2022-2023

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

National security legislation AMENDMENT (COMPREHENSIVE REVIEW and other measures NO 2.) bill 2023

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, the Hon Mark Dreyfus KC MP)

 

                                                                                                        

 

 

 

 

 

 

ABBREVIATIONS USED IN THE EXPLANATORY MEMORANDUM

AAT	Administrative Appeals Tribunal
AAT Act	Administrative Appeals Tribunal Act 1975
Acts Interpretation Act	Acts Interpretation Act 1901
AGO	Australian Geospatial-Intelligence Organisation
AML/CTF Act	Anti-Money Laundering and Counter-Terrorism Financing Act 2006
Archives Act	Archives Act 1983
ASD	Australian Signals Directorate
ASIO	Australian Security Intelligence Organisation
ASIO Act	Australian Security Intelligence Organisation Act 1979
ASIS	Australian Secret Intelligence Service
AUSTRAC	Australian Transaction Reports and Analysis Centre
Comprehensive Review	Comprehensive Review of the Legal Framework of the National Intelligence Community
CRC	Convention on the Rights of the Child
Crimes Act	Crimes Act 1914
Criminal Code	Criminal Code Act 1995
DIO	Defence Intelligence Organisation
FOI Act	Freedom of Information Act 1982
FTR Act	Financial Transactions Reports Act 1988
IC	Information Commissioner
ICCPR	International Covenant on Civil and Political Rights
IGIS	Inspector-General of Intelligence and Security
IGIS Act	Inspector-General of Intelligence and Security Act 1986
IS Act	Intelligence Services Act 2001
Law Officers Act	Law Officers Act 1964
Navigation Act	Navigation Act 2012
NIC	National Intelligence Community
Ombudsman	Commonwealth Ombudsman
Ombudsman Act	Ombudsman Act 1976
ONI	Office of National Intelligence
PID	Public interest disclosure
PID Act	Public Interest Disclosure Act 2013
PJCIS	Parliamentary Joint Committee on Intelligence and Security
TIA Act	Telecommunications (Interception and Access) Act 1979

 

National security legislation AMENDMENT (COMPREHENSIVE REVIEW and other measures NO 2.) bill 2023

General Outline

1.       This Bill would enhance the legislative framework of the National Intelligence Community (NIC) by implementing some of the recommendations (recommendations 18, 19, 66, 136, 145, 167, 186, 188, 191 and 192) of the Comprehensive Review of the Legal Framework of the National Intelligence Community (Comprehensive Review) within the Attorney-General’s portfolio. It would make amendments to related Commonwealth legislation to support this implementation.

 

2.       The Bill would also amend the Intelligence Services Act 2001 (IS Act) to provide certainty regarding the level of detail required to describe the directed activities (which can be of a specific or general nature, or by way of a class or classes) in a Ministerial direction under paragraph 6(1)(e).

 

3.       The Bill would also amend the membership of the Parliamentary Joint Committee on Intelligence and Security (PJCIS).

4.       Schedule 1 of the Bill would:  

·          Part 1 of Schedule 1 :

                                                              i.       amend the Law Officers Act 1964 (Law Officers Act) to remove the ability of the Attorney-General to delegate his or her powers under the Australian Security Intelligence Organisation Act 1979 (ASIO Act) (with the exception of financial assistance powers) to Commonwealth officials (recommendation 18 of the Comprehensive Review).

                                                            ii.       amend the Acts Interpretation Act 1901 , the ASIO Act, and the Telecommunications (Interception and Access) Act 1979 to remove the ability for the Executive to confer the powers vested in the Attorney-General with respect to the Australian Security Intelligence Organisation (ASIO) onto another minister, except through legislative amendment, unless the Prime Minister is satisfied that exceptional circumstances exist (recommendation 19 of the Comprehensive Review).

·          Part 2 of Schedule 1

                                                              i.       insert a new defence in the Criminal Code Act 1995 (Criminal Code) under section 474.6 for ASIO so that it applies to all offences in section 474.6 (relating to interference with facilities) and provide a defence for ASIO for the offences in section 477.2 (unauthorised modification of data to cause impairment) and section 477.3 (unauthorised impairment of electronic communication) (recommendation 66 of the Comprehensive Review).

 

·          Part 3 of Schedule 1

                                                              i.       amend the IS Act to provide that the PJCIS is to consist of 13 members, comprised of at least two Government senators, two Government members of the House of Representatives, two non-Government senators, and two non-Government members of the House of Representatives. A consequential amendment would also be made to clause 18 of Schedule 1 to raise the number constituting a quorum from 6 to 7 members.

·          Part 4 of Schedule 1

                                                              i.       expand the exclusions in the spent convictions scheme under the Crimes Act 1914 (Part VIIC) to enable ASIO to use, record and disclose spent convictions information (recommendation 136 of the Comprehensive Review).

·          Part 5 of Schedule 1

                                                              i.       amend the Inspector-General of Intelligence and Security Act 1986 to require the Inspector-General of Intelligence and Security (IGIS) to report annually on public interest disclosures received by, and complaints made to, the IGIS (recommendation 145 of the Comprehensive Review).

·          Part 6 of Schedule 1

                                                              i.       amend the Ombudsman Act 1976 to exclude the Australian Secret Intelligence Service, Australian Geospatial-Intelligence Organisation (AGO), Australian Signals Directorate, Office of National Intelligence and Defence Intelligence Organisation from the Commonwealth Ombudsman’s jurisdiction (recommendation 167 of the Comprehensive Review).

·          Part 7 of Schedule 1

                                                              i.       amend the Freedom of Information Act 1982 (FOI Act) to remove the AGO’s exemptions under the FOI Act in relation to documents that have originated with, or been received from, the Australian Hydrographic Office in the performance of its functions under subsection 223(2) of the Navigation Act 2012 (recommendation 186).

                                                            ii.       align the protections afforded to the Australian Transaction Reports and Analysis Centre’s Suspicious Matter Reports and Suspicious Transaction Reports under the FOI Act (recommendation 188 of the Comprehensive Review).

·          Part 8 of Schedule 1

                                                              i.       amend the Administrative Appeals Tribunal Act 1975 and the Archives Act 1983 (Archives Act) to require all proceedings in relation to security records under the Archives Act be heard in the Security Division of the Administrative Appeals Tribunal (recommendation 191 of the Comprehensive Review).

                                                            ii.       amend the FOI Act and Archives Act to require the IGIS to only be obliged to provide evidence in proceedings under those Acts where the material in the proceedings relates to one or more of the agencies the IGIS oversees (recommendation 192 of the Comprehensive Review).

 

·          Part 9 of Schedule 1

                                                              i.        amend the IS Act to provide certainty regarding the level of detail required to describe the directed activities (which can be of a specific or general nature, or by way of a class or classes) in a Ministerial direction under paragraph 6(1)(e).

FINANCIAL IMPACT

The Bill has nil financial impacts.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023

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.       This Bill would implement some of the recommendations (recommendations 18, 19, 66, 136, 145, 167, 186, 188, 191 and 192) of the Comprehensive Review of the Legal Framework of the National Intelligence Community (Comprehensive Review) within the Attorney-General’s portfolio of responsibilities. The measures in this Bill improve the legislative framework of the National Intelligence Community (NIC) by clarifying the Attorney-General’s role in respect of the Australian Security Intelligence Organisation (ASIO), providing greater operational clarity for ASIO, enhancing NIC oversight mechanisms, ensuring proceedings that relate to security records are heard in the Security Division of the Administrative Appeals Tribunal (AAT), and clarifying the role of the Inspector-General of Intelligence and Security (IGIS) and AGO in respect of the Archives Act 1983 (Archives Act) and the Freedom of Information Act 1982 (FOI Act).

3.       The Bill would amend the Intelligence Services Act 2001 (IS Act) to provide certainty regarding the level of detail required to describe the directed activities (which can be of a specific or general nature, or by way of a class or classes) in a Ministerial direction under paragraph 6(1)(e).

4.       The Bill would also amend the membership of the Parliamentary Joint Committee on Intelligence and Security (PJCIS).

