Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

[by video link] by leave—I move amendments (1) and (2) on sheet 1412 together:

(1) Schedule 3A, page 153 (before line 17), before item 3, insert:

3A Paragraph 29(1)(a)

After "to review the", insert "activities,".

(2) Schedule 3A, page 153 (after line 24), at the end of the Schedule, add:

4 Subsection 29(3)

Repeal the subsection, substitute:

(3) The functions of the Committee do not include:

(a) reviewing information provided by, or by an agency of, a foreign government where that government does not consent to the disclosure of the information; or

(b) conducting inquiries into individual complaints about the activities of ASIO, ASIS, AGO, DIO, ASD, ONI, AFP or the Immigration and Border Protection Department.

5 After section 29

Insert:

29A Ceasing or suspending review of agency activities

(1) If:

(a) the Committee undertakes a review under section 29 of an activity by ASIO, ASIS, AGO, DIO, ASD or ONI; and

(b) the relevant responsible Minister is of the opinion that:

(i) the activity is an ongoing operation; and

(ii) the review would interfere with the proper performance by the relevant body of its functions or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations;

the Minister may give to the Committee a certificate in relation to the matter stating the Minister's opinion and the reasons for it.

(2) A decision of the Minister under subsection (1) must not be questioned in any court or tribunal.

(3) Where the Minister gives a certificate under subsection (1) in relation to a review, the Committee must cease or suspend the review.

(4) If the Minister:

(a) becomes aware that the activity is no longer ongoing; or

(b) is no longer of the opinion that the review would interfere with the proper performance by the relevant body of its functions or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations;

the Minister must, within 28 days after becoming aware of the fact or forming the view:

(c) revoke the certificate; and

(d) inform the Committee in writing.

(5) If the Minister revokes a certificate in accordance with subsection (4), the Committee may proceed with the review, or commence a new review into the activity.

These are amendments that the chamber has seen a number of times. What they seek to do is undo the censoring of our parliament, or the restraint on our own parliament, from conducting oversight of intelligence operations and associated information gathering. These are important amendments that basically seek to provide a check and balance against the powers that are being proposed by the government. As I said, in principle I support what the government is doing. I do share some of Senator Roberts's concerns. These sorts of concerns could be addressed if the PJCIS were able to examine those operations. There is a safety mechanism in these amendments to make sure that, if there is something that is extremely sensitive going on, the PJCIS could be prevented from looking into the operation until after it has commenced, so it has appropriate safeguards. These are good amendments. They are oversight amendments. This is something that Labor indicated on several occasions it will support, but it has failed to do so. I commend the amendments to the committee.

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

The government does not support the amendments moved by Senator Patrick. The government's view is that the remit of the Parliamentary Joint Committee on Intelligence and Security should not be expanded to include oversight of agencies' operational activities. We consider it remains appropriate for ministers to primarily oversee operations and be accountable to the parliament. The Inspector-General of Intelligence and Security already has extensive powers to oversee and inquire into the legality and propriety of National Intelligence Community operations, publishes an unclassified version of reports and appears before the Parliamentary Joint Committee on Intelligence and Security on non-operational matters. We consider that existing arrangements appropriately balance accountability with the need to protect sensitive operations and capabilities and that further oversight by the committee is not necessary.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I rise to indicate that the Greens will be supporting Senator Patrick's amendments as circulated and to raise similar concerns to Senator Patrick's in relation to the rushing of this particular piece of legislation. I want to let you know there is another amendment being circulated, in the name of Senator Thorpe, which we will also need to deal with today.

Claire Chandler (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Thank you for advising the chamber of that.

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

Is this an appropriate time to record One Nation's position on the previous motion?

The TEMPORARY CHAIR: The advice I have from the Clerk is that it would be useful to do that.

I just want to record that the One Nation party was voting against it.

The TEMPORARY CHAIR: Just to clarify—this was on the second reading?

On the second reading.

