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

The committee is considering the National Security Legislation Amendment Bill (No. 1) 2014 and amendment (1) on sheet 7579, moved by Senator Leyonhjelm.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

The issue under consideration at the moment is how much access ASIO should have under a single warrant in terms of a computer network. We have heard from Senator Ludlam in relation to his amendment, which was about 20 computers. That amendment was not approved.

My amendment does not seek to constrain ASIO with respect to the number of computers, but it does seek to restrain ASIO with respect to what it might do with such access. It adopts the wording that was included in the explanatory memorandum and seeks to incorporate it into the bill, bearing in mind that the bill is the legislation, not the EM. I can see no reason why the government and the opposition would not support the incorporation of the language in the EM into the bill. What it says is:

Despite anything in section 25A, a computer access warrant issued under that section may authorise access to a computer—

and, in that context, 'a computer' refers to a computer network, which is the point of contention—

only to the extent necessary to collect intelligence in respect of the security matter specified in the warrant.

It is a modest amendment and it simply incorporates in the bill what was incorporated in the explanatory memorandum. It was, in fact, recommended by the joint committee.

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

The government does not support this amendment. There are sufficient limitations in the existing authorisation requirements in section 25A(2) and section 25A(4). Section 25A(2) provides that the minister can only issue a warrant if satisfied that there are reasonable grounds for believing that access by ASIO to a computer will substantially assist the collection of intelligence in respect of a security matter as specified in the warrant request.

Section 25A(4) provides that the minister may authorise certain activities if he or she considers it appropriate. One such activity is using the computer to obtain data that is relevant to the security matter in respect of which the warrant is issued. This means that any computer access must be for the purpose of collecting intelligence relevant to a particular security matter and not to some general or abstract notion of security. In addition, the minister could cause warrants subject to conditions which might further limit access if considered necessary or appropriate in particular operational circumstances. The proposed necessary test would impose a de facto last resort requirement significantly and inappropriately limiting the utility of ASIO's computer access warrants. The access would need to be essential or critical to collect the information relevant to the security matter. It would mean ASIO may be unable to access a computer or part of a computer because other methods of collecting intelligence relevant to the security matter exist, even though these methods may be less effective and carry a higher operational risk. This matter was considered extensively by the Parliamentary Joint Committee on Intelligence and Security. That committee came to the view, unanimously, that there was not a need to amend the legislation in this respect. However, it did, by recommendation 3, recommend that consideration be given to including extra material in the explanatory memorandum. As set out in the government's response to the committee's report, which I released last week, the government has accepted that recommendation.

Additional material has been included in the replacement explanatory memorandum to make clear that the thresholds for the issuing of computer access warrants and the authorisation of activities under those warrants are limited to those activities which are carried out for the purpose of collecting intelligence in respect of a specific security matter as set out in the warrant request. Might I refer you, Senator, to pages 75 to 76 of the replacement explanatory memorandum which deals with the matter.

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

I was waiting for an indication from the opposition. I put on the record my support, and the support of the Australian Greens, for the amendment which Senator Leyonhjelm has explained. It is obviously tackling the issue in a different way to that which the Australian Greens sought to do. Bear in mind the context. With the changes that the government has built into this bill and in negativing the Australian Greens amendment of a short time ago, effectively ASIO will now, on passage of this legislation, be empowered to access third-party computers that have no direct relationship to a particular operation and to cause disruption to that computer. We have tended to craft or phrase the debate in terms of intrusion or surveillance or monitoring of traffic that is passing over a network or through a particular device.

Obviously, with computer equipment, it is quite a bit more technical than that. These warrants will allow ASIO, or those working for ASIO, to modify these computers, to delete files, to install malware, to seek higher levels of user access and to impersonate people—not only on a particular specified device but, as I think we have well and truly established, on any device that it is connected to or is considered to be in a relationship with. The physical equivalent is if ASIO served a warrant to enter a particular house for a legitimate reason that also allowed them to enter any other house in the street or any other house in the country, actually, completely arbitrarily. That is certainly why the Australian Greens would support the amendment that obviously does not tackle the open-endedness—the government and the opposition have combined their numbers to leave that open-endedness on the statute books—but it will at least, as Senator Leyonhjelm has identified, further circumscribe the uses to which these warrants can be put. For that reason, we will be supporting it.

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

Senator Ludlam, in terms of the opposition position, it remains as it was for the previous amendment. I think I indicated on that occasion that our position would be fairly consistent throughout all of the amendments, which is that we are confident that the intelligence committee has reviewed the bill thoroughly and that no additional amendments beyond those recommended by the committee are required. I should indicate further, though, that this is the first tranche of national security legislation. Matters that might arise subsequent to the considerations of the intelligence committee can obviously be considered further by that committee and, indeed, by referral to the legal and constitutional committee, which I think occurred today with respect to that second tranche.

The CHAIRMAN: The question is that amendment No. 1 on sheet 7579 moved by Senator Leyonhjelm be agreed to.

The committee divided. [18:49]

(The Chairman—Senator Marshall)

Question negatived.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I, and on behalf of Senator Xenophon, Senator Madigan and Senator Ludlam, move amendment (1) on sheet 7582:

(1) Schedule 2, page 30 (after line 31), after item 28, insert:

28A After section 25A

  Insert:

25B Reporting by Inspector -General of Intelligence and Security

(1) The Director-General must, as soon as practicable after the end of each financial year and in any case within 28 days, give the Inspector-General of Intelligence and Security a report setting out the total number of devices accessed in accordance with a warrant under section 25 or 25A during the financial year.

(2) The Inspector-General's annual report referred to in section 35 of the Inspector-General of Intelligence and Security Act 1986for the financial year must include the number.

(3) The number included in accordance with subsection (2) must not be deleted from the report before it is laid before each House of the Parliament.

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

I see this as a minimalist amendment but an important one nonetheless. Senator Ludlam's amendment was defeated earlier—and I did not support it—in terms of the number of devices covered by a warrant. Senator Ludlam sought to circumscribe that. I can understand why the government and the opposition took the position that you should not do so because it could constrain, on an operational basis, the intelligence agencies from doing their work effectively. But what this amendment essentially does is require the Inspector-General of Intelligence and Security to give details in the annual report of how many devices are covered by these warrants. That is all it does. But it gives the public, the people of Australia, and this parliament an idea of how many devices have been captured by these warrants in terms of internet surveillance and surveillance of electronic devices. I think it is a reasonable transparency measure. It does not constrain or compromise any operational matters on the part of intelligence services but it does give us that glimmer of transparency that otherwise would be completely lacking in respect of the exercise of these warrants.

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

The Greens will be supporting this amendment. Where I disagree with Senator Xenophon is that we are seeking more than a glimmer of transparency. Nonetheless, this amendment is an improvement. It relates to recommendation 5 of the joint committee. I should also identify at this point that, in relation to the joint committee that has provided the source material for so much of this work, the government, when it came to power just over a year ago, moved to eliminate the crossbench position that in recent memory has been filled by Mr Andrew Wilkie. Since then, there has been no crossbench representation on the Parliamentary Joint Committee on Intelligence and Security. When the time comes to debate the bill the exclusion of the crossbench from that committee means our views have not been included—and then you get dissent in these amendments. The government supported recommendation 5 of the joint committee with respect to material disruption but not with respect to non-routine access. As Senator Xenophon has identified, it is minimalist but it is also very important. I think what Senator Leyonhjelm has done is extend the provisions of the bill so that both the minister and the Inspector-General of Intelligence and Security need to be notified of instances of material disruption. I think that does at least create a paper trail and a record of exactly what has been done under the use of these powers. I commend this amendment to the chamber.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I also commend this amendment to the chamber. What it does is prevent a blank cheque from being provided to ASIO in terms of the number of warrants and the number of computers that can be accessed, because they will be aware that those numbers will be reported in the annual report of the Inspector-General of Intelligence and Security. This provides a level of accountability which is currently missing. To my way of thinking, it does not interfere with the operations that are proposed under the ASIO Act but simply reminds ASIO that they are being scrutinised—and if there is one thing that we should never allow to occur, it is security agencies remaining unscrutinised.

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

The government does not support this amendment. Reporting publicly on the total number of devices accessed under warrants would not be appropriate as it may reveal sensitive information about ASIO's capability. Pursuant to section 94 of the ASIO Act the organisation's unclassified annual reports tabled in parliament do not contain information that would if disclosed be likely to prejudice security. The total number of warrants sought and obtained by ASIO is not included in any unclassified annual report for that reason. Similarly, provision is made in section 35 of the IGIS Act in relation to the unclassified annual reports of the IGIS. The proposed amendments to the bill would have the effect of overriding those important protections and are inconsistent with what are accepted as the existing principles governing disclosure or, in this case, non-disclosure. Further, it is not necessary to impose a specific annual reporting obligation on the IGIS in relation to the total number of computers accessed by ASIO in accordance with warrants because the IGIS has extensive oversight powers in relation to ASIO under which such information can be requested. The IGIS can of course inspect ASIO's warrant documentation at any time.

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

I appreciate that the position put by the various cross-party senators is minimalist and that they are hoping to attract support on that basis. But that does not change the in principle position that I have already indicated to the committee in relation to additional amendments—that is, we remain convinced at this stage that a comprehensive review of this bill by the joint committee has already occurred and no additional amendments beyond those recommended by the committee are required at this stage.

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

I thank the Attorney for his answer. But I just want to ask him a very brief question and I am happy for a very succinct answer. How could knowing the number of warrants but not what they are about or which operations they relate to, and the number of devices affected by those warrants if it is simply reported annually in aggregate terms, compromise security operations or national security? How could knowing whether 1,000, 10,000 or 100,000 devices are affected compromise national security without any further information other than the aggregate number of warrants and the aggregate number of devices that could be affected by those warrants?

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

Because, as I said in response to your remarks before, what it could do is reveal ASIO's capability—and that is never done. That is why the legislation at the moment contains the exclusions which it does.

John Madigan (Victoria, Democratic Labor Party) Share this | Link to this | Hansard source

Senator Brandis, are you able to tell the Senate how many applications for warrants have been rejected in your time as Attorney?

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

I do not think I am at liberty to tell you that, but I can tell you that there have been applications for warrants rejected by me.

Question negatived.

Glenn Lazarus (Queensland, Palmer United Party) Share this | Link to this | Hansard source

by leave—I move Palmer United Party amendments (3) and (4) on sheet 7564 together:

(3) Schedule 6, page 85 (after line 27), after item 5, insert:

5A Subsections 92(1) and (1A) (penalty)

  Repeal the penalty, substitute:

Penalty:   Imprisonment for 10 years.

(4) Schedule 6, page 103 (after line 29), after item 19, insert:

19A Subsection 41(1) (penalty)

  Repeal the penalty, substitute:

Penalty:   Imprisonment for 10 years.

As I already indicated, the Palmer United Party supports the National Security Legislation Amendment Bill (No. 1) 2014. We support the need to increase intelligence powers in this country. We need to give ASIO and ASIS the powers they need to do their job well.

The bill will increase various powers—including powers in relation to intelligence gathering and intelligence operations—and their reach. Advances in technology and communications necessitate this. The internet, while a tool which has revolutionised the way we live, work and operate, has also revolutionised the way sinister and criminal behaviour is orchestrated and undertaken across the world. The internet poses one of the greatest threats to our existence because of this. Therefore we must give ASIO and ASIS increased powers, capability and reach to do what must be done to protect, maintain and advance our safety and security. The people involved in protecting our country put their lives at risk every day. We must ensure that we afford these people the highest level of protection. These people are involved in covert operations which require the highest levels of secrecy, discretion and anonymity.

My amendments increase the penalty associated with exposing the identity of an ASIO or ASIS officer from one year to 10 years. Exposure of an ASIO or ASIS officer's identity puts the officer's life and livelihood at risk and it puts the security and safety of our country at risk. Exposure of an ASIO or ASIS officer's identity is therefore a form of treason. Treason is a serious matter. It is a direct breach of a person's allegiance to this country. It is a breach which compromises our national security. It is an act which harms the interests of our country. This is not an act which should be taken lightly. If anything, in the context of what we have seen happen in our country recently, we need to harden our stance on the need for our people to demonstrate their undivided loyalty to our country, our laws and our Constitution.

