Member for Isaacs

National Security Legislation Amendment Bill (No.1) 2014, House of Representatives - Mark Dreyfus QC MP

21 November 2014

The National Security Legislation Amendment Bill (No 1) 2014 stems from work which began under the former Labor Government in 2012. In May 2012 then-Labor Attorney-General the Hon Nicola Roxon MP asked the bipartisan Parliamentary Joint Committee on Intelligence and Security (the PJCIS) to conduct a broad inquiry into potential reforms to Australias national security laws. The Labor Government released for community debate and consultation a National Security Discussion Paper which formed the basis for the PJCISs inquiry.

The National Security Legislation Amendment Bill (No 1) 2014 stems from work which began under the former Labor Government in 2012. In May 2012 then-Labor Attorney-General the Hon Nicola Roxon MP asked the bipartisan Parliamentary Joint Committee on Intelligence and Security (the PJCIS) to conduct a broad inquiry into potential reforms to Australias national security laws. The Labor Government released for community debate and consultation a National Security Discussion Paper which formed the basis for the PJCISs inquiry.

The PJCIS held both public and private hearings in 2012 and took evidence from a range of witnesses. Its Final Report was tabled on 13 June 2013.

It is worth noting the comprehensive process of consultation which the Committee undertook in that inquiry. A broad range of community views were taken into account in that process. Ill quote from the PJCIS Report:

Letters inviting submissions were sent to over 130 stakeholders in both federal and state government, the telecommunications industry, civil liberties and privacy non-government organisations, and peak legal bodies and associations with an expected interest in the reforms canvassed.

The Committee received 240 submissions and 29 exhibits Three submissions were received in largely identical terms from some 5,300 individual members of the public.

The commissioning of the PJCIS Inquiry was just one part of the Labor Governments broader approach to updating and improving Australias national security laws. In 2010, the Labor Government established the Independent National Security Legislation Monitor, a statutory office responsible for the ongoing review of national security laws. The inaugural Monitor, Bret Walker SC, has provided invaluable service to the nation in the four reports he produced in his three years in office. In 2012, Prime Minister Gillard launched the COAG Review of Counter-Terrorism Laws, whose report I tabled in May 2013.

I expect that as the Government introduces the successive pieces of national security legislation it has now foreshadowed, it will draw on this work. Where it departs from the considered recommendations of the PJCIS, the COAG Review and the Independent Monitor, it should be able to provide good reason for doing so. I welcome the Governments abandonment of its ill-conceived proposal to abolish the Monitor, and I call on the Government to appoint a new officeholder as soon as possible. I am heartened that the Liberal Party Senators and Members of the PJCIS share this concern they too have called on the Government, in their report on this Bill, to appoint a new Monitor as soon as possible.

Each of these measures the establishment of the Monitor, the commissioning of the PJCIS Inquiry, the COAG Review showed our Governments commitment both to protecting the Australian community from security threats, and to making sure that our laws are appropriate, balanced and fair. Labor will always make sure that our security agencies are adequately resourced and empowered. But we are also committed to protecting civil liberties and human rights. We will not abandon the values and the protections which make Australia such an open and free society.

I give this background because it is important to understand the context of this legislation. The Government has indicated it will bring forward a range of legislative responses to the threat of terrorism arising out of recent developments in Syria and Iraq.

This Bill, the first of several the Government has introduced into the Parliament or foreshadowed, may certainly have some implications for our security agencies ability to handle this threat.

However, we should be very clear about the content and the intent of the legislation we are debating today. This Bill implements the recommendations contained in Chapter IV of the 2013 PJCIS Report, entitled Australian Intelligence Community Legislation Reform. The Bill updates the legislation underpinning our intelligence agencies to take account of technological and social developments, and to take account of the agencies experience of current arrangements, their experience of what works well and what could be improved.

It is in the nature of a modernisation, a fine-tuning of legislation which is now some decades old. Many of the measures in the Bill are largely uncontroversial, though worthy, adjustments to intelligence legislation, including:

  • Updating ASIO's employment framework;

  • Improving ASIO's ability to work and share information with other organisations;

  • Enabling ASIS to better cooperate with ASIO, and improving ASISs protective security
    capability while operating in dangerous environments; and

  • Renaming of Defence agencies to better reflect their roles.

Though it is perhaps impossible to separate this legislation from current events in public debate, we should be clear that these are reforms intended to endure well after current threats have faded. We should debate their content on that basis.

