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

I was wrapping up my remarks earlier. I'll just conclude by saying that Labor does judge that the Foreign Intelligence Legislation Amendment Bill 2021 presents changes that are necessary, are proportionate, protect the rights of Australian citizens, retain the prohibition in the Hope royal commission on using foreign intelligence warrants to collect domestic communication and have appropriate oversight. Particularly this bill is improved by the Parliamentary Joint Committee on Intelligence and Security's review and recommendations.

In closing, I would like to acknowledge the chair of the PJCIS, Senator Paterson, and thank him and the Minister for Home Affairs, Karen Andrews, for the constructive way they worked with the opposition in a bipartisan fashion and in the national interest to see the changes needed that were identified by the Richardson review and to address the gaps in our foreign intelligence communication warrant. The gaps that Mr Richardson recommended that this parliament address are being addressed to improve the safety and security of our nation by this legislation. Labor will support it.

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

[by video link] I rise to speak on the Foreign Intelligence Legislation Amendment Bill 2021. This is yet another spectacular example of how the two major parties team up with each other to just ram through legislation in this chamber without respect for due process. The Liberal Party always say that they are a broad church. They're so broad in fact it seems they also take a big chunk of the Labor Party, too. This bill was referred to the Parliamentary Joint Committee on Intelligence and Security, also known as the Lib-Lab closed shop, for a secret review and a final report by Friday 20 August 2021. The PJCIS recommended the bill be passed—no surprises there. They have locked out every crossbencher and made these decisions on their own, as the Labor Party and the Liberal Party do so often, without having any regard for anybody else in this place.

This is subject to two amendments: requiring reporting to PJCIS in certain circumstances and a review of the provisions after five years. The bill and explanatory memorandum were referred on an embargoed basis as the bill had not yet been tabled in parliament. The committee agreed to the government's request to consider this legislation quickly and in private. The government wants to do business quickly and in private. The committee held a classified briefing on Monday 23 August 2021 with officials from relevant agencies—again, a closed shop. We as senators in this place all have responsibilities to represent the people that have put us here. The two major parties—Labor and Liberal—have created this closed shop that disallows other senators from having input on behalf of their constituents. That's great for democracy! It's closed shops, secrecy and privacy.

Now the two old parties want to tell us that this legislation is for our own good and so absolutely important to the running of the country and the alleged protection of the Commonwealth that we are just meant to pass it without review. This is serious legislation. How can we not be reviewing it and allowing other senators to have input and hear those briefings so they can make an informed decision and be part of the decision-making? But, no, it's the closed shop of Labor and Liberal. Maybe my colleagues in there have forgotten that this chamber is a house of review. This is absolutely disgusting. It's a contempt for democracy and should not be allowed.

We will not be voting for this bill at this stage, not until you come back to this house to allow proper debate and scrutiny. That's what we're paid to do, right? We have tried to refer this bill to the Legal and Constitutional Affairs Legislation Committee to allow for proper scrutiny by the parliament and the people. That's what we're meant to do. If you're scared of proper debate and scrutiny of laws, which I thought was what we were meant to be doing, then maybe you should think about why you're here. If you're just forming your own private club, then be open and transparent about that. I'm sure the people out there don't want closed shops in this place, which don't allow us a say. Labor and Liberal, you should be ashamed of yourselves for teaming up like this, doing a dirty little deal and rushing it through in the way you have.

Until you actually live by your so-called values of democracy and do your job as senators, rather than having closed-shop committees, we have to think about why you're here. Why are you here? I know why I'm here. Come back here once you've considered why you're here and how bad this is for the Australian people—for you all to lock out other senators from having a say, scrutinising this bill and taking it through a review process. Tell the Australian people that you two have joined forces and are blocking a review of a piece of legislation that's going to have an effect on ordinary Australians. Until that time, we can't support the bill. You're blocking democracy. You're not acting in good faith. You're not representing the people, and your little PJCIS fiefdom is wrong. We shouldn't be operating like that, as elected officials in a place where we're meant to be scrutinising legislation that affects the Australian population. I think you need to have a good hard look at yourselves—dig deep—and allow us to properly review this legislation to ensure free, prior and informed consent. Don't rant about free, prior and conformed consent when you don't allow it to happen in this place. Open it up. Let us review it, and let's do the right thing. I call on all senators with any integrity to do the same. Thank you.

James Paterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I rise to make a contribution on the Foreign Intelligence Legislation Amendment Bill 2021. I'm grateful to have the opportunity to do so on the legislation itself, as, when the Parliamentary Joint Committee on Intelligence and Security tabled its report on the bill last night, I didn't have the opportunity to contribute, given the other disruptions to the program. I'm going to confine my contribution to a couple of key areas. Firstly, I want to discuss the conduct of the inquiry by the Intelligence and Security Committee, particularly in light of the comments made by Senator Thorpe. I'll do my best not to take the personal reflections too personally. I also want to discuss the threat environment that Australia is operating in, which illustrates the need for this legislation. I will then speak about the key provisions of the bill and the safeguards, and, if I have time, I'll talk about some of the case studies that are relevant to this bill. I'll also canvass the committee's recommendations.

Firstly, to address the comments made by Senator Thorpe about the PJCIS's conduct of this inquiry, it's certainly not the preference of the PJCIS to complete its inquiries in private, nor to do so quickly. It is rare for us to do so, although it is not without precedent. In 2018, when considering ASIS amendment bills, we conducted a similarly swift inquiry. It is usually the preference of the committee to conduct our inquiries in public and over a lengthy period of time. Indeed, some of our inquiries are so lengthy that they go for many months, if not years. However, there were unique circumstances in this bill which required the committee to do this and were why, after careful consideration, the committee unanimously and on a bipartisan basis agreed to do so.

Those unique circumstances related, firstly, to the sensitive nature of the legislation and the capability concerned by the legislation and, secondly, to the unusual operating environment that we're all in, which really should be self-evident, as a result of the COVID outbreak not just in New South Wales and Victoria but also here in the ACT. It is not possible to be absolutely certain about the sitting calendar going forward, and it would be unfortunate if the parliament began consideration of a sensitive bill like this but was not able to conclude its consideration of the bill due to a COVID outbreak. That necessitated a quick and private inquiry. I want to assure all senators and, indeed, all members of parliament that, despite the constrained circumstances the committee was operating under in the conduct of this review, we nonetheless fulfilled all of our responsibilities to the parliament and, through the parliament, to the Australian people to test robustly the rationale for this bill, the need for this bill; to test the individual provisions of the bill; to test the safeguards of the bill; and ultimately to make a number of recommendations about the bill, which I will briefly explain.

The committee has made three recommendations, one of which is that the bill be passed. Prior to the bill being passed, we've also recommended that if the mandatory procedure inserted by clause 11C(6) were to be issued or varied by the Attorney-General the committee be notified of that immediately and then briefed on it. I will come in a moment, when I talk about the provisions of the bill, to why the mandatory procedures are important and why it's important that there is parliamentary scrutiny of those procedures. I'm pleased that the government has accepted that amendment to ensure that the committee will be able to fulfil that scrutiny function on behalf of the parliament. The second recommendation that we made was that the bill be reviewed by the committee not less than five years from when the bill receives royal assent. That does not mean that the committee has to wait for five years to commence the bill; it means that before the end of five years the committee must consider its right to do an inquiry. It is not uncommon for the committee to occasionally launch inquiries prior to that time. For example, the committee has two statutory reviews that it is currently undertaking. One of them is of the Foreign Influence Transparency Scheme. That was due to commence later this year, but the committee decided to bring it forward and open it up now so that we could conduct our statutory responsibilities. The same would apply to this bill. The wording is that 'not less than five years from when the bill receives royal assent' the committee may conduct an inquiry. I'm pleased that the government has also accepted that recommendation.

It's important that national security legislation, including legislation of this nature that amends the Telecommunications and Other Legislation Amendment (Assistance and Access) Act, not be a set-and-forget, that it not be passed and left on the books and never examined again in the future. That's why the committee made its second recommendation, and it's why a significant workload of the committee is reviewing existing legislation that has been previously passed. Sometimes I reflect that legislation in other areas of government which is not subject to that kind of robust re-examination and review would benefit from it, frankly. Some of the economic regulation that this parliament agrees to is passed and then very rarely ever reviewed again, at least in a parliamentary sense, and, frankly, I think it would benefit from it. But it's quite often the case with national security legislation, as is appropriate, that it have a higher degree of scrutiny.

I want to turn now to the threat environment that we are operating in, which is a very serious one. It illustrates the need for legislation like this to ensure that our foreign intelligence collection capabilities are up to date, that they keep pace with modern technology and that they're not unduly limited by technological change or legislative loopholes that are not functioning as intended. The director-general of ASIO, Mike Burgess, in his annual threat assessment earlier this year spoke about the range of challenges that ASIO faces, including and especially terrorism, which has been a very strong focus of ASIO since September 11. In that threat assessment he also forecast that it won't be too far in the future, given current trends, that foreign interference, espionage and related offences will become one of the largest focuses of ASIO's work. That is because we are operating in a very different security environment from the one we were operating in just five years ago. Foreign interference and espionage is at unprecedented levels—higher than they have ever been at, including at the height of the Cold War. Mr Burgess's predecessors, such as Duncan Lewis, have publicly confirmed that the overwhelming driver of that is activity from and on behalf of China.

