Luke Gosling (Solomon, Australian Labor Party) Share this | Hansard source

Our government is committed to ensuring that the legal framework of the national intelligence community, the NIC, is fit for purpose, proportionate and properly oversighted. These agencies keep Aussies safe from hostile foreign intelligence services, military threats, criminals and other cyber actors. But, to do their job properly, the NIC need the trust of the Australian public. That trust rests on a complex legal framework which underpins the activities of our intelligence agencies. It underpins the accountability and assurance that are vital to the integrity of our national security apparatus. That is why this bill is so important.

The bill responds to a broad set of recommendations that were made in the 2019 Comprehensive Review of the Legal Framework of the National Intelligence Community. The review was delivered by Dennis Richardson to the former government in 2019. A declassified version of the report and the former government's response were released publicly in 2020. The report made 203 recommendations, 13 of which are classified. To date, 30 recommendations have been implemented, 53 require no further action and 120 are in progress. This bill seeks to implement 10 outstanding recommendations that fall within the Attorney-General's portfolio responsibility.

First, the review recommended that the Law Officers Act be amended so that the Attorney-General could not delegate their power to issue warrants under the ASIO Act. That means that he or she could not delegate sensitive powers to the Solicitor-General, the Secretary of the Attorney-General's Department or any other public servant. The bill would implement that recommendation. The Attorney-General, as the first law officer of our land, has a unique role with respect to ASIO. These measures ensure that appropriate ministerial responsibility and accountability are maintained in relation to the powers in the ASIO Act.

Second, the review also recommended that the Attorney-General's ASIO powers should not be able to be conferred on another minister through an action of the executive. The review recommended that the Governor-General's ability in council to make a substituted reference order regarding the Attorney-General's role in exceptional cases should be retained—

A division having been called in the House of Representatives

In continuation, on some of the Attorney-General's roles that are in this legislation, one of them is his or her role in exceptional cases—that should be retained and would only be used in exceptional circumstances, such as when there is no Attorney-General. The bill would implement that recommendation. It also amends the ASIO Act and the Telecommunications Act to remove the ability of the executive to confer the Attorney-General's ASIO powers onto another minister. This could still be done through legislative amendment. As the first law officer, the Attorney-General has a unique role in authorising the use of covert or intrusive powers, and these amendments will ensure that in most cases the Attorney-General's ASIO powers cannot be conferred on another minister through an action of an executive.

I welcome this reform, which signals how seriously the Albanese government takes the need to ensure the clear demarcation of portfolio responsibilities in cabinet. This is especially important concerning intelligence agencies because of the close relationship, mentioned previously, between transparency and accountability and the public's trust in the national intelligence community. We need to keep the Australian people fully informed of who exercises these important powers and when and how they do so, and that is exactly what this bill does. I don't need to remind honourable members that in the former federal government we had a case where we didn't even know there were double responsibilities held by first ministers. That has eroded trust, and this is part of making that transparency clear to everyone and rebuilding the public's trust.

Third, another recommendation was that the defence, in subsection 474.6 of the Criminal Code should be extended for ASIO so that it applies to all offences in that section, which concerns interference with facilities owned by a carrier. The defence states that a person is not criminally responsible if they are a law enforcement officer or an intelligence security officer acting in good faith in the course of their duties. This provides a defence for ASIO concerning unauthorised modification of data to cause unauthorised impairment electronic communication. This provides a defence for ASIO concerning unauthorised modification of data to cause impairment and unauthorised impairment of electronic communications. These amendments will assist ASIO to better protect Australia and its interests from the growing security threats—and they are growing. In February, the head of ASIO reminded Australians that we face foreign interference levels eclipsing those of even the Cold War, and that is just one among a wide spectrum of escalating threats we face as a nation.

Another part of the bill would amend the Intelligence Services Act so that membership of the Parliamentary Joint Committee on Intelligence and Security increases from 11 to 13 members. This has been the subject of some commentary in recent times. It sets out that the committee would include at least two government senators, two government members of the House of Reps, two non-government senators and two non-government members of the House of Reps. The remaining five members can be drawn from either chamber. A consequential amendment would also be made to raise the number for quorum in the PJCIS from six to seven members. These changes will allow greater flexibility in determining the committee's membership.

Fourth, the comprehensive review also recommended that exclusions in the spent convictions scheme be expanded to enable ASIO to use, record and disclose this information. This scheme of the Crimes Act aims to prevent discrimination on the basis of older, less serious convictions by limiting their use and disclosure. This bill would create an exclusion for ASIO. In a dangerous world, access to spent conviction information is necessary and proportionate for ASIO to perform its functions and protect Australia from security threats.

