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Parliamentary Joint Committee on Intelligence and Security - 18/08/2014 - National Security Legislation Amendment Bill (No. 1) 2014

LYNCH, Dr Lesley, Secretary, NSW Council for Civil Liberties

ROWLINGS, Mr William Murray, CEO, Civil Liberties Australia

[11:04]

CHAIR: The committee welcomes representatives from New South Wales Council for Civil Liberties and Civil Liberties Australia.

Dr Lynch : Today my colleague and I are representing the six councils for civil liberties across Australia.

Mr Rowlings : Civil Liberties Australia is one of the six councils. We are here as a combined organisation, the significance of that being it is the first time we have ever done it because of the importance of this discussion.

CHAIR: 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. I invite you to make some introductory remarks before we proceed to questions.

Dr Lynch : I want to start off, if I can, by making a few rather obvious but I think important starting points. It is partly because I listened to Friday's session. The first obvious thing is that the councils for civil liberties accept we live in a dangerous world, a dangerous context; and we accept that Australia is vulnerable to real terrorist threats, both from overseas and, increasingly, in a home context. We are supportive of ASIO and other intelligence agencies having the powers and resources that they need to do their intelligence job as an important part of protecting Australians as long as—and our caveat, and it is obviously the caveat that Civil Liberties focus on a lot—it is consistent with a healthy democracy and it is consistent with, and we come back to all these nebulous words, appropriate protection of our civil liberties and our rights. We obviously support the modernisation and the appropriate streamlining of ASIO and other security legislation, and, therefore, there is a lot in this bill that we are not quibbling with at all.

We note—and I want to run through this, because it is the context from which we are coming to our comments—that the terrorist threat is not likely to be short term. In fact, we take it, as I am sure you do, as the new normal that we are living with. We think this has got pretty significant implications for us every time we think about reacting to that threat with what we call either 'exceptional' or 'extraordinary' laws. Because it is increasingly obvious, as we get 12 years down the track, that these short-term exceptional pieces of legislation may well be with us in the longer term. And from where we sit at a state level as well we are beginning to see in a very significant way one of the ripple effects of that as these exceptional and previously unthought of kinds of practices rolling over into criminal law at the state level with pretty significant and pretty worrying effects.

So that is just part of the context, and, of course we have to say, unlike most western democracies, we have no bill of rights, we have no charter. We are, therefore, in a more vulnerable situation in terms of impact on our liberties, our rights and our democratic principles, and the nature of our justice system than most other western democracies are. That is really just a way of saying that we really, really do need to think—and I know the committee does—long and hard every time we move to extend the powers, to extend the reach of intelligence agencies' capacities which have an impact on liberties and rights. This bundle clearly does. That is not disputed. What is disputed, where the argument is, is: is the impact of a number of these new provisions proportional?

From our point of view, we are not convinced of a number of key points in the bill. We are deeply concerned that, after the kind of debate we had in 2012, there is still a lack of substantive evidence-based, or, if you like—because you might know more than we are going to get to hear—visible evidence-based justification for a number of proposed new and extended powers of ASIO, and for the new offences that you have just been speaking about. I say this especially because we have in place a pretty extensive counter-terrorist, intelligence, criminal law network. As you know, a lot of people reasonable people back in 2002, argued that we did not need specific counter-terrorist powers because we had a pretty good set of criminal laws in place that would cover it. We keep coming back to that.

We are also pretty surprised and disappointed at the either loose or deliberately expansive drafting of a lot of the provisions in this bill. Again, because many of those provisions were in 2012 really contentious and were debated in the same way. It was exactly about these kinds of things—the lack of clarity; the need to remove the ambiguity; and the need to be much more specific in the legislation and not in the verbiage around it, being it explosion memorandum or whatever, in the draft legislation. I do not think I am exaggerating: it is actually a bit worse than it was last time around. That is pretty disappointing and I imagine it would be disappointing for the committee as well.

