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Foreign Intelligence Legislation Amendment Bill 2021

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2019-2020-2021

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

Foreign Intelligence Legislation Amendment Bill 2021

 

EXPLANATORY MEMORANDUM

 

 

 

Circulated by authority of the

Minister for Home Affairs, the Honourable Karen Andrews MP

Foreign Intelligence Legislation Amendment Bill 2021

General Outline

1.              The Foreign Intelligence Legislation Amendment Bill 2021 (the Bill ) amends the Telecommunications (Interception and Access) Act 1979 ( TIA Act ) and the Australian Security Intelligence Organisation Act 1979 ( ASIO Act ) to address critical gaps in Australia’s foreign intelligence warrant framework. Foreign intelligence means intelligence about the capabilities, intentions or activities of people or organisations outside Australia. Without the proposed changes, gaps in foreign intelligence collection will continue to grow and Australia will not have visibility of possible threats to Australia and its security. The Bill will improve intelligence agencies’ ability to collect intelligence about foreign threats to Australia, and keep Australia safe and prosperous.

2.              Schedule 1 of the Bill amends the foreign communications warrant in section 11C of the TIA Act to overcome the difficulty intelligence agencies face in distinguishing between foreign and domestic communications in the modern technological environment. Under the reforms, the Director-General of Security will be able to apply for a warrant authorising the interception of a communication for the purpose of obtaining foreign intelligence from foreign communications. Currently, the interception of any domestic communications is strictly prohibited.

3.              Schedule 1 is designed to restore the foreign communications warrant to its original scope and function. The removal of the strict prohibition is accompanied by robust safeguards to protect domestic communications in the same way the original prohibition intended.

4.              Schedule 2 of the Bill enables the Attorney-General to issue foreign intelligence warrants to collect foreign intelligence on Australians in Australia who are acting for, or on behalf of, a foreign power. Currently, requesting a warrant for the purpose of collecting information concerning an Australian citizen or permanent resident is prohibited in all circumstances.

History of the foreign intelligence framework

5.              ASIO’s primary functions relate to obtaining, correlating and evaluating intelligence relevant to security, and to providing advice on matters relevant to security. In addition, ASIO is also responsible for obtaining foreign intelligence warrants that authorise the collection of foreign intelligence inside Australia, under sections 11A, 11B and 11C of the TIA Act and section 27A of the ASIO Act.

6.              The ability for ASIO to obtain foreign intelligence warrants has a long history. The foreign intelligence warrant framework was introduced by the Australian Security Intelligence Organization Amendment Act 1986 and the Intelligence and Security (Consequential Amendments) Act 1986 , in response to a recommendation of the Royal Commission on Australia’s Security and Intelligence Agencies (the Second Hope Royal Commission). In his report, Justice Hope provided that:

I am satisfied that Australia has a need to collect foreign intelligence which relates to its national security and its other national interests. Considerations of the national interest, national independence, costs, and practical difficulties have led me to conclude that it would be highly advantageous for Australia to be able to collect foreign intelligence within its own territory where this is possible.

7.              Justice Hope considered that ASIO would be the appropriate agency to be granted foreign intelligence warrants to exercise ‘special statutory powers of collection’ inside Australia.

8.              As originally introduced, the foreign intelligence warrant framework contained two warrants: a warrant under section 11A of the TIA Act authorising the interception of a single service (such as a single phone number), and a warrant under section 27A of the ASIO Act, authorising the use of ASIO’s pre-existing special powers.

9.              In response to the technological change of the 1990s (including the uptake of mobile phones), the Telecommunications (Interception) Legislation Amendment Act 2000 updated the telecommunications interception framework, including by introducing the section 11C warrant. The Explanatory Memorandum explained that:

Proposed section 11C creates a new class of "foreign communication" warrants for circumstances where telecommunications technologies operate so as to preclude the interception of particular communications by reference to a specific service or a named individual. These warrants are confined to foreign communications only and special provision is made to limit the scope of their authority since it is not possible to identify a particular service or individual.

10.          Since its introduction, the foreign communications warrant has played a critical role in enabling intelligence agencies to identify threats to Australia’s national security. This includes malicious cyber activity targeting Australian interests, terrorist communications, and indications of foreign intelligence services threatening Australia’s interests.

11.          However, further technological change since 2000 has diminished the effectiveness of the foreign communications warrant. Schedule 1 will restore the warrant to its original effectiveness.

Schedule 1: Section 11C foreign communications warrant amendments (section 11C of the TIA Act)

12.          Currently, foreign communications warrants, issued by the Attorney-General under section 11C of the TIA Act, authorise the interception of foreign communications for the purpose of obtaining foreign intelligence about a matter specified in the warrant.

13.          The challenge with the existing foreign communications warrant is that the interception of domestic communications (communications that both start and end within Australia) is prohibited, even where that interception is inadvertent or unavoidable.

14.          This restriction made sense when the warrant was introduced into the TIA Act in 2000. The primary forms of communication technologies were telephone and fax, which used reliable geographic identifiers such as country code, city code and exchange code. These identifiers enabled intelligence agencies to determine the location of the sender and receiver of communications, even prior to the interception occurring.

15.          Since then, advances in technology—particularly widespread use of internet-based communications and mobile applications—mean that it can be impossible to know, at the point of interception, if a communication is foreign or domestic.

16.          Currently, to avoid breaching the TIA Act, intelligence agencies do not intercept foreign communications where there is even the smallest risk of incidentally intercepting domestic communications. This considerable constraint on the collection of foreign intelligence is creating the real risk that intelligence agencies are missing critical foreign intelligence.

17.          The reforms will allow intelligence agencies to intercept communications, including where the geographic location of the sender and recipient of the communications cannot be determined prior to their interception. Robust safeguards accompany these reforms:

·          The proposed warrants can only be issued for the purpose of obtaining foreign intelligence from foreign communications (paragraph 11C(1)(a)).

·          The warrant request must specify how the risk of intercepting domestic communications will be minimised (paragraph 11C(3)(a)).

·          The Attorney-General must issue a mandatory written procedure (subsection 11C(6)) to:

o    screen for domestic communications that may have been intercepted

o    destroy all records of any domestic communication so identified (unless the communication relates, or appears to relate, to activities that present a significant risk to a person’s life), and

o    notify the Inspector-General of Intelligence and Security ( IGIS ) of any identified domestic communication that relates, or appears to relate, to activities that present a significant risk to a person’s life.

·          The mandatory procedure issued by the Attorney-General may also deal with any other matters relating to communications intercepted under a warrant under section 11C (subsection 11C(7)). 

·          Before issuing or varying the mandatory procedure, the Attorney-General must consult the Minister for Defence, Minister for Foreign Affairs, IGIS and the Director-General of Security (subsection 11C(9)).

·          The Attorney-General must review the mandatory procedure as soon as practicable within one year of it being issued, and then every 3 years.

18.          The term ‘screening’ is intended to capture a continuous process for identifying domestic communications.

19.          The existing safeguards for foreign communications warrants will also continue to apply:

·          Requesting these warrants for the purpose of collecting information concerning an Australian is specifically prohibited unless the Director-General reasonably suspects the Australian is acting for, or on behalf of, a foreign power (subsection 11D(5), as amended by Schedule 2).

·          The Attorney-General must be satisfied, on the advice of the Minister for Defence or the Minister for Foreign Affairs, that the collection of foreign intelligence is in the interests of Australia’s national security, Australia’s foreign relations, or Australia’s national economic wellbeing (subparagraph 11C(1)(b)(i)).

·          The Attorney-General must be satisfied that it is necessary to intercept foreign communications in order to collect foreign intelligence, and that alternative foreign intelligence warrants would be ineffective (subparagraphs 11C(1)(b)(ii) and (iii)).

20.          Only in the exceptional circumstance where there is a significant risk to life will intelligence agencies be able to rely on inadvertently intercepted domestic communications. This exception will ensure Australia’s intelligence agencies can respond to terrorist, hostage and other significant threats to lives.

21.          The IGIS will also continue to have oversight of agencies’ activities under these warrants, and will oversee the compliance with the mandatory procedures issued by the Attorney-General. The IGIS has extensive powers, akin to those of a standing Royal Commission and is an essential safeguard.

