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Thursday, 25 September 2014
Page: 7224


Senator BRANDIS (QueenslandDeputy Leader of the Government in the Senate, Vice-President of the Executive Council, Minister for Arts and Attorney-General) (19:16): I seek leave to move all government amendments together.

Leave granted.

Senator BRANDIS: I move government amendments (1) and (2) on sheet HK105 and government amendments (1) to (54) on sheet ZA357:

(1) Schedule 3, item 3, page 62 (after line 32), after subparagraph 35C(2)(e)(i), insert:

      (ia) constitute torture; or

(2) Schedule 3, item 3, page 67 (after line 20), after subparagraph 35K(1)(e)(i), insert:

      (ia) constitutes torture; or

(1) Schedule 2, page 55 (after line 4), after item 45, insert:

45A After section 31

   Insert:

31A Notification requirements in relation to the use of force under warrant

(1) This section applies if a warrant issued under this Division authorises the use of force against persons to do the things authorised by the warrant.

(2) The Director-General must cause the Minister and the Inspector-General of Intelligence and Security to be notified if such force is used against a person in the execution of the warrant.

(3) The notification must be given:

   (a) in writing; and

   (b) as soon as practicable after such force is used.

(2) Schedule 2, page 55 (after line 33), after item 46, insert:

46A Section 34

   Before "The", insert "(1)".

46B At the end of section 34

   Add:

(2) If:

   (a) the warrant was issued under section 25, 25A, 27A, 27C or 29; and

   (b) a thing mentioned in subsection 25(5) or 25A(4), paragraph 27D(2)(h) to (k) or subsection 27E(2) was done under the warrant;

the report must also include details of anything done that materially interfered with, interrupted or obstructed the lawful use by other persons of a computer or other electronic equipment, or a data storage device.

(3) Schedule 2, item 47, page 56 (before line 12), before paragraph 34AA(2)(a), insert:

   (aa) a warrant issued under section 25, but only if the warrant authorises the doing of acts or things referred to in paragraph 25(5)(a), (b), (c) or (d), and only with respect to those acts or things; or

(4) Schedule 2, item 47, page 56 (line 14), before "section 25A", insert "subsection 25(5) or".

(5) Schedule 2, item 47, page 56 (line 17), after "authorised under", insert "paragraphs 27D(2)(h) to (k) or".

(6) Schedule 2, item 47, page 57 (line 35), after "section", insert "25,".

(7) Schedule 3, item 1, page 60 (lines 7 to 9), omit the definition of authorising officer.

(8) Schedule 3, item 1, page 60 (after line 10), after the definition of engage in conduct, insert:

   IGIS official (short for Inspector-General of Intelligence and Security official) means:

   (a) the Inspector-General of Intelligence and Security; or

   (b) a member of the staff referred to in subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986.

(9) Schedule 3, item 3, page 61 (line 18), omit "An ASIO employee may apply to an authorising officer", substitute "The Director-General, a senior position-holder or an ASIO employee may apply to the Minister".

(10) Schedule 3, item 3, page 62 (lines 4 and 5), omit paragraph 35B(4)(b), substitute:

   (b) give a copy of it to the Minister.

(11) Schedule 3, item 3, page 62 (lines 10 to 12), omit paragraph 35C(1)(b), substitute:

   (b) the Minister is satisfied that there are reasonable grounds on which to believe that the matters in subsection (2) exist;

(12) Schedule 3, item 3, page 62 (line 13), omit "authorising officer", substitute "Minister".

(13) Schedule 3, item 3, page 63 (lines 4 and 5), omit "authorising officer", substitute "Minister".

(14) Schedule 3, item 3, page 63 (lines 6 to 9), omit paragraph 35C(4)(b), substitute:

   (b) if the Minister is satisfied there are reasonable grounds on which to believe that the delay caused by giving a written authority may be prejudicial to security—orally in person, or by telephone or other means of communication.

(15) Schedule 3, item 3, page 63 (lines 10 to 13), omit subsection 35C(5), substitute:

(5) If a special intelligence operation authority is granted in accordance with paragraph (4)(b), a written record of the special intelligence operation authority that complies with section 35D must be issued within 7 days.

(16) Schedule 3, item 3, page 63 (line 31), omit "general".

