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Parliamentary Joint Committee on Intelligence and Security
National Security Legislation Amendment Bill (No. 1) 2014
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Parliamentary Joint Committee on Intelligence and Security
Byrne, Anthony, MP
Wong, Sen Penny
Fawcett, Sen David
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Content WindowParliamentary Joint Committee on Intelligence and Security - 15/08/2014 - National Security Legislation Amendment Bill (No. 1) 2014
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HARTLAND, Ms Kerri, Deputy Director-General, Australian Security Intelligence Organisation
LOWE, Ms Jamie, Acting First Assistant Secretary, National Security Law and Policy Division, Attorney-General's Department
RAYMOND, Ms Christina, Senior Legal Officer, National Security Law and Policy Division, Attorney-General's Department
WILLING, Ms Annette, National Security Legal Adviser, National Security Law and Policy Division, Attorney-General's Department
CHAIR: Welcome. Although the committee does not require you to give evidence on oath, I remind witnesses that this hearing is a legal proceeding of parliament and warrants the same respect as proceedings of the House itself. The giving of false or misleading evidence is a serious matter and may be regarded as contempt of parliament. The evidence given today will be recorded by Hansard. Do you wish to make some introductory remarks before we proceed to questions?
Ms Lowe : The Attorney-General's Department welcomes the opportunity to appear before the committee here this morning. The bill that we are talking about implements the government's response to the recommendations in chapter 4 of the committee's 2013 report on potential reforms to Australia's national security legislation. Essentially the bill modernises and enhances the capability of our intelligence agencies to deal with the emerging and future security threats.
A major driver of these reforms is, as this committee has identified, the need to ensure that intelligence agencies maintain their capability to operate effectively in light of contemporary challenges, rapid developments in information and communications technology. This includes the use of such technologies by persons of security concern, both to organise and to evade detection. The government has accepted in full, or in part, 21 of the committee's 22 recommendations. Of the 22 recommendations accepted, the government has accepted 18 of these in full and three in part.
As detailed in the department's submission, the bill contains a handful of additional measures to the committee's recommendations, and these implement the government's intention that the bill should enhance intelligence agencies' capabilities. The major additional measure is in schedule 6 of the bill, where we amend the offences in the ASIO Act and the Intelligence Services Act concerning the unauthorised communication of intelligence related material by employees of intelligence agencies or others who are associated with these agencies in a specified official capacity.
I understand that submissions to this inquiry were scheduled to be published this morning. We have obviously not had an opportunity to review those in detail, but we will do so. We are here to assist the committee to the utmost of our ability, but, if there are questions that drill down into the detail of some of those submissions, it may be that we have to take those on notice.
I also want to mention that on 5 August—that is, last week—the Prime Minister, the Attorney-General and the Minister for Foreign Affairs made announcements about some other national security legislative reform in light of emerging security threats. That legislation is obviously not part of what we are discussing here today, so I will not be in a position to answer any questions on that.
Having not seen the submissions, we are still aware of some of the concerns that have been raised about some of the provisions in the legislation through public commentary and comment by stakeholders. In particular, these relate to the offences in schedule 6 of the bill, concerning the unauthorised communication of intelligence related material or unauthorised dealings with records of such information, together with the offence in schedule 3 relating to the unauthorised disclosure of information relating to operations conducted under the new special intelligence operations scheme. We are aware of suggestions that these offences could prevent or limit journalists, for example, from reporting on matters of national security or could preclude whistleblowers from making public interest disclosures about suspected instances of wrongdoing. Such concerns are based on a misunderstanding or a misinterpretation of how the provisions will operate. I would be happy to clarify—
CHAIR: Perhaps you could do that now.
Ms Lowe : Misunderstanding revolves around three particular issues with respect to those offence provisions: suggestions that the offences will prevent journalists from reporting on national security matters, suggestions that the offences will prevent whistleblowers from making public interest disclosures and suggestions that the proposed scheme of special intelligence operations in schedule 3 to the bill may be vulnerable to misuse in that such operations could be authorised for the illegitimate purpose of triggering the disclosure offences.
In relation to the first concern, the impact on journalists and media reporting of national security issues, the offences do not target journalists; they apply broadly and there are elements of them being designed so that they will not apply to legitimate reporting of national security matters—schedule 6 in particular. The offences in schedule 6 for the unauthorised communication or recording of information and unauthorised dealing with records are limited to persons who are in a specified form of relationship with the intelligence agency. The prosecution in that case would be required to prove that a person obtained the relevant information or record through their employment with an intelligence agency or under contract agreement or some other arrangements with that agency. It must then be established that the person's conduct in communicating information or dealing with a record was not authorised. Journalists are not, in their ordinary course of duties, likely to be in such a relationship with an intelligence agency under which they would obtain legitimate access to intelligence related information or records and, as such, those offences are very unlikely to apply to such persons.
In relation to the special intelligence operations—and I think this is where particular concerns have been raised—the new section 35P of the ASIO Act will create offences for the unauthorised disclosure of information about a special intelligence operation. Again, these offences are not intended to cover—and have, in fact, been intentionally designed so as to not cover—journalists who may report on an activity unaware that it is in fact a special intelligence operation. It is also important to point out that this is not a strict liability offence. The prosecution must still prove that the person who communicated such information was at the time of the communication reckless as to the possibility that the information related to a special intelligence operation. That is as a result of the operation of the Criminal Code, where the fault element of recklessness requires proof beyond reasonable doubt of two matters: firstly, that the person was aware of a substantial risk that the information related specifically to a special intelligence operation and, secondly, that the person nonetheless and unjustifiably in the circumstances took that risk of communicating the information.
It is also worth pointing out that there are comparable offences—in fact, almost exactly the same offences—in the Crimes Act in relation to Federal Police covert operations. There has been no suggestion that the way that those provisions in the Crimes Act have operated have been a practical problem for journalists to date.
Mr BYRNE: Accordingly, why not put that in the legislation? Why not put what you just said to this committee in the legislation?
Ms Lowe : The recklessness fault element, for example?
