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Intelligence Services Amendment - "Wikileaks Amendment"

Speeches in Parliament
Scott Ludlam 4 Jul 2011

Senator LUDLAM (Western Australia) (17:54): I start my remarks by congratulating you, Deputy President Parry, on the role that you now hold. I know that it was a bit of a close call for you this morning but congratulations nonetheless.

I would like to add some comments on behalf of the Australian Greens. We have very strong reservations about the bill. I will go through the parts of the bill that we believe are extremely controversial and also touch on those that are not. Senator Humphries has managed to skirt around most of the main issues that the Australian Greens have concerns about and, with just a shift of emphasis, has informed us that the coalition sees no problem in waving this bill through.

We have very serious reservations about this and it is the intention of the Australian Greens to vote against this bill, more or less on the single ground that I will identify now. The bill authorises the Attorney-General to issue a search, computer access or listening device warrant to ASIO for the purposes of collecting intelligence when the AG is satisfied that the collection is, 'in the interests of Australia's national security, Australia's foreign relations or Australia's national economic wellbeing'. This is a sharp contrast to the current conditions for a search, computer access or listening device warrant, which occurs when the Attorney-General is, 'satisfied that the collection of that foreign intelligence is important in relation to the defence of the Commonwealth or to the conduct of the Commonwealth's international affairs'.

This bill also redefines 'foreign intelligence' to mean, 'intelligence about the capabilities, intentions or activities of people or organisations outside Australia.' What we have before us this evening is a significant departure from the current definition that is 'intelligence relating to the capabilities, intentions or activities of a foreign power'. A foreign power is currently defined as, 'a foreign government, an entity that is directed or controlled by a foreign government or governments, or a foreign political organisation'. That is the definition we have at the moment. The amendments would change the definition to, simply, 'people or organisations outside Australia'.

To be honest I do not understand how the Legal and Constitutional Affairs Committee got through the assessment of this bill and took the evidence that we did and, at my insistence, held a hearing which took about 90 minutes on a sitting day, and did not find that the provisions have radically expanded the scope of work that ASIO can now undertake.

Most of the other clauses in this bill are more or less inoffensive, and some of them we strongly support. But the fact of the matter is that we have completely widened and opened up the mandate of this intelligence service, which has operated until now on very strict definitions of what it can and cannot investigate, and these strict definitions have been there for very good reason.

The bill clarifies that a computer access warrant authorises access to data held in the target computer at any time while the warrant is in force, not limited to data held at a particular point in time. That to me seems like a fairly common-sense amendment. It allows ASIO, like other AIC agencies, to share information about employment decisions about a person's employment or proposed employment without fear of that person gaining access to the information. Again, ASIO does not have these immunities and has requested them.

The bill gives the Defence Imagery and Geospatial Organisation, DIGO, a function to provide assistance to the ADF in support of military operations and to cooperate on intelligence matters. This is not an extension of power but a clarification of functions and is consistent with the functions of the DSD.

The bill provides a new ministerial ground for obtaining intelligence when a person may be contravening a UN sanction. That is a common-sense amendment.
The bill provides immunity from civil and criminal activities for a limited range of circumstances directly related to the proper performance by the agencies of their functions. So certain laws, including state and territory laws, could impose a liability on agencies. The immunity provisions for computer offences in part 10.7 of the Criminal Code will also be amended to clarify immunity unless another Commonwealth law or state or territory law expressly overrides it.

All of these provisions in the bill would be supported by the Australian Greens if we win support for the amendments that I will debate and move in the committee stage.
During the inquiry into this bill, very serious reservations were expressed by the Law Council and by the Castan Centre at Monash University. The Legal and Constitutional Affairs Committee, of which I have now been a full member for three years and one day, fast-tracked this inquiry and nobody was able to tell why. Our initial reporting date was September, and I am going to call on the minister when we go into the committee stage to explain what on earth was the rush, why the committee was required-and, I propose, probably instructed-to report three months early, just as we had identified these very serious concerns.

