Legislation introduced by the Abbott government to overhaul Australia’s national security was debated in the Senate this week, with Independent Senator Nick Xenophon declaring his support in general for the new provisions – but with caveats.

The National Security Legislation Amendment Bill, introduced by Attorney General George Brandis in July, is seeking to improve the legislative framework governing ASIO, ASIS and other agencies, “to keep pace with the evolving security environment”.

The bill’s debate came as tensions increased dramatically over reported Islamic State (IS)-related terrorist activity in Australia, following arrests in Sydney and Brisbane, and the death of an 18-year-old supporter of IS in Melbourne.

During the debate on Wednesday, Senator Xenophon said that it was “axiomatic” that a key role of the state was “to protect the public from terrorist acts” and that to do so, it was a necessity for Australia’s intelligence agencies “to operate in secret and have adequate powers and resources to do their jobs”.

But he warned that such powers “must never be an alibi for abuse of power”, before going on to say that he had “grave misgivings” about some of the changes proposed in the bill, including “harsh penalties for disclosure of intelligence information, with no consideration given to a public-interest exemption”.

The senator cited the case of Indian national Dr Mohamed Haneef, who was arrested in Brisbane in 2007 in connection with a failed Glasgow bomb plot.
The case – bungled by the AFP according to the official inquiry that found Haneef was wrongly charged – stood out as an example of what could go wrong, said Mr Xenophon.

“If this operation … had been a special intelligence operation … the details could not have been reported unless the reporter was willing to risk up to 10 years in prison.”

“It should not be left to prosecutorial discretion whether a reporter should be tried in such a case. There must be a public interest exemption or, at the
very least … public interest matters must be considered in the course of fixing a penalty.”

Senator Xenophon added that ASIO’s powers to infiltrate innocent people’s computers to obtain covert access to targets, along with other cybersecurity issues, was an area that needed further safeguards and clarification.

He also called for the establishment of a committee, independent from the executive arm of government, to oversee Australia’s intelligence services.

In comparison to the United States, Germany and the United Kingdom, Mr Xenophon said that Australia has the weakest oversight mechanisms – a situation that had evolved over a number years and was “almost a cultural issue”.