Mr BYRNE: No, the issue about the exemptions. You have given us an eloquent discussion which will reassure the journalists that are present behind me, but why are the exemptions for journalists et cetera not in the draft legislation?
Mr BYRNE: The exemptions for journalists et cetera—because that is the thing that is concerning the journalistic community. You have just given a good explanation. So my question is: could that not be included?
Mr BYRNE: Not exemptions—but the fact is that you have clarified where the areas of concern would be. Given what you have just explained, why could that not be incorporated into the legislation?
Ms Willing : I think part of the concern is that journalists are concerned that they could be caught under this provision if they are not aware of it. What Jamie has explained is that, even though it is not explicitly set out in this provision, it links back to the Criminal Code fault element which applies, so you do need that 'recklessness' element applying. So it is not required to be explicitly set out in that provision, but that is the way the offence would operate.
Mr BYRNE: So we should just rely on you giving us an assurance; is that what you are saying?
Senator WONG: Can I just clarify something. I understood 'recklessness' did not require actual knowledge—correct?
Ms Raymond : It requires awareness of a substantial risk.
Senator WONG: Okay. Can I just unpack this a little. Ms Lowe, you have set out a range of propositions. If someone is not aware that the information they have relates to an SIO, could they still be caught by these offence provisions?
Ms Lowe : It is unlikely, except to the extent that the circumstances are such that they would have been reckless as to whether the—
Senator WONG: Reckless as to what?
Ms Lowe : Reckless as to whether there was a substantial risk that the information specifically did in fact relate to a special intelligence operation.
Ms Willing : 'Recklessness' is defined in section 5.4 of the Criminal Code, and that is that you would be reckless with respect to that circumstance—that it relates to a special intelligence operation—if you were 'aware of a substantial risk' that it was a special intelligence operation and, having regard to those circumstances, 'it is unjustifiable to take the risk'.
Senator WONG: In other words, the answer to whether or not the offence could apply to third parties—it is not just journalists—who were not specifically aware that the information related to an SIO is that it might be asserted by law enforcement agencies that they should have been aware. Is that right?
CHAIR: Have there been any concerns around that definition as it has been applied in case history over the last decade?
Ms Lowe : No. As it has applied to controlled operations in law enforcement, no.
Senator WONG: But did they require a warrant? The AFP?
Ms Lowe : That is right.
Senator WONG: Is it a similar level of approval in relation to the [inaudible]—
Ms Lowe : Yes, it is an equivalent level.
Senator WONG: I go back to my original question, because it seems to me that is really the nub of some of the concerns which have been raised. I might be wrong and, as I said, I am new to this committee. But I understand your assertion to be that, because this essentially refers to the—was it the Crimes Act?
Ms Willing : The Criminal Code.
Senator WONG: the Criminal Code, a third party might be caught by the offences provisions in this schedule, even if they do not have specific knowledge that the information relates to an SIO, if they should have known, ought to have known, or were reckless as to whether or not it was. Please rephrase my words, but I think that boundary is something we need to understand.
CHAIR: If you could read the definition again, that would be good.
Ms Willing : They would be reckless if they were aware of a substantial risk that the intelligence related to a special intelligence operation and, having regard to the circumstances known to them, it is unjustifiable to take the risk. The special intelligence—
Senator WONG: There are two risks there that are being conflated. One is the risk that it is, and the second is the risk around disclosure. I do not even want to get to the second yet; I just want to understand the first. Do you have to know that the information does relate to an SIO or not?
Ms Raymond : Recklessness is less than knowledge, so you do not have to have actual knowledge, but you do have to have an awareness of a risk, so more than just a fleeting possibility—something quite substantial.
Senator WONG: The risk that the actual information relates to an SIO?
Ms Raymond : Did in fact, yes. I should just qualify as well that it is not simply that—the information related to any kind of intelligence operation—but that it related specifically to a special intelligence operation, so one that has been authorised under the provisions of schedule 3 to the bill.
Ms Lowe : On that particular issue or more generally?
CHAIR: More broadly.
Ms Lowe : Certainly other issues have been raised publicly—and by the Inspector-General, in fact, this morning—that I am happy to go to or to respond to questions.
Ms Lowe : One of the issues—and I think perhaps it goes a little bit to the questions that you have raised, Senator, as well—is about whether in fact the use of special intelligence operations can be misused in order to subsequently create a situation that would create a relevant offence for the purposes of reporting. There has been some suggestion of the possibility that special intelligence operations could be declared for illegitimate purposes. That is entirely inconsistent with the organisation's record of propriety in performing its functions, but there are also a number of very specific safeguards in the legislation that ensure that these special intelligence operations arrangements cannot be used in bad faith or for an ulterior purpose.
In particular, I draw your attention to proposed section 35C, where a special intelligence operation cannot be authorised unless the authorising officer is satisfied on reasonable grounds that such an operation would assist the organisation in the performance of a special intelligence function. That is where we come to equivalent authorisations and protections to the arrangements for the controlled operations in relation to the Federal Police. The authorising officer must also be satisfied on reasonable grounds that the circumstances are such as to justify a special intelligence operation. There must be a written record of that authorisation, documenting how the operation will assist the organisation in the performance of one or more of its functions. There is also a requirement that ASIO submit six-monthly reports to the Attorney-General and the IGIS explaining how the operation has in fact assisted the organisation in the performance of its functions. The Inspector-General would continue to have oversight of those arrangements.
One other question that came up this morning was with respect to the concept of an ASIO affiliate. Under the ASIO Act, nonemployees may exercise ASIO functions and perform services for ASIO if and when appropriately authorised to do so. The legitimacy of the actions carried out by an ASIO officer or an employee or any other person does not rely on them being an ASIO officer or employee and is in fact not being expanded. The term 'ASIO affiliate' is not designed to extend any powers or authorities conferred on persons who are covered by that term. Rather, it seeks to consolidate quite a diverse range of terms used throughout not only the ASIO Act but other legislation that references ASIO employment arrangements.
