Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I will continue with the remarks I was making the other day before we jumped to the tax bill. This bill, the Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010, has quite far-reaching consequences in that what it is really doing is extending the mandate of ASIO to allow it to conduct telecommunications intercepts on behalf of other agencies, which I think is actually quite troubling. As I was saying the other day, ASIO operates under fairly strict rules of engagement. Those are necessary. They have evolved over a long time in the post-war period. The reason for that is if we admit that we need clandestine intelligence agencies in Australia then there is immediately a tension between what they do on our behalf with taxpayers’ money in order to ostensibly provide for the safety of Australians here and overseas and the need for the promotion of democratic transparency.

As I said the other day, I have met across an estimates table with the Director-General, Mr Irvine, on a number of occasions. He is forced, effectively, by the act that his agency comes under to be politely dismissive of the questions that we put to him about what the agency actually does. We are referred back to the act. We are referred to the fact that there is oversight by the Inspector-General of Intelligence and Security. But the parliament, through estimates committees and the other tools of accountability that we have access to here on behalf of our constituents, are not able to find out very much about what this agency does. There is a degree of opacity, I suppose. The agency and the minister argue that this is necessary and that, by definition, this is how ASIO needs to act and to organise itself—and not just ASIO but the rest of the intelligence community.

There is no greater symptom of this form of thinking than in the freedom of information reforms that went through this place late last year. We simply provided blanket immunity from FOI for ASIO and other intelligence and security agencies. So you cannot even request their paperclip inventory under the Freedom of Information Act anymore, because everything is simply shrouded under this mantle of national security. Not even the CIA or British intelligence agencies are immune or completely exempt from freedom of information, but that is the kind of thinking that dominates in Australia. We think these agencies somehow have secrets which are so important that any imposition at all is completely out of order and somehow places our national security in jeopardy.

I note that the budget of ASIO has expanded. While the rest of the Commonwealth Public Service has been on some kind of efficiency drive, ASIO has in fact headed in the other direction. The Parliamentary Library provided us with a good budget review for 2010-11 of ASIO and related intelligence issues and we have seen several years of compounding growth in ASIO in its budget, in its staff and in the extraordinary fortress which is under construction on the shores of the lake. The total budget has risen from $427 million in 2009-10 to be now approaching around $717 million. We wait breathlessly to find out what the budget will be in 2011-12.

We have an agency with an important mandate, national security, with a rapidly expanding budget and a rapidly expanding staff that is about to go into its new home. And yet somehow we are meant to simply pass this bill today—and I understand that the opposition will be supporting it here, as they did in the House of Representatives—without any essential justification for why we are so dramatically expanding its mandate. And this expansion takes its out of its area when it is conducting telecommunications intercepts for other agencies.

But there is also the fact that henceforth it is going to be on call. This goes to the nature of the committee stage amendment that I have circulated and that I hope for support for from both sides of the chamber. People from other agencies who have the need for telecommunications intercepts or other forms of investigations are going to be able to use ASIO as effectively—as the Law Council have warned—a kind of mercenary agency. And they will be able to do this whether or not it has anything whatsoever to do with ASIO’s responsibilities under their act. That is an extraordinary expansion of ASIO’s powers. There is no justification for it. There appears to be a bipartisan consensus to simply let this sail through. We will not have that. The Australian Greens will certainly be voting against this bill, which we have not often done on telecommunications interception matters. This is a step vastly too far.

We need to be very careful before we expand the mandate of clandestine agencies with very sketchy reporting obligations to the people of this country. We need to have good reasons to allow their mandate to expand into mainstream law enforcement—and indeed tax matters, for heaven’s sake. That is where this appears to go. I am not sure who the minister representing will be. It may be Senator Wong. I foreshadow now that I have a number of questions that I will be raising in the committee stage about the reasoning behind this bill and about whether our interpretations of how this bill has been drafted are actually correct. Maybe you can disabuse us, if it is you, Senator Wong, of some of our concerns. But we will wait until the committee stage for that.

Amendments to the Telecommunications Interception Act seem to happen fairly frequently. They seem to come through here every couple of weeks, and I am only exaggerating by a little bit. There is a creeping expansion of the ability of Australia’s intelligence, security and law enforcement agencies to tap our phones, to read our web traffic and to use all of the tools of surveillance that are used around the world to spy on people, whether in democratic societies or not. The checks and balances that make us different here in Australia, we suppose and hope, are things like reporting obligations. That is the nature of the amendment that I have circulated.

