Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

The committee is considering the National Security Legislation Amendment Bill (No. 1) 2014 and amendments Nos (1) and (2) on sheet 7570, moved by Senator Macdonald.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

These are the amendments, as I understand, that are actually Greens amendments that Senator Macdonald chose to bring upon himself to move on our behalf, because he considered that the debate was not moving fast enough. This debate was in fact about extremely important issues that both Senator Xenophon and Senator Ludlam were raising and asking the Attorney-General, Senator Brandis, about because he had not been answering the questions—very relevant and important questions—that the senators had been asking about the Alert Digest from the Scrutiny of Bills Committee. That committee had circulated the issues that they had raised with the Attorney-General through the process and the Alert Digest had highlighted many of those issues. The Scrutiny of Bills Committee raised a large number of issues about this bill.

It is deeply concerning that Senator Macdonald took it on himself to move our amendments, when we were in the process of asking questions that go to the heart of this bill. It is extremely concerning. I just wanted to put on the record that we were deeply concerned that Senator Macdonald moved our amendments. I have made my contribution, and I encourage other people to engage in the debate.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I thank Senator Siewert for her thoughtful contribution. One of the reasons that this debate has spilled over today is that the Attorney-General unnecessarily detained the chamber for well over an hour refusing to provide a document—effectively, his response to the Scrutiny of Bills Committee, which raised 19 separate concerns. Having had the opportunity now to review some of the concerns that they raise, I might come back to some of those later in the debate.

We have, as Senator Siewert indicated, moved to debate on the first substantive amendment, which is the Australian Greens amendment relating to the definition of 'computer' and the fact that this bill mandates an extraordinary expansion to how the law henceforth will understand to be the definition of a computer by expanding it to include the definition of a network or networks.

A couple of days ago, on 24 September, there was a piece by Ben Grubb in the Sydney Morning Herald entitled 'Fears ASIO to monitor entire internet' that noted the fact that the Senate had begun debating this legislation. The fear that the article describes is—as many witnesses and submitters to the joint committee noted—that this deliberate expansive definition of 'computer' means that, effectively, with one single warrant ASIO could spy on any device connected to the internet anywhere in the world. I find it remarkable that, under the weight of this evidence, the Labor Party considers that that is okay.

Having, I guess, to my satisfaction found that this was not a drafting error and was in fact intentional, I put the question to Senator Brandis last night, and I think just before the debate adjourned, Senator Brandis confirmed to Senator Macdonald and to me that it is in fact the intention the Australian government that a single—

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

That is not what I said. I rise on a point of order, Madam Temporary Chair. That is an entire misrepresentation of what I said, and I cannot believe that any person could have misunderstood what I said and then represent what Senator Ludlam has just said to be what in fact I said. That was a lie, Madam Temporary Chair.

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Ludlam, it would assist the chamber if you would withdraw.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Withdraw what?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

The lie.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I have just been accused of lying. That is unparliamentary. Senator Brandis has not indicated what he wants me to withdraw. You don't get to come in here and accuse people of lying. So I ask Senator Brandis to withdraw that immediately.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Madam Temporary Chair, I rise on the point of order. Senator Brandis is entitled to take a point of order but he is not entitled to accuse a senator of lying.

The TEMPORARY CHAIRMAN: Senator Brandis, your claim is unparliamentary and should be withdrawn.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I withdraw the word 'lie' and substitute the words 'deliberately mislead the chamber'.

The TEMPORARY CHAIRMAN: Senator Brandis, it would be unhelpful to leave it at that. Senator Brandis, you need to withdraw the word 'deliberately'.

If I have to I will, but the statement that has just come from the senator is misleading.

The TEMPORARY CHAIRMAN: Thank you, Senator Brandis, for assisting the chamber.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I had hoped that we could commence today's debate in a rather more parliamentary spirit than it was left off yesterday, but evidently that is not to be. What I will do is extend to Senator Brandis the opportunity to confirm for us—because I certainly have no wish to mislead this place or other senators or the public who are following this debate closely—the maximum number of devices that a warrant could capture under the government's drafting of this bill.

The TEMPORARY CHAIRMAN: The question is that the amendments be agreed to.

I would just note for those not familiar with Senate procedure that Senator Brandis is not willing to confirm what he said yesterday. I have asked you a direct—

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

That's not right, Senator Ludlam.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

You don't have the call, Senator Brandis.

The TEMPORARY CHAIRMAN: Senator Ludlam, please continue your remarks. Senator Brandis, you do not have the call.

I will just ask a direct question, because I do not know how to put this any more simply than I have done a number of times. What is the maximum number of devices that a single computer access warrant could capture under the government's drafting?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I am not going to indulge Senator Ludlam's tactic of delaying this debate by this filibuster. My answer to his question is the same answer I gave to him yesterday. It has not changed overnight.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

So, Senator Brandis, my understanding of the answer that you provided to Senator Macdonald and then myself is that there is actually no upper limit, that there is no maximum number of devices or no cap, I suppose—which is what the Australian Greens amendment goes to directly. I think it is extraordinary that the government would draft an amendment that the Labor Party would then support—without criticism, as far as I can tell—that sets no upper limit on the number of devices that a single ASIO warrant could catch. So, not just in theory but practically, a single warrant could be sought and received to capture a single mobile phone handset or a local area network or an entire university campus or an entire township. I think you can see where this is going. There is no upper limit on the number of devices.

