Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

The question is that the bill stand as printed.

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

I table two supplementary explanatory memoranda relating to the government amendments to be moved to this bill. I also table a replacement explanatory memorandum relating to the bill.

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

Senator Brandis, in your closing remarks you mentioned quite correctly that this bill originated from the Parliamentary Joint Committee on Intelligence and Security report, of which committee you were a member, and you were a signatory to the recommendations that were put forward. One of the recommendations, I believe recommendation 41, was that the bill should firstly be put into the public domain as an exposure draft, which obviously was not done, but also that the views of the national security legislation monitor should be sought.

Australia's oversight of these intrusive and, in some instances, quite coercive powers has effectively three limbs: the Parliamentary Joint Committee on Intelligence and Security, the Inspector-General of Intelligence and Security and, I would argue, the national security legislation monitor—not so much concerned with operational oversight as with the policy architecture that governs how these agencies operate. As to the national security legislation monitor, the government sought to abolish that office as part of some kind of red-tape initiative. Later there was an agreement, I understand, to restore the operations of that office. Why does it currently not exist? And why has the government not sought the views of a reinstated national security legislation monitor—as, Senator Brandis, you signed to? It was a recommendation that I thought had merit. Why does that office not exist? When will you instate such an office?

Do you believe in its importance? Why was this bill not subjected to having his or her views sought, as you recommended last year?

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

The criticism that appears to come from Senator Ludlam is that this bill has not had sufficient scrutiny. That criticism could not be more misconceived. The bill was first introduced by me on 16 July. It has been in the public domain and the subject of much public discussion since that time. It has been back to the Parliamentary Joint Committee on Intelligence and Security since then which has reviewed it and, as I said in my second closing speech, it has been the subject of 17 recommendations by that committee, all of which have been accepted by the government.

The process and genesis of this bill, as I explained in my second reading speech, is a process that has been in train for more than two years. These recommendations, along with many others which will be the subject of other legislation brought forward by the government, were the subject of the most exhaustive review by the PJCIS during the life of the 43rd Parliament. So it could not be possibly maintained that these provisions, the provisions that command the support of the entirety of the political mainstream in this country, have not had exhaustive deliberation and extensive opportunities for public scrutiny. Indeed, the report of the inquiry on the basis of which these bills have been drafted was tabled by Mr Byrne as long ago as June 2013, so the recommendations have been in the public domain for much longer than a year. So the suggestion that these proposals have not had the benefit of exhaustive public discussion is a piece of arrant nonsense.

Senator Ludlam asked about the Independent National Security Legislation Monitor. Might I inform the senator, because he seems to be unaware of the fact, that the proposal for an Independent National Security Legislation Monitor came from the Liberal Party. Specifically, it came from the former member for Kooyong, Mr Petro Georgiou, during the life of the 42nd Parliament. It was proposed in this place by my friend and former colleague Senator Judith Troeth, and was seconded by me. So I do not need to be informed by you, Senator Ludlam, about the wisdom of having an Independent National Security Legislation Monitor.

That was opposed by the Labor government at the time, the first Rudd government. However, with the passage of time, that unhappy government saw the wisdom of what Mr Georgiou and former Senator Troeth and I were proposing. They changed their position from one of opposition to one of support and the Independent National Security Legislation Monitor was created with the Liberal Party and the National Party's support.

Earlier this year, the government considered whether an efficiency could be made by abolishing that office. But, in view of the fact that we knew that extensive new legislation governing national security was going to be introduced during the course of 2014, we decided not to proceed with that idea. So the office was retained. Senator Ludlam asked when the office will be reinstated. The office exists. Mr Walker, who had been appointed by the previous government to occupy that office, served his term. His term expired and the government is currently considering the replacement of Mr Walker as the Independent National Security Legislation Monitor.

Lastly, might I point out to you, Senator Ludlam, that the role of the Independent National Security Legislation Monitor is to oversee the operation of legislation and to advise government on the suitability of that legislation in the light of the manner in which it operates. This legislation, obviously, is legislation yet to be enacted; therefore, the need for the particular contribution of the Independent National Security Legislation Monitor has not arisen. But I can assure Senator Ludlam that when Mr Walker's replacement is named, that man or woman will be a person who will be in a good position to advise future governments on the efficacy of this legislation.

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

Senator Brandis, the potted history actually is useful in the context of people who might be discovering this issue for the first time. And you probably will not appreciate being reminded of the last time, I suspect, that you would have supported an amendment that I put into this place. It was to create greater transparency in the operations of the office and to keep it at arms-length from the Prime Minister's office. Support for that amendment I appreciate to this day. So I think it probably is useful to put that historical perspective because we were obviously a part and we were advocating very strenuously for the former government to put this office into the field. But if what you just told us is correct then why did you sign a recommendation last year, recommendation 41, proposing that the monitor review this draft bill?

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

I see no need to add to anything I have already said in response. It cannot be maintained that this bill has suffered from an insufficiency of scrutiny at many levels. Senator Ludlam, I wonder whether you might get on with Greens amendment (1), which is in relation to ASIO's warrant based computer access powers.

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

Senator Brandis, you have been here longer than I have. You are very well aware that we are able to take time to ask general questions about the operation of the bill. I will move to that amendment when I am ready. Thank you for your advice.

I might put a couple of other general questions to you before we do start moving through the amendments. I wonder whether you might care to address a fairly general question about the operation of the SIOs because I think these special intelligence operations are really at the heart of what this bill implements. Would you care to comment on the Law Council's submission to the PJCIS that this bill should not pass in its current form? I think that calling it scepticism is currently underplaying it somewhat. There are those in the legal fraternity, of which you were obviously a part for a very long time, who believe that this bill does overstep the mark, that it is an overreaction, that it is overreach and that we are taking agencies who already operate at arm's length from any form of parliamentary scrutiny and further shrouding their operations behind a veil of secrecy. Obviously, that is a perspective that the Greens share, but I wonder if you would care to reflect on the fact that the Law Council, who you would not exactly phrase as radicals in this area also share that view?

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

The Law Council of Australia, with which I am very familiar, and whose current president, Mr Colbran, is a personal friend of mine, encompasses all the lawyers in Australia, of whom there are tens of thousands. As you would expect, among tens of thousands of people one would expect a wide variety of views. There are some among those tens of thousands who disagree with the special intelligence operation. There are many who would agree with it. But the government does not agree with the view expressed by the Law Council.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

In relation to the most recent question and answer about the Law Council of Australia's submission: what does the Attorney-General say about the broad concerns that there are not adequate safeguards? For instance, in terms of the unauthorised disclosure: as I said in my second reading contribution, I acknowledge the need for secrecy. I acknowledge the importance of not disclosing the identity of an officer or associates of an operative because it would put their lives at risk. But for the penalty going from two years to five years for disclosing a special intelligence operation—under the current legislative regime it has been a two-year penalty for disclosure; a five-year penalty is a significant jump. Ten years in terms of putting others at risk, I can understand the rationale for that, but in terms of the general disclosure provisions, I do have a concern about them being without any safeguard of a public interest test or a public interest factor in respect of mitigation.

I would be grateful if the Attorney-General could either address it now in this general area of questioning or when the particular provisions are being considered. For instance, the Law Council considered that ASIO officers should be required to seek a new warrant in every instance where there is a significant change in circumstances:

…which could include a change in the premises subject to a search warrant (noting that a change in premises from a person’s home to a large workplace could have broad privacy implications), the identity of a person subject to a listening device or tracking device, or the range of activities needed to be authorised to execute a warrant.

