Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

[by video link] It's one of the duties of government to protect us all from the nefarious activities of those who would seek to terrorise and disrupt our society. To do so we have established authorities and bodies to provide such protection. Bodies such as ASIO need to be properly resourced and enabled. We enable them through legislation which strictly corrals their activities in a very strict set of parameters. The legislation under which they operate dates back to 2000, the turn of the millennium. In those days, we busily used phones and faxes. I'm reliably informed that it was easier to track the source of communications in those days, domestic or overseas. Now we deal in emails, mobile phones and messaging apps—you name it. With these types of communications, it becomes more difficult to ascertain whether the communication is foreign or domestic. With this comes the issue of our agencies being denied access to critical foreign intelligence which may be vital to our national wellbeing.

The changes proposed simply update the law and don't grant agencies new powers. Nevertheless, for those who, like me, have an instinctive wariness about Big Brother government, there are reassuring safeguards and they are robust. Allow me to deal with them. First of all, foreign communications warrants can only be issued for the purpose of obtaining foreign intelligence from foreign communications—for example, relating to foreign terrorists or cyberthreats. The warrant request must specify how the risk of the incidental interception of domestic communications will be minimised. The Attorney-General will issue a mandatory written procedure to identify domestic communications that may have been incidentally intercepted; to destroy any domestic communication that is so identified, unless it appears to relate to activities that present a significant risk to life; to notify the Inspector-General of Intelligence and Security, or IGIS, of any identified communication not destroyed because it appears to relate to activities that present a significant risk to life; and to deal with any other matters relating to intercepted communications. A warrant cannot be issued unless the mandatory procedure is in place.

Before issuing the mandatory procedure, the Attorney-General must consult the ministers for defence and foreign affairs, the IGIS and the Director-General of Security, and the procedure must be reviewed at least every three years. The IGIS has extensive powers akin to those of a standing royal commission and is an essential safeguard. The law requires that the collection of foreign intelligence under section 11C warrants must be highly targeted, and this will not change.

Having read all that out, one really wonders how the Australian Greens, in their contributions, can satisfy themselves that they spoke with any integrity in relation to these measures. We were harangued about this leading to a fascist state or a police state. It's clearly not. The safeguards embedded in this legislation ensure that the right balance is provided in protecting the community whilst also protecting civil liberties. With these things, there is always a balanced, moderate and sensible approach. Of course, as soon as you mention the words 'balanced', 'moderate' and 'sensible', you lose the Australian Greens in the public debate, because, for them, everything is perfectly black or perfectly white; there is no sense of exercising a judgement which can both protect civil liberties and protect our nation as much as possible from cyberattacks and terrorism. So I would really invite the Australian Greens to reconsider their approach to matters of public security generally and to this bill especially.

The comments of Senator Thorpe, if I might say so, were also unfortunate and regrettable. Her contribution did defy any analysis. There was a lot of hyperbole—well done on that score—but, when it came to fact, detail or reality, all those elements were, sadly, absent.

Using incidentally intercepted domestic communications that relate to activities that present a significant risk to life will allow agencies to share life-saving intelligence. I would have thought that is something anybody in a civilised society would seek for their people. That is what this government seeks for its people, for the Australian people, who we seek to serve in this place. We are seeking to get the balance right. It is good to see that the Australian Labor Party, which is in fact potentially a party of government, unlike the Greens, understands these issues as well.

To summarise, in this age of ever-increasing technological sophistication, especially in the area of communications, we need to allow our security agency to keep pace. While some of the issues may be complex, one thing is pretty simple: an Australian who serves the interests of foreign governments is an agent of such a foreign power, whether they are onshore or offshore, and Australians deserve protection from such nefarious activities and such nefarious actors. The bill, with its safeguards, will do exactly that, which is why it enjoys my support and, I trust, the chamber's support. This is a bill worthy of quick resolution by the Senate, because it is important our agency, ASIO, be clothed with the appropriate power and authority to keep us safe and to ensure that the legislation under which it acts and operates is legislation that allows it and empowers it to act in this modern age of telecommunications and that brings it forward from the 2000-era turn of the millennium some 20 years ago, where the communications methodologies were so different from what they are today. The bill is well crafted, well focused and well moderated by the various safeguards, and I commend the bill to the Senate.

David Van (Victoria, Liberal Party) Share this | Link to this | Hansard source

The threat landscape that we as a nation are confronted with today is vastly different from that of five, 10 and 20 years ago. It's important to note that next month marks the 20-year anniversary of the terrorist attacks on 11 September 2001. The events in Afghanistan this week brought back the dark memories of that attack on the US people by foreign nationals. Those attacks changed the world and the way in which liberal democracies protect their citizens.

