Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I foreshadow to the minister that I will be moving amendments in two blocks, seeking leave to move (1) and (2) together and (3) to (10) together. Before I do that, I have a question for the minister in this consideration in detail stage about the operation of the amendment bill. It goes to the question of an innocent member of the public who is not suspected of having committed any offence under the legislation or under any legislation and is not suspected of having been connected with a suspect in any way. I ask: can the minister confirm whether an individual member of the public's tablet, iPhone or any other device that that individual member of the public has is capable of being subject to a warrant, even though that individual member of the public is not suspected of having committed an offence and is in no position to be connected to a suspect, other than being on the same network as someone who is the subject of a warrant? Can the minister confirm that the individual member of the public is themselves exposed to having their tablet or iPhone or any other device accessed, modified or surveilled, even though they are not suspected of having done anything wrong?

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

I thank the member for Melbourne for the question. In relation to what he has asked, I understand his concerns—and I understand he is really foreshadowing amendments that he will be moving later in this debate. The concern we have about the amendment, and in answer to his question, is that it would impose an arbitrary and artificial impediment on the intelligence agencies doing their work. What he proposes would be entirely unworkable in light of the advances in online communications. In the majority of cases, it is very unlikely that the agency would know in advance what was required for a specific warrant being issued or which parts of the computer network would contain data relevant to a security matter in respect of the warrant issued.

With the variety and the number of devices currently in use, as well as the increasing use of computer networks and remote storage, it is highly probable that data could be stored on multiple devices. In exercising its functions, including its powers under a computer access search warrant, ASIO is of course required to comply with the Attorney-General's guidelines, and these require ASIO to use as little intrusion into individual privacy as possible. This means that use of warrants for obtaining information must be proportionate to the gravity of the threat that is posed and the probability of its occurrence. In line with the recommendation from the parliamentary joint committee that I have discussed extensively already this morning, the government issued a replacement explanatory memorandum to this bill which explains the concept of a security matter in relation to section 25A and its limiting effect on the ability to issue warrants and authorise activities under them. The Attorney-General can also include appropriate conditions and restrictions in that warrant, which could include a limitation on the number of devices that could be accessed where appropriate.

Limiting computer access warrants in the way that the Greens propose, and in relation to the question that he has asked, does have the potential to produce an absurd result for ASIO and it would create a significant loss of ASIO's capability to do its job, which contradicts the position taken by the bipartisan committee report. There is a need to enhance the system in line with recent developments in computer technology and its usage.

I appreciate the concerns that have been raised by the member for Melbourne. If the government were to accept his point of view and accept the amendment, we would be creating an unworkable situation for the very agencies that we are trying to assist with the passage of this legislation.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

With respect to the minister, that was not my question, though. The question was not about numbers; the question was about an individual member of the public who is not suspected of having committed an offence and who is not suspected of even in any way being connected with a potential terrorism suspect or any other suspect. It is just a completely innocent member of the public who happens to have their device—their iPad or their phone or their computer—on the same network as someone who is suspected. So my question is not about numbers; it is about the principle. I am asking the minister to explain how this legislation will work in practice. Will that innocent individual member of the public be able to have their phone or device subject to a warrant and therefore subject to all the powers—we will come to that in a moment—simply because they are on the same network as someone who is a suspect? That is my question.

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

I thought I had made it relatively clear that ASIO is required to—and do as they go about their business—take into account that they only should be accessing information that is relevant to their inquiry. Under section 25A the test for the Attorney-General to actually issue a warrant to access data that is held on a computer is not going to change. The Attorney-General must be satisfied that there are reasonable grounds for believing that access by ASIO to data held in a target computer or computers will substantially assist the collection of intelligence in respect of a matter that is important in relation to security.

As is currently the case, ASIO's purpose for using a computer under section 25A must be to access data relevant to a security matter. ASIO may copy any data to which access has been obtained that appears to be relevant to the collection of intelligence. In undertaking its function or obtaining intelligence relevant to security ASIO is required to comply with the Attorney-General's guidelines, which require it to use as little intrusion into individual privacy as is possible but still consistent with the performance of its functions—its function being to protect the Australian community. In the event that the DG of security is satisfied that ASIO has obtained data that is not required for the performance of ASIO's functions or exercise of its powers, that data is destroyed. That is a requirement under the ASIO Act. The Attorney-General can also include appropriate additional conditions and restrictions in the issuing of the warrant.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Further to the minister's answer: the minister used the term 'computer', which in this bill is proposed to be redefined not only to include one or more computers but one or more computer systems, one or more computer networks or any combination of the above. Does that mean that a network in, for example, a workplace that may contain dozens, if not hundreds of computers counts as a network for the purpose of the definition of 'computer' in this bill?

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

I appreciate the interest of the member for Melbourne, but I am really not sure how much clearer I can be. ASIO does not access information that is not relevant to their security inquiries. If they do and it is judged by the DG of security not to be relevant, it will be destroyed. I am not sure how long we can continue debating the same point. The government is concerned, as we always are, to protect the privacy of individual Australians. We do not go about with the idea of intruding into people's privacy, and obviously we do not welcome legislation that allows us to do that. We are only taking these measures because of the enhanced risk in the national security environment. We have been very mindful of ensuring that appropriate safeguards continue to exist. In my two previous contributions to the member for Melbourne's point I have raised those safeguards, and I do not propose to do so a third time.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I have a question for the minister about the penalties that would apply under this legislation. For someone who manages a network—the minister would not say whether or not a network at a workplace counts; let's assume it does, and I will come back to whether it includes the whole internet in a moment—if ASIO or someone accesses a network in the workplace pursuant to a warrant, if the systems administrator or network operator of that workplace believes that they have been hacked and then takes countermeasures to remove the intrusion, will that network administrator or operator be subject to prosecution under this bill?

