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Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Bill 2018

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2016-2017-2018

 

 

the parliament of the commonwealth of australia

 

 

 

house of representatives

 

 

 

intelligence service amendment (establishment of the australian signals directorate) bill 2018

 

 

 

explanatory memorandum

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the Minister for Defence, Senator the Hon Marise Payne)

 

 

 

 

 

iNTELLIGENCE SERVICES AMENDMENT (ESTABLISHMENT OF THE AUSTRALIAN SIGNALS DIRECTORATE) BILL 2018

general outline

 

1.       The Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Bill 2018 (the Bill) implements the recommendations of the 2017 Independent Intelligence Review to establish the Australian Signals Directorate (ASD) as an independent statutory agency within the Defence portfolio reporting directly to the Minister for Defence, as endorsed by Government. This Bill also includes a number of other related amendments following the establishment of ASD.

 

The 2017 Independent Intelligence Review

 

2.       On 7 November 2016, the Prime Minister, the Hon Malcolm Turnbull MP, announced that Mr Michael L’Estrange AO and Mr Stephen Merchant PSM would jointly undertake an independent review of the Australian Intelligence Community.  The timing of the review is consistent with the 2011 Independent Review of the Intelligence Community recommendation that periodic review occur every five years.

 

3.       On 18 July 2017, the Prime Minister released the unclassified version of the

2017 Independent Intelligence Review (the Review) report.  The Review made 23 recommendations in relation to the structural, legislation and oversight architecture of the intelligence community, including the establishment of ASD as an independent statutory agency within the Defence portfolio. 

 

Brief History of ASD

 

4.       The history of ASD begins in the Second World War, when Australian Navy, Army and Air Force personnel were brought together to support General MacArthur’s South-West Pacific campaign by intercepting and decoding Japanese radio signals.

 

5.       After the war, as the wartime signals intelligence units were wound down, government approval for a new peacetime signals intelligence organisation was given on 23 July 1946. The new Defence Signals Bureau opened at Albert Park Barracks, Melbourne, on 12 November 1947. Its role was to exploit foreign communications and be responsible for communications security in the armed services and government departments.

 

6.       The bureau was renamed Defence Signals Branch in October 1949, a title it retained until January 1964, when it became the Defence Signals Division. As a result of an inquiry in 1977 into intelligence and security, the Defence Signals Division was renamed the Defence Signals Directorate (DSD) and made directly responsible to the Secretary of the Department of Defence.

 

7.       In June 1988, the government decided that DSD should move to Defence headquarters at Russell Offices, Canberra, to facilitate a closer relationship with Defence, other intelligence agencies and key government departments.

 

8.       In recognition of successive Australian Government’s increased reliance on the provision of online services and commensurate information security exposure, in January 2010 DSD established the Cyber Security Operations Centre (CSOC).  The CSOC was required to develop a comprehensive understanding of ICT security threats to critical Australian systems, and to coordinate a response to those threats across government and industry.

 

9.       In May 2013, DSD was renamed the Australian Signals Directorate (ASD) to reflect its whole-of-government role in support of Australia’s national security.

 

10.   In November 2014, the CSOC evolved into the Australian Cyber Security Centre (ACSC) , which is the next evolution of Australia's cyber security capability. ACSC sees the co-location of all contributing agencies' cyber security capabilities, including:

a)       ASD’s cyber security mission - the Commonwealth authority on information security provides advice and assistance to Australian Government agencies;

b)       Computer Emergency Response Team (CERT) from the Attorney-General’s Department - the point of contact in government for cyber security issues affecting major Australian business;

c)       representatives of the Australian Federal Police, who investigate and respond to cybercrime of national significance;

d)      the Australian Criminal Intelligence Commission, which discovers, understands and prioritises cybercrime threat intelligence to enhance response options;

e)       cyber investigations and telecommunication security specialists from the Australian Security Intelligence Organisation; and

f)        strategic intelligence analysts from the Defence Intelligence Organisation.

 

11.   The ACSC is currently the joint responsibility of the Attorney-General and the Minister for Defence.

 

Proposed arrangements

 

12.   ASD  has evolved from a primarily Defence signals collection agency after World War II to become Australia’s national signals intelligence authority for collecting intelligence, supporting the military, and undertaking cyber security and effects operations through the application of advanced technologies. ASD is now a genuinely national asset, playing a much broader role than that defined by its previously exclusive Defence focus. 

 

13.   In broad terms, the Bill will separate ASD from the Department of Defence, and establish it as an independent statutory agency under the control of the Director-General of ASD.  The Bill will also amend ASD’s functions to allow the ACSC to cooperate with the persons and bodies listed in the Act and to operate within ASD, in accordance with recommendation 3(b) of the Review. Related to the transition of ACSC, CERT and its functions relating to cyber policy and security will also be transferred from the Attorney-General’s Department to ASD. CERT was established in 2010 as the national computer emergency response team, and is the primary government contact point for major Australian businesses in relation to matters involving cyber security.

 

14.   Specifically, the Bill implements the recommendations of the Review by:

 

a)       amending ASD’s functions to include providing material, advice and other assistance to any person or body listed in the Act (rather than Commonwealth and State authorities only) on matters relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means, which will allow the ACSC to liaise with industry;

 

b)       amending ASD’s functions to include preventing and disrupting cybercrime. This section will provide ASD with a function to prevent and disrupt, by electronic or similar means, the use of information and communication technologies to commit or facilitate serious crime by people or organisations outside Australia. Serious crimes, such as child exploitation and illicit narcotics, will be captured by this new function;

 

c)       establishing ASD on a statutory basis, and providing provisions for the appointment of the Director-General of ASD to control ASD and its staff;

 

d)      requiring the Director-General of ASD brief the leader of the Opposition about matters relating to ASD;

 

e)       giving the Director-General of ASD powers to employ persons as employees of ASD under this Bill (outside the frame of the Public Service Act 1999 );

 

f)        amending other legislation as appropriate to replace references to ‘Director of ASD’ with ‘Director-General of ASD’, and to remove references to the Department of Defence.

 

15.   In relation to the employment of staff, ASD will operate outside of the Public Service Act 1999 (Public Service Act) framework. This will provide ASD with greater flexibility to recognise the skills of its specialised workforce. This structure will reflect the need to retain those individuals with highly sought after skills, such as those with STEM (science, technology, engineering and maths) qualifications. The Bill will allow for transfers of employment from ASD to the Australian Public Service. ASD will be required under the Bill to adopt the principles of the Public Service Act in relation to employees of ASD to the extent the Director-General of ASD considers they are consistent with the effective performance of the functions of ASD.