The Law Council of Australia is not known for its radicalism. I think it has taken a prudent and cautious approach to this, with the balance of keeping Australians safe. I would the grateful if the Attorney-General could either address that particular concern now or in the context of the specific clauses when we deal with them.

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

I do not know why you say the Law Council is not known for the radicalism its views. I find some of its views—not all of them, but some of them—of a—

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

It is all relative.

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

Indeed, it is relative—very alarming, in any event.

You asked me what particular safeguards there are in relation to the offence of the disclosure of the identity of an officer of ASIO. This is governed by section 92 of the ASIO Act. Before I come directly to your question, might I point out that there are very good and sound reasons why there should be a prohibition on doing so. To identify an officer who may, for example, as part of their daily work engage in covert operations with dangerous people, could very easily place their life at risk. The work that ASIO does is, in many of its aspects, very dangerous work. To put into the public arena the identity of a man or woman engaged in a covert operation among, let us say, dangerous people could, as you can readily imagine, put their life at risk. So there are very sound policy reasons why there should be such a prohibition.

You asked me particularly what special protections there are. I can tell you there are two particular protections and then there are some more general protections. Section 92 of the ASIO Act is not excluded from the whistleblower regime. If a person who is a bona fides whistleblower reports a matter through the process established by the whistleblower regime, they do not find themselves in breach of section 92 of the ASIO Act. That is not a public declaration, of course, that is a private complaint. As you know, because I know you are very well informed about the whistleblower regime, in the first instance, a person who has a bona fides issue and wants to avail themselves of the protections of the whistleblower regime is able to do so without falling foul of section 92 of the ASIO Act.

Secondly, Senator Xenophon, there is another, very particular, protection in the existing section 92. That is subsection 92(3), which provides:

A prosecution for an offence against this section shall be instituted only by or with the consent of the Attorney-General.

I think you are aware that there is a small number of criminal offences in Commonwealth criminal law which, beyond the orthodox manner in which prosecutions are instituted by the Commonwealth director of prosecutions—on top of that—require the consent of the Attorney in his capacity as the first law officer of the Commonwealth. That is a super-added protection specifically in relation to this provision. The fact that the parliament has put that super-added protection there should indicate to you that the point you make—that prosecutions of this kind are a little unusual and do merit an additional layer of scrutiny and discretion—has already been accommodated by the existing act.

As well, there are multiple layers of executive and legislative oversight in relation to the exercise of powers under the ASIO Act already. Those levels of oversight and scrutiny have been increased, not decreased, by the legislation before the chamber today.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I am grateful to the Attorney for his answer. I said this in my speech in the second reading debate and I will say it again: I want to make it absolutely clear that I understand the grave danger that an ASIO officer or an ASIS officer is placed in if they are involved in a covert operation and their cover is blown. I understand that. That is why I am generally supportive of a significant penalty for disclosing that person's identity.

But, if we are talking about the specific instance that I referred to in my contribution in the second reading debate, in respect of witness K—and I understand it is a matter before the courts—if there is no question of the security officer's identity being involved, if the covert operation is already over and done with, and there may be some compelling public interest reasons to disclose, I think that ought to be taken into consideration, in the context of penalties.

I do not want to verbal one of the Attorney's very fine advisers, who have been very helpful in this whole process. I want to congratulate the Attorney on the quality of his advisers and the advice that they have given. But there is a concern about whether, in the case of witness K, the disclosure of information is in the public interest. This is a real-life example currently before the courts; the circumstances relate to allegations of the bugging of the East Timor cabinet room and the implications for East Timor in relation to a treaty negotiation. I am of the view it is in the public interest; presumably, the Attorney would say it is not.

But there would be many people of good faith who are concerned about security who would think that it is not an unreasonable thing to disclose why that person should be subject to a much more significant level of penalty and why there should not be consideration of the penalty or the prosecution of that person. That would be distinct from someone who is a spy for another country, putting the lives of Australians at risk. That person would be a traitor to this nation—in other words, someone with a commercial consideration, receiving money to disclose information to another government. That is very different from a situation where an intelligence officer or someone disclosed information about something that may be dubious or unethical or illegal. That is the context.

I want the Attorney to please understand that I do not want to put the lives of our security officers at risk in covert operations. I understand fully the imperatives in ensuring that they are not at risk. As I said earlier, disclosing their identity if they are operating in a covert operation, with some pretty evil people, is effectively signing their death warrant. I do not want that to occur. There should be clear legislative sanctions against that. The case of witness K is quite different I think.

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

Senator Xenophon, as you say, the witness K matter is before the courts so of course you would not expect me to comment on it, and I will not. Secondly, in a sense, you have already answered your own question by indicating that there is a variety of circumstances, a gradation of seriousness, of the kind of conduct which could constitute an offence against the existing provision, section 92.

That is what courts do in sentencing offenders. They do not need legislative direction to do so. They take into account all the facts of the particular offence. If a person has committed a crime, then obviously the circumstances in which the crime was committed and the circumstances of either severity or mitigation will always be, as a matter of the orthodox application of the principles of criminal sentencing, taken into account by the judge. So the sentiment you have expressed, if I may say so, is correct, but I do not think you give sufficient credit to the capacity of judges, uninstructed by provisions of the kind that you propound, to take those considerations into account in arriving at sentencing decisions.

Lastly, I should not sit down without acknowledging and thanking you for your complimentary remarks about my staff. I think it was Mr Justin Bassi here that you dealt with. I have the immense good fortune to have as my advisers some of the most talented men and women in the service of the Commonwealth of Australia.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Without embarrassing Mr Bassi, I can say that you do have some pretty good staff and advisers working with you.

You mentioned that there is a provision for an ASIO officer to be a whistleblower. There is a mechanism there; they are not exempt from provisions of the whistleblower act. I take it—and a nod from the Attorney would be sufficient—that also applies to ASIS officers as well?

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

Yes, it does.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I do not want to hold up this part of the committee stage. I do have serious concerns about some aspects of the increased penalties in this legislation. I take the Attorney's point about the general judicial discretion in determining penalties, in determining a sentence, for instance. But I think sometimes having something drawn to the attention of the judiciary—as is done quite often particularly by state governments on so-called law and order matters—and directing the judiciary to certain matters that should be of particular emphasis or importance, particularly in respect of the public interest in such matters, would be a good thing and would be an added safeguard. Depending on how the committee stage goes, I hope that the government can at least seriously consider that particular amendment.

The logical extension of what the Attorney is saying is that if the court already has the discretion to take these matters into account then what harm is done if we elevate that concern about public interest within the legislation? It is a remark I address also to the opposition—if they are so minded to look at that. All I ask is that it be considered in the course of this debate because I think it would provide some comfort to those who were concerned about any overreach in these matters. Having said that, I am grateful for the Attorney's answers.

Finally, notwithstanding that the Witness K matter is before the court, I think we can safely discuss circumstances similar to Witness K or a similar hypothetical example in the context of considering how this law would apply in increased penalties and in disclosure. I will not take it any further than that at this stage. Witness K is a real-life example. Whilst we cannot comment on what the court will do, we can, I think, comment on allegations and the sets of circumstances that may present themselves again at some time in the future in respect of some of these operational matters.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Senator Ludlam, do you seek to move amendments (1) and (2) on sheet 7570 together?

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

No. I have a question for Senator Brandis regarding the Standing Committee for the Scrutiny of Bills report, the Alert Digest. I presume you have seen it, Senator Brandis. It is No. 11, dated 3 September 2014. Have you or your department provided a response to that committee?

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

Yes.

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

Senator Brandis, would you care to provide that document to the Senate so that we can assess it?

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

It is a public document.