While my amendments increase the penalty for exposure of an ASIO or ASIS officer's identity from one year's jail, which is what you would expect for a small offence, to 10 years jail, which is the sort of penalty that should be applied in the case of a serious crime, a prosecution under the division may be instituted only by, or with the consent of, the Attorney-General or a person acting under the Attorney-General's direction. The Attorney-General still has the capability to manage the way Australia responds to acts of treason. If charged under this division, the matter will be dealt with in the judicial system, where every person is given a fair, just and exhaustive hearing. Exposure of an ASIO or ASIS officer's identity is a form of treason and should carry the potential for a harsh penalty. I therefore commend my amendments to the chamber.

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

The government accepts and supports the amendments moved by Senator Lazarus on behalf of the Palmer United Party. In saying that, might I take the opportunity to thank Senator Lazarus and his colleagues for their very constructive engagement with the government in relation to this legislation. We acknowledge the persuasive observation that the penalties applying to those offences are currently disproportionately low in comparison with the wrongdoing they seek to punish. The existing maximum penalties are unlikely to serve as a serious disincentive to such behaviour and we agree that it is appropriate to increase them.

The identify of our intelligence officers is highly sensitive information. Revealing their identifies can expose them to serious harm by making them targets for espionage or coercion. It could also involve exposing them to the risk of physical harm. The lives, safety and livelihoods of our intelligence professionals depends on maintaining absolute secrecy as to their identities. Australia's capacity to collect intelligence to protect its security and other national interests similarly depends on this. It is everyone's responsibility to keep this sensitive information confidential—and, particularly, to refrain from publishing it. A maximum ten years penalty will create a strong disincentive to such wrongful behaviour. It will, importantly, maintain parity with the penalty proposed to be applied to offences in schedule 6 of the bill concerning the unauthorised communication of intelligence related information. Indeed, the identity of intelligence officers could be seen as a form of intelligence related information. For those reasons, as I said at the outset, the government supports the Palmer United Party's amendments and thanks them for their foresight in moving them.

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

I should indicate, again, consistent with the responses I have given previously, that Labor cannot accept these amendments at this stage. The Labor Party agreed to a process with the government that involved joint committee consideration of proposed changes, and I am advised that this issue was not canvassed in that process and that these matters have not been considered by the Parliamentary Joint Committee on Intelligence and Security. We are concerned that what is proposed here is an increase in penalties tenfold, and, whilst there may well be—

Honourable Senators:

Honourable senators interjecting—

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

as senators are currently interjecting, a good argument to that effect, I think, consistent with the process that Labor agreed to with the government, those issues should be addressed by the parliamentary joint committee and, as I pointed out previously in relation to amendments that have been proposed by other senators, that opportunity does indeed exist in relation to the next tranche of measures.

So we are not necessarily opposed on the issue of dealing with penalties, but, at this stage of the process, as indeed regarding some of the other amendments that have been proposed, Labor would like to see the process that we signed onto in the first instance proceeded with.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I and the Liberal Democrats will not be supporting these amendments. It is worth noting that maximum penalties are merely that—maximums—and judges very rarely impose such penalties. There is also very little evidence that maximum penalties have any deterrent effect in the commission of many crimes.

I also have to note that, in respect of schedule 6, a subsequent amendment will be moved by me in relation to penalties, and therefore the argument that 10 years is consistent with the penalties in schedule 6 would not be consistent with my views in relation to schedule 6.

I note also the comments by Senator Collins in relation to the fact that these have not been considered by the joint committee. I further note that neither I nor any of the other crossbench senators were involved in the joint committee and will not be involved in subsequent considerations by the joint committee of further legislation. Therefore, I would just mention to the Attorney that issues along these lines may in fact arise again in future.

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

I will just make a few comments on behalf of the Australian Greens. I understand why these amendments have been brought forward. The Australian Greens will not be supporting them—not quite in the same way as the opposition, which I think has just decided not to support any amendments that did not make it out of the parliamentary joint committee, but more on the merits. This is an issue on which the intelligence agencies have had—and Senator Brandis reminded us of this—a very long lead time; this is a very long lead-time process that we are involved in here. This has been underway for nearly two years and takes us back to the process's initiation by Minister Roxon—I think she was the Attorney at the time that this process was set in motion. And I am not aware of, at any time, ASIO bringing this matter forward as an issue of concern. Senator Brandis has been very reluctant to respond to the questions earlier in the debate but I do not know whether, at this stage, on this different matter, he is aware of whether the issue was raised before the PJCIS when he was on that committee, whether the government simply missed a burning issue, or whether in fact this has not been something that was exercising the minds of the agencies, because it appears that they got pretty much everything else that they were after in the process of drafting these bills. So I would just seek that advice from the Attorney-General, and, secondly, by way of a supplementary question, advice on whether these provisions have been used in anger—whether there have actually been recent prosecutions. I understand why the identities of these people need to be kept secret, and that is a longstanding tradition. But I guess I am just seeking some indication of why the government has suddenly discovered the urgency of this matter.

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

The question is that amendments (3) and (4) be agreed to.

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

I have two things on which to make quick comments in relation to these particular amendments. I will, with some reservations, support these amendments for these reasons. I think that disclosing the identity of an ASIO or ASIS officer can, in some cases, sign their death warrant if they are involved in an undercover operation. Obviously the court would need to consider those matters in the case of an offence, but I think that the need to protect the identity of those officers is a significant consideration. I do note very closely Senator Collins's concerns about the process in respect of this, but I want to be consistent with my remarks earlier in the course of this debate as to adequately protecting, and having adequate deterrents against disclosing, the identity of agents. However, I would like to ask the Attorney, as briefly as possible: is this a matter that has been raised in terms of the adequacy of deterrents for disclosing the identity of agents? Is this a matter that has been on his radar through intelligence agencies? Can he indicate in broad terms: is this a concern that he has had—that the penalty has not been adequate in the past?

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

Senator Xenophon, thank you for your indication that you propose to support these amendments. The answer to your question is yes. And, as to the reason for the amendment, which has been expressed very well, if I may say so, by Senator Lazarus: you have just expressed it once again yourself—this is information which, if disclosed, could put a man's or woman's life at risk while in the service of their country on a dangerous operation. I am not being rhetorical; that is literally true. As Senator Leyonhjelm has, if I may say so, very wisely observed, we should never make the mistake of thinking that a maximum penalty is the penalty that will necessarily or even commonly be imposed. Of course there is a gradation of considerations to which all courts have regard. This is not a statutory minimum penalty; it is a maximum penalty, and therefore would be reserved for the most serious class of case. So one must ask oneself the question: what is the most serious class of case in which one can imagine the disclosure of the identity of an intelligence services officer?

The answer would be, as you have said Senator Xenophon, a class of case where perhaps that person might lose their life as a result of that malevolent act. Then, I think, a reasonable person would be satisfied that a maximum penalty of 10 years imprisonment is not an unduly draconian sanction.

The CHAIRMAN: The question is that amendments (3) and (4) on sheet 7564 be agreed to.

Question agreed to.

The CHAIRMAN: Senator Lazarus, you have amendments (1) and (2), is it still your intention to oppose items 1 to 3 and 7 of schedule 4?

Glenn Lazarus (Queensland, Palmer United Party) Share this | Link to this | Hansard source

Yes. I move:

(1) Schedule 4, items 1 to 3, page 72 (lines 5 to 14), to be opposed.

(2) Schedule 4, item 7, page 72 (lines 24 to 29), to be opposed.

The CHAIRMAN: The question is that items 1 to 3 and 7 of schedule 4 stand as printed.

Question negatived.

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

I seek leave to move all government amendments together.

Leave granted.

I move government amendments (1) and (2) on sheet HK105 and government amendments (1) to (54) on sheet ZA357:

(1) Schedule 3, item 3, page 62 (after line 32), after subparagraph 35C(2)(e)(i), insert:

     (ia) constitute torture; or

(2) Schedule 3, item 3, page 67 (after line 20), after subparagraph 35K(1)(e)(i), insert:

     (ia) constitutes torture; or

(1) Schedule 2, page 55 (after line 4), after item 45, insert:

45A After section 31

  Insert:

31A Notification requirements in relation to the use of force under warrant

(1) This section applies if a warrant issued under this Division authorises the use of force against persons to do the things authorised by the warrant.

(2) The Director-General must cause the Minister and the Inspector-General of Intelligence and Security to be notified if such force is used against a person in the execution of the warrant.

(3) The notification must be given:

  (a) in writing; and

  (b) as soon as practicable after such force is used.

(2) Schedule 2, page 55 (after line 33), after item 46, insert:

46A Section 34

  Before "The", insert "(1)".

46B At the end of section 34

  Add:

(2) If:

  (a) the warrant was issued under section 25, 25A, 27A, 27C or 29; and

  (b) a thing mentioned in subsection 25(5) or 25A(4), paragraph 27D(2)(h) to (k) or subsection 27E(2) was done under the warrant;

the report must also include details of anything done that materially interfered with, interrupted or obstructed the lawful use by other persons of a computer or other electronic equipment, or a data storage device.

(3) Schedule 2, item 47, page 56 (before line 12), before paragraph 34AA(2)(a), insert:

  (aa) a warrant issued under section 25, but only if the warrant authorises the doing of acts or things referred to in paragraph 25(5)(a), (b), (c) or (d), and only with respect to those acts or things; or

(4) Schedule 2, item 47, page 56 (line 14), before "section 25A", insert "subsection 25(5) or".

(5) Schedule 2, item 47, page 56 (line 17), after "authorised under", insert "paragraphs 27D(2)(h) to (k) or".

(6) Schedule 2, item 47, page 57 (line 35), after "section", insert "25,".

(7) Schedule 3, item 1, page 60 (lines 7 to 9), omit the definition of authorising officer.

(8) Schedule 3, item 1, page 60 (after line 10), after the definition of engage in conduct, insert:

  IGIS official (short for Inspector-General of Intelligence and Security official) means:

  (a) the Inspector-General of Intelligence and Security; or

  (b) a member of the staff referred to in subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986.

(9) Schedule 3, item 3, page 61 (line 18), omit "An ASIO employee may apply to an authorising officer", substitute "The Director-General, a senior position-holder or an ASIO employee may apply to the Minister".

(10) Schedule 3, item 3, page 62 (lines 4 and 5), omit paragraph 35B(4)(b), substitute:

  (b) give a copy of it to the Minister.

(11) Schedule 3, item 3, page 62 (lines 10 to 12), omit paragraph 35C(1)(b), substitute:

  (b) the Minister is satisfied that there are reasonable grounds on which to believe that the matters in subsection (2) exist;

(12) Schedule 3, item 3, page 62 (line 13), omit "authorising officer", substitute "Minister".

(13) Schedule 3, item 3, page 63 (lines 4 and 5), omit "authorising officer", substitute "Minister".

(14) Schedule 3, item 3, page 63 (lines 6 to 9), omit paragraph 35C(4)(b), substitute:

  (b) if the Minister is satisfied there are reasonable grounds on which to believe that the delay caused by giving a written authority may be prejudicial to security—orally in person, or by telephone or other means of communication.

(15) Schedule 3, item 3, page 63 (lines 10 to 13), omit subsection 35C(5), substitute:

(5) If a special intelligence operation authority is granted in accordance with paragraph (4)(b), a written record of the special intelligence operation authority that complies with section 35D must be issued within 7 days.

(16) Schedule 3, item 3, page 63 (line 31), omit "general".

(17) Schedule 3, item 3, page 64 (lines 12 and 13), omit all the words from and including "as long as" to the end of subsection 35D(2), substitute "as long as the person's identity can be matched to the assumed name, code name or code number".

(18) Schedule 3, item 3, page 64 (lines 24 to 27), omit subsection 35F(1), substitute:

(1) The Minister may vary a special intelligence operation authority on application by the Director-General, a senior position-holder or an ASIO employee.

(19) Schedule 3, item 3, page 64 (line 29), omit "paragraph (1)(b)", substitute "subsection (1)".

(20) Schedule 3, item 3, page 65 (line 4), omit "(1)(b)", substitute "(2)(b)".

