National Security Legislation Amendment

8/12/2019 National Security Legislation Amendment

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Senator the Hon George Brandis QC

Attorney General

SECOND READING SPEECH:NATIONAL SECURITY LEGISLATION AMENDMENT BILL 2014

I am pleased to introduce the National Security Legislation Amendment

Bill.

The Bill contains a package of targeted reforms to m o d ~ t n i s eand

1mprove the legislative framework governing the tactivitjes of theAustralian Intelligence Community. It pri.ncipc:ltly _amends'>the Australian

Security Intelligence Organisation ct ) 9 7 ~ : ,1ASIO Act), and the

Intelligence Services ct 2 1 (IS A c t ) ~, ,

Intelligence is at the forefront of Al.Jstralia1s national security capability,: ~ , ,, ,

and our intelligence agencies::erye us>well in this regard.

It is a testament to theithard work and professionalism - and that of our

law enforcement >agencies - that four planned terrorist attacks on

Australian s o i l . t : J ~ ~ ebeen disrupted since the enactment of Australia s: > . , ,:, , ~ ,

counter-terrorjsm l ~ g i s l a t i o nin 2002.\ < ~ > . ' \:,', > : > , : ~ ~ ~ .

In add.iti'Op, 28 people have been convicted of terrorism offences under

A l l s t r a l i ~ nlaw. Most prosecutions have made signi_ficant use of< : : : ; ~ =?

intelllgerl ce information.

However, it is imperative that the statutory framework governing the

operations of Australia s intelligence agencies keeps pace with the

contemporary, evolving security environment.

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If our agencies are to rema1n effective, they must be supported by

legislation that allows them to respond rapidly to emerging security

threats, both global and domestic.

Among these are international activities of security concern such as

transnational terrorism. This includes the involvement of terrorist

organisations in civil conflicts or insurgencies, such as in S y r i a ~ n d J r a q~ i : > , < : : ~

: :, : : ~ '

As this Parliament is aware, the activities in Syria and Jraq ~ ~ v ~ . l e dto

an increase in individuals travelling overseas to partiC,ipate i ~ J i o s t i l i t i e s .,


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In addition, rapid developments in information and communications

technology, particularly in the online environment, have led to its

increased use in activities of security concern.

Terrorist groups and individuals are becoming sophisticated in their use

of technology to organise themselves and evade detection.

::.y: ;:

Espionage also remains a security threat. Recent internafibnal high-

profile cases are a reminder of the risk presented by s o ~ c a l l ~ d : J r u s t e d

insiders' in this regard.

It is important that our intelligence agencies =Jre equipped with powers; , , , ' ' ,

that enable them to function effectively in t b i ~e n y ~ r o n m e n t .

To this end, the Bill contains measures q ~ d d J ~ s ~practical limitations in

the current legislation, which were 1argely identified by the Parliamentary

Joint Committee on Intelligence .and S ~ ~ u r i t y(PJCIS) in its Report on

Potential Reforms o Australia s National Security Legislation, as tabled

on 24 June 2013.

'

The Bill i m p i ~ J l J ~ : r i t ~ >t h ~ : G o v e r n m e n t sresponse to Chapter 4 of this

report, on ~ ~ ~ u s t ~ ~ n a nIntelligence Community legislation reform._ ( ( ~ ,

l m p o r t < = J n : t ~ : . : : : : : : t b i s ~ ; ~ r e p o r twas bipartisan. As a representative of thato', < V , , , , ~ : ~ ; > >> ~ >

PJC(;,'(tt lank my colleagues across all sidesof

the chamber fori d ~ h ~ _ f y i ~ gt ~ need to modernise the legislation governing the powers of' ' ' , ' : '\_', -


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The only recommendation not being implemented, recommendation 25,

was a suggested extension of ASIO s warrant based powers, which is

considered unnecessary.

The Bill forms part of our commitment to respond to the

recommendations of several recent reviews of national security and

counter-terrorism legislation.

Outline of measures in the Bill

Against this background, the Bill enhances th capability of ourintelligence agencies in seven key areas.

(1) Modernising ASIO s statutory e Q i p l ~ y , q l ~ p tframework, , ,


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(2) Modernising and streamlining ASIO s warrant-based

intelligence collection powers

The second key area of reform is to modernise and streamline ASIO swarrant-based powers, in line with the majority of the PJCIS

recommendations.

Division Two of Part Three of the ASIO Act enables the,;{issuing of

warrants authorising the Organisation to exercise powers of search, to

access computers, to use surveillance devices, and.Jo i b s p ~ c t p o s t a lor

delivery service articles.

The proposed amendments will d d r e ~ s~ : ,11url1ber of practical

limitations. In particular, the Bill w i i L , e n ; u t E : f t ~ ; ~ tthe warrants regime, ' , ' , ' ' ' < : / ~0 ,

regulating ASIO s i n t e l l i g e n c e - c o l l ~ c t i o h ~ ; ~ n c h r e l a t e dpowers keeps pace< -< , ,-, , {, {

with technological developrtlents , ' , P ~ t t i ~ u l a r l ythe use of online

communications by persons of secHrity interest. As such, the Bill will

assist in managing , he risk ptesented by Australians who are

participating in, or>suppo(ting participants in, foreign conflicts (including

those conflicts i ~ - ~ J e hterrorist organisations are active) .. >< /, ' .

