Introductory Info
Date introduced: 9 December 2020
House: House of Representatives
Portfolio: Attorney-General
Commencement: Sections 1–3 commence on Royal Assent. Schedule 1 commences on the day after Royal Assent. Commencement of other provisions is complex and is discussed in detail in the body of the Digest. See Table 1: Notes on commencement provision
The
Bills Digest at a glance
Background
The Intelligence Oversight and Other Legislation Amendment
(Integrity Measures) Bill 2020 (the Bill) is part of the Government response to
two major reports:
-
the 2017 Independent Intelligence Review, which
recommended expansion of the oversight jurisdiction of the Inspector‑General
of Intelligence and Security (IGIS) to include the intelligence functions of
the Australian Criminal Intelligence Commission (ACIC), the Australian Federal
Police (AFP), Australian Transaction Reports and Analysis Centre (AUSTRAC) and
the Department of Home Affairs and
-
the 2019 Richardson Review, which recommended IGIS
oversight jurisdiction only be expanded to the intelligence functions of ACIC
and AUSTRAC.
Expanded oversight by IGIS of ACIC and AUSTRAC
The Bill makes amendments to the Inspector‑General
of Intelligence and Security Act 1986 (the IGIS Act) to expand the
powers of the IGIS to conduct oversight of the intelligence functions of the
ACIC and AUSTRAC.
It should be noted that the Surveillance
Legislation Amendment (Identify and Disrupt) Act 2021 provided IGIS,
from 4 September 2021, with more limited oversight of ACIC (and the AFP), in
relation to network activity warrants. The Bill will expand IGIS’s oversight of
ACIC and introduce oversight of AUSTRAC.
Since the commencement of related legislation which was
before Parliament at the time of its introduction, the following contingent
parts of Schedule 2 will have no effect: Part 1 Division 1; Part
2 Division 1; and Part 3 Divisions 1–3. See Table 1 for
details.
Independence of IGIS
The Bill restricts eligibility for appointment as Inspector-General
of Intelligence and Security (Inspector-General) of IGIS. The head or deputy
head of an intelligence agency within the Inspector-General’s jurisdiction
cannot be appointed as the Inspector-General immediately following their
service in an intelligence agency. No minimum time period is set between
service as head or deputy head of an agency and eligibility for appointment as
Inspector-General.
Repeal of preconditions requiring connection to Australia
for IGIS inquiry
The Bill repeals a prohibition on the IGIS inquiring into
a matter that occurred outside Australia unless approval is given by a
responsible Minister or the Prime Minister.
The Bill also permits the IGIS to commence own-motion
inquiries into complaints made by persons who are not Australian citizens or
permanent residents.
Information sharing by integrity bodies and avoiding
duplication of oversight
The Bill amends the IGIS Act to deal with
relationships between the Office of the Inspector-General of Intelligence and
Security (Office of the IGIS) and other agencies within the Australian Intelligence
Community (AIC), information sharing, and avoiding duplication of oversight.
Expanded oversight by PJCIS
of intelligence functions of AUSTRAC
The Bill also proposes amendments to the Intelligence
Services Act 2001 (the IS Act) to expand Parliamentary Joint
Committee on Intelligence and Security (PJCIS) oversight to the intelligence
functions of AUSTRAC.
Several submitters to the Richardson Review recommended
further expansion of the function of the PJCIS to include direct oversight of operational
activities; however, Richardson recommended against such expansion.
Purpose and
structure of the Bill
The purpose of the Intelligence
Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020 (the
Bill) is to make amendments to the:
- Inspector‑General
of Intelligence and Security Act 1986 (the IGIS Act) and
- Intelligence
Services Act 2001 (the IS Act) and
to make consequential amendments to a large number of
Commonwealth statutes.
Schedule 1—Amendments
Expand
IGIS jurisdiction to ACIC and AUSTRAC
Part 1 of Schedule 1 of the Bill proposes
amendments to the IGIS Act and the IS Act to:
-
expand the Inspector‑General of Intelligence and
Security’s (IGIS’s) jurisdiction to the intelligence functions of the ACIC and
AUSTRAC (noting that the IGIS’s jurisdiction was recently expanded to oversight
of ACIC functions or powers in relation to network activity warrants by Part 2
of Schedule 2 to the Surveillance
Legislation Amendment (Identify and Disrupt) Act 2021)[1]
-
expand PJCIS oversight to the intelligence functions of AUSTRAC
(items 134–149 of Schedule 1)
-
clarify the position of consultants, secondees from
Commonwealth, state or territory agencies and police forces and contractors
-
implement measures to improve and streamline IGIS reporting
procedures and
-
improve clarity, modernise drafting expressions and remove
redundant provisions.
