David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (1), (2), (3), (4), (6), (7), (8), (9) on sheet 2060 together:

(1) Schedule 1, item 1, page 3 (line 9), omit "(if any)".

(2) Schedule 1, item 1, page 3 (after line 21), after subsection 65(1B), insert:

(1C) To avoid doubt, foreign intelligence information must not be communicated under subsection (1A) if the Attorney-General does not approve, in writing, any purposes for the purposes of paragraph (1A)(b).

(3) Schedule 1, item 3, page 3 (line 29), omit "(if any)".

(4) Schedule 1, page 4 (after line 6), after item 4, insert:

4A After subsection 65(2)

Insert:

(2A) To avoid doubt, foreign intelligence information must not be communicated or used under paragraph (2)(a) if the Attorney-General does not approve, in writing, any purposes for the purposes of that paragraph.

(6) Schedule 1, item 7, page 4 (line 15), omit "(if any)".

(7) Schedule 1, item 7, page 4 (after line 27), after subsection 137(1B), insert:

(1C) To avoid doubt, foreign intelligence information must not be communicated under subsection (1A) if the Attorney-General does not approve, in writing, any purposes for the purposes of paragraph (1A)(a).

(8) Schedule 1, item 9, page 5 (line 5), omit "(if any)".

(9) Schedule 1, item 9, page 5 (after line 14), after subsection 137(3), insert:

(3A) To avoid doubt, foreign intelligence information must not be communicated or used under paragraph (3)(a) if the Attorney-General does not approve, in writing, any purposes for the purposes of that paragraph.

These amendments, taken together, would amend the two substantive elements of this bill which currently provide a capacity for the Attorney-General to limit the sharing of the foreign intelligence information obtained under a warrant whereby the bill as drafted permits the Attorney-General to specify a purpose for which the information can be shared. But the drafting, very intentionally, in providing purpose, if any, identified by the Attorney-General, does not require the Attorney-General to so specify the purpose for which the information can be shared.

Given the government's position that there are critical safeguards in the bill, it's our view that that should be more than verbiage, it should be included in the actual drafting of the bill. These amendments taken together require the Attorney-General to put a purpose in and, to avoid doubt, provide that foreign intelligence information cannot be communicated if the Attorney-General does not approve in writing any purposes. That's the ultimate safeguard.

So while our amendment doesn't expressly provide for the Attorney-General to put a purpose in, what it does say is if there's no limiting purpose identified by the Attorney-General then the information cannot be shared. That, of course, is a powerful incentive for the Attorney to turn their mind to what an appropriate limitation should be, what the appropriate purposes should be. That is consistent with the rhetoric in support of the bill, and we move it for that purpose.

Minister, you say the government's position is that there are critical safeguards in the legislation. Is it true that the Attorney-General doesn't need to put a purpose in? Is that true? Would that be the effect of these amendments?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Thanks, Senator Shoebridge. The short answer to your question is, yes, there is a discretion for the Attorney-General, but just to do so rather than a requirement. But let me fill this out a little further to explain. The legislation provides appropriate limitations on the purposes for which foreign intelligence information may be communicated. Foreign intelligence information may only be communicated under subsections 65(2) and 137(2) of the bill in the 'proper performance or exercise of a person's functions, duties or powers'. ASIO is subject to a stringent legal and policy framework, including legislation and ministerial, parliamentary and independent oversight, including oversight by the Inspector-General of Intelligence and Security.

The Director-General of Security's ability to communicate foreign intelligence information under subsections 65(1A) and 137(1A) of the bill is limited by section 20 of the ASIO Act, which requires that the director-general shall take all reasonable steps to ensure that the work of ASIO is limited to what is necessary for the purposes of the discharge of its functions. As I said, in addition to that there is a range of oversight already built into the system, including by the Inspector-General of Intelligence and Security. In those circumstances it's appropriate that the Attorney-General have a discretion as to whether to approve any purposes or impose conditions in relation to the communication of foreign intelligence information. For example, the Attorney-General may specify restrictions on the communication and use of the information, including the persons who can communicate and use the information and the manner in which the information may be communicated and used.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Thank you for that helpful explanation, Minister. So with the passage of this bill, it goes from a situation where the Attorney was required to turn their mind to the limited list of persons whom the information could be shared with to it simply being a matter for ASIO to share the information as it sees fit, limited by the generic provisions of section 20 of the ASIO Act and also the requirement that it be for the proper performance of ASIO's powers. So it goes from a constrained list of persons identified by the Attorney to whomsoever ASIO thinks they should in the 'proper performance of ASIO's powers'. Is that the effect of these amendments?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

As I've said, the Attorney-General would have discretion whether to approve purposes or specify conditions upon the agency's ability to share foreign intelligence information.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

