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Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018

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2016-2017-2018

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

OFFICE OF NATIONAL INTELLIGENCE (Consequential and transitional provisions) bill 2018

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the Prime Minister,

the Honourable Malcolm Turnbull MP)

           

OFFICE OF NATIONAL INTELLIGENCE (Consequential and transitional provisions) bill 2018

General Outline

1.       The Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018 amends 19 Acts to reflect the proposed operation of the Office of National Intelligence Bill 2018 (the ONI Bill) which establishes the new Office of National Intelligence (ONI), announced by the Prime Minister in July 2017.

2.       The ONI Bill implements a key recommendation of the 2017 Independent Intelligence Review (IIR) to enhance coordination and strategic integration across the intelligence community by establishing the new ONI.

3.       ONI’s functions will include:

·          Leading the national intelligence community;

·          Carrying out evaluations;

·          Assessing, correlating and analysing international and domestic matters of political, strategic or economic significance to Australia;

·          Advising the Prime Minister of intelligence matters; and

·          Open source collection.

 

4.       Schedule 1 of this Bill repeals the whole of the Office of National Assessments Act 1977 .  

5.       Schedule 2 of this Bill amends 18 Acts, in large part to simply reflect the new arrangements by replacing references to the Office of National Assessments (ONA) or the Director-General of ONA with references to ONI or the Director-General of National Intelligence.

6.       Other more substantive amendments in this schedule include:

·          Amendments to the Acts Interpretation Act 1901 to enable ONI, the Australian Signals Directorate (ASD) and the Australian Security Intelligence Organisation (ASIO) to seek an extension of time when publishing annual reports.

·          Amendments to the Australian Border Force Act 2015 and the Australian Crime Commission Act 2002 to remove potential restrictions on the Australian Border Force and the Australian Criminal Intelligence Commission’s (ACIC) ability to share information with ONI.

·          Amendments to the Australian Security Intelligence Organisation Act 1979 and the Intelligence Services Act 2001 to enable ASIO, ASIS, AGO and ASD to cooperate with and assist ONI in the performance of ONI’s functions.

·          Amendments to the Crimes Act 1914 to enable ONI to access the assumed identities regime set out in part IAC of the Act.

·          Amendments to the Inspector-General of Intelligence and Security Act 1986 to require the Inspector-General of Intelligence and Security (IGIS) to report on ONI’s compliance with its privacy guidelines, require ONI to give a copy of directions from the Prime Minister and ONI’s annual report to the IGIS and enable the IGIS to consider ONI’s compliance with the Prime Minister’s directions.

·          Amendments to the Intelligence Services Act 2001 to amend the remit of the Parliamentary Joint Committee on Intelligence and Security in relation to ONI and to remove secrecy provisions relating to ONI so that they can be placed in the ONI Bill.

·          Amendments to the Privacy Act 1988 to exempt the Department of Defence, Home Affairs, the Australian Federal Police (AFP) and AUSTRAC from the operation of that Act when communicating information to ONI.

7.       Schedule 3 of this Bill includes further amendments to the Criminal Code Act 1995 , which are contingent on the commencement of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 .

8.       Schedule 4 of this Bill covers transitional rules and arrangements, including the continued appointment of the Director-General of ONA as the Director-General of National Intelligence and the saving of things done by or in relation to ONA or the Director-General of ONA.



 

Statement of Compatibility with Human Rights

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

 

Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018

 

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

9.       The Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018 amends 19 Acts to reflect the proposed operation of the ONI Bill which establishes the new ONI, announced by the Prime Minister in July 2017.

10.   The ONI Bill implements a key recommendation of the 2017 Independent Intelligence Review (IIR) to enhance coordination and strategic integration across the intelligence community by establishing the new ONI.

11.   ONI’s functions will include:

·          Leading the national intelligence community;

·          Carrying out evaluations;

·          Assessing, correlating and analysing international and domestic matters of political, strategic or economic significance to Australia;

·          Advising the Prime Minister of intelligence matters; and

·          Open source collection.

 

12.   Schedule 1 of this Bill repeals the whole of the Office of National Assessments Act 1977

13.   Schedule 2 of this Bill amends 18 Acts, in large part to simply reflect the new arrangements by replacing references to the Office of National Assessments (ONA) or the Director-General of ONA with references to ONI or the Director-General of National Intelligence.

14.   Other more substantive amendments in this schedule include:

·          Amendments to the Acts Interpretation Act 1901 to enable ONI, ASD and ASIO to seek an extension of time when publishing annual reports.

·          Amendments to the Australian Border Force Act 2015 and the Australian Crime Commission Act 2002 to remove potential restrictions on the Australian Border Force and the ACIC’s ability to share information with ONI.

·          Amendments to the Australian Security Intelligence Organisation Act 1979 and the Intelligence Services Act 2001 to enable ASIO, ASIS, AGO and ASD to cooperate with and assist ONI in the performance of ONI’s functions.

