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Home Affairs and Integrity Agencies Legislation Amendment Bill 2017



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ISSN 1328-8091

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BILLS DIGEST NO. 67, 2017-18 31 JANUARY 2018

Home Affairs and Integrity Agencies Legislation Amendment Bill 2017 Cat Barker Foreign Affairs, Defence and Security Section

This is a revised version of the Digest published on 25 January 2018.

Contents

Purpose of the Bill ............................................................... 2

Background ......................................................................... 2

Home Affairs portfolio ............................................................. 2

Changes to the Attorney-General’s portfolio .......................... 3

How the changes have/will be made ...................................... 3

Committee consideration .................................................... 4

Parliamentary Joint Committee on Intelligence and Security .................................................................................... 4

Scrutiny committees ................................................................ 4

Policy position of non-government parties/independents ..... 4

Position of major interest groups ......................................... 4

Financial implications .......................................................... 5

Statement of Compatibility with Human Rights .................... 5

Key issues and provisions..................................................... 5

What is not in the Bill—ASIO warrants .................................... 5

AUSTRAC information .............................................................. 6

Independent National Security Legislation Monitor ............... 6

Inspector-General of Intelligence and Security ....................... 7

Amendments to the IS Act ....................................................... 8

Security-related ministerial authorisations ........................... 8

Referrals to the Parliamentary Joint Committee on Intelligence and Security ....................................................... 9

Concluding comments ......................................................... 9

Date introduced: 7 December 2017

House: House of Representatives

Portfolio: Prime Minister and Cabinet

Commencement: Sections 1-3 on Royal Assent. Schedule 1 on Proclamation or six months after Royal Assent, whichever occurs first.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

January 2018.

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Purpose of the Bill The purpose of the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017 (the Bill) is to amend several Acts to reflect the establishment of a new Home Affairs portfolio and related changes to the Attorney-General’s portfolio. Specifically, the Bill will amend:

• the Anti-Money-Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act), to allow intelligence agency officials to share AUSTRAC information with the Attorney-General for certain purposes

• the Independent National Security Legislation Monitor Act 2010 (INSLM Act) and the Inspector-General of Intelligence and Security Act 1986 (IGIS Act), to reflect the transfer of the Independent National Security Legislation Monitor (INSLM) and the Inspector-General of Intelligence and Security (IGIS) from the Prime Minister and Cabinet portfolio to the Attorney-General’s portfolio and

• the Intelligence Services Act 2001 (IS Act), so that security-related ministerial authorisations made under that Act will continue to require the agreement of the Attorney-General, except in urgent circumstances.

The Bill will not amend the Australian Security Intelligence Organisation Act 1979.

Background On 18 July 2017, the Prime Minister announced that the Government would establish a Home Affairs portfolio that will bring together Australia’s immigration, border protection, law enforcement and domestic security agencies in a single portfolio.1 Australian governments had previously considered but rejected the establishment of something similar to the US Department of Homeland Security or the UK Home Office on several occasions since the early 2000s.2 The new portfolio will be ‘modelled loosely’ on the UK’s arrangements, comprising a central department responsible for policy and strategic planning and several agencies that will retain their statutory independence.3

Home Affairs portfolio The Home Affairs portfolio will comprise the:

• Department of Home Affairs (made up of the Department of Immigration and Border Protection (DIBP) and former parts of the Attorney-General’s Department, Department of the Prime Minister and Cabinet, Department of Social Services and the Department of Infrastructure and Regional Development)

• Australian Border Force (which, while part of the DIBP, will remain ‘operationally independent’ under the ABF Commissioner)

• ASIO

• Australian Federal Police (AFP)

• Australian Criminal Intelligence Commission (ACIC) and

• AUSTRAC.4

The AFP, ACIC and AUSTRAC were transferred to the Home Affairs portfolio in December 2017, and ASIO will be transferred in 2018, subject to the passage of the Bill.5 The Government expects the portfolio to be fully established by July 2018.6

1. M Turnbull (Prime Minister), G Brandis (Attorney-General), P Dutton (Minister for Immigration and Border Protection) and M Keenan (Minister for Justice), A strong and secure Australia, joint media release, 18 July 2017; M Turnbull (Prime Minister), G Brandis (Attorney-General), P Dutton (Minister for Immigration and Border Protection) and M Keenan (Minister for Justice), Transcript of press conference: National security reform announcement, media release, 18 July 2017.

