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senate vote 2023-08-09#3
Edited by
mackay staff
on
2023-12-29 11:41:30
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Title
Bills — Telecommunications (Interception and Access) Amendment Bill 2023; in Committee- Telecommunications (Interception and Access) Amendment Bill 2023 - in Committee - Safeguard on sharing information
Description
<p class="speaker">David Shoebridge</p><p>by leave—I move Greens amendments (1), (2), (3), (4), (6), (7), (8), (9) on sheet 2060 together:</p>-
- The majority voted against [amendments](https://www.openaustralia.org.au/senate/?id=2023-08-09.21.1) introduced by NSW Senator [David Shoebridge](https://theyvoteforyou.org.au/people/senate/nsw/david_shoebridge) (Greens), which means they failed.
- ### What was the purpose of the amendments?
- Senator Shoebridge [explained that](https://www.openaustralia.org.au/senate/?gid=2023-08-09.21.2):
- > *These amendments, taken together, would amend the two substantive elements of this bill which currently provide a capacity for the Attorney-General to limit the sharing of the foreign intelligence information obtained under a warrant whereby the bill as drafted permits the Attorney-General to specify a purpose for which the information can be shared. But the drafting, very intentionally, in providing purpose, if any, identified by the Attorney-General, does not require the Attorney-General to so specify the purpose for which the information can be shared.*
- >
- > *Given the government's position that there are critical safeguards in the bill, it's our view that that should be more than verbiage, it should be included in the actual drafting of the bill. These amendments taken together require the Attorney-General to put a purpose in and, to avoid doubt, provide that foreign intelligence information cannot be communicated if the Attorney-General does not approve in writing any purposes. That's the ultimate safeguard.*
- ### Amendment text
- > *(1) Schedule 1, item 1, page 3 (line 9), omit "(if any)".*
- >
- > *(2) Schedule 1, item 1, page 3 (after line 21), after subsection 65(1B), insert:*
- >
- >> *(1C) To avoid doubt, foreign intelligence information must not be communicated under subsection (1A) if the Attorney-General does not approve, in writing, any purposes for the purposes of paragraph (1A)(b).*
- >
- > *(3) Schedule 1, item 3, page 3 (line 29), omit "(if any)".*
- >
- > *(4) Schedule 1, page 4 (after line 6), after item 4, insert:*
- >
- >> *4A After subsection 65(2)*
- >>
- >> *Insert:*
- >>
- >> *(2A) To avoid doubt, foreign intelligence information must not be communicated or used under paragraph (2)(a) if the Attorney-General does not approve, in writing, any purposes for the purposes of that paragraph.*
- >
- > *(6) Schedule 1, item 7, page 4 (line 15), omit "(if any)".*
- >
- > *(7) Schedule 1, item 7, page 4 (after line 27), after subsection 137(1B), insert:*
- >
- >> *(1C) To avoid doubt, foreign intelligence information must not be communicated under subsection (1A) if the Attorney-General does not approve, in writing, any purposes for the purposes of paragraph (1A)(a).*
- >
- > *(8) Schedule 1, item 9, page 5 (line 5), omit "(if any)".*
- >
- > *(9) Schedule 1, item 9, page 5 (after line 14), after subsection 137(3), insert:*
- >
- >> *(3A) To avoid doubt, foreign intelligence information must not be communicated or used under paragraph (3)(a) if the Attorney-General does not approve, in writing, any purposes for the purposes of that paragraph.*
<p class="italic">(1) Schedule 1, item 1, page 3 (line 9), omit "(if any)".</p><p class="italic">(2) Schedule 1, item 1, page 3 (after line 21), after subsection 65(1B), insert:</p><p class="italic">(1C) To avoid doubt, foreign intelligence information must not be communicated under subsection (1A) if the Attorney-General does not approve, in writing, any purposes for the purposes of paragraph (1A)(b).</p><p class="italic">(3) Schedule 1, item 3, page 3 (line 29), omit "(if any)".</p><p class="italic">(4) Schedule 1, page 4 (after line 6), after item 4, insert:</p><p class="italic">4A After subsection 65(2)</p><p class="italic">Insert:</p><p class="italic">(2A) To avoid doubt, foreign intelligence information must not be communicated or used under paragraph (2)(a) if the Attorney-General does not approve, in writing, any purposes for the purposes of that paragraph.</p><p class="italic">(6) Schedule 1, item 7, page 4 (line 15), omit "(if any)".</p><p class="italic">(7) Schedule 1, item 7, page 4 (after line 27), after subsection 137(1B), insert:</p><p class="italic">(1C) To avoid doubt, foreign intelligence information must not be communicated under subsection (1A) if the Attorney-General does not approve, in writing, any purposes for the purposes of paragraph (1A)(a).</p><p class="italic">(8) Schedule 1, item 9, page 5 (line 5), omit "(if any)".