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

Again, I think I have made it abundantly clear that there are appropriate safeguards within this legislation to make sure that ASIO is accessing information in the course of its inquiries and that very significant safeguards exist for the use of that information. We can keep going over and over on the same point but perhaps, if the member for Melbourne has other points he would like to make, we could move on.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

It was a very clear and different point. It is about how far the proposed prosecutions go under this—a point about which I have asked nothing before and about which the minister has said nothing. People could go to jail under this legislation, so I am asking the minister a very simple question. If a network administrator believes that their network has been hacked because it has been accessed by ASIO under one of these warrants and they take steps to fix it or they publicly disclose it, are they subject to prosecution under this? That has not been traversed in any of the debates so far. It is a very simple question. If the minister cares at all about someone's individual liberty and the people who manage computer networks, he should be able to give a very simple answer about how these provisions apply. The government is coming in here saying, 'We want sweeping new powers that can send people to jail,' and they cannot even define the offence for us. The minister should hang his head in shame if he cannot tell the public whether or not they are going to jail for doing something as simple as saying: 'I think the network's been hacked. I'm going to fix it,' or 'I think my network's been hacked. I'm going to report it.' The minister, if he cares about individual liberties, should be able to answer that question.

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

We can continue to go around in circles on this point, but I think I have made it abundantly clear that ASIO collects information that it believes is relevant for the course of its security inquiries. If it collects information that it does not require then that information will be destroyed. On top of that, as I made clear in both my opening remarks to this bill and the summing up, people could still make a complaint to the Inspector General of Intelligence and Security if they believe that their information has been used in an improper way. That safeguard will still remain.

This is the fifth time that the member for Melbourne has made essentially the same point and the fifth time that I have responded. I suggest that, if he has got something else to contribute to this debate, he moves on.

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

I call the honourable member for Melbourne. Why don't we start moving these amendments that the honourable member for Melbourne has?

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I will move the amendments, but I have asked a series of questions about vital legislation that is about the security of this country and people's individual liberties and how we strike a balance. I have asked simple questions of the minister about how big the network can be. He cannot answer. And I have asked a simple question of the minister about a case where someone is managing a network and thinks it has been hacked: are they susceptible to prosecution if they release information about that? He cannot answer that.

So let me ask him another simple question, and then I will get on to moving the amendments. I am asking these questions so that we can have some clarity about how the legislation operates because that goes to the question of whether or not amendments need to be moved. Let me ask another question. If there is a special intelligence operation in place, how will a journalist know that that is the case if they are reporting on something that ASIO or a security agency does? In other words, if something happens and the journalist reports on it, and it turns out later that that reporting was, in fact, about a special intelligence operation, how is the journalist meant to know that in the first place?

Stuart Robert (Fadden, Liberal Party, Assistant Minister for Defence) Share this | Link to this | Hansard source

I thank the member for Melbourne for his question, noting that the Minister for Justice has had to leave the chamber to deal with some issues and has asked me to answer that question.

We deal with this issue all the time. There is nothing new about the concept of a journalist understanding that an operation is of significant national interest, whether it is an operation by Defence, intelligence agencies, Australian Federal Police or ASIO. I am yet to think of a single instance that I have come across in my prior life in parliament or as a minister, where journalists did not know and did not have clarity that an operation, be it a covert operation or an operation of some military or security significance, was occurring. The idea that a national-level journalist would not understand that a covert operation—such as the operations of a few weeks ago, involving over 800 police, ASIO officers and others—was occurring and therefore the journalist publicly reported it is absurd. The notion that a journalist would have information that something profound is happening and they did not know it was a covert operation, did not know it would contain or create risks if it was compromised, or did not have the wherewithal to call an appropriate minister or head of an agency, is simply not something that occurs with professional journalism in this country.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Given that this minister seems to know a bit more about the legislation than the last one, would journalists have been prosecuted under this legislation, or be liable to be prosecuted, for revealing the Timorese cabinet bugging?

Stuart Robert (Fadden, Liberal Party, Assistant Minister for Defence) Share this | Link to this | Hansard source

I thank the member for Melbourne. We do not deal in hypotheticals, because the full notes of the case are not known. It is the judiciary that will determine if there is a conviction or a prosecution occurring. It is the DPP that will determine if a case is put forward. So we cannot deal in hypotheticals. The members knows that we cannot deal in hypotheticals. And no-one from either side of the House deals with them.

Let's go back and apply the common-sense test to which this legislation refers. The legislation is simply saying that if a journalist wilfully discloses and compromises an operation of such significance to the nation and the protection of its people an offence may have occurred. This is dealt with in numerous areas. There are areas that deal with interception law across the military space, where it is very clear to journalists that if you reveal areas in the nation's interception space you are liable for some degree of action. This has been in place for decades, and I have never yet come across a journalist who said that they do not understand the limits of how this law applies to what they can and cannot report.

So it is fine for journalists to operate in a framework with Defence, keeping in mind that we embed journalists in our military operations all the time; we have done for a decade. Journalists from every major reporting network and paper we have embedded in Afghanistan. In combat operations we have put them with our special forces. We have put them in our forward operating bases with very strict requirements on what they can and cannot report. And for a decade Australian journalists have not had a problem. In fact, the last time that I can recall that there was an issue of journalists pre-empting or disclosing military operations in an unauthorised manner was when the paras went to Goose Green in 1982 during the Falklands War. The journalist pre-empted an assault by the parachute regiment at Goose Green. The end result was that the commanding officer was killed and quite a substantial battle ensued.

That was 32 years ago, involving the British forces. We have had such a long operation of journalists understanding the need to be sensitive with a range of disclosures that journalists well and truly understand the limits. It is not muzzling of free speech; it is simply appropriately dealing with issues that we are looking at, at the time. So the member quite rightly asks: is the government concerned about journalists not understanding the limits to which they can use their journalistic freedom? The vast experience of journalists embedding in the military and working in this space clearly says: no, there is not a problem.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

Thank you for the reasons, in large part, outlined by the minister. By leave—I move amendments (3) to (10) on the sheet circulated in my name together:

(3) Schedule 3, item 3, page 69 (lines 19 to 23), omit subsection 35P(1).

