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Home Affairs and Integrity Agencies Legislation Amendment Bill 2018

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2016-2017

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

HOME AFFAIRS AND INTEGRITY AGENCIES LEGISLATION AMENDMENT BILL 2017

 

 

EXPLANATORY MEMORANDUM

 

 

(Circulated by authority of the Prime Minister,

the Honourable Malcolm Turnbull MP)

 



 

HOME AFFAIRS AND INTEGRITY AGENCIES LEGISLATION AMENDMENT BILL 2017

General outline

1.                   The Bill will give effect to the allocation of certain ministerial powers following the establishment of a new Home Affairs portfolio, and related changes strengthening the Attorney-General’s oversight of intelligence, security and law enforcement agencies.

2.                   The Bill amends the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act), the Independent National Security Legislation Monitor Act 2010 (INSLM Act), the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) and the Intelligence Services Act 2001 (IS Act).

3.                   The Bill will:

·       ensure intelligence agency officials can continue to disclose AUSTRAC information to the Attorney-General (in addition to the Minister responsible for the Australian Security Intelligence Organisation (ASIO)) in support of his or her functions under the Australian Security Intelligence Organisation Act 1979 (ASIO Act) and the Telecommunications (Interception and Access) Act 1979 (TIA Act), or in connection with security (Schedule 1, items 1 to 3);

·       clarify that responsibilities under the INSLM Act transfer to the Minister administering the Act, and enable the Prime Minister (in addition to that Minister) to continue to refer matters relating to counter-terrorism or national security to the Independent National Security Legislation Monitor (Monitor) and receive relevant reports (Schedule 1, items 4 to 27);

·       clarify that responsibilities under the IGIS Act transfer to the Minister administering the Act, and enable that Minister (in addition to the Minister responsible for an intelligence agency) to request the Inspector-General to inquire into a matter and receive relevant reports (Schedule 1, items 28 to 34);

·       enable the Prime Minister (in addition to the Minister administering the IGIS Act) to continue to direct the Inspector-General to inquire into a matter relating to an intelligence agency, or direct the Inspector-General to inquire into an intelligence or security matter relating to a Commonwealth agency, and receive relevant reports (Schedule 1, items 35 to 61);

·       clarify that responsibility for giving agreement to security-related Ministerial authorisations under the IS Act will remain with the Attorney-General (Schedule 1, items 62 to 67, 69 to 73);

·       add the Minister responsible for the ASIO Act to the list of ministers who can give an oral authorisation in an emergency situation under the IS Act (Schedule 1, item 68);

·       clarify that the relevant intelligence agency head must notify the Attorney-General and the Minister responsible for the ASIO Act when an emergency authorisation has been given in certain circumstances under the IS Act (Schedule 1, items 74 and 75);

·       include a requirement for consultation with the Attorney-General before the making of guidelines governing ASIS-ASIO cooperation under the IS Act (Schedule 1, item 76); and

·       enable the Attorney-General (in addition to the Ministers responsible for intelligence agencies) to refer a matter to the Parliamentary Joint Committee on Intelligence and Security (Schedule 1, items 77 to 79).

Financial impact statement

4.                   This Bill does not have a financial impact.



 

Statement of Compatibility with Human Rights

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

Home Affairs and Integrity Agencies Legislation Amendment Bill 2017

5.                   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

6.                   The Home Affairs and Integrity Agencies Legislation Amendment Bill 2017 amends the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) and the Intelligence Services Act 2001 (IS Act) to clarify certain ministerial powers following the establishment of the Home Affairs portfolio, as announced by the Prime Minister on 18 July 2017. 

7.                   The Bill also contains measures to strengthen the Attorney-General’s oversight and integrity functions, also announced by the Prime Minister in July 2017. Amendments to the Independent National Security Legislation Monitor Act 2010 (INSLM Act) and the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) will clarify that, in general, responsibilities under those Acts will transfer to the Minister administering the Acts, but the Prime Minister may continue to refer or direct certain matters for inquiry, and receive relevant reports. The Prime Minister will also continue to be responsible for consulting with the Leader of the Opposition on appointments of the Inspector-General (including an acting Inspector-General) and the Monitor.