2. N Brew, A quick guide to the history of proposals for an Australian department of homeland security, Research paper series, 2017-18, Parliamentary Library, Canberra, 14 July 2017. 3. M Turnbull, ‘Second reading speech: Home Affairs and Integrity Agencies Legislation Amendment Bill 2017’, House of Representatives, Debates, 7 December 2017, p. 13151. See further C Barker and S Fallon, What we know so far about the new Home Affairs portfolio: a quick

guide, Research paper series, 2017-18, Parliamentary Library, Canberra, 7 August 2017. 4. M Turnbull, ibid.; P Dutton (Minister for Home Affairs), A new era for national security, media release, 20 December 2017; Senate Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, 23 October 2017, pp. 4-6;. The Australian Border Force Act 2015

establishes and provides for the appointment of the ABF Commissioner. 5. M Turnbull (Prime Minister) and P Dutton (Minister for Immigration and Border Protection), A stronger, safer and secure Australia, joint media release, 7 December 2017; Department of Home Affairs, ‘Update on machinery of government changes’, Department of Home Affairs

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The Department of Home Affairs, established in December 2017, will incorporate the following functions in addition to those previously undertaken by the DIBP:

 National security and law enforcement policy

 Emergency management, including crisis management and disaster recovery

 Countering terrorism policy and coordination

 Cyber security policy and coordination

 Countering foreign interference

 Critical infrastructure protection

 Multicultural affairs

 Countering violent extremism programs

 Transport Security. 7

Changes to the Attorney-General’s portfolio When it announced the establishment of the Home Affairs portfolio, the Government also announced that to complement the changes that would entail, it would ‘strengthen the Attorney-General’s oversight of Australia’s intelligence community and the agencies in the Home Affairs portfolio’.8 While the operational law enforcement and security agencies will become part of the Home Affairs portfolio, the Prime Minister stated that the Attorney-General will ‘retain responsibility for the administration of the criminal justice system, including formal international crime cooperation mechanisms’ and will ‘continue to sign off on all ASIO warrants’.9 This division of responsibility (except for the transfer of ASIO to the Home Affairs portfolio) is reflected in December 2017 amendments to the September 2016 Administrative Arrangements Order.10

The Attorney-General’s portfolio will be expanded to include the IGIS, the INSLM and the Commonwealth Ombudsman.11 It will also retain the Australian Commission for Law Enforcement Integrity (ACLEI).12

How the changes have/will be made Most of the changes associated with the new portfolio arrangements can be achieved without legislative amendments. This is because most of the agencies concerned, including ASIO, AFP, ACIC, AUSTRAC and the

website, 20 December 2017. Legislation under which the AFP, ACIC, AUSTRAC and ASIO operate refers simply to ‘the Minister’ when referring to the minister responsible for the agency, meaning responsibility for those agencies can be transferred from one minister to another without legislative amendments. See further under the ‘How the changes have/will be made’ section of this Digest. 6. Department of Home Affairs, ‘Update on machinery of government changes’, op. cit. For further detail, see: Department of the Prime Minister and Cabinet, Department of Home Affairs and the Attorney-General’s Department, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017, 18 January 2018, [submission No. 3]. 7. Department of Home Affairs, ‘Update on machinery of government changes’, op. cit. See further Administrative Arrangements Order, 20 December 2017. 8. M Turnbull et al, A strong and secure Australia, op. cit., p. 2. 9. M Turnbull, ‘Second reading speech: Home Affairs and Integrity Agencies Legislation Amendment Bill 2017’, op. cit. See also Turnbull and Dutton, A stronger, safer and secure Australia, op. cit., and D Wroe, ‘Dutton flags espionage focus’, The Sydney Morning Herald, 21 December 2017, p. 7. 10. The September 2016 order and amendments made in October 2016, April 2017, November 2017 and December 2017 are available from Department of the Prime Minister and Cabinet (PM&C), ‘Administrative Arrangements Order—amendment made 20 December 2017’, PM&C website. The December 2017 amendments did not transfer responsibility for administering the Australian Security Intelligence Organisation Act 1979 from the Attorney-General to the Minister for Home Affairs. Further amendments will be required to reflect the proposed split of responsibilities relating to ASIO. 11. M Turnbull, ‘Second reading speech: Home Affairs and Integrity Agencies Legislation Amendment Bill 2017’, op. cit. 12. M Turnbull et al, Transcript of press conference: National security reform announcement, op. cit.

