Andrew Giles (Scullin, Australian Labor Party, Shadow Minister for Cities and Urban Infrastructure) Share this | Hansard source

I rise to speak to the Foreign Intelligence Legislation Amendment Bill 2021. The Foreign Intelligence Legislation Amendment Bill 2021 amends the Telecommunications (Interception and Access) Act 1979 and the Australian Security Intelligence Organisation Act 1979 to address critical gaps in Australia's foreign intelligence warrant framework arising from technical change. These gaps were considered closely by the Comprehensive Review of the Legal Framework of the National Intelligence Community, conducted by Dennis Richardson AC. The bill before us has been considered by the Parliamentary Joint Committee on Intelligence and Security, which tabled a report very recently—and I will touch on that briefly. These changes address and fix these gaps and would bring Australia into alignment with our Five Eyes partner countries, with stronger safeguards here, including maintaining the prohibition on collecting domestic communications, and so this is a bill that Labor supports. The bill will improve intelligence agencies' ability to collect intelligence about foreign threats to Australia, and so keep Australia safe, while putting in place appropriate safeguards on the exercise of the relevant powers.

The bill consists of two schedules. Schedule 1 amends the foreign communications warrant in section 11C of the TIA Act to overcome the difficulty intelligence agencies face in distinguishing between foreign and domestic communications in the modern technological environment. I note it does not grant any new powers or alter the prohibition on the collection of domestic communications.

Schedule 2 enables the Attorney-General to issue foreign intelligence warrants to collect foreign intelligence on Australians in Australia who are acting for or on behalf of a foreign power. Originally, the foreign intelligence warrant framework contained two warrants: a warrant under the TIA Act, authorising interception of a single service, such as a phone number; and a warrant under the ASIO Act, authorising the use of ASIO's pre-existing special powers. In response to technological changes, in particular the uptake of mobile phones, the warrant regime was updated in 2000 by introducing an amendment that permitted foreign communication warrants for a more expansive definition of telecommunication technologies and where it was not possible to identify a particular service or individual. The amendments still confined warrants to foreign communication only.

The foreign communication warrants allow intelligence agencies to identify threats to Australia's national security, including malicious cyberactivity, terrorist communications and indications of foreign intelligence services threatening Australia's interests. The foreign communication warrants prohibit the interception of domestic communications that both start and end in Australia, even where the interception is inadvertent or unavoidable. With the use of internet based communications and mobile applications it's now not always possible to know at the point of interception if a communication is foreign or domestic. Currently, with the increasing use of internet based communications and mobile applications, I understand that, to avoid breaching the Telecommunications (Interception and Access) Act, intelligence agencies do not intercept foreign communications where there is even the smallest risk of incidentally intercepting domestic communications, and that this places a considerable constraint on the collection of foreign intelligence. This bill would amend that act to overcome this difficulty that agencies face in being able to distinguish between a foreign communication and a domestic communication at that point of interception.

The bill also allows the Director-General of ASIO to apply for a warrant authorising the interception of a communication for the purpose of collecting foreign communication, including where the geographic locators of the sender and the recipient cannot be determined prior to the point of interception. The bill would enable the Attorney-General to issue foreign intelligence warrants to collect foreign intelligence on Australians in Australia acting for on or behalf of a foreign power. Currently ASIO can collect foreign intelligence offshore on an Australian working for a foreign power, but that same intelligence cannot be collected inside Australia on that Australian under a warrant. The Richardson review identified this gap in warrant powers and recommended this change, noting:

An Australian serving the interests of a foreign government … remains an agent of a foreign power whether they are onshore or offshore—

and it's pretty hard to argue with that assessment.

This bill introduces and maintains strict safeguards to protect domestic communication if it has been inadvertently collected. These safeguards protect domestic communication in a manner consistent with the original prohibition so that the warrants can only be issued for the purpose of obtaining foreign intelligence from foreign communications. The Attorney-General must issue a mandatory written procedure to screen for domestic communications that they may have been intercepted, destroy all records of any domestic communications so identified—unless the communication relates to, or appears to relate to, activities that present a significant risk to a person's life—and notify the inspector-general of any identified domestic communication that relates to, or appears to relate to, activities that present a significant risk to a person's life. Before issuing or varying the mandatory procedure, the Attorney-General must consult with the Minister for Defence, the Minister for Foreign Affairs, the IGIS and the ASIO Director-General of Security. The Attorney-General must also review the mandatory procedure as soon as practicable within one year of it being issued and then every three years.

The existing safeguards for foreign communications warrants will continue to apply—that is, the Attorney-General must be satisfied on the advice of the Minister for Defence and the Minister for Foreign Affairs that the collection of foreign intelligence is in the interests of Australia's national security, Australia's foreign relations or Australia's economic wellbeing. The IGIS will continue to have oversight of agencies' activities under these warrants and will oversee compliance with mandatory procedures issued by the Attorney-General. The IGIS has extensive powers, akin to those of a standing royal commission. Safeguards that will accompany the issue of foreign intelligence warrants to collect foreign intelligence on Australians in Australia are also provided, in that the law will continue to prevent the request of a foreign intelligence warrant on Australian persons who are not acting for or on behalf of a foreign power. The ASIO director-general must include in the warrant the details about the grounds on which he or she suspects that the person is acting for or on behalf of a foreign power. The Attorney-General must not issue the warrant unless he or she is satisfied that the person is acting for or on behalf of a foreign power. Most importantly, the Inspector-General of Intelligence and Security will continue to have oversight of agencies' activities under these warrants, noting of course the very significant powers that the Inspector-General has.

This bill, the Foreign Intelligence Legislation Amendment Bill, responds to a real and a pressing need. Without addressing the gap in our capacity to collect foreign intelligence, our capacity to identify possible threats to Australia and to Australians is constrained, as is the capacity of our agencies to undertake their functions. This bill amends existing legislation in accordance with the recommendations of the comprehensive Richardson review. Of course, it is vital that any such reform maintain in place suitable safeguards over the exercise of these powers. This bill does so. Indeed, they are consistent with and replicate those safeguards currently in place.

I understand the passage of this bill is a matter of some urgency. I note it was only introduced this morning. These are uncertain times. Many members and senators are unable to be present here now. We cannot be confident of returning here in a hurry, and it follows that the circumstances warrant dealing with this matter expeditiously. In matters of this nature, going to very important national security considerations, Labor has always been constructive and responsible. Finally, very recently the Parliamentary Joint Committee on Intelligence and Security tabled its advisory report on this bill, which I've had an opportunity to glance through. I note that it recommends passage of the bill subject to two amendments. I note that two amendments have been circulated which appear on their face to reflect the recommendations of the committee. Noting that, and the capacity of my colleagues in the other place to have regard to that issue, I commend the bill to the House.

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