James Paterson (Victoria, Liberal Party) Share this | Hansard source

I rise to make a contribution on the Foreign Intelligence Legislation Amendment Bill 2021. I'm grateful to have the opportunity to do so on the legislation itself, as, when the Parliamentary Joint Committee on Intelligence and Security tabled its report on the bill last night, I didn't have the opportunity to contribute, given the other disruptions to the program. I'm going to confine my contribution to a couple of key areas. Firstly, I want to discuss the conduct of the inquiry by the Intelligence and Security Committee, particularly in light of the comments made by Senator Thorpe. I'll do my best not to take the personal reflections too personally. I also want to discuss the threat environment that Australia is operating in, which illustrates the need for this legislation. I will then speak about the key provisions of the bill and the safeguards, and, if I have time, I'll talk about some of the case studies that are relevant to this bill. I'll also canvass the committee's recommendations.

Firstly, to address the comments made by Senator Thorpe about the PJCIS's conduct of this inquiry, it's certainly not the preference of the PJCIS to complete its inquiries in private, nor to do so quickly. It is rare for us to do so, although it is not without precedent. In 2018, when considering ASIS amendment bills, we conducted a similarly swift inquiry. It is usually the preference of the committee to conduct our inquiries in public and over a lengthy period of time. Indeed, some of our inquiries are so lengthy that they go for many months, if not years. However, there were unique circumstances in this bill which required the committee to do this and were why, after careful consideration, the committee unanimously and on a bipartisan basis agreed to do so.

Those unique circumstances related, firstly, to the sensitive nature of the legislation and the capability concerned by the legislation and, secondly, to the unusual operating environment that we're all in, which really should be self-evident, as a result of the COVID outbreak not just in New South Wales and Victoria but also here in the ACT. It is not possible to be absolutely certain about the sitting calendar going forward, and it would be unfortunate if the parliament began consideration of a sensitive bill like this but was not able to conclude its consideration of the bill due to a COVID outbreak. That necessitated a quick and private inquiry. I want to assure all senators and, indeed, all members of parliament that, despite the constrained circumstances the committee was operating under in the conduct of this review, we nonetheless fulfilled all of our responsibilities to the parliament and, through the parliament, to the Australian people to test robustly the rationale for this bill, the need for this bill; to test the individual provisions of the bill; to test the safeguards of the bill; and ultimately to make a number of recommendations about the bill, which I will briefly explain.

The committee has made three recommendations, one of which is that the bill be passed. Prior to the bill being passed, we've also recommended that if the mandatory procedure inserted by clause 11C(6) were to be issued or varied by the Attorney-General the committee be notified of that immediately and then briefed on it. I will come in a moment, when I talk about the provisions of the bill, to why the mandatory procedures are important and why it's important that there is parliamentary scrutiny of those procedures. I'm pleased that the government has accepted that amendment to ensure that the committee will be able to fulfil that scrutiny function on behalf of the parliament. The second recommendation that we made was that the bill be reviewed by the committee not less than five years from when the bill receives royal assent. That does not mean that the committee has to wait for five years to commence the bill; it means that before the end of five years the committee must consider its right to do an inquiry. It is not uncommon for the committee to occasionally launch inquiries prior to that time. For example, the committee has two statutory reviews that it is currently undertaking. One of them is of the Foreign Influence Transparency Scheme. That was due to commence later this year, but the committee decided to bring it forward and open it up now so that we could conduct our statutory responsibilities. The same would apply to this bill. The wording is that 'not less than five years from when the bill receives royal assent' the committee may conduct an inquiry. I'm pleased that the government has also accepted that recommendation.

It's important that national security legislation, including legislation of this nature that amends the Telecommunications and Other Legislation Amendment (Assistance and Access) Act, not be a set-and-forget, that it not be passed and left on the books and never examined again in the future. That's why the committee made its second recommendation, and it's why a significant workload of the committee is reviewing existing legislation that has been previously passed. Sometimes I reflect that legislation in other areas of government which is not subject to that kind of robust re-examination and review would benefit from it, frankly. Some of the economic regulation that this parliament agrees to is passed and then very rarely ever reviewed again, at least in a parliamentary sense, and, frankly, I think it would benefit from it. But it's quite often the case with national security legislation, as is appropriate, that it have a higher degree of scrutiny.

I want to turn now to the threat environment that we are operating in, which is a very serious one. It illustrates the need for legislation like this to ensure that our foreign intelligence collection capabilities are up to date, that they keep pace with modern technology and that they're not unduly limited by technological change or legislative loopholes that are not functioning as intended. The director-general of ASIO, Mike Burgess, in his annual threat assessment earlier this year spoke about the range of challenges that ASIO faces, including and especially terrorism, which has been a very strong focus of ASIO since September 11. In that threat assessment he also forecast that it won't be too far in the future, given current trends, that foreign interference, espionage and related offences will become one of the largest focuses of ASIO's work. That is because we are operating in a very different security environment from the one we were operating in just five years ago. Foreign interference and espionage is at unprecedented levels—higher than they have ever been at, including at the height of the Cold War. Mr Burgess's predecessors, such as Duncan Lewis, have publicly confirmed that the overwhelming driver of that is activity from and on behalf of China.

In this environment, it's vital that all of our intelligence agencies—our intelligence community—are well equipped to counter those threats, and the collection of foreign intelligence helps them to do that task. It helps them to identify potential threats to not just Australian's lives but also our way of life, and to identify the way in which foreign governments may attempt to intervene in our democratic systems. It also enables them to keep appropriate tabs on Australians who may be involved with foreign terrorist organisations. So it's really crucial, given that serious threat environment and given the rapid change in that threat environment, that those powers be adequate for their intended purpose.