(4) Schedule 3, item 3, page 70 (line 6), omit "Subsections (1) and (2) do", substitute "Subsection (1) does".

(5) Schedule 3, item 3, page 70 (line 20) omit "(1) or".

(6) Schedule 6, items 1 and 2, page 81 (lines 4 to 13), omit the items.

(7) Schedule 6, item 4, page 81 (line 16) to page 85 (line 25), omit the item.

(8) Schedule 6, page 106 (line 2), omit the heading.

(9) Schedule 6, item 24, page 106 (lines 3 and 4), omit the item.

(10) Schedule 6, item 26, page 106 (lines 9 to 11), omit the item.

What is clear is that in Australia journalism plays a vital role in holding the government to account. Thanks to journalism here and around the world we have heard about things like the bugging of the East Timorese cabinet, and we have found out that Australia tapped the phone of the wife of the Indonesian President. We have seen significant journalism coming forth from those who have reported on leaks that have come from Edward Snowden, Julian Assange and WikiLeaks.

As the minister just explained, journalists understand that they also have national security obligations. Any sensible journalist will go through a debate to weigh up security and safety—where that is potentially compromised—as against the public interest or the public's right to know. Good journalists make that assessment all the time. Now this government is coming in and saying, 'We are going to treat every good journalist like a criminal. We are going to treat every good journalist with contempt and increase the penalties and the scope of offences that they will be subject to.' So what we read in the paper about our secret agencies that operate in our name, we probably will not read about from here on in because the government's approach is: rather than read an embarrassing article in the newspaper about an instance where actions done in our name may have overstepped the line, we want nothing to be spoken about at all.

The minister can tell me if I am wrong. He has the opportunity in this debate to say that we are wrong. But if this legislation passes as it stands at the moment, an innocent member of the Australian public could be killed in a bungled operation and no-one would have the right to talk about it and no-one would have the right to know. In fact, if you did talk about it, you would face going to jail. The minister now has ample opportunity to say, 'No, that won't be in the legislation.' It would be great if he did, but I bet you he will not. What this legislation is about is operations that are already secret and are not subject to the scrutiny of an independent security legislation monitor—because the government has not filled that position and, in fact, wanted to get rid of it. Where there is not adequate parliamentary oversight, we in this country are left to rely on the media to shine a light on where they think the line has been crossed. Now, even that light is going to be snuffed out. For that reason I move these amendments.

What these amendments do not do is remove the new provision that makes it an offence to release information that would disrupt an operation or put someone's life in danger. That provision can stay. So I can save those opposite, those heckling and those about to speak all their cant on that front because that provision will remain. What the amendments do is allow for public interest whistleblowing and reporting. The minister has now left the chamber, perhaps because he is not across the legislation, and someone else has come in to take over from him. The minister made a number of comments about whistleblowing and whether or not whistleblowing is protected—and I expect my colleague, the member for Denison, will make some points about that shortly. These amendments protect whistleblowers and protect journalists reporting in the public interest.

Given the haste with which this is being rushed through, given the lack of an independent monitor and given the lack of real parliamentary oversight, if we value democracy and we value transparency, we must preserve that last right of the media to shine a light on where they think our secret agencies have overstepped the mark. That is why I urge the House to support these amendments and I urge Labor to support these amendments.

Stuart Robert (Fadden, Liberal Party, Assistant Minister for Defence) Share this | Link to this | Hansard source

Just so the nation understands what the member for Melbourne, representing the party of the Greens, is suggesting: they are seeking to remove from the National Security Legislation Amendment Bill (No. 1) 2014 an offence in section 35P(1) which applies to people who intentionally communicate information, reckless as to the circumstance that it related to a special intelligence operation. Clearly, we oppose the amendments.

As the PJCIS recognise, the offence in section 35P(1) is necessary and it is appropriate to protect sensitive information about the existence and conduct of intelligence operations, keeping in mind that there already exists a number of offences in a number of bodies of law. Section 18 of the ASIO Act makes it an offence to disclose intelligence information. Section 92 of the ASIO Act makes it an offence to disclose or identify the identity of ASIO agents. Under the Intelligence Services Act, there are offences in terms of disclosing intelligence related information. I note that there are no amendments, from the party of the Greens, to amend those two acts—the ASIO Act and the Intelligence Services Act. So it begs the question as to how serious the Greens really are.

We are talking about section 35P(1) 'special intelligence operations'. The very disclosure of the existence of these operations will create risks if they are compromised. It will impact the safety of participants and their families. It will put families in jeopardy. Such a risk could be immediate or, indeed, it could evolve over time. There is no way of controlling it once it is disclosed. The risk of harm is inherent in the very disclosure of information when it relates to special intelligence operations and it does not depend in anyway on the intention of the discloser, good or otherwise. As Justice Robert Hope observed in 1984 in his report on ASIO:

The disclosure of secrets or secure areas to risk through inadvertent or carelessness can result in just as much damage to the national interest as can result from espionage or sabotage.

The Australian Law Reform Commission has also endorsed the view that offences concerning unauthorised disclosure of intelligence related information should not be limited to those which require proof of harm or malicious intent. This is because such harm is inherent in the very act of disclosure which places that information at risk. In addition, as the PJCIS has further recognised, the offence requires the prosecution to prove that the person who disclosed the information was reckless as to the fact it related to a special intelligence operation. As the PJCIS committee acknowledged, this is an 'onerous burden of proof'.

The government has not decided to put a range of offences in place to muzzle the media. Building on the offences in the ASIO Act and the Intelligence Services Act, an onerous burden of proof is required for an offence under section 35P1. The prosecution must establish beyond reasonable doubt that the person knew of a substantial risk that the information related to a special intelligence operation. It must then establish that the person 'nonetheless and unjustifiably in the circumstances took the risk of making the disclosure'.