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

I am not in possession of that but I have got the scrutiny of bills committee document in front of me. I am going to put a couple of questions to you, Senator Brandis, based on the issues that they have put into the field. It seems the committee have identified some grave misgivings about the way that the bill operates. I will go to one specific issue, which I think is the third or fourth one that they raise, around delegation.

Item 1 of schedule 1 of the bill inserts a definition of ASIO affiliate into the act that effectively allows ASIO to delegate an extraordinary array of powers to somebody who is not an employee of ASIO. I just wonder, Minister, if you could give us the benefits of your wisdom on the degree to which ASIO is currently able to delegate any or all of its powers to third parties who may not be an employee of the organisation. Does this is power exist at the moment? Is it something that is completely new?

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

Senator Ludlam, I am looking at the proposed definition of ASIO affiliate. You said 'delegate' but the term actually is 'ASIO affiliate'. It does not strike me as being particularly unusual or inappropriately extensive.

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

Thank you, Senator Brandis, for that response. No, I am using the word 'delegate' in terms of the fact of the fact that ASIO is able to delegate its powers, apparently a very wide range of powers, to an affiliate that is newly defined in schedule 1, item 61. My question is about the degree to which ASIO is already empowered to delegate its responsibilities or its authorities to third parties or whether this is a completely new power. What it looks like to me, and the way the scrutiny of bills committee has identified it, is it will extend to these ASIO affiliates an extraordinary range of intrusive and coercive powers. What I am trying to do before I get to the substance of the way that this amendment will operate is get a sense of the status quo that prevails at the moment as far as delegating ASIO's powers away.

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

Whoever wrote that reportedly Senate scrutiny of bills committee report was not much of a lawyer, I am bound to say. The delegation power is in section 16 of the act. It says:

The Director-General may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Director-General, delegate to an officer of the Organisation all or any of the powers of the Director-General that relate to the management of the staff of the Organisation or the financial management of the Organisation.

And there are some consequential subsections.

The provision which concerns you, the definition of ASIO affiliate in item 1 of schedule 1, plainly does not include officers of ASIO and, therefore, nobody comprehended by that definition would be a person to whom the power of delegation under section 16 of the act would be exercisable.

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

For the benefit of the non-lawyers among us, I will just try to paraphrase that in plain English and then you can tell me whether or not I have got it correct. The delegation powers that exist in the ASIO Act at the moment allow delegations within the organisation of various powers on the signatory of the Director-General. And this new item 1, schedule 1 allows those powers to be delegated to persons outside of the ASIO organisation. Could you please let me know whether my apprehension is correct.

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

Senator Ludlam, I have read to you the delegation power in section 16 which deals with officers of the organisation. I really don't know that I can take it much beyond that.

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

Under these new amendments and item 1, schedule 1, ASIO affiliate in particular, could ASIO delegate its powers to, for example, an officer of a foreign intelligence agency?

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

Not unless that person was an officer.

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

So that person would have to be an officer of ASIO already for item 1 of schedule 1 to apply?

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

That is what it says, Senator.

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

So are you able to confidently allay my concerns—and evidently the concerns of the Scrutiny of Bills Committee—that these authorities are still only delegable to people who are officers of ASIO? My reading and my reading of the concerns that have been put by the Scrutiny of Bills Committee is that the categories of persons who can have these powers delegated to them is extremely broad. I wonder, Minister, if you might then explain to us what exactly the change is, because I do not understand exactly how this is drafted in that case? What is the material change: if the delegation power still only includes people who are ASIO officers then what exactly is being changed here?

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

What has been changed is the insertion of a definition of ASIO affiliate, Senator.

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

But the ASIO affiliate is already an officer of ASIO, so they are under the existing drafting of the act—is that correct?

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

I have read you what section 16, which is the delegation power, says. You are familiar with and you are addressing the new definition of ASIO affiliate. These definitions and these words, I think, are reasonably clear on their face.

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

Senator Brandis, could the definition of an officer of ASIO encompass somebody who worked for a foreign intelligence agency? How would they be an officer of ASIO? Would they have to be employed and in the paid employ of ASIO?

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

No. As I understand it, an officer of a foreign intelligence agency is not someone to whom the powers of the Director-General could be delegated under section 16 of the act.

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

So you could confirm for us that this amendment that we are debating today makes no material change to the way that ASIO's powers to delegate to people are interpreted?

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

I do not really have anything to add to my answers to your question. The power to delegate, which is a power exercisable by the Director-General, is a power to delegate to officers of ASIO—that is what section 16 says.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

On the same line of questioning, if I could just make brief reference to the Senate Standing Committee for the Scrutiny of bills, the Alert DigestNo. 11 2014of 3 September 2014. The committee states that:

The committee’s consideration of the new provision—

that relates to the delegation—

would likely be assisted examples of the sorts of delegations that would be appropriately authorised by the proposed new power of delegation, but are not possible under the terms of the existing provision.

I wonder if the Attorney is able to assist us, as the Scrutiny of Bills Committee set out, whether it may be of assistance to this committee to understand the types of delegations that would be authorised now under this provision as distinct from the sorts of authorisations that were available previously.

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

Largely, I understand, I am informed in relation to management.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Management is a very broad phrase. Is that administrative, financial—this is not a trick question; I am just trying to understand in what sorts of circumstances would this apply? In other words, how is this power of delegation any different from the previous power? Does it relate to administrative functions? Does it relate to operational matters? If I can get some elaboration of what the Attorney means by that, it would go a long way in satisfying what I think the Scrutiny of Bills Committee raised as a legitimate concern?

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

The two categories identified by the bill, though not defined, are management and financial management.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Is the Attorney saying that these relate to management issues as distinct from operational issues?

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

Yes, I am. The provision does not extend to any of the Director-General's functions and powers under the ASIO Act. It only deals with powers relating to management or financial management, so let me be very clear—I think there is some confusion here, if I may say so—there is no capacity under this provision to delegate operational powers.

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

Page 11 of the Alert Digest that I have been referring to notes that:

This provision has the effect of extending to ‘ASIO affiliates’ an exception from the prohibition on the interception of a communication passing over a telecommunications system.

Have they just got it completely wrong? I would have thought that would relate to an operational issue rather than a management or financial one?

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

As you could readily appreciate, ASIO, like any government agency, on occasion employs contractors to perform tasks including technical tasks. That is what the ASIO affiliates definition is intended to comprehend. To enter into an arrangement to enable a contractor to perform a task, including a technical task, is not to delegate to them an operational power.

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

But that would be a technical task up to and including wire-tapping, for example.

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

I am not going to speculate on the range of activities which might be the subject of contracts, but I have given an unequivocal answer to Senator Xenophon's question of whether or not the power of delegation exists in relation to operational matters. The answer to that question is no.

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

But then, Minister, as soon as I got specific you suddenly did begin equivocating.

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

No, I am not. I have given you an unequivocal response, Senator. There is no capacity to delegate operational powers.

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

As it stands at the moment, I wonder whether you are prepared to directly contradict or express that the Scrutiny of Bills Committee simply got it wrong when they said the provision has the effect of extending to ASIO affiliates—such as contractors and subcontractors, which you have identified would also need to be ASIO officers, and I do not quite understand how that would then apply to contractors or their subcontractors. We will come back to that in a moment—an exception from the prohibition on the interception of a communication passing over a telecommunications system. Would you define that as an administrative task rather than an operational one? If you do, I might need to ask you: what is your definition of an operational activity? If it is the case that those who drafted the Alert Digest just have completely got it wrong, then I will let the issue rest, because I suspect there is plenty more that other senators want to ask. This seemed to me to be extremely important. A very broad range of people are potentially going to have powers delegated to them and there does not appear to be any circumscribing of the kinds of powers that can be delegated out, and it would appear, at least on the reading of this report, that that could include anything up to and including installing surveillance equipment or wire-taps. If, as I say, the committee simply got it wrong, I will not detain the chamber any further.

