CHAPTER 3
KEY ISSUES
3.1
The committee received submissions from a range of organisations and
individuals for this inquiry. Submissions from the Queensland Police Service
and the Law Society of Western Australia expressed broad support for the Bill.[1]
The New South Wales Minister for Police and Emergency Services also offered
support for the Bill, advising that the proposed amendments do not raise any
specific legal issues for the NSW Police Force and that the Bill appears
uncontentious from a law enforcement point of view.[2]
3.2
However, a number of submissions received by the committee raised
concerns with Items 3, 7 and 13 of Schedule 1 of the Bill, which relate to
ASIO's power to collect foreign intelligence. Other aspects of the Bill which the
committee received comment on were Item 4, which amends the ASIO Act to clarify
that computer access warrants authorise ongoing access to the relevant computer
during the life of the warrant; and Items 19 and 26, which amend certain
immunity provisions in the IS Act and the Criminal Code to clarify that
those provisions can only be overridden by express legislative intent.
Collection of foreign intelligence under the ASIO Act
3.3
As noted above, concerns were raised about the proposed amendments
contained in Items 3, 7 and 13 of Schedule 1 of the Bill which will amend
certain provisions of the ASIO Act dealing with ASIO's power to collect
foreign intelligence. Those items expand the definition of 'foreign
intelligence', along with the scope of provisions relating to foreign
intelligence collection warrants and authorisations.
3.4
The Law Council of Australia (Law Council) expressed its opposition, not
only to the breadth of the proposed new definition of 'foreign intelligence',
but also to the amended test in sections 27A and 27B. It recommended that Items
3, 7 and 13 be removed from the Bill.[3]
3.5
At the public hearing, Ms Rosemary Budavari articulated the Law Council's
position:
The Law Council opposes the proposed amendments relating to
the definition of foreign intelligence essentially for two reasons. The first
reason is that we consider that no real case has been made out to justify them,
and certainly not one which takes proper account of the full scope of ASIO's
existing powers and which explains by reference to more than fairly broad
statements why those powers are inadequate. In this context it is important to
note ASIO's existing powers to gather information that are relevant to security
and the fairly broad definition of security that is already within the Act. The
materials that support this bill, the explanatory memorandum and submissions in
our respectful submission from the Attorney-General's Department, do not
clearly spell out the effect of the amendments nor provide sufficient justification
for them. For example, what is not clearly stated is that the amendments are
not simply about allowing ASIO to do the same work it has always done—for
example, counterterrorism work, but in a different threat environment which is
referred to in those materials—but, in fact, potentially allow ASIO to do
different work altogether—for example, gathering information about economic
activity and negotiations. In short, the amendments expand ASIO's sphere of
activity.[4]
3.6
Ms Budavari continued:
The second reason that we oppose the new proposed definition
and the threshold test for the authorisation of the gathering of this foreign
intelligence is that these provisions are so broadly drafted they no longer
fulfil their purpose. They do not simply substitute new parameters for old
parameters, but they replace statutory parameters with broad ministerial
discretion and that starts to undermine the purpose and effectiveness of the
act. In this regard we contrast the test for the use of these powers with the
threshold test for ASIO gathering information in relation to domestic matters
which is far more tightly defined.[5]
3.7
While acknowledging the changing nature of threats to Australia's
security,[6]
the Law Council described the proposed changes as affording 'the Minister and
[ASIO] almost unfettered discretion to determine when and how ASIO's powers may
be used to gather information about people's activities, communication and
relationships abroad.'[7]
The Law Council outlined the impact of the proposed amendments in Items 3, 7
and 13:
[T]he proposed amendments to the definition of "foreign
intelligence", coupled with the further proposed amendment to the test in
sections 27A and 27B, will mean that search warrants, computer access warrants
and surveillance and listening device warrants are available to ASIO in a very
broad range of circumstances.