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Ombudsman, operate under legislation that refers simply to ‘the Minister’ when referring to the minister responsible for the agency, which, under the Acts Interpretation Act 1901 is taken to mean ‘the Minister, or any of the Ministers, administering the provision on the relevant day, in relation to the relevant matter’.13 That Act further provides that in determining which minister or ministers are referred to, instruments including an Administrative Arrangements Order in force on the relevant day may be taken into account.14 The Administrative Arrangements Order is made by the Governor-General and specifies matters and legislation dealt with by particular ministers and departments.15

Committee consideration Parliamentary Joint Committee on Intelligence and Security The Bill has been referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for inquiry. Submissions are due by 22 January 2018 and the Committee intends to report by February 2018. Details of the inquiry are at the inquiry homepage.

Scrutiny committees Neither the Senate Standing Committee for the Scrutiny of Bills nor the Parliamentary Joint Committee on Human Rights had reported on the Bill as at the date of publication of this Digest. The Bill was introduced after the final meetings of those committees for 2017. The committees are each due to table their next reports in the week commencing 5 February 2018.

Policy position of non-government parties/independents When the Government announced the establishment of the new Home Affairs portfolio in July 2017, the Australian Labor Party questioned the need for the proposed changes and raised concerns that making changes to arrangements that were generally functioning well could be detrimental to national security.16 However, it stated that it would not oppose the changes if the Government could make the case that they would in fact increase the safety of Australians.17 The Labor Party did not appear to have made public its final position on the Bill as at the date of publication of this Digest.

When the new portfolio was announced in July 2017, the Australian Greens stated that the proposed changes ‘would move Australia closer to becoming a police state’, and expressed concern that they would reduce accountability for significant powers.18

Other non-government parties and independents did not appear to have publicly stated their positions on the Bill or the new portfolio as at the date of publication of this Digest.

Position of major interest groups In its submission to the PJCIS’s inquiry into the Bill, the IGIS objected to the proposed amendments to give the minister responsible for IGIS the power to direct the IGIS to undertake certain inquiries.19 See further the ‘Key issues and provisions’ section of this Digest.

The Law Council of Australia stated in its submission to the PJCIS’s inquiry that it would prefer explicit references in the IGIS Act and the INSLM Act to the Attorney-General instead of ‘the Minister’, so that responsibility for those offices cannot be reassigned to another minister through administrative arrangements alone.20 This issue is outlined in further detail under ‘Key issues and provisions’ below.

13. Acts Interpretation Act 1901, subsection 19(1) (table item 1). See: Australian Security Intelligence Organisation Act 1979 (ASIO Act); Australian Federal Police Act 1979; Australian Crime Commission Act 2002; Anti-Money-Laundering and Counter-Terrorism Financing Act 2006; Ombudsman Act 1976.

14. Acts Interpretation Act 1901, subsection 19(2). 15. Parliament of Australia, ‘Administrative Arrangements Orders, 1906+’, Australian Parliament website. 16. M Dreyfus, Transcript of interview with Fran Kelly, media release, 19 July 2017; M Dreyfus, Transcript of interview with Matt Wordsworth, media release, 2 August 2017.

17. Ibid; B Shorten, Transcript of doorstop interview, media release, 19 July 2017. 18. N McKim, Dutton's new department an attack on freedom, media release, 17 July 2017. 19. Inspector-General of Intelligence and Security (IGIS), Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017, 18 January 2018, [submission No. 1].

20. Law Council of Australia, Submission to Parliamentary Joint Committee on Intelligence and Security, Inquiry into the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017, 18 January 2018, [submission No. 2].