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

I do not know how many times I have to say this, Senator. That which may be delegated are powers of management, including financial management, not operational powers.

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

This might have occurred while I was out of the room, but where in either the act or the amendment is that prescribed?

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

By section 16.

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

You said at the very outset of the comments that you made that, to have these powers delegated to them, the affiliate would need to also be an officer of ASIO—which is how you argued the fact that those powers could not then be delegated out to somebody who worked for a foreign intelligence agency, because they would need to be an officer of ASIO. Will all these contractors and subcontractors also need to be defined as officers of ASIO for the purposes of the operation of this amendment?

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

No. The role of an affiliate—to give the example I gave you, a contractor—will be defined by the contract but there is no power to delegate operational powers to anyone other than an ASIO officer. A contractor is not an officer of an organisation.

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

Senator Brandis, I will go back to the transcript, because I thought that when I asked you before who powers could be delegated to you were black and white. You repeated yourself a number of times that they could only be delegated to an officer of ASIO. Now you are saying that they could be delegated to a contractor or a subcontractor who is not an officer of ASIO. Just clarify for us exactly how this provision will operate, if you will.

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

No operational function of ASIO may be delegated to anyone other than an officer of ASIO.

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

Where, Minister, can I find a definition of 'operational' as distinct from the technical, the financial and the management?

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

I do not think there is a definition in the act, Senator. I do not think there ever has been. I think the distinction between what we might broadly call administrative functions and operational functions of an intelligence or law enforcement agency is pretty readily appreciated and understood.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Could I go the Alert Digest No. 11 of 2014 that I referred to earlier from the Senate Standing Committee for the Scrutiny of Bills. At page 11, under the heading 'Undue trespass on personal rights and liberties—authorisation of a person to exercise significant power', it says:

ASIO affiliates may thus include a broad range of persons and it is unclear whether the exception should appropriately apply to them given their qualifications … and the nature of their ‘appointment’. The explanatory memorandum merely repeats the effect of the proposed amendment.

Can the Attorney indicate whether, for instance, if ASIO approaches an internet services provider as part of an operation and the ISP cooperates with ASIO in respect of that, does that mean that they would be an ASIO affiliate in those circumstances and therefore have certain protections in respect of that? Also, is the Attorney able to clarify the concern expressed by the Scrutiny of Bills Committee as to what the nature of the appointment would be and the protections afforded to affiliates? I think there was a concern raised by the committee in respect of that, saying that it is unclear whether the exception should appropriately apply to them, given their qualifications.

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

Senator, I am reluctant to speculate on the way in which these provisions might operate in hypothetical cases. I cannot really do any more than to point out to you, as I have done a number of times now, that there are certain things that ASIO, like any organisation, does through contractors, and they are comprehended within the definition of 'affiliates'. But the delegation of powers is not capable of being made in relation to operational matters.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I am grateful to the Attorney for his response. I guess, reading between the lines of the Alert Digestor one interpretation of it that can be reasonably made—is that, if there is an issue as to the nature of the appointment, that may lead to some liability or legal exposure for those affiliates. Of course, I think that is something that would not be desirable at all. If they are an affiliate, if they had been appointed to undertake a certain task, they would want to be sure that they have the privileges or the protections that go with that. My interpretation of the Alert Digest concerns is that there may be some gap that would leave those affiliates exposed to issues of legal liability.

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

Senator, the answer to your question is that any affiliate—and the best example I can give you which I think is readily understandable is a contractor; somebody who is not an officer or an employee of the organisation but an external contractor performing a particular function—is bound by two things. They are bound by the law and they are bound by the terms of their contract. There is no general exemption from legal liability in relation to a contractor. If they were to be indemnified by the organisation, that indemnity against a public liability, for example—they cannot be indemnified against a breach of the law, of course—would have to be found in the terms of their contract.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I am grateful to the Attorney for his response. I will again refer to the Alert Digest of the Senate Standing Committee for the Scrutiny of Bills. I do so because one of the great things about the Australian Senate is that we do have these processes for thoroughly scrutinising legislation. The committee process and the way the Attorney is engaging in this committee process is a fine example of that.

Page 12 of the Alert Digestrelates to enlarging the category of persons who may be authorised to exercise powers and extending authorisations to ASIO affiliates to receiving, communicating, using or recording foreign intelligence and also extending provisions to ASIO affiliates which permit the disclosure of information or documents to ASIO. That is just some of the examples given in the Alert Digest based on the legislation. The concern expressed by the committee was:

A key question for each of these instances is why is it appropriate to extend a range of powers, authorisations and exemptions to ASIO affiliates. This does not appear to be addressed in the explanatory memorandum other than to say it is 'consistent with operational requirements'. It seems to the committee that there is a real issue about what powers etc. might be appropriately be held by different classes of decision-makers, how appropriate qualifications will be determined and assessed and what safeguards will apply given that ASIO affiliates are not employees of the organisation.

I think they are reasonable questions by the committee. The Attorney has, in his previous answers, gone some way to explaining those, but I think it is an issue of concern. Insofar as the committee asserts that the explanatory memorandum does not address those issues, I would be grateful if the Attorney could address those issues now.

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

The committee has speculated upon the application of provisions in a range of hypothetical cases. I am not going to do that; I am going to respond to your evident and perfectly proper concerns by reassuring you that there is no capacity to delegate operational matters. The Australian Security Intelligence Organisation, like any other government agency, deals with contractors and other external parties who fall within the definition of affiliates all the time. It could be in relation to something as innocuous as, for example, catering services. You understand that.

The terms of the relationship between the organisation and an external entity which falls within the definition of affiliate will be governed by the contract between the organisation and the affiliate and the nature of the obligations will be found in the terms of that contract. But the point I want to make to you, because it seems to be at the heart of your concerns, is that the operational roles of ASIO—for example, participating in a covert operation—are something that has to be done by officers of ASIO. The operational role is not capable of being delegated outside the organisation.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I query whether for the Attorney to categorise these as hypothetical matters is actually correct. The Alert Digest makes reference to six particular matters under six subheadings. The first is:

• item 62 enlarges the category of person who may be authorised to exercise powers conferred by Part 2-2 warrants;

That is not hypothetical. The second is:

• item 63 extends authorisation to intercept communications on behalf of ASIO;

Again, I do not think that is hypothetical, and I think the same could be said for:

• item 67 allows ASIO affiliates to communicate foreign intelligence information to another person.

• item 69 extends to affiliates an exception to an offence relating to accessing stored communications;

• items 70, 71 and 72 will extend authorisation to ASIO affiliates relating to receiving, communicating, using or recording foreign intelligence; and

• items 73 and 74 will extend provisions to ASIO affiliates which permit the disclosure of information or documents to ASIO.

I do not think that they are hypothetical matters. I appreciate the Attorney's candor in his answers to date, but it seems that these are matters where the committee raised issues of how qualifications will be determined and assessed and what safeguards will apply given that those ASIO affiliates are not employees of the organisation. To categorise them as hypothetical matters is not fair. I think it is reasonable to say that the committee has identified a number of items where there are some additional powers. All I am trying to establish is how those additional powers will be dealt with and what safeguards will apply. The Attorney is quite right to say that this does not relate to operational matters, but can there sometimes be circumstances when a so-called management issue can flow into or intersect with an operational matter?