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 economic well-being.[8]
3.8
The Castan Centre for Human Rights Law (Castan Centre) was also critical
of the proposed broadening of the definition of 'foreign intelligence' and the
amended conditions for the issue of foreign intelligence warrants under the
Bill. It also recommended that Items 3 and 7 should not be enacted unless more
detailed reasons can be given as to why ASIO's capabilities need to be expanded
in the ways for which those items provide.[9]
3.9
The Castan Centre argued that the current definition of 'foreign
intelligence', which includes 'a foreign political organisation', adequately
covers most non-state organisations that may threaten national security:
[B]oth individuals and organisations that are linked to
threats or acts of politically-motivated violence, even if the violence has
nothing to do with Australia, would fall under the current definition of
security, which includes all offences again Part 5.3 of the Criminal Code
(Cth), meaning that ordinary special powers warrants would be available in
respect of them.[10]
3.10
The Castan Centre agreed that the amendments would allow ASIO a wider
scope to investigate the activities of Australians who are overseas, whose
activities do not pose a threat to Australia's security but do have
implications for Australia's foreign relations or economic interests.[11]
Two examples were presented in that regard:
An example of such activities might include the release of
secret government information by an Australian living abroad, such as has been the
case in respect of Julian Assange and Wikileaks. Currently, information about
Wikileaks probably would not constitute foreign intelligence – because
Wikileaks is (arguably) not a foreign political organisation, and its
activities do not threaten Australia's security (as defined in section 4 of the Australian Security Intelligence Organisation Act 1979 (Cth)). But
Wikileaks is an organisation, and Mr Assange is a person, outside Australia,
and their activities evidently do have implications for Australia's foreign
relations. This example shows how the notion of "person or organisation
outside Australia", combined with the notion of "Australia's foreign
relations", very considerably expands the scope of ASIO's potential
activities.
Another example can be given by combining the notion of
"intelligence pertaining to organisations outside Australia" with the
notion of "Australia's national economic wellbeing". This suggests
that the amendments would permit ASIO to engage in certain forms of economic or
industrial espionage, including in relation to Australians working for overseas
firms that are major rivals to key Australian industries.[12]
3.11
The Federation of Community Legal Centres Victoria also voiced concern
about the expansionary implications of the proposed amendments under Item 3 and
7 of Schedule 1 of the Bill, and endorsed the Castan Centre's submission.[13]
Departmental response
3.12
The Attorney-General's Department (Department) explained that the
rationale for the proposed changes relating to the definition and collection of
foreign intelligence under the ASIO Act is to align it with the IS Act and the
TIA Act. The Department further advised that the amendment will result in
a consistent approach to foreign intelligence collection and authorisations,
enhancing interoperability and intelligence sharing and allowing for more
efficient processes for collecting and communicating foreign intelligence.[14]
3.13
In addressing concerns about the breadth of the proposed amendments, the
Department emphasised the importance of aligning ASIO's foreign intelligence
collection with that of other relevant intelligence agencies, to ensure a
complementary role and to eliminate potential gaps in intelligence coverage.[15]
However, the Department assured the committee that '[t]his is not 'consistency
for the sake of consistency' – rather it reflects that ASIO has long played a
role that is intended to complement the foreign intelligence role of the other
intelligence agencies' and that those roles 'have not been completely aligned
because legislation was drafted at different times, reflecting different threat
environments'.[16]
3.14
With respect to specific concerns about a possible lowering of the
threshold test for the collection of foreign intelligence, the Department
reiterated that 'this is already the construct within which Australia's foreign
intelligence agencies collect foreign intelligence and which sets the three
broad boundaries which have been enshrined in the [IS] Act since 2001. This
definition has provided the parameter for the activities of Australia's foreign
intelligence collection agencies (ASIS, DSD, DIGO) since their creation'.[17]
The Department advised that it did not expect 'that this amendment will result
in significantly more foreign intelligence collection warrants or
authorisations being issued under the ASIO Act';[18]
and that ASIO's core focus will continue to be its security intelligence
function, as opposed to the collection of foreign intelligence.[19]
3.15
Further:
The proposed amendment does not create a broad new power or
space for ASIO to engage in new activities or 'economic espionage'. It merely
seeks to apply the existing parameters already applicable to foreign powers and
political organisations to individual 'non-state' actors as part of the
harmonisation of the legislative definitions. This is designed to facilitate
more streamlined cooperation between ASIO and the foreign intelligence agencies
and minimise the chance of risk of an intelligence failure.