If other agencies are going to be able to call ASIO in well outside its mandated area of expertise as described under its act then at the very least we need to know how many of those kinds of calls were made and how much agency resources are being consumed by that kind of work. These are the nature of the questions that I will be raising in the committee stage. I do not think that we want to create the appearance—and I am sure that this is not the government’s intention—of an agency without enough to do. We have just tripled its staffing complement, and we do not want to create the appearance that somehow, despite it very serious mandate around thwarting terrorist events before they occur, for example—which I understand is absolutely front and centre of the work of the agency—folk there have the spare time to take phone calls from other ministers and other departments requesting telecommunications intercepts and other services. Is that really the case? Do these people have that time? If they do, why are we hiring them in the first place? Why this enormous expansion of ASIO’s resourcing if they are then going to be sitting around waiting for phone calls from other ministers and other agencies asking for help. That is something that we need to clear up.

We see creeping expansions through amendments to the Telecommunications Interception Act and through the quite feeble response that we saw last year in the package of so-called counter-terrorism reforms, which effectively leave the architecture of the Howard era terrorism laws entirely in place. There have been some changes made, including some quite important ones, but most of them have been cosmetic or have even made matters worse. And all of this has occurred in the absence of an office that was meant to be established, the National Security Legislation Monitor—and we wanted to have the word ‘independent’ installed in the name—to work out for us whether these laws are necessary and proportionate.

Nothing that I have said here is intended as disrespect to the work that our intelligence and security agencies do. The flipside, I suppose, of its clandestine nature is that the work is thankless. Some of it is probably pretty dangerous and difficult. And you are not able to go to the newspapers and say what you have been up to. None of this is intended by way of disrespect for the core functions of these agencies. If, assuming that I am reading it correctly, it is about preventing acts of domestic or international terrorism, we—as a party founded on a pillar of non-violence—certainly have no problem with that. The problem is with the scope-creep that continues just a little bit at a time without any opposition or voice raised by the opposition in this parliament. I suppose I should not be surprised by that, because they were the ones who set down, in the rather grim years following the horrors of 9/11, the architecture that we are currently living under.

I look forward to the contributions that the opposition will make and perhaps some clarification in the minister’s closing statement if she is intending on giving one as to the purpose of this bill. Why are we so dramatically expanding the mandate of ASIO to allow it into so many other domains with so little description as to the reason or of the intended effect? Those are the questions that we hope to answer on the way through this debate. I again foreshadow that we will not be voting for this bill until we can be satisfied that it is in the nation’s interests—that cloudy and hazy concept of the national interest that we never quite seem to get around to defining. I look forward to some of these matters being clarified in the debate that is to come.

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

The Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010 will enable ASIO, ASIS, the DSD and the Defence Imagery and Geospatial Organisation, DIGO, to cooperate more closely and to assist in the performance of each other’s functions to enable the sharing of information and to make consequential amendments to the telecommunications interception regime. The intention of the bill is to ensure that the various security, intelligence and law enforcement agencies can respond quickly to a threat, share information and cooperate within their defined roles in multi-agency teams.

The government recently announced the establishment of the Counter Terrorism Control Centre, which is the principal example of the interoperability sought to be facilitated by this bill. In particular, ASIO has expertise in areas that would assist law enforcement agencies to have access to information. The bill will enable ASIO to provide assistance to those agencies in relation to telecommunications interception, technical support, logistics and analytical assistance. In some circumstances telecommunications data may be obtained to find missing persons or to access stored communications of victims of crime whose consent cannot otherwise be obtained.

Each of the security and intelligence agencies has its charter or delimited areas of operation to ensure that powers entrusted to them are not abused. The intention of the bill is not to authorise operations outside the agencies’ charters but to permit cooperation for limited purposes so as to enhance interoperability and approved joint activities requiring information sharing.

The coalition has been briefed on this legislation by representatives of the Attorney-General’s Department and the security agencies. I am assured that the agencies do not intend to trespass outside their statutory limitations but rather seek to use their specialist skills towards a common purpose. There is no reason to doubt the desirability of that outcome or the integrity of the organisations and their offices. However, the legislation is somewhat densely drafted and, given the intrusive powers to which they refer, it is important to ensure that the established boundaries are maintained.

The bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee, and I am pleased to see that it has bipartisan support and that the committee’s recommendations have been adopted in the government’s amendments and adverted to in the replacement explanatory memorandum. There are also amendments to adjust the membership of the Parliamentary Joint Committee on Intelligence and Security. The membership of that committee is to be expanded from nine to 11 to accommodate the member for Denison, who demanded a seat as part of the price for his support of this government. I make no observations on the appropriateness of that course other than to say that the amendment to maintain the representation of coalition members and senators has our support.