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

The provisions to which you have referred, Senator, if I understand your question correctly, are amendments to the Telecommunications (Interception and Access) Act. Is that correct? You refer to item 62 and following of the bill. Those are amendments to the Telecommunications (Interception and Access) Act. Is that right?

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

That's right.

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

The functions comprehended by those sections are not delegations of the Director-General's power. So, with respect, I think your question is based on a false premise, as I keep reminding you, Senator. There is to be found in the ASIO Act the power to delegate. The powers of ASIO are ultimately vested in the Director-General and in offices of ASIO. Merely to enter into an arrangement with an external entity, which would fall within the definition of an ASIO affiliate, is not to delegate a power. As I keep pointing out—I do not know how many times I have to say this—there is no capacity to delegate operational powers.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

At the risk of exasperating the Attorney—and I am not intending to—there is a proposition in the Alert Digest that asks what safeguards will apply, given that ASIO affiliates are not employees of the organisation. If my questions are based on a false premise, they are based on the Alert Digest in front of me. That, I think, will help crystallise the question. In other words: what safeguards are there given that ASIO affiliates are not employees of the organisation? Is the Attorney saying—I am not trying to answer the question for the Attorney—that the premise of the Alert Digest of the Senate Standing Committee for the Scrutiny of Bills is mistaken in its approach to this particular legislation? If that is the case, I cannot take it any further. But, if he considers that there is an issue with respect to safeguards that needs to be at least addressed, then it would be useful to address it now.

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

Senator Xenophon, I am relying on what you are quoting to me from this Senate Alert Digest which addresses what may be done under the Telecommunications (Interception and Access) Act. One of the agencies, as you know, which can avail itself of those powers in defined circumstances is ASIO. What ASIO may do, either by officers or by agents, including external third parties, is limited by the ASIO Act. What may be done under the Telecommunications (Interception and Access) Act limited by that act. So there is a double set of safeguards. There are safeguards in the ASIO Act that apply to any conduct by or on behalf of ASIO, and there are safeguards in the TIA Act that apply to any activity authorised under that act and anyone. You asked what safeguards there are. There are safeguards in the forms of limitations of what may be done by ASIO under its act and under the TIA Act.

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

Senator Brandis, at the outset of this debate you informed us that your or your office's or the department's response to the scrutiny committee was a public document. Could you seek advice as to whether that is correct? My understanding is that it has, in fact, not been published. It is still a draft and it will not be available until later this afternoon. Could you just seek advice and then inform us as to whether that document does, in fact, exist?

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

It is a public document. I am told it is being tabled during the course of the day.

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

It is a document that is not yet in the public domain. You did inform us before that we would be able to see it, that it is a public document. I took that to mean, in plain English, that it is something we would be able to access. When will the chamber actually be able to avail itself of this so-called public document?

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

Of course it is a public document. If it is a document that is published, it is a public document.

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

You haven't published it.

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

But, Senator, it is not being withheld from publication. It will be published, as these things always are, in the ordinary course of the Senate's business. I am not the author of the Senate standing orders. This is a category of document that is always put into the public domain and this document will also be put into the public domain at the normal time.

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

Senator Brandis, were you to seek leave to table this document so we could avail ourselves of it now, I am sure leave would be forthcoming. Could you just seek some advice as to whether you are able to actually put that document into the field now? If the clerks disagree, we will let that go, but this is something that is directly relevant the operation of the bill that we are debating now.

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

Senator Ludlam, we have been debating this bill since half past nine. As I say, I am not the author of the standing orders. What I want to do is get on with the debate. You have yet to move your first amendment. This bill has been in committee now for about an hour and a half. I would ask you to move your first amendment.

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

Senator Brandis, I will take as long as I need, as will other crossbench senators and presumably government senators, to establish how this bill will actually operate in practice. Thank you, again, for your advice on how to conduct the debate but it is not required. The Alert Digest contains another issue on page 12 under the heading, Insufficiently defined administrative power—exercise of authority under warrant conferred upon a person or class of persons, and states:

Proposed subsection 24(2) would enable the Director-General (or her or his delegate) to approve a class of persons as people authorised to exercise the authority conferred by relevant warrants or relevant device recovery provisions.

Senator Brandis, can you explain for us how the execution of various warrants under the ASIO Act, which, as the committee points out, involves the exercise or may involve the exercise of significant coercive powers, and whether you consider that to be an operational matter? Again, I think those who drafted the Alert Digest are putting to us that the exercise of authority that has been delegated to various people is extraordinarily wide. This is one of the most complex and detailed Alert Digests that I have come across. So, if the minister is not willing to provide us, in writing, with his answers to the very serious questions that have been raised, then I do propose to take as much time as I think is necessary to make sure that it is clear.

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

Senator Ludlam, the execution by ASIO of warrants is governed by very strict provisions in the act. It is also, I might say, governed by strict internal protocols and, of course, warrants are sought from the Attorney. As the officer of government who has to authorise these warrants from time to time I can assure you that the material put before the Attorney in order to satisfy the statutory tests is very, very extensive. Now, it is not for me, or for that matter for you, to speculate on the meaning of what is not a defined term in the act. We can each have our own views about the meaning of an ordinary term in the English language. I do not think that is very helpful, frankly. I did not understand it to be in controversy in this debate, even with the Greens, even with your party, Senator,—the manner of the execution of ASIO warrants—which have been an established part of the ASIO Act since, I believe, the first ASIO Act was enacted.

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

I take your point, Senator Brandis, and it is not something that we sought to bring forward by way of a committee stage amendment. It is something that, I believe, if those who have spent time drafting the Alert Digest thought it worth raising and seeking a specific advice, which you are not able to provide us with,—I well understand now that it will be provided later in the day—then I think it is worth canvassing in some detail. If we are not able to have that information in writing, the only way for us to get to it while we are at this stage of the debate is to put these questions to you now. Minister, I wonder whether you could satisfy for us—and I put this question to you in the form of words that it has been put by the scrutiny committee, which said:

… the committee seeks the Attorney-General's advice as to whether consideration has been given to these matters and whether there are ways in which to address them. The committee is also interested in whether it would be appropriate to provide legislative guidance as to any parameters on the class/es of persons to whom authorisation can be granted and whether the option to authorise classes of persons could be limited to emergency situations (those involving 'very short notice').

That is one particular remedy that the scrutiny committee have proposed. In your written response to the committee have you considered that possibility?

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

I have responded to that question by the committee, if that is what you mean, yes.

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

What is the nature of your response, Minister?

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

Senator, the nature of my response is that it is a written response to the question that was asked, which will be tabled during the ordinary course of Senate business at the time when the report and the response is tabled. Senator, if I may say so, through you Madam Temporary Chair, we are in the committee stage of the debate, none of the amendments circulated have yet been moved by any party. There is a series of questions that have come in, particularly from Senator Ludlam, to issues that have been raised by a Senate scrutiny committee to which a detailed response has in each particular case been provided but which, as a matter of ordinary course in the Senate business, will be tabled later in the day. I question whether or not we are now approaching an abuse of the committee stage of this debate by delaying the debate on amendments which have been circulated that, after nearly two hours, have not yet been commenced by questions which, in the ordinary course of events as part of the Senate's routine, as prescribed by the standing orders, will be tabled later in the day.

Sue Lines (WA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Brandis, the bill stands as printed and this is the opportunity for general debate. I think it is reasonable for Senator Ludlam, or indeed any senator, to explore issues around this bill.

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

Thank you, Chair. It is remarkable that, after the period of time in which Senator Brandis has sat in this chamber, you would even need to spell that out.