 

16.   The Bill also includes an additional function for ASD, to protect the specialised technologies and capabilities acquired in the performance of its other functions. To carry out its functions to obtain intelligence, provide assistance to the Australian Defence Force, to assist other Commonwealth and State authorities, and to combat cybercrime, ASD uses specialised tools. ASD needs to be able to protect those tools to ensure their ongoing utility and protect Australia’s national interests.

 

17.   The Bill also includes a number of transitional provisions to ensure the good governance of ASD continues during the implementation of the new arrangements.  

 

Financial Impact Statement

 

The Act will have no additional financial impact.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Bill 2018 (the Bill) implements the recommendations of the 2017 Independent Intelligence Review (the Review) to establish the Australian Signals Directorate (ASD) as an independent statutory agency within the Defence portfolio reporting directly to the Minister for Defence.

In broad terms, the Bill will separate ASD from the Department of Defence, and establish it as an independent statutory agency under the control of the Director-General of ASD. The Bill will also amend ASD’s functions to bring the Australian Cyber Security Centre (ACSC) into ASD, in accordance with recommendation 3(b) of the Review. Related to the transition of ACSC, the national computer emergency response team (CERT) and its functions relating to cyber policy and security will also be transferred from the Attorney-General’s Department to ASD. CERT was established in 2010 as the national computer emergency response team, and is the primary government contact point for major Australian businesses in relation to matters involving cyber security.

Specifically, the Bill implements the recommendations of the Review by:

 

a)              amending ASD’s functions to include providing material, advice and other assistance to any person listed in the Act (rather than Commonwealth and State authorities only) on matters relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means, which will allow the ACSC to liaise with industry;

 

b)              amending ASD’s functions to include preventing and disrupting cybercrime. This section will provide ASD with a function to prevent and disrupt, by electronic or similar means, the use of information and communication technologies to commit or facilitate serious crime by people or organisations outside Australia. Serious crimes, such as child exploitation and illicit narcotics, will be captured by this new function;

 

c)              establishing ASD on a statutory basis, and providing provisions for the appointment of the Director-General of ASD to control ASD and its staff;

 

d)             requiring the Director-General of ASD brief the Leader of the Opposition about matters relating to ASD;

 

e)              giving the Director-General of ASD powers to employ persons as employees of ASD under this Bill (outside the framework of the Public Service Act 1999 );

 

f)               amending other legislation as appropriate to replace references to ‘Director of ASD’ with ‘Director-General of ASD’, and to remove references to the Department of Defence.

 

In relation to the employment of staff, ASD would operate outside of the Public Service Act 1999 (Public Service Act) framework. This will provide ASD with greater flexibility to recognise the skills of its specialised workforce. This structure will reflect the need to retain those individuals with highly sought after skills, such as those with STEM (science, technology, engineering and maths) qualifications. The Bill will allow for transfers of employment from ASD to the Australian Public Service. ASD will be required under the Bill to adopt the principles of the Public Service Act in relation to employees of ASD to the extent the Director-General of ASD considers they are consistent with the effective performance of the functions of ASD.

 

The Bill also includes an additional function for ASD, to protect the specialised technologies and capabilities acquired in the performance of its other functions. To carry out its functions to obtain intelligence, provide assistance to the Australian Defence Force, to assist other Commonwealth and State authorities, and to combat cybercrime, ASD uses specialised tools. ASD needs to be able to protect those tools to ensure their ongoing utility and protect Australia’s national interests.

 

Human rights implications

The Bill engages the right to privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which provides:

 

(1)      No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

 

(2)      Everyone has the right to the protection of the law against such interference or attacks.

 

The use of the term ‘arbitrary’ means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted ‘reasonableness’ to imply that any limitation must be proportionate and necessary in the circumstances. The right to privacy can be limited by necessity in a democratic society in the interests of national security or the protection of the rights and freedoms of others.

 

As a result of the Bill, a number of consequential amendments, which are necessary following the establishment of ASD, have also been identified. The most notable amendment in terms of human rights implication relates to the proposed amendments to the Australian Communications and Media Authority Act 2005 (ACMA Act), which is necessary following the transfer of the functions of CERT from AGD to ASD.

 

CERT was established in 2010 as the national computer emergency response team, and is the primary government contact point for major Australian businesses in relation to matters involving cyber security. Currently, an Australian Communications and Media Authority (ACMA) official authorised by the Chair of ACMA may disclose ‘authorised disclosure information’ to a number of authorities specifically listed in section 59D if the Chair is satisfied that the information will enable or assist the authority to perform or exercise any of its functions or powers. The term ‘authorised disclosure information’ includes information that was given in confidence to ACMA in connection with the performance of its functions, or obtained by ACMA as a result of the exercise of any of its powers. The ACMA Act allows ACMA officials authorised by the Chair to disclose ‘authorised disclosure information’ to Australian Public Service employees in CERT whose duties relate to telecommunications or law enforcement.

 

Following the transfer of functions of CERT from AGD to ASD, it is necessary to amend the ACMA Act to allow ACMA officials authorised by the Chair to disclose ‘authorised disclosure information’ to ASD.  This change may engage the right to privacy, as ASD has been added to the list of specific authorities able to receive information under the ACMA Act.

 

However, the amendment pursues the legitimate objective of protecting the rights and freedoms of individuals and businesses. Specifically, the amendment protects Australians and Australian businesses through enabling the performance of CERT functions in providing material, advice and other assistance to any person relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means or cybersecurity.

 

The amendment only goes so far as necessary in affecting the right to privacy. First, only an ACMA official authorised by the Chair of ACMA may disclose ‘authorised disclosure information’ to a number of authorities specifically listed in section 59D. Second, the Chair of ACMA must be satisfied that the information will enable or assist the authority to perform or exercise any of its functions or powers. Lastly, the Chair of ACMA may impose written conditions on the disclosure of ‘authorised disclosure material’ to the listed authorities. For example, a condition could be imposed that the information must not be further disclosed by the authority that receives it.

 

Therefore, the Bill does not have the effect of intruding into privacy on an unwarranted or unreasonable basis. The inclusion of ASD in the disclosure provisions would not be arbitrary, as it would be limited to what is necessary to perform any of its functions or powers, and it would  need to be in compliance with conditions set by the Chair of ACMA.

 

Articles 6(1), 7 and 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

 

Right to work

 

The right to work is the right of all people to have the opportunity to gain their living through decent work they freely choose, allowing them to live in dignity. It provides:

 

(1)      that everyone must be able to freely accept or choose their work, including

that a person must not be forced in any way to engage in employment;

 

(2)      a right not to be unfairly deprived of work, including minimum due process rights if employment is to be terminated; and

 

(3)      that there is a system of protection guaranteeing access to employment.

 

Right to just and favourable conditions of work

 

The right to just and favourable conditions of work provides that all workers

have the right to just and favourable conditions of work, particularly adequate and fair remuneration, safe working conditions, and the right to join trade unions.