5.       This Bill would amend the:

·          Acts Interpretation Act 1901

·          Administrative Appeals Tribunal Act 1975 (AAT Act)

·          Archives Act 1983 (Archives Act)

·          Australian Security Intelligence Organisation Act 1979 (ASIO Act)

·          Crimes Act 1914 (Crimes Act)

·          Criminal Code Act 1995 (Criminal Code)

·          Freedom of Information Act 1982 (FOI Act)

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

·          Intelligence Services Act 2001 (IS Act)

·          Law Officers Act 1964 (Law Officers Act)

·          Ombudsman Act 1976 (Ombudsman Act)

·          Public Interest Disclosure Act 2013 (PID Act)

·          Telecommunications (Interception and Access) Act 1979 (TIA Act)

 

6.       Schedule 1, Part 1 of the Bill would remove the ability of the Attorney-General to delegate their powers under the ASIO Act and TIA Act and prohibits the conferral of the Attorney-General’s powers under the ASIO Act and TIA Act upon another minister, except by legislative amendment or a substituted reference order made by the Governor-General in exceptional circumstances. This Part would implement recommendations 18 and 19 of the Comprehensive Review.

7.       Schedule 1, Part 2 of the Bill would add a defence in Criminal Code sections 474.6, 477.2 and 477.3 to the offences in subsections 474.6(1) and (3), 477.2(1), and 477.3(1) respectively where ASIO employees or affiliates are acting in good faith in the course of their duties and the conduct is reasonable in the circumstances for performing that duty. This Part would implement recommendation 66 of the Comprehensive Review.

8.       Schedule 1, Part 3 would amend the IS Act to increase the membership (from 11 to 13 members) and clarify the composition of the Parliamentary Joint Committee on Intelligence and Security (PJCIS).

9.       Schedule 1, Part 4 would provide an exclusion for ASIO to Division 3 of Part VIIC of the Crimes Act to enable ASIO to use, record or disclose spent conviction information in the course of its functions. This Part would implement recommendation 136 of the Comprehensive Review.

10.   Schedule 1, Part 5 would impose a requirement on the IGIS to include in its annual report the number of, and details of, the complaints received under Division 2 of Part II of the IGIS Act. It would also impose a requirement on the IGIS to include in its annual report the number, and details, of disclosures of information received by the IGIS under section 43 of the PID Act. This Part would implement recommendation 145 of the Comprehensive Review.

11.   Schedule 1, Part 6 would exclude the Australian Secret Intelligence Service (ASIS), Australian Geospatial-Intelligence Organisation (AGO), Australian Signals Directorate (ASD), Defence Intelligence Organisation (DIO), Office of National Intelligence (ONI) and ASIO from the jurisdiction of the Commonwealth Ombudsman as they are already overseen entirely by the IGIS. This Part would implement recommendation 167 of the Comprehensive Review.

12.   Schedule 1, Part 7 would amend the FOI Act to remove the AGO’s exemption under the FOI Act for documents that have originated with, or been received from, the Australian Hydrographic Office in the performance of its functions under subsection 223(2) of the Navigation Act 2012 . It would also align the protections afforded to the Australian Transaction Reports and Analysis Centre’s (AUSTRAC) Suspicious Matter Reports and Suspicious Transaction Reports under the FOI Act. This Part would implement recommendations 186 and 188 of the Comprehensive Review.

13.   Schedule 1, Part 8 would amend the AAT Act to require all proceedings in relation to security records under the Archives Act brought before the AAT be heard in the Security Division of the AAT. It would also amend the FOI Act and Archives Act to require the IGIS to only be obliged to provide evidence in proceedings under those Acts where the material in the proceedings relates to one or more of the agencies the IGIS oversees and is an exempt record. This Part would implement recommendations 191 and 192 of the Comprehensive Review.

 

14.   Schedule 1, Part 9 would amend the IS Act to provide certainty regarding the level of detail required to describe the directed activities (which can be of a specific or general nature, or by way of a class or classes) in a Ministerial direction under paragraph 6(1)(e).

Human rights implications

15.   The Bill’s amendments would engage the following human rights contained in the International Covenant on Civil and Political Rights (ICCPR):

·          the right to life in article 6;

·          the right to security of the person in article 9;

·          the right to a fair and public hearing in article 14; and

·          the prohibition on interference with privacy under article 17.

16.   The Bill’s amendments would also engage the following human rights contained in the Convention on the Rights of the Child (CRC):

·          the right to life in article 6;

·          the right to privacy in article 16; and

·          the right to freedom from arbitrary deprivation of liberty in article 37.

Right to life and the right to liberty and security of the person in Articles 6 and 9 of the ICCPR; Right to life and right to freedom from arbitrary deprivation of liberty in Articles 6 and 37 of the CRC

17.   Some of the Bill’s measures promote the right to life under Article 6 and the right to security of the person under Article 9 of the ICCPR. Article 6 provides:

·          Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

18.   Article 9 provides:

·          Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.

19.   Some of the Bill’s measures would also promote the right to life under Article 6 and the right to freedom from arbitrary deprivation of liberty in Article 37 of the CRC. Article 6 provides:

·          States Parties recognize that every child has the inherent right to life.

·          States Parties shall ensure to the maximum extent possible the survival and development of the child.

20.   Article 37 provides:

·          States Parties shall ensure that:

a.       No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.

b.       No child shall be deprived of his or her liberty unlawfully or arbitrarily.

21.   The right to life in Article 6 of the ICCPR places a positive obligation on states to protect individuals from unwarranted actions by private persons that threaten their right to life. Article 6 of the CRC places the same obligation on states with respect to the child. 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. Article 9 of the ICCPR also places a positive obligation on states to protect individuals from unlawful or arbitrary deprivation of their liberty. Article 37 of the CRC places the same positive obligation on states with respect to the child.

22.   These ICCPR and CRC rights are promoted across the Bill. Part 2 creates a defence for ASIO officers under the Criminal Code to enable ASIO to perform its functions, including to protect Australia and Australians from threats to their security. Part 4 allows ASIO to receive, disclose and use spent conviction information, which will better enable it to perform its functions and exercise its powers, including cooperating with law enforcement. Part 8 ensures that sensitive security information which could compromise Australia’s national security and the health and safety of Australians can only be brought before the AAT Security Division.

Prohibition on Interference with Privacy

23.   Some of the Bill’s measures engage the prohibition on interference with privacy in article 17 of the ICCPR, which provides:

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

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

24.   Some of the Bill’s measures also engage with the right to privacy under Article 16 of the CRC, which provides:

·          No 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 reputation.

25.   Although the United Nations Human Rights Committee has not defined privacy, it should be understood to comprise freedom from unwarranted and unreasonable intrusions into activities that society recognises are falling within the sphere of individual autonomy.

26.   The right to privacy may be limited in pursuit of a legitimate objective, and where the limitation is rationally connected to a legitimate objective and is not arbitrary. Any limitation should be proportionate to the objectives of the limitation.

27.   Part 4 of the Bill would enable ASIO to receive, disclose and use information relating to the spent conviction of an individual under Division 3 of Part VIIC of the Crimes Act if done for the purposes or performance of ASIO’s functions or the exercises of its powers.

Rational connection to a legitimate objective

28.   A legitimate objective of this Bill is to improve the legislative framework governing NIC agencies to protect the lives and security of Australians, mitigate imminent and significant risks to their safety and address national security risks to Australia.

29.   Specifically, the measures in Part 4 allowing ASIO to receive, disclose and use spent conviction information are rationally connected to this objective by allowing ASIO access to information necessary to perform its functions under the ASIO Act, and protect Australia and Australians from threats to their security. This exclusion from the spent convictions scheme is consistent with the exclusions available for other agencies who also require this information to conduct their functions.

Proportionate to the objectives of the limitation

30.   The measures in Part 4 are proportionate to achieving the legitimate objective outlined above.

31.   The measures allowing ASIO to access spent conviction information are proportionate to the objective of protecting the lives and security of Australians and mitigating national security risks. ASIO is only able to access, disclose or use spent conviction information for the purposes or performance of its functions or the exercises of its powers. ASIO’s interest in protecting Australia, its people and its interests from threats to security should outweigh the privacy of an individual’s spent conviction information in these circumstances.

32.   On balance, the right to privacy is permissibly limited by the measures in the Bill.

Right to a Fair and Public Hearing

33.   Some of the Bill’s measures engage the right to a fair and public hearing in article 14 of the ICCPR, which provides:

(1)    All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (order public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

34.   In particular, this right includes that all persons have a right to a fair and public hearing before a competent, independent and impartial tribunal established by law.

35.   The right to a fair and public hearing may be limited in pursuit of a legitimate objective, and where the limitation is rationally connected to a legitimate objective and not arbitrary. Any limitation should be proportionate to the objectives of the limitation.

36.   Part 8 of the Bill would require all proceedings in relation to security records under the Archives Act brought before the AAT be heard in the Security Division of the AAT. The Security Division must be constituted by at least one presidential member. Requiring all proceedings in relation to security records under the Archives Act to be heard in the Security Division will also have practical benefits in utilising tribunal members and staff that have experience with national security proceedings, as well as more efficient processes and procedures. 