Schedule 2: Australians or permanent residents acting for, or on behalf of, a foreign power (subsection 11D(5) of the TIA Act and 27A(9) of the ASIO Act)

22.          Currently, subsections 11D(5) of the TIA Act and 27A(9) of the ASIO Act prohibit the Director-General of Security from requesting the issue of a foreign intelligence warrant for the purpose of collecting information concerning an Australian citizen or permanent resident.

23.          The Comprehensive Review of the Legal Framework of the National Intelligence Community ( Comprehensive Review ), conducted by Dennis Richardson AC, recommended reforms to allow foreign intelligence to be collected on Australian citizens and permanent residents in Australia, who are acting for or on behalf of foreign powers.

24.          These amendments will close a legislative gap where foreign intelligence can be collected offshore on an Australian working for a foreign power, but that same intelligence cannot be collected inside Australia on that Australian under a warrant. As the Comprehensive Review observed:

Preventing some forms of collection when the Australian target is onshore, but enabling it when the target is offshore, seems a disproportionate restriction that costs Australia a significant intelligence dividend. It can also cost the Government the opportunity to collect valuable foreign intelligence that has a direct bearing on Australia’s national security, foreign relations and national economic well-being more securely and cost effectively than offshore collection.

…An Australian serving the interests of a foreign government… remains an agent of a foreign power whether they are onshore or offshore.

25.          There are circumstances where Australian citizens and permanent residents are of legitimate foreign intelligence interest. For example, where an Australian citizen is acting as an agent of a foreign state.

26.          Robust safeguards will accompany these reforms:

·          The law will continue to prevent the request of a foreign intelligence warrant on Australian persons who are not acting for, or on behalf of, a foreign power (subsection 27A(9) in the ASIO Act and subsection 11D(5) of the TIA Act).

·          The Director-General of Security must include, in the request of a warrant, details about the grounds on which he or she suspects that the person is acting for, or on behalf of, a foreign power (paragraph 27A(9A)(a) of the ASIO Act and paragraphs 11A(3)(a), 11B(4)(a) and 11C(3A)(a) of the TIA Act).

·          The Attorney-General must not issue a warrant unless he or she is satisfied that the person is, or is reasonably suspected by the Director-General of Security of, acting for, or on behalf of, a foreign power (paragraph 27A(9A)(b) of the ASIO Act and paragraphs 11A(3)(b), 11B(4)(b) and 11C(3A)(b) of the TIA Act).

·          The Attorney-General must be satisfied, on advice from either the Minister for Defence or the Minister for Foreign Affairs that the collection is in the interests of Australia’s national security, foreign relations or economic well-being (existing paragraph 27A(1)(b) in the ASIO Act and existing paragraph 11A(1)(b), and subparagraphs 11B(1)(b)(i) and 11C(1)(b)(i) of the TIA Act).

27.          The IGIS will also continue to have oversight of agencies’ activities under these warrants. The IGIS has extensive powers, akin to those of a standing Royal Commission and is an essential safeguard.

 

FINANCIAL IMPACT

28.          Nil .



 

ABBREVIATIONS used in the Explanatory Memorandum

 

ASIO                                                       Australian Security Intelligence Organisation

 

ASIO Act                                                Australian Security Intelligence Organisation Act 1979

 

Bill                                               Foreign Intelligence Legislation Amendment Bill

 

Comprehensive                            Comprehensive Review of the Legal Framework of the

Review                                         National Intelligence Community

 

CRC                                             Convention on the Rights of the Child

 

IGIS                                            Inspector-General of Intelligence and Security

 

ICCPR                                                     International Covenant on Civil and Political Rights

 

TIA Act                                        Telecommunications (Interception and Access) Act 1979



 

Statement of Compatibility with Human Rights

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

 

Foreign Intelligence Legislation Amendment Bill 2021

 

1.              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

2.              The Foreign Intelligence Legislation Amendment Bill 2021 (the Bill ) amends the Telecommunications (Interception and Access) Act 1979 ( TIA Act ) and the Australian Security Intelligence Organisation Act 1979 ( ASIO Act ) to address critical gaps in Australia’s foreign intelligence warrant framework. Without the proposed changes, gaps in foreign intelligence collection will continue to grow and Australia will not have visibility of possible threats to Australia and its security. The Bill will improve intelligence agencies’ ability to collect intelligence about foreign threats to Australia, and keep Australia safe and prosperous.

3.              Schedule 1 of the Bill amends the foreign communications warrant in section 11C of the TIA Act to overcome the difficulty intelligence agencies face in distinguishing between foreign and domestic communications in the modern technological environment. Under the reforms, the Director-General of Security will be able to apply for a warrant authorising the interception of a communication for the purpose of obtaining foreign intelligence from foreign communications. Currently, the interception of any domestic communications is strictly prohibited.

4.              Schedule 1 is designed to restore the foreign communications warrant to its original scope and function. The removal of the strict prohibition is accompanied by robust safeguards to protect domestic communications in the same way the original prohibition intended.

5.              Schedule 2 of the Bill enables the Attorney-General to issue foreign intelligence warrants to collect foreign intelligence on Australians in Australia who are acting for, or on behalf of, a foreign power. Currently, requesting a warrant for the purpose of collecting information concerning an Australian citizen or permanent resident is prohibited in all circumstances.

Schedule 1: Section 11C foreign communications warrant amendments (section 11C of the TIA Act)

6.              Currently, foreign communications warrants, issued by the Attorney-General under section 11C of the TIA Act, authorise the interception of foreign communications for the purpose of obtaining foreign intelligence. Foreign intelligence means intelligence about the capabilities, intentions or activities of people or organisations outside Australia.

7.              These warrants play a critical role in enabling intelligence agencies to identify threats to Australia’s national security. This includes malicious cyber activity targeting Australian interests, terrorist communications, and foreign intelligence services threatening Australia’s interests.

8.              The challenge with the foreign communications warrant is that the interception of domestic communications (communications that both start and end within Australia) is prohibited, even where that interception is inadvertent or unavoidable.

9.              This restriction made sense when the warrant was introduced into the TIA Act in 2000. The primary forms of communication technologies were telephone and fax, which used reliable geographic identifiers such as country code, city code and exchange code. These identifiers enabled intelligence agencies to determine the location of the sender and recipient of communications, even prior to interception.

10.          Since then, advances in technology—particularly widespread use of internet-based communications and mobile applications—mean that it can be impossible to know, at the point of interception, if a communication is foreign or domestic.

11.          To avoid breaching the TIA Act, intelligence agencies do not intercept foreign communications where there is even the smallest risk of incidentally intercepting domestic communications. This considerable constraint on the collection of foreign intelligence creates the real risk that intelligence agencies are missing critical foreign intelligence.

12.          The reforms will allow intelligence agencies to intercept communications, including where the geographic location of the sender and recipient cannot be determined prior to interception. Robust safeguards accompany these reforms:

·          The proposed warrants can only be issued for the purpose of obtaining foreign intelligence from foreign communications (paragraph 11C(1)(a)).

·          A warrant request must specify how the risk of intercepting domestic communications will be minimised (paragraph 11C(3)(a)).

·          The Attorney-General must issue mandatory procedures (subsection 11C(6)) to:

o    screen for domestic communications that may have been incidentally intercepted

o    destroy all records of any domestic communication so identified (unless the communication relates, or appears to relate, to activities that present a significant risk to a person’s life), and

o    notify the Inspector-General of Intelligence and Security (IGIS) of any identified domestic communication that relates, or appears to relate, to activities that present a significant risk to a person’s life.

·          The mandatory procedure issued by the Attorney-General may also deal with any other matters relating to communications intercepted under a warrant under section 11C (subsection 11C(7)). 

·          Before issuing or varying the mandatory procedure, the Attorney-General must consult the Minister for Defence, Minister for Foreign Affairs, IGIS and the Director-General of Security (subsection 11C(9)).

·          The Attorney-General must review the mandatory procedure as soon as practicable within one year of it being issued, and then every 3 years (subsection 11C(10)).

13.          The term ‘screening’ is intended to capture a continuous process for identifying domestic communications.

14.          The existing safeguards for foreign communications warrants will also continue to apply:

·          Obtaining these warrants for the purpose of collecting information concerning an Australian is specifically prohibited unless the Australian is acting for, or on behalf of, a foreign power (subsection 11D(5), as amended by Schedule 2).