A lot has changed in those 20 years, but the need to protect Australia from attacks and interference by foreign actors has not. Technology has changed how the world works, and the massive rise of cyberattacks has created challenges which have seen the need to significantly increase the size of our intelligence agencies. The technology and geopolitics driving these changes can have serious ramifications on the effective functioning of our democracy if not properly acknowledged and addressed. Information is now more important to world affairs than at any previous point in history, as a result of those advances in data driven technology. Information is now the world's most consequential and contested geopolitical resource. It is a growing source of state power, where we have seen undoubtable evidence that many of our adversaries are expending more time, energy and resources to build and utilise this capability.

There are a variety of reasons for which states conduct intelligence, however, the foremost of these being to increase understanding and knowledge. The timely acquisition of intelligence can improve the quality of decision-making by reducing ignorance of the situation faced and enabling actions or decisions to be optimised. In order to keep Australians safe from foreign adversaries, we must be able to effectively inhibit external actors' ability to collect intelligence on Australia and our communities. This is a national security priority. As the methodologies of intelligence collection develop and change with the rapidly evolving technologies, so must our national security laws. The Richardson review was conducted as a response to this changing threat landscape to ensure that the legislative framework that we have in place effectively addresses the threat at hand. The Richardson review's examination of the legislative framework underpinning the national intelligence community is the first and largest since the Hope royal commissions considered the Australian intelligence community in the 1970s and 1980s. I would like to thank Mr Richardson for the important work he did on this. He has been, over his career, one of Australia's best public servants. That is no mean feat, especially when you see the calibre of our current bureaucrats, including the Director-General of Security and the Secretary of the Department of Home Affairs.

The Morrison government is committed to ensuring our national security agencies have the right tools and powers to combat national security threats. The Foreign Intelligence Legislation Amendment Bill 2021 amends the Telecommunications (Interception and Access) Act 1979, otherwise known as the TIA Act, and the Australian Security Intelligence Organisation Act 1979, or the ASIO Act, to address critical gaps in the foreign intelligence collection framework.

Firstly, the reforms will update the foreign communications warrant provisions in the TIA Act to reflect changes in communications technologies. This means that intelligence agencies will be able to intercept a communication to determine whether a communication is a foreign communication. Foreign communications warrants have been a critical part of Australia's foreign intelligence legislative framework for more than 20 years. Currently, the TIA Act prohibits the interception of domestic communications. This made sense 20 years ago, when the technology available was a lot simpler and it was easier for our intelligence services to identify whether a type of communication was from a foreign source. Now, however, due to technological advances in communication and encryption technology, the source of a communication can be impossible to find out. As a result of this, our intelligence services have been avoiding the collection of foreign communication where there may be a risk of collecting domestic communication. This means, under the current act, we are effectively telling our intelligence services to turn a blind eye to what could be vital life-or-death information. The warrants enable intelligence agencies to identify threats to Australia's national security, including malicious cyberactivity targeting Australian interests and terrorist communications. Without the proposed changes, gaps in foreign intelligence collection will continue to grow and we will not have visibility of possible threats to Australia and its national security. I don't know about any of you, but the thought of that vital intelligence being missed, which could lead to devastating outcomes in our communities, makes me extremely uncomfortable, as I'm sure it does all Australians. This is why these reforms are absolutely vital, and they reflect the Morrison government's commitment to keeping our nation safe.

These reforms will allow intelligence agencies to intercept communications for the purpose of foreign intelligence where the geographic location of the sender and recipient cannot be determined prior to interception. This does not mean that we are granting the intelligence agencies more power. These reforms are simply amending the current act to properly reflect the change in how we communicate and to ensure our intelligence agencies are able to effectively deal with the growing threats we face. The nature and scope of foreign communications warrants remain unchanged. ASIO will remain the responsible agency for obtaining foreign intelligence inside Australia and the only agency that may apply for or obtain foreign intelligence warrants. These warrants do not allow the bulk collection of foreign communications now or in future. It is actually a requirement that these warrants are to be use for highly targeted operations only. Of course, robust safeguards will accompany these reforms to ensure that powers are used for the right purposes. Foreign communications warrants can only be issued for the purpose of obtaining foreign intelligence from foreign communications, such as those relating to foreign terrorists or cyberthreats. The warrant request must also specify how the risk of the incidental interception of domestic communications will be minimised.

It is important to note that ASIO's sole function is to protect Australia and Australians from threats to our security. ASIO's functions include obtaining, correlating and evaluating intelligence relevant to security. This means that they are responsible for the protection of Australia from espionage, sabotage, politically motivated and communal violence, attacks on Australia's defence system, and acts of foreign interference whether directed from or committed within Australia or not; the protection of Australia's territorial and border integrity; and Australian security responsibilities to other countries. Without these amendments, ASIO would be unable to complete their duties to the best of their ability, and therefore may be unable to effectively protect Australia and Australian citizens. That's something I'm sure everyone here agrees we cannot let happen.