Senator Brandis, through the chair, the reason this is taking time is that you are refusing to provide us with your counterarguments, which you have written. You obviously consider that the concerns raised by the scrutiny committee are legitimate enough to be worth bothering to reply in writing. You are withholding those responses from those who are seeking to ask those same questions. You are offering to table them later in the day, presumably, after this opportunity for us to put these questions to you has lapsed and that opportunity will be lost. Then you wonder why things are taking time.

Let me spell it out: things are taking time because you are withholding information which you are proposing to provide in a couple of hours time. Just seek leave, table the document and we can move on, if we are satisfied with the answers that you have provided. Senator Brandis, in the meantime, through you, Chair, I do not appreciate being accused of abusing Senate procedure, for coming in here and asking you perfectly reasonable questions, which have been asked by a Senate committee and which deserve answers. With that in mind I would, again, invite you to just produce the document so that we can get on with the debate. Or, if not, feel free to just read in sections of what you have provided to the Scrutiny of Bills Committee so that we can see whether we are satisfied with your response.

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

I did not hear all of that, Senator Ludlam, because I was consulting with the shadow spokesman. However, might I point out to you that I am not at liberty to table the report of a committee of which I am not a member. Might I also point out to you, Senator Ludlam, that you are merely wasting the time of the committee stage of this debate when you could actually be moving your own amendments. I am not at liberty to table the report of a committee of which I am not a member.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

It is very rare that I quote the standing orders and I should do it more often. And I might take some cues from Senator O'Sullivan, who seems to know more about them in a couple of months than I have in six years. But if I could draw the Attorney's attention to standing order 166, under the heading 'Other methods of tabling documents,' which states:

1.   Other documents may be presented pursuant to statute, by the President, or by a minister.

Specific reference is made to the fact that a minister can provide:

to the President, or, if the President is unable to act, to the Deputy President, or, if the Deputy President is unavailable, to any one of the Temporary Chairmen of Committees, a document which is to be laid before the Senate …

It seems to me that standing order 166 may assist the Attorney in terms of tabling a document. As I understand it, it can be done pretty much automatically by the minister and that he is entitled to do so. I may have misunderstood standing order 166 but, on the face of it, that is what it says. That may give the Attorney comfort in order to table these documents sooner rather than later which may, in turn, assist the debate.

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

There are two things, Senator Xenophon, and I will also comprehend you in this reply, Senator Ludlam. I am looking at standing order 166. There are certain conditions that need to be satisfied, including the assent of the acting chair, if this is in the committee stage. I am not sure that I am in a position to avail myself of standing order 166, so I am not going to do so without careful consideration and without knowing what the attitude of others who must consent to the process you recommend may be. But may I say, Senator, particularly at a time like this, I find it unbelievable that you would spend two hours of the committee stage of the debate on an urgent bill playing procedural games and engaging in what is starting to sound a little like a filibuster.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I have great regard for the Attorney, but I take exception to being accused of playing procedural games. I have been referring to the Scrutiny of Bills Committee, to an Alert Digest in respect of this bill. I do not think that is an abuse of process. It is what we are meant to do. I do want to get to the amendments and I do want to deal with them expeditiously. But these are matters that were raised by a standing committee of the Senate that raised, I think, quite legitimate questions in respect of this bill. I will not cop it from the Attorney—with great respect to the Attorney—to be accused of filibustering or wasting the Senate's time. I simply alerted the Attorney to standing order 166 as a mechanism to perhaps short-circuit the debate on the tabling of documents. However, I think the questions and the answers given by the Attorney have been useful in understanding this very important bill.

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

I would just like to add my comments to those of Senator Xenophon. It is offensive in the extreme and, presumably, by invoking the urgency of this bill, Senator Brandis, you are accusing us of endangering people's safety and security by doing our jobs in here. And if that is what is insinuated, that is utterly offensive. There is a Bills Digest here and I have not even had time to count the number of times where the committee have said:

The committee draws Senators’ attention to the provisions, as they may be considered to trespass unduly on personal rights and liberties, in breach of … the committee’s terms of reference.

Quite a number of these have been brought to the chamber's attention and it is our job to come in here and put these questions and it is yours to provide answers. You have provided written answers to the committee and we have identified that there is a standing order that will allow you to table them so that we can now consider your answers rather than having you withhold them in here. The reason why this is taking so long, Senator Brandis, to spell it out to you, through you, Chair, is that you are withholding information that, in a couple of hours, will be put into the public domain. Provide it to the Senate now, while we are debating these provisions, then we can move on. If you need the consent of the temporary chair, which is what you put to us before, I find it hard to imagine that that would not be forthcoming.

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

Senator Ludlam, I do not know about that; I have not discussed it with the deputy chair. The point I make to you is that this is not—I do not have the liberty under that standing order to, by my own unilateral decision, take the course that you have recommended. This is not up to me alone, so I am not in a position in which I am able to do that. I am neither the author of the standing orders nor am I a member of the committee, so my hands are tied.

And I am not making an insinuation of the kind you suggest; I merely point out that this much, much scrutinised bill, which had its genesis more than two years ago, has been one of the most exhaustively scrutinised pieces of legislation that I can remember in my time in this parliament, and it is now quite urgent for reasons that we all understand. And frankly I think, given that your party, Senator, has circulated a number of amendments, that you would be eager to get on with the debate.

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

Chair, I seek your advice: if Senator Brandis seeks leave to put that document to the Senate, would consent be forthcoming from you? Let us see if we can untie the minister's hands, shall we? Under standing order 166(b), I understand committee chairs could also table the document—I do not have the standing order in front of me. I seek your advice, Chair, and maybe if you want to avail yourself of advice from the clerks, because this is getting a bit ridiculous, we can help Senator Brandis to do his job.

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

Senator Ludlam, my job is to progress this legislation through the chamber. That is what I am seeking to do in the face of your opposition. You and Senator Xenophon have asked me many questions about the bill, which I have responded to in detail and often. You are now proposing a course of variation of the Senate's procedure over which I have no power, so we are bogging down debate on an important piece of legislation with a quibble about procedural matters. What I am imploring you to do is to get on with the debate.

The TEMPORARY CHAIRMAN: The advice that I am given is that that report, as we have heard in the Senate, is due to be tabled in a few hours. I do not have the authority to ask that that report be tabled early. I understand that would have to be a decision of the whole Senate to table that report early.

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

I am sorry if you misunderstood the request that I put to you. It was: if Senator Brandis sought the permission of the chair to table the report whether that permission would be forthcoming from you—so the initiative would come from the Attorney. I am trying to identify if there is any procedural reasons or otherwise why that consent would not be forthcoming, and then we can move this absurd debate along.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I am just hoping to facilitate this matter. Rather than dealing with the issue of fast tracking the report, as I understand it there is nothing to limit the minister from releasing his response to the committee independently of that report.

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

I would be perfectly happy to do that but for the fact that my response, in the form of a letter, cannot be understood outside the context of the report. I am very eager to put Senator Ludlam at ease about these matters, but to in effect table my letter would be, for all practical purposes, to table the report and I am not at liberty to do that. I think it would be quite improper for me to do so.

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

Senator Brandis, I wonder whether it would at least be possible for you to read from the report or whether you would consent to doing that, because otherwise I do not understand how we are able to ascertain how you have dealt with the very serious concerns that the scrutiny committee has put to you and therefore to the chamber. Otherwise I am effectively just taking your word that we should let the debate move on. It is unlikely that we would really be able to come back to the substance of the scrutiny committee's issues, of which there are many. I am presuming you took them seriously enough to write a response, that you to regard them as serious—although I think you said before they were not very good lawyers. So if we just traverse them one by one, are you able to just provide us with an outline of how you have responded to each of the committee's concerns? Otherwise I think what you are asking us to do is just set it aside and trust you and, quite frankly, I do not.

