- Committee comment
- The Parliamentary Joint Committee on Intelligence and Security is committed to upholding Australia's national security interests by ensuring that the country's intelligence agencies have the necessary powers and resources to effectively protect the nation.
- The Committee recognises the vital role that security clearances play in safeguarding sensitive information and assets. Our focus is on ensuring that the security clearance process is robust and effective, while also respecting the rights and privacy of individuals.
- The security clearance process is designed to ensure that only individuals who are deemed suitable and trustworthy are granted access to sensitive national security information. Obtaining a high-level clearance involves an extensive background check, which includes a review of an individual's criminal record, employment history, and financial status, among other factors. It is a necessarily intrusive process but one that, the Committee notes, is undertaken with consent. In that sense, the intrusiveness of the security clearance process differs entirely from the intrusiveness of the use of covert powers that the Committee is often called upon to review.
- At the same time, the Committee recognises that the security clearance process must be fair and, to the extent possible, transparent. Individuals who are subject to the process have the right to procedural fairness, including the right to challenge adverse findings and to have their case reviewed by an independent body. The Committee is therefore satisfied with the merits and other review processes proposed by the Bill and the involvement of the IGIS in oversight of the powers and functions exercised under the Bill.
- The Committee also notes, and supports, the inclusion of the new Quality Assurance Office within the Office of National Intelligence and agrees with ONI that this should ‘drive the uplift of the mandatory insider threat capability across government agencies that sponsor TS-PA security clearances.
Delegation of functions and powers to ASIO affiliates
2.6The Committee’s consideration of this Bill overlapped with its Review of the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023 (NSLA Bill review). Evidence received in the course of the NSLA Bill review sparked Committee concerns in relation to that Bill providing defences to serious criminal offences, to the broadly-defined category of ‘ASIO affiliates’.
2.7This Bill similarly gives rise to concerns about extending laws to ‘ASIO affiliates’, this time in the context of the potential delegation of security clearance functions to them.
2.8As set out in the previous chapter the Director-General may, by writing, delegate any or all of the Director-General’s powers and functions to an ASIO affiliate in two ways:
- to an ASIO affiliate or
- to an ASIO affiliate, who holds, or is acting in, a designated position.
- The Committee’s concern is that human sources or agents assisting ASIO under ‘other arrangements’, rather than formal contracts, are captured by the term ‘ASIO affiliate’ and this Bill would therefore allow a range of security clearance-related functions to be delegated to them.
- Whist the Committee accepts ASIO’s evidence that a human source or agent would never be used as an affiliate to carry out security clearance functions, the legal possibility of this occurring still exists.
- In the NSLA Bill review the Committee recommended as follows:
The Committee recommends that the Explanatory Memorandum for the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023 be amended, or a supplementary Explanatory Memorandum presented, acknowledging that human sources are included in the scope of an ASIO affiliate for the purposes of the proposed new definition of ASIO Officer in section 473.1 of the Criminal Code Act 1995.
The Committee further recommends that in the upcoming review of the Minister’s Guidelines made under section 8A of the Australian Security Intelligence Organisation Act 1979, the Minister for Home Affairs consider whether additional safeguards are required to ensure appropriate control by ASIO over the activities of its affiliates, including human sources or any affiliates working under ‘other arrangements’, in light of new legal defences to certain criminal acts becoming applicable to them.
2.12In the case of this Bill, the Committee recommends that the Explanatory Memorandum for the Australian Security Intelligence Organisation Amendment Bill 2023 be amended, or a supplementary Explanatory Memorandum presented, specifying that, notwithstanding the Bill’s authority to delegate functions and powers to ASIO affiliates, human sources or agents will not be used to undertake security vetting:
2.13The Committee recommends that the Explanatory Memorandum for the Australian Security Intelligence Organisation Amendment Bill 2023 be amended, or a supplementary Explanatory Memorandum presented, specifying that, notwithstanding the Bill’s authority to delegate functions and powers to ASIO affiliates, human sources or agents will not be used to undertake security vetting.
Conclusion
2.14In conclusion, the Committee reviewed this Bill with a view to ensuring that the security clearance process is robust, fair, and effective. Subject to the concern raised above, the Committee is satisfied that the Bill protects Australia's national security interests, while also upholding the rights and privacy of individuals.
2.15Following the implementation of the above recommendation, the Committee recommends that the Bill be passed by the Parliament.
2.16The Committee recommends that, following implementation of the recommendation in this report, the Australian Security Intelligence Organisation Amendment Bill 2023 be passed by the Parliament.
Mr Peter Khalil MP
Chair
XX May 2023