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Wednesday, 2 March 2011
Page: 906


Senator LUDLAM (11:11 AM) —I will continue with the remarks I was making the other day before we jumped to the tax bill. This bill, the Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010, has quite far-reaching consequences in that what it is really doing is extending the mandate of ASIO to allow it to conduct telecommunications intercepts on behalf of other agencies, which I think is actually quite troubling. As I was saying the other day, ASIO operates under fairly strict rules of engagement. Those are necessary. They have evolved over a long time in the post-war period. The reason for that is if we admit that we need clandestine intelligence agencies in Australia then there is immediately a tension between what they do on our behalf with taxpayers’ money in order to ostensibly provide for the safety of Australians here and overseas and the need for the promotion of democratic transparency.

As I said the other day, I have met across an estimates table with the Director-General, Mr Irvine, on a number of occasions. He is forced, effectively, by the act that his agency comes under to be politely dismissive of the questions that we put to him about what the agency actually does. We are referred back to the act. We are referred to the fact that there is oversight by the Inspector-General of Intelligence and Security. But the parliament, through estimates committees and the other tools of accountability that we have access to here on behalf of our constituents, are not able to find out very much about what this agency does. There is a degree of opacity, I suppose. The agency and the minister argue that this is necessary and that, by definition, this is how ASIO needs to act and to organise itself—and not just ASIO but the rest of the intelligence community.

There is no greater symptom of this form of thinking than in the freedom of information reforms that went through this place late last year. We simply provided blanket immunity from FOI for ASIO and other intelligence and security agencies. So you cannot even request their paperclip inventory under the Freedom of Information Act anymore, because everything is simply shrouded under this mantle of national security. Not even the CIA or British intelligence agencies are immune or completely exempt from freedom of information, but that is the kind of thinking that dominates in Australia. We think these agencies somehow have secrets which are so important that any imposition at all is completely out of order and somehow places our national security in jeopardy.

I note that the budget of ASIO has expanded. While the rest of the Commonwealth Public Service has been on some kind of efficiency drive, ASIO has in fact headed in the other direction. The Parliamentary Library provided us with a good budget review for 2010-11 of ASIO and related intelligence issues and we have seen several years of compounding growth in ASIO in its budget, in its staff and in the extraordinary fortress which is under construction on the shores of the lake. The total budget has risen from $427 million in 2009-10 to be now approaching around $717 million. We wait breathlessly to find out what the budget will be in 2011-12.

We have an agency with an important mandate, national security, with a rapidly expanding budget and a rapidly expanding staff that is about to go into its new home. And yet somehow we are meant to simply pass this bill today—and I understand that the opposition will be supporting it here, as they did in the House of Representatives—without any essential justification for why we are so dramatically expanding its mandate. And this expansion takes its out of its area when it is conducting telecommunications intercepts for other agencies.

But there is also the fact that henceforth it is going to be on call. This goes to the nature of the committee stage amendment that I have circulated and that I hope for support for from both sides of the chamber. People from other agencies who have the need for telecommunications intercepts or other forms of investigations are going to be able to use ASIO as effectively—as the Law Council have warned—a kind of mercenary agency. And they will be able to do this whether or not it has anything whatsoever to do with ASIO’s responsibilities under their act. That is an extraordinary expansion of ASIO’s powers. There is no justification for it. There appears to be a bipartisan consensus to simply let this sail through. We will not have that. The Australian Greens will certainly be voting against this bill, which we have not often done on telecommunications interception matters. This is a step vastly too far.

We need to be very careful before we expand the mandate of clandestine agencies with very sketchy reporting obligations to the people of this country. We need to have good reasons to allow their mandate to expand into mainstream law enforcement—and indeed tax matters, for heaven’s sake. That is where this appears to go. I am not sure who the minister representing will be. It may be Senator Wong. I foreshadow now that I have a number of questions that I will be raising in the committee stage about the reasoning behind this bill and about whether our interpretations of how this bill has been drafted are actually correct. Maybe you can disabuse us, if it is you, Senator Wong, of some of our concerns. But we will wait until the committee stage for that.

Amendments to the Telecommunications Interception Act seem to happen fairly frequently. They seem to come through here every couple of weeks, and I am only exaggerating by a little bit. There is a creeping expansion of the ability of Australia’s intelligence, security and law enforcement agencies to tap our phones, to read our web traffic and to use all of the tools of surveillance that are used around the world to spy on people, whether in democratic societies or not. The checks and balances that make us different here in Australia, we suppose and hope, are things like reporting obligations. That is the nature of the amendment that I have circulated.

If other agencies are going to be able to call ASIO in well outside its mandated area of expertise as described under its act then at the very least we need to know how many of those kinds of calls were made and how much agency resources are being consumed by that kind of work. These are the nature of the questions that I will be raising in the committee stage. I do not think that we want to create the appearance—and I am sure that this is not the government’s intention—of an agency without enough to do. We have just tripled its staffing complement, and we do not want to create the appearance that somehow, despite it very serious mandate around thwarting terrorist events before they occur, for example—which I understand is absolutely front and centre of the work of the agency—folk there have the spare time to take phone calls from other ministers and other departments requesting telecommunications intercepts and other services. Is that really the case? Do these people have that time? If they do, why are we hiring them in the first place? Why this enormous expansion of ASIO’s resourcing if they are then going to be sitting around waiting for phone calls from other ministers and other agencies asking for help. That is something that we need to clear up.

We see creeping expansions through amendments to the Telecommunications Interception Act and through the quite feeble response that we saw last year in the package of so-called counter-terrorism reforms, which effectively leave the architecture of the Howard era terrorism laws entirely in place. There have been some changes made, including some quite important ones, but most of them have been cosmetic or have even made matters worse. And all of this has occurred in the absence of an office that was meant to be established, the National Security Legislation Monitor—and we wanted to have the word ‘independent’ installed in the name—to work out for us whether these laws are necessary and proportionate.

Nothing that I have said here is intended as disrespect to the work that our intelligence and security agencies do. The flipside, I suppose, of its clandestine nature is that the work is thankless. Some of it is probably pretty dangerous and difficult. And you are not able to go to the newspapers and say what you have been up to. None of this is intended by way of disrespect for the core functions of these agencies. If, assuming that I am reading it correctly, it is about preventing acts of domestic or international terrorism, we—as a party founded on a pillar of non-violence—certainly have no problem with that. The problem is with the scope-creep that continues just a little bit at a time without any opposition or voice raised by the opposition in this parliament. I suppose I should not be surprised by that, because they were the ones who set down, in the rather grim years following the horrors of 9/11, the architecture that we are currently living under.

I look forward to the contributions that the opposition will make and perhaps some clarification in the minister’s closing statement if she is intending on giving one as to the purpose of this bill. Why are we so dramatically expanding the mandate of ASIO to allow it into so many other domains with so little description as to the reason or of the intended effect? Those are the questions that we hope to answer on the way through this debate. I again foreshadow that we will not be voting for this bill until we can be satisfied that it is in the nation’s interests—that cloudy and hazy concept of the national interest that we never quite seem to get around to defining. I look forward to some of these matters being clarified in the debate that is to come.