, 0 ' ~ : ' ' , ~ . , :, < ~

Targeted eJ{te l,siqns o f powers nd stre mlined issuing processes; : o o [,

;:::< < > ~ : : ~ ~ 5 :

: , ; : : : , ; : : : ~ : ~ ; : : < : ' : ' , ' '

the exercise of multiple powers in relation to a target.

A single issuing process will ensure the simultaneous availability of all

powers sought under different types of warrants, while retaining the

statutory thresholds for the issuing of individual types of warrants.

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mproved execution nd administration of warrants

The Bill further contains technical amendments to improve the execution

and administration of warrants. This is largely by clarifying ambiguitiesin provisions concerning access to third party premises and the use of

reasonable force.

Maintaining strong safeguards,

~ ~ : > ~,,,

ASIO s warrant-based powers will rema n subject to< ; ~ ~ j ~ ~ i f i c a n t

safeguards. These include the high thresholds in t h ~ ~ t a t l J t o r y6riteria for- ~ ~ ~ 0 , , ~ -the issuing of warrants and the exercise of p q w ~ r ; u n d e rthem. The

c

requirements for Ministerial-level issuing d ~ . R i s i 6 n sw ll continue to apply,

and the regime will remain subject t ~;the ~ x t e n s i v e ,independent

oversight of the lnspector-Generalof l r t t ~ l l i g ~ e n t ; eand Security., , , - , , ,

3) Strengthening to conduct covert

intelligence operations, with appropriate safeguards and oversight

The third key refornf is the implementation of a PJCIS recommendation

to establish , , ~: a ~ O i c e 1 t e dstatutory framework for ASIO s covert~ , s ~ : - < : ~ : ; : > ,> -i ,

i n t e l l i g e n c e . . : g ~ t h e r i r ) gOperations.

Much ) f : ~ h eintelligence information that is relevant to the security of

A u ~ t r a l i amust necessarily be collected by the Organisation on a covert

b a s i ~ >

However, such covert operations are not without risks. In addition to the

potential risks to the safety of participants, covert operations can in

some instances require participants to associate with those who may be

involved in criminal activity - for instance, the commission of offences

against the security of the Commonwealth.

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Covert operations may, therefore, expose intelligence personnel or

sources to legal liability in the course of their work. For this reason,

some significant covert operations do not commence or are ceased.

To address this issue, the Bill implements the recommendation to create

a limited immunity for participants in authorised, covert operations.

Just as Part lAB of the Crimes Act provides for a limited irjjrnunity for

covert law enforcement operations, it is appropriate thc:lt:cor;esgJ;>nding

protections are extended to participants in covert i n t ~ l l i g ~ p c eoPerations.~ ~ ~ ~ < , < '


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The Bill will insert a provision which confirms ASIO s ability to cooperate,

on a voluntary basis, with private sector entities, such as owners and

operators of critical infrastructure, in performing its statutory functions.

The Bill also remedies an unintended limitation on ASIO s ability to refer

certain matters to law enforcement agencies for investigation. This

concerns the ability of ASIO to refer suspected b r e a c h ~ s , : : : : Q fthe, , ~ : ~ ~ ( ,

prohibition on unauthorised disclosure of an ASIO official s idef1tity. ;:[>; ,

,;:,/,

5) Enhancing the capabilities of l n t e l l i g e Q G , e ; ~ : , : : S E { ~ iAct;; < : : : \ , : : ; < :, , < ~ : ~ r ~ , ~ < ; , > , , ,,

Importantly, the Bill enhancel tbe ~ < i p a c i t yof ASIS to cooperate with

ASIO, by improving t h ~ : < s t a t u t a ~ : : : : : a r r a n g e m e n t sfor the collection and, < ,,< 0

sharing of certain s e c u r i t y < r e l ~ t ~ dintelligence.

The Bill will improve the protective security capability of AS IS, which

undertake d p e r a t i o n ~ < i ndangerous locations. These amendments wille n a b l e , : : A J : : : { ~ : : ; ; ~ r 6 v i d eprotect.ive security training - such as training in

, , ~ ~ ~ : :i , ; ; - y , y ~ : > > >~ > ,

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These reforms are complementary to the measures recommended by

the PJCIS report. They are necessary to address significant gaps in the

coverage of these offences in the contemporary security environment.

As recent, high-profile international events demonstrate, in the wrong

hands, classified or sensitive information is capable of global

dissemination at the click of a button. Unauthorised d i s c l o s ~ J e S O nthe

scale now possible in the online environment can have ~ ~ v a s t a t i n g',', '->'

consequences for a country's international r e l a t i o n s h i p ~ : : ~ n ~ J Q ~ ~ l l

capabilities.

Accordingly, the Bill will address a legislative ' by creatingap new'< / : < : ~ > >

offences applying to unauthor.ised ~ d e a l i n g swith an

intelligence-related record, including c p ~ y i n gt ~ a g s c r i p t i o nremoval and, 0 '

retention. Currently, no such o f f e n q ~ ~ , ~ x i s t . : l ~ ~ c hnew offence will attract~ ; ~ ~ o

o < T h eGovernment is undertaking a- . - ' .

comprehensive review of these lAws, which will involve responding torecent reviews and p r o c t i v ~ l yaddressing any gaps to ensure our

agencies can repond effectively to emerging security threats. The

Government's:'no111ber one priority is to keep Australians safe. We are

committed to, working with Parliament, the private sector and

i n t e r l a t i ~ n a C p a r t n e r sto protect Australians and our interests from those;< ---

I commend the Bill.

ENDS

2003 words

Approx. 20 minutes at 100 wpm)

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National Security Legislation Amendment