Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that the bill stand as printed.

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

In the few minutes remaining to us I think that, rather than moving the Greens amendments, I might just put a fairly simple question to the minister. Maybe the government has had a bit of time to think about this one now: what will this bill allow ASIO to do that it cannot currently do?

Nick Sherry (Tasmania, Australian Labor Party, Minister Assisting the Minister for Tourism) Share this | Link to this | Hansard source

The amendment will mean that ASIO's foreign intelligence function is complementary to the functions of Australia's foreign intelligence agencies. The ASIO Act is currently limited to intelligence about foreign powers, which may not cover the same range of intelligence about individuals and non-state or non-political organisations that are covered by the Intelligence Services Act, so I emphasise that 'foreign powers' could be taken to read as being different from intelligence about individuals and non-state or non-political organisations.

An officer of the Attorney-General's Department gave a number of examples of the sorts of scenarios where the proposed amendment might apply at a Senate estimates hearing on 21 May 2011. The examples are: the proposed amendment will enable foreign intelligence collection agencies to better counter the activities of weapons proliferators. The proliferation of nuclear, biological, chemical and conven­tional weapons and related technologies is a complex global issue, and those involved include individuals and companies working in and across multiple countries.

Sitting suspended from 18:30 to 19:30

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

Welcome, Senator Feeney. Maybe you can shed a little bit more light than Senator Sherry has.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I understand we were in the middle of having a conversation about cyber­security. In considering the cyberattacks on Australian government and commercial infrastructure related information networks, I understand that cyberattacks are an emerging threat to Australia's national security and national economic wellbeing. There is also a concern about major organised crime syndicates and their capacity to be effective in attacking the Australian banking sector. That would mean that there would be a significant loss of confidence in the banking system, and that would have collateral effects through our whole financial and economic system and in that way would do considerable damage to our national economic wellbeing. I understand that was the point that Minister Sherry was halfway through when we broke for dinner. From this moment onwards I am happy to take questions as I hear them.

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

I have a couple of questions before I discuss and then move the set of amendments I have proposed. The issue that I had put to the minister before we got up for dinner was the purpose of the bill—what it is actually for—because nobody has really been able to satisfactorily identify what you need ASIO to be able to do that it cannot already do. In the pursuit of its quite legitimate surveillance and intelligence-gathering activities on organisations engaged in politically motivated violence, terrorism and so on, I do not think there is anything controversial about ASIO going ahead and doing that. What becomes controversial is when we quadruple its budget and staffing allocation, build it a fortress down on the lake and then completely open the floodgates to the kind of investigative work that it can undertake.

This is not about new powers for ASIO. That was something that the minister said before we rose for dinner to try to ease my mind that ASIO was not getting any new powers here. That is not the point. What they are being given is the ability to exercise the powers that they currently have across a vastly broader range of groups, individuals and now, I think quite clearly, civil society organisations.

I will put to you a brief quotation from the submission of the Law Council of Australia to the Senate Legal and Constitutional Affairs Legislation Committee on 5 May. They told us that the threshold tests—the boundaries around which ASIO is permitted or not permitted, either on their own motion or, later, if ASIO is being investigated by the IGIS as to whether they were inside or outside their mandate—are important. Mr Grant, the Secretary-General of the Law Council of Australia, said:

These threshold tests are important. If they are framed too broadly they provide no safeguard against the misuse or overuse of ASIO's powers. Further, the effectiveness of the oversight function of the Inspector General of Intelligence and Security is seriously undermined because, ultimately, the ASIO Act provides the framework against which that Office assess the lawfulness and appropriateness of ASIO's activities.

