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

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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 Counter-Terrorism Legislation Amendment Bill (No. 1) 2014, which passed the Senate on 26 November. The bill amends the Criminal Code Act 1995 and the Intelligence Services Act 2001.

The amendments to the Criminal Code will allow the Australian Federal Police to seek control orders in relation to individuals of security concern not currently captured by that regime.

The amendments to the Intelligence Services Act will facilitate the Australian Secret Intelligence Service assisting the Australian Defence Force in support of military operations, and will enhance the arrangements for the provision of emergency ministerial authorisations to Intelligence Services Act agencies to undertake activities in the performance of their statutory functions.

The bill also implements outstanding matters from the Parliamentary Joint Committee on Intelligence and Security inquiry into an earlier bill—the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014.

The Attorney-General has commented about the nature of the security threats we all face and the necessity of this legislation.

The bill has had the benefit of being reviewed by the Parliamentary Joint Committee on Intelligence and Security, under the chairmanship of the member for Wannon, Mr Dan Tehan MP, who has again done an exemplary job as the chairman of that committee.

The committee recommended that the parliament pass the bill, subject to the implementation of 15 recommendations, which focus on improving statutory and operational or administrative safeguards to the proposed measures, including independent oversight.

The government accepts or accepts in-principle each of these recommendations and thanks the committee for its detailed consideration of the bill.

Minor amendments were made to the bill in the Senate to implement 11 recommendations to improve the accountability and clarity of certain provisions in the bill and ensure the powers provided for in the bill are subject to appropriate review.

Further inclusions in the explanatory memorandum address two of the recommendations.

The other recommendations are being implemented outside the parliamentary process.

Against this background, the bill enhances the capability of our security agencies and strengthens Australia's already robust counter-terrorism laws in several key areas.

Schedule 1— Control Order Measures

Broadening the grounds for making a control order

The bill will enable the AFP to request, and an issuing court to make, a control order on a broader range of individuals of security concern.

These amendments respond to advice from law enforcement agencies that there are individuals of potentially very serious security concern who are not covered by the existing provisions for making a control order.

From a public safety perspective, the threat posed by these individuals—who have provided support or facilitated Australians either to engage in terrorism offences in Australia or to travel to conflict zones and return to Australia with capabilities acquired from fighting or training with proscribed terrorist groups—is as great as the risk posed by those engaging in terrorist acts or foreign incursions.

Using the control order regime to impose targeted obligations, prohibitions and restrictions on these individuals will help the Australian Federal Police disrupt their support and facilitation activities, thereby preventing acts of terrorism in Australia and hostile activities overseas.

Increasing the time for seeking AG consent from four hours to eight hours

The bill extends the period before which the senior AFP member must seek the Attorney-General's consent after obtaining an urgent interim control order from an issuing court from four hours to eight hours.

This is appropriate and necessary to avoid an interim control order made by an issuing court in urgent circumstances lapsing merely because the Attorney-General is unavailable to provide consent—for example, because the Attorney-General is in transit.

The decision to increase the period to eight hours rather than 12 hours (as originally proposed in the bill) reflects the fact that, even if the Attorney-General is in transit between the east and west coasts of Australia, eight hours should be sufficient to seek consent. Where the Attorney-General is absent for longer periods, such as during overseas travel, it should be possible to seek the consent of the minister acting in the Attorney-General's portfolio.

Schedule 2—Intelligence Services Act m easures

As I have said, the bill will make targeted recommendations to the Intelligence Services Actto improve the ability of ASIS to provide timely assistance to the Australian Defence Force in support of military operations, and to streamline the statutory authorisation process to enable the IS Act agencies to collect intelligence on Australian persons overseas, in emergency circumstances. (These agencies are ASIS, the Australian Geospatial-Intelligence Organisation and the Australian Signals Directorate.)

There is an urgent need to make these amendments to ensure that intelligence agencies can undertake relevant activities in support of the ADF's operations in Iraq against the ISIL terrorist organisation.

These activities are anticipated to include the collection of intelligence in relation to Australians who are known or suspected participants in hostilities, and particularly those who are known or suspected of fighting with or alongside the ISIL terrorist organisation. Such intelligence is likely to prove instrumental to these operations, including in protecting ADF personnel, members of other defence forces, and civilians from death or serious harm as a result of terrorist or other hostile acts committed in the course of the conflict.

The proposed amendments are directed to two key areas.

