Press conference with Mr David Irvine AO, Director-General of Security

16 July 2014

Subjects: National Security Legislation


Attorney-General: ….This bill, which is the first tranche of a series of reforms that the Abbott Government intends to make to our national security legislation, substantially gives effect to the recommendations in chapter four of the report of the Parliamentary Joint Committee on Intelligence and Security and it is to do with the powers of the intelligence agencies. The powers in particular of ASIO are set out in an Act of 1979, and although that Act has been amended from time to time in the years since, the ASIO Act is largely the 1979 Act and it is in some respects obsolete. It predates the Internet age.

Therefore, the legislation, which I understand has been circulated to you, contains a number of reforms. It contains reforms in relation to the capacity of the intelligence agencies to access computers, it provides for greater flexibility in the capacity of the intelligence agencies to share information when engaged on cooperative activities that power under the existing legislation is constrained. And it also - and this is one respect in which the legislation goes slightly beyond the recommendations of chapter four of the PJCIS report - it also fills a gap in the legislation whereby it is not unlawful for an officer of ASIO to illicitly copy or remove material from ASIO, that will now be an offence.

I'm also announcing today that the Government has decided not to proceed with the Budget measure to abolish the Office of the Independent National Security Legislation Monitor. That was an economy measure. It's not something we particularly wanted to do. It's something that because of the Budget emergency and in the search for Budget savings within every portfolio we thought was something that we might have to do. But given that there is extensive new legislation being introduced by the Government, as I said before, this is the first tranche of that legislation, it was a good idea to retain the Office of the Independent National Security Legislation Monitor.

I've also today referred this legislation to the Parliamentary Joint Intelligence and Security Committee for review and report by 8 September, so the bill will be introduced by me into the Senate this afternoon, it will be reviewed by the PJCIS during the winter recess. Given that its work is to give effect to recommendation of the PJCIS in the last parliament, I would anticipate we will be in a position to finalise the legislation and have it through the House of Representatives early in the spring sitting. And I want to extend my thanks to the Opposition for dealing with this very important matter on a bipartisan basis.

I might pass to the Director-General of Security to make some remarks of his own.

Director-General: Thank you, Attorney. There's no doubt that Australia faces significant and continuing threats of politically motivated violence particularly of terrorism as well as all the other national security threats that are listed in the ASIO Act, espionage and other things, are alive and well. What was necessary, and it's been necessary for some years, and we have worked closely with both the previous Government and with this Government, has been to look at the operating environment in which national security is carried out particularly in relation to the legislative framework.

And what we've tried to do in looking at all of these changes is to address two significant issues. One is the changing nature of the threat and the other is the changing nature of the technological environment in which we're operating. And so the legislation has a number of elements: one is simply to modernise it and bring it up to date so that it copes with the current operating environment; and the second is to ensure that intelligence agencies retain the necessary tools to do the job in this new operating environment; and thirdly to get some operating efficiencies.

I think you will be provided with a list of all the changes that are involved in the Bill, but let me just sort of run you very quickly through what I think are the most important ones. The Bill seeks to change the way in which ASIO accesses, legally, under warrant, computers, including third party computers. It looks at the way, and modernises the way, in which we legally use surveillance devices. It seeks to create greater efficiency in the issuing of warrants. If you're conducting a particular investigation which involves a whole series of intrusive surveillance techniques, including beaconing, tracking, listening devices and so on, at the moment we have to get a single warrant for each of those particular activities and it's trying to bring all of the activities under the same warrant.

It has provisions for improved information sharing, and this is one that is I think particularly important. And that is, in the past, we have rarely needed to collect intelligence on Australians overseas, but in the current operating environment, and you'll think Syria and Iraq particularly, there is a need to know what Australians are up to, particularly if they're going to come home and commit terrorist acts here in Australia. And it's been very difficult to collect information on them and what we've sought to do is to increase the ability of ASIS, the foreign intelligences agency, to be able to collect intelligence on Australians which it's not normally able to do without ministerial authorisation at the request of ASIO.

And then there are further provisions which the Attorney mentioned in respect of penalties for the unauthorised disclosure of information, as well as other what I'll call minor but still important provisions relating to the employment framework for ASIO and so on.

Question: The last point that you raised about intelligence gathering on Australians overseas, will that require amendments to the ISA Act, not just the ASIO Act?

