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.