·          Amendments to the Crimes Act 1914 to enable ONI to access the assumed identities regime set out in part IAC of the Act.

·          Amendments to the Inspector-General of Intelligence and Security Act 1986 to require the IGIS to report on ONI’s compliance with its privacy guidelines, require ONI to give a copy of directions from the Prime Minister and ONI’s annual report to the IGIS and enable the IGIS to consider ONI’s compliance with the Prime Minister’s directions.

·          Amendments to the Intelligence Services Act 2001 to amend the remit of the Parliamentary Joint Committee on Intelligence and Security in relation to ONI and to remove secrecy provisions relating to ONI so that they can be placed in the ONI Bill.

·          Amendments to the Privacy Act 1988 to exempt the Department of Home Affairs, the AFP and AUSTRAC from the operation of that Act when communicating information to ONI.

15.   Schedule 3 of this Bill includes further amendments to the Criminal Code Act 1995 , which are contingent on the commencement of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 .

16.   Schedule 4 of this Bill covers transitional rules and arrangements, including the continued appointment of the Director-General of ONA as the Director-General of National Intelligence and the saving of things done by or in relation to ONA or the Director-General of ONA.

 

Human rights implications

17.   This Bill engages the following rights:

·          the right of non-discrimination in Article 2 of the International Covenant on Civil and Political Rights (ICCPR),

·          the right to privacy in Article 17 of the ICCPR; and

·          the right to freedom of expression in Article 19(2) of the ICCPR.

Right of non-discrimination - Article 2(1) of the ICCPR

18.   Article 2(1) of the ICCPR requires States to respect and ensure to all individuals within their territory and subject to their jurisdiction the rights recognised in the ICCPR, ‘without distinction of any kind’, and prohibits discrimination on various grounds, including age.

19.   This Bill engages but does not limit the right to freedom from discrimination on the basis of age by repealing the existing exemption from the Age Discrimination Act 2004 that exists for ONA. The exemption reflected provisions of the ONA Act that are no longer in force, so the exemption is no longer necessary and will be removed by this Bill.

Right to privacy - Article 17 of the ICCPR

20.   Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual’s privacy, family, home or correspondence. The right to privacy includes respect for informational privacy. This right can be permissibly limited in order to achieve a legitimate objective, where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances.

21.   This Bill engages the right to privacy by:

a.          including new exemptions from the Privacy Act 1988 for disclosures to ONI by the Department of Home Affairs, the AFP and AUSTRAC,

b.          enabling ONI to access the assumed identities regime in the Crimes Act 1914 , and

c.          expanding the ability of the ACIC and the Australian Border Force to share information with ONI.

Privacy Act exemptions for Home Affairs, AFP and AUSTRAC

22.   This Bill limits the right to privacy by setting out an exemption from the provisions of the Privacy Act for the Department of Home Affairs, the AFP and AUSTRAC, to the extent that those agencies constitute an ‘agency with an intelligence role or function’ within the meaning of the ONI Bill.

23.   ONA’s acts and disclosures are currently exempt from the Privacy Act, and this Bill continues that exemption for ONI. However, unlike disclosures to other intelligence agencies (ASIO, ASIS and ASD), other bodies that are subject to the Privacy Act will remain subject to the Privacy Act when they disclose information to ONI, including when they disclose information under section 38 or 39 or in response to a request under section 37 of the ONI Bill.

24.   This amendment pursues two legitimate objectives. First, they go towards ensuring national security by enabling agencies to provide information to assist ONI in performing its functions of promoting the collective performance of the NIC agencies through its leadership and enterprise management functions; and secondly to promote well-informed and rigorous policy making by the Australian government through preparing assessments on the basis of all available information.

25.   The amendment is reasonable, necessary and proportionate to achieve these objectives. Firstly, the amendment is limited to agencies that are part of the NIC and who will need to provide information on a regular basis. As part of ONI’s leadership and evaluation roles, ONI will need to access personal information from agencies within the national intelligence community - this might include, for example, information about agencies’ staffing profiles or other workforce information, or personal information that relates to intelligence product or an agency’s activities. If the NIC agencies were required to comply with the Privacy Act in relation to those disclosures - for example, by notifying the person that their information was being disclosed to ONI - it would significantly hinder ONI’s ability to perform its functions.

26.   Further, the amendment is limited to what is necessary to achieve these objectives. It only applies to the Department of Home Affairs, the AFP and AUSTRAC, on the basis that they will be required to provide information to ONI on a regular basis, and is further limited to the parts of those agencies that fall within ONI’s remit. The Bill does not provide a complete exemption for those agencies, but only an exemption where those agencies are disclosing personal information to ONI for the purposes of its functions.

27.   Further protections also apply to information once it has been received by ONI, including strict secrecy laws that in many ways provide greater protections than the Privacy Act, and the application of the privacy rules required to be made under section 53 of the ONI Bill. Therefore, the Bill does not have the effect of intruding on privacy in an unwarranted or unreasonable basis.