 

Currently, ASD as part of the Department of Defence, operates under the framework of the Public Service Act. Under the proposed arrangements, ASD would operate outside the Public Service Act framework. Instead, the Director-General of ASD would be given the power to employ by written agreement such employees of ASD as the Director-General thinks necessary for the purposes of the Act, and may determine the terms and conditions on which employees are to be employed. The Director-General may also, at any time, terminate the employment of a person employed by him/her.

 

This change may affect the right to just and favourable conditions of work, as the employees are no longer under the Public Service Act framework, but instead under the determinations of the Director-General as he/she sees appropriate. 

 

However, the amendment pursues the legitimate objective of providing ASD with greater flexibility to recruit, retain, train, develop and remunerate its specialist staff, in accordance with the recommendations of the 2017 Independent Intelligence Review. For ASD, the option of continuing to operate within the Public Service Act employment framework, even with some specific exemptions, is not the most effective way forward.  It would increase the risk of losing additional critical talent, skills and capabilities.

 

An important safeguard has been included in the Bill to ensure that the new ASD employment framework would not be arbitrary. Under section 38F, The Director-General of ASD must adopt the principles of the Public Service Act in relation to employees of ASD to the extent to which the Director-General considers they are consistent with the effective performance of the functions of ASD. This has the effect of protecting ASD employees, similar to the protection received by public servants employed under the Public Service Act.

 

There are two additional measures to safeguard workers. First, the Fair Work Act 2009 will continue to apply to ASD employees and provide them with an avenue for redress for their employment-related grievances. In addition, the Inspector-General of Intelligence and Security (IGIS) will be given powers to investigate complaints regarding employment-related grievances from ASD employees. At present, the IGIS is not able to investigate these complaints, and ASD employees can seek redress through the Public Service Commissioner or the Merit Protection Commissioner. After 1 July 2018, ASD employees can bring their grievances to the IGIS in the same way as for ASIO and ASIS employees.

 

Therefore, the Bill does not have the effect of intruding into the right to work on an unwarranted or unreasonable basis.

 

Conclusions

The Bill is compatible with human rights and to the extent that it limits some rights, those limitations are reasonable, necessary and proportionate in achieving a legitimate objective.



 

 

 

Notes on clauses

Clause 1: Short title

Clause 1 provides for the short title of the Act to be the Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Act 2018 (the Act).

Clause 2: Commencement

Clause 2 is the commencement provision for the Act and includes a table setting out the details of the commencement of sections of the Act. 

Column 1 of the table sets out the provisions in numbered items, column 2 sets out the commencement and column 3 sets out date/details.  Information in column 3 does not form part of the Act, so information can subsequently be inserted in the column (or edited) in a published version of the Act.

Item 1 in the table provides that sections 1 to 3 of the Act and anything in the Act not elsewhere covered by the table commences when the Act receives Royal Assent.

Item 2 in the table provides that Parts 1 to 3 of Schedule 1 commence on 1 July 2018.

Item 3 in the table provides that, Schedule 1, Part 4commences on the later of 1 July 2018 and immediately after the commencement of Schedule 1 to the Privacy Amendment (Notifiable Data Breaches) Act 2017.

A note to the reader stipulates that the table only relates to the provisions as originally enacted and will not be amended to reflect later amendments to the sections of the Act.

Clause 3: Schedules

Clause 3 provides that amendments to, or repeal of, legislation contained in the Act are set out in the Schedules to the Act and any other item in a Schedule to the Act has effect according to its terms.



MAIN AMENDMENTS

Schedule 1 - Amendments to the Intelligence Services Act 2001

Part 1 - Main amendments

The amendments to the Act set out in this Schedule reflect recommendations of the 2017 Independent Intelligence Review (the Review) in relation to the Australian Signals Directorate (ASD).

 

Item 1 amends the definition in section 3 of ‘agency head’ by replacing the reference to ‘Director of ASD’ with ‘Director-General of ASD’.

 

Item 2 amends the definition in section 3 of ‘ASD’ by removing reference to ‘Defence Department’, following the establishment of ASD as an independent statutory agency.

 

Item 3 inserts new definitions in section 3 for ‘ASD contract’, ‘contracted service provider’, and ‘cybercrime’.

 

‘ASD contract’ means a contract, to which ASD is a party, under which services are or were to be provided to ASD. With respect to an ASD contract, ‘contracted service provider’ means either the person who is a party to, and responsible for the provision of services to ASD under, the ASD contract; or a subcontractor for the ASD contract.

 

‘Cybercrime’ means activities that involve committing a serious crime by, or facilitated by, the use of electromagnetic energy, whether guided or unguided or both.

 

Item 4 removes the definition in section 3 of ‘Director-General’ which means the Director-General of ASIS, as it is no longer necessary for the interpretation of the Act.

 

Items 5 and 6 amend the definitions in section 3 of ‘incidentally obtained intelligence’ and ‘intelligence information’ by replacing the reference to ‘7(a)’ with ‘7(1)(a)’ to reflect the new numbering.

 

Item 7 inserts new definitions in section 3 for ‘paid work’ and ‘subcontractor’.

‘Paid work’ means work for financial gain or reward (whether as an employee, a self-employed person or otherwise). This definition relates to certain limitations on the Director-General of ASD to undertake outside work (see new sections 27H and 27L).

‘Subcontractor’ means a person who is both a party to a contract (the subcontract) with a contracted service provider or a subcontractor for the ASD contract; and who is responsible under the subcontract for the provision of services to ASD, or to a contracted service provider for the ASD contract, for the purposes (whether direct or indirect) of the ASD contract.

 

Item 8 inserts ‘(1)’ before ‘the functions of ASD’ in section 7.

 

Item 9 repeals the original paragraph 7(c) and replaces with new paragraph 7(1)(c).

New paragraph 7(1)(c) creates a new function for ASD; to prevent and disrupt, by electronic or similar means, cybercrime by people or organisations outside Australia. This new cybercrime function will allow ASD to undertake activities to prevent and disrupt serious crime committed by, or facilitated by, the use of information and communication technologies by people or organisations outside Australia. A new function to combat cybercrime was recommended by the Review, recognising ASD’s technical expertise in the field of combating cybercrime.

The new cybercrime function will permit ASD to use its technical expertise to combat serious crimes undertaken by people or organisations outside Australia, such as child exploitation and illicit narcotics, committed or facilitated by, the use of electromagnetic energy, whether guided or unguided or both. Serious crimes are defined in the ISA as ‘conduct that, if engaged in within, or in connection with, Australia, would constitute an offence against the law of the Commonwealth, a State or Territory punishable by imprisonment for a period exceeding 12 months’. Necessary preparatory activities for the purposes of preventing and disrupting cybercrime, including collecting intelligence on people or organisations committing serious crimes, will be undertaken under this function. ASD will only be able to use electronic or similar means to combat cybercrime, and will be limited to preventing and disrupting serious crimes committed by people or organisations outside Australia.