I tippy-toe into this one, given the conversation in the last session, but, yes, a lot of these provisions have impacts on our liberties and our human rights. The explanatory memorandum identifies eight significant areas in terms of our international covenants and obligations. Of course, a large part of the explanatory memorandum is a methodical, looking at each one and coming to the not-surprising conclusion, given that they are there, that such encroachments as will occur are reasonable, proportional, lawful and necessary. I have to say that—and I am not a lawyer, but I am a very good policy and a very good strategy person—if you are reading that document and reading the Attorney-General's submission and reading the paper that came out in 2012, I do not think you would be able in a logical way to draw the connections and to say, 'Yes, these things have been shown to be necessary; these provisions have been shown to be good.' It is, if you like, rhetoric. What then happens is that we then counter with other rhetoric. As was said in the last session, the crippling of our argument back is that we are arguing in terms of the most important thing: what are the underpinning, the underlying things that have happened which make these new powers or new offences essential? Of course, you do not have any information beyond generic statements around it.

So we say again, we think there is need for a much more robust and much more informed analysis of the impact of these provisions on rights, liberties and our international obligations. We have been having a bit of a think about how could you do that, because the processes we have really do not seem to be working in the sense that they have the capacity to convince anybody out of their current position. We just keep arguing. We might come back and talk about what some of those things could be.

Our major concerns, then, to get down to specifics, we have flagged in the bill where I think most of these things apply. We obviously share the concerns of people about the new regime and the broadness of the definitions and the looseness of the accountabilities. We are very disturbed at the special intelligence operations regime that is proposed. I would like in one sense to answer the Director-General of Security's question that he asked in general terms of submission writers on Friday, when he was talking about. 'AFP have this; why would'—and I think he was actually talking about the media submission that someone put together—'they oppose it? In this context, surely, they would not be opposing it just because it is ASIO.' If that is meant to imply people just being nasty to ASIO—of course not. But, actually, the answer is: yes, we are opposing it exactly because it is ASIO, because it is an intelligence organisation and not a law enforcement agency. There are big differences and there are important differences. You think longer and harder about giving these kinds of things, particularly immunities of this kind, to organisations which, rightly and by their very nature, function at a more secret, less visible level in the community, have less kinds of accountabilities—notwithstanding this committee, notwithstanding the IGIS—and certainly much less interaction with the courts. It is a different world. So we will continue to argue vehemently against, without the demonstration of necessity, the wisdom of going down this particular track. Given that the committee has endorsed the broad regime, should the committee recommend that we go down that track, like all others in this area we are calling for much tougher accountabilities. We are very interested in what you are putting forward, but are you speaking of the possibility of external authorising beyond the IGIS?

Mr BYRNE: Yes, external.

Dr Lynch : That would address one of the most significant weaknesses in this—that is, the around and around internal iteration of this process. In terms of the I-G, I think it is really good that the government is committed to resources, but I have to say, listening again on Friday, that if the quantum of resources is in the scope of five to seven fairly junior staff, a couple of those will have to be tech people, and I think they should be going for top-level tech people, not juniors. If that is the ambit, I still say that the organisation has very confined capacity to do anything other than post hoc paper audits, and anyone who has ever been in the public sector knows how extraordinarily limited those post hoc kinds of paper audits can be. I think that is a really interesting area to explore.

Now that I have read the submissions, I think we feel as vehemently as the media organisations do in terms of what we will call the whistleblower provisions, for a whole number of reasons. One, they are not needed. Surely we already have an extraordinarily expansive legislative regime in place across the Crimes Act and in the ASIO Act and in the Intelligence Services Act, which makes whistleblowing extraordinarily difficult anyhow. There are so few protections for any ASIO or intelligence employees at the moment. You are ramping up the penalties for existing offences. What is the push here? Have there been massive disclosures that we do not know about? They do seem to have worked.

To come back to some of the issues that the senator was raising earlier with respect to the catch-all, it is not the aggravated offence that is the really alarming one; it is the first offence. I think most people would agree that if you are knowingly and/or recklessly publishing material which is going to endanger people—an enterprise or whatever—you would wear a significant sentence being fit and proper. I would also say it is surely covered from multiple angles in existing legislation. I note the next group you will be speaking to is Gilbert and Tobin. Given their submission is now up, I have had the opportunity to read the latest update on whistleblowing legislation. I am sure they will, but I would commend you to read that and then ask again: why this new offence? We come back again, from a civil liberties point of view, to talk about the cumulative effect. It is already pretty chilling environment in the Australian contest given we have no constitutional or those kinds of safeguards that our colleagues in America have. This is just a big chill.