Overview of specific measures

8.                   The Bill will amend section 128 of the AML/CTF Act, which provides for the disclosure of AUSTRAC information by officials of designated agencies (which includes the Australian Security Intelligence Organisation (ASIO), the Office of National Assessments (ONA) and the defence intelligence agencies) for limited purposes. In respect of ASIO, this includes disclosure under subsection 128(13) to the Minister responsible for administering the Australian Security Intelligence Organisation Act 1979 (ASIO Act) for the purposes of, or in connection with his or her functions, or ‘security’ within the meaning of the ASIO Act, and to the Minister responsible for administering the Telecommunications (Interception and Access) Act 1979 (TIA Act) in connection with his or her functions under that Act. In respect of ONA and the defence intelligence agencies, this includes disclosure to the Minister responsible for administering the TIA Act in connection with his or her functions under that Act.

9.                   Amendments to section 128 are required to ensure ASIO and other intelligence agencies can continue to disclose AUSTRAC information to the Attorney-General in support of his or her functions following the establishment of the Home Affairs portfolio, which will include:

·          issuing of warrants under the TIA Act and the ASIO Act;

·          authorising special intelligence operations under the ASIO Act; and

·          giving agreement to security-related Ministerial authorisations under the IS Act.

10.               The Bill will amend the INSLM Act to:

·          enable both the Prime Minister and the Minister administering the INSLM Act to refer matters relating to counter-terrorism or national security to the Monitor. This includes consequential amendments to the reporting provisions in the Act;

·          ensure that the Prime Minister continues to be responsible for consulting with the Leader of the Opposition on the appointment of the Monitor; and

·          remove references to the Prime Minister in a number of provisions to reflect the transfer of responsibility for the Act from the Prime Minister to the Minister administering the INSLM Act.

11.               The Bill will amend the IGIS Act to:

·          enable the Minister administering the Act, in addition to the responsible Minister for an intelligence agency, to request the Inspector-General to inquire into a matter (and receive relevant reports);

·          enable both the Prime Minister and the Minister administering the IGIS Act to direct the Inspector-General to conduct additional inquiries and to receive subsequent reports. Associated amendments enable the Inspector-General to continue to provide copies of other reports to the Prime Minister, if he or she considers it appropriate to do so;

·          ensure that the Prime Minister continues to be responsible for consulting with the Leader of the Opposition on the appointment of the (substantive and acting) Inspector-General; and

·          remove references to specific ministers in a number of provisions to reflect the transfer of responsibility for the Act from the Prime Minister to the Minister administering the IGIS Act.

12.               The Bill will amend the IS Act to:

·          clarify that responsibility for agreeing to security-related Ministerial authorisations under section 9 will remain with the Attorney-General;

·          add the Minister responsible for the ASIO Act to the list of Ministers who may give an oral authorisation in an emergency situation when the relevant responsible Minister (namely, the Minister for Defence in the case of the Australian Signals Directorate (ASD) and the Australian Geospatial Organisation (AGO), or the Minister for Foreign Affairs in the case of the Australian Secret Intelligence Service (ASIS)) is not readily available or contactable under section 9A. The current list includes the Prime Minister, the Attorney-General, the Minister for Defence and the Minister for Foreign Affairs;

·          clarify that the relevant intelligence agency head (that is, the head of ASIS, ASD or AGO) must notify the Attorney-General and the Minister responsible for the ASIO Act under section 9C when an emergency authorisation has been given in certain circumstances;

·          require the Ministers responsible for ASIO and ASIS to consult the Attorney-General prior to making written guidelines (which relate to the undertaking of certain types of activities by ASIS at the request of ASIO that would normally require ministerial authorisation) under section 13G; and

·          enable the Attorney-General (in addition to the responsible Minister for an agency) to refer matters relating to Australian Intelligence Community agencies to the Parliamentary Joint Committee on Intelligence and Security under section 29.