The Law Council expressed strong concern in their submission and at the hearing, which was eventually held, as I say, during a sitting day. I was only able to attend because a particular bill that I was working on was pulled, and it still has not returned to the chamber; otherwise, I would not have been able to attend at all. ASIO, who you would argue is probably the most important agency with respect to this bill, did not appear. They were too busy on that day, so we did not take evidence from them. The questioning that I put to ASIO during the last round of budget estimates was curtailed by the chair. She informed us that the agency would report to the committee when it held its hearing, and of course that did not occur. So there has been quite a serious breakdown of process, on a really important matter, and I do not think we should overlook that.

The Law Council said in their submission that the bill would:
... afford the Minister and the agency almost unfettered discretion to determine when and how ASIO's powers may be used to gather information about people's activities, communications and relationships abroad.

'Almost unfettered discretion'-and it is the very tightly bound discretion under the current act that oversight agencies like the IGIS, for example, absolutely depend on to determine whether ASIO is acting within its mandate or not. We will splatter that mandate all over the landscape and allow them to simply go wherever they like. It will make it incredibly difficult for oversight agencies to tell whether the agency is within its mandate or not, because it is going to be very difficult to tell what that mandate is henceforth.

Currently, the threshold test for obtaining a warrant domestically is much more stringent. The minister must be satisfied that there are reasonable grounds to believe that it 'will substantially assist the collection of intelligence ... in respect of a matter that is important in relation to national security'. So there is an implied test in there which is about to go missing. The Law Council indicates this is significant broadening of the range of circumstances where listening device warrants, computer access warrants and surveillance and search warrants are available about any person or group outside Australia whenever those activities are considered to be somehow relevant to national security, foreign relations or economic wellbeing-for heaven's sake. We have dramatically expanded the scope of this agency's reach, at the stroke of a pen.

The Law Council also expressed strong concern in their submission that:

... the oversight function of the Inspector General of Intelligence and Security is seriously undermined because, ultimately, the ASIO Act provides the framework against which that Office assess the lawfulness and appropriateness of ASIO's activities.

We repudiate these views, I think, at our peril. It will be very, very difficult to unpick this or constrain ASIO if this sails through the parliament again on this bipartisan consensus that I am wearily used to on anything with 'national security' in the title. I think the committee process in this case-and it is unusual for me to say this-has actually failed us.

I have great respect for the vital work of the IGIS, but I am concerned that when I asked her for a response to the Law Council's concern she said she would:
... continue to monitor this closely, as not only will it affect my workload but also a significant increase in warrant applications could be a clear indicator of whether the relevant conditions are being applied too broadly

So she is going to just wait and see. She has clarified in subsequent correspondence to the committee that that was not intended to be a concern, that she was not anticipating or proposing that there would be a radical increase in warrant applications; she was simply stating the facts of the matter. If there is suddenly a flood of warrants, that will be an indication that the power is being interpreted too broadly. By then it will be too late. If I come in here with a private senator's bill proposing to restore the situation to that of the present day, there will be nine of us on this side and everybody else on the other. I can be fairly sure of that. It is important to get this right now because, once these powers are expanded, it will be extraordinarily difficult, as we have seen since September 11, to bring them back into some kind of proportionality.

The Castan Centre also registered concern that the amendments permit ASIO to investigate a far wider range of individuals and organisations, even where Australia's defence interests and international relations are not at stake. That is what is happening here. They explain in their submission that most non-state actors that threaten Australia are captured by existing notions of 'foreign political organisation'. That was the pretext provided in the-as Senator Humphries outlined, manifestly inadequate-explanatory memorandum. We found during the committee work and during estimates hearings that the most difficult thing was to establish exactly what it is that the government proposes by way of these amendments. What is it ASIO needs to do that it cannot currently do? Nobody has been able to tell us that. The hearing descended into farce, as far as I was concerned, when the officer at the table simply was not able to tell us what ASIO would be able to do that they currently cannot. I can give the minister a heads-up now that that is the first thing I am going to ask him when we go into the committee stage.

