Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

On behalf of the Parliamentary Joint Committee on Intelligence and Security, I present the committee's advisory report, incorporating additional comments by Labor members, on the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020.

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—I'll have more to say when the bill is ultimately brought on for debate, but I want to draw attention to a few aspects of this report. The committee has made 34 unanimous and bipartisan recommendations for improvements to the bill and to the oversight regime in respect of the Australian Federal Police and the ACIC more generally. In particular I note that the committee has unanimously recommended that the oversight remit of the Inspector-General of Intelligence and Security and the Intelligence and Security Committee be extended to include the oversight functions of the AFP and the ACIC—all of their intelligence functions.

The committee has also unanimously recommended that the Department of Home Affairs stop engaging in the practice of making submissions that purport to be authored by the Home Affairs portfolio. The Home Affairs portfolio, of course, includes ASIO, the AFP, the ACIC and the AUSTRAC, all of which are independent statutory agencies. It is not appropriate and it has never been appropriate for the Department of Home Affairs to pretend or to suggest that it speaks on behalf of independent statutory agencies. The fact that the department has done so repeatedly is of considerable concern to me and clearly also to other committee members.

This is not some abstract point of principle. It's not only important to preserve the independence of ASIO, the AFP, the ACIC and the other statutory agencies from the government of the day in substance and as a matter of law. It's also important to ensure that those agencies are perceived to be independent from government. Public confidence in those agencies depends on it. The Department of Home Affairs is a department of state, and it is subject to the direction of the Minister for Home Affairs. It would therefore be open to the Minister for Home Affairs to dictate to the department what a submission to the committee says, word for word.

By contrast, ASIO, the AFP and the ACIC—to pick up just three of the key agencies—were established by acts of this parliament. The relationship between those agencies and the Minister for Home Affairs and the government more generally is governed by statute. It would not be open to the minister to dictate to those agencies what a submission to the committee should say. By claiming to speak on behalf of ASIO, the AFP, the ACIC and other independent statutory agencies within the Home Affairs portfolio, the department has repeatedly obscured the absolutely fundamental distinction between an independent statutory agency and a department of state. The committee has recommended in clear and unambiguous terms, unanimously, that the department must stop this practice. I welcome that recommendation.

Turning to some of the key recommendations in relation to the bill itself, the committee is seeking a range of additional and stronger safeguards. By way of example, the committee has recommended that only a Superior Court judge may issue a disruption warrant or a network activity warrant and that only an eligible judge, as defined in the Surveillance Devices Act, may issue an account takeover warrant. We've also recommended that the bill be amended to strengthen the issuing criteria for each of the proposed new powers. There is one recommendation—recommendation 10—that in the view of Labor members should have gone further. That's why we've tabled additional comments to the committee's report.

All members of the committee have acknowledged that the powers in the identify-and-disrupt bill are extraordinary. As Labor members note in the additional comments, the need for these extraordinary new powers have been justified by reference to the most serious types of offences in the explanatory memorandum. For example, the government has said:

This Bill addresses gaps in the legislative framework to better enable the AFP and the ACIC to collect intelligence, conduct investigations, disrupt and prosecute the most serious of crimes, including child abuse and exploitation, terrorism, the sale of illicit drugs, human trafficking, identity theft and fraud, assassinations, and the distribution of weapons.

This statement deliberately mischaracterises the breadth of the new powers. In fact, the new powers would enable the AFP and the ACIC to collect intelligence, conduct investigations, and disrupt and prosecute all relevant offences as defined in the Surveillance Devices Act 2004. The definition of 'relevant offence' includes all offences against the law of the Commonwealth that are punishable by a maximum term of imprisonment of three years or more. This includes the types of crimes listed in the explanatory memorandum but it also includes tax offences, trademark infringement offences and a range of other offences that do not fall within the categories of child abuse and exploitation, terrorism, the sale of illicit drugs, human trafficking, identity theft and fraud, assassinations and the distribution of weapons.

I'm not suggesting that the other types of offences are not serious. But what I and my Labor colleagues absolutely are suggesting is that the government and the agencies failed to make the case for why these extraordinary new powers are needed to 'collect intelligence, conduct investigations, disrupt and prosecute' crimes that are not 'child abuse and exploitation, terrorism, the sale of illicit drugs, human trafficking, identity theft and fraud, assassinations and the distribution of weapons'. Obviously it's easier to justify the introduction of extraordinary powers by focusing only on the most serious crime types, especially crimes like child abuse and exploitation and terrorism. But, as Labor members argue in the additional comments, it's incumbent on the Intelligence and Security Committee and the parliament to require the government and agencies to engage in the more difficult task of justifying the introduction of extraordinary powers by reference to how the powers could actually be used.

Labor members consider that recommendation 10 and the other recommendations in the committee's report go a long way to ensuring that these new powers will be used only in relation to the most serious offending. However, in recognition of the extraordinary nature of these new powers, the way in which the government and agencies have sought to justify their introduction, Labor members think the committee should have gone further by recommending that the references to 'relevant offence' in the bill be replaced by a new concept of serious offence. The upshot of such an amendment would be that these extraordinary new powers could only, as a matter of law, be used to achieve the objectives that, according to the government, the powers are intended to achieve. As a matter of principle, the scope of coercive and intrusive powers should be no greater than the arguments advanced by the government to justify them.

On behalf of all members of the committee, I'd like to extend my appreciation to everyone who made a submission to this inquiry. This is very complex and important piece of legislation, and the committee could not have produced this report or made such detailed and extensive recommendations without the contribution of submitters. I'd like to thank the committee secretariat for the work they've done on this report and for the valuable assistance they provide. Finally, I'd like to thank my colleagues on the committee, Labor and Liberal, for their work on this report. In particular, I'd like to thank the Chair, Senator Paterson, for the constructive and cooperative way in which he has approached this inquiry and his role as chair of the committee more generally.

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