ASIS activities in support of, and in cooperation with, the ADF

The primary purpose of the amendments is to better facilitate ASIS providing timely assistance to the ADF in support of military operations, and its cooperation with the ADF on intelligence matters. The proposed amendments make explicit that such support and cooperation is a function of ASIS, consistent with explicit functions to this effect conferred upon the two other IS Act agencies, ASD and AGO.

These measures also make a small number of amendments to facilitate the timely performance by ASIS of this function. These concern the provision of ministerial authorisation by the minister responsible for ASIS in relation to a class of Australians, and enabling the Attorney-General as the minister responsible for ASIO to provide agreement to an authorisation in respect of individuals falling within a specified class of Australian persons. All of the existing safeguards in the Intelligence Services Act will apply to the performance of the new function. These include the statutory thresholds for the granting of authorisations, ministerial reporting requirements, and the independent oversight of the Inspector-General of Intelligence and Security.

Emergency ministerial authorisations

Secondly, the proposed amendments also remedy practical limitations identified in the arrangements for emergency ministerial authorisations which apply to ASIS, ASD and AGO.

The amendments make provision for the contingency that the relevant ministers may be temporarily uncontactable when there is an urgent, previously unforeseen need to collect vital intelligence. Presently, there is no legal basis on which agencies can undertake activities in these circumstances, meaning that critical intelligence collection opportunities may be missed. The amendments will address this by enabling an agency head to grant a limited emergency authorisation, subject to rigorous and extensive safeguards and oversight mechanisms.

These authorisations are strictly limited to 48 hours maximum and cannot be renewed. Additional issuing criteria apply to authorisations by agency heads, including express consideration of whether the relevant minister would have been likely to grant the authorisation, on the basis of the existing statutory criteria. Further, to ensure that it is only available in an extreme emergency, the agency head must also be satisfied that, if the activity was not authorised, security would be seriously prejudiced or there would be a serious risk to a person's safety. The minister must be notified within eight hours, and is under a positive obligation to make a decision about whether it should continue within the 48 hour maximum, or be cancelled or replaced with a ministerial authorisation. The Inspector-General of Intelligence and Security must also be notified as soon as practicable within three days. In addition, the Inspector-General is required to conduct oversight of the agency head's compliance with legislative requirements and provide a report to the relevant responsible minister within 30 days. The Inspector-General must also provide a copy of the conclusions in that report to the Parliamentary Joint Committee on Intelligence and Security within 30 days.

The amendments also provide for contingency arrangements in the event that the Attorney-General is not readily available or contactable to provide his or her agreement to the making of an emergency ministerial authorisation, where such agreement is required because the authorisation concerns the undertaking of activities in relation to an Australian person who is, or who is likely to be, engaged in activities that are, or are likely to be, a threat to security. Identical requirements for ministerial notification and IGIS and parliamentary joint committee oversight apply to these amendments as to emergency ministerial authorisations as I have just outlined.

The amendments also address an unintended limitation in the ability of ministers to issue emergency authorisations. Presently, no provision is made for ministers to issue these authorisations orally, with a written record to be made of that decision. This is incompatible with the circumstances of urgency in which emergency authorisations are designed to operate, and with the longstanding approach to other forms of emergency authorisation—such as search warrants, telecommunications interception warrants and surveillance devices warrants. The proposed amendments bring the emergency ministerial authorisation process in the ISA into line with this approach.

While not wishing to go through each amendment to the revised explanatory memorandum which implements the parliamentary joint committee's recommendations, I do wish to note that the government has also implemented a suggestion from that committee that was not the subject of a recommendation. This is that the explanatory memorandum include details of why the IS Act already operates to prohibit ASIS from engaging in conduct constituting torture or cruel, inhuman or degrading treatment or punishment. The revised explanatory memorandum includes this explanation, which the government notes was the subject of some inaccurate comments in the Senate and in the 16th report of the Parliamentary Joint Committee on Human Rights, of 25 November. We trust that the revised explanatory memorandum will ensure that any further debate on this issue is informed by an accurate legal analysis.

Concluding remarks

The Australian government is committed to fulfilling its most important responsibility—protecting Australia, its people and its interests—and will do so while instilling confidence that our national security and counter-terrorism laws will be exercised in a just and accountable way.

This bill is an important step in the government's continuing efforts to strengthen Australia's robust national security laws to proactively and effectively address the threat posed by returning foreign fighters. I therefore commend the bill to the house.

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