Wednesday, 12 May 2021
Intelligence and Security Joint Committee; Report
I present the advisory report of the Parliamentary Joint Committee on Intelligence and Security on the Telecommunications Legislation Amendment (International Production Orders) Bill 2020 and move:
That the Senate take note of the report.
I am pleased to present the Parliamentary Joint Committee on Intelligence and Security's report, Advisory Report on the Telecommunications Legislation Amendment (International Production Orders) Bill 2020. In brief terms, this bill seeks to append a new schedule 1 to the Telecommunications (Interception and Access) Act 1979 to introduce an international production orders regime. The international production orders regime will allow Australia to enter into an agreement with a foreign country to facilitate access to telecommunications data in the investigation and prosecution of serious crimes.
The bill has been introduced against a backdrop of growing technological advancement that challenges the ability of our law enforcement and intelligence bodies to combat serious human trafficking, drug crime, child sexual abuse and terrorism. The current mutual legal assistance process cannot keep pace with our law enforcement agencies' efforts to combat these serious crimes that impact the safety of all Australians.
The committee supports the bill and the overarching outcomes it is trying to achieve. However, in consideration of the bill, the committee considered there were opportunities to be more prescriptive in how a designated international agreement may be made and how the international production orders scheme will operate.
The committee has recommended that the bill be amended to incorporate conditions that qualify an agreement to be a designated international agreement, including that an agreement must include: protections around the data of Australians, including the use, handling and disclosure of information; that production orders must comply with the domestic laws of the relevant foreign country; that a production order may be issued if the information could not be reasonably obtained through other less intrusive methods; and that information obtained through an international production order cannot be provided to a third-party government.
To make the agreement with a foreign country, the committee has recommended that the bill require that the foreign country must demonstrate: firstly, respect for the rule of law; respect for international human rights obligations and commitments; clear legal procedures governing the use of electronic surveillance investigative powers; and, where the country has the death penalty as an available punishment for an offence, the country must provide Australia with assurances about the non-use of its information in such cases.
The committee has recommended the bill clarify designated international agreements will be published and tabled in the regulations subject to parliamentary scrutiny and subject to a period of disallowance. The committee has also recommended that the bill provide that a designated international agreement may be extended for a period of three years without going through the parliamentary treaty process if renewal or extension is proposed without amendment to the agreement.
Noting the potentially intrusive nature of the powers, the committee has recommended that the ability to apply for an international production order should be appropriately limited to senior officers within relevant law enforcement agencies or the Australian Security Intelligence Organisation. The committee made additional recommendations to enhance oversight of the use of the powers by the Commonwealth Ombudsman and the Inspector-General of Intelligence and Security, and to facilitate the sharing of information between the Australian designated authority and these oversight bodies.
The committee has recommended that it revisit the provisions of the bill whichever is the earlier of three years following the enactment of the first agreement or five years after the commencement of provisions of the bill. The committee recommends that, following the implementation of its recommendations, the bill be passed by the parliament. I commend the report to the Senate.
Question agreed to.
On behalf of the Parliamentary Joint Committee on Intelligence and Security, I present a statement on the committee's review of regulations re-listing Jaish-e-Mohammad as a terrorist organisation under the Criminal Code. I move:
That the Senate take note of the report.
I rise today to present a statement on the Parliamentary Joint Committee on Intelligence and Security's A review of regulations re-listing Jaish-e-Mohammad as a terrorist organisation under the Criminal Code Act 1995. Relations that specify an organisation as a terrorist organisation cease to have effect on the third anniversary of the day on which they take effect. Organisations can be relisted, provided the minister is satisfied on reasonable grounds that the organisation continues to directly or indirectly engage in terrorism or advocate the doing of a terrorist act. Jaish-e-Mohammad was listed in 2018, and the regulations to relist them were tabled in the parliament on 23 February 2021.
The committee's review examines the minister's decision to relist this organisation. Section 102.1A of the Criminal Code provides that the committee may review a regulation which lists or relists an organisation as a terrorist organisation and report its comments and recommendations to each house of the parliament before the end of the applicable 15 days sitting disallowance period. This statement serves this purpose and is being presented within the required period.
In determining whether the regulations relisting this organisation should be supported, the committee reviewed the merits in accordance with the Minister of Home Affairs' explanatory statement, ASIO's statement of reasons for the organisation and other publicly available information. In its deliberation, the committee determined that Jaish-e-Mohammad has links to extremist groups, maintains operational links with other groups operating in Jammu, Kashmir and Pakistan and has ties to al-Qaeda and the Taliban. JEM is directly engaged in preparing, planning and undertaking terrorist attacks and has publicly advocated terrorist attacks online and through rallies and religious sermons in Kashmir. JEM has historically conducted attacks indiscriminately to achieve its objectives, including targeting foreigners. It would consider Westerners, including Australians, to be legitimate targets for attack.
This organisation remains a real threat to Australia. There is strong evidence that it continues to engage in terrorist activities that are targeted at countries with Western values. In examining the evidence that has been provided, the committee is satisfied with the relisting processes and considers that they have been followed appropriately for this organisation. The committee therefore supports the relisting of the organisation under division 102 of the Criminal Code in order to protect Australians and Australia's interests, and finds no reason to disallow the regulations.
Question agreed to.