·          The Attorney-General must be satisfied, on the advice of the Minister for Defence or the Minister for Foreign Affairs, that the collection of foreign intelligence is in the interests of Australia’s national security, Australia’s foreign relations, or Australia’s national economic wellbeing (subparagraph 11C(1)(b)(i)).

·          The Attorney-General must be satisfied that it is necessary to intercept foreign communications in order to collect foreign intelligence, and that alternative foreign intelligence warrants would be ineffective (subparagraphs 11C(1)(b)(ii) and (iii)).

15.          Only in the exceptional circumstance where there is a significant risk to life will intelligence agencies be able to share inadvertently intercepted domestic communications. This exception will ensure Australia’s intelligence agencies can respond to terrorist, hostage and other significant threats to Australian lives.

16.          The IGIS will also continue to have oversight of agencies’ activities under these warrants, and will oversee the compliance with the mandatory procedures issued by the Attorney-General. The IGIS has extensive powers, akin to those of a standing Royal Commission and is an essential safeguard.

Schedule 2: Australians or permanent residents acting for, or on behalf of, a foreign power (subsection 11D(5) of the TIA Act and 27A(9) of the ASIO Act)

17.          Currently, subsections 11D(5) of the TIA Act and 27A(9) of the ASIO Act prohibit the Director-General of Security from requesting the issue of a foreign intelligence warrant for the purpose of collecting information concerning an Australian citizen or permanent resident in Australia.

18.          The Comprehensive Review of the Legal Framework of the National Intelligence Community ( Comprehensive Review ), conducted by Dennis Richardson AC, recommended reforms to allow foreign intelligence to be collected on Australian citizens and permanent residents, who are acting for or on behalf of foreign powers. The term foreign power is defined in the ASIO Act to mean a foreign government, an entity that is directed or controlled by a foreign government or governments or a foreign political organisation.

19.          These amendments will close a legislative gap where foreign intelligence can be collected offshore on an Australian working for a foreign power, but that same intelligence cannot be collected onshore on that Australian under a warrant. As the Comprehensive Review observed:

Preventing some forms of collection when the Australian target is onshore, but enabling it when the target is offshore, seems a disproportionate restriction that costs Australia a significant intelligence dividend. It can also cost the Government the opportunity to collect valuable foreign intelligence that has a direct bearing on Australia’s national security, foreign relations and national economic well-being more securely and cost effectively than offshore collection.

…An Australian serving the interests of a foreign government… remains an agent of a foreign power whether they are onshore or offshore.

20.          There are circumstances where Australian citizens and permanent residents are of legitimate foreign intelligence interest. For example, where an Australian citizen is acting as an agent of a foreign state.

21.          Robust safeguards will accompany these reforms:

·          The law will continue to prevent the request of a foreign intelligence warrant on Australian persons who are not acting for, or on behalf of, a foreign power (subsection 27A(9) in the ASIO Act and subsection 11D(5) of the TIA Act).

·          The Director-General of Security must include, in the request of a warrant, details about the grounds on which he or she suspects that the person is acting for, or on behalf of, a foreign power (paragraph 27A(9A)(a) of the ASIO Act and paragraphs 11A(3)(a), 11B(4)(a) and 11C(3A)(a) of the TIA Act).

·          The Attorney-General must not issue a warrant unless he or she is satisfied that the person is, or is reasonably suspected by the Director-General of Security of, acting for, or on behalf of, a foreign power (paragraph 27A(9A)(b) of the ASIO Act and paragraphs 11A(3)(b), 11B(4)(b) and 11C(3A)(b) of the TIA Act).

·          The Attorney-General must be satisfied, on advice from either the Minister for Defence or the Minister for Foreign Affairs that the collection is in the interests of Australia’s national security, foreign relations or economic well-being (existing paragraph 27A(1)(b) in the ASIO Act and existing paragraph 11A(1)(b), and subparagraphs 11B(1)(b)(i) and 11C(1)(b)(i) of the TIA Act).

22.          The IGIS will also continue to have oversight of agencies’ activities under these warrants. The IGIS has extensive powers, akin to those of a standing Royal Commission and is an essential safeguard.

Human rights implications

23.          The Bill engages the following human rights under the International Covenant on Civil and Political Rights ( ICCPR ) and the Convention on the Rights of the Child ( CRC ):

·          Protection against arbitrary or unlawful interference with privacy in Article 17 (ICCPR) and Article 16 (CRC).

·          Right to freedom of expression in Article 19 (ICCPR) and Article 13 (CRC).

·          Right to life in Article 6 (ICCPR) and Article 6 (CRC).

·          The right of the child to have their best interests as a primary consideration in Article 3 (CRC).

Protection against arbitrary or unlawful interference with privacy in Article 17 of the ICCPR and Article 16 of the CRC

24.          The Bill engages the protection against arbitrary or unlawful interference with privacy contained in Article 17 of the ICCPR and Article 16 of the CRC. Protection against arbitrary or unlawful interference with privacy means that no person (adult or child) shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation, and that everyone has the right to the protection of the law against such interference or attacks.

25.          The protection against arbitrary or unlawful interference with privacy can be permissibly limited where the limitations are lawful and not arbitrary. The term ‘unlawful’ indicates that no interference can take place except as authorised under domestic law. 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 mean that any limitation must be proportionate and necessary in the circumstances to achieve a legitimate objective.

Schedule 1 - Foreign communications warrant amendments

26.          Schedule 1 limits the right to privacy by removing the restriction on intercepting only communications known to be foreign communications. The amendments will enable the Director-General of Security to apply for a warrant authorising the interception of a communication (including where the geographic location of the sender or recipient may be unknown) in order to determine whether the communication is foreign for the purpose of obtaining foreign intelligence from foreign communications.

27.          These amendments pursue the legitimate objective of national security by resolving a critical operational gap for intelligence agencies. Currently, due to the nature of modern communications technologies, it is increasingly the case that the geographic location of the sender and recipient of communications cannot be determined prior to interception. As a result, intelligence agencies cannot intercept a number of foreign communications that would likely be of foreign intelligence value, as it could risk the incidental interception of domestic communications. This constraint on the collection of foreign intelligence creates the real risk that intelligence agencies are missing critical foreign intelligence to protect Australians and their security. The amendment is rationally connected to the objective of protecting national security, as the reforms will close this intelligence gap and improve the ability of agencies to uncover terrorist plots, malicious cyber activity and other serious threats to Australia’s national interests.

28.          The amendments only go as far as is reasonable and necessary in limiting the right to privacy. The warrant can only be issued by the Attorney-General for the purpose of collecting foreign intelligence from foreign communications, subject to strict safeguards. Domestic communications cannot be targeted for interception. In addition, the Attorney-General must issue a mandatory written procedure for screening and destroying any identified domestic communications that may have been incidentally intercepted. The Attorney-General must not issue a warrant unless that procedure is in force.

29.          The only exception to the destruction requirement is where the communication relates, or appears to relate, to activities that present a significant risk to a person’s life. Only in this exceptional circumstance—where a person’s life is in danger—may a domestic communication be retained. This will allow the communication to be shared with relevant authorities in order to reduce or remove the risk to the person. This may occur where the communication reveals a person has been taken hostage or an imminent terrorist attack will be carried out.

30.          This is a very limited exception. It only applies to ‘significant risk’ to a person’s life, where the likelihood of loss of life is real and imminent, or where the scale of the threat is substantial. It would not apply to a mere possibility of harm to individuals or damage to property. There must be a significant threat of loss of life, requiring the information to be acted on immediately by relevant authorities.

31.          Such safeguards in the Bill ensure that any limitations on the right to privacy are carefully balanced with the objective of protecting Australia’s national security.

32.          The existing safeguards for the foreign communications warrant will also continue to apply. The Attorney-General must be satisfied, on the advice of the Minister for Defence or the Minister for Foreign Affairs, that the collection of foreign intelligence is in the interests of Australia’s national security, Australia’s foreign relations, or Australia’s national economic well-being, and that it is necessary to intercept communications in order to collect foreign intelligence. The Attorney-General must also be satisfied that relying on another foreign intelligence warrant (a telecommunications service warrant or a named person warrant) would be ineffective. The foreign communications warrant will remain a warrant of last resort by only being available where there are no other means of collecting the intelligence. Consequently, the measures are the least rights restrictive means of achieving the legitimate objective.

