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Monday, 4 July 2011
Page: 3936


Senator SHERRY (TasmaniaMinister Assisting on Deregulation and Public Sector Superannuation, Minister for Small Business and Minister Assisting the Minister for Tourism) (18:22): I would like to acknow­ledge and thank senators for their contri­butions to the debate on the Intelligence Services Legislation Amend­ment Bill 2011. Before I make my concluding remarks about the bill, there were a couple of points raised during the debate that I would like to take the opportunity to respond to.

Firstly, I would like to acknowledge and thank the members of the Senate Committee on Legal and Constitutional Affairs Legisla­tion Committee for their work in examining and inquiring into the bill. The committee tabled its report on 22 June 2011, making one recommendation, which was that the explanatory memorandum be revised and reissued in order to include more detail on the foreign intelligence amendments. The government accepts this recommendation, and I have the replacement explanatory memorandum which includes this additional information.

In respect of at least some of the matters that Senator Ludlam raised, there has been a lot of interest in and speculation about the amendments in this bill relating to ASIO's foreign intelligence function. I will take just a moment to reiterate that this is not about expanding ASIO's functions so that it can do a whole range of new activity; it is about ensuring that ASIO's limited foreign intelligence role is consistent with the foreign intelligence functions of Australia's other intelligence agencies.

ASIO has long played a role in and is intended to complement the foreign intelli­gence role of the other intelligence agencies. These roles have not been completely aligned, because legislation was drafted at different times, reflecting different threat environments. The amendments in this bill will complete the process of aligning the terminology in the Intelligence Services Act and the ASIO Act. This continues the government's commitment to more seamless cooperation between relevant agencies, which was recognised in the National Security Statement and the Smith review.

ASIO's core function is to obtain and assess intelligence and advise government in relation to matters relevant to security. This will not change. In addition, ASIO has a limited function to obtain foreign intelligence within Australia under warrant issued by the Attorney-General at the request of the Minister for Defence or the Minister for Foreign Affairs, who are responsible for Australia's foreign intelligence agencies. This is separate from ASIO's security function and is not initiated by ASIO.

Currently, the definition of 'foreign intelligence' in the ASIO Act differs from that in the Intelligence Services Act. This could create intelligence gaps because it would mean that foreign intelligence collected within Australia would be a narrower range of intelligence than the foreign intelligence agencies are able to obtain in exercising their functions outside Australia. With the rise of individuals and non-state or non-political organisations engaged in activities such as the proliferation of nuclear, biological, chemical and conven­tional weapons and related technologies, it is increasingly important to address this issue.

There are a range of safeguards and accountability mechanisms that apply to ASIO's foreign intelligence function. These are outlined in the replacement explanatory memorandum. In particular, I emphasise that ASIO can only exercise its foreign intelligence function under warrant or auth­orisation issued by the Attorney-General. The Attorney-General must be satisfied, on the basis of advice from the Minister for Defence or the Minister for Foreign Affairs, that issuing a warrant or authorisation in a particular matter is in the interests of Australia's national security, Australia's foreign relations or Australia's national economic wellbeing.

These are serious matters of significant national interest. These matters have provided the construct and limitations for the functions of Australia's foreign intelligence agencies since these functions were enshrined in the Intelligence Services Act in 2001. ASIO's foreign intelligence function, as with all its activities, is subject to rigorous oversight and accountability, including by the Inspector General of Intelligence and Security. The inspector general has access to all of ASIO's records and warrant documentation and is able to examine the legality and propriety of ASIO's activities.

In addition to the foreign intelligence amendments, the bill makes a number of other important amendments to improve the operation of the ASIO Act, the Intelligence Services Act and the Criminal Code. These are measures that have been identified through practical experience with the legislation. The government remains committed to ensuring that our national security agencies have the necessary tools and resources to undertake their important functions in a changing and dynamic national security environment.

I table a replacement explanatory memorandum relating to the Intelligence Services Amendment Bill 2011. The memor­andum takes account of recom­mendations made by the Legal and Constitu­tional Affairs Legislation Committee. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.