Expanded ability to share information with ONI

28.   This Bill also engages the right to privacy by including amendments to the Australian Crime Commission Act 2002 and the Australian Border Force Act 2015 to allow those agencies to share information with ONI for the purpose of it performing its functions.

29.   These amendments are designed to achieve the same legitimate objectives as set out above. First, they go towards ensuring national security by enabling agencies to provide information to assist it in promoting the collective performance of the NIC agencies through its leadership and enterprise management functions; and secondly to promote well-informed and rigorous policy making by the Australian government through preparing assessments on the basis of all available information.

30.   The amendments are reasonable, necessary and proportionate to achieve those objectives. Both amendments ensure that it remains within the discretion of the Secretary of the Department (in the case of the Australian Border Force) and the CEO (of the ACIC) to determine whether or not it is appropriate to share information. ONI must comply with the privacy rules required to be made under section 53 of the ONI Bill in relation to identifiable information, and individuals are subject to strict secrecy obligations in relation to all ONI information.

Access to the assumed identities regime

31.   The Bill further engages the right to privacy by including ONI in the assumed identities regime in Part IAC of the Crimes Act 1914 for the purposes of its open source function in paragraph 7(1)(g) of the ONI Bill. The Bill limits this right by giving ONI a greater ability to collect information, including personal information, than it would otherwise have without access to assumed identities.

32.   However, the limitation is directed to a legitimate purpose, which is the performance of ONI’s role as a centre of excellence for open source intelligence, as recommended by the 2017 Review.

33.   The limitation of the right to privacy goes no further than is reasonable, necessary and proportionate to achieve this purpose. ONI will be subject to the same accountability requirements under the assumed identities regime as other agencies with access to that regime, including record keeping, review, auditing and reporting requirements, and oversight by the IGIS. Adding ONI to the legislation promotes accountability and transparency.

34.   ONI’s functions include collecting, interpreting and disseminating information relating to matters of political, strategic or economic significance to Australia that is accessible to any section of the public. The reference to ‘accessible to any section of the public’ captures information that is generally available to the public, including information that requires conditions to be met before it can be accessed, for example, the payment of a fee or membership of a group. It is not intended to extend to sources of information that are essentially private or personal in nature.

35.   Similarly, the Open Source Centre's focus is at the strategic level, for example, observing online discourse regarding foreign political or electoral processes; trends in online terrorist propaganda and narratives; and state-based interactions in particular geographic areas. The Open Source Centre's collection is about what people are saying cumulatively rather than the individuals involved; access to the assumed identities regime, which may be necessary to access platforms where such discussions are occurring, will not change this focus.

36.   Any limitation of the right to privacy will be minimal, as use of assumed identities will be limited to the performance of ONI’s open source function, which only enables ONI to collect information that is publicly available, rather than private information.

Right to freedom of expression - Article 19(2) of the ICCPR

37.   Article 19(2) of the ICCPR stipulates that all individuals shall have the right to freedom of expression. This Bill amends secrecy provisions in the Australian Crime Commission Act 2002 and the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 to remove potential restrictions on the ability of the Australian Border Force and the ACIC to share information with ONI in certain circumstances.

38.   By allowing the ACIC and the Australian Border Force to share information in a wider range of circumstances, these provisions engage but do not limit the right to freedom of expression in Article 19(2) of the ICCPR.

 



 

Notes on Clauses

Clause 1 - Short title

39.   This clause provides for the short title of the Act to be the Office of National Intelligence (Consequential and Transitional Provisions) Act 2018 .

 

Clause 2 - Commencement

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

41.   Item 1 in the table provides that sections 1 to 3, which concern the formal aspects of the Act (and anything in this Act not covered elsewhere in the table), will commence on the day the Act receives the Royal Assent.

42.   Item 2 in the table provides that Schedules 1 and 2 will commence at the same time as section 3 of the Office of National Intelligence Act 2018 .

43.   Item 3 in the table provides that Schedule 3 will commence at the same time as the commencement of section 3 of the Office of National Intelligence Act 2018 , or immediately after the commencement of Schedule 2 to the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 , whichever is later.  However the provisions in Schedule 3 do not commence at all unless both of these Acts commence.

44.   Item 4 in the table provides that Schedule 4 will commence immediately after the commencement of section 3 of the Office of National Intelligence Act 2018 .

 

Clause 3 - Schedules

45.   Section 3 provides that each Act specified in a Schedule to this Act is amended or repealed as set out in the Schedule. Any other item in a Schedule to this Act has effect according to its terms. This is a technical provision to give operational effect to the amendments contained in a Schedule.

Schedule 1—Repeal of the Office of National Assessments Act 1977

46.   Item 1 repeals the whole of the Office of National Assessments Act 1977 (ONA Act). The Office of National Assessments (ONA) will continue in existence under the new name of the Office of National Intelligence, and the Office of National Intelligence Act 2018 will replace the ONA Act as the governing legislation for ONI.