Our submission shows the haste and the scramble in which it was put together, trying to pull stuff together nationally. By the end of it, we were grappling with this bundle of provisions, listening to the almost week-by-week flagging of new counter-terrorism offences rolling in, and of course we have been sitting and waiting for a couple of years for the data retention stuff.

I just think it is an outrage if we proceed with this, without the whole bundle of stuff that is coming through. You cannot—we cannot—get a sense of the cumulative impact of what it is we are putting on the books, when we keep doing it in these piecemeal bites. It is not a wise or good way of doing it. I note, having read the submissions over the weekend, we are up to 61 amendments, before we get to this amendment, on counter-terrorism legislation. It is not a good way of doing legislation. We do not think you should proceed until—this stuff coming through in this parliamentary term, what possible justification is there for running them through piecemeal?

CHAIR: Mr Rowlings?

Mr Row lings : I think we have said enough, thank you.

CHAIR: I will not speak for the rest of the committee but I actually think doing it in tranches enables people to get a good sense of each piece, as it goes forward, rather than a conglomerated approach.

Dr Lynch : You do not believe in putting jigsaws together!

CHAIR: We can agree to disagree on that. I note in your general comments that you start by saying:

We support the modernisation and appropriate streamlining of national security legislation including the ASIO Act 1979 to ensure that the agencies are not hindered by outdated legislation in the face of massive and fast moving technological change particularly in the communications arena.

That is one of the things, publicly, that the Director-General of ASIO has pointed to, as to why the agency needs updating of these laws. I acknowledge that you seem to accept that. You put in 'however' after that sentence with regard to the 'proposed changes expanding existing ASIO powers and/or weakening balancing safeguards and protections'. Yet we have heard from the Inspector-General that the Inspector-General of Intelligence and Security Act 1986, the IGIS Act, provides sufficient authority to oversight these new powers. I have asked this of several witnesses who have come before us today: what exactly do you think the IGIS is missing, with regard to this legislation?

Dr Lynch : I think there are some good things. I think it is good that the IGIS is obviously expecting—it would appear that she is getting some sort of assurance that she will get—a modest, maybe a meagre, expansion of her capacities. Someone has already said it today. On the whole, she operates through either reporting on what has happened or her own auditing processes, which are auditing, and she seems to do this very thoroughly, in terms of her report sending.

When you hear her speaking about it, it seems like a very thorough and proper process. But if you think of the number of operations and activities happening from within, if you just took ASIO, not all the agencies that she has responsibility for, you are—of necessity—talking about a pretty limited kind of oversight. You might, for example, notice also that in her comments on this bill there are a number of places where she declines to comment—quite properly—because it does not have direct impact on her operation's capacities.

That is one flag that says we are missing the independent monitor who would be looking, in a broader way, at the necessity of this legislation, given it was one of the core roles that the independent monitor had: was this legislation necessary? Is it still necessary? Is this new legislation, coming in, necessary? Someone who has their head around the extraordinary complexity of that array of legislation, we miss that.

Mr Rowlings : I will give you a simple answer to what I consider IGIS is. IGIS is a clerical role. It does not have the power to examine the choices made by any of the agencies it looks at—that is, why the agencies have chosen to do what they do or why they have chosen not to do other things that they have not done. IGIS has no ability to look at the priorities that the agencies give to the workload that they have. IGIS simply is a tick-the-box audit process, 'Use a blue-coloured pencil; did you follow these protocols when you took out a warrant when you did this exercise?' et cetera. That is the IGIS role.

Dr Lynch : Somebody mentioned—it might have been Mr Ruddock—that when you were talking to the prior IGIS, when they have partaken in a more active role where they can it has been very informative but the one we cited—

Mr BYRNE: It was me.

Dr Lynch : Yes. That activity is one where there has been very rare exercise. It is a simple volume and expertise issue that the most dedicated and the smartest IGIS would be struggling to fulfil a full accountability role given the size, the complexity and the volume of our operations. And it seems to me that in lots of these things the capacity to have external judicial oversight of some kind or another is often possible without in any way endangering the necessary secretiveness, the necessary confidentiality which is, in one of the areas, one of the things you are talking about.