33.          The IGIS reviews the activities of intelligence agencies to ensure they act lawfully, with propriety and in a manner which respects human rights. Should the IGIS choose to conduct an inquiry into the actions of an intelligence agency, it has strong coercive powers, similar to those of a Royal Commission, including powers to compel the production of information and documents, enter premises occupied or used by a Commonwealth agency, issue notices to persons to appear before the IGIS to answer questions relevant to the inquiry, and to administer an oath or affirmation when taking such evidence.

34.          These measures, in the Bill and existing legal framework, provide appropriate safeguards to ensure that any limitation on the right to privacy under foreign communications warrants are the least rights restrictive means of achieving the outcome of protecting national security. To that end, while Schedule 1 limits the right to privacy, those limitations are reasonable, necessary and proportionate.

Schedule 2 - Foreign power amendments

35.          Schedule 2 limits the right to privacy by allowing foreign intelligence to be collected on Australian citizens and permanent residents onshore, who are acting for or on behalf of a foreign power. The Attorney-General will be able to issue foreign intelligence warrants for the purpose of collecting foreign intelligence on Australians who are acting for, or on behalf of, a foreign power.

36.          The amendments pursue the legitimate objective of national security by closing the current gap in the legal framework where foreign intelligence may be collected offshore on an Australian working for a foreign power, but that same intelligence cannot be collected inside Australia on that Australian under a warrant. This gap prevents intelligence agencies from collecting foreign intelligence in circumstances where Australian citizens and permanent residents are of legitimate foreign intelligence interest, such as where an Australian citizen is recruited as an agent of a foreign state. There are often no alternate warrant options for collecting foreign intelligence on these individuals. The amendments are rationally connected to the objective of protecting national security, by closing the gap that otherwise prevents intelligence agencies from collecting foreign intelligence on Australians acting for, or on behalf of, a foreign power.

37.          The amendments only goes as far as is reasonable and necessary in limiting the right to privacy. Foreign intelligence warrants may only be requested by the Director-General of Security for the purpose of obtaining foreign intelligence. The Director-General must include details in the request about the grounds on which the person is suspected to be acting for, or on behalf of, a foreign power. This ensures the Director-General provides information supporting his or her suspicion, and that this information can be scrutinised by the Attorney-General before issuing the warrant, or scrutinised by the IGIS in his or her review of the warrant. The measures are also proportionate. The Attorney-General must not issue a warrant unless he or she is also satisfied the person is, or is reasonably suspected by the Director-General of Security of, acting for, or on behalf of a foreign power. This provision ensures the Attorney-General independently turns his or her mind to, and makes a decision concerning, whether an Australian is acting for, or on behalf of, a foreign power (or is reasonably suspected by the Director-General of Security as doing so). To this end, the Bill protects against the possibility of foreign intelligence warrants being sought on Australians who are not acting for, or on behalf of, a foreign power.

38.          The measure is also the least rights restrictive means of achieving the legitimate objective. Existing safeguards for foreign intelligence warrants will continue to apply. The Attorney-General may only approve the warrant when satisfied, on advice from the Minister for Defence or the Minister for Foreign Affairs, that the collection of foreign intelligence is in the interests of Australia’s national security, foreign relations or economic well-being. The Attorney-General may also place conditions and restrictions on the warrant to limit the impact on the privacy of Australians. In addition, the intelligence agencies which use foreign intelligence are subject to Privacy Rules under section 15 of the Intelligence Services Act 2001 . These Privacy Rules limit the communication of information concerning Australian persons.

39.          The IGIS reviews the activities of intelligence agencies to ensure they act lawfully, with propriety and in a manner which respects human rights. Should the IGIS choose to conduct an inquiry into the actions of an intelligence agency, it has strong coercive powers, similar to those of a Royal Commission, including powers to compel the production of information and documents, enter premises occupied or used by a Commonwealth agency, issue notices to persons to appear before the IGIS to answer questions relevant to the inquiry, and to administer an oath or affirmation when taking such evidence.

40.          These measures ensure that any limitation on the right to privacy are the least rights restrictive means of achieving the outcome of protecting national security. To that end, while Schedule 2 limits the right to privacy, those limitations are reasonable, necessary and proportionate.

Protection of the right to freedom of expression in Article 19 of the ICCPR and Article 13 of the CRC

41.          Article 19(2) of the ICCPR and Article 13 of the CRC provide that everyone shall have the right to freedom of expression, including the right ‘to seek, receive and impart information and ideas of all kinds and regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’

42.          The right to freedom of expression may be limited on certain grounds, including national security. However, any limitations must be prescribed by legislation and reasonable, necessary and proportionate to achieve the legitimate objective.

Schedule 1 - Foreign communications warrant amendments

43.          Schedule 1 may indirectly limit the right to freedom of expression if an individual concerned about their communications being intercepted does not feel free to express themselves.

44.          These amendments pursue the legitimate objective of national security by resolving a critical operational gap for intelligence agencies. Currently, due to the nature of modern communications technologies, it is increasingly the case that the geographic location of the sender or recipient of many communications cannot be determined prior to interception. As a result, intelligence agencies cannot intercept a number of foreign communications that would likely be of foreign intelligence value, as it could risk the incidental interception of domestic communications. This constraint on the collection of foreign intelligence creates the real risk that intelligence agencies are missing critical foreign intelligence to protect Australians and their security. The amendment is rationally connected to the objective of protecting national security, as the reforms will close this intelligence gap and improve the ability of agencies to uncover terrorist plots, malicious cyber activity and other serious threats to Australia’s national interests.

45.          The amendments only go as far as is reasonable and necessary in limiting the right to freedom of expression. The warrant can only be issued by the Attorney-General for the purpose of collecting foreign intelligence from foreign communications. Domestic communications cannot be deliberately targeted for interception. In addition, the Attorney-General must issue a mandatory written procedure for screening and destroying identified domestic communications that may have been incidentally intercepted. The procedure must be in force before the Attorney-General issues a warrant.

46.          The only exception to the destruction requirement is where the communication relates, or appears to relate, to activities that present a significant risk to a person’s life. Only in this exceptional circumstance—where a person’s life is in danger—may a domestic communication be retained. This will allow the communication to be shared with relevant authorities in order to reduce or remove the risk to the person. This may occur where the communication reveals a person has been taken hostage or an imminent terrorist attack will be carried out.

47.          This is a very limited exception. It only applies to ‘significant risk’ to a person’s life, where the likelihood of loss of life is real and imminent, or where the scale of the threat is substantial. It would not apply to a mere possibility of harm to individuals or damage to property. There must be a significant threat of loss of life, requiring the information to be acted on immediately by relevant authorities.

48.          Such safeguards in the Bill ensure that any limitations on the right to freedom of expression are carefully balanced with the objective of protecting Australia’s national security.

49.          The measure is also the least rights restrictive means of achieving the legitimate objective. Existing safeguards for the foreign communications warrant will continue to apply. The Attorney-General must be satisfied, on the advice of the Minister for Defence or the Minister for Foreign Affairs, that the collection of foreign intelligence is in the interests of Australia’s national security, Australia’s foreign relations, or Australia’s national economic wellbeing, it is necessary, and that alternate warrants would be ineffective. The foreign communications warrant remains a warrant of last resort, by only being available where there are no other means of collecting the intelligence. Consequently, the measures are the least rights restrictive means of achieving the legitimate objective.

50.          The IGIS continues to have oversight of agencies’ activities under these warrants, to ensure agencies act lawfully, with propriety and in a manner which respects human rights. Should the IGIS choose to conduct an inquiry into the actions of an intelligence agency, it has strong coercive powers, similar to those of a Royal Commission, including powers to compel the production of information and documents, enter premises occupied or used by a Commonwealth agency, issue notices to persons to appear before the IGIS to answer questions relevant to the inquiry, and to administer an oath or affirmation when taking such evidence.

51.          These measures ensure that any potential limitations on the right to freedom of expression are the least rights restrictive means of achieving the outcome of protecting national security. To the extent Schedule 1 limits the right to freedom of expression, those limitations are reasonable, necessary and proportionate.