An offence with identical elements, inserted in 2010, exists in section 15HJ of the Crimes Act in relation to controlled operations. I note that in addition to there being no amendments from the Greens on the ASIO Act or the Intelligence Services Act there are no amendments on the Crimes Act. So offences in relation to media disclosure under those three acts is fine, but under this one apparently it is not. The hypocrisy is astounding.

There have been no prosecutions or referrals of prosecutions to date. This strongly suggests that the offences are not operating to unduly curtail media reporting or public disclosure in relation to security matters as it relates to section 15HJ of the Crimes Act. There are only a limited number of special-intelligence operations that can be approved by the Attorney-General, and they must be preapproved.

Let me give the member for Melbourne and the Greens party one example of what they are trying to get rid of. A special-intelligence operation may be extraordinarily covert. An example might be ASIO seeking to infiltrate a known terrorist organisation and then the media, for whatever reason—and I cannot think of a single journalist in the country who would do it—would blast that over the front page of a paper, putting that operative and their family at risk. That is what section 35P1 is all about. The Greens are saying it is fine to risk the lives of ASIO operatives and their families. Member for Melbourne: it is not fine. The nation does not think it is fine. That is why the provision exists.

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

I rise to speak in relation to amendments (3) to (10) moved by the member for Melbourne. The first group of those amendments is the omission of the first offence, which appears as part of the secrecy provision that is section 3P. The member for Melbourne said that his amendment protects whistleblowing. It does nothing of the kind. I have some knowledge of these matters, because I brought what is now the Public Interest Disclosure Act into this House last year. A scheme of whistleblower protection expressly confers protection on whistleblowers.

This amendment would simply remove one of two secrecy offences that appear in the bill. As a consequence, it is an amendment that completely fails to address what is an important policy goal, if not a crucial policy goal, of maintaining the secrecy of special-intelligence operations. As the minister has pointed out, it is secrecy that protects the wellbeing—and potentially the lives—of undercover ASIO officers.

I assure the House and the Australian community that Labor understands the concerns that have been raised about section 35P. In this provision the parliament needs to grapple with the competing policy priorities of free reporting and of the ability to safely conduct national-security operations. Given the nature of special-intelligence operations, it is imperative that there be a general protection for their secrecy. We are reassured by the clarification in the amended bill that no journalist could ever inadvertently breach section 35P1, among other amendments. I can assure the Australian community that we will monitor the operation of the amended provision to ensure that it lives up to our understanding—and the understanding of the joint intelligence committee—as to how it is intended to function.

The other part of the group of amendments moved by the member for Melbourne is the omission of increased penalties for communicating intelligence information by ASIO officers, employees and contractors and the new offence that grapples with unauthorised dealing of records. Labor opposes these amendments also, on the basis that the Greens party clearly does not appreciate the importance of maintaining confidentiality of our security agencies' operations. It is the nature of their work that it be conducted in secret.

These provisions deal with misconduct by those who have been entrusted by the government with valuable information. Those people bear a serious responsibility, to the community, to meet their obligations and to maintain the confidences that have been entrusted to them. It is hard to see why serious penalties should not apply when ASIO personnel breach their obligations. That is what these provisions deal with. Labor appreciates the difficulty of maintaining confidence in our agencies. We think it important that there be confidence in our agencies, but we think the amendments proposed by the member for Melbourne are the reverse of anything that could achieve that end of building confidence.

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

The question is that the member for Melbourne's amendments (3) to (10) be agreed to.

A division having been called and the bells having been rung—

As there are fewer than five members on the side for the ayes, I declare the question resolved in the negative in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.

Question negatived, Mr Bandt and Mr Wilkie voting yes.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (1) and (2) together:

(1) Schedule 2, item 12, page 28 (after line 17), after subsection 25(6), insert:

  (6A) Subsection (5) authorises the use of a device to obtain access to data only if the total number of:

  (a) devices used to obtain access to data; and

  (b) devices from which data has been obtained;

(other than devices owned by the Commonwealth and brought on to premises specified in the warrant for the purposes of executing the warrant) in accordance with the warrant is no more than 20.

(2) Schedule 2, item 25, page 30 (after line 23), after subsection 25A(5), insert:

  (5AA) Subsection (4) authorises the use of a device to obtain access to data only if the total number of:

  (a) devices used to obtain access to data; and

  (b) devices from which data has been obtained;

(other than devices owned by the Commonwealth and brought on to premises specified in the warrant for the purposes of executing the warrant) in accordance with the warrant is no more than 20.

There is a simple principle underlying this set of amendments and it goes to some of the questions that I was asking earlier. What appears to be the case, given the government's answers, is that someone who has done nothing wrong, who is just an innocent bystander, can now have their computer, their device, their phone accessed by security agencies who get one of these warrants. What appears to be the case is that, under this new expanded definition of 'computer', which is not only one or more computers but a network or indeed a network of networks, this could be expanded under one warrant to include the whole internet—the internet being a network of a network of computers. In other words, every computer or device connected to a network of networks could now be the subject of scrutiny by the one warrant, even though you are not suspected of having done anything wrong.

I listen to the shadow Attorney-General, who said that he wanted to dispel any suggestion that somehow one warrant could be extended to the whole of the internet. So I move these amendments and I ask the minister a question in so doing. The question that I asked the minister is: is there an upper limit on the number of devices that can be accessed? This amendment proposes 20. The minister and others may say that 20 is not practical. We understand, say the Greens, that things have moved on in terms of technology and it may well be the case that in one household or in the possession of one person they may have multiple devices whereas previously they might have only held at one. So we concede that there is a need for the provision to be updated, but the legislation at the moment is limitless. So, firstly, I ask the minister: given what the shadow Attorney-General said that basically it is not limitless and you could not pointed to the whole internet, is that right? Is there an upper limit and, if so, what is it? Secondly, if the minister does not accept this amendment because 20 is seen to be impracticable, what would be an appropriate way of doing it? Is it to allow a judge or someone else to set a limit? Is it to allow some external scrutiny to ensure the people who have done nothing wrong are not going to be trampled by a warrant? Or, will you allow the provisions of a limitless number of devices to be subject to one single warrant?