What it is intended to do is to have a term that in effect regulates the conduct of all of those people that could be captured under those terms. This includes imposing appropriate limitations on the scope of ASIO affiliates' authority by excluding them from being able to exercise certain powers, and so in some instances powers are only exercisable by ASIO employees; in others, the director-general has the ability to exclude certain ASIO affiliates, including classes of affiliates, from being able to engage in particular activities. So this term is subject to the duties, liabilities, obligations and prohibitions that already operate in relation to that person. So we view the use of the term as a way to enhance rather than diminish the safeguards in relation to the activities of these persons, because it is our view that the various terms that are scattered throughout the Commonwealth statute book in fact create some uncertainty, and so what we have sought to achieve here is some clarity and certainty.
CHAIR: Could you just expand on those various terms? What are you trying to bring together?
Ms Lowe : The director-general can employ officers. He can employ temporary and casual employees and determine their conditions. What we are talking about are people who perhaps are not captured by the term 'ASIO employee'. There is quite a lot of clarity there. There is no concern there. What we are talking about are those people who have other arrangements with ASIO that are not properly articulated at the moment. They may be contractors or secondees, and they may be other people who have—
Ms Lowe : Sources—arrangements other than employment arrangements, the more traditional employment arrangements with ASIO.
Senator FAWCETT: In all cases, would it be fair to say that for them to exercise that delegated authority they would have to be duly authorised to do so. Would it be clearer, in order to avoid some of the concerns that have been expressed, if you separated the fact that you are trying to have an overarching term for the various ways in which people relate to ASIO, whether as an employee, secondee, contractor et cetera, versus a linkage to the exercise of ASIO powers, such that you said 'duly authorised persons'. In that way it is very clear whether you are an employee, a secondee, a contractor, a source or whatever. You can only instigate the exercise of ASIO powers if you are duly authorised. Would that still meet the intent of what you are seeking to do but alleviate some of the concerns about this new term 'affiliate' being able to trigger the exercise of ASIO powers?
Ms Lowe : Rather than having the legislative terms, if you like, it allows the director-general to be able to carve out different classes of people and to provide the different authorities at that level. It has the same intent and purpose. Rather than being legislatively described, you have the 'affiliate' term and then, within that, the director-general can carve out—
Senator FAWCETT: So would 'duly authorised'. The director-general would still have complete control over what that authorisation contained and he or she could articulate, depending on what he wanted that person to do—
Mr «Irvine» : One of the things that I would be concerned about is developing a whole new realm of bureaucracy that would require us to have all sorts of graduated forms of authorisation. The biggest component of our so-called affiliates would be our sources. Rarely are these sources authorised to carry out the sorts of duties required under the act, but as affiliates we have obligations to them and they have obligations to us, as they are assisting us in our work. When it is necessary for one of those people to conduct an activity under the ASIO Act that does require special authorisation, they would automatically get it and they would get it now, regardless of the term we call them.
Mr BYRNE: Director-General, which category of affiliate could authorise ASIS to collect information or intelligence or task—
Mr BYRNE: You may not have seen IGIS's submission. IGIS basically puts that, under her interpretation of legislation, that could occur.
Mr «Irvine» : If we are talking about ASIS and collecting on behalf of ASIO, that is done at the request of ASIO and in accordance with ASIO requirements. I do not see any need to provide any further authorisation to any individual officer of ASIS. I would request—and it would be in the form of an authorisation to the Director-General of ASIS—to collect on our behalf. I do not see where there would be any further problem. The Director-General of ASIS would direct that collection activity in accordance with ASIS's operating procedures.
Mr BYRNE: One of the proposed changes is that you can authorise, or a member of your organisation can authorise, ASIS to collect information on Australians overseas.
Mr BYRNE: My question to you is: under the same provisions and, if IGIS has interpreted this, could an affiliate actually authorise ASIS to undertake collection of intelligence on the Australian community?
Mr «Irvine» : No, unless the affiliate were the director-general, a couple of deputy directors-general or maybe some first assistant directors-general. Under ASIS operations how ASIS would direct the collection of that information is not really a matter that I—
Mr BYRNE: No, but I specifically come back to ASIO and its affiliates.
Mr BYRNE: Subcontractor.
Senator WONG: Under the act, not as a matter of practice?
Mr BYRNE: Under the proposed changes?
Mr BYRNE: I am wondering whether AGD can help clarify that for us.
Ms Lowe : The ability to issues those authorisations is confined to particular roles. They are confined to the director-general and to his two deputy directors-general. The act would prohibit an affiliate being able to exercise those powers.
Mr BYRNE: So you are saying the affiliate could not exercise those powers?
Ms Lowe : No.
Mr «Irvine» : Unless that affiliate were specifically authorised. There may be a very senior seconded officer from another organisation and that person would automatically, by virtue of that secondment, have the delegation. I go through the delegations anyway. I do not see this actually as a problem.
Mr BYRNE: I cannot go into too much detail in terms of the discussion this committee has had in another place today, but it does cause the committee concern. Senator Fawcett has put forward a way forward. I might invite AGD to revisit this because, if it is causing the committee some concern and others who we have had a discussion with today some concern, then it should be a concern and should be clarified.
Mr BYRNE: I suspect I would have to have this discussion in private. We will have an opportunity to have a discussion in private. I think it would be appropriate if we left it to that discussion.
Ms Hartland : Once the individual is acting outside that contract arrangement or agreement that they had with ASIO they are no longer acting as an ASIO affiliate, they are no longer an ASIO affiliate. In the case of the cleaning people, once they are actually not—
Mr BYRNE: But the director-general could organise an affiliate to basically undertake that authorisation or to have some loose arrangement that that person could do that, and we do not know who that could be. There has been discussion. In terms of our concerns I think Senator Fawcett put a good way forward in terms of getting clarification because, mark my words, there is ambiguity in this and it is something—if I can speak on behalf of the committee, Chair—we would like to have clarified.
CHAIR: Senator Fawcett has put forward a way. I think what we need to do is have further discussions and take further evidence. I think we have been informed in part by the discussion already—
Mr BYRNE: Prior discussions.
CHAIR: but also from this discussion. I think we need to as a committee take further evidence.