The second set of reforms will close the current loophole on Australians working for a foreign power. Currently, foreign intelligence can be collected on an Australian working offshore for a foreign power, but that same intelligence cannot be collected on that Australian if they are in Australia. This means that, if there are people in Australia acting in a manner which could lead to the harm of other Australian citizens, our intelligence agencies are unable to collect intelligence on them, due to a legal loophole. For example, if an Australian citizen is working with a foreign power or terrorist organisation overseas and our intelligence agencies are collecting intelligence on them, our agencies must stop all activities on them once they return to Australia. If an Australian is working for a foreign power overseas, they are a threat to Australia and other Australians. Just because they return to our shores does not mean that this threat dissipates and our intelligence services should cease their work. It is vital that our intelligence agencies can continue to obtain information on individuals who threaten our society so that they can continue to protect and promote Australia's national security and national and economic wellbeing.

It is also important to highlight that these amendments come with a robust set of safeguards. The law will continue to prevent the request of a foreign intelligence warrant on Australian persons who are not acting for or on behalf of a foreign power. The Director-General of Security will be required to provide the Attorney-General with the detailed justification of the grounds upon which the director-general suspects the person is acting for or on behalf of a foreign power. The Attorney-General cannot issue a warrant unless satisfied the person is, or is reasonably suspected by the director-general of, acting for or on behalf of a foreign power.

When it comes to protecting our national security, the Morrison government is steadfast in its approach and in its commitment to ensuring that our national security framework is as robust and responsive as possible. It is of vital importance that these amendments are made without delay, and every day that we wait is a day that crucial intelligence may be missed. In Australia we have world-class intelligence agencies filled with some of our most capable men and women. It is our job to ensure that they have the right legislative framework in place so that they can continue to protect Australia and keep our communities safe from harm. I commend the bill to the Senate.

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

The Foreign Intelligence Legislation Amendment Bill 2021 addresses serious gaps in Australia's foreign intelligence capability. In these uncertain times it is more important than ever that Australia's intelligence services have the capacity to detect any potential threats and are not trying to do so with one hand tied behind their back. This legislation simply brings Australian foreign intelligence interception laws in line with our Five Eyes partners, as the inquiry of the Parliamentary Joint Committee on Intelligence and Security has found. It is underpinned, of course, by robust safeguards and oversight, which I will talk to in a moment.

The first of these reforms will allow intelligence agencies to intercept communications for the purpose of foreign intelligence where the geographical location of the sender and recipient cannot be determined prior to interception. This reform itself does not grant intelligence agencies new powers. It simply updates the law to reflect the reality of modern communications and to ensure existing powers can continue to be used. That's an important point to make, and I stress it. It was much easier to determine the origin of communications 20 years ago. These days it's increasingly difficult to do so.

But the nature and scope of foreign communications warrants remain unchanged. ASIO is responsible for obtaining foreign intelligence inside Australia and is the only agency that may apply for or obtain foreign intelligence warrants, including section 11C warrants. Section 11C warrants do not allow bulk collection of foreign communications now or in the future. The law requires that the collection of foreign intelligence under section 11C warrants be highly targeted, and this will not change. The act and the amendments do not permit indiscriminate collection.

Foreign communication warrants have been a critical part of Australia's foreign intelligence legislative framework for more than 20 years. These warrants are issued by the Attorney-General at the request of the Director-General of Security and on the advice of the Minister for Defence or the Minister for Foreign Affairs. The circumstances in which the warrants may be exercised and the conditions that apply to them are approved by the Attorney-General and remain under the stringent oversight of the IGIS. These warrants authorise the interception of foreign communications for the purpose of obtaining foreign intelligence.

The other major reform in the bill closes the loophole on those in Australia working for a foreign power. The Richardson review recommended reforms to allow foreign intelligence to be collected on onshore Australian citizens and permanent residents who are acting for or on behalf of foreign powers. It's an illogical situation where foreign intelligence can be collected on an Australian working for a foreign power offshore but that same intelligence cannot be collected under a warrant on that same Australian onshore.

Unfortunately, there are circumstances where Australian citizens and permanent residents are of legitimate foreign intelligence interest—for example, where an Australian citizen is recruited for foreign espionage purposes. As the Richardson review observed, an Australian serving the interests of a foreign government remains an agent of a foreign power whether they are onshore or offshore. It is important that our intelligence agencies can obtain information to protect and promote Australia's national security foreign relations.