And in the absence of the Attorney-General—

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

The question was whether, in the absence of the Attorney-General exercising that discretion—as you say, and as I've said a couple of times, there is a limitation on ASIO's ability to communicate that information, and that limitation is the general provision that the information can be communicated for proper purposes. In your contribution to the debate, Senator Shoebridge, I feel you were characterising it as that ASIO could communicate information willy-nilly without restraint. That's not correct. The act itself requires that communication to occur for 'proper purposes', or words to that effect. In addition, as I've already said, there are a range of oversight mechanisms that exist to ensure that that power is not misused.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, what are the proper purposes of ASIO?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

As I understand, and I'm sure you're probably aware, that is a defined term within the act, so I refer you to the act.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, noting this legislation has been brought with such haste, are we to deduce from that that this legislation is seeking to entrench existing ASIO practice that, on reflection, is in breach of the law? Is that what we're seeking to do? Is this seeking to entrench existing ASIO practice, and, if so, has that existing practice been in breach of the law?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

The purpose of this bill is to clarify the original intention of the act, in terms of the use of these powers. The existing provisions have been in use since the year 2000, but the amendments clarify the ability of agencies to communicate foreign intelligence information about threats to Australia in the proper performance of their functions. The amendments ensure that foreign intelligence information can continue to be communicated and used in a manner that is appropriate to address threats to Australia's national security. As I say, this is really about clarifying those powers for ASIO to exercise.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, when you say 'clarify the intentions' and allow information to 'continue to be communicated', as I understand those answers it appears ASIO has not felt constrained to only sharing the information with persons who have been named by the Attorney in accordance with the existing law. Is that how I'm to understand your answers: to allow ASIO to have the information continue to be communicated?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Senator Shoebridge, how you choose to characterise this is a matter for you. What I'm saying is that this bill is about clarifying ASIO's powers to put them beyond doubt, and the amendments are intended to update and clarify the operation of key provisions in the T(IA) Act, which relate to the communication, use and recording of foreign intelligence information. It was identified that legislative amendments were necessary to:

… ensure that the Attorney-General can continue to approve the communication and use of foreign intelligence information in a manner that is appropriate to address threats to Australia's national security.

As I say, this is really about clarifying the operation of the bill in line with its original intent.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I'll be clearer then. Has ASIO been sharing foreign intelligence information obtained under sections 11A, 11B and/or 11C with persons other than those specified by the Attorney-General under subsections 65(2) and 137(3)?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I have no knowledge of that, Senator Shoebridge. I refer you to my previous answer as to the reasons why these amendments are being put forward.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Has the government referred concerns about ASIO's use of information obtained under 11A, 11B and 11C and concerns about potentially unlawful behaviour by ASIO to the inspector-general?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Because of the independence of the Inspector-General of Intelligence and Security, it is a matter for them what they choose to investigate, rather than being directed or referred matters by the government. However, I understand that the IGIS was consulted in the preparation of this legislation.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Has the inspector-general undertaken an investigation of ASIO's use of information obtained under 11A, 11 B or 11C given what appears to be, from your answers today, decades of unlawful practice by ASIO?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I'm not aware of the inspector-general having undertaken such an investigation, but it is obviously a matter for the inspector-general to confirm what investigations it may or may not have underway. There are opportunities to pursue those matters at Senate estimates.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that Australian Greens amendments (1) to (4) and (6) to (9) on sheet 2060, as moved by Senator Shoebridge, be agreed to.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (5) and (10) to (13) on sheet 2060 together:

(5) Schedule 1, page 4 (after line 11), after item 6, insert:

6A At the end of section 65

Add:

Note: This section was amended by Schedule 1 to the Telecommunications (Interception and Access) Amendment Act 2023. However, item 11 of Schedule 1 to that Act provides that this section has effect, on and after the sunsetting day (as defined in that item), as if those amendments had not been made.

(10) Schedule 1, page 5 (after line 17), after item 10, insert:

10A At the end of section 137

Add:

Note: This section was amended by Schedule 1 to the Telecommunications (Interception and Access) Amendment Act 2023. However, item 11 of Schedule 1 to that Act provides that this section has effect, on and after the sunsetting day (as defined in that item), as if those amendments had not been made.

(11) Schedule 1, item 11, page 5 (line 19), before "The", insert "(1)".

(12) Schedule 1, item 11, page 5 (line 21), after "Schedule", insert "and before the start of the sunsetting day".

(13) Schedule 1, item 11, page 5 (after line 23), at the end of the item, add:

(2) Sections 65 and 137 of the Telecommunications (Interception and Access) Act 1979 have effect, on and after the sunsetting day, as if the amendments made by this Schedule had not been made.