Schedule 2 - Foreign power amendments

52.          Schedule 2 may limit the right to freedom of expression by allowing foreign intelligence warrants to be obtained on an Australian acting for, or on behalf of a foreign power, onshore. The amendments may cause an individual to be concerned that their interactions with a foreign power are being observed, and consequently limit their interactions.

53.          The amendments pursue the legitimate objective of national security by closing the current gap in the legal framework where foreign intelligence may be collected on an Australian working for a foreign power offshore, but that same intelligence cannot be collected on that Australian under a warrant inside Australia. This gap prevents intelligence agencies from collecting foreign intelligence in circumstances where Australian citizens and permanent residents are of legitimate foreign intelligence interest, such as where an Australian citizen is recruited as an agent for a foreign state. There are often no alternate warrant options for collecting foreign intelligence on these individuals. The amendment is rationally connected to the objective of protecting national security, by closing the gap that otherwise prevents intelligence agencies from collecting foreign intelligence on an Australian acting for, or on behalf of, a foreign power.

54.          The amendments only goes as far as is reasonable and necessary in limiting the right to freedom of expression. Foreign intelligence warrants may only be requested by the Director-General of Security for the purpose of obtaining foreign intelligence. The Bill does not allow intelligence agencies to collect foreign intelligence on an individual without a warrant authorised by the Attorney-General for the sole purpose of collecting foreign intelligence. The Director-General must include details in the request about the grounds on which the person is suspected to be acting for, or on behalf of, a foreign power. This ensures the Director-General provides information supporting his or her suspicion, and this information can be scrutinised by the Attorney-General before issuing the warrant, or scrutinised by the IGIS in their review of the warrant. The Attorney-General must not issue a warrant unless he or she is also satisfied the person is, or is reasonably suspected by the Director-General of Security of, acting for, or on behalf of a foreign power. This provision ensures the Attorney-General independently turns his or her mind, and makes a decision concerning, whether an Australian is acting for, or on behalf of, a foreign power. To this end, the Bill protects against the possibility of foreign intelligence warrants being sought on Australians who are not acting for, or on behalf of a foreign power.

55.          The measure is also the least rights restrictive means of achieving the legitimate objective. Existing safeguards for foreign intelligence warrants will continue to apply. The Attorney-General may only approve the warrant when satisfied, on advice from the Minister for Defence or the Minister for Foreign Affairs, that the collection of foreign intelligence is in the interests of Australia’s national security, foreign relations or economic well-being. The Attorney-General may also place conditions and restrictions on the warrant to limit the impact of the warrant on the privacy of Australians. The intelligence agencies which use foreign intelligence are subject to Privacy Rules under section 15 of the Intelligence Services Act 2001 . Those Privacy Rules limit the communication of information concerning Australian persons.

56.          The IGIS reviews the activities of intelligence agencies to ensure they act lawfully, with propriety and in a manner which respects human rights. Should the IGIS choose to conduct an inquiry into the actions of an intelligence agency, it has strong coercive powers, similar to those of a Royal Commission, including powers to compel the production of information and documents, enter premises occupied or used by a Commonwealth agency, issue notices to persons to appear before the IGIS to answer questions relevant to the inquiry, and to administer an oath or affirmation when taking such evidence.

57.          These measures ensure that any limitations on the freedom of expression are the least rights restrictive means of achieving the outcome of protecting national security. To the extent Schedule 2 limits the freedom of expression, those limitations are reasonable, necessary and proportionate.

The right to life and security of the person contained in Article 6 and 9 of the ICCPR and the right to life in Article 6 of the CRC

58.          The right to security of the person in Article 9 of the ICCPR requires states to provide reasonable and appropriate measures to protect a person’s physical security. The right to life in Article 6 of the ICCPR and Article 6 of the CRC places a positive obligation on states to protect individuals from unwarranted actions that threaten their right to life. The obligation to protect life requires the state to take preventative operational measures to protect individuals whose safety may be compromised in particular circumstances, such as by a terrorist act.

59.          The Bill promotes the right to life and security by enhancing the ability of intelligence agencies to identify and respond to foreign threats, including malicious cyber activity targeting Australian interests, terrorist communications, and foreign intelligence services operating inside Australia.

Schedule 1 - Foreign communications warrant amendments

60.          Schedule 1 promotes the right to life and security by resolving a critical operational gap for intelligence agencies. Currently, due to the nature of modern communications technologies, the geographic location of the sender or recipient of many communications cannot be determined prior to interception. As a result, intelligence agencies cannot intercept a number of foreign communications, as it could risk the incidental interception of domestic communications. This constraint on the collection of foreign intelligence creates the real risk that intelligence agencies are missing critical foreign intelligence to protect Australians and their security. The reforms will close this intelligence gap and improve the ability of agencies to uncover terrorist plots, malicious cyber activity and other serious threats to Australia’s national interests.

61.          While the amendments require any communications identified as domestic to be destroyed, there is an exception for domestic communications which relate, or appear to relate, to activities that present a significant risk to a person’s life. This may occur where the communication indicates that a person has been taken hostage or an imminent terrorist attack will be carried out. In these exceptional circumstances, the communication may be shared with relevant authorities in order to reduce or remove the risk to the person.

62.          This is a very limited exception. It only applies to ‘significant risk’ to a person’s life, where the likelihood of loss of life is real and imminent, or the scale of the threat is substantial. It would not apply to a mere possibility of harm to individuals or damage to property. There must be a significant threat of loss of life, requiring the information to be acted on immediately by relevant authorities.

63.          This safeguard explicitly promotes the right to life.

Schedule 2 - Foreign power amendments

64.          Schedule 2 promotes the right to life and security by closing the current gap in the legal framework where foreign intelligence may be collected on an Australian working for a foreign power offshore, but that same intelligence cannot be collected on that Australian under a warrant inside Australia. This gap prevents intelligence agencies from collecting foreign intelligence in circumstances where Australian citizens and permanent residents are of legitimate foreign intelligence interest, such as where an Australian citizen is recruited as an agent of a foreign state. There are often no alternate warrant options for collecting foreign intelligence on these individuals.

65.          The amendments promote the right to life by improving intelligence agencies’ ability to collect intelligence about foreign threats to Australia, and keep Australians safe.

The right of the child to have their best interests as a primary consideration by courts of law, administrative authorities or legislative bodies in Article 3 of the CRC

66.          Article 3 of the CRC requires that, in all actions concerning children, the best interests of the child shall be a primary consideration. This places a positive obligation on states to take all appropriate measures to ensure the child such protection and care as is necessary for his or her safety and wellbeing. The best interests of the child is not the sole consideration, and other legitimate considerations such as national security including the gathering of intelligence, may be considered alongside the best interests of the child.

67.          The Bill makes no distinction between children and adults in the amendments to foreign communications warrants (Schedule 1) or foreign intelligence warrants more broadly (Schedule 2). However, the amendments in the Bill are also not specifically directed at minors. There is a legitimate need to collect foreign intelligence, even if the subject of the intelligence gathering is a minor.

68.          The safeguards in the Bill will also apply to the exercise of these powers on minors. The amendments are carefully framed and considered to ensure the rights and freedoms of individuals are balanced with the objectives of protecting Australia’s national security.

Schedule 1 - Foreign communications warrant amendments

69.          Schedule 1 engages Article 3 of the CRC, as there is no limit as to the age of people whose communications may be intercepted under a foreign communications warrant. This is because the foreign communications warrant authorises the collection of communications which have foreign intelligence value, as opposed to the collection of communications from a particular person. When the foreign communications warrant was introduced into the TIA Act in 2000, the explanatory memorandum clarified:

section 11C creates a new class of “foreign communication” warrants for circumstances where telecommunications technologies operate so as to preclude the interception of particular communications by reference to a specific service or a named individual. These warrants are confined to foreign communications only and special provision is made to limit the scope of their authority since it is not possible to identify a particular service or individual.

70.          Advances in technology mean that in some cases it can be impossible to identify, at the point of interception, the person who is behind a communication, including their age. The section 11C warrant is designed for these purposes, where a targeted warrant on an individual or their service would be ineffective. In these circumstances, the section 11C warrant plays a critical role in identifying threats to Australia’s national security. Given that it is impossible to know the age of the person prior to interception, it is not possible to include particular safeguards to prevent the interception of minors’ communications.