 

Item 10 inserts a new paragraph 7(1)(ca).

New paragraph 7(ca) is an amendment of the original paragraph 7(c), replacing the phrase ‘Commonwealth and State authorities’ with ‘any person or body mentioned in subsection (2)’. This is to reflect ASD’s new role in providing cyber security assistance to the private sector as well as Commonwealth and State authorities through the Australian Cyber Security Centre. 

 

Item 11 creates a new function of ASD in new paragraph 7(1)(da) to protect ASD’s specialised technologies and capabilities acquired in connection with the performance of any of ASD’s subsection 7(a) to 7(d) functions. This function allows for the protection of specialised technologies and capabilities acquired and used in the performance of ASD’s other functions, and will allow ASD to take more active measures to protect highly sensitive technologies and capabilities from being detected or compromised.

 

Item 12 amends paragraph 7(e) by omitting “Commonwealth and State authorities”, and substituting “Commonwealth authorities and State authorities”. This amendment has been made to improve drafting and align the language with defined terms in the Act.

 

Item 13 creates new a subsection 7(2) to set out the conditions under which ASD may undertake activities referred to in new paragraph 7(1)(ca).

Subsection 7(2) identifies who is covered by the phrase ‘any person or body’ in paragraph 7(1)(ca). That is, subsection 7(2) provides that for the purposes of paragraph 7(1)(ca) the material, advice and other assistance may be provided to: a Commonwealth authority (subsection 7(2)(a)); a State authority (subsection 7(2)(b)); a foreign person or entity (subsection 7(2)(c)); any other person or body if the material, advice and other assistance is for the purpose of protecting or facilitating trade and commerce with other countries, among the States, between Territories or between a Territory and a State, or outside Australia (subsection 7(2)(d)(i)); any other person or body if the material, advice and other assistance are provided by way of a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution (subsection 7(2)(d)(ii)); or the information was obtained or generated in operation of a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution) (subsection 7(2)(d)(iii)). This section is designed to ensure that the assistance provided accords with the Commonwealth’s heads of powers under the Constitution.

 

Item 14 omits ‘and’ and substitutes it with ‘or in subparagraph 8(1)(a)(ii).

 

Item 15 inserts a new subparagraph 8(1)(a)(iii) requiring the Minister for Defence to issue a written direction to DGASD requiring ASD to obtain an authorisation under section 9 to undertake, in accordance with paragraph 7(1)(c), an activity, or series of activities, for the specific purpose, or for purposes which include the specific purpose, of preventing or disrupting cybercrime undertaken by, or enabled by, an Australian person. A person ‘enables’ cybercrime if they, knowingly or unknowingly, assist or facilitate cybercrime undertaken by another person. This person does not have to meet the threshold of conspiring or inciting the commission of the offence, or even be a witting accomplice, however the person does need to provide some meaningful contribution to the offence. Examples of when a person may ‘enable’ a cybercrime is where the person committing the offence is employed by an Australian company and is using the company’s equipment to commit the offence, or where the person committing the offence uses an Australian financial institution to deal with the proceeds of crime.

At present ASD is required to obtain a Ministerial authorisation before undertaking an activity, or series of activities, for the specific purpose, or for purposes which include the specific purpose, of producing intelligence on an Australian person. This provision will ensure adequate Ministerial oversight, as an appropriate check on ASD’s activities.

 

Items 16 to 18 amend section 11 by replacing references to ‘7(a)’, ‘7(e)’ and ‘7(c)’ with ‘7(1)(a)’, ‘7(1)(c), (e)’ and ‘7(1)(c), and (ca)’ to reflect new numbering.

The amendment to item 18 is made as preventing or disrupting cybercrime (such as child exploitation or illicit narcotics) will not always be performed in the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic well-being.

 

Item 19 amends the heading of section 12A to replace ‘Directors and Director-General’ with ‘Director and Directors-General’, as the title ‘Director of ASD’ has been changed to ‘Director-General ASD’ by the Bill.

 

Item 20 replaces ‘the Director of AGO, the Director of ASD and the Director-General’ with ‘the Director-General of ASIS, the Director of AGO and the Director-General of ASD’ in section 12A.

 

Item 21 replaces ‘Co-operation’ with ‘Cooperation’ in the section 13 heading.

 

Item 22 inserts a new sub-heading - ‘Cooperating with authorities of other countries - with approval’ before subsection 13(1A).

 

Item 23 inserts a new sub-heading - ‘Cooperating with authorities of other countries - ASD’ and the operational subsections address cooperation with authorities of other countries by ASD. New subsection 13(4) permits ASD to cooperate with authorities of other countries, capable of assisting ASD in performing its cyber security functions under subsection 7(1)(ca). New subsection 13(5) requires DGASD to, as soon as is practicable after 30 June each year, report significant cooperation undertaken under subsection 13(4) to the Minister for Defence and IGIS. This provides that a report must be in writing (subsection 13(6)(a)), but is not a legislative instrument (subsection 13(6)(b)). Subsection 13(6)(b) is included to assist readers, and is merely declaratory of the law.

ASD is required to obtain Ministerial approval under section 13(1)(c) before cooperating with authorities of other countries capable of assisting the agency in the performance of its functions. This new provision will allow CERT to continue its regular liaison with its international counterparts without requiring approval to be sought for each cooperation. ASD will still be required to obtain Ministerial approval before cooperating with authorities of other countries when undertaking its other functions.

 

Item 24 replaces ‘Co-operation’ with ‘Cooperation’ in the section 13A heading.

 

Item 25 amends the definition of ‘staff member’ by replacing ‘the Director of AGO, the Director of ASD and the Director-General’ with ‘the Director-General of ASIS, the Director of AGO and the Director-General of ASD’ in subsection 14(3).

 

Item 26 replaces ‘Director of ASD’ with ‘Director-General of ASD’ in paragraph 15(3)(b).

 

Item 27 inserts a new Part 3A - Establishment of ASD and role of Director-General of ASD.  This new Part is consistent with the recommendations of the Review, which were subsequently accepted by the Government.  Division 1 of Part 3A (sections 27A to 27D) deals with the establishment and control of ASD.  Division 2 of Part 3A (sections 27E to 27N) include administrative provisions relating to the Director-General of ASD.