Under existing law, the collection of foreign intelligence is confined to the collection of intelligence concerning the activities of foreign governments, organisations they control or foreign political organisations for the purpose of the defence of Australia or the conduct of international affairs. That is how ASIO have been doing the work that they have been doing in tracking al-Qaeda and tracking terrorist organisations that are much closer to home operating in our neighbourhood. They have these powers. They use them extensively. It is the sole justification that has been given to us for why their staffing and their budget quadrupled in the last decade. It is precisely because they have the range of powers that they need to track non-state actors who mean Australians harm or mean to pursue violent political activities in other countries. They have the powers that they need. When we asked what exactly this was all about, nobody was able to tell us.

What it does do is that it permits ASIO much wider scope to investigate the activities of Australians who are overseas and who do not necessarily pose a threat but perhaps do have implications for foreign relations, such as Julian Assange and other people working in the WikiLeaks organisation. WikiLeaks and Mr Assange obviously have implications for Australia's foreign relations. Things falling out of the document drop were on the front page of every newspaper in the country day after day after day six months ago, and even now those shock waves continue to reverberate through the diplomatic community. So there is no way that you can say that there are no implications there for Australia's foreign relations. But should that entity be spied on by ASIO? Should our clandestine Cold War era spy agency be tracking down Mr Assange, maybe his family if they travel abroad, people working for that organisation, journalists, or people he is talking to or that that organisation is involved with? It appears that the reason that this bill has been known as the 'WikiLeaks amendment' in the Attorney's department is that that is precisely what is intended. The committee simply did not address that issue, and neither did the officer at the table when we asked during the inquiry. This is one example of how a person or organisation outside Australia, combined with the notion of Australia's foreign relations, very considerably expands the scope of ASIO's activities. Australians working overseas for firms that are major rivals to key Australian industries would also be covered. They would be caught by the economic wellbeing argument. If the government has a counterargument to this, it would be delightful to hear it.

Finally, the Australian Greens object very strongly to the committee reporting three months early so that this bill can be rushed through the Senate. What is the hurry? Why must the committee report on 22 June and not on 21 September, our original reporting date? Why is this bill being passed today? I was told in the hearing by the department: 'While I cannot reasonably talk about specific cases here, I can assure you that this is very important.' That is the clarification that Senator Humphries and the rest of the committee were seeking. We were told, 'It is very important, I can assure you.' We have to take that as read without any justification at all. Eventually in the Attorney's third submission they came up with the example of illegal fishing. This whole process smells fishy, so it is interesting that that was where they landed-illegal fishing, for heaven's sake. What is it meant to mean that the shorthand term for this bill in the A-G's department is the 'WikiLeaks amendment'? The fact is ASIO are already empowered to obtain, correlate and evaluate intelligence relevant to security and they may obtain warrants for this purpose. That is what they do. That is what this agency is up to day to day. The current definition of 'foreign intelligence' includes intelligence relating to the capabilities, intentions or activities of foreign political organisations, whether or not they are connected to or sponsored by a state. The power is there already, so what is this bill about?

In their evidence to show how the amendments would operate in practice and in their second and even third submissions-it is quite unusual for a department to have to come back with a third submission because the first two were so inadequate-the department were not clear on what additional targets they envisaged being picked up by the amendments. They do not explain-and I do not think they can explain-what legitimate targets of spying would not get picked up by the current definition of 'foreign political organisation'. Please do not give us illegal fishers, for heaven's sake. The answers, I think, have been quite embarrassing. They have been the subject of media attention as a result, and I think that has been entirely justified.

The Senate's committee system is pivotal to the thorough scrutiny of legislation. I have enjoyed serving on the committees that I have served on in the last three years. I think it is an incredibly powerful role of this chamber through the committee work it does. It is mostly extremely collegial. The work is mostly collaborative. To a degree party allegiances, if the bill is not too polarising, get left at the door and we can do the jobs that we were elected to do and that we are paid to do. When the committee process is short-circuited, we are all the poorer for it because there is no other line of defence in here. When this vote is taken, we will have missed the opportunity.