Mr «Irvine» : I have been very clear in my own mind that the issue of commissioning, asking or instructing ASIS to collect intelligence on our behalf is something that is done at a very senior level and it is done at various levels of specificity as to the nature of the collection under the changes to the act but it would not require ASIO to dictate the method of collection, which would be conducted according to the rules and regulations that operate with ASIS, with the exception of the ministerial authorisation element.
CHAIR: Ms Lowe, I do not know if there are any further points from evidence that was given this morning that you would like to touch on before we go to general questions.
Ms Lowe : I think the only other category is the computer access points. There were quite a lot of questions this morning about that and there has been public comment outside of this morning's activities as well. One of the issues that has been raised was about the amendments to the definition of 'a computer'. The definition of a computer at the moment in section 22 of the ASIO Act is currently limited to 'a computer, a computer system or part of a computer system'. The bill will amend this to cover multiple computers, computer systems or computer networks or any combination. This is needed to provide certainty that networks and multiple computers and systems are covered. Such coverage is particularly important in light of the current technological developments and the rapidly evolving technology, which has led to widespread use of multiple computing devices and networked computer systems. That is the policy logic behind those amendments.
ASIO computer-access warrants presently authorise ASIO to access data held in a particular computer. As such, the warrant must specify the particular target computer, computer system or part of that system. Currently, where there are multiple computers being used by a person of security interest you would require multiple computer access warrants to obtain access to data relevant to the security matters held on those computers.
So it is more efficient, and better reflects the way computers are now used, for ASIO computer-access warrants to cover computer networks and to be able to specify the computers, the systems or the networks to which access is authorised by reference to a specified person or premises rather than a reference to the specific computer.
There were also some questions this morning about access to third-party computers or communications in transit in order to access data around a target computer. So technological advancements, again, have created some challenges in the execution of lawfully issued computer access warrants, especially where a person of security interest is security conscious. We are increasingly seeing examples of that. Security conscious people take steps to ensure that ASIO cannot directly access their own computer.
So the reforms that we have in the bill would, in limited and appropriate circumstances, enable ASIO to be authorised to use a third-party computer or communication in transit for the specific purpose of obtaining access to data relevant to the security matter being investigated. A really important distinction to make is to distinguish between the data on the target computer and the data on the third-party computer. It is the data on the target computer that is of interest; it is not the data on the third-party computer that is of interest. In any event, accessing the data of the target computer will still require a telecommunications interception warrant. Here we are creating a mechanism whereby the target computer can be accessed. So, effectively, it is a means to an end, making use of a third-party computer to access the target. The content of the third-party computer is not accessed under this system and could not be accessed under this system. In fact, it is of no interest to the organisation.
I think there has been some misunderstanding about that so I thought it was important to clarify that it is not the intention and it would not operate so that the content of the third party computer would be accessed under these arrangements.
CHAIR: When you talk about networks, the network is used solely to target the computer that is the matter of interest.
Ms Lowe : Yes.
CHAIR: That is why you need the broadening of that term. It enables you to have another method of accessing that computer.
Ms Lowe : That is correct.
Mr BYRNE: Could you give an example?
Ms Lowe : An operational example?
Mr BYRNE: Okay, we can add that as another point. We will have a wonderful private conversation. But you can see that there are people that have made submissions that are concerned about the protections for those third parties and computer networks if they are being accessed. What are you saying to the people who have those concerns?
Ms Lowe : If the concern is that their content is being accessed, these amendments do not change current arrangements.
Ms Lowe : That would not be legal. There would still be a requirement for a telecommunications interception warrant. So, if that is the nature of their concerns, this does not change the current legal arrangements by which we can access—
Mr BYRNE: You talk about material damage. Could you clarify exactly what that means?
Ms Lowe : Certainly. The amendments will allow ASIO to undertake acts, authorised by a computer access warrant, that are likely to cause an immaterial interference, interruption or obstruction to a communication in transit or the lawful use of a computer or are likely to cause any other immaterial loss or damage. It will allow ASIO to undertake acts that are likely to cause—
Mr BYRNE: Could you define 'material' please, Ms Lowe?
Ms Lowe : Sorry—a material interference, interruption or obstruction is an interference, interruption or obstruction that goes beyond minor interferences.
Mr BYRNE: So how are we going in terms of material?
Ms Lowe : Material interference would be extremely rare and only occur where necessary, so it is not just a matter of convenience but would have to be necessary for the execution of the warrant. An immaterial interference could include, for example, using a minor amount of storage space or bandwidth as a result. Material and immaterial damage have the usual meaning. Perhaps you could explain.
Senator FAWCETT: So what you are describing there as immaterial is that a keen gamer would find that his reaction time might slow down a little bit?
Ms Lowe : A little bit slower, that is right.
Senator FAWCETT: But you would not expect any blockage of service in terms of access to servers, email not working et cetera—so no observable difference to the use of the computer. Would that be another way to say that anything that is not observable becomes material? I am struggling a little bit to understand your threshold there.
Ms Lowe : I do not think I would link it to observable, but material and immaterial have a normal usage in everyday language. Whether it is observable or not may be an indication, but I would not link it specifically to that.
Ms Lowe : I think that would be the way of explaining it.
Senator WONG: You have just said that, because that is your view, but that is not what the bill says, correct?
Senator WONG: I am happy if the government want to suggest some indication of that in the EM, but with respect—it is a lawyer's definition—something is material if it is not immaterial, but does it actually assist in terms of the public policy questions there?
We are conflating a couple of aspects of the bill. One is the definition of computer, which extends to computer network, and the second was the access to third parties. I appreciate, Mr «Irvine» , you have not had the opportunity to read the IGIS submission yet, because we only published it today, or did you have access to it previously?
Senator WONG: Subject to what my colleagues think, it might be useful. There are a number of suggestions in that around oversight, data, provision of information by ASIO, which I think we would benefit from your reaction to. My suggestion would be, in the interests of time and of giving you the opportunity to consider it, it might be useful to do so either orally or in a supplementary submission. I think it would be useful.