Rational connection to a legitimate objective

37.   A legitimate objective of this Bill is to protect the lives and security of Australians, to mitigate imminent and significant risks to their safety and address national security risks to Australia.

38.   Specifically, items 25 and 26 in Part 8 require that all matters brought to the AAT under the Archives Act that are claimed to be exempt records because they contain information or matter that is exempt under section 33(1)(a) or (b) of the Archives Act must be heard only in the Security Division of the AAT. Sections 33(1)(a) and (b) concern:

·          Information or a matter the disclosure of which under the Archives Act could reasonably be expected to cause damage to the security, defence or international relations of the commonwealth; or

·          Information or a matter that was communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation to a Commonwealth entity, which the foreign entity advises the Commonwealth entity is still confidential and the confidentiality of which it would be reasonable to maintain.

39.   Currently, the Security Division is expressly empowered to review decisions in respect of access records of ASIO under the Archives Act.

40.   This measure is rationally connected to the legitimate objective above as it ensures that security records, which could endanger lives if published, are subject to appropriate protections. Requiring reviews of decisions of the Archives to be heard in the Security Division where a record is claimed to be an exempt record because it contains information or matter of a kind referred to in paragraph 33(1)(a) or (b) of the Archives Act will ensure that highly sensitive information is considered by at least one presidential member, is not automatically publicly released and is subject to tailored processes and procedures within the Tribunal.

Proportionate to the objectives of the limitation

41.   The measure in Part 8 is proportionate to achieving the legitimate objective outlined above.

42.   Requiring proceedings relating to security records under paragraph 33(1)(a) or (b) to be heard before the Security Division is proportionate to the objective of protecting the lives and security of Australians and mitigating national security risks. The Bill limits the categories of exceptions under section 33 to only the highest risk categories of information (paragraph 33(1)(a) or (b)). The usual procedures of the AAT will also continue to apply to such proceedings, except for how the Tribunal is constituted and the entitlement to apply for a statement of reasons. This is necessary to protect security records which could endanger lives if published.

43.   On balance, the right to a fair and public hearing is permissibly limited by this Bill.

Conclusion

44.   This Bill is compatible with human rights because it aids in protecting the lives and security of Australians by mitigating imminent and significant risks to their safety and addresses national security risks to Australia. To the extent that human rights are limited, these limitations are proportionate and rationally connected to achieving legitimate objectives and ensure adequate limits are in place to protect against improper interference with individuals’ human rights.

 

NOTES ON CLAUSES

Preliminary

Clause 1 - Short Title

1.                   This clause provides for the short title of the Act to be the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Act 2023.

Clause 2 - Commencement

2.                   This clause would provide for the commencement of each provision in the Bill, as set out in the table. Subclause 2(2) provides that information in column 3 of the table is not part of the Bill.

3.                   Item 1 of the table provides that the whole Act commences the day after the Bill receives the Royal Assent.

4.                   The table also provides a note that the table relates only to the provisions of the Bill as originally enacted. It will not be amended to deal with any later amendments of the Bill. This provides clarity for the reader. 

Clause 3 - Schedules

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

 

 

SCHEDULE 1: Amendments

Part 1: Powers and functions of the Attorney-General

Acts Interpretation Act 1901 (Acts Interpretation Act)

Item 1:          Subsection 19B(2) (note)

6.                   Subsection 19B(2) of the Acts Interpretation Act provides for the making of substituted reference orders in the event of machinery of government changes. Substituted reference orders may be made to, for example, substitute any reference in an Act to a minister with a reference to another minister.

7.                   This item would repeal and substitute the note at the end of subsection 19B(2) of the Acts Interpretation Act. New Note 1 would direct the reader to section 5B of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) and section 6V of the Telecommunications (Interception and Access) Act 1979 (TIA Act) for when the Governor-General may make a substituted reference order that relates to certain provisions of those acts. This note is intended to clarify the interaction between the Acts Interpretation Act and these Acts.

8.                   This item would also include as Note 2 the note currently at the end of subsection 19B(2) of the Acts Interpretation Act which clarifies that a substituted reference order may be amended or revoked in the same way as it is made.

9.                   This amendment is consequential to the insertion of new sections 5B and 6V into the ASIO Act and TIA Act respectively, by items 2 and 4.

Australian Security Intelligence Organisation Act 1979

Item 2:          At the end of Part I

10.               Subsection 19B(2) of the Acts Interpretation Act provides for the making of substituted reference orders in the event of machinery of government changes. Substituted reference orders may be made to, for example, substitute any reference in an Act to a minister with a reference to another minister.

11.               This item would insert new section 5B into the ASIO Act to provide that, unless the Prime Minister is satisfied that exceptional circumstances exist, the Governor-General must not make a substituted reference order under subsection 19B(2) of the Acts Interpretation Act to substitute a reference to the Attorney-General in the ASIO Act (other than section 34JE), with a reference to another minister.

12.               The Attorney-General has a unique role as the first law officer with respect to the Australian Security Intelligence Organisation (ASIO) in authorising the use of covert or intrusive powers. Ever since legislation has provided for powers for ASIO, the Attorney-General has been responsible for issuing warrants to ASIO. The Attorney-General is also responsible for authorising special intelligence operations and appointing prescribed authorities under the ASIO Act. This amendment will ensure the Attorney-General’s powers in respect of ASIO cannot be conferred on another minister through an action of the executive government, except in exceptional circumstances, such as where there is no Attorney-General. The Prime Minister is the appropriate minister to determine whether exceptional circumstances exist given that the Prime Minister is responsible for the allocation of ministerial responsibilities and the unique role of the Attorney-General in executive government.

13.               It is appropriate that the Attorney-General’s powers and functions under section 34JE of the ASIO Act would not be subject to the requirement for the Prime Minister to be satisfied that exceptional circumstances exist before a substituted reference order can be made in relation to that section. Section 34JE relates to the provision of financial assistance to a subject, in respect of the subject’s appearance before a prescribed authority for questioning under warrant, rather than ASIO’s use of powers.

14.               This amendment implements recommendation 19 of the Comprehensive Review of the Legal Framework of the National Intelligence Community (Comprehensive Review).

Law Officers Act 1964 (Law Officers Act)

Item 3:          Subsection 17(6)

15.               Section 17 of the Law Officers Act outlines the Attorney-General’s ability to delegate to certain persons his or her powers under all or any of the laws of the Commonwealth or of a Territory.

16.               Subsection 17(6) currently provides that the Attorney-General cannot delegate powers and functions of the Attorney-General under the TIA Act. This item would amend subsection 17(6) to similarly prohibit the Attorney-General from delegating powers or functions under the ASIO Act (other than under subsections 34JE(3) and (4)).

17.               This reflects the Attorney-General’s unique role as the first law officer with respect to ASIO, and will ensure appropriate ministerial responsibility and accountability is maintained with respect to the powers contained in the ASIO Act.

18.               It is appropriate that the Attorney-General continue to have the ability to delegate powers and functions under subsections 34JE(3) and (4) of the ASIO Act as these subsections relate to the provision of financial assistance to a subject, in respect of the subject’s appearance before a prescribed authority for questioning under warrant, rather than ASIO’s use of powers. The class of delegates under subsections 34JE(3) and (4) are confined to holders of nominated offices.

19.               This amendment implements recommendation 18 of the Comprehensive Review.

Telecommunications (Interception and Access) Act 1979

Item 4:          At the end of Part 1-2

20.               Subsection 19B(2) of the Acts Interpretation Act provides for the making of substituted reference orders in the event of machinery of government changes. Substituted reference orders may be made to, for example, substitute any reference in an Act to a minister with a reference to another minister.

21.               This item would insert new section 6V into the TIA Act to provide that unless the Prime Minister is satisfied that exceptional circumstances exist, the Governor-General must not make a substituted reference order under subsection 19B(2) of the Acts Interpretation Act to substitute a reference to the Attorney-General in the TIA Act, with a reference to another minister.

22.               The Attorney-General has a unique role as the first law officer with respect to authorising ASIO's use of covert or intrusive powers under the TIA Act, as well as with respect to the appointment of eligible judges, nominated Administrative Appeals Tribunal (AAT) members, and issuing authorities who may issue warrants to other agencies (as defined) under the TIA Act.

23.               This amendment will ensure the Attorney-General’s powers under the TIA Act cannot be conferred on another minister through an action of the executive government, except in exceptional circumstances, such as where there is no Attorney-General.