Ensure
IGIS officials have access to protected information
Part 2 of Schedule 1 proposes consequential
amendments to 17 different Acts to ensure that information that is protected by
secrecy offences under those Acts can be disclosed to IGIS officials performing
duties or functions, or exercising powers, as IGIS officials.
Schedule
2—Contingent amendments
The purpose of the contingent amendments is to:
Three related Bills were before Parliament when this Bill
was introduced and had provisions which interacted with the provisions proposed
in this Bill. That situation made the drafting in this Bill complex because the
technical instructions for achieving the intended legislation depend on whether
this Bill or any of the related Acts commences first.
Accordingly, some of the important substantive provisions
of the Bill, including the main expansion of the jurisdiction of the IGIS, are
contingent amendments (that is, contingent of the timing of the passage and commencement
of the three related Bills) and contained in Schedule 2.
Each of those Bills has now been enacted. The three
related Bills were:
Parts of Schedule 2 that are redundant
The following parts of Schedule 2, because they
will never commence, will have no effect: Part 1 Division 1; Part 2
Division 1; and Part 3 Divisions 1–3.
Table 1 below collates the effect of the
commencement of the three related Acts.
Table 1: Notes on commencement
| Provisions |
Commencement |
Notes |
|
1. Sections 1 to 3
and anything in this Act not elsewhere covered by this table
|
The day this Act receives the Royal Assent.
|
|
|
2. Schedule 1, Part 1
|
The day after this Act receives the Royal Assent.
|
|
|
3. Schedule 1, Part 2
|
Immediately after the commencement of the provisions
covered by table item 2.
|
|
|
4. Schedule 2, Part 1, Division 1
|
Immediately after the commencement of the provisions
covered by table item 2.
However, the provisions do not commence at all if
Part 4 of Schedule 1 to the Anti‑Money Laundering and
Counter‑Terrorism Financing and Other Legislation Amendment Act 2020
commences before that time.
|
Part 4 of Schedule 1 to the AML CTF Amendment Act commenced on 17 June 2021. Therefore these
provisions will never commence.
|
|
5. Schedule 2, Part 1, Division 2
|
The later of:
(a) immediately after the commencement of the
provisions covered by table item 2; and
(b) the commencement of Part 4 of
Schedule 1 to the Anti‑Money Laundering and Counter‑Terrorism
Financing and Other Legislation Amendment Act 2020.
However, the provisions do not commence at all if the event mentioned in
paragraph (b) does not occur.
|
Paragraph (a) will clearly be later (given that Part 4
of Schedule 1 to the AML CTF Amendment Act commenced on
17 June 2021), so the Division will commence the day after the Bill
receives Royal Assent, immediately after the commencement of Part 1 of
Schedule 1 to the Bill.
|
|
6. Schedule 2, Part 2, Division 1
|
Immediately after the commencement of the provisions
covered by table item 2.
However, the provisions do not commence at all if
Part 3 of Schedule 1 to the Australian Security Intelligence
Organisation Amendment Act 2020 commences before that time.
|
Part 3 of Schedule 1 to the ASIO
Amendment Act 2020 commenced on 7 September 2020. Therefore these provisions will never commence.
|
|
7. Schedule 2, Part 2, Division 2
|
The later of:
(a) immediately after the commencement of the
provisions covered by table item 2; and
(b) the commencement of Part 3 of
Schedule 1 to the Australian Security Intelligence Organisation
Amendment Act 2020.
However, the provisions do not commence at all if
the event mentioned in paragraph (b) does not occur.
|
Paragraph (a) will clearly be later, (given that
Part 3 of Schedule 1 to the ASIO Amendment Act 2020
commenced on 7 September 2020), so the Division will commence the day after
the Bill receives Royal Assent, immediately after the commencement of Part 1
of Schedule 1 to the Bill.
|
|
8. Schedule 2, Part 3, Division 1
|
Immediately after the commencement of the provisions
covered by table item 2.
However, the provisions do not commence at all if
Part 2 of Schedule 2 to the Surveillance Legislation Amendment
(Identify and Disrupt) Act 2020 commences before that time.
|
Part 2 of Schedule 2 to the SLAID Act commenced
on 4 September 2021. Therefore
these provisions will never commence.
|
|
9. Schedule 2, Part 3, Division 2
|
Immediately before the commencement of Part 2
of Schedule 2 to the Surveillance Legislation Amendment (Identify and
Disrupt) Act 2020.
However, the provisions do not commence at all if
that Part commences before the commencement of the provisions covered by
table item 2.
|
Part 2 of Schedule 2 to the SLAID Act commenced
on 4 September 2021. Therefore
these provisions will never commence.
|
|
10. Schedule 2, Part 3, Division 3
|
Immediately after the commencement of Part 2 of
Schedule 2 to the Surveillance Legislation Amendment (Identify and
Disrupt) Act 2020.