Mr BYRNE: In terms of the SIO.

Dr Lynch : The other issue is that the Inspector-General operates within the law and what is lawful. A lot of our anxieties about the safeguards are about what is not in the draft legislation, which is the reason I think there is a fair bit of work to be done still on this draft legislation. On my quick look at the submissions, you are going to be very bored by the end of the day because you are getting people all raising the same terribly obvious issues. I have to also flag that we do not think we are on top of this yet because all we have had time to do was some of the detailed forensic work that you have to do on the issues we already knew we cared about because we were worried about them in the last iteration and of course to have a look at the two new offences. For all I know, many of the other provisions which have now been put into bill form might be equally loose in the way they are carrying over. For a lot of these I have only read the explanatory memorandum and big chunks of this legislation at this stage. So I guess I have unfinished business.

CHAIR: I want to be clear on something you said previously. Do you see the IGIS as independent or as part of the intelligence organisations?

Dr Lynch : No, she has an independent, reviewing role.

Mr Rowlings : About four years ago there was a luncheon held for all the intelligence agencies. I just attended it and was photographed at that luncheon with them. All I can say is that that is what the photographic evidence is. It was highly inappropriate. I would have thought that [inaudible] should be totally independent of those agencies.

CHAIR: Do you see her as totally independent, or not?

Mr Rowlings : She should be totally independent. I think she is totally independent and it was a very bad judgment call when that photo was taken.

Dr Lynch : The act is very clear. She is, but—

Mr RUDDOCK: What was the nature of the function?

Mr Rowlings : It was just a luncheon for the 20th anniversary of something, whatever, and all the heads of the agencies were together. The head of IGIS was—

Mr RUDDOCK: I just do not understand how you might have a luncheon here at Parliament House and invite all and sundry to come why the IGIS would be—

Mr Rowlings : Because it was a celebration.

Mr RUDDOCK: If ASIO is going to be photographed with David Irvine—

Mr Rowlings : It was a specific function to commemorate one of the agencies.

Mr BYRNE: I hope we will give IGIS the capacity to respond to that.

Mr Rowlings : It is a different agency.

Mr BYRNE: The previous IGIS was Ian Carnell. So are you saying it was him or her?

Mr Rowlings : Yes, it was him.

Mr BYRNE: Ian Carnell?

Mr Rowlings : Yes.

Mr BYRNE: I hope we will give him the potential to respond to that because my experience of him is he is one of the most thorough and impressive—

Mr Rowlings : I agree with you in relation to Ian Carnell, absolutely.

Mr BYRNE: And believe you me, given the feedback I had from the intelligence agencies, he is a very independent operator.

Mr RUDDOCK: But this was a public function.

Mr Rowlings : It was a private function for those agencies. It was not a public function.

Mr RUDDOCK: How did the media get the photograph?

Mr Rowlings : I do not know. But it was published.

Mr RUDDOCK: A 20th anniversary benefit—

Mr Rowlings : I cannot remember back too far, but I can send you the photo. Because it was so odd I kept it.

Mr BYRNE: I think we are getting a bit side-tracked—

Mr Rowlings : So do I.

Mr BYRNE: As long as we can give Ian the capacity to respond to that particular point, that would be good.

Dr Lynch : Unlike others, I think it is a great pity—and there is no point crying over spilt milk—that, at the point where we are introducing not just this legislation but some pretty interesting new things that are arriving on the agenda that are very different kinds of things, we do not have an independent monitor with that kind of expertise. No matter where you work it takes time to build up—

CHAIR: My question was about whether you saw the inspector-general as independent—

Dr Lynch : The inspector-general's act is quite clear. I was once in the public service as well as academia, so I was thinking about how there is another dimension about people who, if you are in a statutory position, you are within the government. People can slide up and down on that one. I thought IGIS's submission was pretty penetrating in terms of some of the things it had hooked up and wound back. I am sure she and the director-general of security will be having some interesting conversations about that.

CHAIR: That is a very fair point.