Subsequent bills, which do not so squarely implement the outcome of a process as lengthy and exhaustive as the 2012-13 PJCIS Inquiry, may merit a different approach. Labor understands the importance of national security legislation both to agencies and to the community. We understand that some of the commentary and debate about national security at present has caused agitation in the community. I want to assure the community that we will be treating any proposed reforms with the care, the caution and the seriousness they deserve.

The provisions of this Bill have of course aroused some community concern, particularly among the media. I want to touch on two issues which have been particularly controversial.

First, I acknowledge the concerns many have raised about the offence provisions in the new Special Intelligence Operation scheme provided for ASIO in this Bill. I know that this has caused particular alarm among some journalists.

SIOs are counter-espionage and counterterrorism operations in which ASIO officers work undercover, infiltrating groups which would do us harm. In the course of working undercover in such groups, undercover ASIO officers may have to break the law. The new SIO scheme is modelled on the arrangements which have applied to undercover AFP operations for some years now. It provides immunity from criminal prosecution for ASIO officers in such circumstances, though this immunity does not extend to torture, to any conduct causing serious harm or death, to sexual offences, or to serious damage to property. The establishment of an SIO scheme was supported by the Independent Monitor.

SIOs will comprise only a very small proportion of ASIO activity, and are subject to strong oversight. Labor has in fact insisted on safeguards stronger than originally proposed by the Government, which I will come to later.

The danger to which undercover ASIO officers could be exposed if the nature of an SIO were to become known is obvious.

Given the potentially fatal consequences for the small number of ASIO officers to be involved in SIOs, the Bill makes it an offence to disclose information relating to an SIO.

Some in the media have objected to the offence provisions, to be contained in s 35P of the ASIO Act, on the basis that it might inhibit the work of journalists. It has been suggested that journalists and others might unwittingly breach s 35P. Concerns have also been aired about the position of whistleblowers.

Labor understands these concerns. The media are right to vigorously defend press freedom. It is a crucial part of our democratic system. It was in part due to these concerns that Labor ensured that the Governments Bill was referred back to the PJCIS for further scrutiny with the opportunity for community input, including from the media.

The Committee made a number of recommendations to improve the design of this offence, each of which Labor has supported in amendments in the Senate. The Bill has been amended to confirm that no one can breach s 35P unless, at the very least, he or she is aware of a substantial risk that information relates to an SIO, and it is unjustifiable to take the risk. Clear exceptions to the offence have been established for information disclosed to a persons lawyer, for disclosures to the intelligence watchdog the Inspector General of Intelligence and Security, and disclosures to a court. The legislation now confirms that the DPP will take account of the public interest in publication of information in deciding whether a prosecution is appropriate. SIOs must now be approved by the Attorney-General, providing the highest level of political accountability possible.

With these amendments and clarifications, Labor will support the new SIO scheme.

The community should be reassured of the limited scope of the offence provisions. Labor would not and will not ever support laws which prevent journalists who report on national security and related matters from doing their job. We would never support, as the Greens Party have cynically suggested, jailing journalists for national security reporting. The fourth estate provides a crucial form of accountability and oversight of our national security agencies.

SIOs will only ever comprise a very small part of ASIOs work. Like other aspects of ASIOs operations, they are subject to the oversight, at an operational level, of the independent Inspector General of Intelligence and Security. Amendments we insisted upon put beyond doubt that IGIS will be able to scrutinise SIOs without hindrance.

Section 35P will not criminalise the good faith activities of journalists. As clarified, a journalist will only contravene that provision where they are aware of the dangers of reporting on an SIO. No one can inadvertently breach this provision, but where journalists are aware of the possibility of endangering undercover ASIO officers, we expect them to act responsibly.

However, I want to make it clear to those who are worried about these laws that we hear their concerns. It is essential that we maintain community confidence in our security agencies, who must necessarily work in secret. We can only empower those agencies to do their important work if the community is assured, through appropriate oversight and accountability, that they are meeting community expectations. This work building confidence, dealing with community concern is a key task for Government.

I must say that in the case of the SIO scheme, the Government has not explained itself well. It has allowed some misunderstandings of what this legislation enables to gain currency. There is always room for reasoned disagreement about the scope of security powers, but some commentary about the SIO scheme has simply misunderstood the nature of that scheme, and the operation of s 35P within it.

