DISSENTING REPORT BY THE AUSTRALIAN GREENS
1.1
The Australian Greens object to the content of this Bill and to the
Committee reporting three months early so it can be rushed through the Senate.
The poverty in both the content of the Bill and the Committee's process in
reviewing it will be examined in turn.
1.2
The government is desperate to pass this Bill but is not clear as to
why. At the hearing that only occurred because I insisted one was necessary, I
asked about reasons for the hurry and was told by Attorney General's
Department,
While I cannot reasonably talk about specific cases here, I
can assure you that it is very important.[1]
1.3
It is nothing short of Orwellian that this is considered an argument.
1.4
Evidence provided by senior legal experts regarding the unnecessary and
dangerous implications of significantly broadening the definition of 'foreign
intelligence' and 'foreign power' elicited longer but similarly meaningless
responses from the Department.
1.5
The fact is that ASIO is already generally empowered to obtain,
correlate and evaluate intelligence relevant to 'security' and may obtain
warrants for this purpose. The current definition of 'foreign intelligence'
includes intelligence relating to the capabilities, intentions or activities of
foreign political organisations, even if they are not connected to or sponsored
by any state.
1.6
In their evidence as to how the amendments would operate in practice,
and their second and even third submissions, the Attorney General's Department
has not been clear on exactly what additional targets they envisage being
picked up by the amendments. In particular, they don't really explain what
legitimate targets of spying would not get picked up by the current definition
of 'foreign political organisation'.
1.7
The Law Council summarised the perplexity expressed in many submissions
when stating,
We simply do not know what it is that ASIO wants to be able
to do, needs to be able to do and cannot do because of the constraints of the
current legislation, so we cannot possibly sensibly discuss how the proposed
amendment could be narrowed so that it only provides that additional flexibility
that it needs to provide.[2]
1.8
While I have no doubt that the Inspector General of Intelligence and
Security will,
...continue to monitor this closely, as not only will it affect
my workload but also a significant increase in warrant applications could be a
clear indicator of whether the relevant conditions are being applied too
broadly.[3]
1.9
I share the concerns expressed by the Law Council that her role is
seriously undermined by this legislation and the difficulties her office has in
assessing the appropriateness of the gathering of foreign intelligence and the
issuing of warrants because the tests contained within the Act do not set out
clear parameters.
1.10
The Attorney General's Department also do not deal with the issue raised
in the Castan submissions [submission 2] that, in addition to section 11 of the
Intelligence Services Act, the Intelligence Services Act also imposes
additional constraints on spying on Australians (in sections 8 and 9) which
would not apply to ASIO under these amendments.
1.11
ASIS cannot spy on an Australian who is overseas and engaged in conduct
affecting Australia's economic wellbeing without also satisfying the minister
of the matters set out in sections 8 and 9 of the Intelligence Services Act.
Why should ASIO have broader powers to spy on Australians simply because of
their connections to overseas activity?
1.12
The discussion of supply chains of nuclear material is an incredibly
weak justification for the 'economic wellbeing' issue. If, however, nuclear
proliferation is really of such concern, why not expressly incorporate that
into the definition rather than this catchall of 'people or organisations
outside Australia' plus 'national economic wellbeing'?
1.13
As is well known, the proliferation issue is already covered by the
definition of security. In their third submission, the Department merely
rehashed this example and added another about illegal fishing, which seems
strangely appropriate given how fishy this process has been.
1.14
Turning to the Committee's process, I object to the undue haste pressed
upon the Committee by the government and the complicity of both major parties
in abandoning the initial reporting date of 21 September for no good reason.
1.15
The Senate Committee system is pivotal to the thorough scrutiny of
legislation. Committees have a vital role to play in carefully reviewing the
implications of laws and enhancing public understanding about their practical
application.
1.16
The inquiry process that solicits expert opinion and takes evidence in
public hearings is not simply a rubber stamping exercise but rather has an
important role in helping legislators get important details right. The process
should assist in weighing up whether laws afford the right balance between
security and civil liberties and whether they are necessary or proportionate.
1.17
It should not take media attention being drawn to a Bill's existence for
the Committee process to be reluctantly initiated. The public hearing for this
Bill was conducted over a 90 minute period during a busy Parliamentary sitting
day. It was only by accident that I was able to attend the hearing because
debate on another bill was postponed.
1.18
Yet again, the Senate is being called upon to rubber stamp an
extraordinary expansion of ASIO's powers with entirely inadequate justification
provided. And yet again, there appears to be a bipartisan consensus to simply
let this sail through.
1.19
ASIO is very well endowed. Given that its mandate and budget is
ever-increasing, its staffing complement has tripled over the decade, and its
facilities under construction resemble a fortress second only in size to the
Parliament, each expansion of ASIO's powers should be carefully examined.
1.20
That has not been the case with this inquiry. The Australian Greens
are not satisfied that this report adequately addresses the issues and concerns
raised in the submissions received and do not believe the Bill should proceed.
Senator Scott Ludlam
Australian Greens
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