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

I begin by thanking the opposition for its bipartisan support for the important reforms in schedule 2 to the bill and for its recognition of the need to ensure that our intelligence agencies are supported by a legislative framework to act with agility in circumstances of urgency. The government will move amendments in the committee stage to implement the seven recommendations of the Parliamentary Joint Committee on Intelligence and Security which require legislative amendment.

I will deal with two matters raised in the contribution, on behalf the Greens, of Senator Wright. I am afraid, Senator Wright, that once again you misunderstand the purpose and effect of this bill. It has been suggested that the proposed amendments to confer an explicit capacity on ASIS to assist the ADF in support of military operations may enable ASIS to engage in or facilitate targeted killings of Australian persons overseas. That is, as the PJCIS recognises, a baseless assertion. The amendments will not confer any new functions upon ASIS. ASIS can and does support the ADF in its military operations already. The amendments will simply make this explicit. ASIS remains subject to a statutory prohibition on the use of violence, so given that ASIS is subject to a statutory prohibition on the use of violence, and given that these amendments do nothing to change this other than to put on a certain legislative basis what is the existing practice, it is a little hysterical, if I may say so, to suggest that the amendments will enable ASIS to kill people.

In addition, in making use of intelligence provided by ASIS, the ADF is bound by its rules of engagement, which are developed in consultation with the Office of International Law in my department to ensure that compliance with Australia's human rights and other international obligations is observed. So, Senator Wright, the ADF functions ethically, consistently with the laws of war, consistently with its rules of engagement and consistently with Australia's international obligations. ASIS has a prohibition on the use of violence. There is no possible way the assertion that you have made is supported or, indeed, consistent with or made possible by these amendments.

Senator Wright, you have also falsely suggested that the absence of an express prohibition on torture may mean that intelligence services and agencies, including ASIS, can engage in such conduct. As the PJCIS acknowledged in its report on the bill, there is no legal merit in that suggestion. No Australian intelligence agency—none—can or does or is at liberty to engage in torture. Were it to do so, if would be breaking the law. Nothing in this bill changes that position.

The statutory functions of our agencies cannot allow for torture. Intelligence agencies are expressly limited by sections 9, 12 and 14 of the Intelligence Services Act to activities that are necessary for the proper performance of their functions. Given that there is a prohibition on the use of violence by ASIS, there can be no sensible suggestion that conduct constituting torture could be necessary for the proper performance of its functions. Indeed, the use of violence is explicitly prohibited by our law. I know, Senator Wright, that you make these contributions in good faith, but I am afraid that in both respects you are completely wrong.

In closing the debate, I thank in particular the members of the Parliamentary Joint Committee on Intelligence and Security, who made an important contribution to this discussion that resulted in recommendations the government has been glad to accept—through the amendments that have now been circulated. As I said in relation to the previous tranche of this national security legislation, this is a very good example of our system of parliamentary democracy working well. The executive government develops legislation as a result of a parliamentary inquiry. It then submits that legislation to the scrutiny of a parliamentary committee. The parliamentary committee examines the legislation and comes up with its own ideas, as we would expect. The government considers those ideas and, where it thinks they are good ideas, it adopts them. What this illustrates is that we do not think that all wisdom resides in the executive government. We want the parliament, in particular through its committees, to be our interlocutors. They have been in this area and the outcome commands bipartisan support and the support of all sensible commentators in this field. It is only criticised, really, by those who take what is, if I may say so, a rather paranoid fantasist view of the national security apparatus of our country. As a result of the process I have described, we arrive at a sensible position with appropriate powers governed by appropriate safeguards.

While I have access to sensitive and classified intelligence reports that I am unable to share publicly, media reporting over recent days points to an increasingly concerning picture—and not just in Syria and Iraq. According to media reporting, as many as 48 Nigerian fishermen were ruthlessly slaughtered over the weekend by members of the Nigerian Islamist group Boko Haram. As I have said on numerous occasions, the first priority of government is to ensure the safety and security of its citizens. It is instructive that the two sides of politics that, from time to time, take on the great and burdensome responsibility of government in this country—the coalition and the Australian Labor Party—both contributed to the development of and support these measures.

Currently, Australia's domestic counter-terrorism legislation concentrates on those intent on committing acts of terrorism. Advice from law enforcement is that some Australians have taken on the roles of supporting and facilitating Australians either to engage in terrorism offences in Australia or to travel to conflict zones and return to Australia with capabilities acquired from fighting or training with proscribed terrorist groups. The threat to Australians posed by these individuals is as great as the risk posed by those engaging in terrorist acts or foreign incursions. This bill expands the preventive purposes of the control order regime to counter this threat so as to allow the Australian Federal Police to seek control orders in relation to a broader range of individuals of security concern—namely, those who support or facilitate terrorists and foreign fighters. There is an innate logic in saying that, if the control order regime ought to be available to deal with foreign fighters and those who engage in actual terrorism, then it should certainly also embrace those who facilitate those very acts.

The bill also amends the Intelligence Services Act—the act that deals with the national security agencies other than ASIO—to streamline procedural authorisation requirements. This will ensure that our agencies are as agile as they need to be in the contemporary security environment, particularly in emergencies.