Now I would like to address some attempts made earlier in this debate to conflate the foreign intelligence reforms in this bill with the Foreign Influence Transparency Scheme. There is no connection between the two. The Foreign Influence Transparency Scheme provides the public with visibility of the nature, level and extent of foreign influence on Australia's government and politics. The scheme is not in any way related to the legal framework governing the collection of foreign intelligence by Australia's intelligence agencies. It does not in any way suggest that an individual is engaged in espionage.

In contrast, this bill enables the Director-General of Security to seek a warrant to collect foreign intelligence on Australians acting for or on behalf of a foreign power. There is a strenuous process and safeguards in place. The Attorney-General cannot issue a warrant unless satisfied the person is, or is reasonably suspected by the director-general to be, acting for or on behalf of a foreign power. The safeguards contained within the broader foreign intelligence warrant framework will continue to apply. These include, first, that collection activities are conducted by specifically approved personnel; second, that the Attorney-General may approve a foreign intelligence warrant only when satisfied on advice from either the Minister for Defence or the Minister for Foreign Affairs that the collection is in the interests of Australia's national security, foreign relations or economic wellbeing; third, that warrants must not exceed a six-month duration. The IGIS will also continue to have oversight of agencies' activities under these warrants. The IGIS has extensive powers akin to those of a standing royal commission, and is an essential safeguard.

I point out that the term 'foreign intelligence', defined in section 5 of the TIA Act, means 'intelligence about the capabilities, intentions or activities of people or organisations outside Australia'. The term 'foreign power' is defined in section 4 of the ASIO Act:

(a ) a foreign government;

(b) an entity that is directed or controlled by a foreign government or governments; or

(c) a foreign political organisation.

It's absurd to suggest, as Senator Patrick has tried to today, that the bill would permit the Director-General of Security to seek a warrant for any Australian acting for or on behalf of a foreign power merely because they are on the Foreign Influence Transparency Scheme Public Register. The existing warrant thresholds must still be met, in addition to the requirement to be acting for or on behalf of a foreign power, before a warrant can be obtained to collect foreign intelligence. There are robust safeguards around the issuing of these warrants. To conflate this bill with the Foreign Influence Transparency Scheme is irresponsible and, frankly, shows a lack of understanding about both the bill and our current foreign intelligence framework.

In conclusion, our national security laws must continue to keep pace with the evolving operational environment and changes in technology. The Comprehensive Review of the Legal Framework of the National Intelligence Community, known as the Richardson review, made clear that the Telecommunications (Interception and Access) Act 1979 has not kept up with the modern communications environment and that both targeted and substantive reforms are required. The reforms in this bill include robust oversight and safeguards, and the crucial bottom line is that this bill will help intelligence agencies protect Australians. It will make it easier to uncover terrorist plots and other serious threats to Australia's national interests now and into the future. Without the proposed changes, gaps in foreign intelligence collection will continue to grow and Australia will not have visibility of possible threats, creating serious risks. This bill is required with urgency.

I really caution senators who have been critical of the fact that we are working to ensure the passage of this bill this week—today. Given the situation with COVID-19 and state lockdowns, we simply don't know with any degree of certainty how long the parliament will be able to sit and deliberate. The fact is that each day these reforms are not in place is a day that Australians are put at risk, that our agencies miss critical foreign intelligence about threats to Australia and Australians, and that harms our national interests. Our government makes no apology for putting the safety and security of every Australian first.

I recognise and commend the Australian Labor Party at this particular point in time for their recognition of the vital importance of this bill and their constructive work through the Parliamentary Joint Committee on Intelligence and Security, chaired ably by Senator James Paterson. The bill has had oversight by the Parliamentary Joint Committee on Intelligence and Security, and it's worth noting that the recommendations from their inquiry have been adopted in full by the government. These strengthen even further the robust safeguards and oversight that the government has provided with this bill, and it is commended to the Senate.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

It's always a delight to follow my good friend Senator Smith, who's going out of the chamber as I pay him a compliment. I'm obviously not reflecting on your leaving the chamber; I'm reflecting on what you said in the chamber and doing so in a complimentary fashion. I'm very pleased to rise to speak on the Foreign Intelligence Legislation Amendment Bill 2021. At the outset I'll pick up on one of the themes that Senator Smith brought to the debate, and that is that it is pleasing that the coalition, my party, and the Labor Party are on the same page when it comes to these critical policy issues with respect to national security. It is important that the governing parties in our political system are on the same page when it comes to national security issues. There's a lot of heritage and tradition in that regard as we look at our history, and from my perspective it's something we should always seek to maintain. I'd like to make three preliminary points with respect to the context in which this bill is being considered.