Schedule 2—Consequential amendments

Acts Interpretation Act 1901

47.   Items 1 and 2 amend section 34C of the Acts Interpretation Act 1901 to ensure that the operation of this section will not limit the ability of ONI to seek an extension of time in which to provide their annual report to the Prime Minister for the purposes of section 46 of the Public Governance, Performance and Accountability Act 2013 .  The amendments will modify ONA’s existing exemption from this section, as well as the existing exemptions for the Australian Signals Directorate (ASD) and the Australian Security Intelligence Organisation (ASIO).  Item 1 inserts a new subsection 7A, which has the effect of enabling ONI (and ASIO and ASD) to seek an extension of time, while continuing to be an exempt from requirements to make their reports publicly available.   The Australian Secret Intelligence Service will continue to be exempt from the provision in its entirety.

Age Discrimination Act 2004

48.   Item 3 amends the Age Discrimination Act 2004 by repealing Item 35 of the table in Schedule 1 which listed the Office of National Assessments Act 1977 as a law under which an exemption was provided under subsection 39(1). When the Office of National Assessments Act 1977 was enacted it contained a provision preventing the appointment or reappointment of a Director-General ONA who was aged over 65 years. This provision was subsequently repealed by the Abolition of the Compulsory Age of Retirement (Statutory Officeholders) Act 2001 however the exemption to the Age Discrimination Act 2004 was not. 

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

49.   Item 4 amends paragraph (ge) of the definition of a ‘designated agency’ in section 5 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 by replacing the reference to ‘ONA’ with ‘ONI’. Designating ONI in this way will facilitate ONI’s access to AUSTRAC information and provide limitations on how it may handle this information once received.

50.   Item 5 inserts a new definition for the Director-General of National Intelligence at section 5.

51.   Items 6-7 amend section 5 by replacing the definition for ‘ONA’ with a definition for ‘ONI’.

52.   Item 8 amends subsection 128(13C) by replacing the heading ‘ONA officials’ with ‘ONI officials’.

53.   Items 9 and 10 amend subsection 128(13C) and subparagraph 128(19)(a)(iv) to replace all references to ‘ONA’ with ‘ONI’. 

54.   Items 11 and 12 amend subsection 133C (the heading) and subsection 133C(1) to replace references to ‘ONA’ with ‘ONI’, and the ‘Director-General of ONA’ with ‘Director-General of National Intelligence’.  

55.   Item 13 repeals and replaces existing subsection 133C(2) to enable the Director-General of National Intelligence to authorise an ONI official to communicate AUSTRAC information to a foreign intelligence agency.

56.   Item 14 saves existing authorisations made by the AUSTRAC CEO under subsection 126(1) relating to specified ONA officials or classes of ONA officials so that they will have effect as if they had been made in relation to ONI.

Archives Act 1983

57.   Item 15 amends paragraph 29(8)(e) of the Archives Act 1983 to replace the reference to ‘the Office of National Assessments’ with ‘the Office of National Intelligence’. This paragraph will enable an ONI staff member to exempt records from certain requirements under that Act without the concurrence of the Director-General of the National Archives.

Australian Border Force Act 2015

58.   Item 16 amends paragraph (f) of the definition of ‘intelligence agency’ at subsection 4(1) of the Australian Border Force Act 2015 to replace the reference to ‘the Office of National Assessments’ with ‘the Office of National Intelligence’.

59.   Item 17 inserts a new paragraph 46(la) to provide that the permitted purposes that Australian Border Force may disclose information for include for a purpose relating to the performance of ONI’s functions under section 7 of the Office of National Intelligence Act 2018 . This amendment will remove any potential uncertainty regarding the ability of the Australian Border Force to share information in accordance with sections 44 and 45 of the Australian Border Force Act with ONI for the performance of ONI’s functions.

Australian Crime Commission Act 2002

60.   Item 18 amends subsection 4(1) to insert a definition of ONI.

61.   Item 19 amends section 59AA to provide that the CEO of the Australian Crime Commission (ACC) may disclose ACC information to ONI if the CEO considers it appropriate to do so and the information is relevant to the performance of ONI’s functions under section 7 of the Office of National Intelligence Act 2018 and disclosing the ACC information would not be contrary to a law of the Commonwealth, a State or a Territory that would otherwise apply.

62.   The amendments in Item 18 and 19 are necessary to remove any potential uncertainty that the performance of ONI’s functions constitutes a permissible purpose for the disclosure of information to ONI under section 59AA of the Australian Crime Commission Act 2002.

Australian Human Rights Commission Act 1986

63.   Items 20 and 21 amend subsections 11(4) and 21(3) of the Australian Human Rights Commission Act 1986 to replace the references to ‘Office of National Assessments’ with ‘Office of National Intelligence’. These amendments continue the practice of preventing the Australian Human Rights Commission inquiring into the acts or practice of intelligence agencies or obtaining information or documents originating from intelligence agencies.

