House of Representatives

Australian Security Intelligence Organisation Legislation Amendment Bill 1999

Second Reading Speech

Mr Williams (Attorney-General)

I move:

That the bill be now read a second time.

The Australian Security Intelligence Organisation is the Commonwealth's security agency. It operates under statute to collect, evaluate and communicate intelligence relevant to the protection of Australia and its people from a number of specified activities, including espionage, politically motivated violence, promotion of communal violence and acts of foreign interference. Its role is to inform and advise Australian governments, including police services, about those activities.

This bill is directed at ensuring that ASIO remains capable of providing timely intelligence and advice to governments. ASIO is not a police force itself, for instance, having no powers of arrest.

The bill results from a periodic internal review of the ASIO Act and evolving changes in ASIO's operational environment and, in particular, the impact of technological developments on intelligence gathering.

Examination of the bill will reveal that it will not extend ASIO's functions but simply will enable the organisation to meet its statutory responsibilities in more efficient and effective ways.

The bill is not a response to the challenges posed by a particular event or threat, such as the Year 2000 Olympics, notwithstanding that ASIO will have an important role to play in ensuring the safety of the athletes, officials and spectators attending those games. Rather, the bill results from a considered examination of ASIO's capacity to meet its ongoing responsibilities to government in a rapidly changing information environment.

In bringing this bill before this House, I have in mind that it is no simple or easy thing to achieve a balance between the rights of individual persons and the preservation of national security. But, in the final analysis, national security and personal safety are interconnected. The recent terrorist attacks on US diplomatic missions in East Africa illustrate the human cost if security defences are breached.

The government is committed to ensuring that ASIO will be ready to play its part in domestic and international arrangements against terrorism.

Australian Security Intelligence Organisation Act 1979

The bill contains several provisions intended to improve ASIO's ability to access information stored in computers. These amendments are necessary given that information relevant to security is frequently stored as computer data. This is not a totally new power.

ASIO is already able to examine computer information relevant to security under search warrants and telecommunications interception warrants. The new computer access provisions will allow ASIO to obtain access through other means which at present cannot be used.

The bill makes provision for ASIO to do certain things which may be necessary in order to execute a warrant authorising it to access computer data.

However, this will be subject to a strict limitation that a warrant does not permit ASIO to do anything that interferes with the lawful use of a computer or causes loss or damage to other persons lawfully using the computer.

The new computer access warrant, subject to renewal, will remain in force for a maximum period of six months, which is the same period that applies to telecommunications interception warrants.

The bill will also permit the issue of warrants to ASIO authorising the use of tracking devices. The use of tracking devices will permit more efficient use of resources. In addition, these amendments are necessary as several Australian states are in the process of legislating to regulate the use of such devices by police and other members of the community. These amendments will permit ASIO to use a tracking device under warrant.

Provision is made for ASIO to be authorised to enter property and enter or alter an object for the purpose of installing, using and maintaining a tracking device. The new warrant provisions are similar to the present section of the ASIO Act dealing with the use of listening devices. All the proposed amendments are within the existing accountability framework.

The bill will also provide ASIO with a statutory authority to enter premises to remove a listening device or a tracking device which has been installed under warrant while a warrant is in force or within 28 days of it ceasing to be in force or, if the device is not recovered in that period, at the earliest reasonably practicable time. This provision is intended to provide for those situations where it is not possible for ASIO to recover a device undetected during the warrant period.

The minister will also be given the power to issue warrants permitting ASIO to examine an article being delivered by a delivery service provider. This amendment reflects the growth of such services which have lessened the value of the present warrant power to inspect postal articles which is restricted to articles carried by Australia Post.

The bill makes a number of amendments to the provisions dealing with search warrants.

These amendments clarify the requirements for the issue of a search warrant and ASIO's authority to use a computer found on premises being searched as well as lengthening the maximum period a warrant may remain in force to 28 days, although only one search is authorised, and permitting the minister to defer the commencement of a warrant for up to 28 days.