Mr NIKOLIC: Dr Lynch, if I understand what you said before, you were bemoaning the fact that there is no information apart from 'generic statements' to justify some of these measures. I do note commentary in recent times about how the terrorist threat in particular has changed in Australia. In 2001, I think, when we sent our first deployment to Afghanistan, there were some 30 Australians who were known to have gone before, 25 of whom came back. More recent reporting talks about 150, notwithstanding larger numbers, perhaps, from the region involved with the Abu Sayyaf group or with Jemaah Islamiyah or other transnational organisations. What specific information regarding a justification for these changes would you consider sufficient in terms of the increased threat to Australia and its people?

Dr Lynch : That is a statement about increased threat. I do not expect to see a time in my life when we do not have pretty high-level terrorist threats in the world we live in at the moment. I think that is quite a different issue from the one of whether the intelligence agencies' existing powers are sufficient for them to cope with this level of threat. I think it is a very different exercise. For example, with the issue of surveillance and data, do you actually get a great deal more information from having pretty free and easy access to not just innocent people's data but non-suspect people's data—like the kind of drifting onto the metadata it will have? But it is also relevant here to the third party and communications-in-transit access. Is there actually a significant increase in effectiveness from surveilling all of that than there is from having effective capacity to follow suspects? That is the critical issue here, and it seems to me that the drafting of a lot of this time and time again spills out of—

Mr NIKOLIC: But this is my point, Dr Lynch: in responding to that threat, every terrorism failure—every intelligence failure—in recent years has said that the way you respond better to that threat is through better coordination amongst agencies, enhancing the ability of agencies, using technologically advanced networks—

Dr Lynch : I do not think we object to any of that.

Mr NIKOLIC: Okay, but you do highlight in your submission that 'the new cooperative arrangements between ASIO and ASIS' are an area of 'greatest concern'. So if on the one hand the data is telling us the way to respond to this threat in the future is by enhancing cooperation, responsiveness and timeliness amongst the agencies and that that is a reasonable way of responding to it, I am at a bit of a loss to understand how you characterise that as a concern rather than as a path to making our people safer.

Dr Lynch : We are putting in a supplementary statement on that, hopefully very soon—I could not get it in in time for this. They are not contradictory statements at all. There are lots of ways you can collaborate and cooperate. From what we can see from the outside, there appear to be pretty good collaborative and proper arrangements, certainly between ASIO and the AFP. There is a reason we have begun with a concern, and because I am not authorised to answer questions I will not be doing so—we have not quite sorted it through. We start with a generic concern, which is what we have seen in terms of the post-Snowden revelations, which I think have been very interesting and useful revelations. It is to do with how things get away in terms of oversight. They run away when you have the kind of sharing of information that steps outside effective oversight. We just had alarm bells ringing.

Although we have not finished that exercise yet, we are looking very closely at the possible implications of changing the existing regime—the existing demarcation between ASIO and ASIS—and whether or not the kind of effective collaboration you are talking about could in fact not be achieved without going down the particular pathway. I do not want to say more about that. I do not think it is at all a contradiction in our argument, because we are absolutely supportive of intelligent, collaborative, effective relationships.

Mr NIKOLIC: But in your submission you go on to say that special intelligence operations are 'unnecessary, dangerous and inappropriate', based on the conclusion that the AFP 'are able to conduct these covert operations' instead. What special knowledge do you bring to that judgment—

Dr Lynch : Sorry—

Mr NIKOLIC: Your submission says special intelligence operations are 'unnecessary, dangerous and inappropriate'. You conclude, as you just did a moment ago, that the existing AFP structure is 'able to conduct these covert operations' instead. My questions is, given you agree that the threat has moved on—it has become more technologically advanced, more difficult and complex and there is a greater degree of ambiguity in dealing with it—and that coordination between agencies is necessary to respond to it, you seem to be arguing that the AFP can take that role on itself.