Turning now to the schedules of the bill, I want to comment on the two key schedules of the bill, on why they are necessary and on why the committee, in its examination of the bill, agreed with the government's proposition that they are necessary. From the committee's report:

Schedule 1 is designed to restore the foreign communications warrant to its original scope and function. The removal of the strict prohibition is accompanied by robust safeguards to protect domestic communications in the same way the original prohibition intended.

I'll come to more detail of that in a moment. Secondly, the report states:

Schedule 2 of the Bill 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, requesting a warrant for the purpose of collecting information concerning an Australian citizen or permanent resident is prohibited …

Schedule 1, which relates to amendment of clause 11C, the foreign communications warrant, currently authorises the interception of foreign communications for the purpose of obtaining foreign intelligence about the matter specified in the warrant. The challenge that arises here with the existing foreign communications warrant is that, if an agency inadvertently intercepts domestic communications—that is, a communication that both starts and ends within Australia—that is prohibited and is a breach of the law, even when that interception is entirely inadvertent or unavoidable.

That made sense in an earlier technological era when it was very easy to identify where communications originated and where they concluded. Where it was very obvious that they originated and concluded completely outside of Australia, that was captured within the scope of the legislation. Because we had things such as reliable geographic identifiers and indicators such as a country code, a city code or an exchange code, a foreign telephone number was readily identifiable as a foreign telephone number and was therefore permitted for this type of collection activity. That, obviously, has radically changed due to advances in technology, particularly internet based communications and mobile applications. That means that it's extremely difficult for that communication to be clearly identified at the point of interception as being either foreign or domestic, because of the way in which some of our technology companies choose to route the communications of their applications.

For our intelligence agencies to avoid breaching the Telecommunications (Interception and Access) Act, they understandably do not want to take any risk of breaching the law, because they take compliance with the law very seriously. They therefore have to constrain their collection of foreign intelligence to avoid even that inadvertent attempt, and that means that, essentially, the picture that Australia is getting of the world is severely constrained and does not have the full benefit of what would be lawful, permitted collection if we were able to overcome this technical issue.

The changes to the legislation will allow intelligence agencies to intercept communications, including where the geographic location of the sender or recipient is unclear prior to their being intercepted, but there will be robust safeguards to ensure that, if there are any inadvertently collected domestic communications, they will be quickly screened and quickly destroyed. That relates to the mandatory written procedure under section 11C(6). The Attorney-General will mandate a procedure for what the intelligence agencies are to do when they may inadvertently collect Australian sourced communications and for how they must treat those and destroy them. It's for that reason that that is a very important mandatory procedure, and the committee have asked that we have the opportunity to be notified and briefed on that so we can consider it and, if we have any concerns, have an opportunity to address them, and that's why it's important that the government has agreed to that.

The second schedule in the bill relates to Australians and permanent residents acting on or behalf of a foreign power. Currently, it's lawful for our intelligence agencies to monitor these people when they're operating overseas. If an Australian citizen is in the employ of a foreign government and acting on their behalf, it is lawful to intercept their communications overseas. It's not lawful, for that purpose, for them to continue to be collected upon when they enter Australia. That is a really arbitrary distinction. If you are an agent of a foreign government and are operating either in Australia or overseas, you pose an equally serious threat to our national security. Arguably, someone operating on behalf of a foreign power within Australia may pose a greater threat to Australia's national security because of their potential access to information here onshore, but currently legislation prevents our intelligence agencies from adequately collecting on those Australians when they are onshore.

The legislation proposes that they should be able to do so. This responds to our recommendation from Dennis Richardson in his comprehensive review of the intelligence community and it is a sensible change that deals with a loophole. It is really an arbitrary distinction. If someone acts on behalf of a foreign power, wherever they are in the world, it is of legitimate interest to Australia that they be able to be surveilled appropriately. The safeguards are very robust; they include all the usual oversights that you would expect of intelligence powers, including the Inspector-General of Intelligence and Security and, through the IGIS, ultimately the committee and the parliament. We intend to fulfil our responsibilities robustly in relation to that.

I think it's worth drawing the attention of senators and members to an appendix in the committee's report that includes a table of comparative powers in Five Eyes countries and comparative protections and safeguards. What that table illustrates is that the proposed protections included in this legislation are equal to or greater than every one of our Five Eyes partners. Australia will have much more robust protections than, for example, Canada and New Zealand. Australians can take comfort from the fact that, although we're permitting our agencies to engage in this important collection activity, we will do so with really robust and adequate safeguards to ensure that the privacy, freedom and rights of Australians are protected, as they should be, by our intelligence agencies.

I don't think I'll have time to go into the case studies; perhaps other senators will have the opportunity to do that. I want to conclude by thanking all members of the PJCIS for the very collegiate way in which they engaged in this inquiry. As I alluded to, it was a challenge to complete the inquiry under the conditions we were subject to, but committee members very diligently applied themselves to that task. I would like to recognise in particular the deputy chair of the committee, Mr Byrne, and the two Labor shadow ministers on the committee, Senator Keneally and Mr Dreyfus, who diligently considered this legislation in a bipartisan and constructive way in the national interest. And I want to thank the government for anticipating the constraints to be imposed upon the committee in its conduct of this inquiry and its early engagement with the committee and with members of the committee to ensure that we were adequately informed and comprehensively briefed so that we could form an informed opinion about this legislation and could report in the required time frame for the parliament. If we have to engage in inquiries in this way, this was an exemplar. I commend the government for that. If we ever face these circumstances again, I encourage the government to replicate the way in which this inquiry was conducted.