The inquiry process solicits expert opinion. It takes evidence in public hearings. It was absolutely not appropriate to hold a rushed public hearing in 90 minutes on a sitting day. I think that was completely out of order. The process is meant to assist in weighing up whether laws afford the right balance between security and civil liberties and whether they are necessary and proportionate. Something that the new independent terrorism legislation monitor is going to be giving a great deal of his time-his very limited time as a part-time appointment-to assessing is whether the laws that we have guiding the agencies that are tracking, challenging and shutting down terrorist activities in Australia and in our neighbourhood are proportionate, whether they are necessary and whether they are doing what the government said. If you wanted to get a headline on being tough on security and if these laws were put through on a bipartisan and not cross-party basis, are they actually serving a function? Do they make us safe? If they make us safe, let us leave them there and let us review them, assess them and approve them. If they do not-if they are simply about attacking civil liberties or pursuing other agendas under the guise of national security, which is a term I think is now far too loosely interpreted under the amendments that we are considering tonight-then let us at least take a good, cold, hard look at what we are doing, because it is extraordinarily difficult to roll these things back once they are in force.
I for one am very concerned that we are simply following the United States down the path of the Patriot Act-that anything at all can be justified in the name of national security. I invite the opposition and the government to contemplate the amendments that we will move in the committee stage. They are no more or less than what the Law Council proposed. They do nothing more than go after the definitions that I have been speaking on tonight. They do not go into any of the other non-controversial or quite sensible aspects of the bill. They are very tightly constrained. So I invite both the opposition and the government, when we move into the committee stage, to consider pausing and paying attention to what the Law Council and other witnesses told us on this extremely important matter and not just to wave this bill through because it has 'national security' in the title.

Senator LUDLAM (Western Australia) (18:28): In the few minutes remaining to us I think, rather than moving the Greens amendments, I might just put a fairly simple question to the minister. Maybe the government has had a bit of time to think about this one now: what will this bill allow ASIO to do that it cannot currently do?

 Senator LUDLAM (Western Australia) (19:30): Welcome, Senator Feeney. Maybe you can shed a little bit more light than Senator Sherry has.

Senator LUDLAM (Western Australia) (19:32): I have a couple of questions before I discuss and then move the set of amendments I have proposed. The issue that I had put to the minister before we got up for dinner was the purpose of the bill-what it is actually for-because nobody has really been able to satisfactorily identify what you need ASIO to be able to do that it cannot already do. In the pursuit of its quite legitimate surveillance and intelligence-gathering activities of organisations engaged in politically motivated violence, terrorism and so on, I do not think there is anything controversial about ASIO going ahead and doing that. What becomes controversial is when we quadruple their budget and staffing allocation, build them a fortress down on the lake and then completely open the floodgates to the kind of investigative work that they can undertake.

This is not about new powers for ASIO. That was something that the minister said before we rose for dinner to try to ease my mind that ASIO was not getting any new powers here. That is not the point. What they are being given is the ability to exercise the powers that they currently have across a vastly broader range of groups, individuals and now, I think quite clearly, civil society organisations.

I will put to you a brief quotation from the submission of the Law Council of Australia to the Legal and Constitutional Affairs Legislation committee on 5 May. They told us that the threshold tests-the boundaries around which ASIO is permitted or not permitted, either on their own motion or, later, if ASIO is being investigated by the IGIS as to whether they were inside or outside of their mandate-are important. Mr Grant, the Secretary-General of the Law Council of Australia, said:

These threshold tests are important. If they are framed too broadly they provide no safeguard against the misuse or overuse of ASIO's powers. Further, the effectiveness of the oversight function of the Inspector General of Intelligence and Security is seriously undermined because, ultimately, the ASIO Act provides the framework against which that Office assess the lawfulness and appropriateness of ASIO's activities.

My question to you, Minister, is how, even if you accept that the government does need to expand ASIO's mandate-and I do not for a moment-you answer the quite legitimate point raised by the Law Council. You have thrown the baby out with the bathwater. You have gone so far that there will henceforth be no benchmarks against which to assess whether ASIO is acting legitimately or not, because you have so broadened the range of targets that they may now surveil.