In this environment, it's vital that all of our intelligence agencies—our intelligence community—are well equipped to counter those threats, and the collection of foreign intelligence helps them to do that task. It helps them to identify potential threats to not just Australian's lives but also our way of life, and to identify the way in which foreign governments may attempt to intervene in our democratic systems. It also enables them to keep appropriate tabs on Australians who may be involved with foreign terrorist organisations. So it's really crucial, given that serious threat environment and given the rapid change in that threat environment, that those powers be adequate for their intended purpose.

Turning now to the schedules of the bill, I want to comment on the two key schedules of the bill, on why they are necessary and on why the committee, in its examination of the bill, agreed with the government's proposition that they are necessary. From the committee's report:

Schedule 1 is designed to restore the foreign communications warrant to its original scope and function. The removal of the strict prohibition is accompanied by robust safeguards to protect domestic communications in the same way the original prohibition intended.

I'll come to more detail of that in a moment. Secondly, the report states:

Schedule 2 of the Bill enables the Attorney-General to issue foreign intelligence warrants to collect foreign intelligence on Australians in Australia who are acting for, or on behalf of, a foreign power. Currently, requesting a warrant for the purpose of collecting information concerning an Australian citizen or permanent resident is prohibited …

Schedule 1, which relates to amendment of clause 11C, the foreign communications warrant, currently authorises the interception of foreign communications for the purpose of obtaining foreign intelligence about the matter specified in the warrant. The challenge that arises here with the existing foreign communications warrant is that, if an agency inadvertently intercepts domestic communications—that is, a communication that both starts and ends within Australia—that is prohibited and is a breach of the law, even when that interception is entirely inadvertent or unavoidable.

That made sense in an earlier technological era when it was very easy to identify where communications originated and where they concluded. Where it was very obvious that they originated and concluded completely outside of Australia, that was captured within the scope of the legislation. Because we had things such as reliable geographic identifiers and indicators such as a country code, a city code or an exchange code, a foreign telephone number was readily identifiable as a foreign telephone number and was therefore permitted for this type of collection activity. That, obviously, has radically changed due to advances in technology, particularly internet based communications and mobile applications. That means that it's extremely difficult for that communication to be clearly identified at the point of interception as being either foreign or domestic, because of the way in which some of our technology companies choose to route the communications of their applications.

For our intelligence agencies to avoid breaching the Telecommunications (Interception and Access) Act, they understandably do not want to take any risk of breaching the law, because they take compliance with the law very seriously. They therefore have to constrain their collection of foreign intelligence to avoid even that inadvertent attempt, and that means that, essentially, the picture that Australia is getting of the world is severely constrained and does not have the full benefit of what would be lawful, permitted collection if we were able to overcome this technical issue.

The changes to the legislation will allow intelligence agencies to intercept communications, including where the geographic location of the sender or recipient is unclear prior to their being intercepted, but there will be robust safeguards to ensure that, if there are any inadvertently collected domestic communications, they will be quickly screened and quickly destroyed. That relates to the mandatory written procedure under section 11C(6). The Attorney-General will mandate a procedure for what the intelligence agencies are to do when they may inadvertently collect Australian sourced communications and for how they must treat those and destroy them. It's for that reason that that is a very important mandatory procedure, and the committee have asked that we have the opportunity to be notified and briefed on that so we can consider it and, if we have any concerns, have an opportunity to address them, and that's why it's important that the government has agreed to that.

The second schedule in the bill relates to Australians and permanent residents acting on or behalf of a foreign power. Currently, it's lawful for our intelligence agencies to monitor these people when they're operating overseas. If an Australian citizen is in the employ of a foreign government and acting on their behalf, it is lawful to intercept their communications overseas. It's not lawful, for that purpose, for them to continue to be collected upon when they enter Australia. That is a really arbitrary distinction. If you are an agent of a foreign government and are operating either in Australia or overseas, you pose an equally serious threat to our national security. Arguably, someone operating on behalf of a foreign power within Australia may pose a greater threat to Australia's national security because of their potential access to information here onshore, but currently legislation prevents our intelligence agencies from adequately collecting on those Australians when they are onshore.