Human rights implications

13.               Some of the amendments engage 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.

14.               Lawful interference with the right to privacy is permitted under Article 17 of the ICCPR, provided it is not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted the requirement of ‘reasonableness’ to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances.

Schedule 1

AML/CTF Act

15.               Section 128 of the AML/CTF Act sets out the circumstances in which AUSTRAC information can be disclosed by an official of a designated agency. AUSTRAC information is defined under the AML/CTF Act to include ‘eligible collected information’ which can include information collected under the Act or the Financial Transaction Reports Act 1988 .  The types of personal information which may be disclosed could include details such as the name, date of birth and residential address of the individuals who are either the ordering or beneficial customers of international funds transfer instructions or threshold transactions at or above $10,000, or details of the individuals who are the subject of a suspicious matter report, which are required to be reported to AUSTRAC under the Act.

16.               Items 1-3 will enable ASIO, ONA and defence intelligence agency officials to disclose AUSTRAC information to the Attorney-General for the purpose of, or in connection with, his or her functions under the ASIO Act or the TIA Act, or security.  These amendments are required because the Attorney-General will retain certain functions when administration of the ASIO Act and the TIA Act transfers to the Minister for Home Affairs, including the issue of ASIO warrants, authorisation of special intelligence operations under the ASIO Act, and agreeing to security-related Ministerial authorisations under the IS Act. 

17.               Article 17(1) of the ICCPR prevents arbitrary or unlawful interference with privacy, and Article 17(2) affords the right to legal protection against the stated ‘arbitrary or unlawful attacks’. Although the United Nations Human Rights Committee has not defined privacy, it should be understood to comprise freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy. The Bill does not have the effect of intruding into privacy on an unwarranted or unreasonable basis.

18.               The inclusion of the Attorney-General in the disclosure provisions would not be arbitrary, as it would be limited to only that specified Minister in accordance with his or her functions under specified Acts, or for the purposes of security (within the meaning of the ASIO Act). Section 128 of the AML/CTF Act is subject to strict secrecy provisions, and unauthorised disclosures are punishable by up to two years imprisonment.

19.               Therefore, the proposed amendments are consistent with Australia’s obligations under Articles 17(1) and 17(2) of the ICCPR.

INSLM Act (Items 4-27)

20.               The amendments clarify that responsibilities under the INSLM Act will transfer to the Minister administering the Act, and enable the Prime Minister (in addition to that Minister) to continue to refer matters relating to counter-terrorism or national security to the Monitor and receive relevant reports. The amendments do not affect individual rights. 

IGIS Act (Items 28-61)

21.               The amendments clarify ministerial responsibilities under the IGIS Act, including by enabling the Minister administering the Act (in addition to the Minister responsible for an intelligence agency) to request the Inspector-General to inquire into a matter and receive relevant reports, and enabling the Prime Minister (in addition to the Minister administering the Act) to continue to direct the Inspector-General to inquire into a matter, and receive relevant reports. The amendments do not affect individual rights. 

IS Act (Items 62-79)

22.               The amendments clarify ministerial responsibilities under the IS Act in anticipation of the creation of a new Home Affairs portfolio. To the extent that the existing provisions in the IS Act engage Australia’s international human rights obligations, these amendments tend to protect and promote those rights by strengthening Ministerial oversight and control of activities undertaken by intelligence agencies under the IS Act.

Conclusion

23.               The Bill is compatible with human rights because it promotes the protection of human rights through enhanced oversight of intelligence agencies’ activities, and to the extent that it limits some rights, those limitations are reasonable, necessary and proportionate in achieving a legitimate objective.



