National Security Adjournment

I rise tonight to make a few comments about the National Security Legislation Amendment Bill (No.1) that was recently passed in this place. I do so particularly in light of a number of emails I have been receiving and commentary in newspapers. Some people seem to believe the assertions made by some that we have just granted new powers to intelligence organisations here that would put them on a footing with previous Soviet bloc or Cold War era organisations. Clearly they have not done their own due diligence to understand the balance and protections that have been put into this process.

It has been asserted that these new laws were very much a creation of this government, rushed through in response to current events. I want to re-emphasise that these amendments had their origin in the work of the Parliamentary Joint Committee on Intelligence and Security which was carried out under the previous government. Based on the recommendations that they made, this legislation was brought forward and referred to the current Parliamentary Joint Committee on Intelligence and Security, which I have the honour to serve. It has been the subject of additional review—not only did we have the nine days of hearings in this current PJCIS inquiry and some 240 submissions; we also had the discussion here in the Senate.

I would like to go through some of the key points that people have raised to give them an assurance that the work of the committee was to understand what the amendments were proposing, to hear the concerns from a broad range of people in the community and then to give the government amendments to address those concerns which had been raised. In some cases what I will cover indicates that the assumption people have made about this legislation was false in the first place. What we have done is to make it absolutely clear, for the avoidance of doubt in the legislation—or in some cases the explanatory memorandum—where the legislation already satisfied the concerns of the committee.

First I want to address the issue of the use of force. Some of the commentary I have seen would indicate that people believe we have now authorised our intelligence agencies to use force as they see fit—at will and with no authorisation or supervision. Nothing could be further from the truth. Imagine the scenario where a raid has been planned and when you get into the house or the building you find somebody who is in possession of evidence that is the focus of the raid, and they choose to walk or run out the back door. Under the previous legislation an ASIO officer could not block their passage to stop them from going out of the door, because that would be using force against the person. Clearly, there is an obligation there, for the success of the mission, to actually allow them to use reasonable force to do something like blocking somebody’s exit so that they can obtain the material that the person may have.

There was a good deal of discussion in the committee about the fact that, if somebody is going to be authorised to use force, then they have to have suitable training, and there was a requirement that IGIS should look at that training and make sure it was suitable. But the important part that I want to get to is schedule 2 of the bill, as amended—the powers of the organisation, being ASIO, in response to recommendation 6 of our report. In proposed subdivision H—general provisions relating to warrants—a new section is inserted which specifies notification requirements that will apply to any warrants issued under the ASIO Act authorising the use of force against persons. That is the point I really want to emphasise: in order for an ASIO agent to use this power, it has to be explicitly authorised in a warrant. It is not as though people can, off their own bat, go and do something that the rest of society would look at and say: ‘We do not think that is appropriate.’ It has to be authorised in a warrant.

More importantly, in terms of a check and balance, it requires the Director-General of Security to notify the Attorney-General and the Inspector-General of Intelligence and Security—so IGIS, the independent watch body—if force is used against a person in the execution of a warrant. That notification must be given in writing and as soon as practicable after force against the person has been used. So we have here two checks and balances: one pre-existing in that it could only be authorised by warrant; and, as a result of the committee’s work, there is also the additional check that says that if you have actually used force, then the person must be suitably trained and there must be a report back to both the Attorney-General and to IGIS so that they can keep a watch over how frequently this is used and how that training equips people to do it. If you think through the scenarios that were postulated, it is not a subversive or bad power for people to use.

In terms of computer access, I have read articles that would indicate that we have given permission to ASIO to interrogate the entire internet at will. Again, in response to recommendation 5 of the committee’s report, schedule 2 of the bill—the powers of the organisation—was amended with a new section 34, requiring a specific matter to be included in reports on warrants that have authorised computer access. So again there are two elements here. Firstly, there has to be a warrant to access the computer, so it has to be specifically authorised. Secondly, there is a report to make sure that, where that power has been authorised, it has been used in an appropriate way.

I would like to touch on special intelligence operations. There has been some concern about special intelligence operations as though they are something completely new, particularly around protecting the safety of the officers who are working on those by limiting the ability of people to talk about them. This legislation has been modelled on the controlled operations regime that the AFP already use and have done for many years under the Crimes Act. So we have a federal government body that is using a power that provides them with the ability to essentially have an undercover operation, and it has provisions about disclosure—reckless disclosure that would endanger the lives of people. That has been working without abuse, and it has not limited or dampened the ability of media to report.

Because of the concerns around the perceived inability of people to report if they think there is wrongdoing, we have amended schedule 3 of the bill to include specific offence exceptions. That amends section 35P of the bill to insert additional exceptions on the unauthorised disclosure of information relating to special intelligence operations. Again, let us narrow this in. This restriction is not about all ASIO operations. It is specifically about the undercover or SIO operations, and we have made specific mention in the bill that there is a public interest test before any prosecution and that the fault of recklessness is specifically brought out. We also specifically make it clear that, if somebody has a concern about the way ASIO is doing its business, then they are not at fault if they go to the IGIS and disclose their concerns to the IGIS, who is the appropriate authority with the appropriate security clearances to take action.

Many people have argued that the media is very responsible, and I have no doubt that the vast majority of people are. But incidents do still occur. There is the famous incident in August 2009 when before a raid actually took place newspapers were hitting the streets with the story. The story of the events that led up to that is contested, but the issue is that officers’ lives were put at risk because that information got out. We are not seeking to dampen media reporting. We are seeking to make sure there are appropriate provisions in place to keep the lives of officers who put their lives on the line for the Australian community in these undercover operations from being recklessly exposed, which not only undermines the operation but puts their lives at risk. The committee has done its work with the support of the witnesses who have provided a range of evidence to make sure that this bill has been amended to have suitable checks and balances so that ASIO have the powers they need to do their job and the community can be assured that they are doing it in a responsible manner for the benefit of the Australian community.