...the changing security environment presents a need for
updating the ASIO legislation. The current ASIO Act provisions do not cover the
same range of national security threats, and do not reflect the modern concept
of foreign intelligence as reflected in the [IS] Act. The ASIO Act provisions
were drafted at a time when the main national security threats were
state-sponsored threats, and therefore focused on defence and international
affairs.[20]
3.16
The Department listed terrorism, transnational crime, weapons
proliferation (including proliferation of nuclear, biological, chemical and
conventional weapons and related technologies) and people smuggling as some
examples of the types of modern national security threats that are increasingly
not state sponsored.[21]
An officer from the Department provided further examples of potential threats
during questioning at a Budget Estimates 2011-12 hearing:
An example of that would be—and this is something that people
do have in mind with these amendments—is major cyberattacks, for example.
Nowadays much of our industry and much of our economic infrastructure, which is
very, very connected to our national security, is owned by the private sector
as well as the Australian government, the state government and the like and they
can be targeted by individuals, not other countries, who could threaten our
national economic wellbeing. A major organised crime syndicate which had been
effective in attacking, say, our banks could cause a loss of confidence in the
banking system and then do considerable damage to our economy. That would be an
example of something major of that nature.
Another one, which is particularly important, is to do with
the proliferation of nuclear biological, chemical and conventional weapons
technology. In the old days, everyone would think: that would have to be
controlled or initiated by a foreign power, which is the traditional side of
it; however, there is a lot of money in it. There is a lot of money in these
sorts of activities, and so you could have individuals threatening our national
economic wellbeing in that way.
Another final area, which is important, is the environment
side such as illegal fishing operations or wiping out whole species of fish and
the like. You could have a situation where you had individuals doing that and
affecting our national wellbeing in that way.[22]
3.17
With respect to safeguards on the exercise of the foreign intelligence
collection function, the Department reiterated that existing safeguards and
requirements will continue to apply under the proposed amendments:
The safeguards under the Intelligence Services Act, including
the requirement for a Ministerial authorisation, would continue to apply. This
is because ASIO obtains foreign intelligence at the request of the other agencies.
Therefore, before making a request of ASIO, those agencies would need to comply
with their own legislation. In relation to the collection of foreign
intelligence by ASIO, there would be an additional safeguard as the
Attorney-General will be required to be satisfied that collecting particular
intelligence is in the interests of Australia's national security, Australia's
foreign relations or Australia's national economic well-being. In making this
decision, the Attorney-General receives advice from the Minister for Defence or
the Minister for Foreign Affairs.[23]
Role of the Inspector-General of
Intelligence and Security
3.18
The Department advised that the Inspector-General of Intelligence and
Security (IGIS) 'regularly reviews ASIO's warrant documentation and in doing so
has full access to all the warrant information, including the supporting
evidence that was put forward to the Attorney-General'. The IGIS also 'looks at
propriety which is not just about whether ASIO met the legislative requirements
but encompasses all those other aspects that sit in and around it, including
whether ASIO adhered to internal guidelines'.[24]
3.19
At the public hearing, the IGIS, Dr Vivienne Thom, informed the
committee:
In general, I consider that it is not my role to comment on
government policy, the operational requirements of the intelligence agencies or
the legislative amendments which might be required to meet those policy
requirements. But if I formed the view, based on my oversight activities, that
any proposed amendments might compromise oversight arrangements or pose risks
to propriety or human rights that may not be apparent from the face of the
amendments, or if I believe that the organisation might not have the adequate
internal controls to implement new amendments then I would consider it
appropriate that I should inform the committee of my views.[25]
3.20
Dr Thom addressed the Law Council's concerns regarding the threshold
test:
While the new conditions recognise the broader nature of the
contemporary threat environment, in my view the threshold of being in the
interests of national security, Australia's foreign relations or national