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

I am not sure if I am being asked a question or not. I will answer any question relating to the bill that I am asked. I will not traduce the due process of the Senate by taking a course of action that I am not at liberty to take or to mount in effect to taking a course of action that I am not at liberty to take.

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

All right, we will leave it there. If there is no way that you can see to bring the document to the chamber's attention while we are having this debate, then I will return to the questions of substance and you can reply as best you are able.

On page 16 of the Alert Digest, as it relates to schedule 2, item 29:

These subsections in the current ASIO Act—

the committee states—

make it unlawful for an ASIO officer, employee or agent to use a listening device, certain optical surveillance devices … and a tracking device, where it would otherwise have been permissible in some States and Territories.

The committee says later on page 16,

It is possible that the—

proposed—

repeal of subsections 26(1) and 26A(1) may have the result of making the use of surveillance devices by ASIO lawful in circumstances beyond those authorised by Subdivision D. The explanatory memorandum states that uses not so authorised will generally be regulated by State and Territory law.

The substantive question that they have put to you, then, Senator Brandis, is:

The committee seeks advice from the Attorney-General as to whether there may be circumstances where use of surveillance devices by ASIO not authorised under Subdivision D may be lawful under State and Territory law and whether, therefore, the repeal of subsections 26(1) and 26A(1) will operate to enlarge the circumstances in which the use of surveillance devices is lawful.

I think you can see where this is going.

Further, if that is so, the committee seeks the Attorney-General’s advice as to the rationale for not dealing comprehensively with the legality of the use of surveillance devices by ASIO in the ASIO Act.

I will cease my quotation there and just acknowledge that that would seem to be an important, a relevant and a justified question for the committee to put to you. Could you foreshadow for us, or explain as best as you are able here, how you have responded to the committee, or how you would seek, I guess, to allay their concerns.

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

Senator Ludlam—

Sue Lines (WA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Brandis, a point of order: please wait for the call.

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

I am sorry. I did not know there was a point of order.

The TEMPORARY CHAIRMAN: Well, you just keep standing up and then speaking; I need to call you first.

But, I am sorry—is there a point of order?

The TEMPORARY CHAIRMAN: I was trying to draw your attention to standing up and speaking before I had asked you to. So just wait for me to say, 'Senator Brandis,' because it makes sure that Hansard knows who is speaking and so on. You have the call now, Senator Brandis.

Thank you. Senator Ludlam, I will not, for the reasons I have already explained, traduce the procedure of the Senate by, in effect, tabling the report; however, I can answer your question. The answer to your question is that the method that has been adopted by the provision to which you refer—that is, schedule 2, item 29—is to bring the provisions of the act into conformity with the scheme of the Surveillance Devices Act.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I have been following this debate with some interest. It is something that I believe is vital for the national security and the security of all of my fellow Australians. With all of these sorts of issues, there is always some apparent curtailment of liberties and freedoms we have enjoyed in the past. I have had a careful look through the work that Senator Brandis has done and what the government has proposed, and, whilst in different circumstances we might take a different view to this, I certainly am one of those in Australia—and I think there are a lot like me—who are very keen to see these measures implemented, even if it does, in some small way, impinge upon freedoms that I had previously enjoyed.

Quite frankly, I do not care who listens in to my phone. I would only feel sorry for them; they would die of boredom by listening! Certainly, I never have anything to hide. It does not, but if perchance this bill did give someone the right to listen to my phone calls because perhaps I was a threat to the community then so be it. But I have nothing to hide, so I do not care if they do.

It is important that we move on with the amendments that have been put. If there are other amendments to come, to address some of the issues that Senator Ludlam and Senator Xenophon have raised, then let us debate them, let us put them and let us get on, because it does seem to me essential that we do actually move on the bill.

I have not actually had a look at my standing orders. Senator Xenophon may be able to help me here. But, that being the case, I would seek leave to move the amendments listed in the name of the Australian Greens to schedule 2, items 12 and 25.

Leave granted.

I move Australian Greens amendments (1) and (2):

(1) Schedule 2, item 12, page 28 (after line 17), after subsection 25(6), insert:

  (6A) Subsection (5) authorises the use of a device to obtain access to data only if the total number of:

  (a) devices used to obtain access to data; and

  (b) devices from which data has been obtained;

(other than devices owned by the Commonwealth and brought on to premises specified in the warrant for the purpose of executing the warrant) in accordance with the warrant is no more than 20.

(2) Schedule 2, item 25, page 30 (after line 23), after subsection 25A(5), insert:

  (5AA) Subsection (4) authorises the use of a device to obtain access to data only if the total number of:

  (a) devices used to obtain access to data; and

  (b) devices from which data has been obtained;

(other than devices owned by the Commonwealth and brought on to premises specified in the warrant for the purpose of executing the warrant) in accordance with the warrant is no more than 20.

I do not think they are very clever amendments, and, having moved them, I would suggest to the Senate that they are ones that the Senate would give very great scrutiny to. I am not particularly in favour of it myself, but I leave it to those who think it is a good idea to actually propose the reason that these amendments should be adopted. At the present time I am not convinced that they should be adopted. But I will listen to the debate and listen to the minister's response.

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

Thank you very much indeed, Senator Macdonald, for facilitating the committee stage of the debate to begin, after Senator Ludlam's 2½ hour filibuster. The government opposes Greens amendments (1) and (2). The Greens are proposing to fix in legislation the total number of devices in relation to which ASIO can undertake activities under a warrant. As you, Senator Macdonald, would well understand, that would impose an arbitrary, artificial and wholly unworkable limitation that would frustrate the ability of ASIO to perform its statutory functions. How can anyone—certainly, how can Senator Ludlam—stand in the Senate today and anticipate what the needs of ASIO will be in relation to warrant based computer access next year, or in 10 years time, or for however long this legislation exists? The idea of saying today, in September 2014, that we know that in years to come there will never be a necessity for ASIO to have any more than a finite number of computer access warrants in operation is of course an absurdity.

In the majority of cases, it is unlikely to be known in advance of a warrant being issued which parts of a computer network will contain data relevant to the security matter in respect of which a warrant is issued. With the variety and number of devices now commonly used as well as the increasing use of computer networks and remote storage, it is highly probable that data may be stored on a number of devices. In exercising its functions, including its powers under a computer access warrant or search warrant, ASIO is required to comply with the Attorney-General's guidelines.

These require ASIO to use as little intrusion into individual privacy as is possible. The means used for obtaining information must also be proportionate to the gravity of the threat posed and the probability of its occurrence. In line with the PJCIS's unanimous recommendation, the government has issued an additional explanatory memorandum which explains the concept of a security matter in relation to section 25A and its limiting effect on the ability to issue warrants and authorise activities under them.

The Attorney-General can include appropriate conditions and restrictions in the warrant which could include a limitation on the number of devices to be accessed where appropriate. Limiting computer access warrants in the way the Greens propose would produce, as I said before, an absurdity. It would create a significant loss of ASIO's capability—perhaps that is Senator Ludlam's motive—which contradicts the position of the unanimous report of the PJCIS that there is a need to enhance, in line with developments in computer technology and its usage, ASIO's capability. It would be irresponsible in the extreme to seriously entertain that notion. I know Senator Macdonald has ridden to the rescue of the hapless Senator Ludlam by moving a motion he was unprepared to move, so that we could progress this debate in a mature and businesslike fashion. Having formally moved that motion, I hope I have persuaded you, Senator Macdonald, that the motion standing in the Australian Green's names is a nonsense.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

Minister, you have convinced me and it puts clarity to the point that came to my mind when I actually read the amendment, so much so have you convinced me that I now seek leave of the Senate to actually withdraw the amendment that I have moved.