 

NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

1.                    This clause provides for the short title of the Act to be the Home Affairs and Integrity Agencies Legislation Amendment Act 2017 .

Clause 2 - Commencement

2.                    This clause provides for the commencement of each provision in the Bill, as set out in the table.

Clause 3 - Schedules

3.                    This clause is the formal enabling provision for the Schedule to the Bill, providing that each Act specified in the Schedule is amended or repealed in accordance with the applicable items in the Schedule. The Bill amends the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, the Independent National Security Legislation Monitor Act 2010, the Inspector-General of Intelligence and Security Act 1986 and the Intelligence Services Act 2001.

4.                    This clause also provides that any other items of the Schedule have effect according to their terms. This is a standard enabling clause for transitional, savings and application items in amending legislation.

 

Schedule 1 - Amendments

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act)

Overview

5.                    The Bill amends the AML/CTF Act to enable intelligence agency officials to disclose AUSTRAC information to the Attorney-General for the purposes of, or in connection with, his or her functions under the Australian Security Intelligence Organisation Act 1979 (ASIO Act) or the Telecommunications (Interception and Access) Act 1979 (TIA Act), or security.

Items 1 to 3 - After paragraph 128(13)(c), After paragraph 128(13B)(c) and After paragraph 128(13C)(c)

6.                    Section 128 of the AML/CTF Act provides for the disclosure of AUSTRAC information by officials of designated agencies. In respect of ASIO, this includes disclosure under subsection 128(13) to the ASIO Minister and the Minister responsible for administering the TIA Act. Under the AML/CTF Act, the ASIO Minister is defined as the Minister responsible for administering the ASIO Act (section 5). There are similar provisions for defence intelligence officials (subsection 128(13B)) and Office of National Assessments (ONA) officials (subsection 128(13C)) to disclose AUSTRAC information to the Minister responsible for administering the TIA Act.

7.                    As part of the establishment of the Home Affairs portfolio announced by the Prime Minister in July 2017, administration of the ASIO Act and the TIA Act will transfer to the new Minister for Home Affairs. The Attorney-General will continue to perform certain functions, for example issuing ASIO warrants and authorising special intelligence operations. It is important that ASIO and other intelligence agency officials can continue to disclose AUSTRAC information to the Attorney-General for the purpose of these functions.

8.                    Item 1 amends subsection 128(13) of the AML/CTF Act to insert a new paragraph to enable an ASIO official to disclose AUSTRAC information to the Attorney-General for the purposes of, or in connection with, the Attorney-General’s functions under the ASIO Act or the TIA Act, or security.

9.                    Item 2 amends subsection 128(13B) of the AML/CTF Act to insert a new paragraph to enable a defence intelligence agency official to disclose AUSTRAC information to the Attorney-General for the purposes of, or in connection with, his or her functions under the TIA Act.

10.                Item 3 amends subsection 128(13C) of the AML/CTF Act to insert a new paragraph to enable an ONA official to disclose AUSTRAC information to the Attorney-General for the purposes of, or in connection with, his or her functions under the TIA Act.

Independent National Security Legislation Monitor Act 2010 (INSLM Act)

Overview

11.                As part of the establishment of the Home Affairs portfolio announced by the Prime Minister in July 2017, administration of the INSLM Act will transfer to the Attorney-General, reflecting the decision to strengthen the Attorney-General’s oversight and integrity functions. 

12.                Under the existing section 7 of the INSLM Act, the Prime Minister can refer a matter relating to counter-terrorism or national security to the Monitor, either at the Monitor’s suggestion or on his or her own initiative. The Prime Minister can alter the terms of a reference, and can give the Monitor directions about the order in which he or she is to deal with references.

13.                Under the existing section 30, the Monitor must report to the Prime Minister on a reference made under section 7 and within 15 sitting days of receiving the report, the Prime Minister must cause it to be presented to each House of Parliament.