economic wellbeing are not insignificant or trivial. I would not paraphrase 'in
the interests of' as 'somehow relevant to', as has been done in some of the
submissions. When inspecting foreign intelligence collection warrant
documentation, under the proposed regime we would be paying close attention to
the documentation that addresses these criteria.[26]
3.21
At the hearing, some members of the committee raised concerns about the
broad nature of the element of the new definition concerning 'Australia's
economic well-being' and, in particular, the approach of the IGIS in her role or
review of that element. An officer from the Department confirmed that this
element is not defined, but the intention is that it would not concern any
matters that are 'trivial' in nature. He emphasised that this phrase has been
used in the IS Act for over 10 years.[27]
3.22
Dr Thom described her approach to review in regards to 'Australia's economic
well-being' criterion:
[T]hat is ultimately a decision for the minister which I do
not inquire into. What I would look at is the sort of case that ASIO have put
forward, the information they have provided and, of course, the other agency
that is involved, be it a foreign affairs agency or a defence agency. Is the
information they have put forward to support the case balanced and thorough? Is
the case that is put forward firmly based on the information they have?[28]
Immunity provisions in the IS Act and the Criminal Code
3.23
Items 19 and 26 of Schedule 1 amend certain immunity provisions in the
Criminal Code and the IS Act, respectively, for clarification to ensure the
immunity provisions are not vulnerable to being inadvertently overridden by
subsequent Commonwealth, state or territory laws, unless that law expressly
states otherwise.
3.24
The Department's submission noted:
This provision 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. This limited immunity is
necessary as certain Australian laws, including State and Territory laws, could
impose liability on the agencies. The proposed amendment will not prevent other
laws from limiting this immunity. However, the amendment will ensure that any
such limitation cannot be done inadvertently, and will require express
consideration to be given to whether section 14 should be overridden.[29]
3.25
Subsection 476.5 of the Criminal Code provides immunity from civil and
criminal liability for staff members and agents of ASIS, DSD and DIGO for
computer-related activities carried out by the agencies in the proper
performance of their functions, which might otherwise be prohibited by the unintended
consequences of certain Australian laws. Item 19 of the Bill amends subsection
476.5 of the Criminal Code to ensure this immunity provision in not vulnerable
to being inadvertently overridden by subsequent legislation, unless the law
expressly states otherwise. [30]
3.26
The Department noted in its submission that this amendment mirrors the
immunity provision in section 14 of the IS Act, described above, so it is
desirable to maintain consistency between the two provisions.[31]
3.27
The Castan Centre for Human Rights Law considered that Items 19 and 26
are constitutionally unproblematic in relation to state and territory laws. However,
it raised concerns with the application to Commonwealth legislation:
While there is scholarly support for the notion that the Commonwealth
Parliament enjoys the power to require its own legislation to be amended, if at
all, only by express words, there are contrary opinions. Some commentators take
the view that a consequence of the Commonwealth Parliament's plenary
legislative power (as stated in section 51 of the Constitution, and of
course subject to the Constitution itself) is that the Parliament cannot
deprive itself of the power of implied repeal by provisions such as those that
items 19 and 26 would introduced into the law.[32]
3.28
However, the Department considered the Castan Centre's view of
constitutional complications arising out of Items 19 and 26 to be 'overstated':
The normal rules of statutory construction provide that an
earlier statutory provision is not repealed by a later provision unless an
intention to that effect is implied (for example, the provisions are not
capable of operating consistently). There is a general presumption that the
legislature intends that both provisions should operate and that, to the extent
they would otherwise overlap, one should be read as subject to the other.
The proposed amendments would make it clear that the
provisions are intended to prevail in the absence of an express contrary
provision. This makes the legislature's intention clear as to the intended
operation of the law. In the absence of clear indication by a later legislature
that it intends to displace these express provisions and impliedly 'repeal'
them, the proposed amendments to the immunity provisions may operate to affect
the question of precedence between overlapping provisions in relevant cases.