24.               This amendment implements recommendation 19 of the Comprehensive Review.

Part 2: Defences for certain national infrastructure related offences

Criminal Code Act 1995 (Criminal Code)

Item 5:          Section 473.1 of the Criminal Code

25.               This item would insert the following new definition in section 473.1 of the Criminal Code:

·          ‘ ASIO officer ’ means:

(a)    the Director-General of Security; or

(b)    an ‘ ASIO employee ’ (within the meaning as in the Australian Security Intelligence Organisation Act 1979 ); or

(c)    an ‘ ASIO affiliate ’ (within the meaning of that Act).

26.               This amendment is necessary to define terms referred to in the defence for ASIO officers in new subsection 474.6(4A) of the Criminal Code (set out at item 6) applicable to offences in subsection 474.6(1) and subsection 474.6(3) respectively.

27.               The definition of ‘ASIO officer’ is intended to capture the Director-General of Security who is the head of ASIO appointed under section 7 of the ASIO Act, persons employed under section 84 and section 90 in the ASIO Act (ASIO employees), and also persons performing functions or services for ASIO, in accordance with a contract, agreement or other arrangement, including consultants, contractors and secondees (ASIO affiliates). The term ‘ASIO officer’ is used to simplify the language of the Criminal Code and to make clear that the defences apply to these categories of persons.

Item 6:          After subsection 474.6(4) of the Criminal Code

28.               This item would insert new subsection 474.6(4A) after subsection 474.6(4).

29.               New subsection 474.6(4A) would create a defence for ASIO officers for offences against subsections 474.6(1) and (3) if the ASIO officers are acting in good faith in the course of their duties (in the case of ASIO affiliates, this would include where they are acting in accordance with their contract, agreement or other arrangement) and their conduct is reasonable in the circumstances for the purpose of performing that duty.

30.               Subsection 474.6(1) provides that a person commits an offence if the person tampers with, or interferes with, a facility owned or operated by a carrier, a carriage service provider or a nominated carrier. Subsection 474.6(3) provides that a person commits an offence if a person tampers or interferes with a facility owned or operated by a carrier, a carriage service provider or a nominated carrier, and this conduct results in hindering the normal operation of a carriage service supplied by a carriage service provider.

31.               As noted in the Comprehensive Review, due to developments in technology, the activities that ASIO needs to undertake to effectively discharge its functions require additional targeted legal defences. For example, ASIO officers are currently limited in how they can accurately identify the location of a device, due to concerns that more efficient methods would risk liability for offences under Parts 10.6 and 10.7 of the Criminal Code. The inclusion of this defence would enable ASIO to use more efficient and effective methods when conducting its functions under the ASIO Act, including to protect the covert nature of these activities where necessary. All activities will be conducted in line with the guidelines issued by the Minister for Home Affairs, which require ASIO to only undertake activities which are proportionate, and using the least intrusive method available.

32.               This item would also insert Note 1 after subsection 474.6(4A) to clarify that a defendant bears an evidential burden in relation to the matter in the subsection. This refers to the operation of subsection 13.3(3) of the Criminal Code. As set out in A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers , it is appropriate for a defendant to bear the evidential burden where the matters to be proved in the defence would be peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. It is appropriate for the defendant to bear the evidential burden in relation to the matters in subsection 474.6(4A) of the Criminal Code as those matters concern the actions of a person in the course of their duties for ASIO, which will be highly classified to protect operational security. The matters to be proved would be both peculiarly within the knowledge of the defendant and proof by the prosecution of the matters would be extremely difficult or expensive whereas it could be readily and cheaply provided by the accused.

33.               This item would also insert Note 2 after Note 1 which explains the interaction between the Criminal Code and the Radiocommunications Act 1992 . Note 2 refers to subsection 475.1(2) of the Criminal Code which provides that a provision in Part 10.6 to the effect that a person is not criminally responsible for an offence in relation to particular conduct under Part 10.6 does not make the conduct lawful if it would otherwise be unlawful under the Radiocommunications Act 1992 .

34.               This item implements recommendation 66 of the Comprehensive Review.

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

35.               This item would insert the following new definition in subsection 476.1(1) of the Criminal Code:

·          ‘ ASIO officer ’ means:

(a)    the Director-General of Security; or

(b)    an ‘ ASIO employee ’ (within the meaning as in the Australian Security Intelligence Organisation Act 1979 ); or

(c)    an ‘ ASIO affiliate ’ (within the meaning of that act)

36.               This amendment is necessary to define terms referred to in the defence for ASIO officers in new subsections 477.2(2) and 477.3(2) (set out at items 8 and 9) of the Criminal Code applicable to offences in subsection 477.2(1) (unauthorised modification of data to cause impairment) and subsection 477.3(1) (unauthorised impairment of electronic communication) respectively.

37.               The definition of ‘ASIO officer’ is intended to capture the Director-General of Security who is the head of ASIO appointed under section 7 of the ASIO Act, persons employed under section 84 and section 90 in the ASIO Act (ASIO employees), and also persons performing functions or services for ASIO, in accordance with a contract, agreement or other arrangement, including consultants, contractors and secondees (ASIO affiliates). The term ‘ASIO officer’ is used to simplify the language of the Criminal Code and to make clear that the defences apply to these categories of persons.

Item 8:          After subsection 477.2(1) of the Criminal Code

38.               This item would insert new subsection 477.2(2) after subsection 477.2(1).

39.               New subsection 477.2(2) would create a defence for ASIO officers for offences under subsection 477.2(1) if the ASIO officers are acting in good faith in the course of their duties (in the case of ASIO affiliates, this would include where they are acting in accordance with their contract, agreement or other arrangement) and their conduct is reasonable in the circumstances for the purpose of performing that duty. 

40.               Subsection 477.2(1) provides that a person commits an offence if the person causes any unauthorised modification of data held in a computer, knowing that the modification is unauthorised and is reckless as to whether the modification impairs or will impair access to that or any other data in any computer or the reliability, security or operation of any such data.

41.               As noted in the Comprehensive Review, due to developments in technology, the activities that ASIO needs to undertake to effectively discharge its functions require additional targeted legal defences. For example, ASIO officers are currently limited in how they can accurately identify the location of a device, due to concerns that more efficient methods would risk liability for offences under Parts 10.6 and 10.7 of the Criminal Code. The inclusion of this defence would enable ASIO to use more efficient and effective methods when conducting its functions under the ASIO Act, including to protect the covert nature of these activities where necessary. All activities will be conducted in line with the guidelines issued by the Minister for Home Affairs, which require ASIO to only undertake activities which are proportionate, and using the least intrusive method available.

42.               This item would also insert Note 1 after subsection 477.2(2) to clarify that a defendant bears an evidential burden in relation to the matter in the subsection. This refers to the operation of subsection 13.3(3) of the Criminal Code. As set out in A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers , it is appropriate for a defendant to bear the evidential burden where the matters to be proved in the defence would be peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. It is appropriate for the defendant to bear the evidential burden in relation to the matters in subsection 477.2(2) of the Criminal Code as those matters concern the actions of a person in the course of their duties for ASIO, which will be highly classified to protect operational security. The matters to be proved would be both peculiarly within the knowledge of the defendant and proof by the prosecution of the matters would be extremely difficult or expensive whereas it could be readily and cheaply provided by the accused.

43.               This item aligns with the findings of the Comprehensive Review (paragraph 24.65).

Item 9:          After subsection 477.3(1) of the Criminal Code

44.               This item would insert new subsection 477.3(2) after subsection 477.3(1).

45.               New subsection 477.3(2) would create a defence for ASIO officers for offences under subsection 477.3(1) if the ASIO officers are acting in good faith in the course of their duties (in the case of ASIO affiliates, this would include where they are acting in accordance with their contract, agreement or other arrangement) and their actions are reasonable in the circumstances for the purpose of performing that duty.

46.               Subsection 477.3(1) provides that a person commits an offence if the person causes any unauthorised impairment of electronic communication to, or from, a computer and that person knows that the impairment is unauthorised.

47.               As noted in the Comprehensive Review, due to developments in technology, the activities that ASIO needs to undertake to effectively discharge its functions require additional targeted legal defences. For example, ASIO officers are currently limited in how they can accurately identify the location of a device, due to concerns that more efficient methods would risk liability for offences under Parts 10.6 and 10.7 of the Criminal Code. The inclusion of this defence would enable ASIO to use more efficient and effective methods when conducting its functions under the ASIO Act, including to protect the covert nature of these activities where necessary. All activities will be conducted in line with the guidelines issued by the Minister for Home Affairs, which require ASIO to only undertake activities which are proportionate, and using the least intrusive method available.

