speech means freedom to say only the things that this government agree with, or else they will send ASIO to spy on you, intimidate you and question you. These laws could also see journalists jailed for five years if they refuse to reveal their sources. Think about that: this government is happy to threaten journalists for refusing to reveal sources. Does that not look a bit like dictatorship?
The Minister for Home Affairs and his little Secretary of the Department of Home Affairs are happy to drive us to a police state and are hoping no-one will notice. These two fragile men with big egos are now using these laws to threaten anyone they're scared of.
Senator Thorpe, if you did make a personal reflection, I'd ask you to withdraw it. I didn't hear the phrase used. I can check the Hansard, but, if you do think you made a personal reflection upon a member of another place, it would help the chamber if you would withdraw it. As I remind senators, it is very easy to use language criticising an action, an event or a policy. The standing orders require very careful language around people. So, Senator Thorpe, I didn't hear what you said. If you'd like to withdraw, you're free to. If not, I'll check the Hansard.
If you are scared of journalists, then what are you hiding? If you are so scared of civil society—the very people that elected you to this place—and anyone who is holding you to account, then what are you doing behind closed doors? We teach our children to be accountable, to conduct themselves with dignity and to say something if they see something dodgy going on. The Minister for Home Affairs never got that lesson. He doesn't care about you, he doesn't care about our democracy, and he most definitely does not care for being exposed—I don't want to get caught out on a point of order, so I won't say that line.
The Minister for Home Affairs wants to send Big Brother to spy on our children. These laws will lower the age of questioning by ASIO from 16 to 14. Think about that. ASIO can spy on children, breaching Australia's international obligations under the Convention on the Rights of the Child. This is sick. Why am I surprised? This is from a government that is happy to lock brown and black people up in offshore detention, a government headed by a Prime Minister who, when the country was going through one of the worst crises in its history, went to Hawaii. He went to Hawaii. Why didn't he holiday here, on our own shores? That's right—because our country was on fire. It was literally on fire. I know the other side hate hearing this because they hate being exposed for the outliers that they are. This government will dodge accountability. It's revolting.
These laws will give ASIO powers that are so far-reaching that they could be used to clamp down on civil society organisations and political advocacy groups, including environment, human rights and refugee groups. These changes would make Australia a world leader in state sanctioned tracking of citizens and coercive questioning powers, because the Minister for Home Affairs is scared—scared of children, scared of the truth, scared of brown and black people. He's running scared. But that's okay—the Parliamentary Joint Committee on Intelligence and Security, the PJCIS, is on his side. It's shameful. The PJCIS has just rubberstamped these laws. It is one of the parliament's most secret and powerful committees, and it's determining the fate of Minister Dutton's spy laws. This government-controlled committee operates like a fortress. Independent and crossbench MPs are shut out of any form of participation on scrutiny, because the PJCIS doesn't like to be scrutinised. Let's be honest, that's what these laws are about. They're about limiting the public's right to know. They're about intimidating anyone who sees government wrongdoing.
There has been an ongoing erosion of rights in Australia for the past 20 years. Unfortunately, the two major parties are in complete lock step with each other and they are leading us down the road to a surveillance state. I say to those opposite: you know that the George Orwell novel 1984 was a novel, right? It wasn't a manual. The Minister for Home Affairs and the secretary of his department, 'Big Brother' and 'Little Brother', are so threatened by truth. These laws are always pitched to us on the basis of the most serious crimes available, but we know—I know as a black woman—that these laws are always used to intimidate black people, people of colour, activists, grassroots organisations and journalists. If this government are so scared of the truth, then what are they hiding?
We are proud to be the only opposition in this place. We will never support this intrusion on the human rights of people. I say to those watching: the Greens are the real opposition in this place. We're the ones with the guts to call out this shameful overreach. I also want to remind you that not only is ASIO watching; so is the Minister for Home Affairs. Shame.