The coalition cannot support the amendments circulated by the Australian Greens. These amendments would require details of the assistance sought and rendered under the arrangements in this bill to be published in ASIO’s annual report. The coalition is concerned that these details may be highly sensitive. The joint committee is empowered to seek such information and to determine, on advice, whether publication would potentially compromise security. That, I think, is more appropriate than requiring publication in the annual report, and the coalition sees no reason to call into question the efficacy of the joint parliamentary committee process. Accordingly, the coalition supports the bill, together with the government amendments on sheet AF255.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I stand to speak, like my colleague Senator Brandis, broadly in support of the Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010 and to make some observations as the Deputy Chair of the Senate Legal and Constitutional Affairs Legislation Committee, which looked at this very bill. The committee reported in November 2010 and acknowledged that that was a unanimous report. We were provided with a reference on 30 September, so it was a reasonably quick effort. We reported on 24 November 2010. We deliberated and came to a common conclusion that the government’s intent was certainly supported but that in terms of dotting i’s and crossing t’s the effort was not good enough. We made two recommendations that I am advised have now been accepted by the government.

I think this confirms again the credibility and the efforts of Senate committees across the board and the good work that they do. I am pleased to stand here in this place and say that I am proud to have been part of that process of trying to make a difference in improving our laws wherever possible. Certainly in this case it has happened. There has been a significant improvement and the government has, at least to its credit, taken on board the suggestions and recommendations and have come back to us. I put on record my thanks particularly to the submitters and those who appeared before our inquiry, including in Canberra. I note that the Communications Alliance, particularly the Australian Mobile Telecommunications Association, put forward some very thoughtful, inquiring and interesting points that have been reviewed and considered by our committee. Of course, as usual, the Law Council of Australia made submissions and put forward very comprehensive views. Again, I put on record my thanks and that of others in this place to the Law Council of Australia for their good work again and again when it comes to expressing views that are comprehensive and thorough. Those views are appreciated by the Senate and by the Senate committee process. Indeed, we had 16 submissions in all, and I thank them for doing that.

The committee came to a common understanding that Australia’s national security agencies and law enforcement agencies should have access to the best information available and the best technical expertise available and that that should then be acted on in the national interest and the public interest. Certainly the bill broadens security agencies’ powers, but that needs to be balanced with the public interest in law enforcement and in national security agencies sharing information to facilitate their legitimate activities and with the public interest in protecting the personal information of individuals. If there is a less intrusive way of achieving these objectives, then we should consider that seriously and try to implement it. There may be less intrusive ways of achieving a similar outcome, and those options always need to be considered. The Information Commissioner put evidence to our committee accordingly.

We made it very clear that in the view of our committee there was a lack of explanation by the department—by the government—in the explanatory memorandum to the bill. It is our view that much of the information provided in the department’s answers to questions on notice and supplementary material should have been included in the explanatory memorandum. We got it on one hand, but it was not provided in the explanatory memorandum, which of course is on the public record and should be attached and complement the bill and its various parts.

In conclusion, yes, we have made two recommendations—in fact, three, with the third one being that the previous two be accepted—and my understanding, and the coalition’s position, is based on Senator Brandis’s position put in this place, which is that the government has responded to our recommendations and has acted. It is appreciated. When we are dealing with national security and with what is in the national interest, it is a difficult issue to try to get the balance right so that the powers are not too intrusive. With the Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010 I think we are heading down the right track. But these things should remain under constant and careful review, and that is definitely supported.

(Quorum formed)

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

I would like to thank senators Ludlam, Brandis and Barnett for their contribution to the debate on the Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010. I note that Senator Ludlam raised concerns that this bill may expand ASIO’s mandate. This bill does not expand ASIO’s collection powers or remove any oversight mechanisms. I also note Senator Brandis’s concerns about the risk of operational and sensitive security information being made public. I note that the senator therefore supports this bill and not the Greens proposal.

I will begin by thanking the Senate’s Legal and Constitutional Affairs Legislation Committee for its work in the examination of the bill. I also thank all those who contributed to the inquiry. I know that the Attorney-General also appreciates the efforts of the committee. The committee reported that it appreciated the importance of ensuring that Australia’s national security agencies and law enforcement agencies have access to the best information and technical expertise available. The committee recommended that the Senate pass the bill subject to further guidance on the proposed amendments.

In relation to the proposed amendments, which will require carriers and service providers to inform the Communications Access Co-ordinator of proposed changes that would significantly affect their ability to comply with their statutory obligation to assist interception agencies, the committee recommended that the explanatory memorandum be revised to provide greater clarity. The government accepts this recommendation and has revised the explanatory memorandum. The explanatory memorandum clarifies that the circumstances in which schedule 2 applies are the same as those currently contained within section 201 of the interceptions act. Regrettably, section 201 of the interceptions act does not facilitate notice of changes sufficiently early in the development of changes to allow for effective consultation. This early notification will ensure that carriers and service providers can meet their obligation to assist, and avoid the need for costly alterations once a change has been implemented.

The committee further recommended that the Attorney-General’s Department develop guidelines to assist industry in understanding what changes must be notified under schedule 2 of the bill. The government accepts this recommendation and the Attorney-General’s Department will, as a matter of priority, develop guidelines for industry to assist them in meeting this regulatory obligation.