Director-General: I don’t believe it will because what we would be asking the Director-General of ASIS to do is in fact to collect intelligence in accordance with the ASIO Act. We’d need to check that again.

Attorney-General: I think it’s right to say there are not amendments to the Intelligence Services Act required and the amendments that have been circulated to you are amendments to the ASIO Act.

Question: Can you explain the issue of penalties for unauthorised disclosure of information?

Attorney-General: There are two aspects to the question, David. At the moment there is an offence of disclosing illicit information – confidential information to a third-party. That offence carries a maximum penalty of two years imprisonment. The penalty for that offence has been increased to ten years. But there is a gap in the existing Act and that is there is no offence for illicitly removing or copying security intelligence so it’s an element of the offence that it has to be demonstrated that it was passed to a third-party. So in an instance where an officer may have illicitly copied or removed intelligence material, although it can’t be demonstrated that it’s been passed to a third-party, that’s currently not covered by any prohibition. Se we’re introducing a new offence for that activity punishable by up to three years imprisonment.

Question: Has that been driven by a particular incident?

Attorney-General: No.

QUESTION: There’s been some criticism that a lot of this has been done [inaudible] networks, foreign powers, [inaudible] dual citizens. Can you explain exactly how these powers are going to target Australians who are travelling overseas?

Director-General: I think you’re conflating two elements of the many elements in this omnibus amendment bill. With regard to, for example the use of third-party computers – what happens very frequently is that people use innocent computers to attack other networks and it doesn’t really matter whether it’s a terrorist organisation that’s doing that or a third country, what we need to do is to have the ability to track that attack, including through the innocent third-party computer.

Question: But that’s more about targeting sophisticated third-countries or foreign powers, isn’t it?

Director-General: Frankly, any form of sophisticated attack that is relevant to national security. So it could be a sabotage attack on critical infrastructure; it could be foreign state-based espionage attack; or it could be use of computer networks by terrorist organisations.

Question: You mentioned this is the first in the tranche, what’s your timetable for the rest? Would it include data retention? And on the Monitor, will Mr Walker be invited to continue in the position?

Attorney-General: Our expectation is that subsequent tranches of legislation, including, for example, the review of the terrorism related offences in the Commonwealth Criminal Code, will be brought to Parliament in the Spring Sittings. The question of data retention is under active consideration by the Government. I might point out to you that as recently as yesterday the House of Commons passed new data retention statute. This is very much the way in which Western nations are going. It’s been the case in Europe under the European Data Directive for some little while now. It’s not a decision Australia has yet made, it’s not a matter the Australian Government has yet decided to do. But it is true that it is under active consideration. And as to, as I said the office of the Independent National Security Legislation Monitor will be retained. The pre-existing incumbent of that office, Mr Bret Walker, his term has expired so the Government will be considering a new appointment to that position.

Question: Can I ask Mr Irvine about that matter of data retention. What’s your assessment of the requirement for Australia to have this capability? How important would that capability be in a practical sense?

Director-General: Absolutely crucial.

Question: Care to expand on that?

Director-General: As there is increasing sophistication in communications in almost every ASIO investigation and a very large number of law enforcement investigations depend, at least, in the first instance access to retained data. That’s telecommunications data that’s been retained by telecoms.

Question: Comments made by a former colleague of yours on the committee, Anthony Byrne, that committee you once served on, in Parliament on Monday said some very strident remarks about the threats that exist. He said that he believed that it was inevitable that eventually there would be an event in Australia of the magnitude of a Bali type event. Could I ask both of you to comment on that, whether you agree with that level of alarm or do you think it’s not that pressing at the moment?

Attorney-General:I’ll leave it to Mr Irvine to comment on ASIO’s view of the threat level but can I say in relation to Mr Byrne’s comments in the Parliament, Mr Byrne in fact was the chairman of the committee that produced the report on which the legislation is largely based. He has been a very constructive contributor to this discussion. The Government has thought carefully and thoroughly about the recommendations of the committee. The public are entitled to be reassured that their government will put security and safety of Australians foremost, but they’re also entitled to be assured that when making policy choices and reforming the laws, governments behave in a considered and careful manner, not in a hasty or reactive manner. This has been a matter of careful consideration. We haven’t approached this in haste, we won’t. But after careful consideration we have decided to adopt those recommendations.