14.                It is appropriate the Prime Minister (as Chair of the National Security Committee of Cabinet and lead Minister responsible for the National Intelligence Community and whole-of-government national security and intelligence policy coordination) continues to have the power to refer a matter to the Monitor, in addition to the Minister responsible for administering the INSLM Act. To avoid confusion, the Prime Minister will be the only minister who can direct the Monitor about the order in which he or she is to deal with references.

15.                The minister who refers a matter to the Monitor (the referring minister) should be given any subsequent report. It is also appropriate that the Monitor has a discretion to provide the report to the non-referring minister.

Item 4 - Paragraph 6(1)(c)

16.                This item amends one of the functions of the Monitor, to enable him or her to report on matters referred by a Minister under section 7 (that is, either the Prime Minister or the Minister responsible for the INSLM Act).

Item 5 - Section 7

17.                This item repeals the existing section 7 of the INSLM Act and substitutes a new section 7 to enable both the Minister responsible for the INSLM Act and the Prime Minister to refer a matter relating to counter-terrorism or national security to the Monitor and alter the terms of reference of a matter. The item clarifies that only the Prime Minister may give directions to the Monitor about the order in which he or she is to deal with references.

Item 6 - Subsection 11(2)

18.                This item repeals the existing section 11 of the INSLM Act and substitutes it in full, to clarify that the Prime Minister will continue to play a primary role in the appointment process for the Monitor by consulting with the Leader of the Opposition in the House of Representatives before a recommendation is made to the Governor-General for the appointment of a person as the Monitor. This will remove any doubt that this role continues to sit with the Prime Minister after responsibility for administering the INSLM Act transfers to another Minister.

Items 7 to 17 - items replacing specific ministerial references, savings and transitional provisions

19.                Items 7, 9, 11, 12, 14, 15 and 17 replace references to the Prime Minister with the Minister (being the Minister administering the INSLM Act). This reflects the transfer of responsibility for administering the INSLM Act from the Prime Minister.

20.                Items 8 and 10 ensure the provisions relating to the grant of any leave of absence, or consent to any paid employment, continue after the commencement of the provisions in these items.

21.                Item 13 ensures that, where the Monitor disclosed an interest under the existing section 16, he or she must also make that disclosure to the Minister administering the INSLM Act as soon as practicable after the commencement of item 12.

22.                Item 16 ensures that an appointment of a person to act as the Monitor under section 20 which is in effect before the commencement of this item shall continue to have effect after that commencement.

Items 18 to 27 - items ensuring appropriate ministers receive reports on a reference

23.                Items 18 to 21 provide that the Monitor must report on a reference made under section 7 to the Minister who made the reference (defined as the ‘referring Minister’), including providing an interim report (either at his or her discretion, or if directed by the referring Minister).

24.                Item 22 inserts a new subsection to enable the Monitor to provide a copy of a report to either the Prime Minister or the Minister administering the INSLM Act, where that Minister did not refer the matter to the Monitor, if the Monitor considers it appropriate to do so.

25.                Items 23 to 26 enable the Minister who referred a matter to the Monitor to receive a declassified version of the Monitor’s interim or final report. The Minister who referred a matter to the Monitor must present the report (or the declassified version if one was prepared) to each House of Parliament within 15 sitting days of that House after the day on which the Minister receives the report. This requirement also applies to interim reports prepared at the direction of a referring Minister.

26.                Item 27 ensures that the amendments in this Bill apply to a reference made by the Prime Minister before the commencement of the amendments.

Inspector-General of Intelligence and Security Act 1986 (IGIS Act)

Overview

27.                As announced by the Prime Minister in July 2017, administration of the IGIS Act will transfer to the Attorney-General, reflecting the decision to strengthen the Attorney-General’s integrity and oversight functions.

Item 28 - Paragraph 4(c)

28.                This item clarifies the appropriate ministerial reference in outlining the objects of the Act, to allow for review of certain directions which are given to ASIO by the Minister responsible for ASIO.