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When the new portfolio was announced in July 2017, the Community and Public Sector Union expressed concern that its establishment ‘could compromise critical immigration and settlement functions, with no guarantees it will improve Australia’s security’ and about potential job losses.21 The CPSU’s concerns are more relevant to aspects of the new portfolio that will not require legislation, such as the merging of staff and functions from other departments into the new Department of Home Affairs and the employment conditions of transferred staff.22

Financial implications The Explanatory Memorandum states that the Bill does not have a financial impact.23

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.24

As noted above, the Parliamentary Joint Committee for Human Rights had not commented on the Bill at the date of publication of this Digest.

Key issues and provisions What is not in the Bill—ASIO warrants The Government’s July 2017 announcement stated that the Attorney-General ‘will continue to be the issuer of warrants under the ASIO Act, and Ministerial Authorisations under the Intelligence Services Act’.25 In his second reading speech for the Bill, the Prime Minister stated that the Attorney-General ‘will continue to sign off on all ASIO warrants’.26 However, the Bill does not contain amendments to the Australian Security Intelligence Organisation Act 1979 to explicitly give the Attorney-General those powers.

Under the ASIO Act, it is ‘the Minister’ who makes the various warrants and authorisations available under the Act, including search warrants, computer access warrants, surveillance device warrants, identified person warrants, foreign intelligence warrants, and authorities to conduct special intelligence operations, and who consents to applications being made for questioning and questioning and detention warrants in relation to terrorism.27 ‘Minister’ is not defined in the ASIO Act, but section 19 of the Acts Interpretation Act 1901 provides that such references are taken to mean ‘the Minister, or any of the Ministers, administering the provision on the relevant day, in relation to the relevant matter’.28

The Government may be intending that the Attorney-General be the minister for the purposes of those provisions. However, if it is intended that the Attorney-General will continue to be responsible for making those warrants and authorisations, it would be clearer to amend the ASIO Act to specifically refer to the Attorney-General, in the same way as parts of the Telecommunications (Interception and Access) Act 1979 (TIA Act).29 While the operation of the Acts Interpretation Act might mean that a reference to the Attorney-General could still be taken to mean the minister administering the provisions on a relevant day, such amendments would

21. Community and Public Sector Union, Home Affairs portfolio a threat to core immigration functions, media release, 18 July 2017. 22. D Dingwall, ‘Trouble on Home front’ The Canberra Times, 4 November 2017, p. 1. 23. Explanatory Memorandum, Home Affairs and Integrity Agencies Legislation Amendment Bill 2017, p. 3. 24. The Statement of Compatibility with Human Rights can be found at page 4 of the Explanatory Memorandum to the Bill. 25. Turnbull et al, A strong and secure Australia, op. cit. 26. M Turnbull, ‘Second reading speech: Home Affairs and Integrity Agencies Legislation Amendment Bill 2017’, House of Representatives,

Debates, 7 December 2017, pp. 13151-5. 27. ASIO Act, see in particular sections 25 (search warrants), 25A (computer access warrants), 26 (surveillance device warrants), 27 and 27AA (warrants to inspect postal and delivery service articles), 27A (warrants to obtain foreign intelligence in Australia), 27C (identified person

warrants, under which the Minister or the Director-General may then authorise certain powers in relation to a particular person), 34D (consent to application for a questioning warrant in relation to terrorism), 34F (consent to application for a questioning and detention warrant in relation to terrorism) and 35C (special intelligence operation authorities). 28. Acts Interpretation Act 1901, subsection 19(1) (table item 1). Subsection 19(2) provides that instruments including an Administrative Arrangements Order in force on the relevant day may be used to work out which minister or ministers are referred to under subsection 19(1). 29. Telecommunications (Interception and Access) Act 1979 (TIA Act). Of most relevance, Part 2-2 (warrants authorising ASIO to intercept telecommunications).

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provide a clearer expression of the intended divisions of responsibility.30 The absence of such amendments is conspicuous given the proposed amendments to the IS Act in the Bill, which seek to clarify the division of responsibilities between the Minister for Home Affairs and the Attorney-General.

AUSTRAC information Section 128 of the AML/CTF Act sets out when AUSTRAC information may be passed on by an official of a designated agency.31 Item 1 of Schedule 1 will amend subsection 128(13) of the AML/CTF Act so that ASIO officials may disclose AUSTRAC information to the Attorney-General if the disclosure is for the purposes of, or in connection with, ‘security’ within the meaning of the ASIO Act or the performance of the Attorney-General’s functions under the ASIO Act or the TIA Act.