Kristina Keneally (NSW, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I would like to say a few words about Senator Patrick's amendment before we vote.

The TEMPORARY CHAIR: You may.

I just want to acknowledge that Senator Patrick, who I am sure has the best of intentions, moves this amendment at every national security bill. Every time he moves it, we make clear once again our view that it is not an appropriate mechanism by which to deal with his question. I note again, for the record, that Senator McAllister has a private senator's bill before the parliament that deals with these very questions. Labor would prefer to take a holistic and systemic approach to this question and not deal with it in a piecemeal fashion as we see that Senator Patrick's amendment does. In the interests of time, and my desire to see this bill pass this chamber this week, I just wanted to put on the record our view on this amendment.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

[by video link] I will respond to Senator Keneally. I note it looks like she might have run from her office to get there, and I appreciate her doing that to make some comments. It is a ruse to suggest that you won't vote on an amendment to a government bill that basically includes the provisions of a private member's bill. We need to understand that a private member's bill might get voted on in the Senate, go to the House and never be seen again. The only way to give effect to change is to put amendments to government bills that the government has to deal with in the House. Senator Keneally knows that, and so it's a bit disingenuous to suggest that this is an inappropriate way to do it—that a private member's bill is a much better way.

I'm disappointed that Labor is again voting on an amendment that gives effect to its own policies. I invite Senator Keneally—if you don't quite like what my amendment does—to have the Labor Party introduce a similar amendment the next time a security bill goes through the parliament. I put that on the record, and we'll see next time around how serious the Labor Party really is. We do have these sorts of bills going through on a semiregular basis, which is part of the problem: more and more powers get made without the right checks and balances. There's an opportunity here. I put the challenge to Senator Keneally, and we'll talk about this the next time an intelligence bill goes through the chamber. You are simply so weak on giving effect to change as bills go through this place. You simply stand up and talk, but you never actually do anything. That's a significant problem, and Labor ought to reflect on this. They're not serving the public well. They are, in effect, dudding their own policy. There's a way in which these things can be done and, sadly, you're not up to the task.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

[by video link] I'll be supporting Senator Patrick's amendment as well. I would like that noted. I also have a question for the minister, if I may.

The TEMPORARY CHAIR: You may.

Minister, I'm not sure if people out there know this, but there are people who work in your parliamentary office who can walk out with whatever they want when they leave as staff—and that would include files and personal files—and then use that material against you on social platforms. Would this be able to fix that issue, without any charges or anything being laid? Will this fix any of that?

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

Senator Lambie, I couldn't quite properly hear what you were saying. I'll take you through what the purpose of the bill is, and that may well answer the question that you have posed. This is all about, as I said, part of the government's response to the challenges posed by anonymising technologies and cyber-enabled crime such as offending perpetrated on the dark web. I'll briefly summarise what the bill does, in three parts. It enhances the ability of the AFP and the ACIC to identify and disrupt. It's all about serious crime online. In that regard, data disruption warrants authorise the deletion or modification of data—the examples that I previously gave were things such as child exploitation material—to frustrate the commission of serious offences online. Network activity warrants enable the AFP and the ACIC to collect intelligence on criminal networks operating online. Account takeover warrants allow law enforcement to take control of online accounts in order to gather evidence about a person's online criminality and the activity of their associates. This bill is very much in relation to the challenges posed by anonymising technologies and cyber-enabled crime. The most obvious example that people understand is offending perpetrated on the dark web.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

[by video link] What exactly are you talking about with 'serious offences'? Is there a list? What constitutes 'serious offences'?