First, the No. 1 priority of the Commonwealth government is to protect the citizens of Australia. That has to be the No. 1 priority of our Commonwealth government, and that's the context in which we have this discussion with respect to this bill, the Commonwealth government protecting the lives and liberties of our Australian citizens and everyone who is in this country. Second, I want to pay tribute to all of those in our defence forces, our intelligence agencies, our police forces and everyone who supports them because they help to achieve the objective of keeping us safe. I really want to pay tribute to them and I salute them, especially on this day when so many people are doing so much to make others safe in an international context. I want to salute each and every one of the people who keep us safe whilst we sleep at night. Third, in order to keep our country safe and in order to have an appropriate system of governance to keep our citizens and everyone who is residing in our country safe, we must be adaptable. We must be prepared to consider reasonable and proportionate legislative changes to reflect the changing environment, and the changing environment includes technology. It includes technology because, as we all know, it's moving at an incredibly fast pace. It should be recognised that the act that is being amended in this case was first introduced in 1979. A lot has happened since 1979. I see Senator Cash nodding wisely, sagely, as she does. Senator Cash, I'm sure you weren't born at the time, but I was 10 years old, and a lot has changed in terms of telecommunications since that point in time. It is important that our security legislation keeps up to date with those technological changes, and that's what this bill seeks to do.

In relation to the specifics of this bill, it deals with a particular gap in our national defences. I must say that, before this bill was presented, I wasn't aware of this gap in our national defences, so this bill has been somewhat of an education for me with respect to this area of intelligence gathering. The gap is that you potentially have situations where foreign intelligence needs to be collected with respect to particular Australians who might be thought to be acting for foreign powers, but that foreign intelligence needs to be collected in a domestic context. It needs to be collected onshore, and therefore you have a situation which evolves where there can be a mix of foreign intelligence and domestic telecommunications information, and the collection of one, the domestic, can taint the other, the foreign. That's an unacceptable set of circumstances. That needs to be addressed so that foreign intelligence can be gathered, even with respect—especially, perhaps, with respect—to Australians within our own borders who are acting in the interests of a foreign power and whose activities need to be scrutinised by our intelligence agencies. That's the gap which this bill seeks to and does address effectively.

One of the matters we need to always consider with respect to intelligence arrangements is whether or not there are effective checks and balances. This is extraordinarily important. It goes to the heart of our Westminster system. It goes to the heart of our democratic processes. It goes to the heart of our rights and freedoms as individuals in this nation. I'm very pleased that this bill is being proposed in the context of appropriate checks and balances to protect the rights and liberties of every Australian.

Firstly, the Director-General of Security is required to provide the Attorney-General with a detailed justification of the grounds on which the Director-General suspects a person is acting for or on behalf of a foreign power. That's an important point. Before these powers can be exercised, the Director-General needs to provide the Attorney-General—and I'll say a bit about the context of the Attorney-General—with a case as to why the Director-General suspects that these powers need to be invoked. It's important to note—as Senator Cash would know very well, and my friend Senator Watt, from Queensland, would know very well, given his background—that the Attorney-General in our system of government is not just a member of the executive. The Attorney-General is the first law officer of the nation. With that status come special responsibilities and special expectations, including an obligation to the rule of law; an obligation to stand up for our independent judiciary and our court system; and an obligation, in terms of discharging this particular power, to scrutinise the request for the exercise of intelligence powers such as these. So that's the first check and balance—the Director-General of Security being required to provide the Attorney-General with a detailed justification for the exercise of the powers.

When we move on to the next step in the process, the second check and balance is that the Attorney-General has to be satisfied that the person who is the subject of the application is 'reasonably suspected' by the Director-General to be acting for or on behalf of a foreign power. That standard of reasonableness is extremely important and it contains an objective component. When the Attorney-General is considering an application with respect to the operation of these powers, the Attorney has an obligation to scrutinise the basis of the application and consider whether or not, in all the facts and circumstances, the application is reasonable. And the Attorney-General, as the first law officer of the nation, is responsible for the decision that the Attorney comes to in that respect.

So the first element is the fact that there is a reference to the Attorney-General; the second is the standard to which the Attorney-General has to satisfy—in our case—herself with respect to the power of the application; and then there is the third element of the suite of protections, the checks and balances, that apply in the context of this bill, and they are the broader protections which apply with respect to the exercise of powers relating to security and intelligence. In that context, the first point is that these powers can only be exercised by appropriately trained personnel. There are three elements to that. The first is the actual training. That's the mechanics in terms of the process and what steps need to be gone through, including navigating through the checks and balances, before the powers can be exercised and the relevant procedures activated. That's the first element—the training. The second element is the culture of the organisation in which the personnel are embedded. It is extraordinarily important that the culture of that organisation is appropriate, that they understand the serious nature of these powers and the need to protect the rights and liberties of all Australians. So you've got the training and the culture of the organisation. The third element is the character of each individual staff member or officer who is exercising these powers. That's the third limb, from my perspective, the character of the people, each and every one of them who is exercising these powers. I think you need to get all three right—the specific training, the culture of the organisation and the character of the individual who is exercising those powers—and, first and foremost, is understanding the serious nature of the powers.