Australian Security Intelligence Organisation Act 1979

64.   Item 22 amends paragraph (b) of the definition of ‘intelligence or security agency’ at section 4 of the Australian Security Intelligence Organisation Act 1979 to replace the reference to ‘the Office of National Assessments’ with ‘the Office of National Intelligence’.

65.   Item 23 amends section 4 to provide that ‘ ONI means the Office of National Intelligence’.

66.   Item 24 amends section 19A(1) to add ONI to the list of agencies whom ASIO can cooperate with and assist in the performance of their functions. The list currently includes ASIS, ASD, AGO, law enforcement agencies and a Commonwealth or State authority prescribed in regulations. This will enable ASIO to enter into a cooperation arrangement with ONI for the performance of ONI’s functions. When such an arrangement has been entered into under s 19A, it will have the effect that ASIO’s functions under s 17 of the ASIO Act will be taken to include cooperating and assisting with ONI in accordance with the cooperation arrangement, including by making the services of ASIO staff and other ASIO resources available to ONI, even where the activities being undertaken would not ordinarily fall within ASIO’s functions

67.   Item 25 amends paragraph (c) of the definition of ‘agency head’ at subsection 35(1) to replace the reference to ‘the Director-General of the Office of National Assessments’ with ‘the Director-General of National Intelligence’.

Crimes Act 1914

68.   Items 26-43 amend Part IAC of the Crimes Act 1914 to provide ONI with access to the assumed identities regime set out in that Part for the purposes of the performance of its function under paragraph 7(1)(g) of the ONI Bill.  Paragraph 7(1)(g) provides that ONI’s functions include ‘to collect, interpret and disseminate information relating to matters of political, strategic or economic significance to Australia that is accessible to any section of the public’ (referred to as ONI’s open source collection function). ONI, through the functions of its Open Source Centre, will need access to rapidly evolving internet-based platforms and their access to the assumed identities regime will support this access. For example, access to some subscription services or social media platforms increasingly requires identity verification before permitting access. Though access could still be obtained through Australian Government accounts, in many cases it is not desirable for access to these services to be directly attributable to the Australian Government as attributable access could indicate an intelligence interest in particular matters or the nature of Australia’s intelligence collection priorities.

69.   ONI will be able to authorise the use of assumed identities (i.e. authorising an ONI employee to operate under a false name). However, ONI will not be able to request evidence of an assumed identity (such as a driver’s licence) from a Commonwealth, State or Territory issuing authority. Instead, ONI will rely on ASIO and ASIS to obtain evidence of an assumed identity on its behalf if required.

70.   Items 26-31 amend section 15K so as to include the Office of National Intelligence, the Director-General of National Intelligence and staff of the Office of National Intelligence in relevant definitions for the purposes of Part IAC.

71.   Item 32 inserts a new paragraph 15K(3A). This will have the effect of restricting the ability of ONI staff members to apply to the Director-General of National Intelligence for authority to acquire and/or use an assumed identity to where it is for the purpose of ONI carrying out its function under paragraph 7(1)(g) of the Office of National Intelligence Act 2018 .  This amendment will ensure that ONI’s access to assumed identities is limited to the purpose of carrying out its open source collection function and does not extend to any of its other functions, including its assessment, evaluation or leadership roles.

72.   Item 33 amends subsection 15KB(4) by inserting a new paragraph (h) relating to ONI. Subsection 15KB(4) sets out the level that an officer of the relevant law enforcement agency or intelligence agency must be in order to supervise the acquisition or use of an assumed identity by an authorised civilian.  In the case of ONI, this must be a person who holds the position, or performs the duties, of an APS Executive Level Officer Level 1 position, or an equivalent or higher position, in the Office of National Intelligence.

73.   Item 34 amends paragraph 15KG(b) so as to provide that the Director-General of National Intelligence is unable to apply for an order that an entry be made in a register of births, deaths or marriages in relation to an assumed identity in recognition of ONI’s inability to directly acquire evidence of an assumed identity under the regime. Item 35 makes an associated amendment in relation to the cancellation of such entries.

74.   Items 36 and 37 amends section 15KI to enable a chief officer of another intelligence agency (currently defined as ASIS and ASIO) to request an issuing agency for evidence of an assumed identity that has been authorised by the Director-General of National Intelligence. Section 15KI enables a chief officer of a law enforcement agency or intelligence agency to request an issuing agency to produce evidence of an assumed identity and give such evidence to certain persons. This may include for example, a driver’s licence or credit card.  

75.   Items 38-41 make similar amendments in relation to requests for evidence of an assumed identity made to an issuing agency of a participating State or Territory jurisdiction.                    