However, the provisions do not commence at all if
that Part commences before the commencement of the provisions covered by
table item 2.
|
Part 2 of Schedule 2 to the SLAID Act commenced
on 4 September 2021. Therefore
these provisions will never commence.
|
|
11. Schedule 2, Part 3, Division 4
|
Immediately after the commencement of the provisions
covered by table item 2.
However, the provisions do not commence at all if
Part 2 of Schedule 2 to the Surveillance Legislation Amendment
(Identify and Disrupt) Act 2020 does not commence before that time.
|
Part 2 of Schedule 2 to the SLAID Act commenced
on 4 September 2021. Therefore this Division will commence the day after
the Bill receives Royal Assent, immediately after the commencement of Part 1
of Schedule 1 to the Bill.
|
|
12. Schedule 3
|
At the same time as the provisions covered by table
item 2.
|
|
Schedule 3—Application and transitional provisions.
Schedule 3 contains application and transitional
provisions. Among other provisions, where an IGIS inquiry is in response to a
complaint, the amendments would apply to any complaints made after the Bill
commences, and to complaints made before the Bill commences where the IGIS has
not completed any preliminary inquiries (under section 14 of the IGIS
Act) or where the IGIS has not decided whether to commence an inquiry.
Background—Oversight of the National Intelligence Community
The Australian Intelligence Community (AIC) comprises the
six main intelligence agencies as illustrated in Figure 1 below.
Figure 1: The Australian Intelligence Community
Source: Office
of National Intelligence
(ONI), republished at J Blaxland, ‘Explainer: how the Australian
intelligence community works’, The Conversation, 10
May 2018.
The National Intelligence Community (NIC) is a more recent
concept developed in response to the findings of the 2017 Independent
Intelligence Review (2017 IIR)[6]
and comprises the six AIC agencies, as well as AUSTRAC, ACIC and the
intelligence functions of the AFP, and the Department of Home Affairs (Home
Affairs).[7]
See Figure 2 below.
Figure 2: The National Intelligence Community
Source: Office
of National Intelligence (ONI), ‘The National Intelligence Community’, ONI website.
Oversight bodies
Australia’s intelligence oversight system consists of a
number of specialised bodies independent of the Government and each other and
the agencies they oversee. These are sometimes referred to as the integrity
bodies:
-
the Office of the Inspector‑General of Intelligence and
Security (IGIS)
-
the Independent National Security Legislation Monitor (INSLM)
-
the Independent Reviewer of Adverse Security Assessments (IRASA)
-
Commonwealth Ombudsman (Ombudsman)
-
Australian Commission for Law Enforcement Integrity (ACLEI)
-
Parliamentary committees (in particular, the PJCIS and the
Parliamentary Joint Committee on Law Enforcement (PJCLE)).[8]
The
role of the Inspector-General
The Office of the IGIS is an independent statutory agency
which reviews the activities of the six agencies of the AIC. The functions
of the Inspector-General are prescribed under sections 8, 9 and 9A of IGIS
Act.[9]
The primary role of the Inspector-General is to assist
Ministers in overseeing and reviewing the activities of Commonwealth
intelligence agencies for:
-
Legality: intelligence agencies operate within and comply
with the legislation governing their activities, and with ministerial
guidelines and directives
-
Propriety: the use of powers by intelligence agencies is
appropriate and acceptable in the circumstances
-
Human rights: the activities of intelligence agencies are
consistent with and respect human rights.[10]
The Office of the IGIS conducts its review and oversight
of intelligence agencies through inspections, inquiries, and investigations
into complaints.
Inspections of agencies activities and processes are designed
to monitor agencies’ governance, compliance and control frameworks and to
identify issues. Inquiries can be conducted into matters of concern, and the
IGIS has strong independent investigative powers similar to those of a royal
commission. These include the power to compel persons to answer questions and
produce documents, to take sworn evidence, and to enter agency premises.
IGIS can also investigate complaints made by members of the
public or intelligence agency staff, about the activities of intelligence
agencies.[11]
The Office of the IGIS also liaises with other domestic
accountability and integrity agencies, including: ACLEI, Australian Human
Rights Commission (AHRC), Inspector-General of the Australian Defence Force,
Office of the Australian Information Commissioner and Office of the Commonwealth
Ombudsman.[12]
A former
judge of the Federal Court of Australia, Dr Christopher Jessup, was the Acting Inspector-General
from 18 January 2021 and was appointed to a five-year term commencing 8 February
2021.[13]
Prior to
the 2017 IIR and the formation of the NIC, IGIS had no oversight role of
agencies outside the AIC. Oversight coverage of the new NIC members (the AFP,
ACIC, Home Affairs and AUSTRAC) prior to the 2017 IIR is shown in Table 2.
Table 2: Oversight of the AFP, ACIC, Home Affairs and AUSTRAC prior to 2017 IIR
Source:
Richardson Review, Volume 3: Information, Technology,
Powers and Oversight,
op. cit., p. 259.