 

 

 

 

Division 1 - Establishment of ASD and role of Director-General of ASD

Section 27A - Establishment of ASD on a statutory basis

This section establishes ASD as a statutory agency.  Subsection 27A(1) provides that the organisation known as ASD is continued in existence in accordance with this Act.  A note to the reader reaffirms that ASD provides assistance to the Defence Force in support of military operations and cooperates with the Defence Force on intelligence matter as part of its functions under paragraph 7(1)(d).  Subsection 27A(2) provides that for the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013), ASD is a listed entity and the Director-General of ASD is the accountable authority for ASD.  Subsection 27A(2) also includes a list of persons who are officials of ASD for the purposes of the finance law.

 

Section 27B - Appointment of Director-General of ASD

This section provides that there is to be a Director-General of ASD, to be appointed by the Governor-General by written instrument.  The provision requires that before a recommendation is made to the Governor-General for the appointment of a person as Director-General of ASD, the Prime Minister must consult with the Leader of the Opposition in the House of Representatives.

 

Section 27C - Control of ASD

This section relates to the control of ASD.  Subsection 27C(1) provides that ASD, and the staff referred to in subsection 38A(1), are under the control of the Director-General of ASD. New subsection 27C(2) provides that the Director-General of ASD is responsible for managing ASD and must advise the Minister in matters relating to ASD.

 

Section 27D - Briefing the Leader of the Opposition about ASD

This section provides that the Director-General of ASD must consult regularly with the Leader of the Opposition in the House of Representatives for the purpose of keeping him or her informed on matters relating to ASD. The amendment brings the arrangement for ASD in line with the arrangements for ASIO and ASIS .

 

Division 2 - Administrative provisions relating to the Director-General of ASD

Section 27E - Basis and period of appointment

This section provides that the Director-General of ASD holds office, on a full-time basis, for the period specified in the instrument of appointment.  The period must not exceed 5 years. This section is to be read in accordance with section 33AA of the Acts Interpretation Act 1901, which provides that the power to make an appointment is taken to include a power of reappointment.

 

Section 27F - Remuneration

This section sets out the remuneration arrangements for the Director-General of ASD.  Subsection 27F(1) provides that the Director-General of ASD is to be paid the remuneration that is determined by the Remuneration Tribunal.  If no determination of that remuneration by the Tribunal is in operation, the Director-General is to be paid the remuneration that is prescribed by the regulations.  Subsection 27F(2) provides that the Director-General of ASD is to be paid the allowance that are prescribed by the regulations.  Subsection 27F(3) stipulates that this section has effect subject to the Remuneration Tribunal Act 1973.

 

Section 27G - Resignation

This section provides that the Director-General may resign his or her appointment by giving the Governor-General a written resignation (subsection 27G(1)), and the resignation taking effect on the day it is received by the Governor-General or, if a later day is specified in the resignation, on that later day.

 

Section 27H - Termination of appointment

This section provides the grounds for termination of the appointment of the Director-General of ASD by the Governor-General.

Under subsection 27H(1), the Governor-General may terminate the appointment of the Director-General of ASD for misbehaviour or if the Director-General is unable to perform the duties of his or her office because of physical or mental incapacity.

Under subsection 27H(2) the Governor-General must terminate the appointment of Director-General of ASD for reasons related to bankruptcy (subsection 27H(2)(a)), or being absent for 14 consecutive days or for 28 days in any 12  months except on leave of absence

(subsection 27H(2)(b)).  The Governor-General must also terminate the appointment of the Director-General if he or she engages in paid work that, in the Minister’s opinion, conflicts or may conflict with the proper performance of the Director-General’s duties (subsection 27H(2)(c)).

Under subsection 27H(d), the Governor-General must terminate the appointment of the Director-General if the Director-General lacks or has lost an essential qualification for performing the duties of his or her office, for example, loss of security clearance (which aligns with the termination of employment provisions  in section 29(3)(b) of the Public Service Act).

A note to the reader at the end of subsection 27H(2) stipulates that the Director-General of ASD may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials).

Under subsection 27H(3), the Governor-General may, with the Director-General of ASD’s consent, retire the Director-General from office on the ground of incapacity if the

Director-General is an eligible employee for the purpose of the Superannuation Act 1976 , or a member of the superannuation scheme established by deed under the Superannuation Act 1990 , or an ordinary employer-sponsored member of PSSAP, within the meaning of the Superannuation Act 2005.

 

 

 

Section 27J - Acting appointments

This section provides that the Minister may, by written instrument, appoint a person to act as the Director-General of ASD during a vacancy in the office of the Director-General (whether or not an appointment has previously been made to the office), or during any period or all periods when the Director-General is absent from duty or from Australia, or is unable to perform the duties of the office for any reason.

Section 33A of the Acts Interpretation Act applies in relation to acting appointments.

This section provides how an appointment may be expressed, what conditions the

appointer may determine and confers upon the appointee the powers, duties and functions

of the holder of the office. Section 33A limits the period in which an appointee may act

in an office which is vacant, or becomes vacant, while the appointee is acting.

 

One of the recommendations of the Review is that a senior military officer be appointed as a principal ASD Deputy Director at a rank commensurate with the responsibilities and accountabilities of the role.  The Review envisages that the military officer appointed as the principal ASD Deputy Director would have access to the full suite of ASD enabling capabilities to support Defence outcomes, and would also ensure the command and welfare of ADF members seconded to ASD.

Subsection 27J(2) requires that if a person is appointed to act as the Director-General of ASD and the person is under the command of the Chief of the Defence Force under the Defence Act 1903 , then the person must perform the duties of the office of the Director-General consistently with this Act during the period of the appointment, even though the person is also under the command of the Chief of the Defence Force.  The purpose of the provision is to put it beyond doubt that if a military officer is appointed by the Minister to act as the Director-General of ASD under subsection 27J(1), he or she must perform the duties of the office of the Director-General consistently with the Act, even in the unlikely event that these duties may not be consistent with an order or command that applies to the person.

 

Section 27K - Leave of absence

This section provides that a Director-General of ASD has the recreation leave entitlements that are determined by the Remuneration Tribunal, and the Minister may grant the Director-General leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

 

Section 27L - Outside employment

This section provides that the Director-General of ASD must not engage in paid work that, in the Minister’s opinion, conflicts or may conflict with the proper performance of the Director-General’s duties.  As defined in section 3 of the Act, the term ‘paid work’ means work for financial gain or reward (whether as an employee, a self-employed person or otherwise).

 

Section 27M - Other terms and conditions

This section provides that the Director-General of ASD holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.

Section 27N - Delegation by Director-General of ASD

Subsection 27N provides that the Director-General of ASD may, in writing, delegate to a staff member who holds (or is acting in) an Executive Level 1 position (or higher), all or any of the functions or powers of the Director-General under Part 5A. Part 5A covers the Director-General’s employment powers and other staffing matters.

 

Item 28 replaces ‘Director of ASD’ with ‘Director-General of ASD’ in paragraph 30(ba).