I rise to speak briefly in this debate on the Australian Security Intelligence Organisation Amendment Bill 2020. The bill implements the government's response to the report of the Parliamentary Joint Committee on Intelligence and Security into ASIO's questioning and detention powers by amending the ASIO Act 1979 in relation to compulsory questioning powers and tracking devices. I won't go into the detail of the bill. It has been eloquently spelt out by Senator Keneally. I indicate I will, at the committee stage, talk to my amendment. I did listen to Senator Keneally's contribution and I'm not sure whether her amendments have been circulated at this point, but they were certainly circulated in the House—and the Clerk's giving me a nod saying they have been circulated, so I'll talk to those. I do actually support the idea in Labor's amendments that basically brings a judge back into the process of issuing warrants. I think that's a really important thing that ought to take place.
Those of you who were in the chamber yesterday would have heard me talking about a decision handed down by the AAT yesterday. I want to come back to the contribution I made yesterday and talk about how it relates to this particular bill. Back in 2018, the Attorney-General censored an Auditor-General's report into the Hawkei combat vehicle, using a power under section 37 of the Auditor-General's Act to ensure that information that he considered to be sensitive from a national security perspective and sensitive from a commercial perspective was basically redacted in the Auditor-General's final report. The interesting thing about that is that, when that power is used by the Attorney-General, the Auditor-General is not required to answer questions from the Senate. It's one really unusual provision in the statutes which basically curbs the parliament's own powers—obviously, parliament's done that itself—so we never get to see whether or not that power was exercised responsibly. I was concerned about that and I looked for a way to, in some sense, review the decision of the Attorney. It did go to an inquiry—the JCPAA looked at it. But in fact, when the Attorney-General censored the Auditor-General, the act required that a report be provided to the Prime Minister. That report was provided and I sought that report under FOI.
A range of claims were advanced to try to prevent me having access to that particular document, but eventually, after some of the quite complex claims were abandoned by the Department of Prime Minister and Cabinet, represented by the AGS, we finally got to the nub of some exemptions that were claimed by the Prime Minister on national security and commercial sensitivity grounds. Yesterday a decision was handed down that basically stated that the information in this Auditor-General's report was not sensitive: it was not sensitive from a national security perspective and it was not sensitive from a commercial perspective. The significance of that to this bill and to the proposal flagged by Senator Keneally is that we now have a ruling from the AAT that shows the Attorney-General's judgement was actually grossly incompetent—it was incompetent from a legal and parliamentary perspective. I'm referring to the exercise of his powers as a minister, and that has relevance here.
Here we have a bill presented to the parliament that grants the Attorney the power to issue warrants without the supervision of a judicial officer or consultation or connection with a judicial officer. We now know without doubt, from a decision made by a prominent deputy president of the AAT, that the Attorney does not have the capacity to exercise good judgement in these sorts of matters. I could mention Witness K, Bernard Collaery, Richard Boyle and David McBride—all whistleblowers who have been prosecuted under the current Attorney's watch, even though section 71 of the Judiciary Act allows him, in his responsibility to this parliament, to end prosecutions that are not in the national interest, not in the interests of justice.
If indeed Senator Keneally moves those amendments I will certainly be giving them support. They are a good safety measure. Quite frankly, I can't understand why such amendments would not be supported by the government, because they're quite sensible, quite reasonable and serve the right balance between the exercise of powers and the checks necessary when such powers are exercised.
I rise to sum up the debate in the Senate on the bill before us, the Australian Security Intelligence Organisation Amendment Bill 2020. Keeping Australian communities safe from those who seek to do us harm is and will continue to be the government's No.1 priority. An important way the government achieves this is by ensuring that our national security agencies have the powers they need to work in an increasingly volatile security environment. The bill before us, the Australian Security Intelligence Organisation Amendment Bill 2020, will modernise ASIO's powers and improve ASIO's capacity to respond to a range of steadily worsening threats, particularly in relation to politically motivated violence, espionage and foreign interference.
The bill before the Senate repeals ASIO's existing questioning and detention warrant framework, contained in division 3 of part III of the Australian Security Intelligence Organisation Act 1979, and introduces a reformed compulsory questioning framework. These powers will enable ASIO, upon obtaining a warrant, to question a person under compulsion to obtain intelligence in relation to politically motivated violence—and this violence includes terrorism—espionage and foreign interference. The bill will also align the approval process for ASIO to use non-intrusive tracking devices with that of law enforcement agencies under the Surveillance Devices Act 2004 and modernise the definition of 'tracking device' to ensure ASIO is able to use the latest and safest technology to perform its functions.