The legislation proposes that they should be able to do so. This responds to our recommendation from Dennis Richardson in his comprehensive review of the intelligence community and it is a sensible change that deals with a loophole. It is really an arbitrary distinction. If someone acts on behalf of a foreign power, wherever they are in the world, it is of legitimate interest to Australia that they be able to be surveilled appropriately. The safeguards are very robust; they include all the usual oversights that you would expect of intelligence powers, including the Inspector-General of Intelligence and Security and, through the IGIS, ultimately the committee and the parliament. We intend to fulfil our responsibilities robustly in relation to that.

I think it's worth drawing the attention of senators and members to an appendix in the committee's report that includes a table of comparative powers in Five Eyes countries and comparative protections and safeguards. What that table illustrates is that the proposed protections included in this legislation are equal to or greater than every one of our Five Eyes partners. Australia will have much more robust protections than, for example, Canada and New Zealand. Australians can take comfort from the fact that, although we're permitting our agencies to engage in this important collection activity, we will do so with really robust and adequate safeguards to ensure that the privacy, freedom and rights of Australians are protected, as they should be, by our intelligence agencies.

I don't think I'll have time to go into the case studies; perhaps other senators will have the opportunity to do that. I want to conclude by thanking all members of the PJCIS for the very collegiate way in which they engaged in this inquiry. As I alluded to, it was a challenge to complete the inquiry under the conditions we were subject to, but committee members very diligently applied themselves to that task. I would like to recognise in particular the deputy chair of the committee, Mr Byrne, and the two Labor shadow ministers on the committee, Senator Keneally and Mr Dreyfus, who diligently considered this legislation in a bipartisan and constructive way in the national interest. And I want to thank the government for anticipating the constraints to be imposed upon the committee in its conduct of this inquiry and its early engagement with the committee and with members of the committee to ensure that we were adequately informed and comprehensively briefed so that we could form an informed opinion about this legislation and could report in the required time frame for the parliament. If we have to engage in inquiries in this way, this was an exemplar. I commend the government for that. If we ever face these circumstances again, I encourage the government to replicate the way in which this inquiry was conducted.

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

[by video link] I rise to speak on the Foreign Intelligence Legislation Amendment Bill 2021. I want to comment initially on the short notice we've been dealing with here. This bill was introduced into the House yesterday, at the same time a very short PJCIS committee report was being handed down, and we find it in the Senate today. We are also seeing a gag motion applied to it. My great fear is that we won't get to the committee stage. There are a lot of questions that need to be answered in relation to this bill.

I want to point out something that everyone who is watching ought to note, and that is that, when this bill was introduced in the House, in the second reader the minister basically said it's not possible to identify why it's so urgent. I'm going to presume that there's an operation going on at the moment that requires some of these restrictions to be overcome—an important national security operation, no doubt. But, to all of those who've been watching this morning, you'll note that this really important national security bill was so important that it got put behind the electoral bills. So just understand where the coalition and the opposition sit on this. Electoral reform bills must go through the parliament before urgent national security bills. I think that ought to be noted by everyone who is watching.

I have some concerns about this bill. People will know I come from a Defence background. I am very supportive of our intelligence services, but we know that they make mistakes. We look at the IGIS reporting every year and see that mistakes are made. We've seen some shockers from the intelligence services in the past—spying on the East Timorese, hotel raids for training purposes going wrong, a whole range of different instances where the intelligence services haven't done as well as they might. That's the reason why we always need to have the right checks and balances in place.

I'll come to the amendment that I intend to move if we get to the committee stage, otherwise I won't get to speak to it, but where I want to go immediately—and maybe the minister will be able to address this in her response to the other speeches on the second reading—is that schedule 2 allows the intelligence services to spy on an Australian, and the threshold for doing that is:

… the Attorney-General must not issue the warrant unless the Attorney-General is satisfied that the person is, or is reasonably suspected by the Director-General of, acting for, or on behalf of, a foreign power.

We've seen those words used before, in relation to our Foreign Influence Transparency Scheme. I just went and had a quick look at that scheme and some of the people on that list who would meet the criteria, in my view, for a warrant to be issued. One of the persons on that list is one Tony Abbott. He is registered from 6 October 2020 as an unpaid adviser to the UK Board of Trade. I wonder if the minister at some stage could answer whether or not Mr Abbott is going to be spied on by our intelligence services just because he meets the criteria as being an unpaid adviser for the UK Board of Trade.