(21) Schedule 3, item 3, page 65 (lines 6 and 7), omit paragraph 35F(3)(b), substitute:

  (b) give a copy of it to the Minister.

(22) Schedule 3, item 3, page 65 (lines 9 to 16), omit subsection 35F(4) (not including the heading), substitute:

(4) The Minister must not vary the special intelligence operation authority unless the Minister:

  (a) is satisfied that there are reasonable grounds on which to believe that the special intelligence operation, conducted in accordance with the special intelligence operation authority as varied, will assist the Organisation in the performance of one or more special intelligence functions; and

  (b) considers it is appropriate to do so.

(23) Schedule 3, item 3, page 65 (lines 22 and 23), omit "authorising officer", substitute "Minister".

(24) Schedule 3, item 3, page 65 (lines 24 to 27), omit paragraph 35F(6)(b), substitute:

  (b) if the Minister is satisfied there are reasonable grounds on which to believe that the delay caused by giving a written variation may be prejudicial to security—orally in person, or by telephone or other means of communication.

(25) Schedule 3, item 3, page 65 (lines 28 to 31), omit subsection 35F(7), substitute:

(7) If a special intelligence operation authority is varied in accordance with paragraph (6)(b), a written record of the variation must be issued within 7 days.

(26) Schedule 3, item 3, page 66 (line 5), omit "An authorising officer", substitute "The Director-General or a Deputy Director-General".

(27) Schedule 3, item 3, page 69 (after line 23), at the end of subsection 35P(1), add:

Note: Recklessness is the fault element for the circumstance described in paragraph (1)(b)—see section 5.6 of the Criminal Code.

(28) Schedule 3, item 3, page 70 (after line 4), at the end of subsection 35P(2), add:

Note: Recklessness is the fault element for the circumstance described in paragraph (2)(b)—see section 5.6 of the Criminal Code.

(29) Schedule 3, item 3, page 70 (after line 14), after paragraph 35P(3)(d), insert:

  ; or (e) for the purpose of obtaining legal advice in relation to the special intelligence operation; or

(f) to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986; or

  (g) by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act.

(30) Schedule 3, item 3, page 70 (after line 22), after section 35P, insert:

35PA Notifications by Director -General

(1) The Director-General must cause the Inspector-General of Intelligence and Security to be notified if a special intelligence operation is authorised under this Division.

(2) The notification must be given:

  (a) in writing; and

  (b) as soon as practicable after the special intelligence operation authority is granted.

(31) Schedule 3, item 3, page 71 (after line 8), after subsection 35Q(2), insert:

  (2A) A report under subsection (1) must report on whether conduct of a participant in a special intelligence operation:

  (a) caused the death of, or injury to, any person; or

  (b) involved the commission of a sexual offence against any person; or

(c) resulted in loss of, or damage to, property.

(32) Schedule 3, item 3, page 71 (lines 12 to 15), omit subsection 35R(1), substitute:

(1) The Minister may issue a written certificate signed by the Minister setting out such facts as the Minister considers relevant with respect to the granting of a special intelligence operation authority.

(33) Schedule 6, item 2, page 81 (line 9), omit "Subsection (1)", substitute "Subsection (2)".

(34) Schedule 6, item 2, page 81 (after line 13), after subsection 18(2A), insert:

Exception—communication to the Inspector -General of Intelligence and Security

  (2B) Subsection (2) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2B) (see subsection 13.3(3) of the Criminal Code).

(35) Schedule 6, item 4, page 82 (after line 29), after subsection 18A(2), insert:

Exception—Inspector -General of Intelligence and Security

  (2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

(36) Schedule 6, item 4, page 84 (after line 22), after subsection 18B(2), insert:

Exception—Inspector -General of Intelligence and Security

  (2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

(37) Schedule 6, item 4, page 85 (after line 25), after section 18C, insert:

18D Offences against section 18, 18A or 18B—IGIS officials

(1) A person does not commit an offence against subsection 18(2), 18A(1) or 18B(1) if:

  (a) the person is an IGIS official; and

  (b) the relevant conduct is engaged in by the person for the purposes of exercising powers, or performing functions or duties, as an IGIS official.

(2) In a prosecution for an offence against subsection 18(2), 18A(1) or 18B(1), the defendant does not bear an evidential burden in relation to the matter in subsection (1) of this section, despite subsection 13.3(3) of the Criminal Code.

(38) Schedule 6, item 6, page 86 (before line 4), before the definition of record, insert:

  IGIS official (short for Inspector-General of Intelligence and Security official) means:

  (a) the Inspector-General of Intelligence and Security; or

  (b) a member of the staff referred to in subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986.

(39) Schedule 6, item 11, page 86 (after line 27), after subsection 39(2), insert:

Exception—communication to the Inspector -General of Intelligence and Security

(3) Subsection (1) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code).

(40) Schedule 6, item 14, page 87 (after line 13), after subsection 39A(2), insert:

Exception—communication to the Inspector -General of Intelligence and Security

(3) Subsection (1) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.

(41) Schedule 6, item 17, page 87 (after line 26), after subsection 40(2), insert:

Exception—communication to the Inspector -General of Intelligence and Security

(3) Subsection (1) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.

(42) Schedule 6, item 18, page 88 (after line 35), at the end of section 40A, add:

Exception—communication to the Inspector -General of Intelligence and Security

(3) Subsection (1) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code).

(43) Schedule 6, item 18, page 89 (after line 34), at the end of section 40B, add:

Exception—communication to the Inspector -General of Intelligence and Security

(3) Subsection (1) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.

(44) Schedule 6, item 18, page 91 (after line 2), after subsection 40C(2), insert:

Exception—Inspector -General of Intelligence and Security

  (2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(45) Schedule 6, item 18, page 92 (after line 12), after subsection 40D(2), insert:

Exception—communication to the Inspector -General of Intelligence and Security

  (2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(46) Schedule 6, item 18, page 93 (after line 28), after subsection 40E(2), insert:

Exception—Inspector -General of Intelligence and Security

  (2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(47) Schedule 6, item 18, page 95 (after line 6), after subsection 40F(2), insert:

Exception—communication to the Inspector -General of Intelligence and Security

  (2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(48) Schedule 6, item 18, page 96 (after line 20), after subsection 40G(2), insert:

Exception—Inspector -General of Intelligence and Security

  (2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(49) Schedule 6, item 18, page 97 (after line 32), after subsection 40H(2), insert:

Exception—communication to the Inspector -General of Intelligence and Security

  (2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(50) Schedule 6, item 18, page 99 (after line 13), after subsection 40J(2), insert:

Exception—Inspector -General of Intelligence and Security

  (2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(51) Schedule 6, item 18, page 100 (after line 24), after subsection 40K(2), insert:

Exception—communication to the Inspector -General of Intelligence and Security

  (2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(52) Schedule 6, item 18, page 102 (after line 6), after subsection 40L(2), insert:

Exception—Inspector -General of Intelligence and Security

  (2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(53) Schedule 6, item 18, page 103 (after line 15), after subsection 40M(2), insert:

Exception—communication to the Inspector -General of Intelligence and Security

  (2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(54) Schedule 6, item 21, page 104 (after line 23), after section 41A, insert:

41B Offences against this Division—IGIS officials

(1) A person does not commit an offence against an information offence provision if:

  (a) the person is an IGIS official; and

  (b) the relevant conduct is engaged in by the person for the purpose of exercising powers, or performing functions or duties, as an IGIS official.

(2) In a prosecution for an offence against an information offence provision, the defendant does not bear an evidential burden in relation to the matter in subsection (1), despite subsection 13.3(3) of the Criminal Code.

(3) In this section:

  information offence provision means subsection 39(1), 39A(1), 40(1), 40A(1), 40B(1), 40C(1), 40D(1), 40E(1), 40F(1), 40G(1), 40H(1), 40J(1), 40K(1), 40L(1) or 40M(1).

As the chamber has heard from several contributions, the government amendments are in all respects amendments which give effect to the unanimous recommendations of the Parliamentary Joint Committee on Intelligence and Security. They are relatively modest amendments, indeed amendments essentially of a technical character. They include some additional oversight mechanisms—for example, the interposition of the Attorney-General's fiat before a special intelligence operation can be undertaken. Let me quickly summarise them. The focus is primarily on enhancing oversight and reporting in relation to ASIO's warrants and special intelligence operations. The amendments also insert some new exceptions to offences for the disclosure of intelligence related information for the avoidance of doubt. Seven of the 16 recommendations require amendments to the bill of a largely technical nature. There are 12 groups of amendments, which I will summarise briefly.

Amendment (1) will implement recommendation 6 of the PJCIS report to require ASIO to notify the Attorney-General and the Inspector-General of Intelligence and Security when reasonable force is exercised against a person in the execution of a warrant.

Amendment (2) will implement recommendation 5 of the PJCIS report to require ASIO to include further information in its ministerial reports on the execution of warrants under section 34 of the ASIO Act. The amendment will require ASIO to report on details of any material disruptions to computers.

Amendments (3), (4), (5) and (6) will correct a minor oversight in the drafting of the evidentiary certificate provisions in section 34AA of the ASIO Act. That the provision creates a new scheme of evidentiary certificates to protect technical and other sensitive operational information about how warrants are executed. A particular warrant type, namely a search warrant, was unintentionally left out of the drafting.

Amendments (7), (9), (10), (11), (12), (13), (14), (15), (17), (18), (21), (22), (23), (24), (25), (26) and (32) will implement recommendation 9 of the PJCIS report that authorisations for the commencement and variation special intelligence operations conducted by ASIO should be provided by the Attorney-General.

Amendments (8) and (29) will implement recommendation 11 of the PJCIS report, which recommended additional exceptions to the offences in section 35P for the disclosure of information relating to special intelligence operations. Consistent with the committee's recommendation, new exceptions will be included for persons who disclose information for the purpose of seeking legal advice, or to the Inspector-General of Intelligence and Security or his or her staff. A further exception will apply to the IGIS and his or her staff for communications within the office of the IGIS to create absolute certainty that the offences do not apply in those circumstances.

Amendment (16) addresses an issue identified by the Senate Scrutiny of Bills Committee about the 'reckless' description of conduct to be authorised under a special intelligence operation. The relevant provision, section 35D(1)(c), currently requires a description of the general nature of the conduct authorised. In response to the committee's comment, amendment (16) will change this to a description of the nature of the conduct.

Amendments (20) and (33) will make minor technical corrections to deal with typographical errors in the bill as introduced.

Amendments (27) and (28) will implement the government's response to recommendation 13 of the PJCIS report to include an express statement of the relevant fault elements applying to the new offences for the disclosure of information relating to special intelligence operations. These amendments insert notes to the offences confirming the applicable fault elements.

Amendments (30) and (31) will implement recommendation 10 of the PJCIS report that additional notification requirements should apply to the special intelligence operations. These include notification to the IGIS when operations are authorised and additional requirements and periodic reports to the minister and the IGIS on operations. ASIO will be required to include details of whether any conduct of a participant has caused death, injury, loss or damage to a person.

Amendments (34) through to (54) will implement recommendation 14 of the PJCIS report. The committee recommended that additional exceptions should apply to the offences in schedule 6 of the bill. Those are the offences concerning entrusted persons who disclose or place at risk intelligence related information. Consistent with the committee's recommendation, new exceptions will apply to persons who communicate information to the Inspector-General of Intelligence and Security or his or her staff. A further exception will apply to the IGIS and his or her staff where these persons communicate information to one another in the performance of their functions and official duties. They will remove any risk that the offences might operate as a perceived disincentive to people who may wish to report any matters of concern to the IGIS.

Those are the recommendations in summary. They are, as you can see, recommendations which principally will increase the oversight and safeguards regime already built into an act which has an extensive oversight and safeguards regime written into it, or are of the technical character, or are for the purposes of clarification only. As I said at the start, these are unanimous recommendations.

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

I can indicate Labor's support for all government amendments. I outlined the reasons for that in my second reading contribution. I do not need to revisit the detail of all those amendments already expressed, in part by Senator Brandis but also by me during the second reading contribution, other than to indicate our support.