The second check and balance in terms of the overall scheme of checks and balances in the intelligence and security space in our nation is that the Attorney-General only approves a foreign intelligence warrant when satisfied, on advice of the Minister for Defence or the Minister for Foreign Affairs. Again, that's appropriate; that's a further check and balance within the executive of our Westminster system of government. And the third check and balance is to satisfy that the collection is in the interests of Australia's national security. That is extremely important as well—that it has to be in the interests of our overall national security. And that comes back to the first point I made at the start of this contribution to this debate—that the first priority of the Commonwealth government is to protect its citizens.

The fourth check and balance in terms of the overall security and intelligence regime is the oversight from the Inspector-General of Intelligence and Security. Again, that is an extremely important oversight function. It should also be noted that part of that function is interaction with the relevant joint parliamentary committee. All of us in this chamber have the opportunity and duty to serve on various oversight committees with respect to the exercise of powers by the executive. And, in the exercise of those oversight powers, we have the benefit of independent reports from people such as the Inspector-General of Intelligence and Security to inform us as to whether there are any issues with respect to the exercise of powers such as this. That also is an important check and balance.

I've taken some time talking about the checks and balances in the context in which this bill is presented, but that should provide to everyone listening to this debate comfort that there is a broad array of checks and balances in terms of the exercise of these powers.

In summary, we have a bill which takes into account the changing circumstances from a technology point of view—from when I was a 10-year-old working with those clunky phones that we all remember; some of us remember! It also fills a definite gap in our intelligence collection regime with respect to that particular circumstance where an Australian is potentially acting for foreign interests within our own border and you are trying to collect foreign intelligence. You potentially can trip up, because you can also uncover domestic information or domestic intelligence and it's very hard to differentiate one from the other. Thirdly, there's a whole suite of appropriate checks and balances. That provides the context in which this bill is presented. On that basis, I'm very happy to commend the bill to the chamber.

Concetta Fierravanti-Wells (NSW, Liberal Party) Share this | Link to this | Hansard source

[by video link] I rise to speak on the Foreign Intelligence Legislation Amendment Bill 2021. It is important that our national security laws continue to keep pace with the evolving operational environment and changes in technology. I have spoken regularly over the years about these issues and most especially regarding issues surrounding foreign interference and foreign influence in Australia. The Comprehensive Review of the Legal Framework of the National Intelligence Community, the Richardson review, made clear that the Telecommunications (Interception and Access) Act 1979, the T(IA) Act, has not kept up with modern communication. Accordingly, targeted and substantive reforms are required. The bill rectifies two critical gaps in the foreign intelligence collection framework. Without the proposed changes, gaps in foreign intelligence collection will continue to grow and Australia will not have visibility of critical intelligence and possible threats, creating serious risks.

Addressing urgent operational amendments ahead of more substantive reform was recommended by the review. Firstly, the reforms will update the foreign communications warrants provision in the T(IA) Act to reflect changes in communications technology. This bill will enable agencies to intercept a communication to determine whether the communication is a foreign one. Currently foreign intelligence can be collected on an Australian working for a foreign power offshore, but that same intelligence cannot be collected under a warrant on that Australian onshore. As the review observed, an Australian serving the interests of a foreign government remains an agent of a foreign power whether they are onshore or offshore. Hence, secondly, the bill allows for the collection of foreign intelligence on Australians in Australia who are acting for, or on behalf of, a foreign power. The bill will help intelligence agencies protect Australians. It will make it easier to uncover terrorist plots and other serious threats to Australia's national interests.

Having said that, the bill does include robust oversights and safeguards. The T(IA) Act prohibits the interception of domestic communications, communications that both start and end within Australia, under a section 11 warrant even where that interception is incidental or unavoidable. When section 11C was introduced in 2000 this made sense. At that time the primary communications technologies were telephone and fax and it was simpler for agencies to determine whether a communication was foreign prior to interception based on country and area codes. With the advent of advances in technology, such as mobile phones, messaging apps and the internet, it may be impossible at the point of interception to ascertain if communications are foreign or domestic. Currently, to avoid breaching 11C, agencies do not intercept foreign communications where there is a risk of incidentally intercepting domestic communications. So there's a real risk that agencies are missing critical foreign intelligence. The bill will allow intelligence agencies to intercept communications for the purposes of foreign intelligence where the geographic location of the sender and the recipient cannot be determined prior to interception.