Item 29 - Subsection 6(3)

29.                This item repeals existing subsection 6(3) of the IGIS Act and substitutes it in full, to clarify that the Prime Minister will continue to play a primary role in the appointment process for the Inspector-General by consulting with the Leader of the Opposition in the House of Representatives before a recommendation is made to the Governor-General for the appointment of a person as the Inspector-General. This will remove any doubt that this role sits with the Prime Minister after responsibility for administering the IGIS Act transfers to another Minister.

Items 30 to 33 - Subsections 6A(1) and (2) and Saving provision

30.                Item 30 replaces the Prime Minister with the Minister (being the Minister administering the IGIS Act) as the Minister who may appoint a person to act as the Inspector-General.

31.                Item 31 adds a reference to section 33AB of the Acts Interpretation Act 1901 (AI Act) to the note under subsection 6A(1). Section 33AB was inserted into the AI Act in 2011 to ensure that actions undertaken by a person under an appointment are not invalid only because there was a defect or irregularity in connection with the appointment. This item updates the note to reflect this change.

32.                Item 32 clarifies that the Prime Minister will continue to play a role in the appointment process for a person to act as the Inspector-General by consulting with the Leader of the Opposition in the House of Representatives before the appointment. This amendment clarifies that the Prime Minister is required to undertake the consultation before the Minister appoints a person to act as the Inspector-General.

33.                Item 33 ensures that an appointment for an acting Inspector-General that is currently in force will continue to have effect when the provisions in items 30 to 32 commence.

Item 34 - Subsections 8(1), (2) and (3)

34.                Section 8 of the IGIS Act sets out the functions of the Inspector-General in inquiring into certain matters relating to an intelligence agency, including in response to a request from a responsible minister (in relation to the agency whose Act they administer) or a complaint made to the Inspector-General, or at the Inspector-General’s own motion.

35.                This item amends the IGIS Act so that the Minister administering the IGIS Act (in addition to the Minister responsible for the relevant agency) can request the Inspector-General to inquire into any matter that a responsible Minister can currently request under section 8.

Item 35 - Subsections 9(1) and (3)

36.                This item amends section 9 of the IGIS Act so that, in addition to the Prime Minister, the Minister administering the IGIS Act can request the Inspector-General to inquire into a matter, and the IGIS must comply with the request.

37.                It is considered appropriate that the Prime Minister retains this power (in addition to the Minister administering the IGIS Act) as the Prime Minister will continue as chair of the National Security Committee of Cabinet and First Minister responsible for the National Intelligence Community and whole-of-government national security and intelligence policy coordination. 

Item 36 and 37 - Subparagraph 9AA(a)(i) and Application of amendment

38.                Consistent with the amendments in item 35, item 36 ensures the appropriate Minister (namely, the Minister who made the request under section 8 or 9) can give approval for the Inspector-General to inquire into certain matters, relating to a Commonwealth agency that occurred outside Australia, or before the commencement of the IGIS Act.

39.                Item 37 clarifies that the power granted to the Minister administering the IGIS Act under item 36 only applies on or after the commencement of that item.

Items 38 to 58 and 61 - items relating to references to ministers

40.                Items 38, 40, 46 and 47 include references to the Minister administering the IGIS Act alongside references to the Prime Minister, to ensure either may be consulted by, or receive reports from, the Inspector-General, depending on the circumstances.

41.                Item 39 enables the Inspector-General to consult either the Prime Minister or the Minister administering the IGIS Act following the commencement of the amendment in item 38, even if an inquiry began prior to that commencement.

42.                Items 41, 45, 49 and 53 clarify that the relevant amendments would apply to a report presented to the relevant minister following the commencement of the amendments, even if an inquiry that is the subject of the report began prior to the commencement.

43.                Item 42 repeals and substitutes the heading of section 24 relating to action as a result of reports, and item 43 amends subsection 24(2) to provide that the Inspector-General must give any report prepared under that provision to the Minister administering the IGIS Act. If the inquiry was conducted as a result of a request made by the Prime Minister under section 9, the Inspector-General must also give a copy of that report to the Prime Minister.