As I said, Labor will support these provisions as amended. But we will continue to monitor the operation of the SIO provisions to make sure that they do not unduly limit the rights we hold dear. We will insist that the Government do the hard work to build confidence in our security agencies, and we will revisit these measures if necessary.

Secondly, I would like to dispel some of the more unfounded concerns about the changes this Bill makes to ASIOs computer access warrants. I have seen some material circulating which suggests that the Bill would authorise warrants for ASIO to access the entire internet.

I want to reassure the community that this is simply not the case. The definition of computer as relevant to ASIO warrants has been updated to reflect technological developments. The amendments are intended to do nothing more than honour the original, decades-old intention of the warrants scheme in modern conditions.

As the PJCIS noted in its 2013 report: in an environment of rapidly evolving technology, the capability of ASIO should not be degraded by the definition of computer in the ASIO Act being obsoletethe term computer system may not be sufficient to include a multiplicity of computers operating together.

This does not mean, as has been incorrectly asserted, that a warrant could in practice take on absurd breadth, encompassing huge swathes of computer systems or, absurdly, the entire internet.

Under the legislation, for a warrant to be issued there must be reasonable grounds to believe that access to the computer or computers specified will substantially assist the collection of intelligence in respect of an important security matter.

Though the new definition of computer is intended to afford ASIO flexibility to deal with changed technology, the legislation makes clear that warrants are to be expressed with precision and specificity. These are targeted measures pursued for clear security goals. As amended, s 25A of the ASIO Act will provide:

(3) The target computer may be any one or more of the following:

(a) a particular computer;

(b) a computer on particular premises;

(c) a computer associated with, used by or likely to be used by, a person (whose identity may or may not be known).

Authorisation in warrant

(3A) The warrant must:

(a) be signed by the Minister; and

(b) authorise the Organisation to do specified things, subject to any restrictions or conditions specified in the warrant, in relation to the target computer; and

(c) if the target computer is or includes a particular computer specify the computer; and

(d) if the target computer is or includes a computer on particular premisesspecify the premises; and

(e) if the target computer is or includes a computer associated with, used by or likely to be used by, a personspecify the person (whether by name or otherwise).

The Bill empowers ASIO to access, under warrant, specified third party computers in order to access data in a target computer. As the PJCIS noted in its further report, this does not enable access to content on the third party computer. It authorises the use of that computer only as a conduit to the target computer. Again, this is an attempt to grapple with technical changes in honouring the original intent of the ASIO warrant scheme.

Ultimate protection against misuse of computer access warrants is provided by the warrant process itself, in which warrants are authorised by the Attorney-General. The case for each warrant sought by ASIO must be made to the Attorney-General quite meticulously. The agency must justify its request with real rigour. No Attorney-General of Australia will authorise a warrant for ASIO to access the whole of the internet, and each and every individual warrant authorised is subject to the oversight of the IGIS.

Again, I know that developing community confidence in these arrangements is difficult. Australians are rightly sceptical of Government powers, and of agencies which operate in secret. Again, I think the present Government has failed to clearly make the case for these provisions. It has failed to dispel some of the more extreme misunderstandings of what the computer access warrants can authorise, and to assuage the legitimate anxieties of many in the community.

As I have said, most of this legislation is uncontroversial, routine updating of legislation which has been on our statute books now for some decades.

Nonetheless, Labor will always insist that national security legislation be subject to very cautious scrutiny.

This Bill has been preceded by a long period of careful work and broad consultation. Conscious of concerns about the more controversial measures I have just discussed, Labor insisted that the Bill be sent back to the PJCIS for further examination.

It is clear that this scrutiny has been valuable in allowing considered public debate and in ensuring that the Parliament appropriately balances necessary security powers against the rights and democratic values that our nation holds dear, and that suitable checks and balances are in place to ensure that these powers are always used correctly.

The PJCIS recommended over a dozen important improvements to the Bill. Each of these recommendations was accepted by the Government, and Labor supported amendments to the Bill to implement them.

We will continue to monitor the implementation of this legislation to make sure that the correct balance is struck between properly resourcing our security agencies and preserving appropriate safeguards.

As the Government brings forward further Bills dealing with national security matters, Labor will continue to play the role of a critical but responsible Opposition. We will offer the Government our assistance in getting the balance right, but our support should not be taken for granted if the Government seeks to rush through ill-conceived proposals.