Items 2 and 3 will amend subsections 128(13B) and (13C) respectively so that officials of defence intelligence organisations and the Office of National Assessments may disclose AUSTRAC information to the Attorney-General if the disclosure is for the purposes of, or in connection with, the Attorney-General’s functions under the TIA Act.

These amendments reflect responsibilities imposed specifically on the Attorney-General under the TIA Act and responsibilities imposed on ‘the Minister’ under the ASIO Act that the Government has stated will remain with the Attorney-General despite the responsibility for administration of those Acts transferring to the Minister for Home Affairs.32

Independent National Security Legislation Monitor The INSLM is responsible for reviewing on his or her own initiative the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation and related laws on an ongoing basis. The INSLM is also required to conduct statutory reviews of certain legislation and report on any matter relating to counter-terrorism or national security referred by the Prime Minister.33 The INSLM is an independent officer appointed by the Governor-General and will remain so under the Bill.34

The INSLM has been part of the Prime Minister and Cabinet portfolio since the office was established in 2010, and the Prime Minister is currently the only minister who may refer a matter to the INSLM.35 The INSLM Act also requires the INSLM to report annually to the Prime Minister.36

In accordance with the proposed transfer of the INSLM to the Attorney-General’s portfolio, items 4 to 27 of Schedule 1 will amend the INSLM Act to reflect that the INSLM will now report to a minister other than the Prime Minister. This will include:

• enabling either the Prime Minister or ‘the Minister’ to refer a matter to the INSLM (items 4 and 5)

• requiring the INSLM to report annually to ‘the Minister’ (item 17) and

30. Under item 3 of the table in subsection 19(3) of the Acts Interpretation Act, if at the time a provision commenced or reference to a minister was inserted, the minister referred to by title administered the provision, the reference can be interpreted to mean ‘the Minister, or any of the Ministers, identified by item 1’ (which applies if a provision refers simply to ‘the Minister’). See further: Explanatory Memorandum, Acts and Instruments (Framework Reform) Bill 2014, p. 89; A Lehane and R Orr, ‘Amendments to the Commonwealth Acts Interpretation Act’, AIAL Forum, 73, July 2013, pp. 40-51: Historically there have been and, occasionally, even today there need to be, provisions which identify a particular Minister in legislation, for example 'the Treasurer'. Clearly, the presumption is that these functions will be exercised by the person who is appointed as the specified Minister, that is, the Treasurer. Section 19A of the Acts Interpretation Act [as it was at the time—the relevant provision is now section 19] enables even these references to be read as references to the Minister, or any one of the Ministers, responsible for administering the provision or Act at the relevant time. [p. 45]

31. AUSTRAC information and designated agency are defined in section 5 of the AML/CTF Act. 32. Explanatory Memorandum, p. 9. While the Explanatory Memorandum indicates that responsibility for administering the TIA Act and the ASIO Act will transfer to the Minister for Home Affairs, those changes were not reflected in the December 2017 amendments to the Administrative Arrangements Order. It appears that further changes will be made to the Administrative Arrangements Order after the Bill is passed. The

September 2016 order and amendments made in October 2016, April 2017, November 2017 and December 2017 are available from PM&C, ‘Administrative Arrangements Order—amendment made 20 December 2017’, PM&C website. 33. Independent National Security Legislation Monitor Act 2010, section 6. 34. Ibid., section 11. 35. Ibid., sections 7 and 30. 36. Ibid., section 29.

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• requiring reports on matters referred by the Prime Minister or the minister to be provided to the referring minister and allowing such reports to be provided to the other minister where the INSLM considers this to be appropriate (items 18 to 26).

Parliament may wish to consider additional legislative amendments to instead refer explicitly to the Attorney-General, in the same way as parts of the TIA Act.

Items 8, 10, 13 and 16 are savings provisions that will ensure that administrative arrangements in place at the time the amendments commence (such as leave and acting arrangements) can continue unchanged after the amendments commence.

