Michael Keenan (Stirling, Liberal Party, Minister for Justice) Share this | Hansard source

I present the explanatory memorandum to this bill and move:

That this bill be now read a second time.

I am pleased to introduce the National Security Legislation Amendment Bill (No 1) 2014, which passed the Senate on 25 September 2014.

The bill contains a package of targeted reforms to modernise and improve the legislative framework governing the activities of the Australian intelligence community. It principally amends the Australian Security Intelligence Organisation Act 1979 (ASIO Act), and the Intelligence Services Act 2001 (IS Act).

The bill has the benefit of not one, but two, bipartisan reviews undertaken by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) in 2012-13 and also this year.

The 2012-13 inquiry was referred to the committee by the then Attorney-General, Nicola Roxon. The committee examined a range of potential reforms to Australia's national security legislation, including our intelligence laws.

The committee made 22 recommendations to help ensure that our intelligence agencies retain their capability to respond to current, emerging and future security threats.

That inquiry was chaired by the member for Holt, Anthony Byrne. We thank Mr Byrne for his leadership of that committee; and for his continued participation as deputy chair upon the change in government.

The committee's 2013 report led to the introduction of this bill in the Senate on 16 July 2014. On the government's reference, the committee—now chaired by Mr Dan Tehan MP—inquired into the provisions of the bill and tabled its report out of sitting on 17 September.

The committee unanimously recommended that the bill be passed, subject to the implementation of 16 targeted improvements to improve oversight, accountability and other safeguards. The government accepted all of these suggestions, and moved amendments in the Senate to implement the relevant recommendations. These measures were passed by the Senate on 25 September, and represent valuable improvements to the bill.

The government acknowledges and commends the outstanding leadership of the member for Wannon, Mr Tehan, and the constructive participation of all committee members in that inquiry. We further acknowledge those opposite for their bipartisanship in supporting the bill and its timely passage. We thank you for placing the principles of security and accountability above politics.

My colleague the Attorney-General has commented at length on the elements of the contemporary and evolving security environment that have led to the necessity to introduce this bill. This includes the unprecedented threat presented by foreign fighters, together with developments in technology and its uses, as well as the ongoing threat presented by hostile activities such as espionage.

As the parliamentary joint committee has rightly acknowledged, it is critical that our intelligence agencies are equipped with powers that enable them to function effectively in this environment—both now and into the future.

Outline of measures in the b ill

Against this background, the bill enhances the capability of our intelligence agencies in seven key areas, which I will outline briefly.

(1) Modernising ASIO's statutory employment framework

First, the bill contains amendments to modernise the employment provisions in part V of the ASIO Act to better align them with contemporary organisational needs, and Commonwealth public sector employment practices, including interagency mobility and secondments.

Modernisation of these provisions is necessary. They have not been updated significantly since their enactment some 30 years ago.

The bill also implements consistent terminology to describe persons who are in an employment relationship with the organisation, or otherwise affiliated with it.

(2) Modernising ASIO's warrant based intelligence powers

The second key area of reform is to modernise and streamline ASIO's warrant based intelligence collection powers. These reforms are in line with the majority of recommendations in the parliamentary joint committee's 2012-13 inquiry; and the committee's recommendations on the bill in its 2014 report.

Division 2 of part III of the ASIO Act enables the issuing of warrants authorising the organisation to exercise powers to search premises, to access computers, to use surveillance devices, and to inspect postal or delivery service articles.

The proposed amendments will address a number of practical limitations in these powers. In particular, the bill will ensure that the warrants regime regulating ASIO's intelligence collection powers keeps pace with technological developments, particularly the use of computers and online communications by persons of security interest.

In particular, amendments to the definition of a 'computer' to include computer networks and systems will be of particular assistance, recognising that devices are commonly connected to multiple networks and systems.

ASIO's warrant based powers will remain subject to significant safeguards. These include the high thresholds in the statutory criteria for the issuing of warrants and the exercise of powers under them.

The requirements for ministerial level issuing decisions will continue to apply, and the regime will remain subject to the extensive, independent oversight of the Inspector General of Intelligence and Security (IGIS).

The bill will also insert a number of additional safeguards to the new powers.

In particular, ASIO must report to the Attorney-General on all instances in which material interference or disruption is caused to the lawful use of a computer accessed under a warrant.

ASIO must also report, as soon as practicable, to the Inspector-General of Intelligence and Security and the Attorney-General if reasonable force is used against a person, where authorised for the purpose of executing a warrant.

Much of the intelligence information that is relevant to the security of Australia must necessarily be collected by the organisation on a covert basis.

However, such covert operations are not without risks. In addition to the potential risks to the safety of participants, covert operations can in some instances require participants to associate with those who may be involved in criminal activity—for instance, the commission of offences against the security of the Commonwealth.

Covert operations may, therefore, expose intelligence personnel or sources to legal liability in the course of their work. For this reason, some significant covert operations do not commence or are ceased.

To address this issue, the bill creates a limited immunity for participants in authorised, covert operations.

Just as part IAB of the Crimes Act provides for a limited immunity for covert law enforcement operations, it is appropriate that corresponding protections are extended to participants in covert intelligence operations.

Consistent with the parliamentary joint committee's recommendations in its 2013 and 2014 inquiries, the limited immunity is subject to rigorous safeguards.

In particular, it is restricted to the conduct of a participant in a special intelligence operation that is authorised by the Attorney-General. The participant and the specific conduct must be authorised expressly in advance. There are a number of reporting requirements to the Attorney-General and the Inspector-General of Intelligence and Security, where an operation is commenced, periodically every six months, and where certain conduct is engaged in (namely that which causes death, serious injury or property damage).