Senator WONG: But, if you do not mind, there are a couple of things I do want to put to you on this. In relation to changing the definition of 'computer' to reflect the reality of computer networks and systems, IGIS makes this point:
There is no obligation in the current or proposed legislation that would require ASIO at any point in time to actively consider whether information obtained under such a warrant is actually related to the individual who was the subject of the warrant and no obligation to promptly delete information generated by or about individuals who are not relevant to security.
Ms Lowe, I find it a little hard to reconcile what you just said to the committee, which is, 'We are not interested in other computers,' with that assertion. Perhaps you could explain the difference.
Ms Lowe : When I was saying that we are not interested, it is in terms of content. This does not change the ability to access the target computer, to make use of a third-party computer to access the target computer. This does not change the arrangements by which ASIO would be able to access content. But there are other arrangements in place that would apply generally anyway in relation to ASIO's requirement to make sure that it does not retain information irrelevant to whatever the particular matter is in question.
Senator WONG: That is a second point I was going to make and I will come to that again. But my first point was that you are saying, 'We are not interested in content,' but what we have been told in this submission is that you might have information obtained under such a warrant—this is a warrant which reflects the new definition of computer—and there is no obligation for ASIO to consider whether that information relates to the individual who is the subject of the warrant and no obligation to delete any information generated about individuals who are not relevant to security.
Senator WONG: Sure, but we are legislators. Is there a reason? Was there a conscious decision not to reflect that practice in the legislation? Perhaps that is a better way to ask the question.
Ms Willing : There is a current provision in section 31 of the ASIO Act at the moment that applies to all material collected by ASIO under whatever power it uses, and that would apply in this situation as well. So if the director-general is satisfied that the record or information is no longer required—
Senator WONG: Yes, but that consideration is not an obligation. That is discretionary. We had that discussion. The scope of that provision does not require the DG to consider that. If he or she did so, they could make a decision to delete. That means there is a set of information which has not been the subject of such consideration which can be retained even though it may not be relevant to security issues. Was that intended?
Ms Willing : No other specific provision has been put in there. We are using this provision that currently operates for the way ASIO obtains other information as well. So ASIO may have practices that require them to—
Senator WONG: Do better?
Ms Willing : They do have guidelines as well that require them to use as little intrusion as possible.
Senator WONG: But it is a matter of principle. Mr «Irvine» , presumably you do not want the power to retain, or you would have no concern about reflecting the practice you described in a more formal way?
Mr «Irvine» : I have no problem with the application of section 31, which I regard as requiring me not to retain information which is not relevant to the security purpose. If you want to put an additional rider in here, I must say I would regard that as umbrella coverage for the whole organisation in all of our activities.
Senator WONG: Perhaps AGD and ASIO could look at that part of the IGIS submission in particular, because I think—
CHAIR: The requirement in section 31 of the ASIO Act, which applies to all ASIO warrants, including computer warrants, is only that in circumstances where the director-general has chosen to actively consider if a particular record is required for ASIO functions and is satisfied that it is not then the record is to be destroyed. There is no obligation to undertake such a consideration. That is in the IGIS submission.
CHAIR: Yes, absolutely. This is on the premise that you have not had a chance to see this.
Senator FAWCETT: I will start off with some questions on the use of force. In your submission you said the recommendation was supported in part and you have included in there the option for use of force against a person. Your accompanying text in the table says:
ASIO would generally be assisted by law enforcement officers for this purpose and those law enforcement officers would rely on the power conferred by the ASIO Act warrant to use reasonable force.
The way I read the original EM and legislation was that we were giving ASIO officers power to use force against a person if necessary—somebody standing in front of the filing cabinet or whatever. But the way this is written almost indicates that you are seeking to extend the coverage of the ASIO Act to law enforcement officers. So I have two questions: (1) can you clarify the intent and (2) if the intent is for ASIO officers to exercise the use of force against a person, can you tell me whether they currently have any situations where they are authorised to do that and therefore there is a training and monitoring regime around the use of force and, if not, what would you put in place to cover this?
Mr «Irvine» : Perhaps I will start and then I will hand over to the experts. Currently, if the Australian Federal Police wanted to carry out a warrant in a search and enter operation, perhaps with some assistance from ASIO, but were to do so under the law enforcement warrant process, the police carrying out that activity would have the ability to use an appropriate level of physical force. We carry out similar sorts of activities under our own warranted processes and we frequently have the assistance of law enforcement in doing it. At the moment, we as ASIO officers cannot use force, but nor can the AFP because it is under an ASIO warrant and not a law enforcement warrant.
So what we are essentially seeking is that, where you have those sorts of warrants from ASIO, there be a power for use of appropriate physical force. In most cases—I am talking practical operations here and not the letter of the law—if that power were granted under an ASIO warrant it would still be the properly trained and qualified police officers who would carry out that physical activity. There would or there could, however, be occasions when police officers were not present, and that would then require, if it were absolutely essential, ASIO officers to carry out such an activity. I accept that this will require an appropriate level of training for those ASIO officers involved in such operations.
Ms Lowe : That is right. The use of force attaches to the execution of the warrant. As the director-general has explained, in practice that is often the AFP assisting ASIO in executing a warrant. The Federal Police have the power to use force under their normal arrangements. When they are executing an ASIO warrant, that capacity is constrained. So the effect of these amendments to the legislation will be to address the two circumstances the director-general described: (1) effectively giving the AFP, in executing ASIO warrants, the powers that they would have had anyway but that have been constrained by the operation of the law; and (2), in those exceptional circumstances where the ASIO officer is required to execute a warrant alone and needs to use reasonable force in that circumstance, giving ASIO those powers. And, as the director-general has explained—and going to your question—that will require additional training for ASIO officers.
Senator FAWCETT: Given that currently even the AFP are constrained if you cannot exercise force, clearly there is a large measure of effectiveness even without the requirement to use force against a person. If legislation were put in place saying that. under an ASIO warrant, AFP or state police forces could use force against a person, that is clearly a large step forward from where you are. In a resource-constrained environment, what is the business case, if you like, for taking on the training, monitoring and reporting burden for what you are saying is going to be in exceptional cases where ASIO personnel, as opposed to the accompanying law enforcement officers, would need to use that?