(17) Schedule 3, item 3, page 64 (lines 12 and 13), omit all the words from and including "as long as" to the end of subsection 35D(2), substitute "as long as the person's identity can be matched to the assumed name, code name or code number".

(18) Schedule 3, item 3, page 64 (lines 24 to 27), omit subsection 35F(1), substitute:

(1) The Minister may vary a special intelligence operation authority on application by the Director-General, a senior position-holder or an ASIO employee.

(19) Schedule 3, item 3, page 64 (line 29), omit "paragraph (1)(b)", substitute "subsection (1)".

(20) Schedule 3, item 3, page 65 (line 4), omit "(1)(b)", substitute "(2)(b)".

(21) Schedule 3, item 3, page 65 (lines 6 and 7), omit paragraph 35F(3)(b), substitute:

   (b) give a copy of it to the Minister.

(22) Schedule 3, item 3, page 65 (lines 9 to 16), omit subsection 35F(4) (not including the heading), substitute:

(4) The Minister must not vary the special intelligence operation authority unless the Minister:

   (a) is satisfied that there are reasonable grounds on which to believe that the special intelligence operation, conducted in accordance with the special intelligence operation authority as varied, will assist the Organisation in the performance of one or more special intelligence functions; and

   (b) considers it is appropriate to do so.

(23) Schedule 3, item 3, page 65 (lines 22 and 23), omit "authorising officer", substitute "Minister".

(24) Schedule 3, item 3, page 65 (lines 24 to 27), omit paragraph 35F(6)(b), substitute:

   (b) if the Minister is satisfied there are reasonable grounds on which to believe that the delay caused by giving a written variation may be prejudicial to security—orally in person, or by telephone or other means of communication.

(25) Schedule 3, item 3, page 65 (lines 28 to 31), omit subsection 35F(7), substitute:

(7) If a special intelligence operation authority is varied in accordance with paragraph (6)(b), a written record of the variation must be issued within 7 days.

(26) Schedule 3, item 3, page 66 (line 5), omit "An authorising officer", substitute "The Director-General or a Deputy Director-General".

(27) Schedule 3, item 3, page 69 (after line 23), at the end of subsection 35P(1), add:

Note: Recklessness is the fault element for the circumstance described in paragraph (1)(b)—see section 5.6 of the Criminal Code.

(28) Schedule 3, item 3, page 70 (after line 4), at the end of subsection 35P(2), add:

Note: Recklessness is the fault element for the circumstance described in paragraph (2)(b)—see section 5.6 of the Criminal Code.

(29) Schedule 3, item 3, page 70 (after line 14), after paragraph 35P(3)(d), insert:

   ; or (e) for the purpose of obtaining legal advice in relation to the special intelligence operation; or

(f) to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986; or

   (g) by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act.

(30) Schedule 3, item 3, page 70 (after line 22), after section 35P, insert:

35PA Notifications by Director -General

(1) The Director-General must cause the Inspector-General of Intelligence and Security to be notified if a special intelligence operation is authorised under this Division.

(2) The notification must be given:

   (a) in writing; and

   (b) as soon as practicable after the special intelligence operation authority is granted.

(31) Schedule 3, item 3, page 71 (after line 8), after subsection 35Q(2), insert:

   (2A) A report under subsection (1) must report on whether conduct of a participant in a special intelligence operation:

   (a) caused the death of, or injury to, any person; or

   (b) involved the commission of a sexual offence against any person; or

(c) resulted in loss of, or damage to, property.

(32) Schedule 3, item 3, page 71 (lines 12 to 15), omit subsection 35R(1), substitute:

(1) The Minister may issue a written certificate signed by the Minister setting out such facts as the Minister considers relevant with respect to the granting of a special intelligence operation authority.

(33) Schedule 6, item 2, page 81 (line 9), omit "Subsection (1)", substitute "Subsection (2)".

(34) Schedule 6, item 2, page 81 (after line 13), after subsection 18(2A), insert:

Exception—communication to the Inspector -General of Intelligence and Security

   (2B) Subsection (2) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2B) (see subsection 13.3(3) of the Criminal Code).