Another name on that list is Kevin Rudd. I wonder if Senator Keneally has rung Mr Rudd, because, if you go on the foreign influence transparency register and have a look, there's quite a scathing letter that he has put on the register. He is a very, very unhappy person in relation to the requirement to be put on that list. I reckon he's going to be even more unhappy now that he understands that, under this bill, he can also be spied upon by our intelligence services. I wonder if Senator Keneally has actually rung Mr Rudd and said: 'Do you know this is happening? We're going to let this happen. We haven't really dealt with this sort of issue, because it's just being rushed through the parliament.'

The best one—this one I actually like; this is a good one—is another person on the list: Mr Alexander Downer. He's been on the list for the Foreign Influence Transparency Scheme since 27 August 2020, as he supports the government of Gibraltar. This is the one exception to the rule. I think there would be great irony in our intelligence services spying on Alexander Downer. After I've finished this speech on the second reading, I'm going to ring up Mr Bernard Collaery and let him know, because that might make him feel just a little bit better as he is being persecuted for allegedly revealing what Mr Downer did back in 2004. There are some genuine questions to be answered about that, because, in my view, these gentlemen, these former prime ministers and foreign ministers, actually fit the criteria that would allow a warrant to be issued and spying and interception to occur. So I'll leave my commentary on the bill at that.

I'll go now to the amendment that I would normally talk about in the committee stage. That is, an amendment to the Intelligence Services Act. Every time we increase the powers of our intelligence services—again, I don't necessarily begrudge the intelligence services; I want our intelligence services to have the right tools available, but—whenever you give anyone a power to be exercised in secret, you have to put the right checks and balances in place.

I just listened to Senator Paterson talking about the comparison between our Five Eyes colleagues. I've looked at the PJCIS report, and at the back of it there's a table that talks about all of the current laws used in all of the different Five Eyes jurisdictions. What Senator Paterson didn't indicate was that these other jurisdictions have parliamentary oversight of their intelligence services. That is a fundamental difference between us and the rest of our Five Eyes partners. So I invite the government and, indeed, the opposition to support my amendment, which I've moved on several occasions, but particularly the Labor Party, noting that their own party position is to have the PJCIS be able to examine the operations of our intelligence services. That's in a private member's bill. I think Senator Wong has carriage of it, or it might actually be Senator McAllister—I can't recall. But that is the position of the Labor Party. I find it mind-boggling that every time I bring this particular amendment to the chamber to effectively attach Labor policy to a government bill, the Labor Party reject it. So I'm going to have another crack today, and I'll have another crack on every intelligence bill that comes through. This is about making sure that whenever we give these powers—again, powers exercised in secret—that we have the right checks and balances in place.

I think a few phone calls need to be made. Perhaps Senator Cash might ring Tony Abbott and give him the bad news, and Senator Keneally can ring Kevin Rudd, and I don't care if anyone rings Alexander Downer or not, but I'll be ringing Bernard Collaery.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

[by video link] I too want to speak to the Foreign Intelligence Legislation Amendment Bill 2021. I'd like to talk a little bit about the scope of the bill. I'd like to talk a bit about some of the comments from Senators Patrick and Thorpe about the role of parliamentary oversight in the Parliamentary Joint Committee on Intelligence and Security, which I am a member of. I think it's important, given the comments that have been made about these being new powers, to actually look at the history of these powers and the role of our agencies in protecting Australians and our national interests, to have a look at what the schedules are actually outlining, the problems that they are seeking to solve and what they are proposing, and the safeguards that are in place as well as some of the case studies that are there. Lastly, I'll say a few words about Senator Patrick's proposed amendments, which, as he points out, he brings up on a regular basis. I would be happy to address those.

As colleagues have indicated, this bill does amend the Telecommunications (Interception and Access) Act 1979 and the Australian Security Intelligence Organisation Act 1979 and is looking to address gaps that have arisen in our foreign intelligence warrant framework. 'Foreign intelligence' means the intelligence about the intentions or capabilities of people or organisations outside of Australia, and that can include terrorist organisations or it can include state actors.

I think it's important to note concerns that have been raised by the director-general of ASIO, who points out that foreign state activities in Australia are at a level we haven't seen since the Cold War. T his is not some hypothetical threat that Australia is facing; it's a threat that is very real. He has spoken to that in his annual threat assessment, as well as publicly through the PJCIS hearings process on several occasions. Likewise, terror groups continue to be active. We all hoped that , after actions after the Bali bomb ing s and some of the other things — those global networks reaching out that impacted Australians — we had seen those wind down to the point where they would not be a risk to Australia. But what we do see in the plots that are uncovered by our intelligence agencies and our law enforcement agencies is that Australians, often young Australians, are influenced by communications from people overseas to motivate them to be engaged in acts of terror, and so the ability to intercept those communications is an important part of protecting Australia and Australia's national interests.