Senator LUDLAM (Western Australia) (19:38): I thank the minister for his response. Minister, can you clarify for us that, for the 60 years of the Cold War and the entire period of the existence of this agency, they have been unable to track nuclear, chemical and biological weapons if they are in the hands of non-state actors? I find that utterly incredible.


Senator LUDLAM (Western Australia) (19:42): Minister, that was fascinating. I recognise that you are here in a representational capacity.

Senator Feeney: Yes!

Senator LUDLAM: The internet has been around for a decade and a half in broad use. We saw the extraordinary violence inflicted by non-state actors on people of the United States on September 11, and the subsequent attack that killed Australian citizens. We have been in this fluid security environment you could say at least since the late 1980s or early 1990s. What does this bill do, after all that period of time, that our intelligence agencies have not been able to do for the last 15, 20 or 30 years? I still feel absolutely no closer at all to understanding that.

Senator LUDLAM (Western Australia) (19:39): Minister, I just wonder then whether, as a courtesy, you could put that question to the officers from the department who are sitting immediately on your left and who are paid by the responsible minister to know answers to questions like-and this goes to the heart of the question that I put to Minister Sherry before we got up for dinner: what is this a bill allowing you to do that you cannot already do? ASIO has been able to track non-state actors' handling of weapons of mass destruction, precursor materials, things involved in exactly that kind of trafficking, which are legitimate targets of clandestine intelligence agencies. You have been doing that for 60 years. Can you please tell us what has changed?

There is nothing in this bill-unless you can point it out to me; certainly nothing controversial-that addresses the medium; there is nothing that addresses cyber attacks. It is about the people and the 'who' we can go after, not about the medium or the vector that we might be being attacked behind. There are a couple of questions rolled in there, but I am still trying to get to the heart of what this amendment actually allows ASIO to do that it cannot already do. Just by way of an aside, I do not think the example of tracking of weapons of mass destruction or their precursor materials is a legitimate example. Our intelligence agencies are already perfectly capable of doing that, and they have been doing that for decades.

Senator LUDLAM (Western Australia) (19:46): Thank you, Minister, for the comprehensive answer to the question that I did not ask, which was how the bill was being described within the A-G's Department. Is it fair to say that this organisation, very specifically and not hypothetically, is now within the range of surveillance by ASIO, whether or not it was before?

Senator LUDLAM (Western Australia) (19:43): Minister, you will be very pleased to hear that when I move the Australian Greens amendments we will in fact be moving some consequential amendments to the Telecommunications (Interception and Access) Act 1979 so that the definitions remain entirely consistent. This is not an argument about consistency; it is an argument about appropriateness. Can the minister address the question that in framing-and I will use the same term as you did-the mandate of ASIO to be able to track a vastly larger range of actors you have now brought in groups of people who were up until this point, and I guess that is the whole point of the bill, beyond the range of surveillance and tracking by ASIO, including civil society organisations such as WikiLeaks?

There are also reporting obligations in section 34 of the ASIO Act requiring the Director-General of Security to report in writing to the Attorney-General on each foreign intelligence collection warrant. The Director-General must report on the extent to which the action taken under the warrant has assisted the organisation in carrying out its functions. Similar reporting requirements apply to the foreign intelligence agencies under section 10A of the Intelligence Services Act. This provides further assurance that foreign intelligence collection by ASIO is appropriate and being used for legitimate purposes.

Finally, section 17A of the ASIO Act includes an express protection for lawful advocacy, protest or dissent, and I am sure that you will agree that that is also of signal importance. The Inspector-General of Intelligence and Security regularly reviews ASIO's warrant documentation and, in doing so, has full access to all of the warrant information including the supporting evidence that is provided to the Attorney-General. The Inspector-General of Intelligence and Security looks at the legality and also the propriety which encompasses all those other aspects that sit in and around the legislation including of course whether ASIO has sufficiently adhered to its internal guidelines. So Senator, I suppose the government's position here is that there are strong protections and strong safeguards and this is not an undue or an unwarranted, let alone frivolous, expansion of the powers of our intelligence agencies.