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

I omitted to mention one other important amendment. That is government amendment on sheet HK105. That is the amendment which will include an express exclusion of conduct constituting torture from the regime of special intelligence operations conducted by ASIO. The government maintains its view that conduct constituting torture cannot be authorised as part of a special intelligence operation or subject to the limited immunity from legal liability. There can be no sensible suggestion that such gross violations of Australia's international human rights obligations are in any way necessary for, or relevant to, ASIO's functions. ASIO cannot, does not and has never engaged in torture.

However, I acknowledge that some honourable senators, and I note in particular the concerns raised by Senator Leyonhjelm, had sought an express exclusion of torture from conduct capable of being authorised under section 35C and from the immunity in section 35K. In order to make the existing legal position explicit on the face of the legislation, these amendments do this. I note that the amendments are declaratory of the existing legal position. They do not change the law. I hope, Senator Leyonhjelm, they give you the reassurance that you had sought.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I will support the government amendments. I rise merely to note that I am grateful to the Attorney. Although I have a different opinion as to the legal status of torture, I am grateful that he is reflecting my concerns in this amendment.

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

I am not sure if I am cutting across Senator Leyonhjelm here. Unfortunately, I was distracted for a moment. I wanted to indicate for the committee's benefit that at the start of the committee stage consideration I indicated we would not be proceeding with the amendment we circulated which expressed our concern that a definition of 'torture' needed to be dealt with. My understanding, and unfortunately my adviser is not here at the moment, was that the government would be addressing that matter in a supplementary explanatory memorandum. Would Senator Brandis care to comment on that?

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

Yes, Senator Collins, that is the case. For those who might be listening to this broadcast, to avoid any obscurity the opposition decided, as the government did, to put to rest what in my view is plainly a false issue. Nevertheless, we would explicitly exclude torture from the category of conduct that is capable of attracting an immunity in relation to a special intelligence operation. The opposition amendment was expressed in very slightly different language from the government's. The government's prohibition was, in fact, slightly broader than the opposition's. But in any event, I gave an indication to Senator Collins that there is not an issue between the government and the opposition, and that has been done. I think that is all I need to say.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Could I ask the indulgence of the Attorney. I was also a little concerned at the absence of a definition of 'torture'. I assumed there was a common law definition or some other definition in legislation which would apply. Somewhat unlike a libertarian, I trusted the government on that point. Could you please provide me with some assurance that that is the case, or will this be addressed in a subsequent amendment, as Senator Collins has suggested?

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

Senator Leyonhjelm, I am told this has been addressed in the revised explanatory memorandum that I believe has been circulated—it is about to be circulated, I am told. I am sorry. The definition of 'torture' which we have included—I am sure you will be happy with this—is a broader definition which is based upon the definition in the international instruments to which Australia is a party, and in particular the convention on the elimination of torture.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Excuse me if I slept through this in my law degree, but to what extent does explanatory memorandum bind the interpretation of the act when it becomes an act?

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

It is a material. Under the Acts Interpretation Act, it is a material to which a court may have regard in construing an act. We have used the word 'torture'. Torture has received meaning in international law, because it is defined in international instruments to which Australia is a party. Australian domestic law reflects what is now a commonly understood definition of 'torture'. The EM directs the attention—not that I would imagine it would be necessary, given there is a received meaning of this concept in law—of any court that might be called upon to construe this provision to the definition in that instrument.

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

The Greens will be supporting the government amendments for most of the reasons Senator Brandis put forward. The amendments not entirely but largely reflect the recommendations that the PJCIS made when the bill they had effectively constructed was referred back to them a few weeks ago. The amendments are marginal at best, which is why the Greens have sought to more our own committee stage amendments. Nonetheless, Senator Brandis has accurately outlined the fact that these amendments were largely in the spirit of the recommendations that the PJCIS put forward. They go no way towards persuading me that this is a bill which should see the light of day. Nonetheless, they do offer marginal improvements to the way that the bill is operated in some of the reporting obligations contained in there. So we will be supporting them.

I also understand that Senator Collins will not proceed with an amendment to similar effect on the issue that Senator Leyonhjelm raised around torture. It goes to the categories of conduct for which ASIO officers can seek immunity and protection. I thank the government for acknowledging at least that that was an issue they sought to put beyond doubt. It is not something that I thought was necessarily going to be a huge problem. It is not something that ASIO officers, certainly not in recent history or in recent memory, have ever been accused of perpetrating. Nonetheless, by Senator Leyonhjelm bringing it forward to the parliament and to the media's attention, and by the government acting quite swiftly to set the question to rest, at least it is one issue which can be taken off the table as a matter of concern for the bill. Apart from that, I think the government sought leave to move all its amendments en bloc. The Australian Greens will be supporting that.

Alex Gallacher (SA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that government amendments on sheet ZA357 and HK105 be agreed to.

Question agreed to

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I move amendment (2) on sheet 7579:

(2) Schedule 2, page 55 (before line 5), before item 46, insert:

46A Before section 32

  Insert:

32A Notification requirements in relation to interference with computer use under warrant etc.

(1) This section applies if:

  (a) a warrant was issued under section 25, 25A, 27A, 27C or 29; and

  (b) a thing mentioned in subsection 25(5) or 25A(4), paragraph 27D(2)(h) to (k) or subsection 27E(2) was done under the warrant.

(2) The Director-General must cause the Minister and the Inspector-General of Intelligence and Security to be notified of any material interference with, or interruption or obstruction of, the lawful use by other persons of a computer or other electronic equipment, or a data storage device, that resulted from the thing being done.

(3) The notification must be given:

  (a) in writing; and

  (b) as soon as practicable after the thing was done.

This amendment relates to recommendation 5 of the joint committee. The committee recommended that instances of material disruption of a computer and instances of non-routine access to third-party computers be reported to the minister. The government supported this recommendation with respect to material disruption and rejected the recommendation with respect to non-routine access. The government has just amended the bill to require reporting to the minister any instances of material disruption. Our amendment simply extends this so that both the minister and the Inspector-General of Intelligence and Security need to be notified of instances of material disruption. It is a small amendment and it simply reflects recommendation 5 of the joint committee.

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

The government does not support this amendment merely because we consider it to be unnecessary. The government has already moved amendments implementing the recommendations of the PJCIS, which the Senate has now adopted, that ASIO must report to the minister of instances of material interference with the lawful use of a computer by other persons. A specific reporting requirement to the IGIS is not necessary now because the IGIS has extensive powers of inspection under the Inspector-General of Intelligence and Security Act. The IGIS exercises this power routinely in relation to ASIO's warrants and gave evidence at the PJCIS hearing that she would continue to do so in relation to computer access powers and, as I said, Senator Leyonhjelm, following the government amendments just passed by the Senate, the matter which is the subject of your current amendment is a matter in respect of which there has to be express notification.

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

In indicating that our position remains as it has been throughout the non-government amendments, I would however like to indicate appreciation for Senator Leyonhjelm's constructive approach in relation to these issues. He put considerable energy and effort into both the consideration of this bill and also the committee stage consideration, and I should add into his submission to the joint parliamentary committee. While I understand there are some concerns about crossbench senators not necessarily being able to participate in detailed considerations, on the next occasion, as I understand, the second tranche will be going before the Legal and Constitutional Affairs Committee. From observing Senator Leyonhjelm's contribution here today, I expect he will continue to contribute through that process as well. I suppose I can only add, as I have said previously, that this is the first tranche and any outstanding issues of our consideration at this stage can potentially be addressed on a future occasion.

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

The Australian Greens will be supporting this amendment. In fact, I think I may have inadvertently declared my support for it at an earlier stage of the debate. I would also like to acknowledge the diligence with which Senator Leyonhjelm has brought these issues to bear. This amendment more closely reflects the will of the parliamentary joint committee than does the government bill and the government amendments which have been brought forward. For that reason we will be supporting it.

Alex Gallacher (SA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that amendment 2 on sheet 7579 be agreed to.

Question negatived.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I move amendment (3) on sheet 7579:

(1) Schedule 2, page 30 (after line 31), after item 28, insert:

28A After section 25A

  Insert:

25B Collection of intelligence under computer access warrant

     Despite anything in section 25A, a computer access warrant issued under that section may authorise access to a computer only to the extent necessary to collect intelligence in respect of the security matter specified in the warrant.

(2) Schedule 2, page 55 (before line 5), before item 46, insert:

46A Before section 32

  Insert:

32A Notification requirements in relation to interference with computer use under warrant etc.

(1) This section applies if:

  (a) a warrant was issued under section 25, 25A, 27A, 27C or 29; and

  (b) a thing mentioned in subsection 25(5) or 25A(4), paragraph 27D(2)(h) to (k) or subsection 27E(2) was done under the warrant.

(2) The Director-General must cause the Minister and the Inspector-General of Intelligence and Security to be notified of any material interference with, or interruption or obstruction of, the lawful use by other persons of a computer or other electronic equipment, or a data storage device, that resulted from the thing being done.

(3) The notification must be given:

  (a) in writing; and

  (b) as soon as practicable after the thing was done.

(3) Schedule 3, item 3, page 63 (after line 22), after section 35C, insert:

35CA Sunsetting

     A special intelligence operation authority must not be granted after the end of 30 June 2025.

(4) Schedule 3, item 3, page 69 (lines 30 and 31), omit "or prejudice the effective conduct of a special intelligence operation".

(5) Schedule 3, item 3, page 70 (lines 2 and 3), omit "or prejudice the effective conduct of a special intelligence operation".

(6) Schedule 3, item 3, page 70 (line 14), at the end of subsection 35P(3), add:

  ; or (e) of information that has already been disclosed by the Minister, Director-General or Deputy Director-General; or

(f) made reasonably and in good faith, and was in the public interest.

(7) Schedule 3, item 3, page 70 (after line 16), after subsection 35P(3), insert:

  (3A) Subsections (1) and (2) do not apply if:

  (a) the person informed the Organisation about the proposed disclosure at least 24 hours before making the disclosure; and

  (b) the disclosure did not include information on the identities of participants of a special intelligence operation, or on a current special intelligence operation; and

(c) the information concerns corruption or misconduct in relation to a special intelligence operation.

Note: A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.

(8) Schedule 5, items 9 and 10, page 74 (lines 4 to 19), to be opposed.

(9) Schedule 5, item 14, page 79 (lines 1 and 2), omit subparagraph 1(1A)(a)(i).

This is an amendment to impose a sunset clause on special intelligence operations. Under the amendment, no authority for SIO could be granted after 30 June 2025. I am relying on public statements by the Attorney-General to this effect, but I understand that the government has agreed to sunset clauses to 2025 for other significant security powers, including preventive detention. SIOs—special intelligence operations—involve a broad immunity for ASIO operatives and impose very heavy penalties for unauthorised disclosures. As such, they should be seen as a significant security power.

The Prime Minister has stated that our current circumstances justify the current rebalancing of security and freedom concerns. These circumstances may or may not be present in 2025. Given this, I can see no reason why the government and opposition would not support this item.

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

The government does not support this amendment. When one introduces sunset provisions one does so because a view is taken at the time the legislation is passed, because of the particular character of the provisions sought to be sunsetted, that it is prudent to have a termination date—usually some years into the future—at which the necessity and utility of the provision can be reassessed. And if the government and parliament of the day on that future date do not consider otherwise, the provision automatically expires.

But this regime is by no means a temporary regime. We do not foresee that the augmentation of ASIO's powers by these provisions is something that is going to expire. It is essential to ASIO's ability to collect intelligence relevant to security that it can have close access to entities or individuals of security concern. Currently, some significant operations are not able to commence because such close access may enliven security offences—for example, those relating to associating with terrorist organisations. I appreciate Senator Leyonhjelm's desire to ensure rigorous oversight. As the PJCIS acknowledged, this outcome is achieved by the current bill with that committee's recommended enhancements which the Senate has not adopted. I note that the controlled operations scheme for law enforcement agencies such as the Australian Federal Police is not subject to a sunset clause either. Similarly, the limited immunity from liability in section 14 of the Intelligence Services Act is not subject to a sunset provision.

What we are asking the Senate to adopt in the measures which you seek to sunset is a provision which is consistent with existing laws of other intelligence agencies and the Australian Federal Police, which are not sunsetted. It is a set of provisions that reflect the core business of ASIO which, for as long as ASIO exists, are likely to continue to be needed. That is a judgement that we can make in the here and now, and not in years to come.

