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Intelligence and Security—Parliamentary Joint Committee—Review of proposed amendments to the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017—Report, March 2018


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March 2018 CANBERRA

PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

Review of proposed amendments to the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017

Parliamentary Joint Committee on Intelligence and Security

© Commonwealth of Australia

ISBN 978-1-74366-809-2 (Printed Version)

ISBN 978-1-74366-810-8 (HTML Version)

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License.

The details of this licence are available on the Creative Commons website: http://creativecommons.org/licenses/by-nc-nd/3.0/au/.

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Contents

Membership of the Committee .........................................................................................................v

Terms of Reference ...........................................................................................................................vii

The Report

1 The Committee's review .........................................................................................1

Appendix A. List of Submissions ..................................................................................11

v

Membership of the Committee

Chair

Mr Andrew Hastie MP

Deputy Chair

Hon Anthony Byrne MP

Members

Senator the Hon Eric Abetz

Senator David Bushby

Hon Mark Dreyfus QC, MP

Senator David Fawcett

Hon Dr Mike Kelly AM, MP

Mr Julian Leeser MP

Senator Jenny McAllister

Senator the Hon Penny Wong

Mr Jason Wood MP

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Terms of Reference

On 2 March 2018, the Attorney-General referred proposed Government amendments to the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017 to the Committee.

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1. The Committee's review

Introduction

1.1 The Home Affairs and Integrity Agencies Legislation Amendment Bill 2017 was introduced into the House of Representatives on 7 December 2017. The Prime Minister referred the provisions of the Bill to the Committee for review the following day.

1.2 On 26 February 2018, the Committee presented its report in the House of Representatives. In that report, the Committee noted that in addition to the four Acts amended by the Bill, legislative amendments to 33 Acts would be required to transfer Ministerial responsibilities as part of the establishment of the Home Affairs portfolio.

1.3 The Committee considered these amendments should be introduced to the Parliament as soon as possible.

1.4 In particular, the Committee recommended that amendments to the Australian Security Intelligence Organisation Act 1979 and Telecommunications (Interception and Access) Act 1979 to give effect to the Attorney-General’s ongoing role be introduced to the Parliament prior to the conclusion of debate on the Bill.

1.5 On 28 February 2018, the Prime Minister wrote to the Committee to advise that the Government accepted the Committee’s four recommendations in full. In his letter, the Prime Minister also advised that the Government would introduce amendments to the Bill to make changes to the 33 Acts affected by the machinery of government changes.

1.6 While amendments made in response to a Committee recommendation are not typically referred back for review, on 2 March 2018 the Attorney-General

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referred the Government’s set of proposed amendments to the Committee for review.

1.7 The Committee resolved to write to submitters to the first inquiry inviting them to make a submission. The proposed amendments were also placed on the Committee’s website. The Committee determined that it would not hold hearings for the review.

1.8 The Committee received five submissions, which are listed at Appendix A and can be found on the Committee’s website.

The proposed amendments

1.9 The proposed amendments include amendments 2 to 27, which are changes to Schedule 1 of the Bill to implement Committee recommendations 1 and 2 in its Advisory Report on the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017.

1.10 Amendment 28, which incorporates a new Schedule 2-Other Amendments contains:

 In Part 1, amendments to the following Acts:  Administrative Appeals Tribunal Act 1975  Administrative Decisions (Judicial Review) Act 1977  A New Tax System (Family Assistance) Act 1999  Anti-Money Laundering and Counter-Terrorism Financing Act 2006  AusCheck Act 2007  Australian Citizenship Act 2007  Australian Crime Commission Act 2002  Australian Federal Police Act 1979  Australian Security Intelligence Organisation Act 1979  Aviation Transport Security Act 2004  Crimes Act 1914  Crimes (Aviation) Act 1991  Crimes (Biological Weapons) Act 1976  Crimes (Currency) Act 1981  Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990  Criminal Code Act 1995  Criminology Research Act 1971  Customs Act 1901  Maritime Transport and Offshore Facilities Security Act 2003  Migration Act 1958  Offshore Petroleum and Greenhouse Gas Storage Act 2006