It's important to understand, when people talk about the fact that these are new powers, that in actual fact the powers have been around for some time. The powers actually go back to earlier acts and, in particular, to the Hope royal commission, where the need for these powers was identified. What has changed is not the need for the powers—the fact that we are seeking to give our agencies the ability, under appropriate supervision, to monitor, intercept and understand what has been communicated by a foreign entity that affects Australians and Australia's interests—but the technology. Many people may know that my professional background before this place was as an experimental test pilot for the military . So I've seen frequently that the mission doesn't change and the principles don't change , but, as technology changes, both the platforms we use and the regulations and rules around their use have to adapt and have to be modified to make sure that we are on at least an even footing, if not having an edge over our adversaries.

What this bill is seeking to do is recognise the fact that, since those powers were first introduced, we have moved from the days of landlines and faxes , where it was very easy to trace and identify whether a call or communication was coming from overseas or was purely between two domestic player s , to the days of smartphones and the internet, where particularly over-the-top applications mean that it is possible for people — organised crime around the world , as we've seen recently with the large sting that Australia was involved in, is using encrypted devices. If organised crime can do it, then it's very clear that state actors representing foreign governments as well as terrorist groups have access to, and in fact often develop, some of the same technology and capabilities. So it's important that our laws and regulations keep up with the changing technology so that the agencies can keep doing the role that they have had legally and done effectively for some time.

It's important to go back and understand that the Inspector - General of Intelligence and Security Act 1986 was amended in response to a recommendation of the Royal Commission on Australia's Security and Intelligence Agencies, known as the second Hope royal commission. Justice Hope said:

I am satisfied that Australia has a need to collect foreign intelligence which relates to its national security and its other national interests. Considerations of the national interest, national independence, costs, and practical difficulties have led me to conclude that it would be highly advantageous for Australia to be able to collect foreign intelligence within its own territory where this is possible.

What Justice Hope highlighted after his review has been backed up again by Mr Dennis Richardson in his more recent review around the powers that our agencies have: that that is a valid need for our agencies ; it's a valid power . So our laws and regulations need to change with technology so that those capabilities are not reduced as technology changes.

My last comment before I go to the details of the bill is about the role of the parliament in the PJCIS. Senator Thorpe was calling for this to be referred for a broader review. One of the things that I've noted in my time in this place is that there are many issues dealing with national security where transparency is possible and it should be there. I note Senator Patrick's long campaign around FOIs and transparency, and I think that in principle he is absolutely correct: where it is possible, there should be transparency. That's the very essence of a plural democracy where government is accountable to the people. But, as Senator Patrick and others who've been involved in our defence forces, law enforcement and intelligence agencies know, there are also areas where it's appropriate for the government and its agencies to have information which is not made public.

One of the ways that a balance has been struck, through the Intelligence Services Act, to have oversight by the Australian people through their parliament is to create a committee within that parliament where the members are able to be briefed with classified information. As people have recognised, and as I've stated previously, it does have some limitations, but those limitations don't prevent agencies being able to brief the committee with classified information that goes to past operations, to the nature of current threats and to examples of the kind of harm that would come to Australia if these provisions weren't updated so that the powers that were envisaged by the Hope royal commission could continue. It's important to understand that having a bipartisan committee, such as the PJCIS, that is able to work on behalf of the parliament—and, by extension, on behalf of the Australian people—gives us the ability to hear information that can't be made public. It balances the rights of Australians to have their freedom of expression, freedom of association and all the things that characterise an open and plural society and, at the same time, giving the agencies the powers they need.

The committee has raised various issues with the government in terms of how we could improve the work of the committee, but I don't believe that tacking amendments onto another piece of legislation is the appropriate way to raise those issues. I commend Senator Patrick for his tenacity in continuing to look to bring about some of those reforms, but this is not the appropriate method.