Inspector-General of Intelligence and Security The IGIS is responsible for reviewing the activities of the six intelligence agencies that currently comprise the Australian Intelligence Community to ensure that the agencies act legally and with propriety, comply with ministerial guidelines and directives and accord with human rights.37 The agencies overseen by the IGIS are ASIO, the Australian Secret Intelligence Service (ASIS), the Australian Signals Directorate (ASD), the Australian Geospatial-Intelligence Organisation (AGO), the Defence Intelligence Organisation (DIO) and the Office of National Assessments (ONA). The IGIS is an independent officer appointed by the Governor-General and will remain so under the Bill.38

The IGIS has been part of the Prime Minister and Cabinet portfolio since the office was established in 1986. Under the IGIS Act, the IGIS may conduct an inquiry into a matter relating to an intelligence agency at the request of the minister responsible for the agency or on the IGIS’s own motion, and must conduct an inquiry into a matter relating to an intelligence agency or an intelligence or security matter relating to a Commonwealth agency at the Prime Minister’s request.39

In accordance with the proposed transfer of the IGIS to the Attorney-General’s portfolio, items 28 to 61 of Schedule 1 will amend the IGIS Act to reflect that the IGIS will now report to a minister other than the Prime Minister. This will include:

• enabling ‘the Minister’ (in addition to the ministers responsible for each agency) to request that the IGIS undertake an inquiry into an intelligence agency under section 8 of the IGIS Act (item 34)

• enabling the ‘the Minister’ (in addition to the Prime Minister) to request an inquiry into a matter relating to an intelligence agency or an intelligence or security matter relating to a Commonwealth agency, and requiring the IGIS to comply with such a request (under section 9, item 35)

• allowing the IGIS to consult ‘the Minister’ (instead or as well as the Prime Minister) on any matter relevant to an inquiry the IGIS is conducting (section 17, item 38)

• requiring the IGIS to provide copies of its final reports to ‘the Minister’ (proposed subsections 22(5) and (6) inserted by item 40; section 24 as amended by items 42 to 44; section 24A as amended by items 46 to 48)

• requiring ‘the Minister’ (instead of the Prime Minister) to table the IGIS’s annual reports in Parliament, with any necessary modifications to remove sensitive information (section 35 as amended by items 60 and 61).

The IGIS has objected to the proposed amendments to section 9 in item 35 on the grounds that it would compromise the independence of the office and could give rise to a perceived conflict of interest:

Amendments to s 9 proposed in the Home Affairs Bill have the effect of giving the Attorney-General the same power to compel the Inspector-General to undertake an inquiry as the Prime Minister. Doubling the number of ministers with this power is, in itself, a significant incursion into the independence of the Inspector-General. Nevertheless, given the Prime Minister’s position of overall responsibility for the National Intelligence Community it is not inappropriate that this power should be retained. In the case of the Attorney-General this consideration does not apply; moreover the Attorney’s position as the minister responsible for authorising warrants requested by ASIO

37. Inspector-General of Intelligence and Security Act 1986 (IGIS Act), sections 4, 8, 8A, 9, 9AA and 9A. 38. Ibid., section 6. 39. Ibid., sections 8 and 9. Section 8 also allows the IGIS to inquire into certain matters relating to ASIO, ASIS, AGO and ASD in response to a complaint.

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is likely to give rise to a perceived conflict of interest. For instance, could a direction to undertake a particular inquiry be seen to divert the resources of this office from a review of ASIO warrants?

The power of the Attorney-General to compel an inquiry would materially detract from the Inspector-General’s ability to assure the public, as well as Parliament, that the decision to conduct an inquiry is free from political influence. 40

The IGIS urged that those amendments be rejected. It might be preferable to retain item 35 so that the Attorney-General is given the power to request an inquiry under section 9 of the IGIS Act (which enables inquiries to be requested on additional matters to those covered under section 8), but also amend subsections 9(2) and (4) so that the IGIS is only required to comply with a request made under subsection 9(1) or (3) that was made by the Prime Minister.

Parliament may wish to consider additional legislative amendments to instead refer explicitly to the Attorney-General, in the same way as parts of the TIA Act.

