Posted 26/08/2021 by Karen Elphick
The purpose of the Foreign Intelligence Legislation Amendment Bill 2021 (the Bill) is to amend the Telecommunications (Interception and Access) Act 1979 (TIA Act) and the Australian Security Intelligence Organisation Act 1979 (ASIO Act) to broaden the capacity of intelligence agencies to collect intelligence from domestic sources about foreign threats to Australia.
The Bill was introduced in the House of Representatives on 25 August 2021 and passed the same day. It has been listed for debate in the Senate on 26 August 2021. This FlagPost is published in lieu of a Bills Digest.
Purpose and content of the Bill
The Government has introduced the Bill to close what the Minister described as ‘two critical gaps in the foreign intelligence collection framework’. The proposed changes will:
- update the foreign communications warrant to account for changes in the modern communication environment that make it extremely difficult to determine the geographic location of a sender or recipient of a communication and
- address a legal gap where foreign intelligence can be collected on an Australian working for a foreign power offshore, but that same intelligence cannot be collected in Australia. This second change was recommended by the Richardson Review (Recommendation 5).
Foreign communications warrants
Foreign communications warrants are only for the purpose of foreign intelligence; currently the interception of domestic communications (communications that both start and end within Australia) is prohibited, even where that interception is inadvertent or unavoidable (section 11C of the TIA Act).
The reforms will allow intelligence agencies to intercept communications, including where the geographic location of the sender and recipient cannot be determined prior to interception. The Bill will not permit intelligence agencies to deliberately target domestic communications.
The existing safeguards for foreign communications warrants will continue to apply. In addition, among other safeguards, proposed subsection 11C(6) of the TIA Act (at item 10 of Schedule 1 to the Bill) requires the Attorney‑General to issue mandatory procedures to screen for domestic communications that may have been incidentally intercepted.
Destruction of irrelevant intercepted communications
Proposed subsection 11C(5) of the TIA Act (at item 9 of Schedule 1) provides that if a communication obtained under a foreign intelligence warrant is not relevant, the Director‑General of Security (the head of ASIO) must cause all records of the communication to be destroyed, unless the communication relates, or appears to relate, to activities that present a significant risk to a person’s life. In these circumstances, the Inspector-General of Intelligence and Security (IGIS) must be notified.
Foreign intelligence collection by an Australian
The Explanatory Memorandum notes that there are circumstances where Australian citizens and permanent residents are of legitimate foreign intelligence interest. For example, where an Australian citizen is acting as an agent of a foreign state. The Explanatory Memorandum helpfully reviews the history of the foreign communications warrant and explains the policy behind the change.
Human rights
A number of human rights are engaged by the Bill; however, the Explanatory Memorandum explains at pages 12–21 that the Bill is compatible with human rights because it promotes the protection of human rights. To the extent that the Bill may limit human rights, the Government assesses that those limitations are reasonable, necessary and proportionate.
Urgency
The Minister stated in the second reading speech:
It is vital these amendments are made urgently. Each day these amendments are not in place risks our agencies missing critical foreign intelligence about threats to Australia and Australians.
The proposed amendments are important, technical, and will broaden surveillance powers to collect intelligence from Australians. Parliament has been given very little time to examine the Bill.
Based on the public information tabled in Parliament, it is not possible to identify why this legislation is so urgent that the Senate Scrutiny of Bills Committee and Parliamentary Joint Committee on Human Rights have not been given time for their usual scrutiny processes.
The changes in the communications environment that make identifying the geographic location of the sender or recipient difficult have existed for several years and the Government Response to the 2019 Richardson Review was published in December 2020.
Parliamentary Joint Committee on Intelligence and Security
Unusually, the Bill was referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for private review and report on Friday 20 August 2021. The Bill and Explanatory Memorandum were referred on an embargoed basis as the Bill had not yet been tabled in the Parliament. The PJCIS held a classified briefing on Monday 23 August 2021 with officials from relevant agencies. No submissions have been published.
The PJCIS issued an Advisory Report on the Bill on 24 August 2021.
PJCIS comment on unusual expedited private inquiry
The PJCIS noted that it was not ordinarily ‘the preference of the Committee to conduct private inquiries nor to do so on an expedited basis’:
The Committee only agreed [to inquire into the Bill] because of the unique circumstances of this Bill and the additional risks to Parliamentary sittings caused by the current COVID outbreaks.
The PJCIS acknowledged it was briefed and was satisfied it had been appropriately consulted:
The Committee appreciates the time sensitive nature of this legislation, and is grateful that despite this, the Government appropriately consulted with committee members and provided classified briefings necessary for the committee to discharge its duties. Although required to do so quickly, the Committee has discharged its responsibilities to the parliament by robustly testing the rationale for the bill and each of the provisions of the bill. [Advisory Report , p. 7]
The PJCIS did not explain why the legislation is time sensitive.
PJCIS recommendations
The PJCIS believed the Bill would provide the National Intelligence Community with the necessary powers and tools to protect Australia and Australians against threats to their security. It recommended that, subject to two amendments, the Bill be passed. There were no dissenting reports. The two amendments recommended were:
Consultation with oversight bodies
The Richardson Review recommended early consultation with oversight bodies over amendments to intelligence legislation:
The IGIS and Ombudsman should be consulted as a matter of course in relation to all proposed amendments to intelligence legislation affecting matters within their jurisdiction to ensure that oversight issues can be addressed upfront. [Volume 3, pp. 264–267]
It is not known whether any oversight bodies were consulted in development of the Bill.
Financial implications
The Explanatory Memorandum states that the Bill will have no direct financial impact.