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

I am just getting for you the list of serious offences. I'm sure the advisers are looking for me, to ensure that I do have them. In particular, I will look at exactly what we're looking at targeting. As you'd know, the 'dark web' refers to areas of the internet which are intentionally hidden and cannot be accessed without using specialised browsers. I think you'd also know that, because of the nature of the dark web, this area of the internet is not indexed by ordinary search engines. 'Anonymising technology' refers to technology which can be used to disguise a person's activity, location and true identity. The types of 'serious crimes' include child abuse and exploitation, terrorism, and the sale of illicit drugs and weapons. We're referring to that there. Warrants can only be sought in relation to what is called a relevant offence. This is a federal offence or a state offence that has a federal aspect punishable by a maximum term of imprisonment of three years or more. That criterion is consistent with existing thresholds for warrant powers as set out in the Surveillance Devices Act 2004.

I have some further information for you: amendments have been made to the issuing criteria for warrants to ensure that, when considering whether to issue a warrant, issuing authorities give extra weight to the most serious types of cyber-enabled crime, which is what you were referring to. This reflects the purposes of the bill and the PJCIS's intent to focus the use of these powers—and I go back to the original answer that I was giving to you—on the most serious crimes perpetrated on the dark web and through the use of anonymising technologies. Again, as I've referred to previously, this includes child exploitation, terrorism, cybercrime, money laundering and drugs and firearm trafficking.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

[by video link] As to that list of serious offences, who decides what's going to be a serious offence? Is that taken off someone else's blueprint somewhere, or was that just decided within the committee itself? Obviously, if you're going to go through a court, it's got to come under one of those serious offences, whatever you've dictated the serious offences would be. Who lists those serious offences?

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

I am instructed that the bill itself shows what is the issuing authority.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

[by video link] No, I understand the authority, but how did they come up with a list and decide that they were the only serious offences? Is that just because that's in the bill? There are other serious offences out there, but obviously these are the ones you're concentrating on in this bill—yes?

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

If you look at the previous answer I gave to you—and I will just read it out to you as well—it was that the bill covers all offences. Warrants can only be sought in relation to a relevant offence, which is a federal offence, or a state offence that has a federal aspect, punishable by a maximum term of imprisonment of three years or more.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

[by video link] Thank you.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I understand that Senator Thorpe has some questions, if she could have the call.

Claire Chandler (Tasmania, Liberal Party) Share this | Link to this | Hansard source

On the Patrick amendment?

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Generally in the committee stage.

The TEMPORARY CHAIR: Okay.

Lidia Thorpe (Victoria, Australian Greens) Share this | Link to this | Hansard source

[by video link] Minister, this bill rejects a core recommendation of the Richardson review: that law enforcement agencies should not be given specific cyberdisruption powers such as would apply under the proposed data disruption warrant regime. Why are you rejecting this specific conclusion of the Richardson review?

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

Consistent with recommendation 161 of the Richardson review, this bill does not extend the ASD's cybercrime function to apply onshore. Any technical assistance provided by the ASD in support of the new powers would be consistent with the ASD's existing statutory powers to assist Commonwealth agencies. The bill is consistent with recommendation 162 of the Richardson review to the extent that the review recommended that the AFP should be responsible for fighting cybercrime and undertaking disruption activities onshore. However, the bill recognises that the ACIC, drawing on its specialist criminal intelligence capabilities, also plays a vital role in discovering serious and organised criminal activity.

Lidia Thorpe (Victoria, Australian Greens) Share this | Link to this | Hansard source

[by video link] Thank you, Minister. The Richardson review also observed that there is much the AFP can do under its existing powers, and it was unconvinced that a more specific disruption mandate or additional powers are needed. Why are you so committed to giving the AFP these powers that they do not need?

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

The government agrees that the Australian Federal Police and the ACIC should fully utilise existing powers to combat cyber-enabled crime. However, those powers are increasingly ineffective against large-scale incidents of cyber-enabled crime. The government considers that legislative reform is necessary to enhance the ability of the AFP and the ACIC to discover and disrupt serious criminality online—in the first instance, through the powers in the bill, including data disruption warrants. Data disruption warrants were developed after careful consideration of the potential practical and principled issues in relation to disruption, as identified by the Richardson review.

