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Monday, 4 July 2011
Page: 3929


Senator HUMPHRIES (Australian Capital Territory) (17:58): The Intelligence Services Legislation Amendment Bill amends the Australian Security Intelligence Organisation Act 1979—the ASIO Act—the Intelligence Services Act 2001—the IS Act—and the Criminal Code Act 1995 to ensure consistency and interoperability of provisions, to clarify provisions relating to computer access warrants, to provide new grounds for the collection of intelligence on an Australian person and to clarify the existing immunity provisions for intelligence agencies and officers.

On behalf of Senator Brandis, I indicate that the amendments proposed by the bill amend the ASIO Act to align the definition of 'foreign intelligence' with the definitions in the IS Act and the Telecommunications (Interception and Access) Act 1979 and amend the ASIO Act to clarify that a computer access warrant authorises access to data held in the target computer at any time while the warrant is in force, and that is not limited to data held at a particular point in time, such as when the warrant is first executed. This does not change the law but ensures consistency within the computer access warrant regime. The bill's provisions amend the ASIO Act to exclude the communication of information concerning the engagement or proposed engagement of staff within the Australian intelligence community from the security assessment procedures in the ASIO Act and put ASIO on the same footing as other intelligence agencies in relation to sharing information relevant to employment within the community.

The provisions amend the IS Act to permit the Defence Imagery and Geospatial Organi­sation specifically to provide assistance to the Defence Force in support of military operations and to cooperate with the ADF on intelligence matters. This is for clarification to ensure consistency with the Defence Signals Directorate. They provide for ministerial authorisation for the purpose of producing intelligence on an Australian person where the minister is satisfied that an Australian person is involved in, or likely to be involved in, activities related to a contravention of a UN sanction enforcement law. They amend the IS Act to clarify that the immunity provision in section 14 is intended to have effect unless another law of the Commonwealth, a state or a territory expressly overrides it, and they make a corresponding amendment to the computer offences in part 10.7 of the Criminal Code.

The amendments to the act proposed in this bill are relatively procedural and non-controversial. However, because any amend­ments in relation to enhanced intelligence gathering on Australians or conferring immunity in respect of otherwise criminal activity should be subject to close scrutiny this bill was considered in detail by the Senate Legal and Constitutional Affairs Legislation Committee. That committee reported very recently and I think it is worthwhile making some reference to that report.

The majority of the committee agreed that the proposed amendments would improve the practical operation of some key provisions in relevant legislation while maintaining sufficient safeguards where appropriate. The committee expressed confidence that the oversight by the IGIS to review the legality and propriety of activities of agencies within the Australian intelligence community—including monitoring, inspec­tion and inquiry powers—is a sufficient and appropriate safeguard. I respectfully agree with the views expressed by the committee. However—and this is an important qualification—the committee had serious reservations about the quality of the explanatory memorandum produced to accompany this bill. It found:

The lack of detail in the EM, particularly in relation to the proposed foreign intelligence amendments, did not assist the committee in undertaking its consideration of the legislation. The EM does not provide a detailed explanation of the need for the provisions and how the expansion of ASIO's powers will assist it and other foreign intelligence agencies to perform their functions, nor does it mention the safeguards in place that will ensure appropriate use of the enhanced powers.

Unsurprisingly, the committee considered this a significant omission. It found that the information subsequently provided by the department to the committee was extremely helpful and should have been included in the EM in the first place. The committee there­fore recommended that the Attorney-General's Department revise and reissue the explanatory memorandum to the bill as a matter of urgency to specifically include all additional information contained in the department's submissions relating to the proposed foreign intelligence amendments in items 3, 7 and 13 of schedule 1 of the bill, including detailed justification and explanation of why the amendments are considered necessary; specific examples of how the expansion of the definition of 'foreign intelligence' will assist ASIO and other foreign intelligence agencies to perform their functions; and an explanation of the safeguards in place to ensure appropriate use of the foreign intelligence collection function.

Given the strength of that recommendation to the Senate and the bipartisanship of that recommendation to the govern­ment, apparently—unless my informa­­tion has been superseded—the government has not seen fit to comply with that—

Senator Sherry interjecting—

Senator HUMPHRIES: There is one available, I gather from the minister. That is very good to see. It is an omission which has been rectified. I am pleased to hear that the government has taken that advice on board.

This is important legislation and the opposition will not delay its passage. For those who seek a proper explanation of the bill, I will record for Hansard that they should seek out the committee's full report.