George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

Thank you very much indeed, Senator Macdonald, for facilitating the committee stage of the debate to begin, after Senator Ludlam's 2½ hour filibuster. The government opposes Greens amendments (1) and (2). The Greens are proposing to fix in legislation the total number of devices in relation to which ASIO can undertake activities under a warrant. As you, Senator Macdonald, would well understand, that would impose an arbitrary, artificial and wholly unworkable limitation that would frustrate the ability of ASIO to perform its statutory functions. How can anyone—certainly, how can Senator Ludlam—stand in the Senate today and anticipate what the needs of ASIO will be in relation to warrant based computer access next year, or in 10 years time, or for however long this legislation exists? The idea of saying today, in September 2014, that we know that in years to come there will never be a necessity for ASIO to have any more than a finite number of computer access warrants in operation is of course an absurdity.

In the majority of cases, it is unlikely to be known in advance of a warrant being issued which parts of a computer network will contain data relevant to the security matter in respect of which a warrant is issued. With the variety and number of devices now commonly used as well as the increasing use of computer networks and remote storage, it is highly probable that data may be stored on a number of devices. In exercising its functions, including its powers under a computer access warrant or search warrant, ASIO is required to comply with the Attorney-General's guidelines.

These require ASIO to use as little intrusion into individual privacy as is possible. The means used for obtaining information must also be proportionate to the gravity of the threat posed and the probability of its occurrence. In line with the PJCIS's unanimous recommendation, the government has issued an additional explanatory memorandum 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 include appropriate conditions and restrictions in the warrant which could include a limitation on the number of devices to be accessed where appropriate. Limiting computer access warrants in the way the Greens propose would produce, as I said before, an absurdity. It would create a significant loss of ASIO's capability—perhaps that is Senator Ludlam's motive—which contradicts the position of the unanimous report of the PJCIS that there is a need to enhance, in line with developments in computer technology and its usage, ASIO's capability. It would be irresponsible in the extreme to seriously entertain that notion. I know Senator Macdonald has ridden to the rescue of the hapless Senator Ludlam by moving a motion he was unprepared to move, so that we could progress this debate in a mature and businesslike fashion. Having formally moved that motion, I hope I have persuaded you, Senator Macdonald, that the motion standing in the Australian Green's names is a nonsense.