Background—Reviews and reform of intelligence legislation
The 2017 Independent Intelligence Review
The 2017 IIR recommended far-reaching changes to Australia’s intelligence
bodies:
The reviewers made 23 recommendations relating to structural
arrangements, capability and resourcing, legislation, and oversight. They also
judged that looking ahead, the AIC construct would become increasingly
artificial, and that a more useful frame of reference would be the National
Intelligence Community (NIC) …
The 2017 Review also recommended that the jurisdiction of the
two key oversight bodies for the intelligence community—the Parliamentary Joint
Committee on Intelligence and Security (PJCIS) and the Inspector-General of
Intelligence and Security (IGIS)—be expanded …[15]
It was a key recommendation of the 2017 IIR that the IGIS
oversight be expanded to include the ACIC, AFP, AUSTRAC and Home Affairs.[16]
This would give IGIS oversight of all 10 agencies within the NIC, with
oversight of the AFP, ACIC and Home Affairs limited to their intelligence
functions (reflecting that the role of these agencies is not limited to
intelligence gathering and IGIS should not be given oversight over their other
activities).[17]
In preparation for the expansion of its role, the Office
of the IGIS has been building its relationships with, and understanding of, the
activities of ACIC, AFP, AUSTRAC and Home Affairs and during 2019–20 was
developing interim inspection plans.[18]
It has engaged with other accountability and integrity agencies on measures to
ensure that future changes to oversight processes are complementary and avoid
overlap wherever possible.
The Office of the IGIS has reported that
agreement-in-principle has been reached and set out in a Statement of
Cooperation. It plans to finalise the Statement of Cooperation following
legislation to extend the oversight jurisdiction of the Inspector-General.[19]
Formation
of the Department of Home Affairs
Although the creation of Home Affairs was not a
recommendation of the 2017 IIR,[20]
that machinery of government reform was framed as part of the response to the
2017 IIR by the then Prime Minister, Malcolm Turnbull. The announcement on 18
July 2017[21]
of the creation of Home Affairs referred to, and shortly preceded the public
release of, the 2017 IIR. Prime Minister Turnbull also announced at that time
that the Government would strengthen the Attorney‑General’s oversight of
the AIC and the agencies in the Home Affairs portfolio.[22]
There has been considerable public discussion of the
overall impact of the machinery of government reforms and the functioning and
oversight of the intelligence agencies.[23]
The
2019 Richardson Review
In June 2018, Dennis Richardson was appointed Reviewer to
comprehensively examine the effectiveness of the legislative framework for the
NIC and prepare findings and recommendations for any reforms. Richardson
reported to the Attorney-General in December 2019. The four volumes of the unclassified
version of the Comprehensive Review of the Legal Framework of the National
Intelligence Community[24]
(the Richardson Review) and the Commonwealth Government Response[25]
(Government Response) were tabled in Parliament on 7 December 2020.
The Richardson Review’s examination of the legislative
framework underpinning the NIC is the first since the Hope Royal Commissions
examined the AIC in the 1970s and 1980s.[26]
The key portions of the Richardson Review relevant to the Bill are in Volume 3
of the Review:
-
Chapter 40—Oversight and the National Intelligence Community,
pages 236–271.
-
Chapter 41—Oversight: Independent oversight bodies, pages
272–296.
-
Chapter 42—Oversight: Parliamentary committees, pages 297–320.
The recommendations most relevant to intelligence
oversight, and the government response to each of those are extracted at Appendix
A.
Richardson noted that the 2017 IIR recommendation to
expand IGIS oversight to include the intelligence functions of the ACIC, AFP,
AUSTRAC and Home Affairs implied that the intelligence functions of all NIC
agencies are equivalent and require the same oversight treatment.[28]
Instead, Richardson proposed the expansion of the oversight functions of the
IGIS only include the intelligence functions of ACIC and AUSTRAC:[29]
A ‘one size fits all’ approach is not appropriate.
The IGIS does not have oversight of any department of state.
Also, the intelligence function in Home Affairs is not encapsulated in a
semi-autonomous agency such as DIO. Rather, it is simply another division in a
wider department. Home Affairs has existing and effective oversight mechanisms
for a department of state. We question the value of adding more oversight.
The AFP is a law enforcement agency, not an intelligence
agency. To the extent that the AFP engages in intelligence collection
activities, it does so in support of its policing functions. Its intelligence
function is integrated across the organisation rather than being a stand-alone
unit. Extending the IGIS’ oversight to the AFP’s ‘intelligence functions’ would
be challenging, to say the least, given the dispersed nature of that function
across the organisation.