The Parliamentary Joint Committee on Intelligence and Security, otherwise known as the PJCIS, has comprehensively reviewed the powers in this bill and supported the retention of a compulsory questioning power for ASIO. The PJCIS made eight recommendations in relation to the proposed compulsory questioning powers. The government has amended the bill to implement all of these recommendations, and I know, Acting Deputy President Fawcett, you are aware of those recommendations. I understand that I will be tabling a revised explanatory memorandum incorporating those amendments, and I have that here for the officials. These amendments further strengthen the significant safeguards that will accompany the compulsory questioning framework in this bill, including rights to legal representation and extensive real-time oversight, throughout the course of questioning, by the Inspector-General of Intelligence and Security.
The amendments to the Australian Security Intelligence Organisation Amendment Bill 2020 that I have referred to in my speech were prepared, as I've stated, in response to recommendations of the Parliamentary Joint Committee on Intelligence and Security and advice of the Senate Standing Committee for the Scrutiny of Bills. Certainly I would thank both those committees for their work in comprehensively reviewing this bill. The government amendments that I have referred to provide that a legal practitioner who is appointed as a prescribed authority must have engaged in legal practice for at least 10 years and must be a Queen's Counsel or Senior Counsel. This is an important amendment that will ensure that the prescribed authority is well qualified and experienced to carry out their role overseeing questioning. The bill as drafted requires the Attorney-General to consider the minor's best interests, and this includes their mental health and cultural needs amongst other matters. The committee recommended that the bill clarify that the Attorney-General must consider the best interests of the child as a primary consideration, and an amendment has been included to implement this recommendation. I also advise that the government has accepted the committee's recommendations that the PJCIS commence a further review of ASIO's questioning powers by 7 September 2023 and that the powers sunset on 7 September 2025. I also advise that the government has made amendments in line with the committee's recommendations to clarify that the making of a public interest disclosure to an authorised internal recipient under the Public Interest Disclosure Act will not contravene secrecy offences in the bill. The amendments also clarify that ASIO must not use a tracking device without authorisation, where doing so is prohibited by a law of the Commonwealth, a state or a territory.
Recommendation 3 of the committee is:
The Committee recommends that the Australian Security Intelligence Organisation Amendment Bill 2020 and the Intelligence Services Act 2001 be amended to allow the Committee to request a written or oral briefing on any matter in relation to any questioning warrant …
The government notes this recommendation. The committee will have an opportunity to request briefings on questioning warrants as part of a further review, commencing before 7 September 2023.
In addition to the amendments which respond to the committee's recommendations, the government proposed amendments to further strengthen the bill's safeguards. These additional safeguards will: ensure IGIS or IGIS officials cannot be denied entry to a place of questioning and may possess communications devices; ensure that a permitted disclosure under the bill's secrecy offences includes disclosure by a minor to a parent or guardian; and clarify the operation of certain provisions related to the oversight and complaints functions performed by an IGIS official. The government is of the opinion that, collectively, what these amendments will do, or have done, is strengthen the bill and improve the operation of the bill.
Australian security and intelligence agencies face a complex and evolving threat environment. The Director-General of ASIO has, indeed, described the current threat from espionage and foreign interference as greater now 'than at the height of the Cold War'. These sophisticated activities threaten our universities, our government officials, our media institutions and our parliament—key institutions of Australia's democracy—in an attempt to undermine our authority. ASIO's inability to use its existing compulsory questioning powers against suspected spies is a serious gap in Australia's national security legislative framework. Again, in terms of what the bill before the Senate is seeking to do, it introduces important reforms to the Australian Security Intelligence Organisation Act 1979 to ensure ASIO's powers are appropriately tailored to the current security environment, bearing in mind that the Director-General of ASIO has described the current threat from espionage and foreign interference—I will remind senators—as greater now than 'at the height of the Cold War'.
In conclusion, this bill will ensure ASIO has the powers it needs to deal with current and emerging threats to our nation's security. The Morrison government is committed to ensuring our security agencies have the powers they need to operate effectively in an increasingly challenging and complex national security environment. I note from speeches given by other senators in this chamber that this sentiment is shared by those senators. On that basis, I will commend the bill to the Senate.