The proposed amendments will not prevent other laws from
limiting the immunity in these provisions as Parliament may choose to override
these immunities in appropriate circumstances. The immunity provisions are not
necessarily something that legislators would actively turn their mind to, and
the risk of inadvertently overriding these provisions could therefore arise.
However, the amendments will ensure that there would need to be a conscious
decision to do so and it would need to be made express on the face of the
legislation. This would ensure that any such limitation cannot be done
inadvertently.[33]
ASIO computer access warrants
3.29
Item 4 of the Bill amends the ASIO Act to clarify that computer access
warrants authorise ongoing access to the computer during the life of the
warrant. The EM notes that this amendment updates the language to ensure
consistency throughout section 25A and to make clear the original legislative
intent of the section.[34]
3.30
The submission of the Attorney-General's Department highlighted the
existing safeguards concerning computer access warrants:
These amendments will not impact on the strong existing
safeguards that ensure computer access warrants are only authorised in
appropriate circumstances. A computer access warrant can only be issued by the
Attorney-General in the prescribed circumstances set out in the provision –
that is, the Attorney-General must be satisfied that there are reasonable grounds
for believing that access by ASIO to data held in a particular computer will
substantially assist the collection of intelligence...in respect of a matter
that is important in relation to security. Additionally, the Attorney-General's
Guidelines, issued under section 8A of the ASIO Act, require that 'any means
used for obtaining information must be proportionate to the gravity of the
threat posed and the probabilities of its occurrence', and 'using as little intrusion
into individual privacy as is possible'. When a warrant is issued, the Director-General
is required to report to the Attorney-General on the extent to which the warrant
assisted ASIO in carrying out its functions.[35]
3.31
Dr Dan Svantesson raised concerns that the proposed amendment concerning
computer access warrants may be inadequate as it limits access to the computer
the warrant relates to, but not other possible data that may be associated with
that computer through a 'cloud computing' arrangement.
A focus on such data risks becoming outdated in light of fast
advancing cloud computing services. With cloud computing, person X's data will
simply not be stored as such on person X's computer and a warrant to access
data stored on that computer will be of limited value.
Imagine, for example, that a warrant is issued in relation to
Mr X's computer (the "target computer"). Imagine further that, in
accessing that computer it becomes clear that no substantial data is stored on
the computer as Mr X uses a cloud computing structure for all his work. As the
warrant is limited to Mr X's computer, it would seem that access would not be
allowed to the cloud computing storage even if, for example, Mr X has stored
his log-in details for that service on his computer.
Furthermore, under a cloud computing structure, it may not be
possible to know in advance on what particular computer data is stored.[36]
3.32
In a supplementary submission, the Department addressed Dr Svantesson's
concerns:
The Bill
will amend paragraph 25A(4)(a) of the ASIO Act to replace 'stored in the target
computer' with 'held in the target computer at any time while the warrant is in
force'. This amendment is not intended to change the law, but rather to clarify
the intent of the provision and ensure consistent language is used throughout
the provision.
The scope
of this amendment is to clarify that the intention was to authorise access to
data held in the target computer at any time while the warrant is in force.
This makes clear that the provision is intended to authorise access to data
that is held in the target computer during the life of the warrant, and is not
limited to data held at a particular point in time (such as when the warrant is
first executed).[37]
3.33
The Department also expanded upon the definitions within the ASIO Act
that deal with computer access warrant provisions:
Section 22 of the ASIO Act provides a number of definitions
for the purpose of interpreting the computer access warrant provisions under
section 25A of the ASIO Act. These definitions are technologically neutral and
provide authoritative and useful definitions for ASIO in the exercise of its
powers under section 25A. The definitions are wide enough to include various
aspects of a computer and types of data. Under section 22 of the ASIO Act,
computer means 'a computer, a computer system or part of a computer system'
while the definition of data 'includes information, a computer program or part
of a computer program'.[38]
Committee view
3.34
The committee acknowledges that some submissions and witnesses raised
important issues regarding certain proposed amendments in the Bill,
particularly Items 3, 7 and 13 of Schedule 1 which will enable ASIO to
collect a broader range of foreign intelligence than is currently possible. However,
the committee believes that the proposed amendments are necessary to ensure that
ASIO is able to respond to modern national security threats which encompass
both state and non-state actors. Further, the committee agrees that the Bill's
proposed measures will provide for a consistent approach across relevant intelligence
agencies in Australia.