Stuart Robert (Fadden, Liberal Party, Assistant Minister for Defence) Share this | Link to this | Hansard source

I thank the member for Melbourne. The government will reject the amendments by the Greens because, for a start, it does not actually pass the common sense test. The common sense test simply says that an individual working at Coles who thinks they have got a hacking incident and reports it to their management, the member for Melbourne believes that ASIO may come screaming down to look at their wife's Facebook account.

Warrants pertaining to matters covered by the first two amendments have to be security matters and security matters are defined in the ASIO Act. They deal with the likes of foreign intelligence collection. Unless someone is collecting intelligence on someone who is working at Coles, I suggest the issue of everyone having to be concerned that ASIO may come swooping in to look at their household computers or tablets is completely and utterly unwarranted. ASIO need to show the Attorney-General why they need a warrant to go after various computing devices or networks because of a relevant security matter, not because someone thinks their Facebook account has been hacked.

Let us just get some common sense across this argument. The Greens are intentionally trying to muddy the waters to suit their own political point, but attorneys-general on both sides of politics have been very sound and very serious individuals and they take their responsibilities extraordinarily seriously. ASIO must demonstrate why the warrant they are seeking covers a security matter. We have dealt with that issue and I think we are all happy, as a parliament, that the Attorney-General will be providing warrants to ASIO for substantial matters.

If I could come to the device issue: the Greens are proposing to fix in legislation the total number of devices. Let me put my 'master's degree in IT' hat on. I get a little about IT and I get a little about computing; I did a master's degree in networking, so I have a bit of substance when it comes to how computing, networking and devices work. The Greens are seeking to impose an arbitrary, artificial and completely and utterly unworkable limitation that would not only frustrate ASIO but which does not exist in the real world we live in.

We talk about devices and networks. I think about my home: I run an 802.11n network that has 25 concurrent mobile devices connected. With mum and dad and three kids, we have 22 internet-enabled devices in our house, which comprises a very small 802.11n network. TVs talk to the internet. My fridge talks to the internet. We are moving to the system of systems, the internet of internets, where all devices are connected. You are suggesting, the member for Melbourne, that if ASIO came to my home they could interrogate my fridge, my devices and my TV but as soon as they hit device number 20—because I have 22 concurrent devices—they could not hit one of my hard drives or my WDTV, where all my movies are stored. Under your amendment, ASIO cannot even deal with my home running a simple network. I accept that my fridge is, possibly, a threat to national security; I fear it may be. But my home has more than 20 connected devices and we have not even entered the internet of internets. We have not even entered the world where my car is going to speak to my computing network, or where my freezer or fridge will automatically go online to Coles or Woolies and order the milk and the bread and the things I want. We are in a rapidly evolving networked world but the Greens, dragging behind them their Luddite policy, want to limit our law enforcement to 20 devices. That would not even cover my humble home and the devices I have.

Can we please apply a modicum of common sense? If the Attorney-General allows a warrant on a security matter that deals with national security—espionage or other such issues of gravity—that covers multiple devices, tablets, computers, limited networks, IP gateways and VPNs among other things, let us give the serious professionals the tools they need. Let us not limit them because the Greens do not quite understand how even a basic home uses internet networking.

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

These amendments to the bill would put an arbitrary limit on the scope of warrants and as a consequence are wholly impractical. Labor opposes them for that reason.

In modern conditions, it is easy to imagine a warrant targeting a particular person or a particular group of people could necessitate the use of a number of devices to access data relevant to a security matter. There is no basis for seeking to impose the kind of arbitrary limit this amendment would impose.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I want to thank the minister for making our point exactly. The point the minister made was that now that devices are proliferating in homes, they are also proliferating on networks and they are connected to each other. Networks are connected to networks. He has made the point exactly: without an upper limit, one warrant not only includes all the devices in someone's home—and as I said in my speech, if you think 50 is the right number let us make it 50—but the other networks they are connected to.

The minister has just confirmed that this new definition of computer, which is not only one or more computers but one or more computer systems, one or more computer networks or any combination of the above, now means anything that is connected to anything else—even something two, three or four steps removed. With so many devices in people's homes and workplaces nowadays, there is no upper limit. You could be targeted simply because your network happens to be connected to someone else's network, which happens to be connected to someone else's network. I thank the minister for clarifying that.

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

The question is that the member for Melbourne's amendments be agreed to.

A division having been called and the bells having been rung—

As there are fewer than five members on the side for the ayes in this division, I therefore declare that the question be negated in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.

Question negatived, Mr Bandt, Ms McGowanand Mr Wilkie voting yes.

Andrew Wilkie (Denison, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2), as circulated in my name, together:

(1) Page 80 (after line 8), after Schedule 5, insert:

Schedule 5A—Functions of the Committee on Intelligence and Security

Intelligence Services Act 2001

1 Subsection 29(3)

Repeal the subsection.

(2) Schedule 7, items 31 to 40, page 110 (lines 5 to 24), omit the items.

Before we address the question, I have a few questions for the government to really bring some clarity to what has gone on this morning. Much of the discussion this morning—and, in fact, the discussion in the other place and elsewhere—has centred around the fact that the Parliamentary Joint Committee on Intelligence and Security has inquired into these proposals on two separate occasions. In fact, that is correct. The first inquiry ran from May 2012 to May 2013—12 months. And, as someone who was involved in that inquiry, I am pleased to say that it was very robust and did as good a job as it could do. The second, more recent, inquiry went a matter of days or weeks at best, and, compared to the first inquiry, might be described as flimsy. So much then rests on the first inquiry. Yet, when you go to the chair's introduction in the report from the first inquiry, he says:

… the Committee was faced with three key difficulties. Firstly, the terms of reference were very wide ranging as they contained 18 specific reform proposals containing 44 separate items across three different reform areas. Secondly, the lack of any draft legislation or detail about some of the potential reforms was a major limitation and made the Committee’s consideration of the merit of the reforms difficult.