Senator Brandis has obviously responded fairly heatedly. I may be in error in my interpretation of the answer he provided to us yesterday. I would be delighted if my understanding is in error, because what the Greens have proposed and what this amendment seeks to do is to impose an upper limit. I get the argument as to why ASIO thinks it is reasonable that they should not need to apply for a warrant for every single device. Under the circumstances in which we operate today, in a particular residence there might be a dozen handsets, laptops, desktop computers, tablets and goodness knows what. So, understanding the purpose behind ASIO not wanting to have to apply for a warrant for every single device, we nonetheless have extremely serious concerns. It is not the Greens alone who are concerned about this. Leaving it uncapped, leaving it at the discretion of either ASIO or the minister to allow as many devices as ASIO sees fit, is extraordinary. It requires amendment. I hope I have government, opposition and crossbench support for that.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I share the same concerns with respect to the open-ended nature of the bill as it is currently written. It is not just the Greens who are of the opinion that this could give access to the entire internet on a single warrant. I do too and so does the Institute of Public Affairs. They have raised this issue with me. There does need to be some sort of constraint on the scope of warrants issued under this section. It just cannot be allowed to stand. It is a licence to snoop on anybody at any time, anywhere.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I have a question. Senator Brandis unkindly suggested I was trying to filibuster the debate yesterday. I can assure him that that is something I do not want to do. I want to ask a very short question that may hopefully truncate this debate. I understand the answer given by the Attorney, that there is no upper limit in terms of the number of devices that can be accessed through a warrant. Will the Inspector-General of Intelligence and Security at least be able to ascertain how many devices are caught by such a warrant? In other words, with respect to a particular warrant, will we at least be able to ascertain how many devices that warrant relates to, even in broad terms—whether it is 100, 1,000 or one million? Can we establish that? Is that ascertainable? I will rephrase the question as succinctly as I can for the Attorney. Will this power provide some mechanism to establish how many devices have been caught by a particular warrant? Is that something that can be the subject of scrutiny by IGIS, for instance? It would assist me greatly if we could establish that.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

Senator Xenophon, the answer to your first question is that the warrant must describe that which can be accessed pursuant to the terms of the warrant. So this is an exercise in description. It is good practice that any warrant describes with particularity that which it captures. The answer to your second question is, yes, the IGIS can.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I will go into a little bit of detail as to why I am pursuing this concern and why the minister's dismissive attitude towards the concerns that the crossbenchers are raising is so profoundly irritating. This is not something that the Australian Greens have just plucked out of thin air; this is a profoundly important expansion of surveillance powers. I understand that the minister is taking advice at the moment. I am keen, perhaps for the benefit of those listening to this debate for whom these concepts might be somewhat new, to hear whether the minister could describe, as succinctly as he likes, what exactly ASIO would be empowered to do under a computer access warrant. What does applying for such a warrant allow ASIO to do, however we end up defining a computer or network of networks?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

What ASIO would be empowered to do would be that which is authorised by the warrant, which is in turn governed by the terms of the act.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Thank you for your opaque and utterly unhelpful response. Would that include monitoring of the device and the traffic that passes over it?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I do not have anything to add to my previous answer.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

And you wonder why the debate progresses so slowly, Senator Brandis. That is just treating people with utter contempt. Just provide us with a plain English answer. The Senate is here to do its job, as are you as the Attorney-General—

Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Ludlam, please make your remarks through the chair.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I shall do so, Madam Chair. Senator Brandis, does the computer access warrant allow ASIO to monitor traffic that passes over a given device, however it is defined?

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I have got nothing to add to my previous answer.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Does a computer access warrant allow ASIO to disrupt or install software on a targeted device?

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Very briefly, I can indicate that I will not support the Greens amendments for these reasons. I think that the concerns raised are legitimate. I think that, from an operational point of view, simply limiting it to no more than 20 devices is problematic. If it were a higher number I would be more sympathetic. The fact that IGIS can ascertain the number of devices that have been caught under a particular warrant gives me some comfort, although I would like to see in the longer term greater transparency with respect to this so that IGIS is in a position to say that so many devices have been caught by a particular warrants after the event. I cannot see how that would in any way, from a security point of view, compromise an operation, but I think it is important for Australians to know how devices may be caught under particular warrants. I think 20 is simply too low from an operational point of view.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I thank Senator Xenophon for that contribution. I am obviously very open to counterproposals. If you thought 50 was appropriate, if the Attorney-General through 200 was appropriate, the principle that I am after here is that it not simply be uncapped.

Progress reported.