My question to you, Minister, is how, even if you accept that the government does need to expand ASIO's mandate—and I do not for a moment—you answer the quite legitimate point raised by the Law Council. You have thrown the baby out with the bathwater. You have gone so far that there will henceforth be no benchmarks against which to assess whether ASIO is acting legitimately or not, because you have so broadened the range of targets that it may now surveil.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I thank the senator for his question. While your question is a reasonable one, I do not accept your conclusion. The first point I would make is that the amendments to the foreign intelligence collection provisions are not too broad. We must remember that ASIO's foreign intelligence role is a role that is defined by and complements the functions of the other existing intelligence agencies, which are also responsible for obtaining foreign intelligence. ASIO's foreign intelligence function is intended to enable similar intelligence to be collected where it is necessary to collect foreign intelligence within Australia. For the ASIO foreign intelligence function to operate as a truly complementary function, it needs to reflect the same intelligence and purposes for which that intelligence may be obtained under the Intelligence Services Act 2001. If they are not aligned, there are some potential gaps in Australia's intelligence coverage.

I would also make the point that the threats that are identified to Australia in this space are forever changing, and it is our challenge as legislators to make sure that the agency remains continually equipped with the powers it needs to discharge the function we all require of it. So the ASIO Act being currently limited to intelligence about foreign powers may mean that ASIO is not able to cover the same range of intelligence about individuals, non-state and even non-political organisations and actors that are covered by the Intelligence Services Act.

The obvious issues we need to turn our minds to in that respect are the proliferation of nuclear, biological, chemical and conventional weapons. Of course, what flows from that is the need to have a look at related technologies in a complex global environment and the multiplicity of actors that might be operating in that space, and that then may mean individuals and com­panies working across multiple countries. I know, from having listened to you talk about nuclear proliferation issues in the past, you are utterly familiar with those questions. In addition to those, it will facilitate oppor­tunities to detect cyberattacks. Cyberwarfare, I guess, is an increasing focus not just of commentators, not just of intelligence organisations, but also of us legislators. So my answer is that, as ASIO's role needs to countenance new technologies, the internet and increasingly complicated networks that may span non-state actors, for all of those reasons this legislation is giving ASIO powers that accord with its traditional task but enable it to move across the changing environment of organisations and non-state actors that it must keep an eye on.

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

I thank the minister for his response. Minister, can you clarify for us that, for the 60 years of the Cold War and the entire period of the existence of this agency, they have been unable to track nuclear, chemical and biological weapons if they are in the hands of non-state actors? I find that utterly incredible.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

It is probably fair to say that I am not in a position to confirm that at all, because I am not the minister to whom ASIO reports and it is not the sort of operational information that would properly find its way into my hands, and it has not found its way into my hands. So, no, I am unable to confirm that.

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

Minister, I just wonder then whether, as a courtesy, you could put that question to the officers from the department who are sitting immediately on your left and who are paid by the responsible minister to know answers to questions like this one, which goes to the heart of the question that I put to Minister Sherry before we got up for dinner: what is this bill allowing you to do that you cannot already do? ASIO has been able to track non-state actors' handling of weapons of mass destruction, precursor materials and things involved in exactly that kind of trafficking, which are legitimate targets of clandestine intelligence agencies. You have been doing that for 60 years. Can you please tell us what has changed.

There is nothing in this bill—unless you can point it out to me; there is certainly nothing controversial—that addresses the medium; there is nothing that addresses cyberattacks. It is about the people and the 'who' we can go after, not about the medium or the vector that we might be being attacked behind. There are a couple of questions rolled in there, but I am still trying to get to the heart of what this amendment actually allows ASIO to do that it cannot already do. Just by way of an aside, I do not think the example of tracking of weapons of mass destruction or their precursor materials is a legitimate example. Our intelligence agencies are already perfectly capable of doing that, and they have been doing that for decades.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Two points, Senator. The first is that ASIO's mandate, if you will—and that is my word—is set out in the section I am looking at here, which is where 'security' is defined. It is part I, section 4. There we see the definition of security:

"security" means:

and then it is set out in paragraphs (a), (aa) and (b). I think we see there a codification of some of the issues that you are looking for.

