National security

Cat Barker, Foreign Affairs, Defence and Security
Monica Biddington, Law and Bills Digest

Key issue
Australia’s security environment is expected to continue to be complex and challenging, with key threats including terrorism, espionage and foreign interference.
Continued review and amendments to existing legislation and policy will be necessary to maintain Australia’s national security.

Key threats and outlook

The head of the Australian Security Intelligence Organisation (ASIO) considers that Australia’s security environment ‘will remain complex and challenging for the foreseeable future, with heightened terrorism, espionage and foreign interference threats compounded by rapidly changing technologies…’.

Terrorism

The National Terrorism Threat Level has remained at ‘probable’ since 2014, meaning there is credible intelligence indicating individuals or groups have both the intent and capability to conduct an attack.

There have been 41 counter-terrorism operations in Australia since the threat level was raised, resulting in 93 people being charged with terrorism and other offences (not all of which have resulted in convictions) and the disruption of 15 major terrorist plots. Seven attacks were committed in Australia over that period.

Attacks and disruptions during the 45th Parliament included: the Brighton siege in June 2017 (in which a gunman killed a man and took a woman hostage before being shot dead by police); an attack in the Melbourne CBD in November 2018 (in which a man ignited a vehicle loaded with gas bottles and stabbed three people before being shot by police and later dying in hospital); the disruption in July 2017 of an alleged plot to use an improvised explosive device on a flight departing Sydney; and the disruption in November 2017 of an alleged plot for a terrorist attack on New Year’s Eve.

While the Islamic State group no longer holds territory in Syria and Iraq, around 90 Australians who travelled to the region to fight with or support IS or other terrorist groups remain in the conflict zone, and the Australian Federal Police (AFP) has arrest warrants for 28 of them. Authorities expect only a small number of these individuals will return to Australia, but hold concerns about the potential threat posed by returnees, particularly those who spent longer in the conflict zone.

ASIO considers that the primary terrorist threat in Australia continues to be posed by a small number of Islamist extremists, with all but one of the 22 recent attacks and disruptions related to Islamist extremism. The first terrorism charges relating to far-right extremism were laid in August 2016 against a Victorian man accused of planning attacks on three Melbourne targets.

ASIO continues to assess that the most likely form of terrorism in Australia is an attack by an individual or small group using simple and low-cost attack methods (this is consistent with recent attacks, three of which involved knives, and three firearms).

Espionage and foreign interference

In recent years, ASIO has warned of increasing threats from espionage and foreign interference in Australia, stating in January 2018 that the volume and scale of these threats is unprecedented, owing to ‘the exponential rise of cyber as a vector’ and Australia’s increasing interconnectedness with the rest of the world.

ASIO notes that there are several factors that make Australia an attractive target, including ‘its position as a major commodity supplier, scientific and technological innovator and potential joint venture partner’ and its military modernisation program. It has stated that countries targeting Australia include a ‘more diverse range of hostile foreign intelligence services working against us than we’ve had in the past’, as well as some countries with which we have ‘strong and enduring relationships’. ASIO regularly observes cyber espionage targeting Australia, and expects more countries to pursue cyber espionage programs due to the low cost and plausible deniability they provide.

Beyond espionage, ASIO has identified foreign powers ‘clandestinely seeking to shape the opinions of members of the Australian public, media organisations and government officials’ to advance their own political objectives, and seeking to quash criticism of foreign governments by ethnic and religious communities in Australia. Examples of these sorts of activities were included in an April 2019 episode of Four Corners that examined Chinese influence and interference operations in Australia.

Key measures in the 45th Parliament

Counter-terrorism

During the 45th Parliament, legislative amendments were passed to:

establish a scheme for the continuing detention of terrorist offenders who are considered to pose an unacceptable risk of committing certain serious terrorism offences if released into the community at the end of their custodial sentence. The scheme introduced a continuing detention order made by application to the Supreme Court of a state or territory
facilitate access to certain communications and data by law enforcement and intelligence agencies for the purposes of disrupting and investigating criminal activity and threats to national security, including terrorism. Among other things, the legislation compels industry to assist agencies to decrypt certain communications. The legislation prompted extensive debate and stakeholder concern before passing the Parliament in December 2018 and
require internet service providers or content hosts to take timely action in relation to abhorrent violent material. Such material might include murder, terrorism, torture, rape or kidnapping. This law was introduced in response to the terrorist attack in Christchurch, New Zealand.