Other amendments to the ASIO Act deal with the minister's power to authorise ASIO to collect foreign intelligence in Australia. Firstly, the bill extends the authority of the minister to issue warrants for that purpose by taking into account the new categories of warrant which are introduced elsewhere in the bill. That amendment will maintain the present connection in the ASIO Act between warrants for the purpose of collecting foreign intelligence in Australia and warrants for the purpose of collecting intelligence relevant to security.

Secondly, the bill will enable the minister, based on advice from relevant ministers, to authorise ASIO to collect foreign intelligence by means which are not otherwise regulated under relevant warrant provisions, for example, by the use of human agents.

Another amendment dealing with warrants will broaden the range of warrants which the director-general may issue in an emergency. As is currently the case, such warrants may remain in force for no longer than 48 hours and the director-general must immediately notify the minister.

The bill will also provide the director-general with a discretion to charge a fee to recover all or part of the cost to ASIO of providing advice or a service to a person at that person's request. It is envisaged that a fee may be imposed where, for example, ASIO provides protective security advice to a state agency under paragraph 17(1)(d) of the ASIO Act. ASIO will not charge fees for the performance of its core function of communicating security intelligence.

A further amendment to the ASIO Act will permit ASIO to provide a security assessment for state purposes in relation to the 2000 Olympics or Paralympics directly to a state or an authority of a state. This change will achieve administrative efficiencies in the communication of such assessments without extending ASIO's responsibilities. Because this amendment is specifically related to the Olympics, there is a sunset clause. The amendments also revise the penalty provisions in the ASIO Act to permit the calculation of pecuniary penalties according to the formula set out in the Commonwealth Crimes Act.

Financial Transaction Reports Act 1988

The bill amends the Financial Transaction Reports Act 1988 to give ASIO access to information on certain financial transactions that are reported to the Australian Transaction Reports and Analysis Centre, AUSTRAC. The amendments allow the Director of AUSTRAC to authorise ASIO to have access to the AUSTRAC database of reportable transactions in order to be able to follow the money trail, as happens in the investigation of criminal activity, and identify the financiers of major crime. This amendment means that ASIO will be able to follow the money trail associated with activities that are intended to harm Australia's security.

Like organised crime, activities that are prejudicial to Australia's national security are likely to be connected with concealed movements of money, including movements of money into Australia. It is entirely appropriate that ASIO should be able to access such potentially important information which is already available for law enforcement.

ASIO's authority to use and communicate FTR information is regulated by the amendments. In addition, access to the AUSTRAC database will be controlled by a memorandum of understanding agreed between the Director-General of Security and the Director of AUSTRAC.

ASIO is also required to comply with ministerial guidelines regarding the performance of its functions. Amongst other matters, those guidelines cover ASIO's handling of personal information. The guidelines are being reviewed in consultation with the Privacy Commissioner to ensure that information obtained from the AUSTRAC database is properly handled within ASIO.

The Inspector-General of Intelligence and Security will monitor ASIO's compliance with the Financial Transaction Reports Act, the memorandum of understanding and the guidelines; and, to ensure proper accountability, will report to the Attorney-General on those matters.

Taxation Administration Act 1953

The amendments to the Taxation Administration Act will permit the tax commissioner to disclose tax information to ASIO. This provision will put ASIO into the same position as law enforcement agencies who may already receive tax information from the commissioner.

This amendment will also assist strengthen ASIO's ability to conduct investigations into activities which involve concealed financial transactions. Counter espionage investigations are one example.

ASIO's use of tax information will be controlled by the strict secrecy provisions of the Taxation Administration Act and will be monitored by the Inspector-General of Intelligence and Security.

Other consequential amendments

The bill contains a schedule of consequential amendments to other legislation arising from the decision to change the spelling of `organisation' in ASIO's title.

In conclusion, I remind the House that ASIO performs functions which are fundamental to any responsible government and that, although many of its operations must be secret, ASIO is nevertheless answerable to ministers and, through them, to the parliament and the people.

I also remind the House of the mechanisms available to ministers and the parliament to ensure that ASIO acts lawfully and properly, including the parliamentary joint committee and the Inspector-General of Intelligence and Security. Honourable members may continue to have confidence in the measures.

I present the explanatory memorandum to the bill.

Debate (on motion by Mr McClelland) adjourned.