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Tuesday, 20 March 2007
Page: 109


Senator NETTLE (8:46 PM) —Australians value their privacy. They expect that if their government is to create new powers for Commonwealth agencies that will potentially violate their privacy, such changes are necessary and justified. Such an expectation is reflected in the history of government attempts to introduce a national ID card. First Labor’s Australia Card and now the Howard government’s access card have floundered after the failure of both governments to justify such intrusions into people’s human rights and privacy.

The changes outlined in the Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill 2007 have been characterised by the government as technical amendments that have arisen out of further consultation regarding the controversial anti-money laundering and counter-terrorist financing laws. Whilst that is true for most aspects of the bill, it is not true in one important respect—this bill will, for the first time, give Australia’s overseas spy agency, the Australian Secret Intelligence Service or ASIS, access to the personal financial information held by the Australian Transaction Reports and Analysis Centre, or AUSTRAC. The government have not justified why they believe that this is necessary. They have said virtually nothing at all about the reasons why ASIS needs this unprecedented power.

As far as we know, the government have not raised this plan in discussions regarding the first round of money laundering bills that this piece of legislation is seeking to amend. There has been no Senate inquiry into this proposed change and there has been virtually no public discussion about this particular aspect of the changes. In fact the government are seeking to make what the Australian Greens consider to be a very significant change under the guise of a technical amendment. The Greens want to know: is it a technical amendment to allow ASIS access to the financial records of many Australians? Is it a technical amendment to allow ASIS access to the financial records of many Australian businesses? Is it a technical amendment to allow ASIS to access such records in secret? Is it a technical amendment to give ASIS a substantial and powerful new means to collect information on many Australians? The answer is that this is not just a technical amendment; this is a substantial and questionable new power being given to ASIS without the necessary safeguards and without reasons having been put forward as part of public debate.

AUSTRAC is Australia’s anti-money laundering regulator and specialist financial intelligence unit. It collects a wide range of financial information and regulates a risk based reporting regime that requires the finance industry to report on their customers where they believe that there is a risk of funding terrorism or money laundering. As such, it holds information on and has access to the financial dealings of large numbers of people, businesses and organisations in Australia. The Australian Greens accept that there may be cases where it might be justified to allow access to AUSTRAC information by ASIS—for example, ASIS may be involved in disrupting a terrorist effort—however, we believe that such access should be clearly limited by legislation and mediated through the domestic security and police agencies or a judicial authority. We do not accept that ASIS, Australia’s most secret intelligence organisation, should have such wide access as this bill would provide.

It is worth recalling exactly what ASIS is, what it does—or at least what we know about what it does—and some of its history so as to understand the concerns that the Australian Greens have about this particular aspect of this legislation. ASIS’s function is stated in the Intelligence Services Act 2001. The role of ASIS is defined as being: to collect foreign intelligence, not available by other means, which may impact on Australian interests; to distribute that intelligence to the government, including key policy departments and agencies; to undertake counterintelligence activities which protect Australian interests and initiatives; and to engage other intelligence and security services overseas in Australia’s national interests. According to the government in their reports they put out about the various different intelligence agencies that exist, ASIS is not a domestic law enforcement agency—it does not have a policing role; its job is to collect overseas intelligence. Like America’s CIA and Britain’s MI6, ASIS was born at the beginning of the Cold War in 1952. Its activities are so secret that it was not even publicly acknowledged until 1977, by the Fraser government. It has only been governed by legislation since 2001. So this is an organisation that came into effect in 1952 and was only governed by legislation for the first time in 2001.

At times ASIS has been mired in controversy, firstly for its role in the bloodletting following the 1965 military coup by Suharto in Indonesia, where it was alleged to have provided lists of names to death squads, and then for its work in Chile under the Pinochet regime. Its 1983 bungled hostage exercise in Melbourne’s Hilton Hotel left guests and employees being terrorised by ASIS members wearing masks and carrying machine guns. This, of course, caused an uproar at the time. Even the hotel manager was assaulted by ASIS officers. More recently, in 1993, ASIS attracted attention when former employees claimed that it was out of control and compiling dossiers on Australian citizens. A subsequent royal commission found these claims to be substantially unproven, although the foreign minister at the time, Gareth Evans, acknowledged that some files on Australians were being kept by ASIS.

In short, ASIS has had a chequered history in the eyes of the public, and the fact that people know little about this secretive organisation means that there are lingering concerns about its accountability activities. It is certainly assumed, and this is what the government tells us, that its job is to spy on overseas governments and organisations, not to spy on Australians. This was reflected in the original charter for the organisation established by the Menzies government, which expressly required ASIS to operate ‘outside Australian territory’.