This bill, as former speakers have highlighted, is all about highlighting the fact that, at the moment, the law prohibits our agencies from intercepting domestic communications—communications that start and end within Australia. Previous speakers have outlined the problem: as technology has moved on, it has become incredibly difficult and, in many cases, impossible to identify the physical location of the originator or the receiver of information. Because our agencies are governed by the rule of law—as opposed to some totalitarian regimes where they operate under the rule of law, ruling by law and imposing law on people—they are diligent. They are overseen by the Inspector-General of Intelligence and Security and the PJCIS to make sure they follow the law. Where, inadvertently, they don't follow the law, investigations and corrective measures are put in place. But a section 11 warrant means that they can't use one of those when there's a possibility that it could be two domestic parties. That is a problem in that, in the example of a terrorist group, we don't know whether communication is coming from overseas to people to incite, to equip, to enable or to give them technical details as to how to conduct a terrorist activity or from a foreign power soliciting information or seeking to influence, blackmail or extract information from an Australian citizen.

So where it's reasonably suspected, these changes give the ability for the agencies to seek a warrant with a set of guidelines that will actually demonstrate how they will protect Australian citizens and, where communication is legitimately domestic-to-domestic, how they will not be able to use those communications. It also addresses a gap in the area where an Australian citizen is overseas and agencies can monitor that citizen in terms of their engagement with a foreign power. But if that person comes back to Australia, it seems nonsensical that all of a sudden the ability for the agencies to do their job to protect Australians and Australia's interests should cease because the person has changed location, so it changes the laws to provide an ability for that to occur.

There are things that don't change, though. ASIO is still responsible for obtaining foreign intelligence inside Australia, and it's the only agency that can apply for or obtain foreign intelligence warrants, including section 11C warrants. Section 11C warrants don't allow for the bulk collection of foreign communications. They don't now and they won't into the future. The law requires that the collection of foreign intelligence under 11C warrants has to be highly targeted, and this will not change. The act and these amendments do not permit indiscriminate collection, and I think that is an important point for people to know.

As I said, the history of these foreign communication warrants has shown that they have been a critical part of our foreign intelligence framework for more than 20 years, originally enacted in 2000. The warrants have to be 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. So the circumstances in which these warrants can be exercised and the conditions that apply to them are approved by the Attorney-General, and they remain under the stringent oversight of IGIS. If the agencies actually covered a piece of communication that turned out to be between two Australian citizens, in the event that somebody's life is at risk, they can report that to IGIS. But in all other circumstances, any inadvertent collection that's not foreign intelligence related does need to be destroyed. Importantly, the section 11C warrants are only available where service or device based warrants under sections 11A or 11B would be ineffective, so these are a warrant of last resort.

In concluding my remarks, I just want to highlight these are not new powers; they're adapting the law so that powers remain effective in the light of new technology. The balance that is provided by oversight and by the authorisation process will continue to be effective, and it is in Australia's national interest for this legislation to pass.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

[by video link] Here we go again, the major parties jamming legislation through this place without adequate scrutiny, which fundamentally erodes the rights and freedoms of Australian citizens and other people who live in and visit our country. I want to be clear about how we find ourselves here yet again today. Australia's intelligence and security apparatus decides that it wants more powers. Let's be frank, they always want more powers. It's in their very nature to want more powers. For more insight into this, just read two speeches from probably Australia's most powerful and influential public servant, the secretary of the home affairs department, Mr Michael Pezzullo. Check out his hobbit speech from 2017 and check out what I call 'Pezzullo's panopticon speech' from last year. They'll tell you everything you need to know about the eternal grasping for yet more surveillance and control powers that our security and intelligence agencies engage in.

They decide they want more powers and they go to the government. The government says: 'Yes, of course, you can have any more powers you want because it plays well for us politically. We'll use the threat of terrorists to scare voters and that will help us win the next election because frightened people don't want to change government.' So then the legislation goes to cabinet, it's tabled in the parliament and then off it goes into the closed shop of the Parliamentary Joint Committee on Intelligence and Security, where only the two major party groups in this place are represented. The crossbench, except in exceptional circumstances, is locked out of any inquiry the PJCIS conducts. The inquiry, as usual, gets out the rasp and rasps off a couple of the absolute roughest edges of the legislation, leaving the bulk of the new powers and functions completely intact.

The legislation then passes the other place, with both government and opposition support, and then comes to the Senate. The crossbench attempts to refer the legislation for a proper, public, thorough Senate inquiry. This is refused, of course, by the major party duopoly. The bill is then passed through the Senate, with only the Australian Greens and sometimes other crossbench senators opposing. Rinse and repeat and off we go again. The intelligence agencies think they deserve more powers and the cycle begins over. Colleagues, this is how fascism starts—a relentless, creeping frogmarch down the dark path to a police state, a surveillance state, towards authoritarianism, totalitarianism and ultimately fascism. Don't say you weren't warned, because you have been warned repeatedly.