3.35
The proposed amendments to the ASIO Act relating to foreign intelligence
will allow ASIO to fulfil its intended role of complementing the foreign
intelligence function of other intelligence agencies. The committee has confidence
in the integrity and conduct of ASIO in relation to any collection of foreign
intelligence under the proposed amendments, and is of the view that the
expansion of ASIO's powers in this regard are necessary to enable it to
continue to act lawfully in dealing with the changing nature of potential
security threats to Australia.
3.36
In that context, the committee notes assurances by the Department as
follows:
In exercising their powers, agencies are necessarily focused
on performing their statutory functions and they do not have the resources or
legislative mandate to engage in unwarranted or lower level activity. Agencies
would only look into matters of high importance to the national interest...[and]
relevant safeguards...ensure the propriety and legality of ASIO's exercise of
their functions and powers, including the monitoring, inspection and inquiry
powers of the IGIS.[39]
3.37
The committee agrees that the proposed amendments will improve the
practical operation of some key provisions in relevant legislation, while
maintaining sufficient safeguards where appropriate. In addition, the committee
has confidence that the oversight by the IGIS to review the legality and
propriety of activities of agencies within the Australian intelligence
community, including monitoring, inspection and inquiry powers, is a sufficient
and appropriate safeguard.
3.38
The measures in the Bill should be considered as key priorities in the
current security environment, and the committee believes the Bill should be passed
in a timely manner to ensure Australia's security and intelligence agencies
have the ability to respond to the changing nature of threats to national
security as soon as possible.
3.39
As a final point, however, the committee expresses its disappointment
with the overall quality of the Explanatory Memorandum (EM) produced to
accompany the Bill. The lack of detail in the EM, particularly in relation to
the proposed foreign intelligence amendments, did not assist the committee in
undertaking its consideration of the legislation. The EM does not provide a
detailed explanation of the need for the provisions and how the expansion of
ASIO's powers will assist it and other foreign intelligence agencies to perform
their functions, nor does it mention the safeguards in place that will ensure appropriate
use of the enhanced powers.
3.40
Given the opposition to the foreign intelligence provisions by a number
of submitters and witnesses, this is a significant omission, and it would have
been of great assistance if a more comprehensive explanation had been provided
in the EM. The information subsequently provided by the Department to the
committee (particularly in its second supplementary submission) was extremely
helpful and, in the committee's view, should have been included in the EM in
the first place. The committee recommends that this oversight be corrected
immediately by way of revision and reissue of the EM to include all additional
information provided to the committee during the course of the inquiry which
relates to the proposed foreign intelligence amendments contained in the Bill.
Recommendation 1
3.41 The committee recommends that the Attorney-General's
Department revise and reissue the Explanatory Memorandum to the Bill as a
matter of urgency to specifically include all additional information contained
in the Department's submissions to this inquiry which relate to the proposed
foreign intelligence amendments in Items 3, 7 and 13 of Schedule 1 of the Bill,
including:
- detailed justification and explanation of why the amendments
are considered necessary;
- specific examples of how the expansion of the definition of
'foreign intelligence' will assist ASIO and other foreign intelligence agencies
to perform their functions; and
- an explanation of the safeguards in place to ensure
appropriate use of the foreign intelligence collection function.
Recommendation 2
3.42
Subject to Recommendation 1, the committee recommends that the Senate
pass the Bill.
Senator Trish
Crossin
Chair
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