48.               This item would also insert Note 1 after subsection 477.3(2) to clarify that a defendant bears an evidential burden in relation to the matter in the subsection. This refers to the operation of subsection 13.3(3) of the Criminal Code. As set out in A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers , it is appropriate for a defendant to bear the evidential burden where the matters to be proved in the defence would be peculiarly within the knowledge of the defendant and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. It is appropriate for the defendant to bear the evidential burden in relation to the matters in subsection 477.3(2) of the Criminal Code as those matters concern the actions of a person in the course of their duties for ASIO, which will be highly classified to protect operational security. The matters to be proved would be both peculiarly within the knowledge of the defendant and proof by the prosecution of the matters would be extremely difficult or expensive whereas it could be readily and cheaply provided by the accused.

49.               This item aligns with the findings of the Comprehensive Review (paragraph 24.65) .

Item 10:      Application provision

50.               This item intends to make it clear that the amendments made by Part 2 apply in relation to conduct engaged in on or after the commencement of this item.

Part 3: Membership of the Parliamentary Joint Committee on Intelligence and Security (PJCIS)

Intelligence Services Act 2001 (IS Act)

Item 11:      Subsection 28(2)

51.               Section 28 of the IS Act sets out the membership and composition of the PJCIS. Existing subsection 28(2) provides that the PJCIS is to consist of 11 members, 5 of whom must be Senators and 6 of whom must be members of the House of Representatives.

52.               This item would repeal and replace existing subsection 28(2). New subsection 28(2) would provide that the PJCIS is to consist of 13 members and must include at least:

·          2 Senators who are Government members, and

·          2 members of the House of Representatives who are Government members, and

·          2 Senators who are non-Government members, and

·          2 members of the House of Representatives who are non-Government members.

53.               This item does not affect subsection 28(3) which provides that a majority of the PJCIS’s members must be Government members. The remaining 5 members of the PJCIS can be determined subject to subsection 28(3) and the provisions on the appointment of members in Part 3 of Schedule 1 of the IS Act. 

54.               This amendment is intended to allow greater flexibility in determining PJCIS membership while retaining the requirement for representation of both the Senate and House of Representatives, and Government and non-Government members.

Item 12:                     Paragraph 18(1)(a) of Schedule 1

55.               Clause 18 of Schedule 1 to the IS Act sets out the criteria for a quorum at a meeting of the PJCIS. Existing paragraph 18(1)(a) provides that at least six members of the PJCIS must be present for a quorum to be constituted.

56.               This item would amend paragraph 18(1)(a) to increase the number of members that must be present to constitute a quorum to seven.

57.               This amendment is consequential to the amendment in item 11 which would increase the membership of the PJCIS from 11 to 13 and is intended to maintain the requirement for a majority of the PJCIS to be present before a quorum is constituted.

Item 13:                     Application provision

58.               This item provides that the amendments to the IS Act, made by Part 3 of the Bill, would apply, on an after the commencement of this item, in relation to the PJCIS established in respect of the 47 ^th Parliament (and of future Parliaments) and do not affect the appointment of a member of the PJCIS made before the commencement of this item.

Part 4: Spent convictions

Crimes Act 1914 (Crimes Act)

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

59.               Part VIIC of the Crimes Act sets out the Commonwealth spent convictions scheme. Division 3 of Part VIIC provides that a person is not required to disclose a spent conviction in the specified circumstances.

60.               There are a number of exclusions, set out in Division 6 of Part VIIC, that enable or require the disclosure of spent conviction information in certain circumstances, including exclusions relating to work with children (Subdivision A), work with persons with disability (Subdivision AA), and other purposes (Subdivision B). There are also a number of exclusions for other prescribed persons or bodies under Schedule 2 of the Crimes Regulations 2019 .

61.               This item would insert new section 85ZZJA at the end of Subdivision B of Division 6 of Part VIIC of the Crimes Act. New section 85ZZJA would provide for exclusions relating to the performance of the functions or the exercise of the powers of ASIO.

62.               New subsection 85ZZJA(1) would set out the following circumstances in relation to which Division 3 would not apply:

·          the disclosure of information to or by ASIO, or an ASIO officer, if the disclosure is made for the purposes of the performance of the functions, or the exercise of the powers, of ASIO or the officer (paragraph 85ZZJA(1)(a)), or

·          filing or recording information that comes into the possession of ASIO, or an ASIO officer, if the filing or recording is done for the purposes of the performance of the functions, or the exercise of the powers, of ASIO or the officer (paragraph 85ZZJA(1)(b)), or

·          the use by ASIO, or an ASIO officer, of information for the purposes of the performance of the functions, or the exercise of the powers, of ASIO or the officer (paragraph 85ZZJA(1)(c)).

63.               New subsection 85ZZJA(2) would define the following terms applicable to this section:

·          ‘ ASIO ’ means the Australian Security Intelligence Organisation

·          ‘ ASIO officer ’ means:

(a)    the Director-General of Security; or

(b)    an ASIO employee (within the meaning of the Australian Security Intelligence Organisation Act 1979 ); or

(c)    an ASIO affiliate (within the meaning of that Act).

64.               The definition of ‘ASIO officer’ is intended to capture the Director-General of Security who is the head of ASIO appointed under section 7 of the ASIO Act, persons employed under section 84 and section 90 of the ASIO Act (ASIO employees), and also persons performing functions or services for ASIO, in accordance with a contract, agreement or other arrangement, including consultants, contractors and secondees (ASIO affiliates). The term ‘ASIO officer’ is used to simplify the language of the Crimes Act and make clear that the Director-General of Security, ASIO employees and ASIO affiliates can receive or disclose, file or record, or use spent conviction information.

65.               This amendment is intended to enable ASIO and ASIO officers to use, record and disclose spent conviction information for the performance of the functions, or the exercise of the powers, of ASIO or ASIO officers. This will ensure that ASIO can take spent convictions into account for the purpose of performing its functions.

66.               This item implements recommendation 136 of the Comprehensive Review.

Part 5: Reporting by the Inspector-General of Intelligence and Security

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

Item 15:                     After subsection 35(2AA)

67.               Section 35 of the IGIS Act sets out requirements for inclusion in the annual report of the Inspector-General, given under section 46 of the Public Governance, Performance and Accountability Act 2013 . This item would amend section 35 of the IGIS Act by inserting new subsections 35(2AB), (2AC) and (2AD).

68.               New subsection 35(2AB) would provide that the Inspector-General must include in an annual report the following information about the complaints the IGIS has received during the period to which the report relates:

·          the number of complaints made to the Inspector-General under Division 2 of Part II of the IGIS Act during the period to which the report relates, and

·          the kinds of matters to which the complaints related, and

·          the actions taken by the Inspector-General in response to the complaints, including the number of inquiries conducted by the Inspector-General in response to the complaints, and

·          a summary of the actions taken by the relevant intelligence agencies in response to the complaints and to the Inspector-General’s conclusions and recommendations as a result of the inquiries.

69.               New subsection 35(2AC) would provide that the Inspector-General must include in an annual report the following information about public interest disclosures (PIDs):

·          the number of disclosures of information received by, including but not limited to disclosures of information allocated to, the Inspector-General under the Public Interest Disclosure Act 2013 (PID Act) during the period to which the report relates, and

·          the kinds of disclosable conduct with which the information was concerned, and

·          the actions taken by the Inspector-General to handle the disclosures, including the number of inquiries conducted by the IGIS under the IGIS Act and the number of investigations conducted by the IGIS under the PID Act, and

·          a summary of the actions taken by the relevant intelligence agencies in response to the disclosures, the Inspector-General’s conclusions and recommendations as a result of the inquiries or investigations, and any other matters set out in reports relating to the inquiries or investigations, including the matters that must be set out in an investigation report under section 51 of the PID Act.

70.               New subsection 35(2AD) would provide that the head of an intelligence agency must give the Inspector-General such information and assistance as the Inspector-General reasonably requires in relation to the matters mentioned in paragraphs 35(2AB)(d) and 35(2AC)(d).

71.               Given the covert nature of the functions and powers of the intelligence agencies that fall within the IGIS’s jurisdiction, it is important for transparency for the IGIS to include as much information as possible about its activities and findings about intelligence agency activities, and the PIDs it receives regarding those agencies, without disclosing information that would compromise national security or the privacy of individuals.