 

Item 29 inserts anew Part 5A - Staff of ASD.  This new Part (sections 38A to 38H) deals with the employment and secondment of staff, and grievance procedure.

 

Section 38A - Employment of staff

This section deals with the employment and termination of staff. This section allows the Director-General to employ staff necessary to carry out the functions of ASD and establishes the staff as being Commonwealth employees of the Director-General.

Specifically, subsection 38A(1) provides that the Director-General of ASD may, on behalf of the Commonwealth, employ by written agreement such employees of ASD as the Director-General thinks necessary for the purposes of this Act.

Subsection 38A(2) provides that the Director-General, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of the engagement and employment of employees of ASD. 

Under subsection 38A(3), the Director-General of ASD may determine the terms and conditions on which employees are to be employed.  Before making a determination the Director-General must consult with the employees who are to be subject to the terms and conditions of the determination.

Subsection 38A(4) stipulates that the Director-General of ASD may, at any time, by written notice, terminate the employment of a person employed under subsection 38A(1).  A note to the reader at the end of this subsection confirms that the Fair Work Act 2009 has rules and entitlements that apply to termination of employment.

 

Section 38B - Consultants

This section provides that the Director-General of ASD may, on behalf of the Commonwealth, engage as consultants persons having suitable qualifications and experience to assists in the performance of ASD’s functions (subsection 38B(1)).  The engagement of a consultant by the Director-General must be by written agreement (subsection 38B(2)), and the terms and conditions of engagement are those that the Director-General of ASD determines in writing (subsection 38B(3)). This provision allows the Director-General to engage contracted resources on a commercial basis to support ASD in the performance of its functions.

 

 

 

Section 38C - Contracted service providers

This section provides that the Director-General of ASD may, on behalf of the Commonwealth, engage a contracted service provider to assist in the performance of ASD’s functions (subsection 38C(1)). The engagement of a contracted service provider by the Director-General must be by written agreement (subsection 38C(2)), and the terms and conditions of engagement are those that the Director-General of ASD determines in writing (subsection 38C(3)). This provision allows the Director-General to engage contracted resources on a commercial basis to support ASD in the performance of its functions.

 

Section 38D - Secondment of employees of ASD

Subsection 38D(1) provides that the Director-General of ASD may, in writing, arrange for an employee of ASD to be seconded for a specified period to a body or organisation whether within or outside Australia.  The Director-General may at any time, terminate the secondment by giving notice to the body or organisation (subsection 38D(2)).

 

Section 38E - Secondment of persons to ASD

Subsection 38E(1) provides that the Director-General of ASD may, by written agreement with a body or organisation (whether within or outside Australia), arrange for a person who is an officer, employee or other member of staff of the body or organisation to be made available to ASD to perform services in connection with the performance of its functions or the exercise of its powers. The terms and conditions (including remuneration and allowances) applicable to a person performing services under an agreement are those specified in the agreement (subsection 38E(2)).

 

Section 38F - Applicability of principles of the Public Service Act 1999

Although new ASD staff will be Commonwealth employees, they will not be employed under the Public Service Act. This section ensures that new ASD staff will not disadvantaged as Commonwealth employees by stipulating that the principles of the Public Service Act must be adopted by the Director-General in relation to employees of new ASD to the extent to which the Director-General considers they are consistent with the effective performance of the functions of ASD.

 

Section 38G - Voluntary moves to APS

Section 38G creates a mechanism for ASD employees to move to an APS agency in the same way that APS employees can voluntarily transfer from one APS agency to another under section 26 of the Public Service Act.  The provision will make an ASD employee who moves to an APS Agency under section 26 of the Public Service Act (as it applies because of section 38G) an APS employee for all purposes.  This will broaden the mobility opportunities for ASD employees in the APS.

Subsection 38G(1) stipulates that section 26 of the Public Service Act applies in relation to an employee of ASD as if the employee were an APS employee and ASD were an APS Agency.

Subsection 38G(2) provides that an employee of ASD who moves to an APS Agency under section 26 of the Public Service Act is entitled to have his or her employment, as an employee of ASD, treated as if it were employment as an APS employee, and at a corresponding classification as agreed between the Director-General of ASD and the Public Service Commissioner.  This will ensure that ASD levels have an equivalent APS level for operation of this new provision and the other related aspects of the Public Service Act (for example the special requirements in respect of merit that apply in relation to promotion).

 

Section 38H - Staff grievances

This section provides internal procedures within ASD for the consideration of grievances of staff and former staff of ASD.

 

Subsection 38H(1) requires that the Director-General of ASD must establish procedures relating to the consideration of grievances of employees and former employees of ASD, and determine the classes of ASD actions that are to be subject to the grievance procedures.  In establishing the procedures and determining the classes of action, the Director-General of ASD must adopt the principles of the Public Service Act to the extent to which the Director-General considers they are consistent with the effective performance of the functions of ASD (subsection 38H(2)(a)), and consult with the employees of ASD (subsection 38H(2)(b)).

 

In this section, ‘action’ includes a refusal or failure to act, and ‘ASD action’ means action taken after the commencement of this section by the Director-General of ASD or an employee of ASD that relates to an employee of ASD’s employment (subsection 38H(3)).

 

Item 30 replaces ‘Director of ASD’ (wherever occurring) with ‘Director-General of ASD’ in subsections 40(1)(c)(i) to (iv), 40G(1)(d)(iii) and (iv) and 40H(1)(d)(iii) and (iv).

 

Item 31 adds ‘- ASIS’ to the heading of section 42. The new heading is

‘Annual report - ASIS’.

 

Item 32 inserts a new section 42A Annual report -ASD, which requires that the Director-General of ASD must give to the Minister a report of the activities of ASD during the year as soon as practicable after each year ending on 30 June.

 

Item 33 replaces ‘Director of ASD’ with ‘Director-General of ASD’ in clause 1A of Schedule 1 (subsection (c) of the definition of agency head ).

 

Item 34 sets out a list of provisions of the Act which are amended by replacing ‘Director-General’ with ‘Director-General of ASIS’.  This is necessary as there are two Directors-General specified in the Act (i.e. Director-General of ASD and Director-General of ASIS). Previously there was only one Director-General specified in the Act (i.e. Director-General of ASIS).

 

 

 

 

Part 2 - Consequential amendments

The amendments to the other Acts listed below reflect the establishment of ASD as a statutory agency outside the Department of Defence and the establishment of the office of the Director-General of ASD. 

 

Acts Interpretation Act 1901

 

Item 35 amends subsection 34C(8) of the Act by inserting “, the Australian Signals Directorate” after “Australian Secret Intelligence Service”. This amendment will ensure that, like ASIO, ASIO and ONA, ASD will not be required to table before Parliament its classified annual report. ASD will remain bound by the provisions of the Public Governance, Performance and Accountability Act 2013 requiring annual reporting of ASD’s activities during the period (including performance and financial statements).