Subsection 11(1) of the Intelligence Services Act also reflects this principle when it states that the functions of ASIS are:

... to be performed only in the interests of Australia’s national security, Australia’s foreign relations or Australia's national economic well-being and only to the extent that those matters are affected by the capabilities, intentions or activities of people or organisations outside Australia.

Concern over the privacy of Australians is also reflected in section 15 of the Intelligence Services Act, which has rules to protect the privacy of Australians. This section states that the foreign minister must make rules for ASIS regarding the communication and the retention of information concerning Australians and that the minister must ensure that the privacy of Australians is preserved as far as is consistent with the agency’s proper performance. Those rules, like almost everything else about ASIS, are secret, and the Greens are therefore rightly sceptical about the extent to which they can offer the protection that they are designed to offer.

Has Minister Downer, for example, ensured that ASIS is prevented from placing Australians under surveillance in their homes, not only now but when they travel overseas? Is ASIS able to keep files on Australian residents? What protections are there for Australian businesses? We just do not know, because the information and guidelines are not in the public realm. All of my comments are based on the little information we do have in the public realm about the activities of ASIS.

But the very existence of section 15 of the Intelligence Services Act does reflect the public concern that exists about ASIS’s operations in relation to Australians on Australia soil. With that in mind, is it legitimate to give ASIS open access to AUSTRAC’s records and information? The Greens say no, and that is why I will move, when we get to the committee stage of this legislation and amendment, to remove this power from the bill.

No doubt the government will claim that there is sufficient accountability in place from the under-resourced, understaffed Inspector-General of Intelligence and Security. It will also say that ASIO already has this access, and that is absolutely correct. That is precisely the point. It is ASIO’s job to keep an eye on people in Australia; it is ASIS’s job to be our spy agency overseas. It is the AFP’s job to do the law enforcement, as the government points out in its publications. It is not ASIS’s job to do law enforcement. We have got a situation where ASIO and the AFP already have access to AUSTRAC. Law enforcement is the role of the AFP; it is explicitly outlined as not being the role of ASIS. Therefore people’s legitimate concerns, wanting to ensure that there are protections and that there is the capacity to scrutinise the financial transactions of Australians, are covered by the existing security organisations. The two I have mentioned out of 30 organisations that have access to the AUSTRAC information are covered by the existing legislation.

Why then should ASIS have access to the personal financial information of an enormous number of Australians and Australian businesses? It should be remembered that ASIS, as is proposed in this legislation, would have access to this information in secret. That is, any Australian or Australian business that had its privacy violated would not be informed about any violation of privacy. Their capacity, then, to complain to the Inspector-General of Intelligence and Security about any breaches of their privacy is at best a nice principle; it is unable to be put into practice because this legislation is specifically designed to allow these security agents in ASIS to have access to the information in secret—that is, without people knowing. They will not have the capacity to complain to the Inspector-General of Intelligence and Security because they will not know what interaction security organisations have had with them and their information.

The Greens argue that ASIS does not need this power. It was not proposed in the original piece of legislation. There is no evidence that it was raised in the Senate inquiry into the original piece of legislation or in any subsequent public comments by the government about this particular aspect of the bill. There is no evidence that they have been calling out for access to this information prior to the enactment of the legislation last year, or indeed since then. But we have a situation where the government is coming to the Senate and asking us to approve this change, this additional organisation having access to AUSTRAC records, without a rationale being put forward. It is a fair enough question to say: ‘Where is your argument? Let’s hear it.’ And I certainly would be appreciative if we were able to hear from the minister about what the argument is, because it has not been made at all to date.

I want to talk briefly about the other aspects of the bill, because the Greens support all of the other aspects of this bill, such as the removal of absolute liability offences and the capacity to review certain decisions of the AUSTRAC CEO. We believe that all the other aspects, the technical amendments, which are rightly in the bill—although we argued for the strict liability offences earlier—will go some small way to addressing the concerns regarding the operation of this whole financial reporting regime, which has been widely criticised by both the finance industry and legal and community groups during the passage of the original piece of legislation.

It is worth reviewing some of those concerns, as they underpin the view that the Greens have that this latest extension of these laws to encompass ASIS is flawed. The Greens had a number of concerns, which I articulated previously, about the original anti-money laundering and counterterrorism financing laws that were passed in December of last year. I talked at the time about the way in which they radically changed the level and the sort of information that financial institutions were collecting on their customers and the manner in which this information would be used by national security agencies and police.