71.          In the case that intelligence agencies discover that communications collected under section 11C relate to a child in Australia, they must comply with the internal practices in place with respect to producing intelligence on children. The IGIS has strong powers to review the activities and procedures of intelligence agencies to ensure they act lawfully, with propriety and in a manner which respects human rights.

Schedule 2 - Foreign power amendments

72.          Schedule 2 engages Article 3, as there is no age limit on any individual who may be reasonably suspected to be acting for, or on behalf of, a foreign power (and therefore subject to a foreign intelligence warrant). In the case that agencies seek to produce intelligence on an Australian child, they have internal practices in place with respect to producing intelligence on children. The IGIS has strong powers to review the activities and procedures of intelligence agencies to ensure they act lawfully, with propriety and in a manner which respects human rights.

Conclusion

73.          The Bill is compatible with human rights because it promotes the protection of human rights. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.



 

NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

1.              Clause 1 provides that the short title of the Act is the Foreign Intelligence Legislation Amendment Act 2021 .

Clause 2 - Commencement

2.              Subclause 2(1) provides the provisions of the Act commence in accordance with the table entitled ‘Commencement information.’

3.              The table provides that the whole of the Act will commence on a single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

4.              The note clarifies that the commencement information table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

5.              Subclause 2(2) provides that any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

Clause 3 - Schedules

6.              Clause 3 provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Section 11C foreign intelligence warrants

Telecommunications (Interception and Access) Act 1979

Item 1 - Before subsection 11C(1)

7.              This item inserts the heading ‘issue of warrant’ before subsection 11C(1). This is a stylistic amendment, which is intended to assist readability following the insertion of additional subsections. The new heading reflects the substance of the subsections which immediately follow in relation to the issuing of a foreign communications warrant.

Item 2 - Paragraph 11C(1)(a)

8.              This item amends paragraph 11C(1)(a) to enable the Director-General of Security to give a notice in writing requesting the Attorney-General issue a warrant authorising the interception of communications for the purpose of obtaining foreign intelligence relating to a matter specified in the notice from foreign communications intercepted under the warrant. Section 5 of the Telecommunications (Interception and Access) Act 1979 (TIA Act) defines ‘foreign communication’ to mean a communication sent or received outside Australia and ‘foreign intelligence’ to mean intelligence about the capabilities, intentions or activities of people or organisations outside Australia.

9.              This item reflects the amended authority of the warrant, to allow the interception of communications, of which the sender and recipient may have no clear geographic location, if the purpose is to obtain foreign intelligence from foreign communications. The amendment is intended to overcome the challenge intelligence agencies face in determining the geographic location of a sender or recipient of communications prior to their interception. Advances in technology - including the widespread use of internet-based communications and mobile applications - mean that it can be impossible to know, at the point of interception, if some communications are foreign or domestic. This item overcomes these technical challenges, by removing the strict prohibition on intercepting domestic communication, in recognition of the complex nature of modern communications.

Item 3 - Subparagraph 11C(1)(b)(ii)

10.          This item amends subparagraph 11C(1)(b)(ii) to require the Attorney-General, before issuing a warrant, to be satisfied, on the basis of advice from the Minister of Defence or the Minister of Foreign Affairs, that it is necessary to intercept communications for the purpose of obtaining that foreign intelligence from the foreign communications intercepted under the warrant.

Item 4 - Subsection 11C(1)

11.          This item amends subsection 11C(1) to allow the Attorney-General to authorise the interception of communications for the purpose of obtaining that foreign intelligence from foreign communications intercepted under the warrant. This amendment is intended to overcome the challenge intelligence agencies face in determining the geographic location of a sender or recipient of communications prior to their interception.

Item 5 - Subsection 11C(2)

12.          This item amends subsection 11C(2) to provide that a warrant under subsection (1) must not authorise the interception of any communications except for the purpose of obtaining foreign intelligence relating to a matter specified in the notice referred to in subsection (1) from foreign communications intercepted under the warrant. This provision reinforces that the purpose of the warrant is to obtain foreign intelligence from foreign communications. Interception is only authorised where the purpose of the interception is to obtain foreign intelligence from foreign communications. A definition of ‘domestic communication’ is introduced by subsection 11C(12), being a communication that is not a foreign communication.

13.          This item reflects the amended authority of the warrant, to allow the interception of communications, which may have no clear geographic origin or destination, if the purpose is to obtain foreign intelligence from foreign communications. The amendment is intended to overcome the challenge intelligence agencies face in determining the geographic location of the sender or recipient of many communications prior to interception.

Item 6 - Paragraph 11C(3)(a)

14.          This item repeals existing paragraph 11C(3)(a) and substitutes it with a new paragraph 11C(3)(a) that requires a request by the Director-General of Security for the issue of a foreign communications warrant to specify how the interception of communications is proposed to be conducted under the warrant, including how the risk of intercepting domestic communications will be minimised.

15.          A request is no longer required to describe the nature of the interception solely by reference to a particular part of the telecommunications system. Rather, the new paragraph allows the Director-General of Security to more accurately and completely describe the nature of the interception that is proposed to take place. This may include a description of the telecommunications system, or alternative or additional descriptions to provide the Attorney-General with information on how the interception will be conducted.

16.          A request must specify how the risk of intercepting domestic communications will be minimised. This may include details of the technical or other processes put in place to ensure interception is only targeted towards obtaining foreign intelligence from foreign communications. This will ensure that the Attorney-General is informed of the measures taken to limit incidental collection prior to making his or her decision to issue the warrant.

Item 7 - Subsection 11C(4)

17.          This item repeals subsection 11C(4) and substitutes it with new subsections (4) and (4A). 

18.          Under new subsection 11C(4), the Attorney-General must not issue a warrant unless the mandatory procedure required under subsection 11C(6) is in force. This ensures that a process and appropriate safeguards are in place for the identification and destruction of domestic communications (other than domestic communications that relate, or appear to relate, to activities that present a significant risk to a person’s life) before any interception is conducted under a new section 11C warrant.

19.          Under new subsection 11C(4A), the Director-General of Security must prepare a notice addressed to any carrier who operates any part of the telecommunications system that is covered by the warrant. The notice must give a description that is sufficient to identify that part of the telecommunications system covered by the warrant, unless the Attorney-General is satisfied that giving such notice would not be in the interests of national security or reasonable in the circumstances. This item accounts for the limited instances where the Attorney-General is satisfied it may not be reasonable to serve the notice on a carrier (for example, because it is not possible to identify the carrier in advance of interception), or, because it may not be in the interests of national security to do so. Under paragraph 15(7)(d), as amended by Item 12, the Director-General of Security is required to give any such notice to the authorised representative of the carrier as soon as practicable.

Item 8 - Before subsection 11C(5)

20.          This item inserts the heading ‘destruction of irrelevant intercepted communications’ before subsection 11C(5). This is a stylistic amendment, which is intended to assist readability following the insertion of additional subsections. The new heading reflects the substance of the subsection which immediately follows in relation to the Director-General of Security causing the destruction of irrelevant intercepted communication.

Item 9 - Subsection 11C(5)

21.          This item amends subsection 11C(5) to provide that if a communication obtained under a foreign intelligence warrant is not relevant, the Director-General of Security must cause all records of the communication to be destroyed, unless the communication relates, or appears to relate, to activities that present a significant risk to a person’s life. Where a communication relates, or appears to relate, to activities that present a significant risk to a person’s life, the Director-General of Security is not required to destroy those communications. However, the Director-General of Security must cause the Inspector-General of Intelligence and Security (IGIS) to be notified if the communication is not destroyed.

22.          This amendment provides an exception from destruction only where there is a significant risk to a person’s life. Whether a risk is significant will depend on how imminent the threat to a person’s life is and the likelihood of it coming to pass, taking into account the circumstances of the case. The term is intended to capture circumstances where there is a high likelihood that a person’s life is imminently in danger (for example, where a communication indicates a strong likelihood that a person has been taken hostage).

23.          In considering whether the risk is significant, the scale of the threat should also be taken into account. For example, where a communication indicates that a terrorist attack may be carried out on a large group of people, this would make the risk more significant.