Mr «Irvine» : Simply that there may be operations with a particular level of sensitivity or whatever that it would not be appropriate to have law enforcement along. I agree with you that that would be a relatively limited number of occasions, but I cannot rule them out. I am just trying to think in my own mind the extent to which we have done such activities in the past without law enforcement. Nevertheless, the occasion, I think, has arisen and could arise again.
Senator FAWCETT: Are you talking about having a small group within ASIO that would be authorised to exercise these powers or are you saying that every ASIO officer would have a level of training in this?
Mr «Irvine» : No, I think it would not be appropriate and, as you say, it would not be cost efficient to have every ASIO officer trained in that way. It would need to be a special category of officer.
Senator FAWCETT: Chair, I have other questions, but I think Senator Wong has some questions on this.
CHAIR: Yes. Senator Wong.
Senator WONG: Actually, Senator Fawcett asked it and I just want to explore it a bit more. I understand that there are some issues around the powers of law enforcement agencies, but I have to say that the question that was asked is the one that I would press, which is: why not just deal with those issues? Surely there are other ways of dealing with operations of a particular sensitivity. Let us start from the beginning: this is a new power for ASIO, correct?
Ms Willing : Actually, at the moment, the use of force can be used in the execution of warrants. What the change is doing is just making it clear that it does cover the use force against persons.
Senator WONG: Okay. So you are asserting that. The IGIS says 'my view':
My view is that the ASIO Act does not currently authorise the use of force against persons in the exercise of a search warrant and that this would therefore be a new power.
Senator WONG: Sure.
Ms Willing : So, at the moment, you can use force that is necessary and reasonable to execute the warrant. What the IGIS is saying is that it is not explicit in here that that covers persons—
Senator WONG: True.
Ms Willing : which we would agree with.
Senator WONG: Sure. But, for the purposes of the legislation, the view that is before us is that, if that is included, this would be a new power. This committee also—prior to my membership, obviously—has recommended against such a power. It recommended, as I understood it, a power in relation to property et cetera but not persons. Within our system, people understand law enforcement agencies are able to use force, and there are a range of practices and safeguards and a legislative framework et cetera that deal with that. So, what is the actual issue we are trying to resolve here? As I understand your evidence, Mr «Irvine» , it is for highly sensitive operations where you do not want to involve law enforcement agencies; and is this the only answer to the—
Mr «Irvine» : No. Let me try to put it as clearly as I can. Currently if an activity is carried out, with or without the assistance of law enforcement, there is debate over whether or not physical force can be used when that activity is carried out under an ASIO warrant. If the same activity were carried out under a law enforcement warrant there would be no debate; there would be no ambiguity. At the present time the law is not specific as to whether that physical activity can be carried out against a person or an object.
Mr BYRNE: Have your ASIO officers in the past used force against a person in any execution of a warrant?
Mr BYRNE: But not against the person?
Senator WONG: I understand that I think, which then goes back to Senator Fawcett's question. It would be possible to resolve the scope of warrant issue in relation to law enforcement agencies. I think that is less where the concern has been raised. Isn't the concern in relation to ASIO officers?
Mr «Irvine» : The initial concern was actually in relation to the 90 per cent of cases that we carry out where the police are operating under an ASIO warrant cannot use physical force against the person. It would very much help us if the law could be clarified as to whether, as it is currently written, it applies to people and materials—
Senator WONG: I understand the 90 per cent. It is the 10 per cent. What is the rationale for that?
Mr «Irvine» : The rationale is exactly the same for using physical force whether it is a law enforcement activity or an ASIO activity conducted with the assistance of law enforcement. I am saying that the need to do it may still be there if law enforcement is not involved. That might be 10 per cent of our warranted activities in that area.
Senator WONG: Sorry, maybe I am misunderstanding. If the issue of whether or not an ASIO warrant authorises law enforcement agencies to exercise force against a person is resolved, what is the residual rationale for ASIO officers being authorised to exercise force against a person?
Senator WONG: And what is the rationale for that?
Mr BYRNE: Would it help also if we added that to the bucket of private conversations that we will be having? I am not necessarily satisfied with what I have heard and there are probably some more questions I would like to ask but I do not think you can really answer in a public hearing.
Mr BYRNE: As you are aware, our committee previously was not comfortable with the use of force by an ASIO officer against the person. I still remain unsatisfied. There are some questions I have to ask you, but I think it is safer to ask those questions in a private hearing with you to clarify my concerns.
CHAIR: We have scheduled a private hearing, so we can move on.
Senator FAWCETT: Recommendation 37 went to the issue of evidentiary certificates. I believe I have an understanding of what they are for, which is to protect the people and the operational techniques et cetera in gathering data. IGIS gave us evidence this morning that IGIS do not have any oversight or any checking on those certificates that are presented to the courts. What independent check is there on the documents that are presented to the court as evidence obtained in accordance with compliance with warrants, all your due processes et cetera?
Senator FAWCETT: I do not think it was could not; I think the answer was they did not. They said that was an Attorney-General's function to process, and I understand the process of getting that information to the courts. My question is that, in broad terms, A-G's and ASIO are the same organisation, so in terms of—
Senator FAWCETT: Well, you are sitting here today collaboratively presenting the case for why we should adopt this legislation. I am looking at it from the point of view of having an independent check and balance over each element of the process and in terms of presenting to the courts a document that says. 'We are not going to tell you how this evidence was collected or who collected it, but trust us, it was all above board.' Where is the independent check and balance in that process?
Mr «Irvine» : If I understand you correctly, on the one hand you are making a distinction between the role the IGIS would have after the event in conducting the normal activities of the IGIS in respect of certificates and so on; and then, on the other hand, that somehow the courts will be more convinced of the validity of the processes and of the requests made in the certificate if it has the IGIS's imprimatur.