There is, however, a stronger case for IGIS oversight of the
ACIC and AUSTRAC’s intelligence activities given their respective, central,
criminal and financial intelligence functions. While both agencies are the
subject of a range of oversight mechanisms, the specialised intelligence
oversight of the IGIS would more readily add value and assurance in respect of
those functions.[30]
A consolidated list of all the Richardson Review
recommendations, marked up by policy subject area, is included at Appendix B.
The Government Response indicates that the Government agrees with most of the
recommendations, however:
-
the Government response is NOT PUBLIC for recommendations 7, 9,
11, 40, 133–134, and 147–153 because the entire recommendation and response are
CLASSIFIED
-
the Government DISAGREED with recommendations 57, 73, 181, and
187
-
the Government AGREED IN PART with recommendation 199 and
-
the Government AGREED IN PRINCIPLE with recommendations 13, 20,
21, 89, 96, 99, 122, 195, and 196.b.[32]
Recent extensive changes to intelligence legislation
In response to national security threats and these two
major reviews of intelligence agencies, the Government has introduced a large
number of Bills relating to national security and intelligence agencies over
the course of the last three Parliaments. The legislation is listed at Appendix
C.
Surveillance Legislation Amendment (Identify and Disrupt)
Act 2021
The SLAID Act was passed by both houses in late
August 2021.[33]
It is designed to modernise Australia’s law enforcement and intelligence legal
framework to better equip the AFP and ACIC to deal with serious cyber-enabled
crime, and particularly aims to address the challenges posed by increasing
criminal use of the dark web and anonymising technologies.[34]
The SLAID Act amended the:
- Surveillance
Devices Act 2004 (Cth) (SD Act) to create two new warrants—data
disruption warrants and network activity warrants—which may be issued to law
enforcement officers in the Australian Federal Police (AFP) and the Australian
Criminal Intelligence Commission (ACIC) and
- Crimes Act 1914
(Cth) to provide the framework for the new account takeover warrant, which may
be issued to AFP and ACIC officers, and to provide that in granting or varying
authorisation for controlled operations, an authorising officer does not need
to be satisfied that illicit online content will be under the control of law
enforcement at the end of the operation.
The SLAID Act also made consequential amendments to
ten other Acts, including to the IGIS Act to provide the IGIS with
oversight over the AFP and ACIC in respect of activities related to network
activity warrants. Those provisions commenced on 4 September 2021.
Committee
consideration
Parliamentary
Joint Committee on Intelligence and Security
The Bill was referred to the PJCIS by the then
Attorney-General, Christian Porter, on 10 December 2020.[35]
The Attorney-General requested that the PJCIS report by a date that would allow
Parliament to consider the Bill before the end of the Autumn 2021 sittings.[36]
Submissions to that inquiry have closed; however, the PJCIS had not reported as
at the date of this Digest.[37]
Senate
Standing Committee for the Scrutiny of Bills
The Bill was considered by Senate Standing Committee for
the Scrutiny of Bills (Scrutiny Committee) in Scrutiny Digest 2 of 2021.[38]
The Scrutiny Committee noted that the Bill would reverse
the onus of proof[39]
of an element of a criminal offence:
Currently, section 41 of the Intelligence Services Act
2001 provides that it is an offence to identify a person as being or having
been an agent or staff member of ASIS (who is not the Director-General of ASIS
or such other persons as the determined by the Director-General), or to publish
information from which such a person's identity could be inferred or could
reasonably lead to the identity of such a person being established.
Item 195 of Schedule 1 to the bill seeks to add
proposed subsection 41(2) which would provide an exception
(offence-specific defence) to this offence if the person identifies the person
to an IGIS official, for the purpose of the IGIS official exercising a power or
performing a function or duty as an IGIS official. The offence carries a
maximum penalty of imprisonment for 10 years.[40]
The Scrutiny Committee noted that the explanatory
materials do not address the issue and requested the Minister’s advice ‘as to
why it is proposed to use offence-specific defences (which reverse the
evidential burden of proof) in this instance’.[41]
The Scrutiny Committee also noted that the Bill replaces or amends numerous
other offence specific defences in other Commonwealth Acts.[42]
The Scrutiny Committee considered the Attorney-General’s
response of 23 February 2021 in Scrutiny Digest 5 of 2021.[43]
The Attorney-General advised that a number of items
identified by the Committee made technical updates to existing offence-specific
defences and did not change or shift an existing evidential burden from the
prosecution to the defendant.[44]
The Attorney-General further advised that other items
identified by the Committee (listed in the footnote) would create new
offence-specific defences to permit the disclosure of information to an IGIS
official who is performing duties, functions or powers as an IGIS official.[45]
The Attorney‑General advised that these defences impose an evidential
burden on a defendant who wished to rely on the defence; however:[46]
-
the information required to discharge the evidential burden in
relation to these defences would be readily available to the defendant
-
the prosecution’s ability to independently obtain the necessary
information might be limited by secrecy offences under section 34 of the IGIS
Act that prevent IGIS officials from disclosing 'any information' obtained
in the course of their duties, functions or powers to any person and
-
where the evidential burden has been discharged, it would then
be a matter for the prosecution to disprove beyond reasonable doubt that the
relevant defence is satisfied in order to establish the offence.[47]
The response of Attorney-General and subsequent comment of
the Scrutiny Committee do not directly address proposed subsection 41(2)
of the IS Act (Schedule 1, item 195); however, the comments
appear to apply to that item.