Lidia Thorpe (Victoria, Australian Greens) Share this | Link to this | Hansard source

[by video link] Minister:

8. The Law Council also notes that the supporting justification for the proposal to confer specific intelligence-collection powers on the AFP and ACIC under network activity warrants does not clearly identify a gap in existing powers.

Can you tell me what gaps exist in the powers the AFP has that justify the powers in this bill, please?

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

I would refer you to my summing-up speech in relation to this debate. It clearly articulated why the government believe this bill is necessary and why we have the support of the Australian Labor Party.

Lidia Thorpe (Victoria, Australian Greens) Share this | Link to this | Hansard source

[by video link] Why is it that superior court judges of courts of record, appointed in their personal capacity—unlike AAT members—aren't the sole issuing authority for these warrants?

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

I can advise that network activity warrants and data disruption warrants can be issued by an eligible judge or a nominated AAT member. This is consistent with who can issue existing warrants, such as computer access warrants, in the Surveillance Devices Act 2004. It is anticipated that these warrants will be used to complement other powers available to agencies. Account takeover warrants can be issued by a magistrate, as this is consistent with other powers, such as search powers in the Crimes Act.

Lidia Thorpe (Victoria, Australian Greens) Share this | Link to this | Hansard source

[by video link] What safeguards are in place to protect innocent people out there—for example, people organising a Black Lives Matter rally? How are those people going to be protected in this bill? Can you please articulate how that will be safeguarded? I understand that the bill is about very serious offences. The Australian Greens will support it, in terms of keeping children safe and keeping our country safe, but there are innocent people who could be targeted through this bill. Can you articulate how those safeguards are going to be in place so that doesn't happen?

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

I can advise that a data disruption warrant cannot authorise causing any material loss or damage to data unless the issuing authority considers it reasonably necessary and proportionate to the offences targeted. For example, reasonably necessary and proportionate loss or damage may involve a loss incurred as a result of taking action against a large group of individuals committing a particularly serious offence. Whether the disruption of data is reasonably necessary and proportionate will be determined by the issuing authority on a case-by-case basis. There may be circumstances in which it would be reasonably necessary and proportionate to cause loss or damage to the data of third parties. For example, it may be reasonably necessary and proportionate for an agency to shut down an online site hosting the live streaming of child exploitation material. I'll just say that again: for example, it may be reasonably necessary and proportionate for an agency to shut down an online site hosting the live streaming of child exploitation material, despite the owner or administrator of that site not necessarily being suspected of this type of criminality. However, it may not be reasonably necessary and proportionate if an agency were to delete all of the data on a third-party computer that was used to access a dark-web forum advertising illicit drugs.

I can also advise a person's account may only be taken over when taking control of that account is likely to substantially assist in enabling the collection of evidence relating to serious criminal offences. An account takeover warrant cannot authorise material interfering with a person's lawful use of a computer unless absolutely necessary to facilitate the collection of evidence, and account takeover warrant cannot under any circumstances authorise causing material loss or damage to any person lawfully using a computer. An account takeover warrant cannot be executed in a manner that causes a person the loss of money, digital currency or property other than data. When considering whether to issue an account takeover warrant, the magistrate must take into account the extent to which the privacy of any person is likely to be affected. Also, I can advise that the Commonwealth Ombudsman will provide robust oversight of the use of the account takeover power by the AFP and the ACIC.

Lidia Thorpe (Victoria, Australian Greens) Share this | Link to this | Hansard source

[by video link] This is my final question. Minister, in terms of the safeguard, the AFP can come in and take over somebody's account. They can, as I understand it, go into that account without that person even knowing. If that individual who's had their account taken over needs to use any of the information from their account in a court of law after the AFP have been in there, what legal ramifications does that have for that individual whose social media account has been infiltrated by an AFP officer or an AAT officer? What safeguard do they have to be able to use that information in a court of law when it's already been hacked or spied on in information gathering by an AFP officer and so basically the evidence has been tampered with by one of those officers?