At the time the election was called, there were a number of counter-terrorism Bills before the Parliament. Although these Bills have now lapsed, similar Bills may be reintroduced in the 46th Parliament:

The Crimes Legislation Amendment (Police Powers at Airports) Bill 2018 would expand police powers to require identity information from a person at a major airport and introduce powers for police to give a direction that a person leave the airport premises as soon as possible or not take a flight.
The Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018 would expand the circumstances in which the Minister may determine that a person ceases to be an Australian citizen if they are convicted of certain offence.
The Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 would introduce a scheme to delay and manage the re-entry to the country of Australians of
counter-terrorism interest.
The Counter-Terrorism Legislation Amendment Bill 2019 would implement a COAG agreement to introduce a presumption against parole for a person charged or convicted of terrorism offences and introduce amendments relating to the presumption against bail for a person under 18 years who is charged with a terrorism offence.

Australia’s latest National Counter-Terrorism Plan was published in October 2017 by the Australia New Zealand Counter-Terrorism Committee (ANZCTC). The Plan details Australia’s strategies to prepare for, prevent, respond to and recover from terrorism incidents. The ANZCTC also developed a strategy to protect people in crowded places from terrorism. This outlines four elements to build a consistent national approach to protecting crowded places that can be applied flexibly throughout Australia.

The 2019–20 Budget included additional funding for the AFP to ‘enhance critical capabilities and operations, including counter-terrorism activities’. The additional funding is intended to support the management and monitoring of persons of interest; help the agency address the risks posed by returning foreign fighters and terrorist prisoners due for release; enhance its ability to operate offshore to combat the threat of foreign fighters attempting to return to Australia, and fund new and enhanced technology, including anti-drone systems.

Combating espionage and foreign interference

The National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (EFI Act) updated Australian espionage offences and introduced new foreign interference offences intended to capture certain conduct that ‘falls short of espionage but is intended to harm Australia’s national security or influence Australia’s political or governmental processes’. The reforms followed a comprehensive internal review of Australian laws relating to foreign interference requested by the Prime Minister in 2017. Funding was included in the 2019–20 Budget for work by a range of agencies to counter foreign interference, including through the investigation and prosecution of offences under the EFI Act and establishment of a joint AFP-ASIO Foreign Interference Threat Assessment Centre.

Protecting critical infrastructure

The Government established the Critical Infrastructure Centre in January 2017. The Centre, part of the Department of Home Affairs, ‘works across all levels of government, and with owners and operators to identify and manage the risks to Australia’s critical infrastructure’. Its initial focus is on risks of sabotage, espionage and coercion in the telecommunications, electricity, gas, water and ports sectors.

Two new legislative regimes have been established to protect critical infrastructure:

The Telecommunications and Other Legislation Amendment Act 2017 introduced an obligation on carriers, carriage service providers and carriage service intermediaries to do their best to protect networks and facilities from unauthorised access and interference. It also introduced an obligation on carriers and some carriage service providers to notify the Government of planned changes to their networks and services that might compromise their ability to comply with the security obligation. The Act also gave the Minister a new power to direct a carrier, carriage service provider or carriage service intermediary to take action that is reasonably necessary to protect a network or facility from a national security risk.
The Security of Critical Infrastructure Act 2018 established a Register of Critical Infrastructure Assets that includes information on who owns and operates those assets (which must not be made public). It also allows the Minister to give a direction to a reporting entity or an operator of a critical infrastructure asset to do, or refrain from doing, a specified act or thing within a certain timeframe, if satisfied that there is a risk prejudicial to security that cannot otherwise be mitigated.

Recent developments

In April 2019, the Independent National Security Legislation Monitor’s (INSLM) report on the prosecution and sentencing of children for Commonwealth terrorism offences was tabled. The report recommended changes to the Crimes Act 1914 relating to sentencing provisions, and to broader justice, reporting and budget matters.

The Parliamentary Joint Committee on Intelligence and Security (PJCIS) considered ASIO’s questioning and detention powers, recommending in 2018 that the Government develop legislation for a reformed ASIO questioning framework. The existing framework will expire on 7 September 2019.

Both the INSLM and the PJCIS have recommended that an extended supervision order scheme should be introduced to impose restrictions on a convicted terrorist offender who is released into the community.

Reviews to be completed in the new Parliament

The INSLM and the PJCIS are reviewing the operation, effectiveness and implications of the terrorism-related citizenship loss provisions in the Australian Citizenship Act 2007, with the INSLM to report by August 2019 and the PJCIS by December 2019.

The INSLM is undertaking a review of the Telecommunications and other Legislation Amendment (Assistance and Access) Act 2018, with a report due by March 2020. The PJCIS is also reviewing this Act and is due to report by April 2020.

The PJCIS is also conducting a review of the mandatory data retention regime, due by April 2020.This regime requires carriers and service providers to retain prescribed telecommunications data for two years, ensuring that it is available for law enforcement and security investigations.