Sue Lines (WA, Australian Labor Party) Share this | Link to this | Hansard source

Is leave granted?

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

No, leave is not granted. Also, by way of a point of order, could I seek your advice on how Senate practice applies to senators moving amendments that they have not actually introduced into the chamber—it seems somewhat unorthodox—and whether it then obliges Senator Macdonald to vote for the motion that he has put to the chamber. I am happy to debate it, but I just seek your advice in that regard.

The TEMPORARY CHAIRMAN: When Senator Macdonald indicated he wanted to move the amendment, I asked whether leave was granted and nobody stood up, and I granted him that leave.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I appreciate your ruling, Madam Chair, which is my understanding of what the standing orders say. That being the case and leave not been given to withdraw the amendment, I will briefly speak to the minister's response. I thank the minister for his explanation. It has reinforced my own thoughts that the amendment is quite ridiculous and takes away the powers the government and, I think, Australian society deem that our protectors—ASIO—need to have. Minister, as you point out quite correctly, how can we anticipate today what technology and what new arrangements might apply in the future? That would be curtailed if this amendment were to be passed. I thank the minister for his explanation.

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

I am happy to move to discussion of this amendment, but I foreshadow that, later in the debate, once the minister's response to the Scrutiny of Bills Committee is able to be read by people participating in this debate and if the minister has not to our satisfaction addressed the concerns that they have raised, we might revisit the issues even though we will obviously be in the clause-by-clause stage of the debate. I trust that the chair will allow for that to occur.

The reason the Greens have put forward this amendment is reasonably simple. Nearly all those who provided evidence to the joint committee on the bill noted a very wide loophole in the drafting in the way that a computer is defined. We are not seeking to amend that definition, but merely the way that ASIO's warranted intrusion powers would be interpreted. The simple interpretation is this: in expanding the definition of a computer to include a network or networks, you have effectively created an open-ended power for the exercise of a single warrant to, in theory, at least, to include anything connected to that device and anything connected to devices connected to that.

The internet obviously being a network of networks, I am not sure whether the government anticipates a maximum number of devices, for example, being mandated in these warrants. Is our reading of the drafting correct in that there is actually no upper limit to the number of devices that could be caught in the execution of a single warrant? If that is the case then that obviously justifies the purpose of this amendment. Firstly, if we could get the Attorney-General to explain whether there is an upper limit or whether that would be conceived of warrant by warrant, or exactly how open-ended this drafting is?

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

I have explained this in answer to Senator Macdonald. I have nothing to add.

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

I asked you a very straightforward question. Senator Macdonald did not raise this in his comments. You did not therefore address them because he did not think to ask. Is there a theoretical maximum to the number of devices that can now be caught by a single warrant, given that we have expanded the definition of a computer to include a network or networks. That is a fairly straightforward question that you have not addressed. If it is the case that there is no upper limit, just let us know. If there is an upper limit or if you let us know how ASIO would handle that internally at the stage of applying for it being granted a warrant then we can move on.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I think at this stage of the debate it is probably opportune for the opposition to contribute to the committee stage, and perhaps allow Senator Brandis some opportunity to at least deal with the facts of the matter that Senator Ludlam is raising. However, from the opposition's point of view I can indicate that our response to this amendment will be not to support it. Indeed, for almost all of the amendments other than the government amendments the position will be pretty much consistent.

These are the reasons for this, in part already referred to by Senator Brandis with respect to the quite exhaustive process that this bill has been through, where many of these issues have been dealt with by the joint committee and weighed up in terms of the balance between both the powers that are required in our current national security circumstances and the adequate protections that need to prevail. Of course, if the government is convinced by additional matters such as those that Senator Leyonhjelm forecast earlier, we are in a position to reconsider what has been reached as a joint position arising out of the Parliamentary Joint Committee on Intelligence and Security.

Let me remind the Senate that that process involved the public and key stakeholders providing input through the intelligence committee's inquiry process. From the Labor Party's point of view, we are confident that the measures provided to our security agencies by this bill are both necessary and appropriate. We are also confident that the intelligence committee has reviewed this bill thoroughly and had no additional amendments beyond those recommended by the committee—which, indeed, the government has adopted. That said though, we certainly have an open mind if there are further additional issues that come forward arising from broader consideration as now the crossbenchers have had the opportunity to raise these. Were the government of a mind to make further amendments, then we would consider those—as indeed we have with respect to the issues that have been raised around torture.

Perhaps for the committee's benefit I can also indicate at this stage that when we get to the amendments around torture that the opposition will not be proceeding with those. We have been assured—and I wait to hear from Senator Brandis—that when we get to the government amendments there will be additional commentary added to the explanatory memorandum to deal with the definition of what torture is, which was our concern in that matter.

But just before we reached 12.45, I would like to put on the record my concern at how this committee stage debate has been proceeding. Unfortunately, we just saw the process deteriorate to farce. Senator Macdonald moving Greens' amendments in committee stage amendments is something I have not seen in my time! Indeed, had they sought to, it was available to the government to proceed with their own amendments. I think we could get to the first one at about third if they were frustrated at dealing with what, from my point of view, were fairly reasonable questions during the committee stage consideration.

But I would say to the government that this process becomes more lengthy than necessary when amendments are circulated later than perhaps should have been the case, like when the minister tells the Senate that a matter raised by one of the senators is a public document and then we discover in subsequent debate that that public document is not yet public but will be made public later in the day, and when the minister ignores my suggestion that there is nothing to stop him, as minister, making available to the Senate the substance of his response to the scrutiny process. I think it is unfortunate that we have deteriorated the committee consideration in this way. I would encourage the government to ensure that when we return to the committee stage that we are in a position to deal with the issues that have been raised by the scrutiny committee and that we can move more promptly through the amendments.

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

I would like to respond quickly to what Senator Collins has said. Senator Collins, I was not at liberty to do that. Under standing order 166 I did not have the capacity unilaterally to do that. Had I had the capacity I expect I would have done so.

The government amendments were circulated yesterday. That is not late in the piece. The government amendments were based on the recommendations of a parliamentary committee which reported and whose report was published two weeks ago. I announced not quite two weeks ago that they would be adopted. So there has been no obscurity or delay in the publicity given to the government amendments. They have been in the public domain, in substance, for two weeks and in a technical drafting sense for more than the ordinary length of time. I am not going to engage in a verbal quibble with you about whether a document that is published is a public document because it has not been published yet.

Senator Ludlam, you have successfully filibustered this important debate for two hours now.

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

Madam Acting Chair, I raise a point of order. Acknowledging that this is an important debate, I ask Senator Brandis to withdraw the imputation that I filibustered anything. I have been asking you questions for a period of time, as have Senator Leyonhjelm and Senator Xenophon, that have been put into the public domain by the Scrutiny of Bills Committee. This is hardly a waste of time and I ask you to withdraw that. We have largely conducted debate respectfully and I would ask you to continue in that vein.

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

Madam Acting Chair, on the point of order: it is not, and never has been, regarded as unparliamentary language to say that another member of the Senate has engaged in filibustering.

Sue Lines (WA, Australian Labor Party) Share this | Link to this | Hansard source

There is no point of order. I think it is the flow of debate and I would urge that debate to continue.

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

Senator Ludlam, if you had been listening to my reply to Senator Macdonald, you would have heard the answer to your question. But you were not listening.

In my reply to Senator Macdonald I said that there is no arbitrary or artificial limit on the number of devices.

Debate interrupted; progress reported.