2022-2023

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

National security legislation Amendment (comprehensive review and other measures no. 2) Bill 2023

 

 

ADDENDUM TO THE EXPLANATORY MEMORANDUM

 

 

(Circulated by authority of the

Attorney-General, the Hon Mark Dreyfus KC MP)

                                                                                                        

 

 

 

 

National security legislation amendment (comprehensive review and other measures no. 2) Bill 2023

 

The purpose of this addendum is to provide additional clarifying material to the Explanatory Memorandum to the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023.

 

This addendum responds to recommendations made in the Advisory Report on the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023 , prepared by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) and released on 12 May 2023, and the request of the Senate Standing Committee for the Scrutiny of Bills in Scrutiny Digest No. 7 released on 21 June 2023.

SCHEDULE 1 - Amendments

Part 2 - Defences for certain national infrastructure related offences

Criminal Code Act 1995 (Criminal Code)

Item 5:    Section 473.1 of the Criminal Code

1.         At the end of the first sentence in paragraph 27 on page 16 of the Explanatory Memorandum, substitute “and secondees” with “, secondees and human sources”.

 

2.         The amendment clarifies that the term ‘ASIO affiliate’, as defined by reference to the Australian Security Intelligence Organisation Act 1979 for the purposes of the proposed new definition of ‘ASIO Officer’ in section 473.1 of the Criminal Code, could include consultants, contractors, secondees and human sources.

 

Item 7:    Subsection 476.1(1) of the Criminal Code

3.         At the end of the first sentence in paragraph 37 on page 18 of the Explanatory Memorandum, substitute “ and secondees” with “, secondees and human sources”.

 

4.         The amendment clarifies that the term ‘ASIO affiliate’, as defined by reference to the Australian Security Intelligence Organisation Act 1979 for the purposes of the proposed new definition of ‘ASIO Officer’ in section 476.1 of the Criminal Code, could include consultants, contractors, secondees and human sources.

Part 4 - Spent convictions

Crimes Act 1914 (Crimes Act)

Item 14:  At the end of Subdivision B of Division 6 of Part VIIC

5.         After paragraph 65 on page 21 of the Explanatory Memorandum insert new paragraphs:

65A.    ASIO will only be able to use, record and disclose spent conviction information when it is done for the purposes of the performance of the functions or the exercise of the powers of ASIO. This ensures that the protections of the spent convictions scheme cannot be circumscribed to allow the sharing of spent conviction information with other agencies generally. This exclusion is in accordance with advice from the Information Commissioner that ASIO’s exclusion should be granted with no restrictions or safeguards beyond the wording of the Bill.

 

65B.    The exclusion provided by the amendment in the proposed section 85ZZJA extends only to the use of information by ASIO. Spent conviction information obtained by other agencies from ASIO in the course of the performance of the functions or the exercise of the powers of ASIO would remain subject to the protection of the spent conviction scheme as those agencies are not excluded.

65C.    ASIO’s use of spent conviction information must also be conducted in line with the Guidelines issued by the Minister for Home Affairs (the Minister’s Guidelines). The Minister’s Guidelines provide safeguards and accountability for all of ASIO’s activities, including the use of personal information. The Minister’s Guidelines contain principles of proportionality governing the way ASIO obtains information, including that inquiries and investigations should be undertaken using as little intrusion in the privacy of affected individuals as is reasonably required, and that where possible, the least intrusive techniques for collecting information should be used before more intrusive techniques. The Minister’s Guidelines also require the Director General of Security to take all reasonable steps to ensure that ASIO’s collection, retention, use, handling and disclosure of personal information is limited to what is reasonably necessary to perform its functions.

65D.    The actions of ASIO and the National Intelligence Community are subject to the oversight of the Inspector-General of Intelligence and Security (IGIS). A person who believes that their spent conviction information has been improperly obtained or used may make a complaint to the IGIS.

6.         These amendments clarify the safeguards that exist for individuals who will be affected by proposed section 85ZZJA of the Crimes Act, whether these safeguards are contained in law or policy, and to whom ASIO officers may disclose information about an individual’s spent conviction.