I guess that when one contemplates the Cold War one is contemplating an environ­ment that is dramatically transformed today. We are obviously not today working in an environment where there is something of a global contest between two clearly discerni­ble ideologies and constellations of nation states. What we are looking at today is, firstly, a multipolar international environ­ment where non-state actors are particularly relevant and, secondly, an environment which has been transformed by technology. So the sorts of materials you were talking about and the sorts of tools that are required to monitor the movement of those materials, I think, have greatly changed, and as legislators we need to make sure that that is something we remain abreast of.

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

Minister, that was fascinating. I recognise that you are here in a representational capacity.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Yes!

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

The internet has been around for a decade and a half in broad use. We saw the extraordinary violence inflicted by non-state actors on the people of the United States on September 11, and the subsequent attack that killed Australian citizens. We have been in this fluid security environment, you could say, at least since the late 1980s or early 1990s. What does this bill do, after all that period of time, that our intelligence agencies have not been able to do for the last 15, 20 or 30 years? I still feel absolutely no closer at all to understanding that.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

If anything is a threat to security as defined in the ASIO Act then ASIO can investigate that matter. There may be some overlap, but this is about ASIO's foreign intelligence function and it is important to align the definitions so that there is no gap.

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

Minister, you will be very pleased to hear that when I move the Australian Greens amendments we will in fact be moving some consequential amendments to the Telecommunications (Interception and Access) Act 1979 so that the definitions remain entirely consistent. This is not an argument about consistency; it is an argument about appropriateness. Can the minister address the question that in framing—and I will use the same term as you did—the mandate of ASIO to be able to track a vastly larger range of actors you have now brought in groups of people who were up until this point, and I guess that is the whole point of the bill, beyond the range of surveillance and tracking by ASIO, including civil society organisations such as WikiLeaks?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Firstly, I will address your point concerning WikiLeaks, which I am sure was not entirely rhetorical. At a Senate estimates hearing on 25 May this year, the Secretary of the Attorney-General's Department stated that that was not the department's view and that the officers of the department did not refer to this amendment as the 'WikiLeaks amendment'. The Director-General of Sec­urity also advised that the amendments are not connected to the WikiLeaks matter and he stated that the amendments to the legislation were considered long before WikiLeaks arrived on the scene in the way that it did.

I suppose the government would emphatically assert that this legislation is not the product of WikiLeaks or the issues around WikiLeaks. We would assert that this bill was in development long before WikiLeaks became the topical issue that it has subsequently become.

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

Thank you, Minister, for the comprehensive answer to the question that I did not ask, which was how the bill was being described within the A-G's Department. Is it fair to say that this organisation, very specifically and not hypothetically, is now within the range of surveillance by ASIO, whether or not it was before?

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

The problem I have here, Senator, is that it is inappropriate for me to get into operational matters. As a consequence, I would be straying wildly outside my lane if I started to identify those organisations that may, were or may not be subject to ASIO investigation. So I do not think I am able to provide an answer.

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

I am incredibly disappointed but not at all surprised, because that is the same brick wall we ran into with the officers of the department, the same ones who are advising you tonight—'It is just tremendously important. We cannot tell you exactly why but it is important. You will just need to trust us that, operationally, something or other needs to happen behind the scenes so that undisclosed organisations can now be tracked by our clandestine surveillance agency.' It is going to make it monstrously difficult for the oversight agencies and offices like the IGIS to determine whether or not they are acting unlawfully because henceforth it is going to be impossible to tell. If we have landed at the same point of stalemate as we did in the estimates committee and in the committee hearing into this bill, I will proceed to the amendments that I have circulated on sheet 7102.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Senator Ludlam, taking that point, the government would make the counterpoint that the legislation that is being proposed, together with the existing regulatory frame­work, means that there are already signi­ficant safeguards that apply to ASIO's foreign intelligence function. For those of us who are students of political history, we will find that the Greens are not unique in seeking to make sure that these intelligence organisations are subject to the proper controls. That is a tradition to which my own party belongs as well.