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

Senator Thorpe, I don't believe that you've properly articulated what is occurring, but I understand the basic premise of the question that you are raising. The AFP and the ACIC will have systems in place to preserve the evidence whilst taking action to frustrate criminal activity by modifying the data. Such practices and systems include copying data for evidence or taking screenshots of content whilst performing disruptive data modification. Court processes will continue to involve testing of evidence and its admissibility. Evidence obtained whilst disrupting criminal activity will be subject to the same rules and requirements as evidence obtained through more traditional means.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

Minister, in relation to AAT members granting warrants, can you just clarify which warrants can be approved by AAT members?

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

What I will advise you, Senator Patrick, is that network activity warrants and data disruption warrants can be issued by an eligible judge or a nominated AAT member. As I've previously advised in answers to other questions, this is consistent with who can issue the existing warrants under the Surveillance Devices Act 2004, such as computer access warrants. It is anticipated that these warrants will be used to complement other powers available to agencies. Account takeover warrants can be issued by a magistrate, as this is consistent with other powers, such as search powers in the Crimes Act.

I am just looking at whether or not I can provide you with further information. I can also advise in relation to recommendation 9 of the PJCIS report—and this may be what you were alluding to—that removing the ability for AAT members to issue warrants would have a significant impact on Australia's current electronic surveillance framework and would be a departure from longstanding government policy. The inability to obtain AAT approval would likely result in operational delays in obtaining these warrants. For example, the AFP currently experiences delays obtaining warrants from state and territory magistrates. I am informed that there can actually be up to a three-day wait in some jurisdictions. Given these potentially wide-ranging implications and the desire for consistency—and I do stress that, Senator Patrick—across other warrant powers, the government will consider this issue further as part of the holistic review of Australia's electronic surveillance framework, which is currently underway. I can also advise that a 'nominated AAT member is a person who is either the deputy president, senior member or member of the AAT' who has been nominated by the Attorney-General to issue warrants under the Surveillance Devices Act.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

[by video link] Just to clarify, and this may help you understand where I'm going, I want to understood who is nominated. Is it a particular class of AAT member, like a deputy president or a presidential member? There is a rank structure inside the AAT. This really goes to experience and competence in relation to these sorts of instruments. Is there any guidance you can give me on who can be nominated?

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

Thank you, Senator Patrick. You may not have heard, given that we are doing this via technology. I did state that a 'nominated AAT member is a person who is either the deputy president, senior member or member of the AAT' and has been nominated to issue warrants under the Surveillance Devices Act.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

[by video link] Thank you. I want to put on record my concern in relation to this. Normally, a presidential member is a judicial member as well, and I have no issue with a judicial member doing this. Some of the deputy presidents are former QCs, for example. When you start getting down to senior members and members, they can be all sorts of appointees—I know you'll understand this; I'm not trying to be political here—including appointees of both the Liberal Party and the Labor Party under the provisions of the AAT Act that allow a person to be appointed if they have a particular experience that is needed by the AAT. That means that we have seen the appointment—to be fair, both Liberal Party and Labor Party appointees—of former staffers, advisers and so forth. My concern is that this is a power that would normally—you'd normally want someone who has a strong legal background so as to ensure that there is not any abuse. You might recall that during the media raids we had difficulties with warrants being issued and there was a subsequent High Court matter. I just want to understand whether or not, because it is one of the requirements in the AAT Act for one class of member to have a law degree, anyone is likely to be nominated to carry out these particular functions if they don't have suitable legal qualifications.

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

In response to your question, I can advise that AAT members must be legal practitioners with at least five years experience—I previously took you through that they would be nominated—to be nominated by the Attorney-General. I believe that directly answers the issue that you have just articulated.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

[by video link] I just want to be clear about it. I think you're being very helpful, Minister. There are members who can be appointed without legal qualification under one of the provisions of the AAT Act. There is another cohort that must have legal qualifications. If I heard you correctly, your good self will not be appointing or nominating those members who don't have the legal qualifications that are mentioned in the second cohort's provision of the act.