76.   Item 42 amends paragraph 15KY(3)(a) to provide that the exemption in subsection 15KY(3) does not apply to the chief officer of the Office of National Intelligence.  Subsection 15KY(3) exempts ASIS, ASIO, ASD and AGO from the requirement to provide evidence of an assumed identity at the request of a participating State or Territory jurisdiction.  

77.   Item 43 amends paragraph 15LH(3) to insert a new paragraph (ga).  This will enable the Director-General of National Intelligence to delegate certain functions under Part IAC (including granting an authority to use an assumed identity) to an SES employee in the Office of National Intelligence, or a person occupying an equivalent or higher position in the Office of National Intelligence.

78.   Item 44 amends paragraph (c) of the definition of ‘intelligence or security agency’ at section 85ZL of the Crimes Act 1914 to replace the reference to ‘the Office of National Assessments’ with ‘the Office of National Intelligence’. This will enable ONI to continue to be able to access records relating to spent convictions for the purpose of assessing prospective employees or consultants who would perform work for ONI.

Criminal Code Act 1995

79.   Item 45 amends paragraph (c) of the definition of ‘intelligence or security officer’ at section 473.1 of the Criminal Code Act 1995 to replace the reference to ‘the Office of National Assessments’ with ‘the Office of National Intelligence’.  This amendment will prevent ONI officers from being criminally responsible for certain telecommunications services offences in the course of their duties.

Defence Act 1903

80.   Item 46 amends paragraph (c) of the definition of ‘intelligence or security agency’ at subsection 71A(1) of the Defence Act 1903 to replace the reference to ‘the Office of National Assessments’ with ‘the Office of National Intelligence’.  This will ensure ONI is able to continue to receive information from the Department of Defence or the Australian Defence Force collected on defence premises by means of an optical surveillance device.

Freedom of Information Act 1982

81.   Item 47 amends subparagraph 7(2A)(a)(iv) of the Freedom of Information Act 1982 to replace the reference to ‘the Office of National Assessments’ with ‘the Office of National Intelligence’.  This will exempt documents originating from ONI (or extracts or summaries of these documents) from the operation of Freedom of Information Act 1982.  

82.   Item 48 amends Schedule 2 (Division 1, Part 1) to replace the reference to ‘the Office of National Assessments’ with ‘the Office of National Intelligence’. 

Independent National Security Legislation Monitor Act 2010

83.   Items 49-50 amend paragraph (j) of the definition of ‘head’ and paragraph (j) of the definition of ‘law enforcement or security agency’ at section 4 of the Independent National Security Legislation Monitor Act 2010 to replace the references to the ‘Office of National Assessments’ with ‘Office of National Intelligence’, the ‘ Office of National Assessments Act 1977 ’ with ‘ Office of National Intelligence Act 2018 ’ and Director-General of ONA’ with ‘Director-General of National Intelligence’.  These amendments will enable the Independent National Security Legislation Monitor to protect ONI information.

Inspector-General of Intelligence and Security Act 1986

84.   Items 51-55, 57-61 and item 63 [note intervening item on section 8 and section 32A(1)(c) below] amend subsections 3(1), 8(3), 8(5) and paragraphs 8A(4)(b), 15(3)(a), 21(1B)(a) and 32A(5)(a) of the Inspector-General of Intelligence and Security Act 1986 to replace references to ‘the Office of National Assessments’ with ‘Office of National Intelligence’, ‘ONA’ with ‘ONI’, and ‘Director-General of ONA’ with ‘Director-General of National Intelligence’.

85.   Item 56 amends section 8 to add a new subparagraph 8(3)(a)(ia) to provide that the inquiry functions of the Inspector-General in relation to ONI include ONI’s compliance with directions given to ONI by their responsible Minister.

86.   Item 62 amends paragraph 32A(1)(c) to replace the reference to ONA reports under ‘section 19 of the Office of National Assessments Act 1977 ’ with ONI reports under ‘section 46 of the Public Governance, Performance and Accountability Act 2013 ’, to reflect the reporting regime that will apply to ONI.  

87.   Item 64 amends paragraph 32B(1). This will require the Prime Minister to provide copies of any guidelines or directions given by the Prime Minister to ONI to the IGIS. This will facilitate the IGIS’s oversight role in relation to ONI’s compliance with such directions.

88.   Item 65 amends section 35 to provide that the Inspector-General must include comments in their annual report on the extent of compliance by ONI, during the period to which the report relates, with privacy rules made under section 53 of the Office of National Intelligence Act 2018 . The accompanying note explains that the rules referred to in the new subsection (2C) regulate the communication and retention of identifiable information (within the meaning of the Office of National Intelligence Act 2018 ). IGIS oversight of compliance with these rules will be an important accountability mechanism to ensure ONI appropriately collects, stores and deals with personal information that is in its possession.

Intelligence Services Act 2001

89.   Item 66 amends section 3 of the Intelligence Services Act 2001 to insert a new definition for the Director-General of National Intelligence.