Having said that, the government is obviously satisfied with the safeguards that exist. I am happy to spend a moment talking about those. Firstly, safeguards under the Intelligence Services Act are applicable because ASIO's foreign intelligence function is performed at the request of the Minister for Defence or the Minister for Foreign Affairs, and they are responsible for Australia's foreign intelligence agencies. Before a request is made of ASIO to collect foreign intelligence within Australia, requirements under the Intelligence Services Act need to be complied with. These include requirements to obtain a ministerial authorisation if the agencies undertake an activity for the purpose of producing intelligence on an Australian person. You would have to agree that is of signal significance. A ministerial authorisation may be granted by the Minister for Defence or the Minister for Foreign Affairs only if they are satisfied that the Australian person is engaged in certain specified activities. There is a range of other safeguards that apply in the event that a ministerial authorisation is given, including time periods for that authorisation, being six months. In addition to all of that, the defence minister or the foreign affairs minister must be satisfied of the basis of the request for ASIO to collect foreign intelligence. The relevant minister would provide sufficient information for the Attorney-General to be satisfied as to why the request is in the interests of Australia's national security, foreign relations or national economic wellbeing.

In making a decision regarding the discharge of its foreign intelligence function, ASIO has to comply with relevant guidelines and ministerial directions about how it should perform its functions. ASIO must also comply with internal protocols and procedures, which have been carefully drawn with a view to ensuring that their powers are exercised carefully and appropriately. ASIO also has to consider this in the context of its limited resources and other intelligence priorities. It is not resourced to the point that it can engage in intelligence frolics.

Warrants are submitted to the Attorney-General for approval only after they have been through an exhaustive system of checks within ASIO and the Attorney-General's Department. If ASIO seeks to procure a foreign intelligence collection warrant, ASIO has to make a case with supporting material when putting a warrant request to the Attorney-General. The Attorney-General must be satisfied on the basis of advice received from the relevant minister that the collection of foreign intelligence relating to a matter is in the interests of Australia's national security, Australia's foreign relations or Australia's economic wellbeing. All of these are significant matters of national interest.

There are also reporting obligations in section 34 of the ASIO Act requiring the Director-General of Security to report in writing to the Attorney-General on each foreign intelligence collection warrant. The Director-General must report on the extent to which the action taken under the warrant has assisted the organisation in carrying out its functions. Similar reporting requirements apply to the foreign intelligence agencies under section 10A of the Intelligence Services Act. This provides further assurance that foreign intelligence collection by ASIO is appropriate and being used for legitimate purposes.

Finally, section 17A of the ASIO Act includes an express protection for lawful advocacy, protest or dissent, and I am sure that you will agree that that is also of signal importance. The Inspector General of Intelligence and Security regularly reviews ASIO's warrant documentation and, in doing so, has full access to all of the warrant information including the supporting evidence that is provided to the Attorney-General. The Inspector General of Intelligence and Security looks at the legality and also the propriety which encompasses all those other aspects that sit in and around the legislation, including of course whether ASIO has sufficiently adhered to its internal guidelines. So, Senator, I suppose the government's position here is that there are strong protections and strong safeguards and this is not an undue or unwarranted, let alone frivolous, expansion of the powers of our intelligence agencies.

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

I thank the minister and I feel enormously reassured.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

So you should!

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

I feel as though the minister just read a big bag of wet cement into the Hansard record. All I will do, I suppose, by way of response is read briefly one last time from the Law Council's submission, where they put to the committee:

The proposed changes will almost render meaningless the threshold test that must be met by ASIO in order to obtain a warrant or authorisation to collect intelligence under 27A and 27B. A warrant or authorisation will be able to be obtained to gather information about the activities of any person or group outside Australia whenever those activities are considered to be somehow relevant to Australia's national security, Australia's foreign relations or Australia's national economic well-being.

Even if it is accepted that the current definition and test need revision in light of the changing nature of threats to Australia, it does not follow that the new definition and test must necessarily be reframed in such broad terms.

And finally they say:

The new definition and test will afford the Minister and the agency almost unfettered discretion to determine when and how ASIO's powers may be used to gather information about people's activities, communications and relationships abroad.