We've heard a lot in this debate about how there are all these safeguards around warrants that are actually ultimately issued by the Attorney-General. Well, given the former Attorney-General's decision to authorise the prosecution of Bernard Collaery and Witness K, Australian patriots who we should be thanking rather than prosecuting, it can hardly be said to comfort Australians that the Attorney-General ultimately has sign-off powers on the relevant warrants.

Let's not forget that the hundreds of pieces of counterterror and antiterror legislation that have passed through state, territory and Commonwealth parliaments in this country in the past two decades—and I do mean hundreds of pieces—they were sold to the Australian people as necessary to protect us from the scourge of terrorism. When those pieces of legislation pass, what happens? That's right: they are used for other purposes than for which they were sold to us. For example, the metadata retention laws opposed and campaigned against strongly by the Australian Greens were sold to the Australian people as necessary to protect us from terrorists. Those laws now enable local governments in Australia, without a warrant, to use people's metadata to prosecute them for having unregistered dogs. I've heard of scope creep, but that is on another level.

These laws effectively allow some of Australia's intelligence and security agencies, in some circumstances, to spy on Australians in ways that are currently unlawful. They should not be jammed through this Senate without a proper, thorough, rigorous and public inquiry. Yet here we find ourselves today with the major party duopoly, the Coles and Woolworths of Australian politics, once again coming together to remove fundamental rights and freedoms from the Australian people. That is why we need a charter of rights in this country. Australia is the only liberal democracy in the world that does not have some form of charter or bill of rights, whether that be legislatively enshrined or constitutionally enshrined. Such a charter or bill of rights would not mean that bills like this could not pass, and it would not mean that intelligence agencies and security agencies could not have the powers that they need to a reasonable level to keep people safe. But what it would mean is that there would be extra scrutiny, extra accountability and perhaps a check on this relentless, creeping frogmarch that we are engaged in as a country.

This is a dangerous, dangerous path that we are on and, at some stage, we're going to need to pause, we're going to need to take a breath and we're going to need to re-evaluate this direction because, if we don't, the danger is that we will end up in an authoritarian, totalitarian and—horrendously and potentially—a fascist state.

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

[by video link] Time stands still for no-one, nor does technological advancement. In the lives of each of us, we've witnessed technological advancements that people would not have dreamt of a generation ago. We are all beneficiaries of these advances; they have been of untold good. From communications to farming to medical procedures, all aspects of our lives are impacted, and for the good. Just as with everything we humans have developed, we can use our advances for good or for bad. That brings us to this bill, which rejoices in the name of the Foreign Intelligence Legislation Amendment Bill, which amends the Telecommunications (Interception and Access) Act 1979 and the Australian Security Intelligence Organisation Act 1979, just in case people were wondering. The simple fact is that our legislative framework has not kept pace, allowing those who would seek to do Australia harm a potential advantage which needs to be closed as a matter of urgency. I therefore would urge all honourable senators to pass this bill as soon as possible.

This bill addresses two critical gaps in our foreign intelligence collection framework—gaps that need to be removed. First of all, the reforms will update the foreign communications warrant provisions in the Telecommunications (Interception and Access) Act to reflect changes in communications technologies. Intelligence agencies will be able to intercept a communication to determine whether the communication is a foreign communication. Second, the bill allows the collection of foreign intelligence on Australians in Australia who are acting for or on behalf of a foreign power. These amendments will close the current legislative gap where foreign intelligence can be collected on an Australian working for a foreign power offshore, but the same intelligence cannot be collected under a warrant on that Australian onshore. An Australian serving the interests of a foreign government remains an agent of a foreign power, whether they are onshore or offshore.

The reforms include robust oversight and safeguards, which I note our Greens friends studiously avoid mentioning. The reforms will help intelligence agencies protect Australians and will make it easier to uncover terrorist plots and other serious threats to Australia's national interests. Without the proposed changes, gaps in foreign intelligence collection will continue to grow, and Australia will not have visibility of possible threats creating such risks.

These amendments are required urgently. Every day that they are not in place risks our agencies missing critical foreign intelligence about threats to Australia and Australians. The plugging of these gaps is urgent, and it is necessary that they be done now, while work continues on the more substantial reforms which have also been identified.

In an ideal world, legislation of this nature would of course not be necessary. There would be no attempts at sabotaging our national interest, no terrorism and no cyberattacks. But we live in a flawed world where elements, with malevolence, seek to do us harm.

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

Order, Senator Abetz. You will be in continuation when debate resumes. It being 1.30, I will move to two-minute statements.