72.               The Attorney-General would continue to have the ability under existing subsection 35(5) of the IGIS Act to make such deletions from the copy of the report that is tabled in Parliament as the Attorney-General considers necessary in order to avoid prejudice to security, the defence of Australia, Australia’s relations with other countries, law enforcement operations or the privacy of individuals. 

73.               This item aligns with the finding of the Comprehensive Review, which found that annual reporting on the complaints received by the IGIS ensures transparency for matters of public interest raised outside the context of the PID Act.

74.               This item implements recommendation 145 of the Comprehensive Review.

Public Interest Disclosure Act 2013

Item 16:                     At the end of subsection 76(2)

75.               Section 76 of the PID Act sets out the annual reporting requirements of the Commonwealth Ombudsman (Ombudsman) in relation to PIDs.

76.               This item would insert a new note at the end of subsection 76(2) explaining that the IGIS’s annual report is also required to include information about PIDs received by the IGIS. The note would direct the reader to section 35 of the IGIS Act.

77.               This amendment is intended to make the IGIS’s reporting requirements regarding PIDs clear on the face of the PID Act.

Item 17:                     Application provision

78.               This item provides that subsections 35(2AB), (2AC) and (2AD) of the IGIS Act, as inserted by Part 5 of the Bill, would apply in relation to an annual report for a period that begins on or after the commencement of this item. This is intended to allow time for any changes to be made to the processes of IGIS or agencies within IGIS’s jurisdiction to comply with the new reporting requirements.

Part 6: Investigations by the Ombudsman

Ombudsman Act 1976 (Ombudsman Act)

Item 18:                     Subsection 3(1)

79.               This item would insert a new definition into subsection 3(1) of the Ombudsman Act:

·          Department of Defence means the Department administered by the Minister administering section 1 of the Defence Act 1903 .

80.               This amendment is consequential to the amendment to section 5 made by item 19.

Item 19:                     After paragraph 5(2)(d)

81.               Section 5 of the Ombudsman Act sets out the functions of the Ombudsman. Subsection 5(1) provides (in part) that the Ombudsman shall investigate action that relates to a matter of administration by a Department, or by a prescribed authority. Subsection 5(2) sets out matters that the Ombudsman is not authorised to investigate.

82.               This item would insert new paragraph 5(2)(e) which would provide that the Ombudsman is not authorised to investigate action taken by ASIO, the Australian Secret Intelligence Service (ASIS), the part of the Department of Defence known as the Australian Geospatial-Intelligence Organisation (AGO), Australian Signals Directorate (ASD), the part of the Department of Defence known as the Defence Intelligence Organisation (DIO) or the Office of National Intelligence (ONI).

83.               The Ombudsman is currently prevented from investigating action taken by ASIO in accordance with the Ombudsman Regulations 2017. By convention, the Ombudsman also does not investigate action taken by ASIS, AGO, ASD, DIO or ONI, although these agencies are currently within its jurisdiction.

84.               This amendment would formalise this position by excluding in the primary legislation investigation of action taken by ASIO, ASIS, AGO, ASD, DIO and ONI from the functions of the Ombudsman. These intelligence agencies are already overseen by the IGIS, Australia’s dedicated intelligence oversight body, which possesses the capabilities and technical expertise to provide specialised intelligence oversight. Excluding ASIO, ASIS, AGO, ASD, DIO and ONI from the jurisdiction of the Ombudsman would reduce unnecessary overlap in the oversight of these agencies.

85.               This item implements recommendation 167 of the Comprehensive Review.

Part 7: Exemptions from freedom of information law

Freedom of Information Act 1982 (FOI Act)

Item 20:      Subparagraph 7(2A)(a)(v)

86.               Section 7 of the FOI Act provides that certain persons and bodies are exempt from the operation of the FOI Act, either in full or in relation to the kinds of documents specified. Relevantly, paragraph 7(2A)(a) provides that an agency is exempt from the operation of the FOI Act in relation to intelligence agency documents that originated with, or have been received from ASIS, ASIO, IGIS, ONI, AGO, DIO or ASD.

87.               This item would repeal and substitute subparagraph 7(2A)(a)(v). Existing subparagraph 7(2A)(a)(v) provides that an agency is exempt from the operation of the FOI Act in relation to a document that has originated with, or has been received from, the AGO. New subparagraph 7(2A)(a)(v) would provide that an agency is exempt in relation to a document that originated with, or has been received from the AGO, other than a document that has originated with, or has been received from, the Australian Hydrographic Office in the performance of its functions under subsection 223(2) of the Navigation Act 2012 (Navigation Act).

88.               The AGO is currently completely exempt from the operation of the FOI Act. This exemption is appropriate in relation to the AGO’s intelligence functions where sensitive information, if released, could cause harm to Australia’s national security. However, the functions of the Australian Hydrographic Office (which is part of the AGO) under subsection 223(2) of the Navigation Act are not intelligence functions.

89.               This amendment is intended improve transparency by ensuring that documents related to the non-intelligence functions of the Australian Hydrographic Office are not automatically exempt from the operation of the FOI Act.

90.               This amendment will retain the exemption from the FOI Act for AGO staff that work under the Australian Hydrographic Office but conduct activities in the performance of AGO’s functions under section 6B of the IS Act.

91.               This item implements recommendation 186 of the Comprehensive Review.

Item 21:      At the end of subsection 7(2A)

92.               This item would insert a new note at the end of subsection 7(2A) explaining that the Australian Hydrographic Office is part of the AGO in accordance with subsection 6B(3) of the IS Act.

93.               This amendment is intended to ensure it is clear to the reader that the Australian Hydrographic Office sits within the AGO.

Item 22:      After subsection 7(2F)

94.               This item would insert new subsection 7(2G) into section 7 of the FOI Act. Section 7 provides that certain persons and bodies are exempt from the operation of the FOI Act, either in full or in relation to the kinds of documents specified. New subsection 7(2G) would provide that a minister and an agency are exempt from the operation of the FOI Act in relation to:

·          a document (an AUSTRAC intelligence document ) that has originated with, or has been received from, the Australian Transaction Reports and Analysis Centre (AUSTRAC) and that concerns information that was communicated to AUSTRAC under section 16 of the Financial Transaction Reports Act 1988 (FTR Act), section 41 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) or in response to a notice given under section 49 of the AML/CTF Act, and

·          a document that contains a summary of, or an extract or information from, an AUSTRAC intelligence document, to the extent that it contains such a summary, extract or information.

95.               This amendment is intended to ensure Suspicious Transaction Reports (section 16 of the FTR Act), Suspicious Matter Reports (section 41 of the AML/CTF Act) and information communicated to AUSTRAC in response to a notice given under section 49 of the AML/CTF Act are consistently protected, regardless of which agency is in possession of those documents.

96.               Currently, Part II of Schedule 2 to the FOI Act specifies that, in relation to AUSTRAC, documents concerning information communicated to it under section 16 of the FTR Act or section 41 or 49 of the AML/CTF Act are exempt from the operation of the FOI Act. This provision operates to exempt these documents from the operation of the FOI Act only when they are in the possession of AUSTRAC. The same document, when in the possession of another agency, would not be exempt.

97.               This amendment would extend the exemption to the same kinds of documents to which Part II of Schedule 2 to the FOI Act currently applies to also cover circumstances where those documents are in the possession of a minister or an agency other than AUSTRAC. This would be consistent with the FOI Act’s treatment of other documents. For example, section 7(2A) provides that any agency is exempt from the operation of the FOI Act in relation to an intelligence agency document that has originated with, or has been received from, any of the listed intelligence agencies. It is appropriate that AUSTRAC intelligence documents are exempt from the operation of the FOI Act, including when those documents are in the possession of a minister or an agency other than AUSTRAC.

98.               This item implements recommendation 188 of the Comprehensive Review.   

Item 23:      Division 1 of Part II of Schedule 2 (item dealing with the Australian Transaction Reports and Analysis Centre)

99.               This item would repeal the item in Division 1 of Part II of Schedule 2 that deals with AUSTRAC. Part II of Schedule 2 to the FOI Act specifies, in relation to AUSTRAC, that documents concerning information communicated to it under section 16 of the FTR Act or section 41 or 49 of the AML/CTF Act are exempt from the operation of the FOI Act.

100.           With the insertion of new subsection 7(2G) by item 22, the item dealing with AUSTRAC in Division 1 of Part II of Schedule 2 is no longer required. This is because new subsection 7(2G) would fully encompass the exemption provided for in this item.

101.           This amendment is consequential to the implementation of recommendation 188 of the Comprehensive Review by item 22.