The Scrutiny Committee requested that an addendum to the
Explanatory Memorandum containing the key information provided by the
Attorney-General be tabled in the Parliament as soon as practicable. The Committee
made no further comment.[48]
As at 12 October 2021, an amended Explanatory Memorandum
had not been tabled.
Policy
position of non-government parties/independents
ALP
While the ALP does not appear to have taken a public
position on the Bill, its response to the 2017 IIR provides some insight into
its possible policy.
In February 2020, Senator McAllister introduced a private
member’s Bill, Intelligence
and Security Legislation Amendment (Implementing Independent Intelligence
Review) Bill 2020, to strengthen
the oversight arrangements for Australia’s intelligence and security agencies.[49] The Bill is
intended to implement the oversight recommendations made by the Government’s 2017
IIR.[50] The ALP members of the
Senate Finance and Public Administration Legislation Committee made their views
known in a dissenting report on Senator McAllister’s Bill issued on 9 December
2020.[51]
If we want our agencies to be in the best possible position
to face today’s challenges, they must be supported by modern and effective
oversight bodies. This is because strong and effective oversight mechanisms do
not stand in opposition to our national security arrangements – they are best
understood as an essential part of them.
Intelligence oversight bodies have a unique role in
democracies. Much of our nation’s intelligence work is necessarily secret –
this means that the usual agents of democratic accountability such as civil
society, the media and even parliament are less able to fulfil their usual
functions.
Dedicated intelligence oversight bodies fill this gap. They
are empowered to examine the legality and propriety of intelligence activities,
even those that are otherwise necessarily kept secret. In doing so, they help
build the culture of trust that is necessary for intelligence agencies to be
able to operate effectively in a democracy.
This was recognised by the authors of the 2017 Independent
Intelligence Review, who identified oversight as one of the four priority areas
for reform in order to ‘further strengthen the state of trust between the
intelligence agencies and the Australian community of which they are part’…
Four days before
this Committee was due to report, the government released the unclassified
version of another review – [the Richardson Review]…
Labor members observe that amendments to this bill in
response to the Richardson Review’s findings and recommendations may be
appropriate.
Labor members also note the evidence of the IGIS that further
amendments may improve the operation of the Bill and better align it with the
intentions of the Independent Intelligence Review.[52]
Independent
Senator Rex Patrick
Senator Patrick has been reported as expressing concern
that the PJCIS does not have adequate oversight of the NIC, that Dennis
Richardson was not sufficiently independent of the national security
bureaucracy, and that Richardson’s recommendations did not provide an
appropriate standard of democratic accountability.[53]
Senator Patrick indicated that he was unlikely to support
expansions of the mandate and power of Australia’s intelligence agencies in the
absence of a commitment to ‘real Parliamentary scrutiny and oversight over
intelligence operations’.[54]
Position
of major interest groups
Inspector
General of Intelligence and Security
The Office of the IGIS prefaced its submission by noting
that it was the established practice of the IGIS not to comment on the policy
underlying the Bill; ‘In particular, IGIS does not offer a view on which
agencies should be subject to IGIS oversight’.[55]
The Office of the IGIS noted it had been extensively
consulted in the development of the Bill and notes the Bill’s development was
influenced by both the 2017 IIR and the Richardson Review.[56]
It also worked to ensure that the SLAID Act was consistent with the
Bill.[57]
Further Office of the IGIS comments explaining the
operation of the Bill are noted below under the heading ‘Key issues and
provisions’.
Commonwealth Ombudsman
The Ombudsman welcomed the enhanced complaint transfer
arrangements:
My Office has, and will continue to have, oversight of the
non-intelligence functions of
the ACIC and AUSTRAC under
the Ombudsman Act 1976. Additionally, we have a specific inspection and reporting
function in relation to the ACIC's legislative compliance when using covert or
intrusive powers. It is therefore crucial the IGIS and my
Office are able to share information and complaints.