I note the bill will not grant intelligence agencies new powers. It will simply update the law to reflect the reality of modern communications and ensure existing powers can continue to be used. As I indicated earlier, robust safeguards will accompany these changes. Foreign communications warrants can only be used for the purpose of obtaining foreign intelligence from foreign communications—for example, relating to foreign terrorists or cyberthreats. The warrant request must specify how the risk of the incidental interception of domestic communications will be minimised. The Attorney-General will ensure a mandatory written procedure pertaining to the warrant: to identify domestic communications that may have been incidentally intercepted; to destroy any domestic communications that are so advised unless it appears to relate to activities that present a significant risk to life; to notify the IGIS, the Inspector-General of Intelligence and Security, of any identified communications not destroyed; and to deal with any other matter relating to intercepted communications. I stress that a warrant cannot be issued unless the mandatory procedure is in place. Before issuing this procedure the Attorney-General must consult with the ministers for defence and foreign affairs, the IGIS and the Director-General of Security, and the procedure must be reviewed at least every three years. There is no doubt that using incidentally intercepted domestic communications that relate to activities that present a significant risk to life will allow agencies to share life-saving intelligence.

ASIO is responsible for obtaining foreign intelligence inside Australia and is the only agency that may apply for, or obtain, foreign intelligence warrants, including section 11C warrants. Section 11C warrants do not allow bulk collection of foreign communications. They must be highly targeted, and this will not change. The act and these amendments do not permit indiscriminate collection. Foreign communications warrants have been a critical part of Australia's foreign intelligence legislative framework for more than 20 years. These warrants are issued by the Attorney-General at the request of the D-G of Security and on the advice of the Minister for Defence or the Minister for Foreign Affairs. The circumstances in which the warrants may be exercised and the conditions that apply to them are approved by the A-G and remain under the stringent oversight of the IGIS. These warrants authorise the interception of foreign communications for the purpose of obtaining foreign intelligence, enabling agencies to identify threats to our national security, including malicious cyberactivity targeting Australian interests and terrorist communications. Under the TIA Act, 11C warrants are only available where service or device based warrants under 11A or 11B would be ineffective. So this is a warrant of last resort. In all cases, the use of foreign communications warrants is proportionate and highly targeted.

One of the recommendations of the review was to allow foreign intelligence to be collected on Australian citizens and permanent residents onshore who are acting for, or on behalf of, foreign powers. These amendments will close the current legislative gap where foreign intelligence can be collected on an Australian working for a foreign power offshore but that same intelligence cannot be collected under a warrant on that Australian onshore. There are circumstances where Australian citizens and permanent residents are of legitimate foreign intelligence interest—for example, where an Australian citizen is recruited for foreign espionage purposes. It is important that our agencies can obtain information to protect and promote Australia's national and economic security and our foreign relations.

As I have previously mentioned in this place, we live in a society characterised by extreme activism and perhaps ecoterrorism. We have seen vocal minorities disregard the rule of law in pursuit of their objectives, sometimes in conjunction with like-minded overseas players. I have used the example of 2015 satellite analysis of bushfires confirming that 40 per cent of fires were deliberately lit, 47 per cent were accidental and only 13 per cent were caused by lightning strikes. Are such people lone actors or part of a sinister collective conducting international ecoterrorism? Of those recent bushfires in the Northern Hemisphere, arson was recorded in Turkey, Greece, Sicily and Algeria. The actions of such operatives caused loss of life and properties, and damage to economies and economic security.

Robust safeguards will accompany reforms to allow foreign intelligence to be collected on Australians acting for, or on behalf of, a foreign power. The law will continue to prevent the request of a foreign intelligence warrant on Australian persons who are not acting for, or on behalf of, a foreign power. The D-G of Security will be required to provide the Attorney-General with a detailed justification of the grounds on which there is a suspicion that the person is acting for, or on behalf of, a foreign power. The Attorney-General cannot issue a warrant unless satisfied the person is, or is reasonably suspected by the D-G, of acting for, or on behalf of, a foreign power.

The safeguards contained within the broader foreign intelligence warrant framework will continue to apply. Collection activities are conducted by specifically approved personnel. The A-G may only approve a foreign intelligence warrant when satisfied on the advice from either the Minister for Defence or the Minister for Foreign Affairs that the collection is in the interests of Australia's national security, foreign relations or economic wellbeing. Warrants must not exceed six months duration. The IGIS will also continue to have oversight of agencies' activities in relation to the act and the amendments—noting that IGIS has extensive powers akin to those of a royal commission. IGIS remains an essential safeguard.