Item 24:      Application provision

102.           This item provides when subsection 7(2G) of the FOI Act, as inserted by Part 7 of the Bill, applies in relation to certain requests for access to a document.

103.           Where a request for access to a document has been made under the FOI Act, new subsection 7(2G) would apply to any requests made on or after the commencement of this item, and to requests made, but not finally determined, before the commencement of this item.

Part 8: Review under the archives law

Administrative Appeals Tribunal Act 1975 (AAT Act)

Item 25:      Subsection 3(1)

104.           This item would insert the following definition into subsection 3(1) of the AAT Act:

·          ‘ Exempt security record ’ means:

(a)    a record of the Australian Security Intelligence Organisation; or

(b)    a record that is claimed to be an exempt record under the Archives Act 1983 for the reason that it contains information or matter of a kind referred to in paragraph 33(1)(a) or (b) of that Act.

105.           This definition underpins the amendment set out in item 26 that requires that the power of the AAT under the Archives Act to review a decision of the Archives in respect of access to an exempt security record may be exercised by the AAT only in the Security Division of the AAT.

106.           Current paragraph 17B(2)(b) of the AAT Act has the effect that the power of the AAT under the Archives Act to review a decision of the Archives in respect of access to a record of ASIO may be exercised by the AAT only in the Security Division of the AAT.

107.           Paragraph 33(1)(a) of the Archives Act provides that, for the purposes of the Archives Act, a Commonwealth record is an exempt record if it contains information or a matter the disclosure of which under that Act could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth.

108.           Paragraph 33(1)(b) of the Archives Act provides that, for the purposes of the Archives Act, a Commonwealth record is an exempt record if it contains information or matter:

·          that was communicated in confidence by, or on behalf of, a foreign government, an authority of a foreign government or an international organisation (the  foreign entity ) to the Government of the Commonwealth, to an authority of the Commonwealth or to a person who received the communication on behalf of the Commonwealth or an authority of the Commonwealth (the  Commonwealth entity ); and

·          which the foreign entity advises the Commonwealth entity is still confidential; and

·          the confidentiality of which it would be reasonable to maintain.

109.           The addition of references to exempt records under paragraphs 33(1)(a) and (b) of the Archives Act are intended to capture all security matters arising under the Archives Act in accordance with recommendation 191 of the Comprehensive Review.

110.           The reference to a record of ASIO in paragraph (a) of the definition is retained given the existing jurisdiction of the Security Division to hear reviews relating to all ASIO records. The intention of the amendments is to expand the jurisdiction of the Security Division. ASIO records are currently exempt and limiting the jurisdiction of the Security Division over ASIO records to information or matters of a kind referred to in paragraphs 33(1)(a) or (b) would narrow the scope of the Act as it applies to ASIO.

Item 26:      Paragraph 17B(2)(b)

111.           This item would omit the term ‘a record of the Australian Security Intelligence Organisation’ from paragraph 17B(2)(b) of the AAT Act and replace it with the term ‘an exempt security record’ as defined in item 25.

112.           This amendment would have the effect that the AAT’s power under the Archives Act to review a decision of the Archives in respect of access to an exempt security record may be exercised by the AAT only in the Security Division.

113.           Currently, the AAT’s power under the Archives Act to review a decision of the Archives in respect of access to a record of the Australian Security Intelligence Organisation is the only power under the Archives Act that may be exercised by the AAT only in the Security Division. This results in inconsistency in proceedings relating to ASIO records and records of the rest of the NIC.

114.           The amendment would ensure that proceedings concerning all exempt records under paragraphs 33(1)(a) and (b) of the Archives Act are heard in the Security Division. This would also include records that did not originate with NIC agencies, which will ensure that all relevant exempt records are captured, including where information provided by NIC agencies is included in a record of another department or agency.

115.           The amendment would not impact the AAT’s current arrangements in respect of ASIO.

116.           This item implements recommendation 191 of the Comprehensive Review.

Item 27:      Subsection 19F(1)

117.           This item would amend subsection 19F(1) of the AAT Act to omit the term ‘a record of the Australian Security Intelligence Organisation’ and substitute the term ‘an exempt security record.’

118.           This amendment is consequential to items 25 and 26 and extends section 19F so that the constitution of the Security Division as specified in that section is applicable to exempt security records, and not just records of ASIO.

119.           This amendment is consequential to recommendation 191 of the Comprehensive Review.  

Item 28:      Subsection 19F(3)

120.           This item would amend subsection 19F(3) of the AAT Act to specify that if a proceeding relates to a record of ASIO a presidential member of the AAT is not able to participate in a proceeding under section 19F if the presidential member is or has been an agency head or employee of ASIO.

121.           This item is consequential to item 27 and 29. It retains the AAT Act’s existing arrangements for ASIO.

122.           Paragraph (b) of the definition of ‘exempt security record’ would apply to the records of all Commonwealth institutions. As such, it is impractical to introduce an equivalent prohibition to current subsection 19F(3) on the eligibility of presidential members to participate in relevant proceedings. Instead conflicts of interest would be managed using the ordinary applicable principles (including section 14 of the AAT Act which requires members of the AAT to disclose conflicts of interest) as well as through guidance or directions developed by the President of the AAT.

Item 29:      Subsection 42(1)

123.           This item would amend subsection 42(1) of the AAT Act to omit the term ‘If’ and substitute it with ‘Subject to subsection (1A), if.’

124.           This item is intended to ensure that subsection 42(1) of the AAT Act is read as subject to the new subsection (1A), inserted by item 30.

Item 30:      After subsection 42(1)

125.           This item would insert new subsection 42(1A) after subsection 42(1) of the AAT Act.

126.           This item is intended to specify the dispute settlement process for a disagreement on a question of law when the Security Division of the AAT is constituted in accordance with section 19F and the proceeding is not in relation to a review of a decision relating to a record of ASIO.

127.           This item is modelled on section 48 of the Archives Act. It would provide the mechanism for the resolution of disagreement between AAT members in relation to exempt security records brought before the Security Division that are not ASIO records. The procedure for resolution of disagreements concerning ASIO records is set out in section 42 of the AAT Act.

Archives Act 1983

Item 31:      Sections 46 and 48

128.           This item would repeal sections 46 and 48 of the Archives Act.

129.           Section 46 of the Archives Act currently sets out the constitution of the AAT for proceedings about exempt records that contain information or matter of a kind referred to in paragraph 33(1)(a) or (b) of the Archives Act and that are not an ASIO record. Items 25 and 27 would jointly have the effect that the constitution of the AAT for these matters would be specified in section 19F of the AAT Act. As such, section 46 of the Archives Act would be no longer necessary.

130.           Section 48 of the Archives Act currently sets out the procedure to be followed if the AAT is constituted for the purposes of a proceeding about exempt records that contain information or matter of a kind referred to in paragraph 33(1)(a) or (b) of the Archives Act that are not an ASIO record and there is a disagreement between the members about a question of law. Items 25 and 30 would jointly have the effect that the procedure to follow to settle such disagreements is set out in new subsection 42(1A) of the AAT Act. As such, section 48 of the Archives Act would be no longer necessary.

Item 32:      Subsection 50A(1)

131.           This item would repeal and replace subsection 50A(1) in the Archives Act.

132.           Subsections 50A(2) and (3) provide that the AAT must request the IGIS to appear personally and give evidence for any proceedings before the AAT under the Archives Act in relation to a document that is claimed to be an exempt record under paragraphs 33(1)(a) or (b) of the Archives Act. Subsection 50A(5) provides that the IGIS must comply with the request to give evidence unless the IGIS is of the opinion that the IGIS is not appropriately qualified to do so.

133.           This item would amend section 50A so that it only applies to proceedings before the AAT in respect of a record that is claimed to be an exempt record under paragraphs 33(1)(a) or (b) of the Archives Act and that record relates directly or indirectly to:

·          the performance of the functions or duties, or the exercise of the powers, of a body mentioned in paragraph (a) of the definition of intelligence agency in subsection 3(1) of IGIS Act; or  

·          the performance of an intelligence function (within the meaning of the IGIS Act) of a body mentioned in paragraph (b) of that definition; and

·          is not a record of the Inspector-General of Intelligence and Security.