Senator FAWCETT: What I am more concerned about is that, if we are to maintain the confidence of the community that everything that we collectively as government and you as a government agency are doing is above board and is compliant with all the checks and balances the government wants in place, we have one process whereby, after the execution of a warrant, ASIO reports back to A-G's and says, 'Here it is,' and part of IGIS's process is to review that and understand what has occurred. Then we have separate process whereby, I am assuming, using that basis of data, a separate evidentiary certificate is produced for the court that then gives the court a sign-off to say, 'The evidence you are being given was collected in an appropriate and duly authorised manner, but we are not going to disclose publicly anything about it.' All I am asking is: what are the processes in that line of activity that give the public confidence that what is presented to the court has the same level of integrity as what IGIS has checked off in terms of your general approach?
Mr «Irvine» : Is that the public confidence that is required in this case or is it the confidence of the court, and does the court itself have the capacity to test the validity of the evidentiary certificate and the processes that went into it? I would have thought that that would be, in a sense, the function of the court. We can tell you about the processes we go through to ensure that a request for protection from an evidentiary certificate or whatever is a very thorough and detailed one.
Mr «Irvine» : I am happy for you to take that on notice if you could provide it to the committee—and if you want it in camera, that is fine. I think it is important that we establish that there is a process and that the committee is satisfied that due diligence is done on that so that we can put our hands on our heart when we make recommendations to government to adopt the legislation that all those parts are in place.
Senator FAWCETT: I am more than happy to accept that. I just think we need to be able to sign off and then say that we have seen it and understand it.
Ms Lowe : I think it is also important to recognise that they are in fact two separate processes. The processes by which the information is collected, the activities of ASIO that go to the evidentiary certificate, remain available for scrutiny by the Inspector-General, and whatever existing oversight arrangements relate to the activities of ASIO continue to operate. The scrutiny of the evidentiary certificate is a matter properly for the court and so the Evidence Act would still apply—for example, assessing whether the probative value outweighs any prejudicial value; that would still be a proper activity of the court. So what sits behind it—the activities of ASIO that go to support the evidentiary certificate—would still remain open to scrutiny under existing arrangements.
Senator FAWCETT: I have one last question, and I am conscious that other people probably also have questions. I want to come back to this issue of 'reckless' again and perhaps present you with two scenarios, just to see if I can get my head around it. If you had a journalist who was covering an event—say a riot or something occurred, and everyone knew there had been a police operation and they rolled up in their TV van—that would strike me as a journalist with no real insight into it; they are just covering an event, and if they inadvertently disclosed something, I think that would be a fairly fair defence that they were not being reckless; they could not have been expected to understand. But if you had an investigative journalist who, for a matter of months, had been following an issue and trying to understand what governments were doing et cetera, even though they did not have specific knowledge, then, in that scenario, would that be where they would be in danger of being reckless, because they are actually specifically looking to understand what might be occurring? Is that where that boundary might lie?
Ms Lowe : Ultimately it would be a matter for the police and the DPP as to whether to pursue a prosecution, and a matter for the court to assess where that lies, and it will very much go to the specific facts of a particular circumstance. I am cautious about applying a hypothetical scenario to that concept of recklessness. Recklessness is not a low threshold by any means. There would be difficulty in inadvertently or accidentally crossing that threshold. Recklessness still requires a degree of understanding of the circumstances in which the person is involved. But I am a little bit cautious about applying that to a hypothetical situation, because it would very much go to the particular facts of the case. Certainly the first example that you gave, where somebody just turned up, would clearly sit outside—
Mr BYRNE: What about a whistleblower? What protections would you have for them?
Mr «Irvine» : A whistleblower has all of the protections that currently exist under the whistleblowing act and then, as it relates to intelligence officers and the publication of classified material, the whistleblowers act provides an avenue for that whistle to be blown without necessarily compromising classified information.
Mr BYRNE: So these new provisions—
Mr BYRNE: will not basically then weaken the whistleblower act?
Mr BYRNE: That is an important distinction to make.
Ms Lowe : That is right. So it is the Public Interest Disclosure Act—that is the relevant act in relation to whistleblowers, and this does not affect or impact upon the operations as set out in that.
Mr BYRNE: So if an agent or someone goes to IGIS, for example, and discloses classified information or operational information—
Senator WONG: They are not currently covered by the PID Act, though, are they—intelligence officers?
Ms Willing : They can disclose to the Inspector-General.
Senator WONG: They can? Only to the IGIS.
Ms Willing : Yes, and to the agency head.
Senator WONG: Can I go back—and, again, I apologise because I am new to the committee. Ms Lowe, as I understand it, these sets of amendments are grounded in the previous recommendation of the committee to create an authorised intelligence operations scheme subject to similar safeguards and accountability arrangements as apply to the AFP. And I put that to you, and you said: they are the same, or they are analogous.
Senator WONG: IGIS's submission says:
Unlike the scheme that applies to police, the proposed scheme for ASIO has no external authorisation requirement, less likelihood of judicial scrutiny and no detailed reporting requirements.
I find that hard to reconcile with the evidence you gave. Actually, it was not your evidence; it was AGD's. But I am happy to listen—
Senator WONG: Well, if you are going to do that, one of the things I think would be useful to be clear about is the rationale as to their necessity—
Senator WONG: The IGIS evidence that I just read out does not seem to me to be consistent with the evidence you gave earlier.
Ms Lowe : When I was describing that, it was analogous in terms of the process and the thresholds for obtaining it in the first place. So authorisations, for example, are analogous in both organisations. I was not going to the—
Senator WONG: Is there an external authorisation requirement; is there less likelihood of judicial scrutiny; and is there no detailed reporting requirement?
Ms Lowe : There is less likelihood of judicial scrutiny.
Senator WONG: Obviously.
Ms Lowe : Obviously that would be the case, because it is for different purposes.
Senator WONG: There is no external authorisation. Is that right?
Ms Lowe : That is right.
Senator WONG: And there are no detailed reporting requirements.
Ms Willing : There is a requirement to report every six months.
Ms Lowe : That is right.
Senator WONG: No. There were three propositions I put to AGD, not just the external approval. I will go through it again if you wish. I am putting a proposition to you, and I would like to understand your response. Are those three 'safeguards'—for want of a better generic term—greater in relation to the AFP controlled operations regime than in relation to the SIO's regime under this legislation?