What are some practical examples of how this legislation will be vitally important? Are we protecting Australians from terrorist threats? Intelligence agencies look for foreign terrorist groups that are inciting violence against Australians. One way that intelligence agencies can do this is by looking for foreign terrorist organisations that are sharing instructional material, such as their bomb-making videos, with their members and other potential terrorists. Agencies can develop highly targeted techniques to collect foreign communications that match the digital fingerprint of instructional material known to be produced by foreign terrorist organisations. At present, 11C warrants cannot be relied on in these circumstances, because of the possibility that intelligence agencies may inadvertently collect a domestic communication—for example, two people in Australia sharing the same bomb-making video. These amendments will enable intelligence agencies to better protect Australians by identifying these types of threats from foreign terrorist organisations.

To protect Australians from terrorist threats, agencies analyse communications from offshore terrorist groups to find previously unknown associates. The objective is to identify offshore terrorists who are targeting Australia or Australians, or who are communicating with terrorists inside Australia. There have been instances where agencies have identified that a group based overseas is using a special messaging app to communicate exclusively with its members. A technique was developed to uniquely identify these communications. A section 11C warrant could not be relied upon, again, because of the risk that terrorists based in Australia could be using the same app to communicate between themselves. Amending the law will enable intelligence agencies to better protect Australians by identifying threats from foreign organisations.

Agencies collect intelligence on how other countries and their agents might be acting in ways that are contrary to our interests. Sometimes agents of a foreign power are Australians but acting in ways that are contrary to our national interests—for example, they might be a foreign citizen who also has Australian residency who is assisting a foreign government to procure military or sensitive dual-use technology or materials. Indeed, I have raised concerns about this very circumstance in speeches in this place, especially in relation to the acquisition of strategic assets and, most especially, by entities under the control or associated with foreign totalitarian regimes. In this role, they are effectively conducting business on behalf of a foreign power.

Agencies can collect foreign intelligence on agents of foreign powers outside of Australia. However, if the agent of a foreign power is an Australian citizen or holds Australian residency, there is no legal mechanism to collect foreign intelligence in Australia, where their activities may be of greatest concern to us. This leads to an intelligence gap, given that an Australian serving the interests of a foreign government is the agent of a foreign power—as I said, regardless of whether they are in Australia or overseas.

This bill will enable agencies to collect vital foreign intelligence that is important to secure our national interest in an increasingly competitive global environment. The techniques used by foreign cyberactors often have unique features that stand out on the telecommunications network and that can be specifically targeted for detection—for example, intelligence agencies can detect foreign hackers concealing their attacks to look like normal, harmless network communications between two computers. In reality, they contain commands to launch destructive ransomware attacks. But in some cases hackers, including hackers based in Australia, also hide secret communications using the same techniques—for example, two hackers might use these techniques to share ransomware victim details. As the two hackers could be based in Australia, 11C warrants cannot be used in these circumstances, given the possibility that intelligence agencies may inadvertently collect secret communications between two Australian based hackers. Amending the law will enable intelligence agencies to better protect Australians from foreign hackers. And, as I've said, the safeguards in the bill will require the destruction of any domestic communications inadvertently collected, other than those which appear to reveal a significant risk to a person's life.

So if I may, in closing: this is an important bill so that our national security laws can continue to keep pace with the evolving operational environment and changing technology. I commend the bill to the Senate.

Scott Ryan (President) Share this | Link to this | Hansard source

Order, Senator Fierravanti-Wells. I call the minister.

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

I rise to sum up the debate on the Foreign Intelligence Legislation Amendment Bill 2021. I would like to thank all senators for their contributions to the bill. These urgent reforms will address critical challenges facing Australia's intelligence agencies. As a result, Australia will have greater visibility of foreign threats such as malicious cyberactivity, terrorist communications and foreign interference, and I commend the bill to the Senate.

Scott Ryan (President) Share this | Link to this | Hansard source

The timing of Bradman there, Senator Cash. It being 4.30, the time allotted for debate on the Foreign Intelligence Legislation Amendment Bill 2021 has expired. In accordance with the resolution agreed to this morning, I will now put the questions on the remaining stages of the bill. The question is that the Foreign Intelligence Legislation Amendment Bill 2021 be read a second time.

Scott Ryan (President) Share this | Link to this | Hansard source

The question now is that the amendments on sheet 1417, circulated by Senator Patrick, be agreed to.

Senator Patrick's circulated amendments—

(1) Page 11 (after line 14), at the end of the Bill, add:

Schedule 4 — Oversight of intelligence agencies

Intelligence Services Act 2001

1 Paragraph 29(1)(a)

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

2 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.

3 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.

Question negatived.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—Could you please record the Greens' support for that amendment?

Scott Ryan (President) Share this | Link to this | Hansard source

Yes. I assume that Senator Patrick would also like to record his support of his own amendment. It is so recorded in Hansard.