Director-General: In answer to the second question, it is an unfortunate fact of life in Australia that there’s a number of people, admittedly a very small number of people but nevertheless a significant number of people, who subscribe to the theories of violent jihad and who could at any time be prompted to carry out an attack in Australia or overseas. Our job is to try to predict and prevent that and part of this Bill is to improve the tools that we have to do that.

Question: Does this warrant a wholesale review really, the merging of the threats and goals, a wholesale review of the separation of ASIO and ASIS?

Director-General: Not in my view.

Question: Why not?

Director-General: Simply because at this stage the intelligence settings are very different. They operate under different Acts. ASIO has a very, very significant set of obligations with regard to the privacy and civil liberties of Australians and so on. My view is that it is proper for them to operate separately but cooperating together which is what this Act tries to achieve.

Question: Mr Irvine, is ASIO satisfied with the pace at which decision making is being made on the data retention issue? Would you like this to have happened faster? And are there specific cases, investigations that you’ve had to abandon as a result of not having those particular powers?

Director-General: I’m very satisfied that careful consideration has been given last year and is being given this year to that subject.

Question: Mr Irvine, could you just update us and clarify the numbers of Australians, dual nationals or Australian nationals, who you believe are fighting overseas, or the number who may be overseas in some capacity fighting and where they are?

Director-General: Taking into account the fact that there could well be people who do not have great visibility or visibility at all. We’re working on the basis at the moment that there’s probably about 60 Australians in Syria fighting for one side or the other, but predominantly the anti-government side and that an alarming number of those people – or the majority of those people are gravitating to ISIL and other Al-Qaeda offshoots. So that’s about 60 people. We have some tens of people who have already returned and probably another 150 that we’re looking at in Australia who have inclinations to support those extremist movements.

Question: What’s the jihadist situation in Iraq? Will the measures that you bring forward in the Spring session have retrospective effect?

Attorney-General:That decision hasn’t been made.

Question: If they were to have retrospective effect, would it be hard to deal with people who are returning?

Attorney-General:Let’s not get ahead of ourselves. I am reviewing these laws as we speak. Ordinarily, it’s not the Australian Government’s view that there should be retrospective legislation but all aspects of the matter will be taken into account in the review. No such decision has been made.

Question: Can I ask the Director-General – how many Australians do you think are fighting in Iraq? And also if I could ask the Attorney-General, Luke Simpkins proposed a bill the other day to deal with people who are returning from fighting overseas, are you inclined to support that? How do you propose to deal with those people?

Director-General: In terms of the Islamic State, it’s a bit of a false construct to draw a difference between Syria and Iraq because most of the Australians we’re worried about are moving backwards and forwards. There are probably still more in Syria than in Iraq at the moment but because of the fluidity of movement, it’s difficult to answer your question accurately.

Attorney-General:And in relation to the other part of your question, I’m aware of Mr Simpkins’ private member’s motion and it touches on matters under consideration by the Government at the moment.

Question: You’ve said there are some tens of Australians who have returned from Syria. What is their status? Do you know what they did and how are you dealing with them?

Director-General: Because they are not identified, I’m not going to answer that question in detail but you would expect that we would be concerned about their activities on returning to Australia.

Question: Attorney-General, you recently spoke with a group of Imams who were broadly supportive of the changes you are making. What reaction have you had in your community consultation on these changes?

Attorney-General: The reaction from community groups has been positive. Of course, this legislation is erected on the basis of a report of a Parliamentary Committee which met for more than two years and received a number of submissions from community groups. As you mention, the Imams, I want to take the opportunity to emphasise the point that one of the most important elements in our suite of policies to keep Australians free from terrorism is community engagement. The Imams, who are faith leaders and are influential and respected opinion leaders in their communities, are essential in our goal of saving young men – it’s almost always young men – in their communities from being radicalised. Prevention is always better than cure. To prevent the people from being radicalised is by far and away a better thing than to deal with them once they have gone to fight as jihadists. I want to emphasise the importance that the government places on community engagement and in particular, the crucial role of the imams in that process.

Question: Just on those tens of Australians that have returned, are you saying they’re in the community but are being actively monitored?

Director-General:No, I’m not saying anything further.

Attorney-General: Thank you.