 

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

 

Item 36 amends section 5 of the Act by repealing the definition of ‘ASD’, and replacing it with ‘ ASD means the Australian Signals Directorate’.

 

Item 37 amends section 5 of the Act by inserting definitions for ‘ASD Minister’, and ‘ASD official’. ASD Minister means the Minister responsible for administering so much of the Intelligence Services Act 2001 (ISA) as it relates to ASD. ‘ASD official’ means the Director-General of ASD (subsection (a)), a person employed under section 38A of the ISA (subsection (b)), a person employed under section 38B of the ISA (subsection (c)), an employee of a contracted service provider engaged under section 38C of the ISA (subsection (d)), a person whose services are made available under section 38E of the ISA (subsection (e)), Under the definition of ‘ASD official’ it is identified that for the purposes of the Act, a person covered by paragraph (c), (d), or (e) is taken to be an employee of ASD. This will allow those people defined as ASD officials to perform functions for ASD under this Act.

 

Item 38 amends the definition of ‘defence intelligence agency’ to remove reference to ASD, as it is no longer part of the Department of Defence.  The definition of ‘defence intelligence agency’ now means AGO or DIO.

 

Item 39 repeals paragraph 128(13B)(d) and replaces with ‘an official of AGO may disclose AUSTRAC information to a Minister who, under section 9A of the ISA, is empowered to issue an authorisation to AGO, if the disclosure is for the purposes of, or in connection with, the exercise of that power’.   This is to remove reference to ASD as it is no longer a defence intelligence agency.

 

Item 40 inserts a new subsection 128(13BA) to allow ASD officials to pass on AUSTRAC information.  This new provision is required as ASD is no longer a defence intelligence agency and therefore requires its own separate provision to exercise power under section 128.

 

Item 41 inserts ‘(13BA)’ after ‘(13B)’ in subsection 128(13D).

 

Item 42 inserts ‘(iii)(a) ASD’ after subparagraph 128(19)(a)(iii).

 

Item 43 inserts a new section 133BA regarding when the Director-General of ASD may communicate AUSTRAC information to a foreign intelligence agency.

 

Australian Communications and Media Authority Act 2005

 

Item 44 inserts ‘(ka) the Australian Signals Directorate’ after paragraph 59(D)(1)(k).  Section 59 relates to the disclosure of information by the Australian Communications and Media Authority (ACMA) to certain authorities.  Previously, an ACMA official authorised by the Chair in writing was able to disclose ‘authorised disclosure information’ to employees of the national Computer Emergency Response Team (CERT) in the Attorney-General’s Department whose duties relate to telecommunications or law enforcement.  Following the transfer of CERT to ASD, it is necessary that ASD be separately listed under subsection 59(D)(1), in order that ‘authorised disclosure information’ can be disclosed to ASD.

 

Australian Human Rights Commission Act 1986

 

Items 45 and 46 essentially amend subsections 11(4) and subsection 21(3) of the Act to remove references to ‘Defence Department’.  

 

Australian Security Intelligence Organisation Act 1979

 

Items 47 to 49 amend the definition of ‘intelligence or security agency’ in section 4 of the Act to remove reference to the ‘Defence Department’.

 

Items 50 to 52 amend the definition of ‘agency head’ in section 4 of the Act remove reference to ‘Defence Department’ and to replace ‘Director’ with ‘Director-General’.

 

Crimes Act 1914

 

Items 53 and 54 amend the definition of ‘intelligence or security agency’ by removing the reference to ‘Defence Department’ in relation to ASD.

 

Criminal Code Act 1995

 

Items 55 and 56 amend the definition of ‘intelligence or security officer’ in section 473.1 of the Act to remove the reference to the ‘Defence Department’.

 

Items 57 and 58 amend the definition of ‘ASD’ to remove the reference to the ‘Defence Department’, and to replace ‘Director of ASD’ with ‘Director-General of ASD’,

 

Defence Act 1903

 

Item 59 adds ‘the Australian Signals Directorate’ to the definition of ‘intelligence or security agency’ in subsection 71A(1), as a result of ASD being a separate statutory agency.

 

Defence Trade Controls Act 2012

 

Items 60 to 62 adds employees of ASD to the exceptions for offences in paragraphs 10(3)(a) and 15(2)(a) relating to obtaining permits to export intangible goods. ASD employees were previously covered by virtue of being Australian Public Service (APS) employees. This amendment is required because after 1 July 2018 ASD employees will no longer be APS employees.

 

Freedom of Information Act 1982

 

Items 63 to 65 repeals the definition of ‘Australian Signals Directorate’ in subsection 4(1) of the Act as it refers to ‘the Department of Defence’, and repeals and replaces the table item dealing with the Australian Signals Directorate. 

 

Independent National Security Legislation Monitor Act 2010

 

Items 66 to 69 amend the definitions of ‘head’ and ‘law enforcement or security agency’ in section 4 of the Act to remove references to ‘Defence Department’ and to replace ‘Director’ with ‘Director-General’.

 

Inspector-General of Intelligence and Security Act 1986

 

Items 70 to 72 amend the definition of ‘ASD’ and ‘head’ in subsection 3(1) of the Act to remove references to ‘Defence Department’, and to replace ‘Director’ with ‘Director-General’.

Items 73 to 77 amend sections 8 and 11 of the Act to allow IGIS to inquire into complaints directly related to the promotion, termination of appointment, discipline, remuneration, or a matter relating to the employment of an ASD employee. This is needed as ASD employees will no longer be APS employees, and as such they will no longer be able to seek redress through the Australian Public Service Commissioner or the Merit Protection Commissioner. This aligns with the avenue of redress for ASIO and ASIS.

Items 78 to 85 amend paragraphs 15(3)(a), 15(3)(b), 21(1B)(a), 21(1B)(b), 32A(1)(b), 32A(1)(d), 32A(5)(a) and 32A(5)(b) to reflect the structural change to ASD, that is, it becomes a statutory agency outside the Department of Defence and is no longer under the control of the Secretary of Defence.

 

Privacy Act 1988

 

Items 86 to 89 amend the definition of ‘intelligence agency’ in section 6 and section 7 (paragraphs 7(1)(g) 7(1A)(c) and 7(2)(b)) to reflect that ASD is a statutory agency and is no longer part of the Department of Defence.

 

Radiocommunications Act 1992

 

Item 90 amends subsection 24(2) to list ASD separately from the Department of Defence.

 

Taxation Administration Act 1953

 

Items 91 to 92 amends the Act to permit the Director-General of ASD to declare that Australia's taxation laws don’t apply to specified entities in relation to specified transactions.