Amendments to the IS Act

Security-related ministerial authorisations The IS Act contains specific authorisation requirements relating to the production of intelligence on Australian persons and activities that will, or are likely to, have a direct effect on Australian persons. Section 8 requires the ministers responsible for ASIS, AGO and ASD to each issue written directions to the heads of those agencies that require the agency to obtain a ministerial authorisation under section 9 before undertaking those activities.41 All authorisations made under section 9 require the relevant minister to be satisfied of a number of matters as set out in subsection 9(1). Subsection 9(1A) sets out additional requirements that must be met before a minister authorises certain activities that would include production of intelligence on an Australian person or one or more members of a class of Australian persons, or that would, or would be likely to, have a direct effect on an Australian person or one or more members of a class of Australian persons.

Paragraph 9(1A)(b) currently requires the minister responsible to obtain the agreement of the minister responsible for ASIO before authorising such activities if the Australian person or class of Australian persons is, or is likely to be, a ‘threat to security’ (where security has the same meaning as in the ASIO Act).

As part of the establishment of the Home Affairs portfolio, responsibility for administering the ASIO Act will be transferred from the Attorney-General to the Minister for Home Affairs.42 Items 62 to 66 will amend section 9 of the IS Act so that despite that change, ministerial authorisations currently requiring the agreement of the minister responsible for administering the ASIO Act will (subject to section 9C) continue to require the Attorney-General’s agreement. Items 70 to 75 will make consequential amendments to section 9C of the IS Act (which currently provides for authorisations that require the agreement of the minister responsible for administering the ASIO Act to be given without such agreement in certain circumstances).

Section 9A of the IS Act allows most ministerial authorisations to be given to ASIS, ASD and AGO by the Prime Minister, Defence Minister, Foreign Minister or Attorney-General if an emergency situation arises and the minister with responsibility for the agency is not readily available or contactable to consider making the usual authorisation under section 9. The Attorney-General will continue to be able to make an emergency authorisation, but because the Attorney-General will no longer be the minister responsible for ASIO, item 68 will amend subsection 9A(3) to add the minister responsible for administering the ASIO Act to the list of ministers able to make emergency authorisations.

Section 13B of the IS Act provides for ASIS to undertake an activity or series of activities to support ASIO in the performance of its functions if certain conditions are met. Section 13G allows the ministers responsible for ASIO and ASIS to jointly make written guidelines in relation to undertaking activities in accordance with section 13B.

40. IGIS, Submission to Parliamentary Joint Committee on Intelligence and Security, op. cit., p. 3. 41. Directions issued under section 8 are not publicly available, but a copy must be given to the IGIS as soon as practicable after they are given; IGIS Act, section 32B. 42. M Turnbull, ‘Second reading speech: Home Affairs and Integrity Agencies Legislation Amendment Bill 2017’, op. cit., p. 13151.

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Item 76 will insert proposed subsection 13G(1A) to require the ministers responsible for ASIO and ASIS to consult the Attorney-General before making guidelines under section 13G.

Referrals to the Parliamentary Joint Committee on Intelligence and Security Part 4 of the IS Act establishes and sets out the functions of the Parliamentary Joint Committee on Intelligence and Security. Under section 29, one of the Committee’s functions is to review any matter in relation to an intelligence agency referred to it by the minister responsible for an agency or a House of Parliament. Subsection 29(2) allows the Committee to request that a minister responsible for an agency refer a particular matter. Items 77 to 79 will amend section 29 so that the Committee may review a matter in relation to an intelligence agency referred to it by the Attorney-General, and allow it to request such a referral.

Concluding comments To offset the concentration of power associated with bringing together federal border protection, law enforcement and domestic security agencies in a new Home Affairs portfolio, the Government has proposed to strengthen the Attorney-General’s integrity function. Specifically, it is intended that the Attorney-General will continue to issue ASIO warrants and provide agreement for ASIS, ASD and AGO activities impacting Australians, and the IGIS, INSLM and Commonwealth Ombudsman will be moved from the Prime Minister and Cabinet portfolio to the Attorney-General’s portfolio. Parliament may wish to consider whether it would be preferable to give the enhanced integrity functions of the Attorney-General statutory footing by referring specifically to the Attorney-General in the ASIO Act, INSLM Act, IGIS Act, Ombudsman Act 1976 and the Law Enforcement Integrity Commissioner Act 2006.

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