In relation to the proposal to enable enforcement agencies to apply for a stored communications warrant to access the stored communications of a victim of a serious contravention, the committee recommended that the explanatory memorandum be revised and that it provide additional detail about where privacy issues may arise. The government accepts this recommendation. The explanatory memorandum has been revised and explicitly states that the issuing authority must consider how the privacy of the victim of crime may be interfered with by accessing the stored communications. Additionally, the explanatory memorandum outlines that the gravity of the interference on privacy is a question of fact. It is to be determined on the principles of proportionality, a reasonable expectation of privacy and a targeted consideration of the circumstances of each case.

In relation to the proposed amendments contained in schedule 6 of the bill to enable further assistance, cooperation and information sharing amongst Australia’s national security community, the committee recommended that the explanatory memorandum be revised. The government accepts this recommendation and has revised the explanatory memorandum. The replacement explanatory memorandum further outlines the existing limitations and how the legislation does not currently meet the operational requirements of these intelligence and law enforcement agencies.

The existing legislation can hinder cooperation occurring to its fullest extent, such as where joint or multiagency teams are formed to provide a closely integrated whole-of-government response to a national security issue. The current legislative limitations to information sharing have been identified through practical experience. The amendments will ensure that ASIO can pass certain incidentally obtained information to the relevant authorities where appropriate. These amendments do not provide ASIO with new powers to collect information. The existing strong accountability and oversight mechanisms will continue to apply, and the Inspector General of Intelligence and Security will continue to have oversight of these activities.

The government has proposed amendments to the bill to insert schedule 8, which will amend the Intelligence Services Act 2001. The amendments will provide an opportunity for greater representation for members of parliament on the Parliamentary Joint Committee on Intelligence and Security by increasing the membership from nine to 11 members. The amendments also increase the quorum for the committee from five to six members. This reflects the increase in the committee’s overall membership and ensures that a majority of members are required for a quorum. Members appointed to the committee before the commencement of these amendments are not affected. The amendments will also ensure the continuance of evidence taken by or produced to the committee. The committee provides important scrutiny of the administration and expenditure of Australia’s security and intelligence organisations.

The bill amends the Telecommunications (Interception and Access) Act 1979, the Australian Security Intelligence Organisation Act 1979 and the Intelligence Services Act 2001 to remove technical and other barriers to facilitate greater cooperation, assistance and information sharing between law enforcement and intelligence agencies. If agencies are able to draw on the expertise of others within the law enforcement and national security communities then vital information is less likely to fall through the gaps. These measures will build on previous steps taken to facilitate intelligence sharing and greater interoperability, particularly in multiagency teams and task forces, which are important in responding to our increasingly fluid and evolving national security environment. Ensuring that our national security and law enforcement agencies have the ability to respond to threats to our national security is a key priority for this government.

As I conclude, there are a few extra comments that I would like to make in response to Senator Ludlam in particular and his question of why the amendments are needed and what the purpose of the bill is. The main purpose of this bill is to enhance cooperation and information sharing among the national security and law enforcement communities. Currently, under the interception act, law enforcement agencies can only seek assistance from other law enforcement agencies in exercising an interception warrant. This distinction does not reflect the cooperative basis on which law enforcement and security agencies are expected or required to work. By ASIO being included within this group, ASIO will have greater flexibility to support whole-of-government efforts to protect our communities. Amendments to the ASIO Act and the Intelligence Services Act will also facilitate closer cooperation and assistance and enhance information sharing within Australia’s national security community. The bill includes amendments that enable ASIS, DSD, DIGO and ASIO to cooperate more closely and assist one another in the performance of the other agency’s functions. The amendments will provide national security agencies with greater flexibility to work together and to harness resources in support of key national security priorities.

I also note that Senator Ludlam referred to ASIO operating under the ‘cloak of darkness’. I want to put on the record that ASIO operates in accordance with its legislation, which has strict controls. ASIO is also accountable to the Attorney-General and the Parliamentary Joint Committee on Intelligence and Security, as well as being subject to strong oversight by the Inspector-General of Intelligence and Security. The inspector-general is a strong oversight mechanism independent of government and charged with ensuring that the security and intelligence agencies act with legality and propriety. This bill does not change any of the strong accountability regime that already exists.

In response to Senator Ludlam’s queries with respect to the frequent amendments to the T(IA) Act, let me say that this bill facilitates broader technical assistance in relation to telecommunications interception and other areas of expertise including logistics and analytical assistance. The assistance in the area of interception is to provide expertise to assist law enforcement where they lack the capabilities to effectively investigate serious crime. The interception act requires ongoing consideration and review to ensure that it meets the challenges of new and emerging technologies.

On that note, I conclude and thank all senators and those who participated in the inquiry for their assistance in this matter.

Question agreed to.

Bill read a second time.