24.          The term is intended to set a high bar, but also provide for circumstances where the public would expect intelligence agencies to take immediate action upon identifying the imminent threat to life. It is not an acceptable position to have clear information about a threat to life and be legally obliged to destroy that information, rather than pass that information on to prevent loss of life.  In these circumstances, this intelligence is shareable with relevant authorities in order to reduce the risk to the person.

Item 10 - After subsection 11C(5) (before the note)

25.          Item 9 inserts the heading ‘mandatory procedure for all intercepted communications’ and new subsections 11C(6), (7), (8), (9), (10), (11) and (12).

26.          New subsection 11C(6) requires the Attorney-General to issue, in writing, a mandatory  procedure. The procedure must cover:

·       screening communications intercepted under a warrant under section 11C for the purpose of identifying any domestic communications that may have been intercepted, and

·       destroying all records of any domestic communication so identified from that screening (other than a domestic communication that relates, or appears to relate, to activities that present a significant risk to a person’s life), and

·       notifying the IGIS of any identified domestic communication if all records are not destroyed because the communication relates, or appears to relate, to activities that present a significant risk to a person’s life.

27.          The mandatory procedure issued by the Attorney-General may also deal with any other matter relating to communications intercepted under a warrant under section 11C (subsection 11C(7)).

28.          It is intended that the term ‘procedure’ be read as including both the singular and the plural. The ability for the Attorney-General to issue one or more written procedures for how this screening is to take place is intended to allow the Attorney-General to issue procedures that are tailored to particular technical capabilities, systems, and operating environments.

29.          The concept of ‘screening communications’ in paragraph 11C(6)(a) is intended to cover a range of automated and manual processes designed and implemented for the purpose of identifying domestic communications that may have been intercepted. The concept is not intended to cover a single point in time assessment of communications. This means that the identification of domestic communications may occur through different processes and at different points at time. For example, a person may ‘screen’ a communication when analysing a communication for its foreign intelligence value, and a computer may ‘screen’ a communication by identifying a domestic communication at an earlier or later point in time. Consequently, the safeguards do not cease following a single assessment and the destruction of identified domestic communications remains an ongoing requirement at any point where such a communication is identified.

30.          Paragraph 11C(6)(b) requires that the mandatory procedures cover destroying all records of any domestic communication so identified from the screening process. The ability for the Attorney-General to issue one or more written procedures will ensure the Attorney-General is satisfied that appropriate destruction measures are in place.

31.          The exception to destroying domestic communications where there is a significant risk to a person’s life allows agencies to take actions to reduce or remove the risk to the person.

32.          Whether a risk is significant will depend on how imminent the threat to a person’s life is and the likelihood of it coming to pass, taking into account the circumstances of the case. The term is intended to capture circumstances where there is a high likelihood that a person’s life is imminently in danger (for example, where a communication indicates a strong likelihood that a person has been taken hostage).

33.          In considering whether the risk is significant, the scale of the threat should also be taken into account. For example, where a communication indicates that a terrorist attack may be carried out on a large group of people, this would make the risk more significant.

34.          The term is intended to set a high bar, but also provide for circumstances where the public would expect intelligence agencies to take immediate action upon identifying the imminent threat to life. It is not an acceptable position to have clear information about a threat to life and be legally obliged to destroy that information, rather than pass that information on to prevent loss of life. In these circumstances, this intelligence is shareable with relevant authorities in order to reduce the risk to the person.

35.          An identified domestic communication may not be retained under any other circumstance and the IGIS will be notified of any instance the exception is relied upon (new paragraph 11C(6)(c)).

36.          New subsection 11C(7) provides that the mandatory procedure issued by the Attorney-General may also deal with any other matters relating to communications intercepted under a warrant under section 11C. This will enable the Attorney-General to deal with other matters relevant to intercepted communications, for example, by specifying the individuals to whom the procedure applies.

37.          New subsection 11C(8) provides that a person must comply with the mandatory procedure to the extent that it applies to that person. This ensures there is an obligation for persons dealing with communications intercepted under a foreign communications warrant to comply with the mandatory procedure insofar as it applies to that specific person. The IGIS will be able to monitor and report on any non-compliance with the procedure, consistent with his or her existing functions and powers.

38.          New subsection 11C(9) requires the Attorney-General to consult the Minister for Defence, Minister for Foreign Affairs, IGIS and Director-General of Security before issuing or varying the mandatory procedure.

39.          It is appropriate for the Attorney-General to consult the Minister for Defence and Minister for Foreign Affairs on the procedure, as those Ministers have portfolio responsibility for foreign intelligence matters. Although ASIO is responsible for seeking foreign intelligence warrants, foreign intelligence agencies are key users of the foreign intelligence obtained under the warrants. Under 11C(1)(b), the Attorney-General may only issue a section 11C warrant on the basis of advice from the Minister for Defence or Minister for Foreign Affairs.

40.          The Attorney-General is required to consult the IGIS, as the IGIS has responsibility for oversighting compliance with the warrant, legislation and written procedures. The IGIS also maintains responsibility for ensuring that agencies act legally and with propriety, comply with ministerial guidelines and directives and respect human rights.

41.          The Attorney-General must also consult the Director-General of Security, who is responsible for requesting foreign communications warrants.

42.          New subsection 11C(10) requires the Attorney-General to review the mandatory procedure as soon as practicable after the end of the first anniversary of the procedure being issued, and every three year period after that. The subsection also expressly enables the Attorney-General to review the procedure at any other time. Regular review of the procedure is necessary to ensure the procedure remains appropriate, having regard to developments in technology, systems and operational experience.

43.          Subsection 11C(11) provides that the mandatory procedure, or any variation of the mandatory procedure is not a legislative instrument. This is an exempting provision.

44.          Subsection 11C(12) provides the definition of ‘domestic communication’ for the purposes of 11C. Domestic communication means a communication that is not a foreign communication. Section 5 of the TIA Act defines a foreign communication to mean a communication that is sent or received outside Australia.

Item 11 - Section 14 (note)

45.          This item amends the note to section 14 by inserting a reference to new paragraph 11C(6)(b). Section 14 requires the Director-General of Security to cause the destruction of records or copies of intercepted communications under a Part 2-2 warrant when the Director-General is satisfied that the record or copy is not required, and is not likely to be required in, or in connection with, the performance of ASIO’s functions. The amended note draws attention to the obligation within the mandatory procedure for destroying domestic communications identified from screening.

Item 12 - After paragraph 15(7)(b)

46.          This item inserts new paragraph 15(7)(ba) to ensure that the Director-General of Security is only required to cause a representative of a carrier to be informed of a warrant where a carrier is required to be given a notice under subsection 11C(4A).

47.          This item is consequential to the insertion of subsection 11C(4A), which requires the Director-General of Security to prepare a notice addressed to any carrier who operates any part of the telecommunications system covered by the warrant (and give a description to identify the telecommunications system), unless the Attorney-General is satisfied that giving the notice would not be in the interests of national security or reasonable in the circumstances.

Item 13 - Paragraph 15(7)(d)

48.          This item repeals existing paragraph 15(7)(d) and substitutes it with a new paragraph 15(7)(d). New paragraph 15(7)(d) requires the authorised representative to be given a notice under 11C(4A) as soon as practicable, provided the conditions in paragraphs 15(7)(a), (b) and (ba) are met. That is, an authorised representative must be given a notice where the Director-General of Security is informed of the issue of a warrant, and it is proposed to intercept communications while passing over a telecommunications system operated by a carrier, and the carrier is required to be given a notice under 11C(4A).

49.          This item is consequential to the insertion of subsection 11C(4A), which requires the Director-General to prepare a notice addressed to any carrier who operates any part of the telecommunications system covered by the warrant (and give a description to identify the telecommunications system), unless the Attorney-General is satisfied that giving the notice would not be in the interests of national security or reasonable in the circumstances.

Item 14 - Application of amendments

50.          This item provides that the amendments made by this Schedule apply in relation to applications made after the commencement of this Schedule for the issue of a warrant.



51.           