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 Ombudsman Act 1976  Paid Parental Leave Act 2010  Proceeds of Crime Act 1987  Proceeds of Crime Act 2002  Public Order (Protection of Persons and Property) Act 1971  Service and Execution of Process Act 1992  Social Security Act 1991  Surveillance Devices Act 2004  Telecommunications Act 1997  Telecommunications (Interception and Access) Act 1979  Terrorism Insurance Act 2003.  In Part 2, amendments to the Telecommunications (Interception and Access)

Act 1979 contingent on the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Act 2018, which is currently before the Parliament.  In Part 3, amendments to the Crimes Act 1914 contingent on the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2018, which is currently before the Parliament.  In Part 4, amendments to the Telecommunications Act 1997 contingent on the Telecommunications and Other Legislation Amendment Act 2017, Schedule 1 of which commences on 18 September 2018, and  In Part 5, Transitional Rules.

1.11 The Department of the Prime Minister and Cabinet noted in its submission that:

In summary, except for minor, machinery changes, the proposed amendments do not change the substance or form of the amended provisions. The majority of the changes simply amend Ministerial and Departmental references in legislation to clarify the new arrangements. Those amendments do not create any new powers nor change the scope of existing powers.1

1.12 In addition, the Department noted that other amendments ‘affect provisions that have become either redundant, unworkable or would operate less than optimally with the new arrangements’, and fall into the following categories:

 reframing provisions that no longer make sense given the change in Ministerial responsibilities,  deleting references that are redundant with the new arrangements, and

1 Department of the Prime Minister and Cabinet, Submission 1, p. 1.

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 ensuring more than one Minister or Department can exercise a function or power where appropriate.2

Matters raised in evidence

1.13 The Committee received responses from five of the seven submitters to its original inquiry (including the Department of the Prime Minister and Cabinet).

1.14 Commenting upon the amendments in full, the Office of the Inspector-General of Intelligence and Security indicated that it had no concerns about the proposed amendments concerning the Inspector-General of Intelligence and Security Act 1986 or the functions of the Inspector-General of Intelligence and Security.3

1.15 The Office advised that it understood that:

[C]hanges to the Administrative Arrangements Order to transfer administrative responsibility for the IGIS from the Prime Minister to the Attorney-General are to commence at the same time as changes to transfer administrative responsibility for ASIO from the Attorney-General to the Minister for Home Affairs. We also understand that these administrative changes would occur on, or shortly after, the commencement of the Bill, if enacted. We support this sequencing, which is material to the substantive and perceived independence of this Office.4

1.16 The Law Council of Australia advised that it had been unable to comprehensively examine the possible implications of the Bill in the available timeframe but offered comments on three issues.5

1.17 The Law Council noted that the proposed amendments would transfer responsibility for matters that have the potential to restrict a person’s liberty without being found guilty of a criminal offence, such as control order applications and continuing detention orders, from the Attorney-General to a range of Ministers within the Home Affairs portfolio. The Law Council considered that:

2 Department of the Prime Minister and Cabinet, Submission 1, p. 2.

3 Inspector-General of Intelligence and Security, Submission 2, p. 1.

4 Inspector-General of Intelligence and Security, Submission 2, p. 1.

5 Law Council of Australia, Submission 4, p. 1.

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Given the extraordinary nature of these powers and the potential for restrictions on liberty involved, the Attorney-General should retain responsibility for their exercise.6

