David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Hansard source

Senator Ludlam, taking that point, the government would make the counterpoint that the legislation that is being proposed, together with the existing regulatory frame­work, means that there are already signi­ficant safeguards that apply to ASIO's foreign intelligence function. For those of us who are students of political history, we will find that the Greens are not unique in seeking to make sure that these intelligence organisations are subject to the proper controls. That is a tradition to which my own party belongs as well.

Having said that, the government is obviously satisfied with the safeguards that exist. I am happy to spend a moment talking about those. Firstly, safeguards under the Intelligence Services Act are applicable because ASIO's foreign intelligence function is performed at the request of the Minister for Defence or the Minister for Foreign Affairs, and they are responsible for Australia's foreign intelligence agencies. Before a request is made of ASIO to collect foreign intelligence within Australia, requirements under the Intelligence Services Act need to be complied with. These include requirements to obtain a ministerial authorisation if the agencies undertake an activity for the purpose of producing intelligence on an Australian person. You would have to agree that is of signal significance. A ministerial authorisation may be granted by the Minister for Defence or the Minister for Foreign Affairs only if they are satisfied that the Australian person is engaged in certain specified activities. There is a range of other safeguards that apply in the event that a ministerial authorisation is given, including time periods for that authorisation, being six months. In addition to all of that, the defence minister or the foreign affairs minister must be satisfied of the basis of the request for ASIO to collect foreign intelligence. The relevant minister would provide sufficient information for the Attorney-General to be satisfied as to why the request is in the interests of Australia's national security, foreign relations or national economic wellbeing.

In making a decision regarding the discharge of its foreign intelligence function, ASIO has to comply with relevant guidelines and ministerial directions about how it should perform its functions. ASIO must also comply with internal protocols and procedures, which have been carefully drawn with a view to ensuring that their powers are exercised carefully and appropriately. ASIO also has to consider this in the context of its limited resources and other intelligence priorities. It is not resourced to the point that it can engage in intelligence frolics.

Warrants are submitted to the Attorney-General for approval only after they have been through an exhaustive system of checks within ASIO and the Attorney-General's Department. If ASIO seeks to procure a foreign intelligence collection warrant, ASIO has to make a case with supporting material when putting a warrant request to the Attorney-General. The Attorney-General must be satisfied on the basis of advice received from the relevant minister that the collection of foreign intelligence relating to a matter is in the interests of Australia's national security, Australia's foreign relations or Australia's economic wellbeing. All of these are significant matters of national interest.

There are also reporting obligations in section 34 of the ASIO Act requiring the Director-General of Security to report in writing to the Attorney-General on each foreign intelligence collection warrant. The Director-General must report on the extent to which the action taken under the warrant has assisted the organisation in carrying out its functions. Similar reporting requirements apply to the foreign intelligence agencies under section 10A of the Intelligence Services Act. This provides further assurance that foreign intelligence collection by ASIO is appropriate and being used for legitimate purposes.

Finally, section 17A of the ASIO Act includes an express protection for lawful advocacy, protest or dissent, and I am sure that you will agree that that is also of signal importance. The Inspector General of Intelligence and Security regularly reviews ASIO's warrant documentation and, in doing so, has full access to all of the warrant information including the supporting evidence that is provided to the Attorney-General. The Inspector General of Intelligence and Security looks at the legality and also the propriety which encompasses all those other aspects that sit in and around the legislation, including of course whether ASIO has sufficiently adhered to its internal guidelines. So, Senator, I suppose the government's position here is that there are strong protections and strong safeguards and this is not an undue or unwarranted, let alone frivolous, expansion of the powers of our intelligence agencies.