(35) Schedule 6, item 4, page 82 (after line 29), after subsection 18A(2), insert:

Exception—Inspector -General of Intelligence and Security

   (2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

(36) Schedule 6, item 4, page 84 (after line 22), after subsection 18B(2), insert:

Exception—Inspector -General of Intelligence and Security

   (2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

(37) Schedule 6, item 4, page 85 (after line 25), after section 18C, insert:

18D Offences against section 18, 18A or 18B—IGIS officials

(1) A person does not commit an offence against subsection 18(2), 18A(1) or 18B(1) if:

   (a) the person is an IGIS official; and

   (b) the relevant conduct is engaged in by the person for the purposes of exercising powers, or performing functions or duties, as an IGIS official.

(2) In a prosecution for an offence against subsection 18(2), 18A(1) or 18B(1), the defendant does not bear an evidential burden in relation to the matter in subsection (1) of this section, despite subsection 13.3(3) of the Criminal Code.

(38) Schedule 6, item 6, page 86 (before line 4), before the definition of record, insert:

   IGIS official (short for Inspector-General of Intelligence and Security official) means:

   (a) the Inspector-General of Intelligence and Security; or

   (b) a member of the staff referred to in subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986.

(39) Schedule 6, item 11, page 86 (after line 27), after subsection 39(2), insert:

Exception—communication to the Inspector -General of Intelligence and Security

(3) Subsection (1) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code).

(40) Schedule 6, item 14, page 87 (after line 13), after subsection 39A(2), insert:

Exception—communication to the Inspector -General of Intelligence and Security

(3) Subsection (1) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.

(41) Schedule 6, item 17, page 87 (after line 26), after subsection 40(2), insert:

Exception—communication to the Inspector -General of Intelligence and Security

(3) Subsection (1) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.

(42) Schedule 6, item 18, page 88 (after line 35), at the end of section 40A, add:

Exception—communication to the Inspector -General of Intelligence and Security

(3) Subsection (1) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code).

(43) Schedule 6, item 18, page 89 (after line 34), at the end of section 40B, add:

Exception—communication to the Inspector -General of Intelligence and Security

(3) Subsection (1) does not apply if the person communicates the information or matter to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.

(44) Schedule 6, item 18, page 91 (after line 2), after subsection 40C(2), insert:

Exception—Inspector -General of Intelligence and Security

   (2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(45) Schedule 6, item 18, page 92 (after line 12), after subsection 40D(2), insert:

Exception—communication to the Inspector -General of Intelligence and Security

   (2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(46) Schedule 6, item 18, page 93 (after line 28), after subsection 40E(2), insert:

Exception—Inspector -General of Intelligence and Security

   (2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(47) Schedule 6, item 18, page 95 (after line 6), after subsection 40F(2), insert:

Exception—communication to the Inspector -General of Intelligence and Security

   (2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(48) Schedule 6, item 18, page 96 (after line 20), after subsection 40G(2), insert:

Exception—Inspector -General of Intelligence and Security

   (2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(49) Schedule 6, item 18, page 97 (after line 32), after subsection 40H(2), insert:

Exception—communication to the Inspector -General of Intelligence and Security

   (2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(50) Schedule 6, item 18, page 99 (after line 13), after subsection 40J(2), insert:

Exception—Inspector -General of Intelligence and Security

   (2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(51) Schedule 6, item 18, page 100 (after line 24), after subsection 40K(2), insert:

Exception—communication to the Inspector -General of Intelligence and Security

   (2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(52) Schedule 6, item 18, page 102 (after line 6), after subsection 40L(2), insert:

Exception—Inspector -General of Intelligence and Security

   (2A) Subsection (1) does not apply if the person deals with the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(53) Schedule 6, item 18, page 103 (after line 15), after subsection 40M(2), insert:

Exception—communication to the Inspector -General of Intelligence and Security

   (2A) Subsection (1) does not apply if the person makes the record for the purpose of the Inspector-General of Intelligence and Security exercising a power, or performing a function or duty, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A): see subsection 13.3(3) of the Criminal Code.

(54) Schedule 6, item 21, page 104 (after line 23), after section 41A, insert:

41B Offences against this Division—IGIS officials

(1) A person does not commit an offence against an information offence provision if:

   (a) the person is an IGIS official; and

   (b) the relevant conduct is engaged in by the person for the purpose of exercising powers, or performing functions or duties, as an IGIS official.

(2) In a prosecution for an offence against an information offence provision, the defendant does not bear an evidential burden in relation to the matter in subsection (1), despite subsection 13.3(3) of the Criminal Code.

