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Wednesday, 2 March 2011
Page: 910

Senator JACINTA COLLINS (Parliamentary Secretary for School Education and Workplace Relations) (11:33 AM) —I would like to thank senators Ludlam, Brandis and Barnett for their contribution to the debate on the Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010. I note that Senator Ludlam raised concerns that this bill may expand ASIO’s mandate. This bill does not expand ASIO’s collection powers or remove any oversight mechanisms. I also note Senator Brandis’s concerns about the risk of operational and sensitive security information being made public. I note that the senator therefore supports this bill and not the Greens proposal.

I will begin by thanking the Senate’s Legal and Constitutional Affairs Legislation Committee for its work in the examination of the bill. I also thank all those who contributed to the inquiry. I know that the Attorney-General also appreciates the efforts of the committee. The committee reported that it appreciated the importance of ensuring that Australia’s national security agencies and law enforcement agencies have access to the best information and technical expertise available. The committee recommended that the Senate pass the bill subject to further guidance on the proposed amendments.

In relation to the proposed amendments, which will require carriers and service providers to inform the Communications Access Co-ordinator of proposed changes that would significantly affect their ability to comply with their statutory obligation to assist interception agencies, the committee recommended that the explanatory memorandum be revised to provide greater clarity. The government accepts this recommendation and has revised the explanatory memorandum. The explanatory memorandum clarifies that the circumstances in which schedule 2 applies are the same as those currently contained within section 201 of the interceptions act. Regrettably, section 201 of the interceptions act does not facilitate notice of changes sufficiently early in the development of changes to allow for effective consultation. This early notification will ensure that carriers and service providers can meet their obligation to assist, and avoid the need for costly alterations once a change has been implemented.

The committee further recommended that the Attorney-General’s Department develop guidelines to assist industry in understanding what changes must be notified under schedule 2 of the bill. The government accepts this recommendation and the Attorney-General’s Department will, as a matter of priority, develop guidelines for industry to assist them in meeting this regulatory obligation.

In relation to the proposal to enable enforcement agencies to apply for a stored communications warrant to access the stored communications of a victim of a serious contravention, the committee recommended that the explanatory memorandum be revised and that it provide additional detail about where privacy issues may arise. The government accepts this recommendation. The explanatory memorandum has been revised and explicitly states that the issuing authority must consider how the privacy of the victim of crime may be interfered with by accessing the stored communications. Additionally, the explanatory memorandum outlines that the gravity of the interference on privacy is a question of fact. It is to be determined on the principles of proportionality, a reasonable expectation of privacy and a targeted consideration of the circumstances of each case.

In relation to the proposed amendments contained in schedule 6 of the bill to enable further assistance, cooperation and information sharing amongst Australia’s national security community, the committee recommended that the explanatory memorandum be revised. The government accepts this recommendation and has revised the explanatory memorandum. The replacement explanatory memorandum further outlines the existing limitations and how the legislation does not currently meet the operational requirements of these intelligence and law enforcement agencies.

The existing legislation can hinder cooperation occurring to its fullest extent, such as where joint or multiagency teams are formed to provide a closely integrated whole-of-government response to a national security issue. The current legislative limitations to information sharing have been identified through practical experience. The amendments will ensure that ASIO can pass certain incidentally obtained information to the relevant authorities where appropriate. These amendments do not provide ASIO with new powers to collect information. The existing strong accountability and oversight mechanisms will continue to apply, and the Inspector General of Intelligence and Security will continue to have oversight of these activities.

The government has proposed amendments to the bill to insert schedule 8, which will amend the Intelligence Services Act 2001. The amendments will provide an opportunity for greater representation for members of parliament on the Parliamentary Joint Committee on Intelligence and Security by increasing the membership from nine to 11 members. The amendments also increase the quorum for the committee from five to six members. This reflects the increase in the committee’s overall membership and ensures that a majority of members are required for a quorum. Members appointed to the committee before the commencement of these amendments are not affected. The amendments will also ensure the continuance of evidence taken by or produced to the committee. The committee provides important scrutiny of the administration and expenditure of Australia’s security and intelligence organisations.

The bill amends the Telecommunications (Interception and Access) Act 1979, the Australian Security Intelligence Organisation Act 1979 and the Intelligence Services Act 2001 to remove technical and other barriers to facilitate greater cooperation, assistance and information sharing between law enforcement and intelligence agencies. If agencies are able to draw on the expertise of others within the law enforcement and national security communities then vital information is less likely to fall through the gaps. These measures will build on previous steps taken to facilitate intelligence sharing and greater interoperability, particularly in multiagency teams and task forces, which are important in responding to our increasingly fluid and evolving national security environment. Ensuring that our national security and law enforcement agencies have the ability to respond to threats to our national security is a key priority for this government.

As I conclude, there are a few extra comments that I would like to make in response to Senator Ludlam in particular and his question of why the amendments are needed and what the purpose of the bill is. The main purpose of this bill is to enhance cooperation and information sharing among the national security and law enforcement communities. Currently, under the interception act, law enforcement agencies can only seek assistance from other law enforcement agencies in exercising an interception warrant. This distinction does not reflect the cooperative basis on which law enforcement and security agencies are expected or required to work. By ASIO being included within this group, ASIO will have greater flexibility to support whole-of-government efforts to protect our communities. Amendments to the ASIO Act and the Intelligence Services Act will also facilitate closer cooperation and assistance and enhance information sharing within Australia’s national security community. The bill includes amendments that enable ASIS, DSD, DIGO and ASIO to cooperate more closely and assist one another in the performance of the other agency’s functions. The amendments will provide national security agencies with greater flexibility to work together and to harness resources in support of key national security priorities.

I also note that Senator Ludlam referred to ASIO operating under the ‘cloak of darkness’. I want to put on the record that ASIO operates in accordance with its legislation, which has strict controls. ASIO is also accountable to the Attorney-General and the Parliamentary Joint Committee on Intelligence and Security, as well as being subject to strong oversight by the Inspector-General of Intelligence and Security. The inspector-general is a strong oversight mechanism independent of government and charged with ensuring that the security and intelligence agencies act with legality and propriety. This bill does not change any of the strong accountability regime that already exists.

In response to Senator Ludlam’s queries with respect to the frequent amendments to the T(IA) Act, let me say that this bill facilitates broader technical assistance in relation to telecommunications interception and other areas of expertise including logistics and analytical assistance. The assistance in the area of interception is to provide expertise to assist law enforcement where they lack the capabilities to effectively investigate serious crime. The interception act requires ongoing consideration and review to ensure that it meets the challenges of new and emerging technologies.

On that note, I conclude and thank all senators and those who participated in the inquiry for their assistance in this matter.

Question agreed to.

Bill read a second time.