Fifth, the review recommended that the Inspector-General of Intelligence and Security should be required to report annually on public interest disclosures and complaints. The bill implements this recommendation, which will ensure even greater transparency and accountability in the National Intelligence Community. This will be done, to the extent possible, without compromising national security, of course.

Sixth, the review also recommended that ASIS, AGO, ASD, ONI and DIO should be excluded from the Ombudsman's jurisdiction, which this bill implements. ASIO, of course, is already excluded from the Ombudsman's jurisdiction. By convention, the Ombudsman currently does not investigate action taken by the rest of these agencies, although they do fall within its jurisdiction. These agencies are already overseen by the inspector-general, Australia's dedicated intelligence oversight body. That is why excluding ASIS, AGO, ASD, DIO and ONI from the jurisdiction of the Ombudsman would reduce unnecessary overlap in the oversight of these agencies.

Seventh, another recommendation of the review was to amend the Freedom of Information Act to remove AGO's exemption for its non-intelligence functions. This bill removes that exemption only for those documents that have originated with, or have been received from, the AGO's non-intelligence functions in the Australian Hydrographic Office. Currently the whole of AGO is exempt from the operation of the FOI Act. This is appropriate in relation to the AGO's intelligence functions, where sensitive information, if released, could cause harm to Australia's national security, but the Australian Hydrographic Office does not provide an intelligence function. So these amendments will increase transparency over this aspect of the AGO.

Eighth, the bill also implements the review's recommendation that the FOI Act be amended. This is so that documents relating to suspicious matter reports and suspicious transaction reports are exempt from the FOI Act. This exemption would occur, whether these documents are in the possession of AUSTRAC or another agency. The FOI Act currently provides that such documents are exempt only if they are in the possession of AUSTRAC. Given the sensitive nature of documents of these kinds, it is appropriate that the exemption be extended in this way.

Ninth, the bill also actions the review's recommendation that all security matters under the Archives Act should be heard in the Security Division of the Administrative Appeals Tribunal. This will ensure that national security information is subject to appropriate protections.

Tenth, the review also recommended that the FOI Act and the Archives Act should be amended. This is so that the inspector-general is only required to provide evidence that addresses the damage that would arise from the release of material involving the agencies it oversees. Currently, the inspector-general must comply with a request to appear before the AAT to give evidence, unless it is of the opinion that they are not qualified to give evidence.

In a final amendment, the bill proposes that the IS Act provide greater certainty of the level of detail required by the foreign minister when directing the Australian Secret Intelligence Service, or ASIS. The practice to date has been for the minister to direct ASIS to undertake activities by reference to a purpose. The amendment is intended to make clear that the minister may direct ASIS to undertake an activity which can be of a specific or general nature or by way of a class or classes. Where a class has been specified by the minister, ASIS will be responsible for ensuring that a proposed activity falls within that class.

This bill strikes the fine balance between empowering the intelligence agencies that protect us from the growing threats that are real while enhancing the already high standards of transparency and accountability in the National Intelligence Community. I want to quote ASIO Director-General, Mike Burgess, who I mentioned earlier and who, in this year's threat assessment said:

Based on what ASIO is seeing, more Australians are being targeted for espionage and foreign interference than at any time in Australia's history.

More hostile foreign intelligence services, more spies, more targeting, more harm, more ASIO investigations, more ASIO disruptions.

From where I sit, it feels like hand-to-hand combat.

That gives you a sense of the seriousness of the issues that we face and the need for this legislation. And that's what we are seeing and hearing not just from ASIO but from a range of government agencies. It is commonly said by many, indeed, by our government and I think by anyone across the chamber with any sort of strategic bone in their body, that we live in the most challenging strategic environment since the Second World War. It is so commonly said that we sometimes forget exactly what this means, but what it does mean is that even the Cold War, with all the peril of nuclear war that hung over the world, did not represent as a direct threat to Australia's sovereignty as the present circumstances do. The only worse within living memory for Australian security was the carnage of the last world war that was fought over and around our sea lanes and approaches, including the direct targeting and bombing of Darwin. It is my electorate. We're well aware of how serious those times were, but, from then until now, many of us in public life do acknowledge this sobering fact that we are in a period of significant strategic competition and threat.

Not enough of us pay tribute to our intelligence community, whose job it is to help Australia navigate the storms around us and give our leaders warning and foresight of dangers through the briefings that they give. We rightly honour the military in our country, whose job it is to always be ready to defend Australia when our strategic circumstances go from uncertain to cataclysmic but also for the whole range of operations that our ADF does in peacetime.

We always acknowledge our veterans, but I want to give a particular shout out to the veterans in the National Intelligence Community for the work that they do. They are highly capable men and women in our intelligence agencies, and they keep us safe.

This bill implements sensible reforms that support our agencies while also strengthening their accountability, and it is for that reason that I commend it to the House and look forward to the contributions of other members.

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