Kristina Keneally (NSW, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Hansard source

I rise to speak on the Foreign Intelligence Legislation Amendment Bill 2021 and, at the outset, indicate that the opposition will be supporting this legislation. This bill responds to recommendations of the Richardson review of the national intelligence community and addresses gaps in the foreign intelligence warrant framework that arise from technological change. The bill introduces new safeguards and retains prohibitions on using foreign intelligence warrants for the purpose of collecting domestic communications. This bill has been the subject of an inquiry by the Parliamentary Joint Committee on Intelligence and Security, and a report has been tabled in the parliament.

The Foreign Intelligence Legislation Amendment Bill amends the Telecommunications (Interception and Access) Act and the Australian Security Intelligence Organisation Act to address gaps in Australia's foreign intelligence warrant framework. These gap, which have arisen from technological change, were considered by the Comprehensive Review of the Legal Framework of the National Intelligence Community, conducted by Dennis Richardson AC. As I've said, these legislative changes address and fix these gaps. 'Foreign intelligence' refers to the intelligence about the capabilities, intentions or activities of people or organisations outside of Australia. Without the proposed changes in the bill, gaps in foreign intelligence collection will continue to grow and Australia will not have visibility of possible threats to Australia and its security. The bill makes no changes to the existing safeguards for foreign communications warrants. These warrants cannot be issued for the purpose of intercepting domestic communications, and communications that are identified as domestic must be destroyed.

The Richardson review also recommended reforms to allow foreign intelligence to be collected on Australian citizens and permanent residents in Australia who are acting on behalf of foreign powers. The bill does continue the prohibition of collecting information concerning an Australian unless the ASIO director-general reasonably suspects the Australian is acting for, or on behalf of, a foreign power.

The proposed changes in this legislation to the foreign communications warrant bring Australia into alignment with other Five Eyes partner countries. However, Australia will retain stronger safeguards than our Five Eyes partners when it comes to the use of foreign intelligence communication warrants, including the continuing prohibition on collecting domestic communication.

The ability for ASIO to obtain foreign intelligence warrants has a long history and arises out of the second Hope royal commission in 1986. Originally, the foreign intelligence warrant framework contained two warrants: a warrant under the TIA Act authorising interception of a single service, such as a single phone number; and a warrant under the ASIO Act authorising the use of ASIO's pre-existing special powers. In response to technological change, including the uptake of mobile phones and the development of the internet, the telecommunications warrant was updated in 2000 by introducing an amendment that permitted foreign communications warrants for a more expansive definition of telecommunication technologies and where it was not possible to identify a particular person or individual. That amendment still confined the warrants to foreign communications only.

The foreign communication warrants allow intelligence agencies to identify threats to Australia's national security, including malicious cyberactivity, terrorist communications and indications of foreign intelligence services threatening Australia's interests. The foreign communications warrant prohibits the interception of domestic communications that both start and end in Australia, even where the interception is inadvertent or unavoidable. Previously, it was rather straightforward to determine whether the point of interception of a communication was foreign or domestic—for example, the use of country codes on a fixed line. The challenge that now arises because of technological change, particularly the use of internet based communications and mobile applications, is that now it is not always possible to know at the point of interception whether a communication is foreign or domestic. And so, to avoid breaching the TIA Act, intelligence agencies do not intercept foreign communications where there is even the smallest risk of incidentally intercepting domestic communications. This places a considerable constraint on the collection of foreign intelligence. So the bill amends the TIA Act to overcome the difficulty agencies face in being able to distinguish between a foreign and a domestic communication at the point of interception.

The bill allows the ASIO director-general to apply for a warrant authorising the interception of a communication for the purpose of collecting foreign communication, including where the geographic locations of the sender and the recipient cannot be determined prior to interception. The bill also introduces strict safeguards to protect domestic communication if it's inadvertently collected. These safeguards protect domestic communication in the way the original prohibition intended, and include:

screen for domestic communications that may have been intercepted

destroy all records of any domestic communication so identified (unless the communication relates, or appears to relate, to activities that present a significant risk to a person's life), and

notify the Inspector-General of Intelligence and Security (IGIS) of any identified domestic communication that relates, or appears to relate, to activities that present a significant risk to a person's life …

The existing safeguards for foreign communication warrants will continue to apply—that is, that the Attorney-General must be satisfied, on the advice of the Minister for Defence and the Minister for Foreign Affairs, that the collection of foreign intelligence is in the interests of Australia's national security, Australia's foreign relations or Australia's economic wellbeing. The IGIS will continue to have oversight of the agencies' activities under these warrants and will oversee compliance with mandatory procedures issued by the Attorney-General. The IGIS has extensive powers akin to those of a standing royal commission.

The bill also enables the Attorney-General to issue foreign intelligence warrants to collect foreign intelligence on Australians in Australia who are acting for or on behalf of a foreign power. Currently, ASIO can collect foreign intelligence offshore on an Australian working for a foreign power, but that same intelligence cannot be collected inside Australia under a warrant. The Richardson review identified this gap in warrant powers and recommended this legislative change, noting:

An Australian serving the interests of a foreign government, for example, remains an agent of a foreign power whether they are onshore or offshore.

'Foreign power' is defined under the ASIO Act as a foreign government, an entity that is directed or controlled by a foreign government or governments, or a foreign political organisation.

Safeguards will also accompany this change. The law will continue to prevent the request of a foreign intelligence warrant on Australian persons who are not acting for or on behalf of a foreign power. The ASIO director-general must include in the warrant the details about the ground on which he or she suspects the person is acting for or on behalf of a foreign power. The Attorney-General must not issue the warrants unless he or she is satisfied that the person is acting for or on behalf of a foreign power. The Attorney-General must be satisfied, on the advice of the Minister for Defence and the Minister for Foreign Affairs, that the collection of foreign intelligence is in the interests of Australia's national security, Australia's foreign relations or Australia's economic wellbeing. The IGIS will continue to have oversight of agencies' activities under these warrants. As I said, the IGIS has extensive powers akin to those of a standing royal commission.

As I stated at the outset, this bill has been the subject of a review by the Parliamentary Joint Committee on Intelligence and Security, and the report of the PJCIS recommended, in a bipartisan fashion and in the national interest, two changes to the legislation. One was on the point of the mandatory written procedure that must be developed by the Attorney-General. The committee recommended that it is also provided with a briefing on the procedure, as soon as practicable, once it has been issued, and I note that the government has accepted this recommendation. The committee also made a recommendation that the bill be amended so that the Parliamentary Joint Committee on Intelligence and Security may conduct a review of the amendments made by this legislation not less than five years from its royal assent. I note that the government has accepted this recommendation as well.

The changes recommended by the Richardson review are necessary. Labor supports these changes, noting that we take seriously the advice of the Richardson review and we also take seriously the advice of the ASIO director-general and our national security agencies. When considering changes such as these, Labor applies the following principles: Are the powers necessary? Are they proportionate? Do they have appropriate safeguards for Australian citizens, particularly for the rights of Australian citizens? Are the changes accompanied by appropriate oversight and review? It is my judgement and the judgement of the opposition that the changes proposed in the foreign intelligence legislation before us today are necessary, are proportionate, do have adequate safeguards and do retain the original provisions of the Hope royal commission that prohibit ASIO from using these warrants to collect information and communication on Australian citizens in Australia—