That ultimately led to recommendation 41—and I will read it in full:

The Committee recommends that the draft amendments to the Australian Security Intelligence Organisation Act 1979 and the Intelligence Services Act 2001 , necessary to give effect to the Committee’s recommendations, should be released as an exposure draft for public consultation. The Government should expressly seek the views of key stakeholders, including the Independent National Security Legislation Monitor and Inspector-General of Intelligence and Security. In addition, the Committee recommends the Government ensure that the draft legislation be subject to Parliamentary committee scrutiny.

Through you, Mr Deputy Speaker Vasta, I ask this question of the government and of the minister: why, Minister, does the government keep claiming that the PJCIS supported these reforms in its 2013 report when the committee repeatedly said that its inquiry was limited by the absence of a detailed proposal or exposure draft? Through you, Mr Deputy Speaker: why is the government making so much of a report that, by its own admission, says it cannot address the issues in any detail?

Stuart Robert (Fadden, Liberal Party, Assistant Minister for Defence) Share this | Link to this | Hansard source

Let me thank the member for Denison for his questions. Notwithstanding that the minister has dealt with this extensively and notwithstanding that this bill is seeking to implement 21 of the 22 recommendations in chapter 4 of the original report, in terms of comments that the original report—that the member was a part of the committee for—is being, somehow, whitewashed or disregarded, I think 21 of the 22 recommendations being implemented in some part or in whole makes it very clear that is not the case. The minister has gone back to the PJCIS about the legislation and to ensure that they are across what the legislation has and so the government is entirely comfortable in terms of process and disclosure.

Andrew Wilkie (Denison, Independent) Share this | Link to this | Hansard source

We might have to agree to disagree then because when I read the report it is in absolute black and white where the chair and the committee as a whole makes the observation repeatedly that in the absence of an exposure draft they are unable to look into these matters properly. Hence, that crucial recommendation—41—which is an overarching recommendation saying that before these proposals could be progressed there needed to be a detailed exposure draft, that it needed to be released for effective public and stakeholder consultation and then subject to effective parliamentary scrutiny. You and I can disagree, Minister, on our interpretations of this, but I would leave it to the public to have a look at that report and to see where things are expressed in black and white.

Through you, Mr Deputy Speaker, I will ask another question of the government. Earlier today, the minister made the point that the reforms in this bill in no way are clamping down on whistleblowing in the public interest. In fact, this morning the minister referred to the Public Interest Disclosure Act. The shadow Attorney-General has also referred to it in this place today. My question to the government—and really, it only needs a 'yes' or a 'no'—is: isn't it the case that the Public Interest Disclosure Act specifically carves out intelligence material and intelligence officials from any of the protections afforded by the Public Interest Disclosure Act? I think that needs a simple 'yes' or 'no'.

Stuart Robert (Fadden, Liberal Party, Assistant Minister for Defence) Share this | Link to this | Hansard source

The thing I like about the member for Denison is that we served together as military officers and we serve in the parliament, and, of course, we agree to disagree on so many things!

The thing I love about your 'yes and noes' is that they are not based entirely on the full set of facts, member for Denison. You know it, I know it and the parliament knows it. The Public Interest Disclosure Act does carve out disclosure in some forms. However—and it is a big 'however'—that, of course, you neglected to tell the parliament. There is a big 'however' that deals with a range of frameworks within the act. So it is not as simple as a 'yes' or a 'no'.

I will let you move your amendments and then we will just move on.

Andrew Wilkie (Denison, Independent) Share this | Link to this | Hansard source

Again, we might have to agree to disagree on that, because if anyone were to pull out a copy of the Public Interest Disclosure Act they would see, in black and white, that intelligence material and intelligence officials are specifically—explicitly—excluded from the protections of that act.

Mr Deputy Speaker, through you, I have another question for the government. This morning, the minister said words to the effect—I do not have them in front of me—of, 'Journalists have nothing to fear from section 35P so long as they do not endanger anyone.' These were words to the effect that journalists have nothing to fear so long as they do not 'endanger' anyone. That appeared to be a rewriting of section 35P. My understanding—and I would ask the minister to confirm this—is that the relevant section quite explicitly would impose a penalty of up to 10 years jail on a journalist simply for reporting the existence of any special intelligence operation. In fact, nowhere in the legislation is there the sort of qualification that was offered by the minister this morning, that it was really only to do with endangering someone.

This is not about how people might interpret it in the future; this is about the exact words in the bill and what will become the exact words in the law of the land, that journalists could be jailed for up to 10 years simply for reporting on a special intelligence operation if they know it is a special intelligence operation.

Stuart Robert (Fadden, Liberal Party, Assistant Minister for Defence) Share this | Link to this | Hansard source

We have dealt with this extensively in the public and we have dealt with this extensively in the parliament. But let me just give an example so that the Australian people understand what we are talking about in 35P.

The offence will not, and is not designed to, criminalise legitimate reporting. We have seen that. We have had 10 years of embedded journalists in military operations, with no issues. We dealt with this in response to the member for Melbourne's question. But in terms of gazetted or legitimised special operations as preapproved by the Attorney-General, we are talking about operations as sensitive. As an example: an ASIO agent covertly infiltrates a terrorist organisation, something that could take years, endangering his or her life and those of many others of their compatriots and their families, and a journalist, knowing this—being aware of this, and knowing full well the ramifications of it—then reports it anyway.

I think that any decent Australian would look at that scenario and say, 'No. Australian journalists just wouldn't do that.' And I agree; frankly, they would not. We have seen that right across the board for the last decade as journalists have been eminently responsible. The law here is designed to stop the one-in-a-million journalist who perhaps is not quite across the ramifications. This will ensure that they are.