In performance of its functions under the ISA, ASD is required to acquire capability and services, which in order to protect national security and intelligence activities, are not able to be disclosed.  Exempting ASD related transactions from particular taxation laws, particularly in circumstances where ASD activities would be compromised were the acquisition connected to ASD, avoids disclosure of specified acquisitions, and thus reduces the risk of compromise.

 

Telecommunications Act 1997

 

Item 93 adds ASD to the intelligence operations exemption in section 46, given it is no longer part of the Department of Defence and cannot continue to rely on the defence exemption in section 45.

 

Item 94 adds ASD to the intelligence operations exemption in section 91, given it is no longer part of the Department of Defence and cannot continue to rely on the defence exemption in section 90.

 

Work Health and Safety Act 2011

 

Item 95 adds a new definition of ‘ASD’ to section 4 of the Act.

Items 96 to 98 amend section 12C to allow the Director-General of ASD, by instrument in writing, to declare that specified provisions of this Act do not apply, or apply subject to modifications set out in the declaration, in relation to person carrying out work for the Director-General of ASD. Before making any declaration, the Director-General will require the approval of the Minister responsible for Work Health and Safety policy.  In exercising that power, the Director-General must take into account the need to promote the objects of the Act to the greatest extent consistent with the maintenance of national security.

This new power is similar to the powers held by the Directors-General of ASIS and ASIO under the Act and result from the ASD subsuming additional security functions from these agencies.

Item 99 amends paragraph 273B(2)(a) to provide that a declaration made under new subsection 12C(2AA) relating to national security is not a legislative instrument.

 

Part 3 - Transitional provisions 

 

Item 100 sets out the definitions of ‘accrued employment benefits’, ‘Defence Department’, ‘Minister’, ‘new ASD’, ‘new law’ ‘old ASD’ and ‘staffing procedures’.

 

Item 101 ensures the smooth transition of ASD from being part of the Defence Department to a statutory agency.

Subitem 101(1) provides that if a thing was done by, or in relation to, the old ASD, then the thing is taken, for the purposes of the operation of any law after 1 July 2018, to have been done by, or in relation to, the new ASD.

Under subitem 101(2), the Minister may, by writing, determine that subitem 101(1) does not apply in relation to a specified thing done by, or in relation to, the old ASD.

To avoid doubt, subitem 101(3) confirms that doing a thing includes making an instrument.

Subitem 101(4) provides that a Ministerial determination under subitem 101(2) is not a legislative instrument.  This is because the provision is included to assist readers, and is merely declaratory of the law.

 

Item 102 ensures the smooth change of the head of ASD from being the Director of ASD to the Director-General of ASD (as a statutory appointment).

Subitem 102(1) provides that if a thing was done by, or in relation to, the Director of the old ASD, then the thing is taken, for the purposes of the operation of any law after commencement, to have been done by, or in relation to, the Director-General of the new ASD.

Under subitem 102(2), the Minister may, by writing, determine that subitem 102(1) does not apply in relation to a specified thing done by, or in relation to, the Director of the old ASD.

To avoid doubt, subitem 102(3) confirms that doing a thing includes making an instrument. 

Subitem 102(4) provides that a Ministerial determination under subitem 102(2) is not a legislative instrument.  This is because the provision is included to assist readers, and is merely declaratory of the law.

 

Item 103 provides that the person who holds the position of the Director of the old ASD, immediately before 1 July 2018, is taken to have been appointed as the Director-General of the new ASD by the Governor-General under section 27B of the new law for a term of 6 months and on the terms and conditions set out in Division 2 of Part 3A of the new law.

 

Item 104 deals with the transitional arrangements in relation to the terms and conditions of employment of ASD staff.  This is to ensure that existing ASD staff members are not unfairly disadvantaged by the transition.

Under subitem 104(1), if, immediately before 1 July 2018, a person was employed in the old ASD, the person continues on and after 1 July 2018 to be employed in the new ASD, and ceases to be an APS employee.

Subitem 104(2) provides that a person who, immediately before 1 July 2018, was employed in the old ASD under a written agreement, continues to be employed on the terms and conditions specified in that agreement.

Subitem 104(3) provides that a person who, immediately before 1 July 2018, had his or her terms and conditions of employment in the old ASD determined under section 24 of the Public Service Act, continues to be employed on the terms and conditions specified in that determination.

Subitem 104(4) subitems (2) and (3) are subject to any determination made by the Director-General of the new ASD under subsection 38A(3) of the new law.

Subitem 104(5) provides that accrued employment benefits of a person to whom subitem (1) applies are not affected by the person ceasing to be an APS employee.

Subitem 104(6) provides that the service of a person to whom subitem (1) applies as an employee of the new ASD is taken, for all purposes, to have been continuous with his or her service as an employee of the old ASD.

Subitem 104(7) provides that to avoid doubt, if the person to whom subitem (1) applies ceases to be an employee of the old ASD, the person is not entitled to receive any payment or other benefit merely because he or she ceases to be such an employee.

 

Item 105 applies to a person who was a staff member of the old ASD and suffered an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) before 1 July 2018.  This purpose of the item is to ensure that the SRC Act continues to apply to the person after 1 July 2018.

 

Item 106 provides that the staffing procedures of the old ASD that were in effect immediately before 1 July 2018 continues to apply after that date in relation to processes begun before but not completed by that date, and things done by, for or in relation to the old ASD or an employee of the old ASD before that date. 

This item also provides that the rules may prescribe details relating to how the staffing procedures of the old ASD will continue to apply under subitem(1), and other members of a transitional nature in relation to the transfer of persons who were employed by the old ASD before 1 July 2018.

This item, including the rules made under the item, have effect despite the Public Service Act .

 

Item 107 provides for the continuation of existing inquiries under the IGIS Act. This item addresses where IGIS has begun an inquiry in relation to the old ASD under section 8 of the IGIS Act before 1 July 2018 but has not completed it prior to that date, then for the purposes of completing that inquiry, any act (including the IGIS Act) amended by this Bill, as in force on the day that the inquiry began, continues in force despite the amendments made by this Bill. This effectively means that an inquiry commenced (and not finished) before 1 July 2018 is able to be finalised as if no amendments had been made to the ISA as a consequence of this Bill.

 

Item 108 allows the Minister to make rules, by legislative instrument, prescribing matters required or permitted by this Act to be prescribed by the rules, or necessary or convenient to be prescribed for carrying out or giving effect to this Act (subitem 108(1)).  Without limiting subitem (1), subitem (2), permits the rules to also prescribe matters of a transitional nature in relation to the transfer of persons who were employees of the new ASD before 1 July 2018.

 

Privacy Act 1988

 

Items 109 and 110 amend subparagraphs 26WQ and 26WR to reflect that ASD is a statutory agency and is no longer part of the Department of Defence.