And I think that pointed submission from the Law Council kicks a bit of a hole in what the minister just read in that was supposed to reassure us about the safeguard framework that has been built up in a cross-party way by this parliament, by state parliaments, by conservatives, by the Labor Party and by the Greens to safeguard against the undue use of power by clandestine agencies that this parliament has a limited oversight of. This is where we find ourselves. Chair, I will seek your advice about whether I should seek leave to move amendments (1), (2), (3) and (4) together or just (1), (2) and (3).

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

My advice would be (1), (2) and (3), Senator. Are you seeking leave to move (1), (2) and (3) together?

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

Unless Senator Brandis would like to make a brief late contribution and put some sense on the record.

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

I have been listening to the exchanges between Senator Ludlam and Senator Feeney. I do intend to say something but I thought I might say that when Senator Ludlam moves his amendments.

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

by leave—The Greens oppose items 3, 7 and 13 in schedule 1 in the following terms:

(1)   Schedule 1, item 3, page 3 (lines 13 to 16), item TO BE OPPOSED.

[definition of foreign intelligence]

(2)   Schedule 1, item 7, page 3 (line 24) to page 4 (line 4), item TO BE OPPOSED.

[collection of foreign intelligence]

(3)   Schedule 1, item 13, page 4 (lines 17 to 24), item TO BE OPPOSED.

[collection of foreign intelligence]

I think that they do no more or less than what the Law Council proposed. They oppose the definition of 'foreign intelligence' and the language around the collection of foreign intelligence in two clauses. I will subse­quently move amendment (4), which makes consequential amendments to the Tele­communications (Interception and Access) Act which then change the definition in that act to provide for that consistency that I think all parties are very keen to see remain on the statute books. So, without further debate, I will commend those first three amendments to the chamber.

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

The opposition opposes the Greens amendments. Let me explain why. Before I do, let me affirm the opposition's full confidence in ASIO, and in its Director-General in particular. I listened to the exchanges between Senator Ludlam and Senator Feeney, and the opposition joins with the government in being of the view that the safeguards provided for in the ASIO Act and the mechanisms of institutional scrutiny through the director-general of intelligence services and parliamentary scrutiny through the joint parliamentary committee provide for an appropriate and thorough range of safeguards. There are also—and this is a point that Senator Feeney made—statutory protections in the ASIO Act itself which are unaffected by this legislation. So, on a statutory basis, from the point of view of parliamentary oversight and from the point of view of institutional oversight through appropriate oversight agencies, the opposition is well satisfied that we have the appropriate balance between giving ASIO, the particular agency in this case, the operational flexibility it needs and ensuring that it does not overreach its functions and that, were there to be any overreach or inappropriate use of power, that overreach or inappropriate use of power would be identified and arrested by institutional and parliamentary scrutiny.

Against that background, let me address the amendments which Senator Ludlam moved. The effect of the amendments is to oppose the proposed amendments to the ASIO Act which change the definition of 'foreign intelligence'. Let me deal with them seriatim. The first of the amendments opposed by the Greens would insert a new definition of 'foreign intelligence' into the ASIO Act. The new definition would define foreign intelligence as 'intelligence about the capabilities, intentions or activities of people or organisations outside Australia'.

The current definition of 'foreign intelligence' in the act, which would be replaced by that definition, is intelligence relating to the capabilities, intentions or activities of a foreign power. A foreign power in the ASIO Act is defined as a foreign government, an entity that is directed or controlled by a foreign government or governments, or a foreign political organisa­tion. The term 'foreign political organisation' is not defined. There is no question at all that the effect of this amendment would be to expand the scope of foreign intelligence that might be lawfully gathered by ASIO, in particular, by identifying individuals which the current act does not provide for and expanding, by making more generic, the character of organisations which might properly be the subject of intelligence gathering by ASIO.