Is it appropriate? Yes. If you endanger the lives of our people knowingly and endanger the lives of their families knowingly, there is a consequence. It is just like if you were a journalists embedded with our military overseas; if you endanger our troops then there damn well is a consequence. They know it, I know it and the Australian public deserves it. And they demand it. It is no different here—absolutely no different here.

This is not about stopping good, sound journalism; it is about saying to that one-in-a-million, who seeks knowingly—for whatever reason—to harm Australia, its interests its people and their families, that there are consequences.

Andrew Wilkie (Denison, Independent) Share this | Link to this | Hansard source

I agree with the government, without any qualification, that no journalist must ever knowingly put someone at risk. In fact, the minister's example of a counter-terrorist operation is a good example of a situation where it would be inconceivable that a sane journalist would report anything that might put anyone involved in that operation at risk.

Of course there are lots of examples that could be used to tease this issue out. There has already been repeated references this morning to the now infamous planting of a listening device in the East Timorese cabinet rooms. There is an example where a type of operation could be occurring where the Australian government or perhaps a zealous official within an intelligence agency might be going beyond what could be regarded as reasonable and ethical behaviour, and there could be a legitimate reason for a journalist to want to publicise that. In that example, that journalist could be liable to up to 10 years in prison; an intelligence official involved in the operation who perhaps is collaborating or working with the journalist, he or she would have no protections under the Public Interest Disclosure Act. So there we have another example, but it is an example that I think very clearly makes the point that this section 35P could conceivably silence or muzzle the media in the future on that rare occasion when a prescribed operation does need or does warrant publication.

The point was made a little while ago, in fact I think it was in response to my colleague the member for Melbourne, that there is already an abundance of laws out there to prohibit and deter the improper disclosure of information or intelligence. The minister listed a number of examples, and used it as a challenge to the Greens: 'Why are you challenging things today when you don't challenge these other things?' I am going to turn that attack on the member for Melbourne around, and I am going to say: if there are already a range of laws that deter and prohibit the improper disclosure of information, then why do we need one more? And, in particular, why do we need one more that goes way beyond any existing penalty and a law to do with an issue that has never been a problem? We are creating solutions for things that are not a problem. The fact is that prescribed operations have been in existence for the Australian Federal Police for years, and to the best of my knowledge no journalist has ever been pursued or prosecuted for disclosing any information improperly about any of those AFP prescribed operations. So why are we creating a solution when there is no problem? Why are we creating laws and more red tape, particularly by a government that is wanting to get rid of unnecessary and superfluous laws? Why? I do not understand it. Why do you want another law?

Stuart Robert (Fadden, Liberal Party, Assistant Minister for Defence) Share this | Link to this | Hansard source

What I find interesting, Member for Denison, is the PJCIS report that we referred to, that 12-month great committee that you were a member of—correct, sir?

Andrew Wilkie (Denison, Independent) Share this | Link to this | Hansard source

Yes.

Stuart Robert (Fadden, Liberal Party, Assistant Minister for Defence) Share this | Link to this | Hansard source

And if I look at that report and its recommendations, it was a unanimous report, which means that you agreed with it, Member for Denison—is that correct? I will take that as a nod. That report recommended a regime modelled on the Crimes Act to deal with section 35P. You agreed with the report at the time that this legislation in part be modelled on—you agreed because the committee agreed that such a regime as 35P needed to be implemented, modelled on the Crimes Act. That is what the report from the committee you were a member of the agreed on, so for you to come back here now and say that you disagree is a stunning reversal at best.

Andrew Wilkie (Denison, Independent) Share this | Link to this | Hansard source

That was a stunning personal attack on me, and one that is unwarranted. And I would hope that, after I finish speaking, the minister would retract. Yes, I was a member of that committee. I was very proud to have been a member of that committee and to have produced this report. And it was a consensus report, which I think was a remarkable achievement for a committee that had such a wide range of members on it. And crucially I agreed with recommendation 41:

The Committee recommends that the draft amendments to the Australian Security Intelligence Organisation Act 1979 and the Intelligence Services Act 2001, necessary to give effect to the Committee’s recommendations, should be released as an exposure draft for public consultation. The Government should expressly seek the views of key stakeholders, including the Independent National Security Legislation Monitor and Inspector-General of Intelligence and Security.

In addition, the Committee recommends the Government ensure that the draft legislation be subject to Parliamentary committee scrutiny.

In other words: it was the consensus report of the committee in the 43rd Parliament that if these were to be progressed, they were to be fleshed out in detail and to be looked at again, and that all of us, myself included, were reserving our rights on how we would approach that next episode.

Stuart Robert (Fadden, Liberal Party, Assistant Minister for Defence) Share this | Link to this | Hansard source

I thank the member for Denison for quickly moving away from the point I made. I did not attack the member for Denison; I simply pointed out that he agreed with the consensus report. That report included recommendation 28, a recommendation that you just forgot to read out then, didn't you, sir? I will read it out for the convenience of the House. The recommendation you agreed with, that you are now saying that you do not like, says:

The Committee recommends—

that includes you, sir, who voted for it—

that the Australian Security Intelligence Organisation Act 1979 be amended to create an authorised intelligence operations scheme, subject to similar safeguards and accountability arrangements as apply to the Australian Federal Police controlled operations regime under the Crimes Act 1914.

And this is what we are doing. We are creating an authorised intelligence operation scheme subject to similar safeguards and accountability arrangements as they apply to the Crimes Act. It is exactly what we are doing with 35P. This, sir, is exactly what you agreed to in the report back then, and for you to come back in here this morning and suddenly say the government is wrong is hypocrisy at best.