Of course, because of the particular character of national security legislation, because it does involve sometimes unusual intrusions on the liberties and privacy of the citizen, the government subjects this kind of legislation to a superabundant level of scrutiny, to which more commonplace legislation is not subject. It is subject to the IGIS, as you know, and it is also subject to the Independent National Security Legislation Monitor who, at any time, can come back to the government and say, 'I no longer consider these provisions to be necessary, and recommend that they be repealed or amended.'

So, Senator Leyonhjelm, I understand why you say what you say but, through the superabundant review processes which apply to this legislation, the concern you express is already accommodated by those arrangements. In any event, it is the government's view—and it is consistent with analogous legislation in intelligence and law enforcement—that this is not the sort of provision which is suitable for a sunset clause.

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

I can indicate that the opposition will not be supporting the amendment.

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

Very briefly, I can indicate my strong support for this amendment of Senator Leyonhjelm. I believe that it is important to have an adequate sunset clause. I note with interest that over the years since the PATRIOT Act was passed in the United States, more and more members of the US Congress have reservations about the extent of those powers in the PATRIOT Act. More and more Democrats, and indeed Republicans, are concerned about that act. There is a narrowing gap between those who want to maintain the PATRIOT Act in its current form and those who want to have it scrapped.

I think that having a sunset clause would force a review. The year 2025 is still quite a way away. It does not leave a gap or a hiatus in the legislation; it just alerts us to the fact that we need to thoroughly review the need for the legislation at that time.

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

The Australian Greens strongly support this proposal. The Greens have not sought to amend the bill to remove the provisions relating to SIOs. We figured it would be simpler to express our opposition simply be voting against the bill. But I think Senator Leyonhjelm has brought forward an extremely valuable point that reflects a huge number of the submissions that were made in relation to this bill from different parties right across the political spectrum—from the Law Council and from others who we have quoted during the debate—that the entire SIO framework is extremely flawed. Just how flawed it is we will debate in a little bit more detail when we discuss amendments that are forthcoming, around the reporting and transmission of information about them.

But the very least that we can do, if the legislation is to stay on the statute books, is to ensure—just to give you one example—that an Independent National Security Legislation Monitor evaluating how these instruments are being used in practice could well recommend to a future parliament that they lapse. If I had had the presence of mind to draft the amendment I suspect that I would not have let it lie for 10 full years, but it is Senator Leyonhjelm's drafting. We will be supporting it, and I hope the government will as well.

The TEMPORARY CHAIRMAN: The question is that amendment (3) on sheet 7579 be agreed to.

Question negatived.

Now we get to one of the most serious parts of this debate and one of the areas where I struggle to understand how a government—that 18 or so months ago, when there were proposals to reform some elements of the architecture of media regulation in this country, shouted to the rooftops about curtailment of press freedom—would seek to bring provisions as draconian as what we see before us tonight and that have been condemned from one end of the country to the other. Effectively—and I will read a few quotes in shortly—it is proposed to criminalise the reporting of one of these special intelligence operations, the transmission about it, so this would relate not necessarily to journalists, because obviously they are not named in the bill, but people sharing Facebook information about one of these operations may well find themselves falling foul of the law.

By leave—I move Australian Green amendments (3) to (5) together:

(3) Schedule 3, item 3, page 69 (lines 19 to 23), omit subsection 35P(1).

(4) Schedule 3, item 3, page 70 (line 6), omit "Subsections (1) and (2) do", substitute "Subsection (2) does".

(5) Schedule 3, item 3, page 70 (line 20), omit "(1) or".

It effectively relates to the criminalisation of the reporting of national security issues. We will do this in two tranches and I will speak at more length on the first. There is a later batch of amendments that relate to similar matters, and I will reserve my comments on those now. These ones relate specifically to reporting of SIOs and even their mere existence.

Schedule 3 creates new offences relating to disclosing information on special intelligence operations or SIOs with a penalty of five years imprisonment. Schedule 6 creates new offence provisions and updates existing offences relating to the unauthorised disclosure of intelligence information, and we will come to those a little later in the debate.

Under the proposed subsection 35P(1):

a person will commit an offence if he or she:

The maximum penalty for the offence will be imprisonment for five years.

These offences are by far the most controversial of the proposed scheme—and, I would argue, of the proposed legislation. Two major concerns have been raised: the offences do not contain exceptions for public interest disclosures, which I think Senator Xenophon will try and address in a forthcoming amendment; or whistleblowing by ASIO employees. They apply to any person and would thereby capture disclosures by, for example, journalists. Many submitters made that point to the PJCIS.

I go back to earlier stages of the debate yesterday where we were discussing the document that the Scrutiny of Bills Committee had prepares when evaluating this bill. They identified 19 areas over which they had grave concerns. One of them was this very issue, subsection 35P—the committee sought a fuller justification from the Attorney as to why a penalty of imprisonment for five years is considered appropriate, given the breadth of application of the offence provision.

What this means in practice, which was stated very bluntly by a number of the submitters—and the first contribution that I would like to read is submission no. 17 by combined media organisations and signed by the following: AAP, ABC, APN, Astra, Bauer Media, Commercial Radio Australia, Fairfax Media, FreeTV, the MEAA, News Corp Australia, SBS and the West Australian.

Under a section of their submission, which they have entitled ' Jailing journalists for doing their jobs,' they say:

The insertion of proposed section 35P could potentially see journalists jailed for undertaking and discharging their legitimate role in a modern democratic society—reporting in the public interest. Such an approach is untenable, and must not be included in the legislation.

I can say to our colleagues in the press gallery tonight that this is included in the legislation and that we may be about to legislate away your extremely important role in our democracy.

They go on to say:

This alone is more than adequate reason to abandon the proposal as the proposed provision significantly curtails freedom of speech and reporting in the public interest.

This is particularly so as the proposed section 35P prohibits any disclosure of information relating to an SIO, not just reporting in the public interest.

It is a blanket prohibition. The trick is: how would you know if you had done that, because the very existence of SIOs would be suppressed?

These entities make up by far the largest fraction of those working in the parliamentary press gallery—I am not sure where they all are tonight but, nonetheless, their submission speaks for itself. They go on to say:

In addition, SIOs by their very nature will be undisclosed. This uncertainty will expose journalists to an

unacceptable level of risk and consequentially have a chilling effect on the reportage of all intelligence and

national security material. A journalist or editor will simply have no way of knowing whether the matter

they are reporting may or may not be related to an SIO. We express this as information that ‘may or may

not be’ related to an SIO because:

This submission is damning. I cannot for the life of me understand why the opposition is lining up and supporting this uncritically. Perhaps Senator Collins can inform us, but I would like Senator Brandis to tell us how those in this press gallery and working journalists around the country will know in advance whether what they are deciding to report in tomorrow's paper may or may not be related to an SIO. How will they know without simply publishing and hoping for the best?

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

The Greens seek to remove from the bill the offence in section 35P(1), which applies to persons who intentionally communicate information reckless as to the circumstance that it relates to a special intelligence operation. The government does not support this amendment. It is inconsistent with the unanimous view of the PJCIS. As the PJCIS in its report recognised, the offence provision is necessary and appropriate to protect sensitive information about the existence and conduct of covert intelligence operations.

The very disclosure of the existence of such covert operations creates a risk. They may be compromised, and the safety of the participants and their families might be placed in jeopardy. Such a risk could be immediate or could arise over the longer term. There is no way of controlling it once it is disclosed. This risk of harm, potentially harm to life, is inherent in the disclosure of such information. It does not depend in any way on the discloser's intention. Justice Hope observed in his 1984 report on ASIO, if I may quote him:

The disclosure of secrets or secure areas to risk through inadvertence or carelessness can result in just as much damage to the national interest as can result from espionage or sabotage.

But here, unlike the observations Justice Hope made all those years ago, we have a higher threshold—that is, intention to disclose with reckless disregard of the circumstances.

The Australian Law Reform Commission has also endorsed the view that offences concerning unauthorised disclosure of intelligence related information should not be limited to those which require proof of harm or malicious intent. That is because such harm is inherent in the very act of disclosure, which places the information at risk.

As the PJCIS further recognised, the offence requires the prosecution to prove that the person who disclosed the information was reckless as to the fact that it related to a special intelligence operation. And, of course, Senator—it perhaps should go without saying but let me remind you—that this being a criminal offence, the burden of proof lies on the prosecution to prove every element beyond reasonable doubt. As the PJCIS acknowledged, this is an onerous burden of proof. The prosecution must establish to that standard of proof that the person knew of a substantial risk that the information resulted to a special intelligence operation. It must then establish that the person nonetheless and unjustifiably in the circumstances took the risk of making the disclosure.

Senator Ludlam, might I also point out to you that, although you claim in an exuberance of rhetoric that this is a new and extremely dangerous provision, it is entirely of a piece with a number of existing provisions in the law. In particular, the offence elements are identical to the existing provisions of section 15HJ of the Crimes Act, which creates the same offence in relation to the disclosure of controlled operations by the Australian Federal Police. That provision was inserted by the previous government in 2010. In fact, there have been no prosecutions or referrals for prosecution to date. That should tell you that this is a provision that would be very sparingly used. It should also give you a level of reassurance, I hope. It strongly suggests that the offences are not operating to unduly curtail media reporting or public disclosure in relation to security matters.

If I may say so, Senator Ludlam, you often raise a false fear. This is not about reporting on the operation of the intelligence agencies. It is about intentionally disclosing a covert operation with reckless disregard as to that circumstance and in circumstances where, because of the very nature of a covert operation, the persons involved in that covert operation are likely to be placed at risk of harm or, indeed, at risk of their lives.

Lastly, Senator Ludlam, you did say in your contribution that you were concerned that this would constrain or eliminate the rights of whistleblowers. That also, Senator Ludlam, like so many things you said, is erroneous. The existing protections of whistleblowers under the ASIO Act are preserved and are unaffected by this amendment.

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

Senator Ludlam addressed at least part of his question to the opposition, so I will supplement Senator Brandis's comments with the point that the joint parliamentary committee probably spent the most time on issues addressing this particular matter, and the opposition remains confident with the outcome and the recommendations arising from that, which are reflected in the government amendment that makes clear that the offence only operates where a person is aware of a substantial risk that information relates to an SIO and it is unjustifiable to take that risk. Once again, Senator Ludlam, we would be relying on the consideration of the joint parliamentary committee.

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

I indicate my support for this amendment for these reasons. This amendment does not touch clause 35P(2), which relates to committing an offence if you disclose information relating to a special intelligence operation and it could in any way endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation. So it is not just about the health and safety of our intelligence officers, which ought to be a very key and important consideration. That is why I supported Senator Lazarus's amendment to increase substantially the penalty in respect of that. This amendment seeks to delete the offence of up to five years imprisonment for simply disclosing a special intelligence operation. It must be read in conjunction with subclause (2), which ought to remain subject, I hope, to an amendment that I will be moving in respect of public interest considerations. That is the difference. If you disclose information, and that information prejudices an operation, prejudices the health or safety of intelligence officers, that will still be an offence. The Australian Greens are not seeking to get rid of that.

I think we need to listen to the fourth estate in relation to this. I think we need to listen to organisations as diverse as Fairfax Media, AAP, SBS, Commercial Radio Australia, the West Australian, the ABC, free TV and News Corp in relation to their concerns. They have set out very clearly and unambiguously:

The insertion of proposed section 35P could potentially see journalists jailed for undertaking and discharging their legitimate role in the modern democratic society—reporting in the public interest. Such an approach is untenable and must not be included in the legislation.

I am conscious of time and I will be as quick as I can, but I do want to make mention to what occurred almost 30 years ago.

Almost 30 years ago, Peter Wright, a counterintelligence officer from Britain's MI5—which is the UK's counterpart to ASIO—wrote a book entitled Spycatcher. The British government, in particular the British Attorney-General, Sir Michael Havers, in consultation with the Director of Public Prosecutions, decided to prosecute Wright for unauthorised disclosure of classified information. Heinemann, the UK publishing house, tried to avoid an injunction preventing publication by transferring the book to the Australian subsidiary. The British government decided to take legal action in Australia and in the United Kingdom. Accordingly, in September 1985, the British Attorney-General began proceedings in Australia against Peter Wright and the publisher, Heinemann Australia, seeking an injunction to prevent publication on the grounds that Wright was in breach of his duty of confidentiality to the Crown.