(3) In this section:

   information offence provision means subsection 39(1), 39A(1), 40(1), 40A(1), 40B(1), 40C(1), 40D(1), 40E(1), 40F(1), 40G(1), 40H(1), 40J(1), 40K(1), 40L(1) or 40M(1).

As the chamber has heard from several contributions, the government amendments are in all respects amendments which give effect to the unanimous recommendations of the Parliamentary Joint Committee on Intelligence and Security. They are relatively modest amendments, indeed amendments essentially of a technical character. They include some additional oversight mechanisms—for example, the interposition of the Attorney-General's fiat before a special intelligence operation can be undertaken. Let me quickly summarise them. The focus is primarily on enhancing oversight and reporting in relation to ASIO's warrants and special intelligence operations. The amendments also insert some new exceptions to offences for the disclosure of intelligence related information for the avoidance of doubt. Seven of the 16 recommendations require amendments to the bill of a largely technical nature. There are 12 groups of amendments, which I will summarise briefly.

Amendment (1) will implement recommendation 6 of the PJCIS report to require ASIO to notify the Attorney-General and the Inspector-General of Intelligence and Security when reasonable force is exercised against a person in the execution of a warrant.

Amendment (2) will implement recommendation 5 of the PJCIS report to require ASIO to include further information in its ministerial reports on the execution of warrants under section 34 of the ASIO Act. The amendment will require ASIO to report on details of any material disruptions to computers.

Amendments (3), (4), (5) and (6) will correct a minor oversight in the drafting of the evidentiary certificate provisions in section 34AA of the ASIO Act. That the provision creates a new scheme of evidentiary certificates to protect technical and other sensitive operational information about how warrants are executed. A particular warrant type, namely a search warrant, was unintentionally left out of the drafting.

Amendments (7), (9), (10), (11), (12), (13), (14), (15), (17), (18), (21), (22), (23), (24), (25), (26) and (32) will implement recommendation 9 of the PJCIS report that authorisations for the commencement and variation special intelligence operations conducted by ASIO should be provided by the Attorney-General.

Amendments (8) and (29) will implement recommendation 11 of the PJCIS report, which recommended additional exceptions to the offences in section 35P for the disclosure of information relating to special intelligence operations. Consistent with the committee's recommendation, new exceptions will be included for persons who disclose information for the purpose of seeking legal advice, or to the Inspector-General of Intelligence and Security or his or her staff. A further exception will apply to the IGIS and his or her staff for communications within the office of the IGIS to create absolute certainty that the offences do not apply in those circumstances.

Amendment (16) addresses an issue identified by the Senate Scrutiny of Bills Committee about the 'reckless' description of conduct to be authorised under a special intelligence operation. The relevant provision, section 35D(1)(c), currently requires a description of the general nature of the conduct authorised. In response to the committee's comment, amendment (16) will change this to a description of the nature of the conduct.

Amendments (20) and (33) will make minor technical corrections to deal with typographical errors in the bill as introduced.

Amendments (27) and (28) will implement the government's response to recommendation 13 of the PJCIS report to include an express statement of the relevant fault elements applying to the new offences for the disclosure of information relating to special intelligence operations. These amendments insert notes to the offences confirming the applicable fault elements.

Amendments (30) and (31) will implement recommendation 10 of the PJCIS report that additional notification requirements should apply to the special intelligence operations. These include notification to the IGIS when operations are authorised and additional requirements and periodic reports to the minister and the IGIS on operations. ASIO will be required to include details of whether any conduct of a participant has caused death, injury, loss or damage to a person.

Amendments (34) through to (54) will implement recommendation 14 of the PJCIS report. The committee recommended that additional exceptions should apply to the offences in schedule 6 of the bill. Those are the offences concerning entrusted persons who disclose or place at risk intelligence related information. Consistent with the committee's recommendation, new exceptions will apply to persons who communicate information to the Inspector-General of Intelligence and Security or his or her staff. A further exception will apply to the IGIS and his or her staff where these persons communicate information to one another in the performance of their functions and official duties. They will remove any risk that the offences might operate as a perceived disincentive to people who may wish to report any matters of concern to the IGIS.

Those are the recommendations in summary. They are, as you can see, recommendations which principally will increase the oversight and safeguards regime already built into an act which has an extensive oversight and safeguards regime written into it, or are of the technical character, or are for the purposes of clarification only. As I said at the start, these are unanimous recommendations.