(3) To avoid doubt, subitem (2) does not affect the validity of anything that is done or not done:

(a) on or after the commencement of this Schedule and before the start of the sunsetting day; and

(b) in reliance on section 65 or 137 of the Telecommunications (Interception and Access) Act 1979 as in force immediately after the commencement of this Schedule.

(4) In this item:

sunsetting day means the day after the end of the period of 3 months beginning on the day this Schedule commences.

Together, these amendments seek to put in place a sunset provision for the bill that provides that the amendments cease to have effect on or after a date which is three months from the day on which the amendments commenced. The purpose is to give government three months to undertake a proper review, an independent review, of the drafting and the impact of the amendments, to do the due diligence that wasn't done in the preparation of this bill and in the parliament's rapid consideration of this legislation. There's been no committee process and no submissions sought. The purpose of the amendment is to allow the parliament, if it chooses, to do the appropriate due diligence that hasn't been done on this bill through a committee process. That's why the Greens moved the amendments and that's the intent of them. They also provide that the setting of the sun doesn't affect the validity of any actions taken whilst the legislation was in force. I ask the minister, when was this issue raised with government and what consultation was done prior to bringing the bill to parliament?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I'm advised that the issue was identified quite recently. In recent weeks it was identified that legislative amendments were required to ensure that the Attorney-General can continue to approve the communication and use of such information, in a manner that is appropriate, to address threats to Australia's national security.

More broadly, in terms of the amendment, the government will be opposing the amendment. It is not necessary to subject these provisions to a sunset clause. The amendments are required to clarify the intended purpose of the existing provisions of the act. The sharing of foreign intelligence information is essential to enabling the government to understand, mitigate and combat risks to Australia's national security.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

You say 'quite recently' and 'in recent weeks'. Do you have a date for when it was identified? To make things a little smoother, are you also in a position to identify who was consulted?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I don't have any further information as to precisely when the issue was identified. As I said, it appears from the information I have that it was in recent weeks. In terms of consultation, the government consulted the opposition. I understand they consulted the Greens and possibly other members of the crossbench—I'm not sure—on the reforms of the bill prior to its introduction. All impacted departments and agencies were consulted as well as the Inspector-General of Intelligence and Security.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Should I understand the term 'consulted' to mean provided with a copy of the bill and being told that it was going to be introduced into parliament within a matter of hours? That was the consultation with the Greens. We were given a copy of the bill and told it was going to be brought into parliament in a couple of hours. Is that the Labor Party's definition of consultation?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

As I understand it, the process was, as you described, for consultation with political parties represented in the parliament. Obviously, the consultation that occurred within government in terms of the agencies and Inspector-General of Intelligence and Security was a little bit more detailed than that.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

When you say 'a little bit more detailed', were they given it earlier in the day or were they shown the drafting and asked to comment on the drafting and the impact of the drafting, or were they just given it with a cup of coffee in the morning?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

My understanding is that they were involved and they were an integral part in the development of the bill itself.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Were they shown the drafting?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Not only were they shown the drafting; they were consulted in the development of the drafting.

James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

I briefly rise to put on the record the coalition's position on the previous amendment and this one. We will not be supporting the amendment. We are grateful to the government for the briefing they provided, which very clearly illustrated the need for this bill and the urgency with which it must be passed. We will always act in the national interest in a bipartisan way when it comes to national security. It does not assist, when dealing with these complex matters, to put in amendments such as this which seek to frustrate and delay dealing with the substantive matters and which require the parliament to return to the legislation in three months time, as would be the case with this sunset provision. This again demonstrates the way in which the Greens—who have been briefed on the importance of this bill, who understand the importance of this bill—are willing to play political games with national security to virtue signal to their supporters in the community and get in the way of dealing with what is a very real national security challenge which has been brought to our attention and must be dealt with properly.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

When the original provisions were brought before parliament—the ones that are now having to be tidied up after decades of mess—were they also rushed through in a process like this?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

My understanding is that the act itself goes back to the early 2000s, if not the 1970s, when—depending on which year in the 1970s we're talking about—I may or may not have been born. Obviously there have been further developments.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

In 2000. I know it's complex.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

There's no need to be a smart alec, Senator Shoebridge. I obviously wasn't around, but I think it would be fair to say that, when primary legislation is first introduced to parliament, ordinarily there is a longer process than there is with a very slim set of minor amendments, which is what we're talking about here.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

Minister, do you acknowledge the fact, or have you been briefed at all on the fact, that, when these amendments were put in in 2000, by the coalition, in a rush, without due process, almost exactly this dance was done? It appears to have stuffed the law up or misled ASIO, and they've been operating unlawfully for two decades, after it was rushed through by the coalition without due process. Do you acknowledge that?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I'll let you characterise things however you choose, Senator Shoebridge.

Question negatived.

Bill agreed to.

Bill reported without amendments; report adopted.