The Attorney-General admitted, for the purposes of those proceedings only, that all the allegations in Spycatcher were correct. The admission that Sir Roger Hollis, a former MI5 director-general, had been a Soviet spy was of considerable public interest in Australia, since Hollis had had a major role in the foundation of ASIO. The Spycatcher trial lasted five weeks. Peter Wright's counsel was a young—some would say brash—then 32-year-old lawyer named Malcolm Turnbull. On that historic occasion, Malcolm Turnbull was able to make fun—and rightly so—of the exaggerated levels of British secrecy. The Australian Cabinet Secretary, Michael Codd, in evidence at the trial claimed that, if Spycatcher were to be published in Australia, the intelligence agencies of Britain and other friendly countries would be unwilling to exchange secret intelligence with Australia. But Spycatcher was published and the sky did not fall in. The intelligence agencies of Britain and other friendly countries are quite happy to exchange secret intelligence with Australia.

My fear is that, under this bill, with this particular provision—the subject of so much concern by the media, the fourth estate in this country—Spycatcher could not be published in Australia. That is a situation we must not permit. This is where the bill is weak. It assumes a best-case scenario and impeccable behaviour by all concerned. I have referred to the witness K case in relation to East Timor—a different set of circumstances, but the principles are the same. The foundation of Western political thought, as the Attorney-General knows full well—and I say that as a compliment—is that we do not rely solely on individuals to be good or rulers to be righteous but on institutions to provide checks and balances. This has been known since at least the second half of the 18th century when Montesquieu, a French political philosopher, championed the need to resist tyranny by fragmenting government power, particularly through the device of the separation of powers. I have real concerns about the impact of this particular piece of the legislation on the freedom of the press.

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

I would say on behalf of those I cited before who put that submission—and Senator Xenophon just cited—that they raised the question about whether SIOs can be declared retrospectively. I do not think it is something that we have canvassed in the debate thus far. Senator Brandis, I wonder whether you could clarify whether that is possible under the operation of the act.

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

No.

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

I thank Senator Brandis for the clarity of his answer. It is actually quite embracing. I would also put to you the concerns that I shared before. The submission that the MEAA put to the joint committee, submission No. 6, raised a very interesting case study—that being the phone-tapping of the wife of Indonesian President Susilo Bambang Yudhoyono. It was controversial reporting—I would argue, public interest reporting—and it was obviously based on disclosure of operations that took place well before the SIO scheme came into place. Senator Brandis, had that wiretapping been done under the framework of an SIO—which I think is entirely plausible—would that reporting have been illegal?

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

I am not going to indulge Senator Ludlam by answering hypothetical cases or cases of historical interest—or, indeed, addressing cases or issues that may come before the courts. The legislation is before you, Senator. You have made your position clear. You are entitled to the view that you take. Really, that is all I have to say to you.

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

That is rather extraordinary, because that is not a hypothetical case. So I will put another one to you. In submission No. 12, the Guardianwho do a lot of national security reporting, as you would be well aware—note on page 8 of their submission:

Of the 20 public reports of the Inspector-General (as at 31 July 2014), nine appear to have been triggered directly or indirectly by media disclosures.

The unfortunate case of Dr Mohamed Haneef was largely brought to light by the media.

That is a case that has well and truly run its course. It is not something that is going to be brought before the courts. I wonder, Attorney, whether you could outline for us whether reporting of that case—strongly, clearly and unambiguously in the public interest—would have been illegal if an SIO had been in place at the time of those events.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that Australian Greens amendments—

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

It is unacceptable that the minister has just returned to an earlier rather childish pattern of behaviour of simply refusing to answer simple questions put in the committee stage. It is absolutely extraordinary. Thank you for at least acknowledging that I am entitled to have these views—and so are the many, many people, including the working journalists of this country who have put these questions before you. They do not get the opportunity to ask questions in the committee stage. That is my job, and I would appreciate at least the courtesy of a response to direct and relevant questions that I am putting to you. That is what this stage of debate is for. The Human Rights Commission noted—as many others did; not just journalists and their representatives—on page 14 of their submission No 28:

… the provisions deal with disclosures from ‘a person’, they have the potential to capture the work of journalists and potentially limit the right to freedom of expression under article 19 of the ICCPR. The HRC has stated that:

the media plays a crucial role in informing the public about acts of terrorism and its capacity to operate should not be unduly restricted. In this regard, journalists should not be penalized for carrying out their legitimate activities.

Senator Brandis, how is it that all of these entities who study these issues for a living could possibly have it so wrong? By what means does the government believe that the potential criminalisation of national security reporting makes our country any safer?

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I rise tonight to support my colleague Senator Ludlam in asking Senator Brandis to answer the questions. This is the committee stage of this important legislation. This is seriously challenging the right of journalists to be able to report in the public interest. It is extraordinary that he is refusing to answer very straightforward questions. Of course, we know that the Labor opposition is going to go along with this regardless; they are not even interested in the answers. But the Fourth Estate in Australia are interested and we want to know exactly what the penalties are going to be. Journalists around the world are being jailed for simply reporting the news. We know that in the case of Peter Greste, for example, our own journalist in Egypt, and we have condemned the Egyptian government and the legal system there for the farce that was the trial that sees him continue to languish in prison in Egypt for simply doing his job.

We are putting to Senator Brandis here tonight questions that go to the heart of the issues of reporting what is going on. I cannot believe that here on a Thursday night this chamber is virtually empty and yet we have seen already tonight penalties increase from one to 10 years for various things. Incredibly draconian legislation is being passed, and the minister responsible either cannot or will not answer and is smug because the opposition is going along with it. I ask Senator Brandis to answer the questions being put to him in the committee stage of a bill as is expected of a competent minister, or is he incompetent and unable to answer the questions being put?

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

Senator Milne, there is no need to be discourteous. The reason I did not respond to Senator Ludlam's question is very simple: because I had already answered it. In fact, I had already answered it twice in the course of this debate. I am not going to facilitate Senator Ludlam's parliamentary tactic of filibustering this legislation by responding repeatedly to questions that have already been asked and have already been addressed. That is the reason why I am not going to respond to a questions already asked and already answered.

Senator Milne, you mentioned Peter Greste. This government has gone to enormous lengths on behalf of Mr Peter Greste, whose parents are constituents of mine, as his family well knows and generously acknowledges. The Prime Minister has engaged the Egyptian head of government, the Foreign Minister has on numerous occasions engaged her Egyptian counterpart and the Egyptian Ambassador to Australia. I have engaged at length the Egyptian Attorney-General. Do not try and make a cheap political point, Senator Milne, out of the fate of Peter Greste.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that Australian Greens amendments (3) to (5) on sheet 7570 be agreed to.

The question is that Australian Greens amendments (3) to (5) on sheet 7570 be agreed to.

The committee divided. [20:16]

(The Temporary Chairman—Senator Bernardi)

Question negatived.

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

I move amendment (1) on sheet 7574:

(1) Schedule 3, item 3, page 69 (after line 23), after subsection 35P(1), insert:

  (1A) A court must, in determining a sentence to be passed or an order to be made in respect of a person for an offence against subsection (1), take account of whether or not, to the knowledge of the court, the disclosure was in the public interest.

  (1B) Subsection (1A) does not limit Division 2 (general sentencing principles) of Part IB of the Crimes Act 1914.

This item relates to the new offence of disclosing information relating to special intelligence operations. The aim of this amendment is to require a court, when determining a sentence for this offence, to take into account whether the disclosure was in the public interest. It does not go to exculpating a person, but it does go to the issue of mitigation. I hope this amendment will be a satisfactory compromise, because I know the position of the major parties and the Palmer United Party not to support the earlier amendment that I supported, which was moved by Senator Ludlam and supported by both Senator Leyonhjelm and Senator Madigan as well as by the Australian Greens.

This amendment requires public interest to be taken into account when sentencing. In an ideal situation I would prefer to see the first part of this offence, which relates to general disclosure information, removed completely. While I acknowledge the need to protect sensitive information, I also believe that the public have a right to know certain facts. For example, in my view, it would be in the public interest to disclose corruption, malpractice, criminal activity, or similar and related matters. I believe the public interest must be taken into account in relation to this new disclosure offence, and introducing a requirement for a court to consider this when determining a sentence is a fallback position in a sense.

To put this in context, if you are disclosing information where you are not a spy for another country, you are not getting remuneration, it is not done for malicious purposes but is done for a genuine public interest because an operation has been in some way unlawful or unethical, and it does not in any way compromise an existing operation, nor would attempt to identify any intelligence officers, which is what subsection 35P(2) does, then it ought to be taken into account by a court. The government and opposition may indeed say that there is a general discretion in sentencing to take these matters into account. But it ought to be acknowledged that by elevating this, by including reference to the public interest in determining the penalty for an offence, it would be a matter that the court must cast its mind to. What the court does with it is a matter for the court, but it would provide some degree of safeguard in the sense that the public interest must be considered in any sentencing. It is a fall-back position to that moved by the Australian Greens, which I supported. But let us bear in mind that practically every major news organisation in this country, including News Corporation, has very serious concerns with the proposed section 35P. There are many elements of this bill that I think are good, there are many elements of this bill that I think are important and needed, but to me this clause is a deal breaker because it strikes at the heart of the freedom of the press in this country.

The TEMPORARY CHAIRMAN: For the benefit of the Senate: I invited Senator Xenophon to seek leave because it was my understanding that he was going to move several amendments at once. Senator Xenophon, I am seeking clarification. You are only moving amendment (1) standing in your name?

That is correct. There is a reason for that, which I will go into once this is dealt with. I indicate to the chamber that, so long as I can get an indication from my colleagues where they stand on this, I do not propose to have a division in respect of this amendment.

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

The government does not support the amendment because it is entirely unnecessary. The amendment proposes that the following words be added to section 35P:

A court must, in determining a sentence to be passed or an order to be made in respect of a person for an offence against subsection (1), take account of whether or not, to the knowledge of the court, the disclosure was in the public interest.

Senator Xenophon, that is what courts would always and routinely do in a case of this kind. If a person were to be prosecuted and convicted of an offence of this kind and there was material before the court that enabled his counsel to urge on the sentencing judge that he was acting in the public interest, it is inconceivable that that consideration would not be had regard to as a potential circumstance of mitigation. The principles of criminal sentencing are a very, very, very well established discipline and the amendment you have proposed instructs by statute a court to do what a court always would do and since time immemorial has always done. So the government does not support the amendment because it is entirely unnecessary.

However, having regard to the concerns you have raised I have amended the explanatory memorandum to refer to the Prosecution Policy of the Commonwealth, which actually explicitly indicates that public interest is a factor to be had regard to in relation to a decision to prosecute. So I spoke about a judge considering a sentence in relation to a convicted person; but at a prior stage in the process it is also, under the existing Prosecution Policy of the Commonwealth, a matter to which a prosecutor must have regard in exercising a prosecutorial discretion.

Finally, I know that there have been some rhetorical flights from the crossbench tonight but might I remind you, as I pointed out before, that this provision does not take the law of the Commonwealth any further than it already stands. Under section 15HJ of the Crimes Act the same provisions apply, and have applied since 2010, to controlled operations by the Australian Federal Police. This provision merely applies the same regime as applies to controlled operations by the Australian Federal Police to special intelligence operations carried out by ASIO.

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

Is the Attorney-General saying that APN News and Media, Fairfax Media, AAP, SBS, Bauer Media Group, Commercial Radio Australia, the Australian Subscription Television and Radio Association, the Media Entertainment and Arts Alliance, the West Australian, the ABC, Free TV Australia and News Corp Australia are wrong in relation to their interpretation of section 35P?

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

I am sure those media organisations would prefer that this provision not be enacted. But for the reasons that persuaded every member of the Parliamentary Joint Committee on Intelligence and Security—including, I might say, the independent member who sat on the committee during the last parliament Mr Andrew Wilkie—there are sound policy reasons to do so.