1.18 The Law Council offered the following reasons for this view:

As the First Law Officer with broader policy responsibility for the administration of the criminal justice system and integrity functions, the Law Council considers it appropriate for the Attorney-General to continue to exercise powers and functions relating to potential restrictions on liberty. This approach would also be consistent with the proposed amendments for the Attorney-General to retain responsibility for the powers and functions that have the potential to restrict liberty under the Australian Security Intelligence Organisation Act 1979 (Cth) (e.g. questioning, and questioning and detention warrants). As a minimum, the agreement (i.e. not simply a consultation) of the Attorney-General should be obtained prior to the bringing of such applications and for matters subsequently arising out of proceedings.7

1.19 In addition, the Law Council stated that:

[W]here there is an intention that the Attorney-General retain specific functions there should not be a possibility to refer these powers as a matter of course to the broad range of Ministers including more junior ministers in the Home Affairs portfolio (as section 19 of the Acts Interpretation Act 1901 (Cth) would permit). This is because the exercise of the powers would have been determined by the Parliament to be crucially performed by the Attorney-General as First Law Officer with integrity and oversight functions.8

1.20 The Law Council also reiterated its concerns that there be adequate safeguards around the secondary use and disclosure of personal information. It recommended that any sharing be done in accordance with the Australian Privacy Principles and that legislation and protocols be developed in consultation with the Australian Privacy Commissioner.9

1.21 In his response, Mr Geoff Spring of the Centre for Disaster Management and Public Safety at the University of Melbourne offered support for the

6 Law Council of Australia, Submission 4, pp. 1-2.

7 Law Council of Australia, Submission 4, p. 2.

8 Law Council of Australia, Submission 4, p. 2.

9 Law Council of Australia, Submission 4, p. 2.

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proposed amendments to the Telecommunications and Other Legislation Amendment Act 2017.10

1.22 Ms Valerie Heath expressed concern about the creation of a ‘super ministry’ and urged the Committee to recommend against passage of the Bill. Ms Heath recommended safeguards concerning the appointment and term of Ministers and Departmental Secretaries in the Home Affairs portfolio, and budget allocation for oversight bodies.11

1.23 Ms Heath also submitted that the proposed amendments should be

limited so as to enhance the Attorney-General’s oversight role and better separate the oversight decisions from the day to day functions of the super ministry.12

1.24 In particular, Ms Heath argued that:

 the Attorney-General should continue to be the certifying authority under section 38(2) of the Australian Security Intelligence Organisation Act 1979 for withholding notice of an adverse or qualified security assessment,

 amendments to subsections 38A and 39B of the Administrative Appeals Tribunal Act 1975 (concerning security certificates) should not proceed, and section 43AAA (AAT finding on Security Division review of security assessment) should be amended to refer to both the Minister for Home Affairs and the Attorney-General,

 the Attorney-General should continue to be the minister empowered to give notices to the minister responsible for social security payments under the Social Security Act 1991, and family assistance payments under section 57GJ of the A New Tax System (Family Assistance) Act 1999 and the Paid Parental Leave Act 2010,

 the Attorney-General should continue to be the minister who may, by legislative instrument, determine that an offence is a ‘national security offence’ under section 6A of the Australian Citizenship Act 2007,

 further consideration should be given to ‘whether and why it is desirable’ that the Home Affairs Minister should have a rule-making function for regulations within the responsibility of the Australian Federal Police - for example, Criminal Code Act 1995, Crimes (Biological

10 Centre for Disaster Management and Public Safety, Submission 3, p. 1

11 Ms Valerie Heath, Submission 5, p. 2.

12 Ms Valerie Heath, Submission 5, p. 3.

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Weapons) Act 1976, Crimes (Currency) Act 1981, and Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990,  the Attorney-General should be the rule-maker for the Criminal Code Act 1995,  if the Minister for Home Affairs is to assume the functions and powers

of the Attorney-General for authorising applications for detention and control orders, a new regime facilitating oversight by the Attorney-General should be introduced,  the Attorney-General should be the responsible Minister for the Proceeds of Crime Act 1978 and Proceeds of Crime Act 2002,  functions under Part I and Part II of the Public Order (Protection of Persons and Property) Act 1971 should be expressly given to the Attorney-General to administer,  further consideration should be given to the introduction of appropriate oversight measures for the Home Affairs Minister’s powers under the Telecommunications Act 1997, and  the Attorney-General should be the minister empowered to obtain information from carriers, carriage service providers and intermediaries under the Telecommunications and Other Legislation Amendment Act 2017.13