44.                Items 44, 48 and 52 ensure that, in the absence of a specific requirement for the Prime Minister to receive a copy of a report from the Inspector-General under the relevant sections of the IGIS Act, if the Inspector-General considers it appropriate to do so, he or she may provide such a copy to the Prime Minister.

45.                Item 50 is a consequential amendment to enable the insertion of a new subsection 25(2) under item 51 of this Bill. There is no change to the operation of the existing section 25.

46.                Item 51 replaces the reference to the Prime Minister with a reference to the Minister administering this Act, to reflect that certain powers and functions currently exercised by the Prime Minister will transfer to the Minister administering the IGIS Act.

47.                Items 54, 56 and 61 replace references to the Prime Minister with references to the Minister (being the Minister administering the IGIS Act) to reflect that certain powers and functions currently exercised by the Prime Minister will transfer to the Minister administering the IGIS Act.

48.                Item 55 ensures that any leaves of absence granted, or terms and conditions determined, under subsection 28(2) remain operative following the commencement of item 54.

49.                Item 57 ensures that any approval for the Inspector-General to undertake paid employment outside of his or her duties as the Inspector-General granted under subparagraph 30(2)(b)(i) remains operative following the commencement of item 56.

50.                Item 58 clarifies that references to the Minister in subsection 32A(5) are to the Minister responsible for the relevant agency, rather than the Minister administering the IGIS Act.

Item 59 - Subsection 32B(3)

51.                This item repeals subsection 32B(3) as it is no longer operative.

Item 60 - Subsection 35(3)

52.                This item replaces the requirement for the Prime Minister to give a copy of the IGIS annual report to the Leader of the Opposition with a requirement that a copy of the report must be provided to the Leader of the Opposition, but does not stipulate who will do so.

Intelligence Services Act 2001 (IS Act)



Overview



53.                The Bill amends the IS Act by clarifying ministerial responsibility to reflect the changes announced by the Prime Minister in July 2017, including that the Attorney-General will continue to have a role in security-related Ministerial authorisations under the IS Act . Throughout the IS Act, references are made to both to the Attorney-General and the Minister responsible for the ASIO Act (who will become the Minister for Home Affairs under the changes), and the Bill amends the IS Act to ensure that it accurately reflects the division of responsibility under the new arrangements.

 

54.                In addition to retaining responsibility under paragraph 9(1A)(b) for agreeing to security-related Ministerial authorisations, the Attorney-General will also retain responsibility for exercising powers under existing provisions where the Attorney-General is already expressly referred to, including:

·            consultation in relation to approvals under subsection 13(1A) for ASIS to cooperate with foreign government authorities in activities involving violence against the person, the use of weapons or paramilitary activities;

·            consultation under paragraph 15(3)(c) prior to the approval of the Rules to protect the privacy of Australians for each IS Act agency; and

·            consenting to prosecutions for offences under section 41A and Schedule 1 clause 13.

55.                The Attorney-General will also be required to be consulted prior to the making of cooperation guidelines under section 13G of the IS Act, which apply to the undertaking of certain types of activities by ASIS in support of ASIO that would normally require Ministerial authorisation.

56.                The Attorney-General will also be empowered to refer certain matters to the Parliamentary Joint Committee on Intelligence and Security under section 29, reflecting their enhanced oversight and integrity role in relation to the intelligence community.

 

Items 62 and 63 - Paragraph 9(1A)(b) and Saving provision

 

57.                Item 62 replaces the reference to the ‘Minister responsible for administering the Australian Security Intelligence Organisation Act 1979 ’ with ‘Attorney-General’. This amendment ensures agreement is required to be given by the Attorney-General for security-related Ministerial authorisations.