</p><p class="italic">(9) Schedule 1, item 9, page 5 (after line 14), after subsection 137(3), insert:</p><p class="italic">(3A) To avoid doubt, foreign intelligence information must not be communicated or used under paragraph (3)(a) if the Attorney-General does not approve, in writing, any purposes for the purposes of that paragraph.</p><p>These amendments, taken together, would amend the two substantive elements of this bill which currently provide a capacity for the Attorney-General to limit the sharing of the foreign intelligence information obtained under a warrant whereby the bill as drafted permits the Attorney-General to specify a purpose for which the information can be shared. But the drafting, very intentionally, in providing purpose, if any, identified by the Attorney-General, does not require the Attorney-General to so specify the purpose for which the information can be shared.</p><p>Given the government's position that there are critical safeguards in the bill, it's our view that that should be more than verbiage, it should be included in the actual drafting of the bill. These amendments taken together require the Attorney-General to put a purpose in and, to avoid doubt, provide that foreign intelligence information cannot be communicated if the Attorney-General does not approve in writing any purposes. That's the ultimate safeguard.</p><p>So while our amendment doesn't expressly provide for the Attorney-General to put a purpose in, what it does say is if there's no limiting purpose identified by the Attorney-General then the information cannot be shared. That, of course, is a powerful incentive for the Attorney to turn their mind to what an appropriate limitation should be, what the appropriate purposes should be. That is consistent with the rhetoric in support of the bill, and we move it for that purpose.</p><p>Minister, you say the government's position is that there are critical safeguards in the legislation. Is it true that the Attorney-General doesn't need to put a purpose in? Is that true? Would that be the effect of these amendments?</p> <p class="speaker">Murray Watt</p><p>Thanks, Senator Shoebridge. The short answer to your question is, yes, there is a discretion for the Attorney-General, but just to do so rather than a requirement. But let me fill this out a little further to explain. The legislation provides appropriate limitations on the purposes for which foreign intelligence information may be communicated. Foreign intelligence information may only be communicated under subsections 65(2) and 137(2) of the bill in the 'proper performance or exercise of a person's functions, duties or powers'. ASIO is subject to a stringent legal and policy framework, including legislation and ministerial, parliamentary and independent oversight, including oversight by the Inspector-General of Intelligence and Security.</p><p>The Director-General of Security's ability to communicate foreign intelligence information under subsections 65(1A) and 137(1A) of the bill is limited by section 20 of the ASIO Act, which requires that the director-general shall take all reasonable steps to ensure that the work of ASIO is limited to what is necessary for the purposes of the discharge of its functions. As I said, in addition to that there is a range of oversight already built into the system, including by the Inspector-General of Intelligence and Security. In those circumstances it's appropriate that the Attorney-General have a discretion as to whether to approve any purposes or impose conditions in relation to the communication of foreign intelligence information. For example, the Attorney-General may specify restrictions on the communication and use of the information, including the persons who can communicate and use the information and the manner in which the information may be communicated and used.</p> <p class="speaker">David Shoebridge</p><p>Thank you for that helpful explanation, Minister. So with the passage of this bill, it goes from a situation where the Attorney was required to turn their mind to the limited list of persons whom the information could be shared with to it simply being a matter for ASIO to share the information as it sees fit, limited by the generic provisions of section 20 of the ASIO Act and also the requirement that it be for the proper performance of ASIO's powers. So it goes from a constrained list of persons identified by the Attorney to whomsoever ASIO thinks they should in the 'proper performance of ASIO's powers'. Is that the effect of these amendments?</p> <p class="speaker">Murray Watt</p><p>As I've said, the Attorney-General would have discretion whether to approve purposes or specify conditions upon the agency's ability to share foreign intelligence information.