My Office has a close working relationship
with the IGIS. The Bill as drafted will support my Office to continue to work
cooperatively with the IGIS, and to avoid duplication of oversight activities
between our two offices.[58]
The Ombudsman advised the PJCIS inquiry into the Bill that
his office was consulted in the development of the Bill and any comments it provided
were appropriately addressed.[59]
The Law Council of Australia
In a submission to the PJCIS inquiry,[60]
the Law Council supported the main provisions of the Bill including to:
-
extend IGIS oversight to the ACIC and AUSTRAC
-
extend PJCIS oversight to the intelligence functions of AUSTRAC
and
-
confer a range of information sharing powers.[61]
The Law Council recommended that four matters be given
further consideration:
-
whether the Bill should follow the 2017 IIR recommendation and
extend IGIS oversight to the entire NIC
-
whether the proposed definition of the intelligence
functions of ACIC and AUSTRAC adequately covers the entire intelligence
life-cycle from the collection of intelligence through to its retention or
destruction
-
whether other legislation governing the PJCIS and other
integrity agencies should also be reviewed and modernised and
-
the adequacy of the resourcing for IGIS and other Commonwealth
integrity bodies.[62]
The Law Council’s views are discussed further below under
the heading ‘Key issues and provisions’.
Academic commentary
Dr Kieran Hardy of the Griffith Criminology Institute at
Griffith University and Professor George Williams of the Gilbert and Tobin
Centre of Public Law at the University of NSW made a joint submission to the
PJCIS review of the Bill.[63]
Hardy and Williams affirmed the necessity of robust and
specialised oversight of intelligence functions to ensure agencies are acting
appropriately and within their respective legislative frameworks.[64]
They recommend the Bill be amended to expand IGIS oversight to the full NIC.[65]
Police Federation of Australia
The Police Federation of Australia supports the intent of
the Bill to extend the IGIS jurisdiction to the intelligence functions of ACIC
and AUSTRAC and to extend PJCIS oversight to the intelligence functions of
AUSTRAC. It also considers that the current oversight arrangements for the AFP
and Home Affairs are already sufficient.[66]
Financial
implications
The Explanatory Memorandum states that the Office of the
IGIS has already been allocated the necessary budget to support its expanded oversight
responsibilities:
In the 2017–18 Portfolio Additional Estimates, and in the
2018–19 Budget, the IGIS was allocated $52.1 million over five years (2017–18
to 2021–22) to support its expanded oversight responsibilities. The funding
will enable the IGIS to sustain a full‑time staff of around 55. The
funding also provided for capital expenses, including IT systems, the secure
fit-out costs of new premises and commercial rent for new premises.[67]
The Richardson Review stated:
We note that the 2018-19 Budget allocated additional funds to
the IGIS to enable it to sustain a larger full-time staff, following on from
the IIR’s recommendations.
To be clear, we think that the IGIS should continue to be
resourced to sustain a staff of around 50. The IGIS plays a very important role
in the oversight of the AIC, and will add value to the oversight of the ACIC
and AUSTRAC. The demands on the IGIS are growing, and its rigorous oversight
can only continue to provide assurance if adequately resourced.[68]
The Law Council noted that ‘the IGIS has received
additional funding over a four year period (from the 2017-18 Budget) to sustain
a full time staff of around 55 persons’.[69]
It also noted that the increase in funding of security agencies, and the
resulting increase in the scale and pace of their activities will have a flow
on effects for oversight of those activities. The Law Council recommended that
the IGIS budget be increased as necessary.[70]
In a submission dated February 2021, the IGIS noted that
its funding had been increased to meet the oversight recommendations of 2017
IIR and that it had been steadily growing in size and capacity since then.[71]
The Bill does not propose to expand IGIS oversight functions as far as the 2017
IIR recommended.
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.[72]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights had no
comment on the Bill.[73]
Key
issues and provisions
Early consultation with IGIS and
Ombudsman occurred
The Richardson Review recommended early consultation with
oversight bodies for all 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. This requirement should be included in the Legislation
Handbook.[74]
The Ombudsman[75]
and IGIS[76]
advised the PJCIS inquiry into the Bill that they were extensively consulted
and their comments were appropriately addressed in the development of the Bill.
IGIS engaged closely with both portfolio departments
throughout the drafting process including, among other things, by seconding an
officer to the Department of the Prime Minister and Cabinet during 2017–18 and
by providing extensive comments and suggestions on multiple iterations of the
Bill.[77]
Independence of IGIS—eligibility for appointment
Item 9 of Schedule 1 inserts proposed
subsection 6(3A) into the IGIS Act to provide that the head or
deputy head of an agency which is subject to oversight by the IGIS cannot be
appointed as Inspector-General immediately following their service in an
intelligence agency; they must hold another position before they become
eligible.