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

I will repeat because we're doing this via technology. As instructed, AAT members must be legal practitioners with at least five years experience to be nominated by the Attorney-General. That directly goes to the point you made.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

[by video link] Thank you. I think that clarifies what I was after. I appreciate your answer, Minister.

The TEMPORARY CHAIR: The question is that amendments (1) and (2) moved by Senator Patrick on sheet 1412 be agreed to.

Question negatived.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

by leave—Could I have the Greens' support for Senator Patrick's amendments recorded. I can see Senator Patrick putting his hand up. I assume he's asking for his support to be recorded as well.

The TEMPORARY CHAIR: It is so noted.

Rex Patrick (SA, Independent) Share this | Link to this | Hansard source

[by video link] Thank you.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (1) and (3) to (9) on sheet 1410 together:

(1) Clause 2, page 2 (table item 2), omit the table item.

(3) Schedule 2, page 49 (after line 17), after item 3, insert:

3A Subsection 6(1) (definition of eligible judge )

Repeal the definition, substitute:

eligible Judge means:

(a) in relation to a network activity warrant—an eligible Judge within the meaning of section 12A.

(b) otherwise—an eligible Judge within the meaning of section 12.

3B Subsection 6(1) (definition of relevant offence )

Repeal the definition, substitute:

relevant offence means:

(a) in relation to a network activity warrant or an account takeover warrant:

(i) an indictable offence against a law of the Commonwealth or of a State or Territory; or

(ii) an offence that is punishable by imprisonment for life or for a period, or maximum period, of at least 7 years; or

(iii) an offence against Chapter 5 of the Criminal Code (security of the Commonwealth); or

(iv) an offence against Chapter 8 of the Criminal Code (offences against humanity); or

(v) an offence against Chapter 9 of the Criminal Code (dangers to the community); or

(vi) an offence against Part 10.2 of the Criminal Code (money laundering); or

(vii) an offence against Part 10.7 of the Criminal Code (computer offences); or

(b) otherwise:

(i) an offence against the law of the Commonwealth that is punishable by a maximum term of imprisonment of 3 years or more or for life; or

(ii) an offence against a law of a State that has a federal aspect and that is punishable by a maximum term of imprisonment of 3 years or more or for life; or

(iii) an offence against section 15 of the Financial Transaction Reports Act 1988; or

(iv) an offence against section 53, 59, 139, 140 or 141 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006; or

(v) an offence against section 100, 100A, 100B, 101, 101A or 101AA of the Fisheries Management Act 1991; or

(vi) an offence against section 46A, 46C, 46D, 49A or 51A of the Torres Strait Fisheries Act 1984; or

(vii) if a surveillance device warrant, a computer access warrant, or a tracking device authorisation, is issued or given (or is sought) for the purposes of an integrity operation in relation to a suspected offence against the law of the Commonwealth, or of a State or Territory, that is punishable by a maximum term of imprisonment of 12 months or more or for life—that offence; or

(viii) an offence that is prescribed by the regulations.

(4) Schedule 2, page 51 (after line 2), at the end of section 7A, add:

(3) In this section, relevant offence means:

(a) an indictable offence against a law of the Commonwealth or of a State or Territory; or

(b) an offence that is punishable by imprisonment for life or for a period, or maximum period, of at least 7 years; or

(c) an offence against Chapter 5 of the Criminal Code (security of the Commonwealth); or

(d) an offence against Chapter 8 of the Criminal Code (offences against humanity); or

(e) an offence against Chapter 9 of the Criminal Code (dangers to the community); or

(f) an offence against Part 10.2 of the Criminal Code (money laundering); or

(g) an offence against Part 10.7 of the Criminal Code (computer offences).