90.   Items 67-69, 74, 76, 78 [note intervening items on sections 13A and 29 below] amend sections 3, 30 and 40A to replace all references to ‘ONA’ with ‘ONI’, and all references to ‘Director-General of ONA’ with ‘Director-General of National Intelligence’ and to insert a definition in section 3 such that ‘ ONI means the Office of National Intelligence’.

91.   Item 70 amends section 13A to add ONI to the list of agencies that the agencies to which that section applies (ASIS, ASD, AGO) may cooperate with. The list currently includes those agencies, ASIO and a Commonwealth or State authority prescribed in regulations.  This will enable ASIS, ASD or AGO to enter into a cooperation arrangements with ONI for the performance of ONI’s functions, under which the relevant agency will be able to make the services of its staff or other resources available to ONI, even where the activities being undertaken would not ordinarily fall within the relevant agency’s functions.

92.   Items 71- 77 amend section 29 which deals with the functions of the Parliamentary Joint Committee on Intelligence and Security (PJCIS).  In relation to ONA, this currently includes (subject to the exceptions as set out in subsection 29(3)) to review the administration and expenditure of ONA, including its annual financial statements, and to review any matter in relation to ONA referred to the PJCIS by the responsible Minister or a resolution of either House of Parliament.  The current exceptions for ONA include their coordination and evaluation activities.

93.   Items 71 and 72 will replace the references to ONA with ONI in subsections 29(1) and (2). Items 73-77 amend the exceptions in subsection 29(3) to reflect changes to the nature of ONI’s functions as compared to ONA.  These amendments are intended to provide the PJCIS with an appropriate level of oversight over ONI’s activities given the changing nature of their functions (and in particular their leadership role), while still maintaining the well-established balance of ministerial, parliamentary and independent oversight under which the IGIS is responsible for oversight of the operational activities undertaken by the intelligence agencies.  In particular:

·          Item 73 inserts new proposed paragraphs 29(3)(aa) and 29(3)(ab).  These amendments will ensure that ONI’s leadership role (under paragraph 7(1)(a) of the ONI Act) is appropriately captured within the remit of the PJCIS, by ensuring that the functions of the Committee will not extend to reviewing anything done by ONI in its leadership role that relates to a matter that is currently excluded from the Committee’s remit under section 29(3) in respect of individual agencies.

 

·          Item 75 inserts a new paragraph 29(3)(fa) which provides that the functions of the PJCIS do not include reviewing the privacy rules made under section 53 of the ONI Act. The rules under section 53 of the ONI Act are based upon the rules made under section 15 of this Act (the review of those rules is outside of the functions of the PJCIS under paragraph 29(3)(f)). 

o    However, the IGIS must brief the PJCIS on the content and effect of the rules made under section 53 of the ONI Act if the Committee requests the IGIS to do so, or the privacy rules change.

94.   Item 79 repeals sections 40A (communication of certain information), 40J (unauthorised dealing with records) and 40K (unauthorised recording of information or matter) which currently apply to ONA. The ONI Bill contains robust provisions relating to information, including secrecy provisions at [Part 4, Division 2] that are in effect identical to these provisions, therefore the provisions relating to ONA in this Act are no longer necessary.

95.   Item 80 removes the references to sections 40A, 40J and 40K from the definition of an ‘information offence provision’ at subsection 41B(3) as the item above repeals those sections. 

96.   Items 81-84 amend Schedule 1 (clause 1A and paragraph 20(2)(d)) to replace all references to ‘ONA’ with ‘ONI’, and all references to ‘Director-General of ONA’ with ‘Director-General of National Intelligence’.

Privacy Act 1988

97.   Item 85 amends paragraph (c) of the definition of ‘intelligence agency’ at subsection 6(1) of the Privacy Act 1988 to replace the reference to ‘the Office of National Assessments’ with ‘Office of National Intelligence’.  This will provide that ONI has the same exemption from the Privacy Act as currently exists for ONA.

98.   Item 86 inserts a new subsection 7(1B) to provide that a reference in this Act (other than section 8) to an act or to a practice does not include a reference to the act or practice by an agency with an intelligence role or function (within the meaning of the Office of National Intelligence Act 2018 ) so far as it involves the disclosure of personal information to the Office of National Intelligence. Agencies with an intelligence role or function are AUSTRAC, the AFP, the Department of Home Affairs and the Department of Defence (other than AGO or DIO) to the extent that those agencies collect, correlate, analyse, produce or disseminate intelligence or maintain or develop capabilities for these purposes. This amendment will facilitate ONI’s access to the information it needs to perform its functions and will place ONI on similar footing to other intelligence agencies when accessing this information.  

99.   Items 87 and 88 amend subsection 80P(7) to remove references to secrecy provisions in the Intelligence Services Act 2001 that will be repealed by this Bill and to include references to the secrecy provisions in Part 4 Division 2 of the Office of National Intelligence Act 2018 .

