Extract from The Guardian
Attorney general George Brandis denies laws will restrict freedom and says normal checks and balances will apply
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.”
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.”
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