Schedule 2— Australians or permanent residents acting for, or on behalf of, a foreign power

Australian Security Intelligence Organisation Act 1979

Item 1 - At the end of subsection 27A(9)

52.          This item amends subsection 27A(9) to allow the Director-General of Security to apply for a foreign intelligence warrant under section 27A for the purpose of collecting information concerning an Australian citizen or permanent resident where the Director-General of Security reasonably suspects that the person is acting for, or on behalf of, a foreign power. This amends the prohibition against the Director-General of Security requesting a foreign intelligence warrant for the purpose of collecting information concerning an Australian citizen or permanent resident. Section 4 of the Australian Security Intelligence Organisation Act 1979 ( ASIO Act ) defines a foreign power to mean a foreign government, an entity that is directed or controlled by a foreign government or governments, or a foreign political organisation.

Item 2 - After subsection 27A(9)

53.          This item inserts new subsection 27A(9A). Paragraph 27A(9A)(a) provides that if the Director-General of Security requests the issue of a warrant for the purpose of collecting information on an Australian citizen or permanent resident, then the Director-General of Security must include details in the request about the grounds on which they suspect the person is acting for, or on behalf of, a foreign power.  This ensures the Director-General of Security provides information supporting his or her suspicion, and that this information can be scrutinised by the Attorney-General before issuing the warrant.

54.          Paragraph 27A(9A)(b) provides that the Attorney-General must not issue a warrant unless the Attorney-General is satisfied that the person is, or is reasonably suspected by the Director-General of Security of acting for, or on behalf of, a foreign power. This provision ensures the Attorney-General independently turns his or her mind to, and makes a decision concerning, whether an Australian is (or is reasonably suspected by the Director-General of) acting for, or on behalf of, a foreign power.

Telecommunications (Interception and Access) Act 1979

Item 3 - Subsection 5(1)

55.          This item inserts a definition of foreign power in subsection 5(1), which is the same definition as in the ASIO Act. Section 4 of the ASIO Act defines a foreign power to mean a foreign government, an entity that is directed or controlled by a foreign government or governments, or a foreign political organisation.

Item 4 - After subsection 11A(2) (before the note)

56.          This item inserts new subsection 11A(3). Paragraph 11A(3)(a) provides that if the Director-General of Security requests the issue of a warrant for the purpose of collecting information concerning an Australian citizen or permanent resident, then the Director-General of Security must include details in the request about the grounds on which the Director-General of Security suspects that the person is acting for, or on behalf of, a foreign power. This ensures the Director-General of Security provides information supporting his or her suspicion, and that this information can be scrutinised by the Attorney-General before issuing the warrant.

57.          Paragraph 11A(3)(b) provides that the Attorney-General must not issue a warrant unless the Attorney-General is satisfied that the person is, or is reasonably suspected by the Director-General of Security of acting for, or on behalf of, a foreign power. This provision ensures the Attorney-General independently turns his or her mind to, and makes a decision concerning, whether an Australian is (or is reasonably suspected by the Director-General of) acting for, or on behalf of, a foreign power.

Item 5 - After subsection 11B(3) (before the note)

58.          This item inserts new subsection 11B(4). Paragraph 11B(4)(a) provides that if the Director-General of Security requests the issue of a warrant for the purpose of collecting information concerning an Australian citizen or permanent resident, then the Director-General of Security must include details in the request about the grounds on which the Director-General of Security suspects that the person is acting for, or on behalf of, a foreign power. This ensures the Director-General of Security provides information supporting his or her suspicion, and that this information can be scrutinised by the Attorney-General before issuing the warrant.

59.          Paragraph 11B(4)(b) provides that the Attorney-General must not issue a warrant unless the Attorney-General is satisfied that the person is, or is reasonably suspected by the Director-General of Security of acting for, or on behalf of, a foreign power. This provision ensures the Attorney-General independently turns his or her mind to, and makes a decision concerning, whether an Australian is (or is reasonably suspected by the Director-General of) acting for, or on behalf of, a foreign power.

Item 6 - After subsection 11C(3)

60.          This item inserts new subsection 11C(3A). Paragraph 11C(3A)(a) provides that if the Director-General of Security requests the issue of a warrant for the purpose of collecting information concerning an Australian citizen or permanent resident, then the Director-General of Security must include details in the request about the grounds on which the Director-General of Security suspects that the person is acting for, or on behalf of, a foreign power. This ensures the Director-General of Security provides information supporting his or her suspicion, and that this information can be scrutinised by the Attorney-General before issuing the warrant.

61.          Paragraph 11C(3A)(b) provides that the Attorney-General must not issue a warrant unless the Attorney-General is satisfied that the person is, or is reasonably suspected by the Director-General of Security of acting for, or on behalf of, a foreign power. This provision ensures the Attorney-General independently turns his or her mind to, and makes a decision concerning, whether an Australian is (or is reasonably suspected by the Director-General of) acting for, or on behalf of, a foreign power.

Item 7 - At the end of subsection 11D(5)

62.          This item amends subsection 11D(5) to allow the Director-General of Security to request the issue of a foreign intelligence warrant for the purpose of collecting information on an Australian citizen or permanent resident under section 11A, 11B or 11C, if the Director-General reasonably suspects that the person is acting for, or on behalf of, a foreign power. This amends the prohibition against the Director-General of Security requesting a foreign intelligence warrant for the purpose of collecting information concerning an Australian citizen or permanent resident. A foreign power is defined as a foreign government, an entity that is directed or controlled by a foreign government or governments, or a foreign political organisation in section 4 of the ASIO Act.

Item 8 - paragraphs 63AB(2)(e) and 63AC(2)(e)

63.          This item amends paragraphs 63AB(2)(e) and 63AC(2)(e) to remove the reference to “(within the meaning of the Australian Security Intelligence Organisation Act 1979)” in relation to foreign power. Item 3 has defined foreign power in the TIA Act, resulting in the reference to the ASIO Act no longer being required.

Item 9 - Application of amendments

64.          This item provides that amendments made by this Schedule apply in relation to applications made after the commencement of this Schedule for the issue of a warrant.

Schedule 3— Other amendments

Telecommunications (Interception and Access) Act 1979

Item 1 - Section 65 (heading)

65.          This item amends the heading for section 65 by omitting the word ‘Communicating’ and substituting the words ‘Dealing in’. This is a stylistic amendment, which is intended to assist readability following the amendments to section 65(2). The new heading reflects the substance of the subsections which immediately follow in relation to the communication, use and recording of foreign intelligence information.

Item 2 - Subsection 65(2)

66.          This item amends subsection 65(2) to put beyond doubt that a person to whom foreign intelligence information has been communicated in accordance with subsection 65(1), or in accordance with an approval given under this subsection, may use that information for such purposes as are approved in writing by the Attorney-General, and make a record of that information. The ability for the Attorney-General to determine the purposes for which such information may be used includes the ability to limit the purposes for which such information may be used.

67.          A person to whom foreign intelligence information has been communicated will continue to be able to communicate that information to such persons and in such manner as approved in writing by the Attorney-General.

Item 3 - Subsection 65(6)

68.          This item inserts new subsection 65(6A), which provides that an approval under subsection 65(2), as amended, is not a legislative instrument. This amendment is required for certainty.

Item 4 - Section 137 (heading)

69.          This item amends the heading for section 137 by omitting the word ‘Communicating’ and substituting the words ‘Dealing in’. This is a stylistic amendment, which is intended to assist readability following the amendments to section 137(3). The new heading reflects the substance of the subsections which immediately follow in relation to the communication, use and recording of foreign intelligence information.

Item 5 - Subsection 137(3)

70.          This item amends subsection 137(3) to put beyond doubt that a person to whom foreign intelligence information has been communicated in accordance with subsection 137(1), or in accordance with an approval given under this subsection, may use that information for such purposes as are approved in writing by the Attorney-General, and make a record of that information.

71.          A person to whom foreign intelligence information has been communicated will continue to be able to communicate that information to such persons and in such manner as approved in writing by the Attorney-General.

Item 6 - At the end of section 137

72.          This item inserts new subsection 137(4), which provides that an approval under subsection 137(3), as amended, is not a legislative instrument. This amendment is required for certainty.

Item 7 - Application of amendments and savings

73.          This item provides that the amendments made by this Schedule apply in relation to the communication, use or making of records of foreign intelligence information that occurs after the commencement of this Schedule, whether the foreign intelligence information was obtained from interceptions made before or after that commencement

74.          Despite the amendments made to subsections 65(2) and 137(3), approvals given under those subsections that are in force immediately before the commencement of this Schedule continue in force after that commencement as if they were made under the relevant subsection (as amended by this Schedule).