Andrew Wilkie (Denison, Independent) Share this | Link to this | Hansard source

I have a lot of time for the minister. We are former colleagues and we run the risk of going around the buoys on the river repeatedly. I will not read out again recommendation 41—I have read it out twice this morning—but I will emphasise that it was the overarching recommendation at the end of the 2013 report and that is the context in which all of the other recommendations need to be viewed. Interestingly, recommendation 41 comes at the end of the report. I will read your couple of sentences of the concluding comment:

The Committee has carefully considered each of the reform proposals. Where the committee has recommended draft amendments be made to the acts, these amendments should first be released as an exposure draft for consultation. The Government should expressly seek the views of key stakeholders, including the Independent National Security Legislation Monitor and Inspector-General of Intelligence and Security.

In other words, all members of the committee reserve their right to look at this afresh if and when the proposals are progressed, as they are being progressed today. I am firmly of the view that what is on the table today is being rushed and it is flawed because some parts of the bill are unsatisfactory and because other important reforms are neglected, including the reform contained in my amendments (1) and (2), which are simply to expand the powers of the Parliamentary Joint Committee on Intelligence and Security, to give it oversight of intelligence operations, which does nothing more than to bring the powers of the Australian committee into line with comparable committees in the UK and the US.

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

The member for Denison, in this amendment, which proposes the deletion of section 29(3) of the Intelligence Services Act 2001 has drawn the attention of the parliament to the limited functions of the Parliamentary Joint Committee on Intelligence and Security. As the member for Denison has just observed, unlike the House of Commons Intelligence and Security Committee and the equivalent committees of the US Congress, which do have access to and oversight of operational matters concerning intelligence, the Parliamentary Joint Committee on Intelligence and Security of this parliament does not have such powers.

The Parliamentary Joint Committee on Intelligence and Security is, of course, an unusual committee of this parliament in that it is one of the small group of committees that are constituted by statute rather than under the standing orders. As a consequence, we look to the statute which establishes it for its role, which is set out in section 29 of the Intelligence Services Act. Sections 29(1) and 29(2) confer clear functions which include reviewing the administration and expenditure of the intelligence agencies and reviewing any matter in relation to the agencies that the minister or either house of parliament asks the committee to engage in. It has a particular review role in relation to a sunset provision of some particular powers given to ASIO in 2006 and it can request the minister to refer matters to it. It also has another function in relation to proposed listing of terrorist organisations under the Criminal Code, which appears in other legislation.

We then see in 29(3) that there is a specific exclusion of the committee from reviewing the intelligence gathering and assessment priorities of the agencies, of reviewing the sources of information, reviewing particular operations and a range of what can be described as 'operational matters'. There should be some consideration of expanding the role of the Parliamentary Joint Committee on Intelligence and Security, which I think needs to take place as part of consideration of the whole scheme of oversight of our intelligence agencies. We need to ensure that the whole of our community has confidence in our intelligence and security agencies. One of the ways in which that confidence can best be achieved is through oversight and integrity bodies. We already have a range of oversight and integrity bodies which includes the Inspector-General of Intelligence and Security, the National Security Committee of cabinet has oversight, as does the Independent National Security Legislation Monitor.

I pause to note that, although the government has abandoned its ill-conceived proposal to abolish the Independent National Security Legislation Monitor, the office of the monitor remains vacant. I would urge the government to fill that vacant position. If ever there were a time when we needed an independent national security legislation monitor it is now when we are considering the new powers being conferred on our agencies with this bill, the new powers that are proposed to be conferred on our agencies by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill, which is now in the Senate, and yet further as yet unexplained changes to the national security legislation which the government has mentioned. You could add as well an oversight role, the role of the Attorney-General, and of course this parliament has a role in overseeing the activities of our intelligence and security agencies and in particular the Parliamentary Joint Committee on Intelligence and Security.

It is worth considering whether the role of the Parliamentary Joint Committee on Intelligence and Security should be expanded but the way proposed by the member for Denison is not the way to do it—by simply deleting a section of the act which sets up the committee. Serious consideration needs to be given to what particular functions should be conferred on the committee and what expansion of the role of the committee is appropriate. That needs to be done through a process of parliamentary scrutiny, through a process of public consultation and through a properly considered proposal, not something on the run on the floor of the House.

I thank the member for Denison for drawing the attention of this parliament to the constraints that have been placed by legislation on the role of the intelligence committee and for drawing the attention of the parliament to the differences in the UK and the United States.

Stuart Robert (Fadden, Liberal Party, Assistant Minister for Defence) Share this | Link to this | Hansard source

I thank those who have contributed to the debate on the National Security Legislation Amendment Bill (No. 1) 2014. Debates are always constructive and the nation is always at its finest when the House of debate is used as a strong debating chamber. I also thank the shadow Attorney-General for his words. In conclusion, suffice to say that the government opposes these amendments moved by the member for Denison that have the effect of extending the statutory remit of the PJCIS to include oversight of intelligence agencies' operational activities. This would fundamentally alter the role and functions of the committee which were intentionally limited to performing oversight of agencies' expenditure, financial statements and other matters referred by responsible ministers. Comprehensive and rigorous oversight of agencies' operational activities is provided by the Inspector-General of Intelligence and Security pursuant to the Inspector-General of Intelligence and Security Act 1986. The IGIS has extensive powers of inquiry, including in response to complaints made by any person. The IGIS submits reports on his or her findings and unclassified versions can be made publicly available. As such, there is no demonstrable or evidence gaps in existing oversight powers in relation to agencies' operational activities. In that line, I move:

That the question be now put.

Question agreed to.

Russell Broadbent (McMillan, Liberal Party) Share this | Link to this | Hansard source

The question now is that the amendments moved by the member for Denison be agreed to.

A division having been called and the bells having been rung—

As there are fewer than five members on the side of the ayes in this division, I declare the question resolved in the negative in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.

Question negatived, Ms McGowan, Mr Bandt and Mr Wilkie voting aye.

The question now is that this bill be agreed to.

Bill agreed to.