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

Senator Xenophon, you are correct. Despite this being your fall-back position it does not change our principal position.

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

For reasons that Senator Xenophon has expressed, the Australian Greens will be supporting this amendment. It is correctly described as a fall-back position. It is not as strong as what we sought to do in the previous amendment—and one I foreshadow which will probably be the last one we will deal with tonight—where we sought to remove these provisions from the bill entirely. Senator Xenophon seeks to add an additional layer where the public interest is firmly in the minds of the court or perhaps would lead to these things not even being prosecuted in the first place. For that reason the Australian Greens are in strong support.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

For the reasons that Senator Xenophon has outlined I also support this amendment. I understand that there will not be a division but I want my support in Hansard. The general point is that ASIO is there to solve the public interest. The public interest test in the legislation does no harm; it just reminds the relevant authorities of who they are working for.

John Madigan (Victoria, Democratic Labor Party) Share this | Link to this | Hansard source

I wish to put on the record that I support Senator Xenophon's amendment.

Jacqui Lambie (Tasmania, Palmer United Party) Share this | Link to this | Hansard source

I would also like it noted that the Palmer United Party will be standing behind Senator Xenophon on this amendment. Once again, as cross-benchers we have not been a part of this—and I say that Labor is calling this one wrong. Thanks very much.

Question negatived.

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

by leave—I move amendments (2) to (7) standing in my name on sheet 7574:

(2) Schedule 6, item 1, page 81 (lines 4 and 5), to be opposed.

(3) Schedule 6, item 10, page 86 (lines 17 to 19), to be opposed.

(4) Schedule 6, item 13, page 87 (lines 3 to 5), to be opposed.

(5) Schedule 6, item 16, page 87 (lines 16 to 18), to be opposed.

(6) Schedule 6, item 18, page 88 (line 29), omit the penalty, substitute:

Penalty:   Imprisonment for 2 years.

(7) Schedule 6, item 18, page 89 (line 28), omit the penalty, substitute:

Penalty:   Imprisonment for 2 years.

I will be very brief on this. I think we know where people stand on it.

These amendments relate to the proposed increase in penalties for disclosure offences under the bill from two years to ten. I believe these increases are too large, apart from those that relate to putting lives or operations at risk—and I have already supported those. I think that these go too far in the circumstances. I have already indicated my support for the Palmer United Party amendments, also supported by the government, about endangering the life of officers in intelligence operations, but these are too broad. This is similar to the objections I had in relation to the earlier parts of the bill.

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

The government will not be supporting your amendments, Senator Xenophon. I am a little surprised, if I may so, given your support for Senator Lazarus's amendments, that you would persist with these amendments—because what you said about Senator Lazarus's amendments applies equally to these provisions. The disclosure of the identity of an officer and the disclosure of activities under the provision you seek to amend are, I would submit to you, criminal behaviour of equivalent gravity. For that reason, the government will not be supporting your amendment.

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

I can indicate that the opposition will be opposing these amendments.

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

I understand that these amendments are effectively consequential and are part of a package—that Senator Xenophon is seeking to move to increase the freedom of the press. I think it is a shame that none of our colleagues in the gallery are actually with us tonight to witness what is occurring down here. The Greens will be supporting this amendment.

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

Can I just respond briefly to the Attorney's comments? I see a distinction in respect of these matters. They do not relate to the disclosure of the identity of an officer; they relate to broader matters. I can see Senator Brandis's point, but there is a distinction between the two—a distinction I have drawn and the reason I have moved this amendment. I am not proposing to divide over this amendment.

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

I thought I might take the opportunity to point out to Senator Ludlam that, again, he has fallen into error. He does not understand this legislation. These provisions have nothing to do with the press. What these provisions have to do with are officers of ASIO who communicate intelligence information, which would be a grave breach of trust on their part. It has absolutely nothing to do with the press.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

I am going to divide these amendments into two separate questions. The first question is that amendments (6) and (7) on sheet 7574 be agreed to.

Question negatived.

The TEMPORARY CHAIRMAN: The next question is that items 1, 10, 13 and 16 of schedule 6 stand as printed.

Question agreed to.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

by leave—I move amendments (4) and (5) standing in my name on sheet 7579 together:

(4) Schedule 3, item 3, page 69 (lines 30 and 31), omit "or prejudice the effective conduct of a special intelligence operation".

(5) Schedule 3, item 3, page 70 (lines 2 and 3), omit "or prejudice the effective conduct of a special intelligence operation".

I indicate that I will move each of amendments (6) and (7) separately.

Amendments (4) and (5) relate to the special intelligence operation disclosure offence. They relate to the particular offence that gives rise to a maximum penalty of 10 years imprisonment. My amendments would mean that disclosures that do not endanger anyone's health or safety but nonetheless prejudice the effective conduct of a special intelligence operation do not give rise to a maximum penalty of 10 years imprisonment. Instead, such disclosures would give rise to a maximum penalty of five years imprisonment. The point I am making, and the point on which I am seeking support, is that 10 years imprisonment is unreasonable when no-one's health or safety has been endangered.

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

Mr Temporary Chairman, we are dealing with amendments (4) and (5) at the moment?

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

Yes.

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

The government opposes those amendments. Amendments (4) and (5) relate to the aggravated offence in section 35P(2), for persons who disclose information relating to an SIO intending to cause or actually causing one of two forms of harm. Those are: endangering the health or safety of any person, or prejudicing the effective conduct of a special intelligence operation. These are circumstances of aggravation and, for that reason, in the government's view, the higher maximum penalty of 10 years imprisonment is justified.

Senator Leyonhjelm's amendment would remove from the exaggerated offence the element of causing prejudice to the effective conduct of an SIO. This would mean that the offence would not target a very grave wrongdoing. ASIO's ability to perform its functions effectively relies absolutely on its ability to conduct effective covert operations without compromise. It is appropriate that offences are enacted to create an appropriate disincentive to persons contemplating the disclosure of operational information of the most sensitive kind. I note that these offences are subject to rigorous safeguards. These include the ability to disclose suspected wrongdoing to the IGIS, and specific exemptions for persons seeking legal advice or participating in legal proceedings in relation to an SIO.

Senator Leyonhjelm, without repeating myself, may I remind you, as I pointed out to Senator Xenophon before, that this is a maximum, not a mandatory minimum, so, although the maximum has been elevated to reflect the potential gravity of the offence, obviously only in the most serious kind of case would a sentencing discretion be exercised to impose the most serious penalty.

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

I can indicate that the opposition will be opposing the amendments.

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

For the benefit of the chamber, and for Senator Leyonhjelm, I will just indicate in advance that we will be supporting these amendments. We are dealing with (4) and (5) now. Items (4) to (7) are effectively part of a batch with similar intent that the Australian Greens will be supporting, for the reasons that Senator Leyonhjelm has effectively outlined.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that amendments (4) and (5) on sheet 7579, standing in the name of Senator Leyonhjelm, be agreed to.

Question negatived.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I move amendment (6) on sheet 7579:

(6) Schedule 3, item 3, page 70 (line 14), at the end of subsection 35P(3), add:

  ; or (e) of information that has already been disclosed by the Minister, Director-General or Deputy Director-General; or

(f) made reasonably and in good faith, and was in the public interest.

This amendment seeks to add to the list of exceptions to the special intelligence operation disclosure offence. Under this item, a person could claim a defence that the information the person disclosed had already been disclosed by the minister, director-general or deputy director-general. The fact that there is such an amendment required suggests a flaw in the government's drafting. Under the government's drafting, as the bill stands, there is no exclusion from the offence of disclosing SIO information that the government has already authorised for release. Separately, this item would allow a person to claim a defence that the disclosure was made reasonably and in good faith and was in the public interest. This is a tight public interest defence and resembles the public interest defence under section 18D of the Racial Discrimination Act which the government is now heavily relying on, given the continuation of 18C. This is an identical defence to what already exists.

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

The government does not support these amendments because we think they are entirely unnecessary. The two additional exceptions to the SIO disclosure offences are for information already disclosed by the minister, by the director-general, or by a deputy director-general, or for information disclosed reasonably in good faith and in the public interest. In relation to the first of those, there is no need at all for a specific exemption for information that has already been lawfully disclosed, because, Senator Leyonhjelm, if the information is already in the public domain because it has been disclosed by the minister or the director-general or a deputy director-general, there can, ex hypothesi, be no disclosure, and therefore there is no conduct on which the offence provision could operate. So there is no factual circumstance to which your amendment could possibly apply.

In relation to the other exemption you propose—good faith and in the public interest—a specific public interest exemption is not necessary because appropriate protection is already afforded to persons who make disclosures of suspected wrongdoing to the relevant authorities. As I have already pointed out earlier in the debate, nothing in this bill intrudes upon the capacity of someone to take advantage of the whistleblower protection provisions, and nothing in this bill constrains the capacity of a person to approach the IGIS. In fact, as a result of the recommendations of the PJCIS dealt with earlier in the government's amendments there are strengthened safeguard provisions for a person approaching the IGIS. So if a person, in good faith and in the public interest, wants to ensure that what they perceive to be or believe to be wrongdoing is brought to the attention of the authorities, they can already do that under the provisions of the existing bill as amended and improved by the government amendments today.

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

Just a very brief comment in relation to that: my understanding was—and a nod or a shake of the head from the Attorney would suffice, to save time—that the intelligence community is carved out of the public interest disclosure provisions. I am not sure if that is the case, but I would—

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

Senator Xenophon, there is a whistleblower regime which specifically protects the capacity of officers of ASIO and the intelligence services to blow the whistle on wrongdoing.

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

My understanding is, firstly, that the intelligence community is carved out of the Public Interest Disclosure Act and the intelligence community can only talk to IGIS.

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

No, it is not the case that they are carved out from the whistleblower protection regime.

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

My final point involves witness K. It is a matter before the courts in relation to the alleged bugging of the East Timor cabinet room by ASIS. Witness K went to IGIS but did not get a satisfactory response. That is why he went to the media and is now facing criminal charges and a significant jail term.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Minister, if you, as minister, or a subsequent minister, or the director-general or the deputy director-general of ASIO were to disclose information about an SIO, would you or they have committed an offence under the bill?

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

No, because in those circumstances the provisions of section 35P(3) would apply which exempts from liability disclosure:

(a) in connection with the administration or execution of this Division—

that is, this division of the ASIO Act—

(b) for the purposes of any legal proceedings arising out of or otherwise related to this Division or of any report of any such proceedings; or

(c) in accordance with any requirement imposed by law; or—

(d) in connection with the performance of functions or duties, orthe exercise of powers, of the Organisation.

If, for example, the director-general were to make a decision to disclose a matter then, given the powers and discretions conferred on the director-general by the ASIO Act, it is very difficult to see how that would not be an act done in connection with the performance of a function or duty or the exercise of power vested in him by the ASIO Act.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that amendment (6) on sheet 7579 be agreed to.

Question negatived.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I move amendment (7) on sheet 7579:

(7) Schedule 3, item 3, page 70 (after line 16), after subsection 35P(3), insert:

  (3A) Subsections (1) and (2) do not apply if:

  (a) the person informed the Organisation about the proposed disclosure at least 24 hours before making the disclosure; and

  (b) the disclosure did not include information on the identities of participants of a special intelligence operation, or on a current special intelligence operation; and

(c) the information concerns corruption or misconduct in relation to a special intelligence operation.

Note: A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.

This amendment represents a separate and specific defence for the offence of disclosing special intelligence operation information. The amendment is proposing a new and specific defence. Under this amendment, a person could claim a defence if the person informed ASIO of the proposed disclosure of information at least 24 hours before the disclosure and the disclosure did not identify participants in an SIO, and the disclosure did not include information on a current SIO, and the information concerns corruption or misconduct in relation to an SIO. This is very important, in my view.

What we are looking for here is scope for somebody to report on corruption and misconduct. The argument might be that disclosure of such information may divulge sensitive information and disrupt an otherwise legitimate SIO. This amendment would allow an exemption only where that information is disclosed to ASIO for at least 24 hours, did not identify participants in a special intelligence operation, did not include information on a current SIO and related to corruption or misconduct. An exception from disclosure offences for instances of corruption and misconduct is found in law applying to the AFP.