1.25 Ms Heath suggested that, in light of some amendments, it may be desirable to amend other Acts, such as the Judiciary Act 1903, Administrative Appeals Tribunal Act 1975 and Law Enforcement Integrity Commissioner Act 2006, to clarify that the only Minister responsible for the administration of those Act ‘may be the Attorney-General and that the Attorney-General may not at the same time be the Minister for Home Affairs or an assistant Minister for Home Affairs’.14

Committee comment

1.26 The Committee has considered the proposed Government amendments to the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017. The Committee thanks contributors for their submissions.

1.27 The Committee notes that machinery of government changes are a matter for the government of the day. As such, it is not within the remit of the Committee to consider the broader policy decisions behind the changes, but to scrutinise the amendments as proposed.

13 Ms Valerie Heath, Submission 5, pp. 3-5.

14 Ms Valerie Heath, Submission 5, p. 5.

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1.28 The Committee has reviewed the proposed amendments and considers they are consistent with the Government’s statements that they amend Ministerial and Department references to transfer responsibility for the Acts identified above and amend provisions that either no longer make sense or are redundant, or to ensure that more than one Minister can exercise a function.

1.29 The Committee notes the range of administrative matters which underpin any portfolio responsibility changes and consequently the large number of legislative amendments proposed. The value of the Committee’s inquiry is the opportunity for additional scrutiny to ensure that each of the amendments and the division of powers and responsibilities accord with the policy intent, as set out in the Prime Minister’s second reading speech. The Committee notes that the Prime Minister stated that:

The Attorney-General will enhance his role as first law officer. He will retain responsibility for the administration of the criminal justice system including formal international crime cooperation mechanisms, while taking on a suite of oversight responsibilities with our intelligence community.

1.30 In addition, the Prime Minister stated that the Attorney-General will continue to sign off on all ASIO warrants.

1.31 The Committee notes the proposed amendments transfer responsibility for the following from the Attorney-General to the Minister for Home Affairs:

 certifying under subsection 38(2) of the ASIO Act for withholding notice of an adverse or qualified security assessment;  sections 38A and 39B of the AAT Act, and for notifications under section 43AA of that Act;  giving notice to the minister responsible for social security payments

under the Social Security Act, and family assistance payments under section 57G of the A New Tax System (Family Payments) Act and Paid Parental Leave Act;  the Proceeds of Crime Act 1978 and Proceeds of Crime Act 2002;  consenting to requests for interim control orders.

1.32 In relation to the transfer of these powers, the Committee notes the concerns raised by some, and considers that further clarification of the respective roles of the Minister for Home Affairs and the Attorney-General would assist the Parliament in its debate of the proposed amendments.

1.33 The Committee considers that the Government should keep the relationship between security and oversight under constant review to ensure the division

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of responsibility between the Minister for Home Affairs and the Attorney-General remains appropriate.

1.34 The Committee will monitor the impact of the revised ministerial and departmental arrangements in its annual agency administration and expenditure inquiries, and review of the AFP’s performance of its functions under Part 5.3 of the Criminal Code.

Recommendation 1

1.35 The Committee recommends that the proposed amendments to the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017 be introduced and passed by the Parliament.

Mr Andrew Hastie MP

Chair

March 2018

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A. List of Submissions

1 Department of the Prime Minister and Cabinet

2 Inspector-General of Intelligence and Security

3 Centre for Disaster Management and Public Safety, University of Melbourne

4 Law Council of Australia

5 Ms Valerie Heath