134.           This amendment would address the situation where the IGIS is required under section 50A of the Archives Act to give evidence in certain proceedings for any record before the AAT that is claimed to be an exempt record under paragraphs 33(1)(a) and (b) of the Archives Act, even when it does not relate to an agency or function within the jurisdiction of the IGIS. Currently, the IGIS must comply with a request to appear before the AAT to give evidence, unless the IGIS is of the opinion they are not appropriately qualified to give evidence on the matter in question. This amendment aims to reduce the administrative burden on the IGIS by narrowing the circumstances in which they are required to appear before the AAT and the resources required to analyse and determine whether a matter the IGIS has been requested to appear before the AAT is one the IGIS is appropriately qualified to comment on. The amendment would make clear that the IGIS will not be required to provide evidence where a matter before the AAT involves a record claimed to be exempt on national security grounds that does not concern a Commonwealth agency under the oversight of the IGIS.

135.           Proposed paragraph 50A(1)(c) makes clear that the IGIS is not required to give evidence in relation to a record of the IGIS, even where the criteria in proposed paragraphs 50A(1)(a) and 50A(1)(b) are otherwise met.

136.           This item implements recommendation 192 of the Comprehensive Review. 

Freedom of Information Act 1982

Item 33:      Section 55ZA

137.           This item would repeal and replace section 55ZA of the FOI Act.

138.           Subsections 55ZB(1) and (2) provide that the Information Commissioner (IC) must request the IGIS to appear personally and give evidence for any proceedings before the IC under the FOI Act in relation to a document that is claimed to be an exempt document under section 33 (national security documents) of the FOI Act. Section 55ZC provides that the IGIS must comply with the request to give evidence unless the IGIS is of the opinion that the IGIS is not appropriately qualified to do so.

139.           This amendment changes the applicability of Part VII of Division 9 of the FOI Act so that it only applies to an IC review of a decision in relation to a document that is claimed to be an exempt document on national security grounds under section 33 (national security documents) of the FOI Act and that record relates directly or indirectly to:

·          the performance of the functions or duties, or the exercise of the powers, of a body mentioned in paragraph (a) of the definition of intelligence agency in subsection 3(1) of IGIS Act; or  

·          the performance of an intelligence function (within the meaning of the IGIS Act) of a body mentioned in paragraph (b) of that definition; and

·          is not a record of the Inspector-General of Intelligence and Security.

140.           This amendment would address the situation where the IGIS is required under section 55ZB of the FOI Act to give evidence in certain proceedings for any record before the IC that is claimed to be an exempt document, even when it does not relate to an agency or function within the jurisdiction of the IGIS. Currently, the IGIS must comply with a request to appear before the IC to give evidence, unless the IGIS is of the opinion they are not appropriately qualified to give evidence on the matter in question. This amendment aims to reduce the administrative burden on the IGIS by narrowing the circumstances in which they are required to appear before the IC and the resources required to analyse and determine whether a matter the IGIS has been requested to appear before the IC is one the IGIS is appropriately qualified to comment on. The amendment would make clear that the IGIS will not be required to provide evidence where a matter before the IC involves a record claimed to be exempt on national security grounds that does not concern a Commonwealth agency under the oversight of the IGIS.

141.           Proposed paragraph 55ZA(c) makes clear that the IGIS is not required to give evidence in relation to a record of the IGIS, even where the criteria in proposed paragraphs 55ZA(a) and 55ZA(b) are otherwise met.

142.           This item implements recommendation 192 of the Comprehensive Review. 

Item 34:      Subsection 60A(1)

143.           This item would repeal and replace subsection 60A(1) of the FOI Act.

144.           Subsections 60A(2) and (3) provide that the AAT must request the IGIS to appear personally and give evidence for any proceedings before the AAT under the FOI Act in relation to a document that is claimed to be an exempt document under section 33 (national security documents) of the FOI Act. Subsection 60A(5) provides that the IGIS must comply with the request to give evidence unless the IGIS is of the opinion that the IGIS is not appropriately qualified to do so.

145.           New subsection 60A(1) would provide that section 60A applies in a proceeding before the AAT under the FOI Act when a document is claimed to be an exempt document on national security grounds under section 33 (national security documents) of the FOI Act and that record relates directly or indirectly to:

·          the performance of the functions or duties, or the exercise of the powers, of a body mentioned in paragraph (a) of the definition of intelligence agency in subsection 3(1) of IGIS Act; or  

·          the performance of an intelligence function (within the meaning of the IGIS Act) of a body mentioned in paragraph (b) of that definition; and

·          is not a record of the Inspector-General of Intelligence and Security.

146.           This amendment would address the situation where the IGIS is required under subsections 60A(2) and (3) of the FOI Act to give evidence in certain proceedings for any record before the AAT that is claimed to be an exempt document, even when it does not relate to an agency or function within the jurisdiction of the IGIS. Currently, the IGIS must comply with a request to appear before the AAT to give evidence, unless the IGIS is of the opinion they are not appropriately qualified to give evidence on the matter in question. This amendment aims to reduce the administrative burden on the IGIS by narrowing the circumstances in which they are required to appear before the AAT and the resources required to analyse and determine whether a matter the IGIS has been requested to appear before the AAT is one the IGIS is appropriately qualified to comment on. The amendment would make clear that the IGIS will not be required to provide evidence where a matter before the AAT involves a record claimed to be exempt on national security grounds that does not concern a Commonwealth agency under the oversight of the IGIS.

147.           Proposed paragraph 60A(1)(c) makes clear that the IGIS is not required to give evidence in relation to a record of the IGIS, even where the criteria in proposed paragraphs 60A(1)(a) and 60A(1)(b) are otherwise met.

148.           This item implements recommendation 192 of the Comprehensive Review. 

Item 35:      Application provisions

149.           This item provides that the amendments of sections 17B, 19F and 42 of the AAT Act made by Part 8 of the Bill apply in relation to a proceeding for the review of a decision made on or after the commencement of this item.

150.           This item also provides that despite the repeal of sections 46 and 48 of the Archives Act by Part 8 of the Bill, those sections continue to apply, in relation to a proceeding for the review of a decision made before the commencement of this item, as if the repeal had not happened.

151.           Further, this item provides that subsection 50A(1) of the Archives Act and subsection 60A(1) of the FOI Act, as inserted by Part 8 of the Bill, apply in relation to a proceeding for the review of a decision made on or after the commencement of this item. This item is intended to apply on the basis of the definition of ‘proceeding’ in the AAT Act. The definition of ‘proceeding’ in the AAT Act relevantly includes an application to the AAT for review of a decision.

152.           This item provides that section 55ZA of the FOI Act, as inserted by Part 8 of the Bill, applies in relation to an IC review that starts on or after the commencement of this item.

Part 9: Other amendments

Item 36:      Paragraph 6(1)(e)

153.           This item would repeal and replace paragraph 6(1)(e) of the IS Act. The amendment is intended to provide certainty regarding the level of detail required to describe the directed activities in a Ministerial direction under paragraph 6(1)(e). The practice to date has been for the Minister to direct ASIS to undertake activities predominantly by reference to a purpose. Review and consideration of the provision has identified the need for greater certainty about the level of detail required to specify activities in a direction. The amendment is intended to make clear that the Minister may direct ASIS to undertake an activity or activities which can be of a specific or general nature, or by way of a class or classes. Where a class has been specified by the Minister, ASIS will be responsible for satisfying itself that a proposed activity falls within the specified class. 

154.           Using the disruption of terrorism as an example possible directions could include a direction to ASIS to:

·          interfere in the movement of an individual outside Australia suspected of involvement in a terrorist attack;

·          disrupt the supply of weapons to terrorist organisations outside Australia;

·          degrade the capabilities of terrorist organisations outside Australia; or

·          communicate information for the purpose of disrupting terrorism outside Australia.

The amendment would not change the existing limitations on ASIS in the performance of its functions under the IS Act, such as the limitations in subsections 6(4), (5B) and (6) and sections 11 and 12.

Item 37:      After subsection 6(1)

155.           This item would insert new subsections 6(1A) and 6(1B) to make clear that in giving a direction under paragraph 6(1)(e) the Minister may also specify a purpose for which the activities may be carried out. 

Item 38:      Subsection 6(2)

156.           This amendment is consequential to the amendment to paragraph 6(1)(e) of the IS Act.

Item 39:      Subsections 6(3) and (3A)

157.           This amendment is consequential to the amendment to paragraph 6(1)(e) of the IS Act.

Item 40:      Section 6A

158.           This amendment is consequential to the amendment to paragraph 6(1)(e) of the IS Act.

Item 41:      Section 6A

159.           This amendment is consequential to the amendment to paragraph 6(1)(e) of the IS Act.

Item 42:      Subparagraph 8(1)(a)(ii)

160.           This amendment is consequential to the amendment to paragraph 6(1)(e) of the IS Act.