Ms Lowe : I certainly think that is true with regard to the external authorisation. I agree with your proposition. With regard to judicial scrutiny I think that is a matter of practice in terms of the purpose for which the activity is conducted. We do have reporting arrangements.
Senator WONG: Are they less detailed than are required in the AFP? You can take the question on notice.
Ms Lowe : Yes. I think I would like to take that on notice.
Mr «Irvine» : That is fine, Senator. I will only give a partial explanation now. I am very happy to go into much greater detail in camera. For many years, ASIO has conducted covert operations using sensitive and secret sources. For a very long time there was never really any question, in terms of the activities that ASIO was conducting and the sorts of threats that we were dealing with, that it would become necessary, as part of our activities, for our officers or sources to 'sail close to the law'—close to breaking the law.
Once, however, you get into counterterrorism—and, indeed, some counterespionage activities—these days, effective intelligence collection may involve, for example, the penetration of prescribed organisations, membership of which is against the law, and/or may involve some other activities that could be against the law. The only reason for introducing this concept of special operations was to remove the levels of ambiguity that we have been operating under for some considerable time.
My view was that if parliament and the law authorities were prepared to live with that ambiguity we did not need to do anything. But there is, I think, a level of obligation that we owe to people—people who go to very, very great risks on our behalf—that they are not going to then get beaten over the head for some minor misdemeanour or whatever conducted in the course of their business. This was to give them a level of protection. It is to give them a level of protection in those—I have to say it—relatively rare cases, when there is ambiguity about the legal status of what they are doing.
In order to address this ambiguity we looked at the concept of controlled operations as carried out by law enforcement throughout Australia and thought that we could develop a similar scheme, which would give comfort to some of our officers and some of our sources. Currently all of those operations are being conducted on the authority of the director-general. One of the reasons that they are being conducted on the authority of the director-general is that that is the whole nature of the ASIO Act and the whole nature of an act that governs a security intelligence service. Associated with that is that sometimes the extreme sensitivity of what you are doing needs to be held very closely. Up until now the act has put its trust in the director-general to conduct the activities appropriately. I for one did not see any need, with something that we have been doing, simply in order to clear an element of ambiguity, to now bring in a judicial or external level of approval.
Senator WONG: That is interesting. Can we go to 35P, the offences? We have heard some questions about that. This is the recklessness issue. Can you explain why 35P is needed over and above existing provisions, and is it schedule 6 under which there are additional requirements in relation to the protection of information? What is the additional need for 35P over and above what is in the act and other parts of legislation?
Ms Willing : It is mainly because of the special nature of special intelligence operations and that it will involve people whose lives are at risk. That is the primary purpose for it. It does not apply to just any of ASIO's activities; it applies specifically to those special intelligence operations. There is a similar provision in the controlled operations regime for the police as well, for the same kinds of reasons. It is thought that that kind of information is particularly sensitive. There is a similar provision also in another part of the ASIO Act which relates to ASIO questioning and detention warrants. So there are precedents for it.
Senator WONG: For an SIO the oversight regime is D-G to minister and IGIS—is that right?
Ms Lowe : That is right.
Ms Hartland : I think the D-G or one of the two DD-Gs, the deputy directors-general, can approve.
Senator WONG: Can approve an SIO?
Ms Hartland : Yes.
Senator WONG: When is the minister involved—at the beginning or at the end?
Ms Hartland : That is just in oversight, in terms of six-monthly reporting. Can I just clarify that under the law enforcement regime if there is a controlled operation that is three months or less, that is an internal authorisation. It is just when it goes over a three-month period that the AAT is involved. In that way the regimes are similar in terms of internal authorisation, but then they have a point at three months.
Ms Hartland : From a security point of view.
Senator WONG: We focused on recklessness, but that is one aspect of a broader set of concerns that have been raised about the offences provision. I do not know whether ASIO or you, Ms Lowe, have looked at a number of those submissions, including from media organisations and others.
Ms Lowe : No, they have not been published.
CHAIR: We have only just published them. At this morning's hearing, the authorisation—
Senator WONG: It might be useful for that to be explored.
Mr «Irvine» : I would be really interested to know whether those submissions also objected on the same grounds to the provisions for controlled operations under the Crimes Act. Are people very concerned because this is ASIO and secret or is it a more general concern?
Senator WONG: You would have to ask the proponents. That is not my job.
Senator WONG: I am sure you have plenty of people who could find that out.
CHAIR: You are coming back at 3.30 on Monday, so we will have the opportunity for you to be able to rebut and put your case with regard to those.
Senator WONG: Firstly, there is the extent of the recklessness ambit and to what extent that means that people may not be aware and they are not making an active choice; and, secondly, there are assertions around public interest and the ability for people to do their job. It would be useful for AGD in particular but also you, Mr «Irvine» , to give us your response to those assertions.
Mr BYRNE: I just want to say publicly that I have known you for 10 years and I want to thank you for your service. You have been the most diligent and up-front officer I have ever dealt with in the intelligence organisation. I appreciate your thoroughness. I have worked with some of your predecessors and some people who work around this space. I wish you well in your retirement. It is a very well earned retirement. You have not been able to talk about the threats and the things that you deal with on an ongoing basis, but I would like to thank you personally for your forthrightness and the work that you have done to protect our community.
CHAIR: I reiterate that. One of the things that I was going to mention was your speech to the Australian Institute of International Affairs, where you detail a little bit about the threat. I commend you on that speech. I encourage people to read it so that they get a sense of what whoever replaces you will be dealing with into the future as an organisation. I reiterate what Anthony said. I have not known you for as long as Anthony has, but in my time as chair I have found you very frank, forthright and absolutely committed to the national interest. It has been a pleasure dealing with you. I look forward to seeing you again on Monday.
Thank you for giving evidence at the hearing today. You will be sent a copy of the transcript of your evidence to which you may suggest corrections. If you have been asked to provide any additional material, please forward it to the secretariat. If the committee has any further questions, the secretariat will write to you. I appreciate everyone's attendance here today and the level of response given to our questions. Thank you.
Resolved that these proceedings be published.
Committee adjourned at 12:39