Dr Lynch : Could I have a go at summarising what I think we have said in the submission. Covert operations are part and parcel of ASIO's life and are obviously necessary. As far as we know from the outside, having heard nothing to the contrary—and the IGIS says so, as well—there are extremely good cooperative relationships between ASIO and the AFP. The only tangible example that was being given, both by the Attorney-General's Department and by ASIO—and we heard it on Friday—as a reason we need to have guaranteed immunity rather than relying on the discretion of the prosecutor not to go ahead is the incredibly implausible issue of needing to embed in terrorist organisations, which is now unlawful. Of course, ASIO and ASIS possibly will at some stage or other need to embed. We say, yes, you need to be able to do that but you seem to be able to do that at the moment—that is my understanding. They have been able to do that for quite a long time, and there have been no prosecutions of ASIO agents or others for acting unlawfully. I presume there has been a little bit of that kind of activity happening. But, then, the next step when you say you need to be able to facilitate that is to totally invert the current arrangements, which say ASIO cannot act unlawfully in the exercise of this, to saying now that they can do anything with, I think, three exceptions. This is what I mean by it being at every point the most expansive response to an issue. I am not convinced by the one case that has been put on the table. I cannot see how it would be possible that this was not already happening, and they managed perfectly well. To go from there to the provision we have is a very big jump. Once you say it is okay for intelligence officers to act unlawfully, it is again this thing about it becomes more the norm. As you have had numbers of people pointing out how—

Mr RUDDOCK: But it is not lawful to join a terrorist organisation, is it? To put people into a terrorist organisation is an offence.

Dr Lynch : Yes, but we are obviously managing it now and we want to stay—

Mr RUDDOCK: With the greatest respect, we are not managing it now, because we cannot put people in there without them getting an offence.

Dr Lynch : Why then is it not possible rather than turning everything upside down and saying you can do all things unlawful except three things?

Mr RUDDOCK: It does not say you can do all things unlawful.

Dr Lynch : Why not specify? Get it tighter. I am not convinced that it is not happening—and you would have obviously much more knowledge of this. Instead, it is just turned upside down, so you suddenly make all things okay. It will have consequences. It changes the headset. It just has to. If I was an ASIO agent and—

CHAIR: One last one.

Mr NIKOLIC: Can I just clarify your comment that it encompasses 'all things unlawful'. It actually specifically says that the scheme would be seldom but may from time to time arise only for certain authorised conduct while unreasonable or reckless conduct would not be indemnified—I just say that as a point of clarification that not all conduct is appropriate.

Dr Lynch : One of the good parts of it is that the authorisations will be for: this is a specific unlawful thing. But what I am saying is the bill says all unlawful activities—except serious injury, sexual activity and luring people into crimes—and anything that you currently have to get a warrant for either under ASIO, the intelligence services or the TIA Act you still have to get a warrant for. Apart from that, all other unlawful activities may be okay. It is a big jump.

Mr NIKOLIC: Dr Lynch, it actually says more than that; it says unlawful conduct under the SIO would be limited to the maximum extent and would not include a range of things. It talks about limited immunity, so your characterisation of it is simply wrong.

Mr Rowlings : That is the explanatory memorandum, not the act.

Dr Lynch : I am talking about what is in the act.

Mr BYRNE: Dr Lynch, I think your testimony has been really interesting—other than the IGIS thing. Could you then make some suggestions as to how to tighten it up? The way forward, I think, is the independent issuing authority, the IGIS having more powers as she does under the current powers in terms of questioning and detention. Are you saying that there is a difference between the EM and the bill itself? If this legislation had to be enacted, could you put forward a suggestion that would tighten that up for the committee's benefit in your supplementary stuff?

Dr Lynch : We will. We will do that in the supplementary submission but, as I was saying, we will just keep coming back to saying one example on the table will lead to embedded agents saying, 'Of course, we did it,' But to jump from there to a bill whatever the explanatory memorandum says, the bill says anything unlawful can be done with three exceptions and three pieces of legislation where you currently have to get warrants.

Mr BYRNE: So, Dr Lynch, could you please do that? The committee is obviously operating in good faith here. If there is that and you perceive that, if you can put that stuff in for us, that would be helpful to the committee.

Dr Lynch : Yes, we will indeed.

CHAIR: 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 by the deputy chair, please forward this to the secretariat. If the committee has any further questions, the secretariat will write to you.

Mr Rowlings : Thank you very much We were unable to get to some issues, so we will table some material as an extra submission.