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

The government does not support this amendment because the mischief that it seeks to address is already provided for in relation to people who make such disclosures. It is inconceivable that an accusation or an allegation of corruption, if made in good faith, would not already be governed by the whistleblower protection regime. As well, a person can make a complaint to the IGIS. The power under the IGIS Act to approach the IGIS in relation to a complaint of that nature is unconstrained. As well, of course, if a criminal offence has been convicted, as you would expect on the factual scenario which your amendment seeks to address, Senator, then a person could without contravening section 35P report that suspected criminal activity to the Australian Federal Police, and indeed ought to do so.

The TEMPORARY CHAIRMAN: The question is that amendment (7) on sheet 7579 be agreed to.

Question negatived.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

by leave—I move amendments (8) and (9) on sheet 7579:

(8) Schedule 5, items 9 and 10, page 74 (lines 4 to 19), to be opposed.

(9) Schedule 5, item 14, page 79 (lines 1 and 2), omit subparagraph 1(1A)(a)(i).

I will speak to amendments (8) and (9) together. Perhaps you can put them separately. What I am seeking here is to remove a provision in the bill to allow ASIS, the Australian Security Intelligence Service, our foreign intelligence service, to cooperate with foreign authorities in undertaking training in the use of weapons. Item 9 removes the authorisation of ASIS to provide weapons and weapons training for self-defence purposes to an officer of a foreign authority with whom ASIS is cooperating. ASIS is not a military organisation, and there is no definition of 'foreign authorities' provided in the pool. This is significant. It seems to be is a significant expansion and change in the nature of ASIS activities which will allow them to arm and train foreign authorities. ASIS itself is actually prohibited from using weapons in its activities, but here it is taking on responsibility for training others in the use of weapons and training. The closest analogy that comes to mind in respect of this scenario is that ASIS would take on some of the sorts of activities for which the CIA is notorious; that is, funding, providing weapons to and training organisations and bodies that it wishes to support. It is a very murky activity. I would like to think that our government and our agencies do not get involved in that sort of thing. The best example that I can think of in recent history was the CIA's arming and training of the Taliban during the period of the Russian occupation in Afghanistan. That was a very dodgy activity and I would like to think that our ASIS is not going to engage in anything similar.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

For the benefit of the committee, Senator Leyonhjelm spoke to amendments (8) and (9). The questions will be put separately. Any subsequent remarks can address both of the amendments.

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

The government does not support the amendments. Their effect would be to remove the amendment currently proposed in the bill to enable ASIS to provide training in self-defence techniques and the use of weapons to persons from a limited group of foreign partners. The bill implements a recommendation of the PJCIS report—that is, the principal report tabled last year. The committee concluded that:

…the lack of such joint training poses an unacceptable danger to ASIS officers and agents … as ASIS officers are permitted at law to co-operate with certain agencies and use weapons and self-defence techniques to protect themselves and their partner agencies, it is reasonable for ASIS to be able to train with those same partners in the self-defence techniques and with the weapons that are intended to save their lives.

Senator Leyonhjelm raises a concern that the amendment might enable ASIS to train a foreign terrorist organisation or might enable ASIS to provide weapons to an organisation contrary to the restriction of engaging in paramilitary activities. However, there are a number of safeguards in the bill already existing in the act, which means that neither of those things could occur.

Firstly, cooperation with a foreign authority must be approved by the minister and can only be approved after the minister has consulted with the Prime Minister and the Attorney-General. Under section 13, the approval can only be for the cooperation so far as is necessary for ASIS to perform its functions or so far as it facilitates the performance by ASIS of its functions. Further, the approval of and the training remains subject to the oversight of the IGIS. Secondly, the purpose for which the weapons may be provided to a staff member of an approved foreign authority are also limited by the bill and by the act. It requires the specific approval of the minister and can only be for one of the limited purposes set out here in the amendment. A copy of the minister's approval must be provided to the IGIS. In practice, what it will mean is that weapons would be provided for the purposes of training only.

The TEMPORARY CHAIRMAN: I will deal first with Senator Leyonhjelm's amendment (8). The question is that items (9) and (10) in schedule 5 be removed from the bill.

Question negatived.

The TEMPORARY CHAIRMAN: The next question deals with Senator Leyonhjelm's amendment (9) on sheet 7579. The question is that the amendment be agreed to.

Question negatived.

The TEMPORARY CHAIRMAN: I now turn to schedule 6, items 1 to 24, 26 and 4 standing in the name of the Australian Greens.

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

by leave—I move government amendments (6), (7), (9) and (10) on sheet 7579 together. I also foreshadow that I will be speaking for amendment (8), even though I know those questions will need to be put separately.

(6) Schedule 6, items 1 and 2, page 81 (lines 4 to 13), to be opposed.

(7) Schedule 6, item 4, page 81 (line 16) to page 85 (line 25), to be opposed.

(9) Schedule 6, item 24, page 106 (lines 3 and 4), to be opposed.

(10) Schedule 6, item 26, page 106 (lines 9 to 11), to be opposed.

These amendments I suppose dovetail with the comments I made before about national security reporting and the criminalisation of what goes on behind the scenes. Nothing at all that I or any of the crossbenchers have discussed or debated tonight, or any of the amendments that we have put into the field, are intended to reduce the effectiveness of our covert intelligence agencies. Glenn Greenwald is the journalist who has reported on and was in receipt of the material that former NSA contractor Edward Snowden put to him more than a year ago now. Mr Greenwald conducted a fascinating interview with New Zealand television a week or two ago where the journalist asked him on his reporting. The journalist asked why he thought it was in the public interest to put this material into the field. His answer was quite instructive.

Effectively he said that if these powers were only being used to pursue terrorist networks, to pursue organised crime, to pursue entrenched corruption, which is what most people think and why most people support the existence of these coercive or intrusive powers, if they were only being used for those purposes, then we would not be having this conversation. The fact is that, more often than not, as The Guardian pointed out, we have quite a responsible culture, I would argue, of journalism in this country where people are not setting out to recklessly endanger our covert agents or intelligence operations. Rather national security reporting in this country and overseas, especially resulting from the Snowden revelations, is about disclosing massive wrongdoing. There are very few ways of going about that.

We rely on whistleblowers. Consider Mr Snowden, who is no effectively and excise we understand in Moscow, Chelsea Manning who is behind bars, and Julian Assange, who is effectively in exile and has been in a room not much bigger than the space occupied by two or three of these Senate wedges for a period of well over two years for disclosing not just wrongdoing but illegalities and very serious crimes. There is no other way of finding out about these things than from public interest whistleblowers putting material to journalists who then evaluate, redact when necessary to avoid harm being done to those who might be in the middle of the situation which is being reported and then putting this material into the public domain. We have sought to do is to oppose the new provisions in schedule 6 regarding protection of information, which effectively lift penalties for AMMA unauthorised disclosure from two years maximum penalty to 10 years. The explanatory memorandum gives the game away. It states in part:

The necessity for increasing the penalty has become apparent through recent domestic and international incidents involving the unauthorised disclosure of security intelligence-related information.

That is the reason these have been noted informally as the Snowden amendments. We are seeking to remove them from this legislation because nothing could be more important, particularly given the costs paid by those brave individuals who have come forward to expose not the identity of covert agencies but to expose criminality at the heart of some of these agencies because people are only human. When internal processes for whistleblowing fail, you do have to go public and we have quite a proud tradition of press freedom in this country. I would like to see a lot more of it but from what we do know protections for these people are absolutely essential. So these amendments go directly to that.

I suspect the Attorney-General will feel as though he has one or two options open to him. One is simply to not reply at all, as he has done a fair bit during the course of this debate. The other would be to jump up and accused Edward Snowden of being a traitor, as he has done in this chamber a number of times. Mr Snowdon just won a Swedish human rights prize for his work exposing state surveillance programs. He is one of the Right Livelihood Honorary Prize, which is often referred to as 'the alternate Nobel Prize', for showing courage and skill in revealing the unprecedented extent of state surveillance violating basic democratic processes and constitutional right. This prize is awarded annually to honour and support those offering practical and exemplary answers to the most urgent challenges facing us today.

This extraordinarily brave young man has a very uncertain future. As I said, he is effectively living in exile in Russia and nobody knows how that situation is going to turn out, where he is going to end up. I want to emphasise that the reason for the Australian Greens putting these amendments to the chamber tonight is not to put the legitimate operations of our intelligence a agencies at risk but to assist in protecting those who come forward with material that does belong in the public domain, again after it has been through the hands of journalists. That is why I say that these amendments are linked to those we discussed before about national security reporting and the importance of not criminalising it in this country. These clauses have been criticised by the media organisations that Senator Xenophon and I catalogued at some length before and I commend strongly these amendments to the Senate.

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

The government opposes all of the Greens amendments on sheet 7570. What the Greens propose is to retain the grossly inadequate maximum penalty applying to offences against section 18(2) of the ASIO act for entrusted persons who engage in the unauthorised communication of intelligence information and to remove from the bill the proposed new offences in section 18A and 18B in relation to entrusted persons who engage in activities which place intelligence related information at risk of compromise—that is, by unauthorised dealings with records or recordings of information. These proposed amendments will grossly diminish the bill.

A 10-year penalty for the unauthorised communication offence in section 18(2) is necessary to reflect the harm that is inherent in such behaviour. The current penalty of two years imprisonment was inserted in 1979 at a time at which the instant global dissemination of information via the internet was simply not contemplated. The offence applies only to entrusted persons being employees of ASIO or persons in a contract agreement or another arrangement under which legitimate access is provided to information.

These offences reflect a legitimate expectation that persons to whom sensitive information is entrusted will be held to a high standard of conduct. They also reflect the outrage of the community at the gross breach of trust that would be perpetrated upon our community were that trust to be violated. The offences do not override or displace the regime of internal disclosures in the Public Interest Disclosure Act. The government has moved amendments that create an express exception for persons who communicate information to the IGIS or his or her staff for the purpose of the IGIS perform his or her statutory oversight functions. This will ensure that the offences do not operate as a perceived disincentive to the making of complaints to the IGIS. As the Parliamentary Joint Committee on Intelligence and Security recognise, we need offences directed specifically to entrusted persons who place sensitive information at risk in breach of their authority. As I have said, these offences give effect to a legitimate expectation of such persons.

Like the unauthorised communications offence, the offence of unauthorised dealing with records or recording of information do not displace the regime under the Public Interest Disclosure Act. The Greens amendments would also create an arbitrary distinction to the proposed amendments to the Intelligence Services Act in schedule 6 to the bill. The offences are directed to exactly the same mischief in relation to all intelligence agencies and, for the sake of consistency, the penalty regime between the ASIO Act and the Intelligence Services Act should be equivalent.

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

I indicate that I cannot support the Australian Greens amendments for a number of reasons. I have concerns with respect to the drafting. I do not understand the exemption as drafted. It appears to be internally inconsistent with the other amendments in respect of that. I think that there ought to be a public interest defence in respect of this. This seems to me to be somewhat too broad. I can understand the intent of what Senator Ludlam is trying to do but I think that in the way that it is drafted it is simply too broad. Also, there appears to be issues with respect to the drafting. This is not a criticism of Senator Ludlam but I think that I cannot support the amendment, principally for those two reasons.

If the amendment spoke in terms of public interest defence—that matters that were released were clearly in the public interest—then I would be minded to support it, but given its drafting I cannot support it.

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

I can indicate to Senator Ludlam that Labor will not be supporting these amendments for much the same reasons as we have indicated previously. However, picking up on Senator Xenophon's point, this is an interest that perhaps the joint parliamentary committee can look further at and address in a bit more detail in a subsequent tranche of security legislation.

Dean Smith (WA, Liberal Party) Share this | Link to this | Hansard source

I advise the Senate that I will put Senator Ludlam's amendments in two parts. The question is that items 1, 2, 4, 24 and 26 of schedule 6 stand as printed.

Question agreed to.

The TEMPORARY CHAIRMAN: The question is that the amendment be agreed to.

The committee divided. [21:14]

(The Chairman—Senator Marshall)

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.

Question agreed to

Report adopted.