I think I described the legislation at that point as being designed to require banks to spy on their customers for the government. That was how it was being described at the time that the original piece of legislation was being dealt with. The Greens accept—and I said this at that time—that some information collected by financial institutions should be made available to government agencies when it relates to criminal behaviour, including terrorism and money laundering. But what we are dealing with here, with the extension to ASIS, does not relate to law enforcement in that area. The government has been quite clear and quite explicit in the little information it has provided about ASIS that it is not a law enforcement body; it does not have a policing role.

So the genuine issue that people want to ensure is not occurring—that is, the financing of terrorist organisations—is not within the purview of what we are told ASIS does. Of course, I am basing this on the limited information that is available—that is all we have got. Even in that, the government has been very explicit in saying that it is not a law enforcement agency, it is not involved in policing, it is not involved in spying on people in Australia; it is designed to spy on people overseas. The government has quite clearly defined the role that it has.

As I have said, we are quite happy to support sensible changes to the law to address the threat of terrorism, and we have done so. As I have also said, we are happy to support the other aspects of this piece of legislation. It is just the extension to grant ASIS access to this information that we have concerns about. And we have not heard anything at all—from the government, from ASIS, in any Senate inquiry, in public debate—about why there is this requirement to list another organisation as a designated authority. There are already 30 there. They include ASIO and the AFP. Why ASIS? It is a simple question. I hope that the minister will be able to address it in his remarks.

When we were dealing with the original piece of legislation I talked about the way in which the existing terrorism laws have led to innocent people having their accounts frozen and how some communities who support independence movements overseas—for example, the Tamils or the Kurds—face criminalisation of their legitimate activities. At the time I went through a range of examples: people like the gentleman in Melbourne who owned a record store called Shining Path who had all of his assets frozen and was not able to get government agencies to allow him access to his legitimate business. It was a record store; it just happened to be called Shining Path. Because of the name, shared by a Peruvian group, his funds were frozen.

There was another example at the time that we last mentioned this legislation of an Iranian woman who runs a number of restaurants. She was transferring funds for dates or whatever she was getting in for her restaurants, and she talked about having been treated as a criminal and as though she were funding terrorism. They were legitimate business activities that had been occurring in an ongoing nature. Because of the way the legislation is designed—so that it is up to the banks to manage the risk—and in exempting the banks from anti-discrimination legislation, as was done in the original legislation, you create a situation in which it is quite legitimate for them to say: ‘You have got an ethnic name. You are sending money to Iran. We are going to freeze your assets.’

So you have this woman who is an Iranian restaurant owner trying to get her dates sent in having her assets frozen. I have raised many times, in this chamber and in other forums, the possibility of this occurring, and it is precisely what we have seen happen. The laws have enabled the two examples that I quoted at the time—the record store owner and the Iranian woman running a restaurant—to occur. These are criticisms I have raised before about how broad the definition of terrorism is and that it does allow innocent people to be caught in the web. And it does not allow us to focus on the efforts that everyone agrees that we need to be focusing on. When we throw the net too wide, these are the reasons why we create problems.

Former Justice Merkel put it very precisely when he said:

The move to granting ever-expanding coercive power to the executive arms of state and federal governments, to be exercised behind closed doors and without public scrutiny, carries with it grave risks to the democratic values we are trying to defend.

He went on to say:

One must have serious concern as to whether the political hierarchy is deserving of the kind of trust and integrity that the public are entitled to expect of them in administering that power.

The Greens say that the granting to ASIS the power to access AUSTRAC’s financial information is too great a power to be exercised behind closed doors and away from scrutiny. It is far more than a mere technical change, despite the government’s claims. There is no clear need for this power, and the government has certainly not articulated one.

ASIO and the AFP can already do this. ASIS is the overseas spy agency. It is clear from its founding charter and its current legislation that its job is to spy on overseas governments and groups, not on Australians. The Australian people have not been consulted about this change. There has not been sufficient public debate or scrutiny. The Greens will not support ASIS having these powers without such a debate. Therefore, I ask senators, when we get to the committee stage of this legislation, to support the Greens amendment to remove this change from the bill. If the government want to push ahead with this change, they can bring in specific bill that relates to this when they have had the public debate and put forward the arguments and the reasons why this extension is needed. To date, they have failed to do so and, whilst we support the rest of this bill, we are not in a position to be able to support them on that aspect of it.