</p> <p class="speaker">David Shoebridge</p><p>And in the absence of the Attorney-General—</p> <p class="speaker">Murray Watt</p><p>The question was whether, in the absence of the Attorney-General exercising that discretion—as you say, and as I've said a couple of times, there is a limitation on ASIO's ability to communicate that information, and that limitation is the general provision that the information can be communicated for proper purposes. In your contribution to the debate, Senator Shoebridge, I feel you were characterising it as that ASIO could communicate information willy-nilly without restraint. That's not correct. The act itself requires that communication to occur for 'proper purposes', or words to that effect. In addition, as I've already said, there are a range of oversight mechanisms that exist to ensure that that power is not misused.</p> <p class="speaker">David Shoebridge</p><p>Minister, what are the proper purposes of ASIO?</p> <p class="speaker">Murray Watt</p><p>As I understand, and I'm sure you're probably aware, that is a defined term within the act, so I refer you to the act.</p> <p class="speaker">David Shoebridge</p><p>Minister, noting this legislation has been brought with such haste, are we to deduce from that that this legislation is seeking to entrench existing ASIO practice that, on reflection, is in breach of the law? Is that what we're seeking to do? Is this seeking to entrench existing ASIO practice, and, if so, has that existing practice been in breach of the law?</p> <p class="speaker">Murray Watt</p><p>The purpose of this bill is to clarify the original intention of the act, in terms of the use of these powers. The existing provisions have been in use since the year 2000, but the amendments clarify the ability of agencies to communicate foreign intelligence information about threats to Australia in the proper performance of their functions. The amendments ensure that foreign intelligence information can continue to be communicated and used in a manner that is appropriate to address threats to Australia's national security. As I say, this is really about clarifying those powers for ASIO to exercise.</p> <p class="speaker">David Shoebridge</p><p>Minister, when you say 'clarify the intentions' and allow information to 'continue to be communicated', as I understand those answers it appears ASIO has not felt constrained to only sharing the information with persons who have been named by the Attorney in accordance with the existing law. Is that how I'm to understand your answers: to allow ASIO to have the information continue to be communicated?</p> <p class="speaker">Murray Watt</p><p>Senator Shoebridge, how you choose to characterise this is a matter for you. What I'm saying is that this bill is about clarifying ASIO's powers to put them beyond doubt, and the amendments are intended to update and clarify the operation of key provisions in the T(IA) Act, which relate to the communication, use and recording of foreign intelligence information. It was identified that legislative amendments were necessary to:</p><p class="italic">… ensure that the Attorney-General can continue to approve the communication and use of foreign intelligence information in a manner that is appropriate to address threats to Australia's national security.</p><p>As I say, this is really about clarifying the operation of the bill in line with its original intent.</p> <p class="speaker">David Shoebridge</p><p>I'll be clearer then. Has ASIO been sharing foreign intelligence information obtained under sections 11A, 11B and/or 11C with persons other than those specified by the Attorney-General under subsections 65(2) and 137(3)?</p> <p class="speaker">Murray Watt</p><p>I have no knowledge of that, Senator Shoebridge. I refer you to my previous answer as to the reasons why these amendments are being put forward.</p> <p class="speaker">David Shoebridge</p><p>Has the government referred concerns about ASIO's use of information obtained under 11A, 11B and 11C and concerns about potentially unlawful behaviour by ASIO to the inspector-general?</p> <p class="speaker">Murray Watt</p><p>Because of the independence of the Inspector-General of Intelligence and Security, it is a matter for them what they choose to investigate, rather than being directed or referred matters by the government. However, I understand that the IGIS was consulted in the preparation of this legislation.</p> <p class="speaker">David Shoebridge</p><p>Has the inspector-general undertaken an investigation of ASIO's use of information obtained under 11A, 11 B or 11C given what appears to be, from your answers today, decades of unlawful practice by ASIO?</p> <p class="speaker">Murray Watt</p><p>I'm not aware of the inspector-general having undertaken such an investigation, but it is obviously a matter for the inspector-general to confirm what investigations it may or may not have underway. There are opportunities to pursue those matters at Senate estimates.</p> <p class="speaker">Glenn Sterle</p><p>The question is that Australian Greens amendments (1) to (4) and (6) to (9) on sheet 2060, as moved by Senator Shoebridge, be agreed to.</p> -
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