(5) Schedule 2, page 51 (before line 3), before item 9, insert:

8A Section 11

Repeal the section, substitute:

11 Who may issue warrants?

(1) Any warrant under this Part, other than a network activity warrant, may be issued by an eligible Judge or by a nominated AAT member.

(2) A network activity warrant may only be issued by an eligible Judge.

8B Section 12 (heading)

After "Judges", insert "—general".

8C Subsection 12(3)

Omit "this Act", substitute "this section".

8D After section 12

Insert:

12A Eligible Judges — network activity warrants

(1) In this section, unless the contrary intention appears:

eligible Judge means a person in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force.

Judge means a person who is a Judge of:

(a) a court created by the Parliament; or

(b) the Supreme Court of a State or Territory.

(2) A Judge may, by writing, consent to be declared an eligible Judge under subsection (3) by the Minister referred to in that subsection.

(3) The Minister administering the Judiciary Act 1903 may, by writing, declare Judges in relation to whom consents are in force under subsection (2) to be eligible Judges for the purposes of this section.

(4) Any function or power conferred on the Judge under this Act is so conferred only in a personal capacity and not as a court or a member of a court.

(5) An eligible Judge has, in relation to the performance or exercise of a function or power conferred on an eligible Judge by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

(6) An instrument declaring a Judge to be an eligible Judge is not a legislative instrument.

(6) Schedule 2, page 65 (after line 10), at the end of Division 6 of Part 2, add:

27KU Public Interest Advocates

(1) The Prime Minister shall declare, in writing, one or more persons to be Public Interest Advocates.

(2) The Prime Minister must not declare a person to be a Public Interest Advocate unless the person:

(a) has served as a judge in one or more superior courts for a period of at least 5 years, and no longer holds a commission as a judge of a superior court; or

(b) is a Queen's Counsel or a Senior Counsel.

(3) A person must be appointed as a Public Interest Advocate for at least 5 years.

(4) A Public Interest Advocate may make submissions to an eligible Judge or a nominated AAT member about matters relevant to an application for a network activity warrant made under this Division to that Judge or member.

(5) The regulations may prescribe matters relating to the performance of the role of a Public Interest Advocate.

(6) A declaration under subsection (1) is not a legislative instrument.

(7) In this section:

superior court means:

(a) the High Court; or

(b) a court created by the Parliament; or

(c) the Supreme Court of a State or Territory.

(7) Schedule 3, page 113 (lines 6 and 7), omit subparagraph (a)(iii) of the definition of law enforcement officer, substitute:

(iii) an AFP employee (within the meaning of the Australian Federal Police Act 1979) who holds or performs the duties of an Executive Level 2 position, or an equivalent or higher position; or

(8) Schedule 3, page 113 (line 14), omit subparagraph (b)(ii) of the definition of law enforcement officer, substitute:

(iii) a member of the staff of the ACC who holds or performs the duties of an Executive Level 2 position, or an equivalent or higher position.

(9) Schedule 3, page 113 (lines 31 to 33), omit the definition of relevant offence.

The Greens also oppose schedule 1 in the following terms:

(2) Schedule 1, page 3 (line 1) to page 47 (line 2), to be opposed.

Senator Thorpe has articulated the concerns we have with this bill. These amendments address those. I think we can get on with voting on them.

The TEMPORARY CHAIR: The question is that the Australian Greens amendments (1) and (3) to (9) on sheet 1410 be agreed to.

Question negatived.

by leave—I would like the Greens' vote recorded. Considering we haven't had a response from the government or the opposition in relation to these amendments on the record, I would like that clarified as well.

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

I believe in answering the questions that were asked of me in the committee stage I have adequately addressed that.

The TEMPORARY CHAIR: The question is that schedule 1 stand as printed.

Question agreed to.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

by leave—I would like the Greens' position to be recorded and for it to be noted how the Labor Party and the government voted.

The TEMPORARY CHAIR: Your vote has been recorded.

Bill agreed to.

Bill reported without amendments; report adopted.