As an additional safeguard, the limited immunity from legal liability expressly excludes conduct in the nature of entrapment, serious offences against the person or property, and torture.

(4) Clarifying and improving the statutory framework for ASIO's cooperation with the private sector

The fourth major reform will clarify the legislative basis for certain cooperative information-sharing activities of ASIO.

The bill will insert a provision which confirms ASIO's ability to cooperate, on a voluntary basis, with private sector entities, such as owners and operators of critical infrastructure, in performing its statutory functions.

This will remain subject to the extensive safeguards that already apply to prevent misuse of information shared with private sector entities and to ensure privacy of personal information.

These include offences for the unauthorised disclosure of information, the oversight of the inspector-general, and ASIO's obligations to adhere to the Attorney-General's guidelines which require it to take all reasonable steps to protect personal information collected by ASIO for its statutory functions from loss or unauthorised access.

In addition, as the Attorney-General indicated in the government's response to the parliamentary joint committee's 2014 report on the bill, a review of ASIO's guidelines will be undertaken shortly.

(5) Enhancing the capabilities of Intelligence Services Act agencies

The fifth key reform will implement the recommendations of the parliamentary joint committee to enhance the capabilities of agencies under the IS Act, principally by clarifying or strengthening their powers or functions.

Importantly, the bill enhances the capacity of ASIS to cooperate with ASIO, by improving the statutory arrangements for the collection and sharing of certain security related intelligence.

The bill will also improve the protective security capability of ASIS, which undertakes operations in dangerous locations. These amendments will enable ASIS to provide protective security training—such as training in self-defence—to other persons who are cooperating with it in performing its statutory functions.

(6) Improved protection of intelligence-related information

The sixth key reform concerns measures to modernise and strengthen the secrecy offences in the ASIO Act and the IS Act in relation to the unauthorised communication of intelligence-related information, and the disclosure of the identities of our intelligence personnel.

Unauthorised communication of information / dealing with records

These reforms are complementary to the measures recommended by the parliamentary joint committee in its 2013 report. The committee supported the need for these offences, subject to some largely technical amendments, in its 2014 report. As the committee acknowledged, these new and amended offences are necessary to address significant gaps in the coverage of these offences in the contemporary security environment.

As recent, high-profile international events demonstrate, in the wrong hands, classified or sensitive information is capable of global dissemination at the click of a button. Unauthorised disclosures on the scale now possible in the online environment can have devastating consequences for a country's international relationships and intelligence capabilities.

Accordingly, the bill will address a legislative gap by creating new offences applying to unauthorised dealings with an intelligence-related record, including copying, transcription, removal and retention. Currently, no such offences exist. Each new offence will attract a maximum penalty of up to three years imprisonment.

In addition, the bill introduces new maximum penalties of 10 years imprisonment for existing offences involving unauthorised communication of intelligence-related information, which at two years imprisonment are disproportionately low. The higher maximum penalties better reflect the gravity of such wrongdoing by persons to whom this information is entrusted.

These changes, combined with the existing espionage offence punishable by a maximum of 25 years imprisonment, will create a three-tier structure of unauthorised dealing offences that jeopardise the security of intelligence-related information.

In line with recommendations of the parliamentary joint committee in its 2014 report, the offences contain express exceptions for persons who communicate or record information, or deal with records, for the purpose of making a disclosure to the inspector-general.

Disclosure of identity offences

In addition, and as a result of amendments moved in the Senate by the Palmer United Party, the bill increases the penalties applying to offences in the ASIO Act and the Intelligence Services Act for persons who disclose the identities of intelligence personnel.

Currently, these offences carry a maximum penalty of just one year imprisonment, which is manifestly inadequate. It fails to provide sentencing courts with an adequate basis on which to denounce and penalise appropriately the wrongdoing inherent in these offences. The lives, safety and livelihoods of our intelligence personnel depend on maintaining absolute confidentiality about their identities.

As the Senate recognised in supporting these amendments, a maximum penalty of 10 years imprisonment will serve as an appropriate penalty and deterrent for conduct that sentencing courts find to be at the more serious end of the spectrum, in accordance with ordinary principles of criminal sentencing.

The government thanks the Palmer United Party for its foresight in moving these amendments and agrees with the persuasive case for reform that it has advanced, as has been recognised by a majority of the Senate.

(7) Renaming of Defence agencies to better reflect their roles

The seventh and final key reform is to formally amend the names of DIGO and DSD to the Australian Geospatial-Intelligence Organisation and the Australian Signals Directorate respectively. While these agencies have been known by their updated names for some time, the bill will place this on a statutory footing and better reflect the roles that they play in protecting Australia's national security.

Concluding remarks

This bill is a significant contribution towards ensuring the future capability of Australia's intelligence agencies.

More broadly, it is the first step in the government's commitment to maintaining security and, where necessary, improving Australia's already strong national security laws.

We have undertaken a further review of these laws, with a view to proactively addressing any gaps to ensure our agencies can respond effectively to emerging security threats.

Following this, we have introduced a further bill, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill, which is presently before the parliamentary joint committee for inquiry. We will introduce a third tranche of legislation in the spring sittings addressing the important issue of data retention.

The government's No. 1 priority is to keep Australians safe. We are committed to working with parliament, the private sector and our international partners to protect Australians and our interests from those who would seek to do us harm.

May I, again, thank the parliamentary joint committee and acknowledge, again, the chairmanship of the member for Wannon, and its members on all sides of the chamber who have worked so hard to support this important priority.

I commend this bill to the House.

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