I am bound to say that in the changed national security and international security environment, particularly with the growth of terrorist organisations of a very amorphous form, many of them identified with individuals and inspired by individuals, and those organisations which are unstructured and represent a much less easily defined character of threat to Australia and its interests, it seems to the opposition to be absolutely prudent for the definition of foreign intelligence to be made more flexible than being defined merely by reference to foreign governments or foreign powers, given the rigidity of the definition of 'foreign powers' in the ASIO Act. There is much talk, as we know, in this area of policy about non-state actors, but non-state actors can assume a variety of forms, and it is because of the variety of forms which non-state actors may represent that it is, in our view, important that the intelligence capability of ASIO be made more flexible. None of the safeguards in the act is affected by this amendment. This is a jurisdictional amendment to reflect the realities of the practice of international terrorism in particular. It leaves the protections in the ASIO Act entirely unaffected.

The other two government amendments to the ASIO Act which are opposed by the Greens are amendments to sections 27A(1)(b) and 27B(b) of the ASIO Act. They have a common form. In both cases, they extend the interests which might be the subject of a ministerial directive from the interests as currently defined which are—and I will paraphrase—limited to the collection of intelligence relating to matters important to the defence of the Commonwealth or the conduct of the Commonwealth's inter­national affairs—that is the language of the current act—to intelligence relating to the interests of Australia's national security, Australia's foreign relations or Australia's national economic wellbeing. Apart from the substitution of the term 'Commonwealth' for the use of the word 'Australia', there are two substantive changes effected by those amendments. The first is to broaden the first category from Australia's defence to Australia's national security.

I will pause here and challenge Senator Ludlam to tell the chamber why it is that it is unwise to define the proper subject of a ministerial directive to the Director-General of ASIO as a matter relating to Australia's national security rather than Australia's defence. National security has a broader connotation, but surely what ASIO is concerned with is protection by the gathering of intelligence in relation to Australia's national security—'national security' being a somewhat more comprehensive and more modern term—rather than Australia's defence in a purely military sense. That seems, to the opposition, to be the very thing that ASIO ought to be concerned with.

The second respect in which these two proposed amendments of the ASIO Act expand the scope of a ministerial directive is to include a new category—that is, Aust­ralia's national economic wellbeing. Senator Ludlam, who could possibly imagine that in the modern world in which economic warfare, in particular cyberwarfare, is identified by any intelligent observer as one of the great threats to a nation's wellbeing, there is something wrong or perverse or overreaching in character about identifying a new category—that is, Australia's economic wellbeing—as a matter properly to be within the purview of a ministerial directive to the director-general of intelligence? For those reasons the two material changes, the second and third of the government amendments which you oppose, are appropriate amendments by redefining defence as national security and including a new category—that is, the protection of Australia's economic wellbeing. These seem to the opposition to be entirely suitable amendments and, for that reason, the opposition supports the government's amendments and opposes your amendments which would seek to delete them from the bill.

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

I thank Senator Brandis for making a contribution to at least make clear the coalition's views on these changes. I think Senator Trood raised a couple of issues during the committee hearing but, apart from that, the coalition has been almost totally absent from the debate. So it is good that you are least here this evening to give us the benefit of your views. I do not share your comfort that the definitions that the govern­ment is introducing here, which we are seeking to repeal tonight, do not, as the Law Council and the Castan Centre for Public Law have indicated, radically broaden the range of subjects on whom ASIO should now be spying. I am not as comfortable as Senator Brandis and his colleagues in the coalition or the Labor Party with the idea that corporate espionage is now an entirely legitimate activity for ASIO. They must be doing something in that giant complex that is under construction on the other side of the lake; they are not in there quite yet, but we now have a better idea, albeit still shrouded in complete ambiguity, of what ASIO will be up to. I do not share the opposition's comfort whatsoever that we are not about to vote through a very significant expansion to ASIO's mandate. I will not detain the chamber further. I commend the amendments.

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

I do not want to prolong this, but may I respond to Senator Ludlam's contribution by saying this. First of all, we have discussed like matters in the past—not these particular matters but like matters—and I entirely accept your good faith in relation to this. As the saying goes, I know where you are coming from. I think you understand that I always cast a sceptical eye over any legislation which significantly expands the policing power of the state, including the intelligence-gathering power of the state. With all due respect, I urge you not to adopt the Pavlovian response that, merely because a piece of legislation expands the mandate of a national security agency, it is ipso facto to be opposed. There are materially changed circumstances.