58.                Item 63 ensures that an agreement given under paragraph 9(1A)(b) of the IS Act that was in effect immediately before the commencement of the amendment under item 62 continues to have effect after the commencement of that amendment.

 

Item 64 - Subsection 9(1AA) (heading)

 

59.                This item repeals the heading of the subsection and substitutes ‘Agreement of the Attorney-General’ to reflect the Attorney-General’s responsibility for security-related Ministerial authorisations.

 

Items 65 to 67 - Subsections 9(1AA) and (1AC), subsection 9(1AC) (note) and subsection 9A(2) (note)

 

60.                These items replace references to the Minister administering the ASIO Act and substitute ‘Attorney-General’ which reflects the Attorney-General’s responsibility for giving agreement to security-related Ministerial authorisations.

 

Item 68 - At the end of paragraph 9A(3)(b)

61.                This item adds the Minister responsible for administering the Australian Security Intelligence Organisation Act 1979 to the list of Ministers at paragraph 9A(3)(b) who are able to orally provide authorisation in an emergency situation when the responsible Minister in relation to the relevant agency is not readily available or contactable.

 

62.                It is appropriate to include the Minister responsible for the ASIO Act on this list (which currently includes the Prime Minister, the Defence Minister, the Foreign Affairs Minister and the Attorney-General). As the Minister responsible for national security policy and operations more broadly, he or she would have a sufficiently detailed understanding of the operational environment and relevant considerations to make an informed judgment about whether particular intelligence activities should be undertaken in an emergency.

 

Items 69 to 73 - Subsection 9B(2)(note), Section 9C (heading), subparagraph 9C(1)(c)(i), subparagraph 9C(1)(c)(iii) and subsections 9C(2) and (3)

63.                These items replace references to the Minister administering the ASIO Act and the ASIO Minister with ‘Attorney-General’ which reflects the Attorney-General’s responsibility for giving agreement to security-related Ministerial authorisations.

Items 74 and 75 - Subsection 9C(4) and paragraph 9C(5)(a)

64.                These items add the Attorney-General (in addition to the Minister responsible for the ASIO Act) to the list of those to be notified following a security-related emergency authorisation given under section 9A or 9B. This will ensure both the Attorney-General (as the Minister responsible for giving agreement to security-related Ministerial authorisations) and the Minister responsible for the ASIO Act remain apprised of relevant circumstances where an IS Act agency acts in a security-related emergency situation without a Ministerial authorisation.

 

Item 76 - After subsection 13G(1)

 

65.                This item inserts subsection 13G(1A) which requires the responsible Minister in relation to ASIO and the responsible Minister in relation to ASIS to consult with the Attorney-General before making cooperation guidelines under section 13G. This reflects the Attorney-General’s enhanced integrity and oversight role in relation to the intelligence community.

 

Item 77 - After subparagraph 29(1)(b)(i)

 

66.                This item amends the functions of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) to include a review of any matter in relation to ASIO, ASIS, AGO, DIO, ASD, or ONA referred to the Committee by the Attorney-General. This reflects the Attorney-General’s enhanced integrity and oversight role in relation to the intelligence community. The Committee’s ability to undertake a review will be subject to the restrictions on the Committee’s functions in subsection 29(3).

 

Item 78 - Paragraph 29(1)(c)

 

67.                This item clarifies that the PJCIS must provide its reports to the Attorney-General (in addition to the responsible Minister for an agency).

 

Item 79 - Subsection 29(2)

 

68.                This item enables the PJCIS to request the Attorney-General (in addition to the responsible Minister) to refer a matter in relation to the activities of ASIO, ASIS, AGO, DIO, ASD, or ONA to the Committee, and enables the Attorney-General (in addition to the responsible Minister) to refer that matter to the Committee for review. This reflects the Attorney-General’s enhanced integrity and oversight role in relation to the intelligence community. The Committee’s ability to undertake a review will be subject to the restrictions on the Committee’s functions in subsection 29(3).