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Thursday, 25 September 2014
Page: 7236

Senator LEYONHJELM (New South Wales) (19:36): I move amendment (3) on sheet 7579:

(1) Schedule 2, page 30 (after line 31), after item 28, insert:

28A After section 25A


25B Collection of intelligence under computer access warrant

      Despite anything in section 25A, a computer access warrant issued under that section may authorise access to a computer only to the extent necessary to collect intelligence in respect of the security matter specified in the warrant.

(2) Schedule 2, page 55 (before line 5), before item 46, insert:

46A Before section 32


32A Notification requirements in relation to interference with computer use under warrant etc.

(1) This section applies if:

   (a) a warrant was issued under section 25, 25A, 27A, 27C or 29; and

   (b) a thing mentioned in subsection 25(5) or 25A(4), paragraph 27D(2)(h) to (k) or subsection 27E(2) was done under the warrant.

(2) The Director-General must cause the Minister and the Inspector-General of Intelligence and Security to be notified of any material interference with, or interruption or obstruction of, the lawful use by other persons of a computer or other electronic equipment, or a data storage device, that resulted from the thing being done.

(3) The notification must be given:

   (a) in writing; and

   (b) as soon as practicable after the thing was done.

(3) Schedule 3, item 3, page 63 (after line 22), after section 35C, insert:

35CA Sunsetting

      A special intelligence operation authority must not be granted after the end of 30 June 2025.

(4) Schedule 3, item 3, page 69 (lines 30 and 31), omit "or prejudice the effective conduct of a special intelligence operation".

(5) Schedule 3, item 3, page 70 (lines 2 and 3), omit "or prejudice the effective conduct of a special intelligence operation".

(6) Schedule 3, item 3, page 70 (line 14), at the end of subsection 35P(3), add:

   ; or (e) of information that has already been disclosed by the Minister, Director-General or Deputy Director-General; or

(f) made reasonably and in good faith, and was in the public interest.

(7) Schedule 3, item 3, page 70 (after line 16), after subsection 35P(3), insert:

   (3A) Subsections (1) and (2) do not apply if:

   (a) the person informed the Organisation about the proposed disclosure at least 24 hours before making the disclosure; and

   (b) the disclosure did not include information on the identities of participants of a special intelligence operation, or on a current special intelligence operation; and

(c) the information concerns corruption or misconduct in relation to a special intelligence operation.

Note: A defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.

(8) Schedule 5, items 9 and 10, page 74 (lines 4 to 19), to be opposed.

(9) Schedule 5, item 14, page 79 (lines 1 and 2), omit subparagraph 1(1A)(a)(i).

This is an amendment to impose a sunset clause on special intelligence operations. Under the amendment, no authority for SIO could be granted after 30 June 2025. I am relying on public statements by the Attorney-General to this effect, but I understand that the government has agreed to sunset clauses to 2025 for other significant security powers, including preventive detention. SIOs—special intelligence operations—involve a broad immunity for ASIO operatives and impose very heavy penalties for unauthorised disclosures. As such, they should be seen as a significant security power.

The Prime Minister has stated that our current circumstances justify the current rebalancing of security and freedom concerns. These circumstances may or may not be present in 2025. Given this, I can see no reason why the government and opposition would not support this item.