Any sophisticated observer of these matters would share your view, whether they be from the right of the political spectrum or the left or all points in between. We do have a broader understanding of what national security consists of—beyond merely military defence—than we did when this provision was written into the ASIO Act. We do have a more acute awareness of the extent to which damage to the economic wellbeing of Australia is itself a matter which has a direct bearing on the Australian national interest. As I said earlier, the practice of attacking our important and vital trading interests through cyberwarfare—a phenomenon we have seen in recent years—has a direct bearing on our national wellbeing.

Like you, Senator Ludlam, I start from a presumption against further expanding the policing powers of the state—because I am a good Liberal. You are probably not a good Liberal, Senator Ludlam; you are probably a good Green—whatever that means. But Liberals do have a presumption against the expansion of state power. It is therefore a non sequitur that any statutory amendment which brings up to date and contemporises the powers of a national security and policing agency is ipso facto a bad thing. On this occasion, on a considered and reflective view, the opposition agrees with the government that these are beneficial and appropriate amendments.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

The government obviously opposes Greens amendments (1) to (3). I do not think that will come as any surprise to Senator Ludlum but I needed to state that on the record. I thank Senator Brandis for his contribution. Indeed, I thank the opposition for their position with respect to these amendments.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that schedule 1, items 3, 7 and 13, stand as printed.

The committee divided. [20:16]

(The Chairman—Senator Parry)

Question agreed to.

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

I move Greens amendment (4) on sheet 7102:

Schedule 1, page 7 (after line 14), at the end of Part 1, add:

Telecommunications (Interception and Access) Act 1979

28A Section 5 (definition of foreign intelligence)

Repeal the definition, substitute:

foreign intelligence means intelligence relating to the capabilities, intentions or activities of a foreign power.

I do not think I need to further debate amendment (4) on the same Australian Greens sheet, 7102. It is consequential to the first three amendments, so I will just commend it to the Senate.

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

It is a consequential amendment. I would indicate on behalf of the opposition that, for the reasons indicated in the speech I gave a little earlier, the opposition will be opposing this change to the definition of foreign intelligence.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

Chairman, I take this opportunity to congratulate you on your election as Deputy President of the Senate. I would also indicate the government's opposition to Greens' amendment (4). The government does not support this amendment and I would make a few points with regard to that.

The Telecommunications (Interception and Access) Act 1979 was amended in 2010 to provide a definition of foreign intelligence that is consistent with the Intelligence Services Act. Earlier in the debate, Senator Ludlum indicated that his amendment would remove any inconsistencies and certainly would not give rise to any new inconsistencies. Unfortunately, it is the government's view that this is not the case. While the government's bill ensures that there is consistency with the Intelligence Services Act, the act that governs the collection of foreign intelligence by other agencies, Senator Ludlum's amendment would introduce a further inconsistency between these acts.

Further, the amendment of 2010 was particularly important for ensuring that Australia's national security agencies were able to obtain interception warrants, to gain intelligence necessary to protect our national interests, not just from traditional sources but from challenges posed by foreign individuals and organisations operating without any government support, whether it be for economic or personal gain.

Repealing this definition would prevent interception warrants being obtained under sections 11A, 11B and 11C of the Telecommunications (Interception and Access) Act in relation to individuals in nonstate or nonpolitical organisations who might be involved in activities such as people smuggling, people trafficking, illegal fishing and weapons proliferation. I simply repeat the point that has been made several times during this debate: the plethora of nonstate actors and the development and evolution of new threats and new technology threats are all things that the government remains keenly concerned about and the legislative framework should reflect that fact.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that Greens amendment (4) on sheet 7102 be agreed to.

Question negatived.

Bill agreed to.

Bill reported without amendment; report adopted.