 

 

Public Interest Disclosure Act 2013

100.           Items 89 and 90 amend paragraph (f) of the definition of ‘intelligence agency’ at section 8, and paragraph 72(1)(j) of the Public Interest Disclosure Act 2013 to replace the references to ‘the Office of National Assessments’ with ‘Office of National Intelligence’.

Remuneration and Allowances Act 1990

101.           Item 91 amends Schedule 2 (Part 3) of the Remuneration and Allowances Act 1990 by replacing the reference to ‘Director-General, Office of National Assessments’ with ‘Director-General of National Intelligence’.

Schedule 3—Contingent amendments

102.           Item 1 of this Schedule makes an amendment to the Criminal Code Act 1995 , which is contingent on commencement of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 . The amendment repeals paragraph (f) of the definition of a ‘domestic intelligence agency’ at subsection 121.1(1) and replaces the reference to ‘the Office of National Assessments’ with ‘the Office of National Intelligence’.

Schedule 4—Transitional provisions

103.           Part 1 of this Schedule inserts a number of definitions for the Schedule, including the ‘old law’ as the Office of National Assessments Act 1977 and the ‘new law’ as the Office of National Intelligence Act 2018 . An expression used in this Schedule that is also used in the new law has the same meaning in this Schedule as it has in the new law.

104.           Part 2 of this Schedule continues the current appointment of the Director-General of ONA, providing that the Director-General of ONA will continue as the Director-General of National Intelligence, and is taken to have been appointed as the Director-General of National Intelligence by the Governor-General under section 24 of the ‘new law’, the Office of National Intelligence Act 2018 . This applies for the balance of the person’s term of appointment that remained immediately before commencement and in relation to remuneration and allowances—on the same terms and conditions as applied to the person before commencement and in relation to any other term and condition of appointment, on the terms and conditions provided for by Division 3 of Part 3 of the new law.

105.           Part 3 of this Schedule saves any ‘thing’ done by, or in relation to, ONA and provides that it will be taken, after commencement, to have been done by, or in relation to, ONI. The Prime Minister can determine (in writing) that the saving provisions does not apply in relation to a specific thing done by, or in relation to, ONA. Sub-item 4 also clarifies that any determination made by the Prime Minister is not a legislative instrument, within the meaning of subsection 8(1) of the Legislation Act 2003 . This sub-item is merely declaratory of the law and enables the making of instruments which are not legislative in character. It does not determine or alter the content of the law, nor does it prescribe a substantive exemption from the requirements of the Legislation Act 2003

106.           Item 4 of Part 3 of this Schedule saves any ‘thing’ done by, or in relation to, the Director-General of ONA and provides that it will be taken, after commencement, to have been done by, or in relation to, the Director-General of National Intelligence. The Prime Minister can determine (in writing) that the saving provisions does not apply to a specific thing done by, or in relation to, the Director-General of ONA. Sub-item 4 clarifies that any determination made by the Prime Minister is not a legislative instrument, within the meaning of subsection 8(1) of the Legislation Act 2003 . This sub-item is merely declaratory of the law and enables the making of instruments which are not legislative in character. It does not determine or alter the content of the law, nor does it prescribe a substantive exemption from the requirements of the Legislation Act 2003

107.           Item 5 of Part 4 of this Schedule saves requests made under subsection 5(2) of the old law for reports or assessments, where a report had not been prepared or an assessment made, and provides it should be treated as if it had been made under section 22 of the new law. The note to this item provides that the Director-General of National Intelligence must endeavour to respond to requests under section 22 of the new law.

108.           Item 6(1) of Part 4 of this Schedule saves the membership of National Assessments Board, until a person’s membership ceases due to a variation in the membership of the Board by the Director-General of National Intelligence under section 48 of the new law.

109.           Item 6(2) of Part 4 of this Schedule provides that if an national assessment was prepared before commencement and at commencement the National Assessments Board had not completed its consideration of the assessment, then, despite the repeal of the Office of National Assessments Act 1977 , the Board must complete its consideration of the assessment and the Director-General must deal with the assessment, in accordance with the old law.  

110.           Item 7 of Part 4 of this Schedule provides that any inquiry commenced (but not completed) by the IGIS in relation to ONA under section 8 of the Inspector-General of Intelligence and Security Act 1986 , continues and for the purpose of completing the inquiry, the Inspector-General of Intelligence and Security Act and any other Act amended by this Act continues as it was in force on the day the inquiry began. The note to this item provides as an example that a person who was given a notice under section 18 of the Inspector-General of Intelligence and Security Act before commencement in relation to an inquiry is still required to comply with the notice if they have not done so.

111.           Item 8 of Part 4 of this Schedule provides the Prime Minister may, by legislative instrument, make rules prescribing matters of a transitional nature in relation to the amendments or repeals made by this Act or the enactment of this Act or the new law. As legislative instruments, any rules made would be subject to Parliamentary oversight through the disallowance process.