Following my introduction of the bill on 29 October, I referred it, as I have said before, to the Parliamentary Joint Committee on Intelligence and Security, which is chaired by my colleague Mr Tehan, the member for Wannon. The committee made 16 recommendations in its advisory report, which was tabled on 20 November, involving mostly minor changes to enhance operational and administrative safeguards and oversight mechanisms. Most importantly, the final recommendation of the committee was that the bill should be passed. As I announced on 24 November—yesterday—the government accepts or accepts in principle all of those recommendations, and I will move amendments to the bill to implement 11 of them. It is important to bear in mind that not all the recommendations of the committee were recommendations for changes to the bill as initially published. In addition, when the bill is debated in the House, the government will table a revised explanatory memorandum that includes additional information further elaborating on the justification for various measures in the bill—in line with the committee's recommendation.

The bill will make targeted amendments to the Criminal Code to further enhance the control order regime, as I have said, so as to ensure that it extends to the facilitation offence. Placing control orders on individuals engaged in facilitation of terrorism will help the AFP disrupt the activities of enablers, thereby preventing acts of terrorism in Australia and hostile activities overseas. The bill also implements recommendation 8 of the PJCIS inquiry into a previous bill, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill, by authorising the committee to review any proposed legislative instrument listing an alias or removing a former name of a terrorist organisation.

The PJCIS supported the need for amendments in the bill that, as I said a moment ago, would expand the control order regime to facilitators. These included: keeping the existing requirement for the AFP to provide an explanation to the issuing court of each of the requested restrictions, obligations and prohibitions; requiring the AFP to provide the Attorney with additional information when seeking his consent to request an issuing court to make an interim control order, including information about why the order should or should not be made; increasing the period of time before the AFP must seek the Attorney-General's consent after obtaining an urgent interim control order from four to eight hours, rather than 12 hours as initially proposed by the bill.

The government agrees with PJCIS recommendation 2 that the language of the bill should be consistent with the existing language of the Criminal Code. The Criminal Code uses some terms without defining them. To ensure greater explanation around the terms 'supports' and 'facilitates', the government will amend the explanatory memorandum to provide additional information about those terms, consistent with the language of the Criminal Code. The bill will make targeted amendments to the Intelligence Services Act to improve the ability of ASIS to provide timely support to the ADF in support of military operations and to streamline the statutory authorisation process to enable Intelligence Services Act agencies to collect intelligence on Australian persons overseas, in emergency circumstances—the Intelligence Services Act agencies being ASIS, the Australian Geospatial-Intelligence Organisation and the Australian Signals Directorate.

The need for the proposed amendments to the Intelligence Services Act has arisen in the context of the ADF's operations in Iraq against ISIL and the number of Australians who are fighting with or alongside terrorist organisations such as ISIL and participating in the hostilities in that theatre. As I noted in my second reading speech on the bill, these circumstances mean that there is a heightened need for urgent intelligence collection on such persons. While agencies have a legislative basis under the Intelligence Services Act on which to undertake all relevant intelligence and collection activities, the agencies have identified some procedural requirements which are not as streamlined as they need to be in circumstances of urgency or emergency. The bill proposes amendments, therefore, to clarify and streamline—without reducing safeguards—those procedural arrangements that enable Intelligence Services Act agencies to collect intelligence on Australian persons overseas, to enable them to operate effectively in circumstances of the kind I have outlined.

Importantly, the amendments do not expand the functions of the Intelligence Services Act agencies or confer any new powers that would enable agencies to engage in activities that they would currently be prohibited from undertaking. Rather, the bill is directed to improving procedural arrangements to ensure our agencies are as agile as they need to be in the contemporary security environment. The inclusion of an explicit function for ASIS concerning assistance to the ADF appropriately enhances the transparency of this role, rather than conferring a new function.

The PJCIS, in its advisory report, supported the need for all proposed amendments to address these issues. The PJCIS made nine recommendations in relation to the proposed reforms to the Intelligence Services Act, including recommendations for seven largely technical amendments to schedule 2 of the bill, primarily to improve ministerial control over relevant decisions made by agency heads in circumstances of emergency and to strengthen the oversight of the IGIS and the parliament over such decisions. As announced earlier today, the government has supported all of those recommendations. As I said before, I will move those amendments in the committee stage.

Of the PJCIS's two remaining recommendations on the Intelligence Services Act, one is directed to amending the explanatory memorandum of the bill to further explain the limitations on the ability of the foreign minister to authorise ASIS to undertake activities in relation to classes of Australian persons for the purpose of providing assistance to the ADF in support of a military operation. The government intends to include this detail in the revised explanatory memorandum.

I note that my department and relevant intelligence agencies gave extensive evidence to the committee on these matters, and the committee concluded that it was satisfied by the existing limitations provided for in the Intelligence Services Act and the bills introduced. Those submissions are on the public record. The committee also directed one of its recommendations to the Inspector-General of Intelligence and Security. It recommended that the IGIS pay close attention to one aspect of the amendments—that is, concerning the issuance of emergency authorisations via non-written means. While recognising that this is a matter for the IGIS, consistent with the statutory independence of that office, the government supports the principle that oral emergency ministerial authorisations should be subject to appropriate independent oversight by the IGIS. The bill has been prepared on the assumption that such rigorous oversight would, in any event, occur as a matter of practice. I note that a number of honourable senators have expressed their support for the implementation of the committee's recommendations. The government looks forward to working constructively with other senators when the amendments to the bill are considered in committee.

I conclude by once again thanking the opposition and those colleagues representing the overwhelming majority opinion of this chamber who recognise the need for these important reforms. The government is undertaking comprehensive reform of our national security to ensure that our counter-terrorism legislative framework is as effective as it can be and is targeted to the current national security threat. The bill will have a direct impact on the ability of our law enforcement and intelligence agencies to support our defence force in particular and to protect the Australian public. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.