Senate

Second Reading Speech

Senator Brandis

The Bill contains a package of amendments to the Intelligence Services Act 2001 (IS Act) and the Criminal Code 1995 (Code).

The amendments address three key areas:

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facilitating the Australian Secret Intelligence Service (ASIS) supporting and cooperating with the Australian Defence Force (ADF) on military operations;

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enhancing the arrangements for the provision of emergency Ministerial authorisations to IS Act agencies to undertake activities in the performance of their statutory functions; and

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enhancing the control order regime to allow the Australian Federal Police (AFP) to seek control orders in relation to a broader range of individuals of security concern and to streamline the application process.

The Bill will also implement a final recommendation of the Parliamentary Joint Committee on Intelligence and Security in relation to the Counter Terrorism Legislation Amendment (Foreign Fighters) Bill 2014.

These proposed amendments are being brought forward in a separate Bill to the two major tranches of national security legislation the Government has introduced in the Spring sittings - the National Security Legislation Amendment Bill (No 1) (which passed the Parliament on 1 October and received the Royal Assent on 2 October); and the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill (introduced on 24 September and is presently before the Parliament).

The measures in the Bill have been included as a result of instances of operational need identified by relevant agencies subsequent to the introduction of the previous two tranches of legislation. In the case of the proposed IS Act amendments, the need for amendment is urgent, as a result of recent developments in the security environment, primarily due to the Government's decision to authorise the ADF to undertake operations against the Islamic State (IS) terrorist organisation in Iraq.

The Government has brought forward these measures in a separate Bill, to ensure that the Parliamentary Joint Committee on Intelligence and Security (PJCIS) has an opportunity to conduct a review of them, and report to the Parliament on its findings.

I have today referred the Bill to the PJCIS for inquiry and report by 17 November, so that its analysis can inform the Parliamentary debate of the Bill in the final fortnight of the Spring sittings.

Intelligence Services Act amendments

There is an urgent need to make amendments to the ISA to ensure that intelligence agencies can undertake relevant activities in support of the ADF's operations in Iraq against the Islamic State (IS) terrorist organisation.

These activities are anticipated to include the collection of intelligence in relation to Australian persons who are known or suspected participants in the hostilities, and particularly those who are known or suspected of fighting with or alongside the IS terrorist organisation. Such intelligence is likely to prove instrumental to these operations, including in protecting ADF personnel, members of other defence forces, and civilians from death or serious harm as a result of terrorist or other hostile acts committed in the course of the conflict.

The proposed amendments are directed to two key areas.

ASIS activities in support of, and in cooperation with, the ADF

First, the primary purpose of the amendments is to better facilitate ASIS providing timely assistance to the ADF in support of military operations, and its cooperation with the ADF on intelligence matters. The proposed amendments make explicit that such support and cooperation is a function of ASIS, consistent with explicit functions to this effect conferred upon the other two ISA agencies, the Australian Signals Directorate (ASD) and the Australian Geospatial-Intelligence Organisation (AGO).

These measures also make a small number of amendments to facilitate the timely performance by ASIS of this function. These concern the provision of Ministerial authorisation by the Minister responsible for ASIS in relation to a class of Australian persons, and enabling the Attorney-General as the Minister responsible for ASIO to provide agreement to an authorisation in respect of individuals falling within a specified class of Australian persons. All of the existing safeguards in the ISA will apply to the performance of the new function. These include the statutory thresholds for the granting of authorisations, Ministerial reporting requirements, and the independent oversight of the Inspector-General of Intelligence and Security (IGIS).

Emergency Ministerial authorisations

Secondly, the proposed amendments also remedy practical limitations identified in the arrangements for emergency ministerial authorisations which apply to ASIS, ASD and AGO.

The amendments make provision for the contingency that the relevant Ministers may be temporarily uncontactable when there is an urgent, previously unforeseen need to collect vital intelligence. Presently, there is no legal basis on which agencies can undertake activities in these circumstances, meaning that critical intelligence collection opportunities may be missed. The amendments will address this, by enabling an agency head to grant a limited emergency authorisation, subject to rigorous and extensive safeguards and oversight mechanisms.

These authorisations are strictly limited to 48 hours maximum and cannot be renewed. Additional issuing criteria apply to authorisations by agency heads, including express consideration of whether the relevant Minister would have been likely to grant the authorisation, on the basis of the existing statutory criteria. Further, to ensure it is only available in an extreme emergency, the agency head must also be satisfied that, if the activity was not authorised, security would be seriously prejudiced or there would be a serious risk to a person's safety. The Minister must be notified as soon as practicable within 48 hours, and is under a positive obligation to make a decision about whether it should continue within the 48 hour maximum, or be cancelled or replaced with a Ministerial authorisation. The IGIS must also be notified as soon as practicable within three days.

The amendments also provide for contingency arrangements in the event that the Attorney-General is not readily available or contactable to provide his or her agreement to the making of an emergency Ministerial authorisation, where such agreement is required because the authorisation concerns the undertaking of activities in relation to an Australian person who is, or who is likely to be, engaged in activities that are, or are likely to be, a threat to security.

The amendments address an unintended limitation in the ability of Ministers to issue emergency authorisations. Presently, no provision is made for Ministers to issue these authorisations orally, with a written record to be made of that decision. This is incompatible with the circumstances of urgency in which emergency authorisations are designed to operate, and with the longstanding approach to other forms of emergency authorisation - including search warrants, telecommunications interception warrants, surveillance devices warrants and, more recently, the authorisation by the Attorney-General of special intelligence operations by the Australian Security Intelligence Organisation. The proposed amendments bring the emergency Ministerial authorisation process in the ISA into line with this approach.

Criminal Code amendments

The amendments to the Criminal Code will further strengthen the control order regime and enhance the capacity of law enforcement agencies to protect the public from terrorist acts. The amendments will allow the AFP to request, and an issuing court to make, a control order in relation to those who "enable" and those who "recruit". Although such individuals may not directly participate in terrorist acts, their conduct in supporting and facilitating terrorism through the provision of funds and equipment, or by recruiting vulnerable young people to champion their cause - and even to die for it - is instrumental to carrying out terrorist conduct. The expansion of the control order regime to cover such individuals will help disrupt terrorism at an earlier stage, keeping Australia and Australians safe and secure.

The amendments to the control order regime will also streamline the application process by reducing the volume of material that must be provided to the Attorney General when seeking consent to request an interim control order, and extend the time for obtaining the Attorney General's consent when making an urgent request to an issuing court without first obtaining the Attorney General's consent.

Finally, the implementation of the Parliamentary Joint Committee on Intelligence and Security's recommendation will require the Attorney General to advise the Committee before amending a regulation that lists a terrorist organisation by adding an alias or removing a former name and to allow the Committee to review any proposed change during the disallowable period.

Concluding remarks

The measures in the Bill will ensure that our intelligence and law enforcement agencies have the necessary capability to operate effectively in the contemporary security environment. They will be of particular utility in circumstances of urgency presented by the activities of Australians who participate in foreign conflicts, including fighting with, or otherwise supporting the violent activities of, terrorist organisations.