Senator LUDLAM (Western Australia) (20:07): I thank Senator Brandis for making a contribution to at least make clear the coalition's views on these changes. I think Senator Trood raised a couple of issues during the committee hearing but, apart from that, the coalition has been almost totally absent from the debate. So it is good that you are least here this evening to give us the benefit of your views. I do not share your comfort that the definitions that the government is introducing here, which we are seeking to repeal tonight, do not, as the Law Council and the Caston Centre for Public Law have indicated, radically broaden the range of subjects on whom ASIO should now be spying. I am not as comfortable as Senator Brandis and his colleagues in the coalition or the Labor Party with the idea that corporate espionage is now an entirely legitimate activity for ASIO. They must be doing something in that giant complex that is under construction on the other side of the lake; they are not in there quite yet, but we now have a better idea, albeit still shrouded in complete ambiguity, of what ASIO will be up to. I do not share the opposition's comfort whatsoever that we are not about to vote through a very significant expansion to ASIO's mandate. I will not detain the Senate further. I commend the amendments to the Senate.


Senator LUDLAM (Western Australia) (19:53): I thank the minister and I feel enormously reassured.

Senator Feeney: So you should!

Senator LUDLAM: I feel as though the minister just read a big bag of wet cement into the Hansard record. All I will do, I suppose, by the way of response is read briefly one last time from the Law Council's submission where they put to the committee:

The proposed changes will almost render meaningless the threshold test that must be met by ASIO in order to obtain a warrant or authorisation to collect intelligence under 27A and 27B. A warrant or authorisation will be able to be obtained to gather information about the activities of any person or group outside Australia whenever those activities are considered to be somehow relevant to Australia's national security, Australia's foreign relations or Australia's national economic well-being.
Even if it is accepted that the current definition and test need revision in light of the changing nature of threats to Australia, it does not follow that the new definition and test must necessarily be reframed in such broad terms.

And finally they say:

The new definition and test will afford the Minister and the agency almost unfettered discretion to determine when and how ASIO's powers may be used to gather information about people's activities, communications and relationships abroad.

And I think that pointed submission from the Law Council kicks a bit of a hole in what the minister just read in that was supposed to reassure us about the safeguard framework that has been built up in a cross-party way by this parliament, by state parliaments, by conservatives, by the Labor Party and by the Greens to safeguard against the undue use of power by clandestine agencies that this parliament has a limited oversight of. This is where we find ourselves. Chair, I will seek your advice about whether I should seek leave to move amendments (1), (2), (3) and (4) together or just (1), (2) and (3).

The TEMPORARY CHAIRMAN: My advice would be (1), (2) and (3), Senator. Are you seeking leave to move (1), (2) and (3) together?

Senator LUDLAM: Unless Senator Brandis would like to make a brief late contribution and put some sense on the record.

Senator LUDLAM (Western Australia) (19:56): -by leave-I move Greens amendments (1), (2) and (3) from sheet 7102 and commend them to the chamber:
(1) Schedule 1, item 3, page 3 (lines 13 to 16), item TO BE OPPOSED.
[definition of foreign intelligence]
(2) Schedule 1, item 7, page 3 (line 24) to page 4 (line 4), item TO BE OPPOSED.
[collection of foreign intelligence]
(3) Schedule 1, item 13, page 4 (lines 17 to 24), item TO BE OPPOSED.
[collection of foreign intelligence]
I think that they do no more or less than what the Law Council proposed. They oppose the definition of foreign intelligence and the language around the collection of foreign intelligence in two clauses. I will subsequently move amendment (4) which makes consequential amendments to the Telecommunications, (Interception and Access) Act, which then changes the definition in that act to provide for that consistency that I think all parties are very keen to see remain on the statute books. So without further debate, I will commend those first three amendments to the chamber.


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