The attorney general, George Brandis, said it was the
most significant reform of Australia’s spy agencies’ powers since the 1970s, but what did we learn during the Senate debate this week?
The first national security legislation amendment bill, which
increases powers for digital access and criminalises the disclosure of
special intelligence operations,
sailed through the upper house with the support of the major parties.
Here we summarise the government’s answers to some of the key
questions and criticisms raised in two days of committee stage
consideration in the Senate.
Is there a limit to the number of electronic devices that can be covered by a single access warrant?
The bill enables the Australian Security Intelligence Organisation
(Asio) to obtain intelligence from numerous computers, including a
computer network, under a single access warrant.
Brandis said there was “no arbitrary, or artificial, limit on the number of devices”.
Crossbench senators and many stakeholders raised their concern that,
in the absence of a clear definition of a computer network, a single
warrant could be used to access a wide range of computers, given the
internet is a network of networks.
The Greens proposed an amendment that would impose a limit of 20 for
the number of devices able to be used, or accessed, under a single
warrant.
Brandis said such an amendment “would impose an arbitrary, artificial
and wholly unworkable limitation that would frustrate the ability of
Asio to perform its statutory functions”.
“The idea of saying today, in September 2014, that we know that in
years to come there will never be a necessity for Asio to have any more
than a finite number of computer access warrants in operation is of
course an absurdity,” he said.
“In the majority of cases, it is unlikely to be known in advance of a
warrant being issued which parts of a computer network will contain
data relevant to the security matter in respect of which a warrant is
issued. With the variety and number of devices now commonly used, as
well as the increasing use of computer networks and remote storage, it
is highly probable that data may be stored on a number of devices.”
Brandis said the minister could approve warrants, subject to
conditions that might limit access, depending on operational
circumstances. He said that “any computer access must be for the purpose
of collecting intelligence relevant to a particular security matter and
not to some general or abstract notion of security”.
Will the public be told how many devices have been accessed?
No. Several crossbench senators moved an amendment to ensure the
inspector general of intelligence and security must report annually on
the total number of devices accessed.
The government rejected the proposition. “Reporting publicly on the
total number of devices accessed under warrants would not be appropriate
as it may reveal sensitive information about Asio’s capability,”
Brandis said.
What exceptions apply to the offences of disclosure of information about special intelligence operations?
Media groups and crossbench senators raised serious concerns about
the creation a new offence of the unauthorised disclosure of information
relating to a “special intelligence operation”, which will be
punishable by a five-year jail term.
These operations are a new category of covert activity in which
officers are granted immunity from criminal or civil liability as long
as the conduct does not involve causing death or serious injury,
torture, sexual offences or significant damage to property.
The legislation includes a second, aggravated category of this
offence that carries a 10-year jail term for disclosures that would
either endanger the health and safety of any person, or prejudice the
effective conduct of an operation.
Brandis has emphasised that spy agency insiders will be able to use
official channels to raise concerns about alleged misconduct in the
course of special intelligence operations.
“Consistent with the committee’s recommendation, new exceptions will
be included for persons who disclose information for the purpose of
seeking legal advice, or to the inspector general of intelligence and
security [Igis], or his or her staff. A further exception will apply to
the Igis, and his or her staff, for communications within the office of
the Igis to create absolute certainty that the offences do not apply in
those circumstances.”
Should there be an amendment requiring a court to take into
account ‘public interest’ in disclosure when sentencing someone for
publication?
Brandis rejected a proposed amendment to that effect “because it is
entirely unnecessary”. He referred to existing criminal sentencing
principles. The attorney general said it would be inconceivable for a
sentencing judge not to take into account a defence lawyer’s arguments
about whether public interest should mitigate a sentence.
Would the Guardian and ABC story revealing Australia’s
attempt to spy on Susilo Bambang Yudhoyono have been illegal if that
wire-tapping had been declared a special intelligence operation?
Brandis would not comment. “I am not going to indulge Senator [Scott]
Ludlam by answering hypothetical cases, or cases of historical interest
– or, indeed, addressing cases or issues that may come before the
courts. The legislation is before you, senator. You have made your
position clear. You are entitled to the view that you take. Really, that
is all I have to say to you.”
How will journalists know whether what they plan to report may, or may not, be related to a special intelligence operation?
Brandis said the disclosure offence required the prosecution to prove
that the person who disclosed the information was reckless as whether
it related to a special intelligence operation.
“The prosecution must establish, to that standard of proof, that the
person knew of a substantial risk that the information related to a
special intelligence operation,” he said.
“It must then establish that the person, nonetheless and
unjustifiably in the circumstances, took the risk of making the
disclosure.”
Will a special intelligence operation be able to be declared retrospectively?
Brandis responded with a simple “no”.
Will there be a sunset clause on the special intelligence operation provisions?
No. Brandis rejected a call to put a 10-year expiry date on the new
law related to special intelligence operations, despite agreeing to
similar sorts of sunset clauses in the yet-to-be-debated foreign
fighters bill.
“But this regime is by no means a temporary regime,” Brandis said.
“We do not foresee that the augmentation of Asio’s powers by these
provisions is something that is going to expire.”
Has the bill had insufficient parliamentary scrutiny?
Brandis said the genesis of the bill was an extensive report by the
parliamentary joint committee on intelligence and security, published
last year during the life of the previous parliament. “That criticism
could not be more misconceived,” he said.
“The bill was first introduced by me on 16 July. It has been in the
public domain and the subject of much public discussion since that time.
It has been back to the parliamentary joint committee on intelligence
and security since then, which has reviewed it and, as I said in my
second closing speech, it has been the subject of 17 recommendations by
that committee, all of which have been accepted by the government.”
Why is the position of the independent national security legislation monitor still vacant?
The term of Bret Walker, SC, in this oversight role expired five
months ago. The government planned to abolish the monitor position as a
cost-saving measure but scrapped the plan in early August, when it
announced a raft of national security legislation.
Brandis said the government was still considering who Walker’s successor would be.
“The role of the independent national security legislation monitor is
to oversee the operation of legislation and to advise government on the
suitability of that legislation in the light of the manner in which it
operates,” he said.
“This legislation, obviously, is legislation yet to be enacted;
therefore, the need for the particular contribution of the independent
national security legislation monitor has not arisen. But I can assure
Senator Ludlam that when Mr Walker’s replacement is named, that man or
woman will be a person who will be in a good position to advise future
governments on the efficacy of this legislation.”
Is the bill an excessive constraint on freedom?
Brandis said the powers provided by the bill were “a proportionate, a judicious and a limited response to the threats we face”.
“Freedom is not a given,” the attorney general said. “A free society
is not the usual experience of mankind. Freedom must be secured, and
particularly at a time when those who would destroy our freedoms are
active, blatant and among us.
“It is all the more important that our freedoms be secured by those with the capacity and the necessary powers to keep us safe.”