However, no minimum time period is set between their
service as head or deputy head of an agency and eligibility for appointment as
Inspector-General.[78]
This reflects the comments made by Richardson, who did not wish to preclude a
former intelligence or security agency officer from being appointed
Inspector-General:
Prior employment in an agency subject to IGIS oversight
should not exclude an otherwise ideal candidate from appointment. This may be
the case, for example, where an individual demonstrates the requisite
qualities, but was employed many years ago or for a short period. Precluding
the appointment of persons with any prior employment in an agency
overseen by the IGIS would unnecessarily tie the hands of government and may
prevent an ideal candidate from being appointed to an important office.[79]
Expansion of IGIS oversight to ACIC and AUSTRAC
The Bill would have given effect to Richardson’s
recommendation to expand IGIS jurisdiction to cover the intelligence functions
of ACIC and AUSTRAC; however, some of the proposed changes for ACIC were
instead made by items 51–70 of Part 2 of Schedule 2 to the SLAID Act
and commenced on 4 September 2021.[80]
However, the oversight of ACIC implemented by the SLAID Act is limited
to functions connected to the newly introduced network activity warrants.[81]
This will be expanded by the Bill, as discussed below under ‘Definition of
intelligence function’.
The Bill does not propose expansion of IGIS oversight to cover
the intelligence functions of Home Affairs.[82]
Definition of intelligence agency
The definition of intelligence agency in
subsection 3(1) of the IGIS Act was recently replaced by item 54 of Part
2 of Schedule 2 to the SLAID Act. The definition currently reads:
intelligence agency means:
- ASIO, ASIS, AGO, DIO, ASD or ONI; or
- the following agencies that have an intelligence function:
- the Australian Federal Police;
- ACIC.
Item 161 of Schedule 2 of the Bill repeals that definition and substitutes a proposed definition of intelligence
agency that includes AUSTRAC.[83]
intelligence agency means:
- ASIO,
ASIS, AGO, DIO, ASD or ONI; or
- the
following agencies that have an intelligence function:
- ACIC;
- the
Australian Federal Police;
- AUSTRAC.
Note that the oversight remit of IGIS is limited by proposed
subsections 8(3A) and 8(3B) to the intelligence functions of
ACIC and AUSTRAC.
Definition of intelligence
function
The definition of intelligence function in
subsection 3(1) of the IGIS Act was recently inserted by item 55 of Part
2 of Schedule 2 to the SLAID Act. That amendment defined the
intelligence functions of ACIC and the AFP and now reads:
intelligence function:
- for ACIC—means:
- the collection, correlation, analysis, production and dissemination of
intelligence obtained by ACIC from the execution of a network activity warrant;
or
- the performance of a function, or the exercise of a power,
conferred on a law enforcement officer of ACIC by the network activity warrant
provisions of the Surveillance Devices Act 2004; or
- for the Australian Federal Police—means:
- the collection, correlation, analysis, production and
dissemination of intelligence obtained by the Australian Federal Police from
the execution of a network activity warrant; or
- the performance of a function, or the exercise of a power,
conferred on a law enforcement officer of the Australian Federal Police by the
network activity warrant provisions of the Surveillance Devices Act
2004.
Item 162 of Schedule 2 repeals that definition
and substitutes a proposed definition which expands the scope of the
intelligence function for ACIC and incorporates a definition of the
intelligence functions of AUSTRAC.
intelligence
function:
- for
ACIC—means:
- the
collection, correlation, analysis, production and dissemination of intelligence
by ACIC for the purpose of performing its functions under section 7A of
the Australian Crime Commission Act 2002 (except in relation to
Indigenous violence or child abuse within the meaning of that Act), including
the performance of a function, or the exercise of a power, conferred on a law
enforcement officer of ACIC by the network activity warrant provisions of the Surveillance
Devices Act 2004; or
- for
AUSTRAC—means:
- the
collection, correlation, analysis, production and dissemination of intelligence
by AUSTRAC for the purposes of the AUSTRAC CEO performing the CEO’s financial
intelligence functions under the Anti‑Money Laundering and Counter‑Terrorism
Financing Act 2006; or
- a
function performed by AUSTRAC, the AUSTRAC CEO or any other official of AUSTRAC
referred to in paragraph 209(4)(c) of that Act that is incidental
to the CEO’s financial intelligence functions; or
- for
the Australian Federal Police—means:
- the
collection, correlation, analysis, production and dissemination of intelligence
obtained by the Australian Federal Police from the execution of a network
activity warrant under the Surveillance Devices Act 2004; or
- the
performance of a function, or the exercise of a power, conferred on a law
enforcement officer of the Australian Federal Police by the network activity
warrant provisions of the Surveillance Devices Act 2004.
The Explanatory Memorandum states that the definition is derived from the
definition of ‘agency with an intelligence role or function’ in section 4 of
the ONI Act, with modifications to reflect IGIS’s role as an oversight
body.[84]
The ONI Act definition limits ‘intelligence role or
function’ to ‘national intelligence priorities, requirements or capabilities’.
That limitation reflects ONI’s function to lead and coordinate NIC agency
activities to achieve those national intelligence priorities, requirements or
capabilities. The Explanatory Memorandum argues that IGIS’s oversight should
not be limited to intelligence activities linked to particular purposes.[85]
The IGIS noted in its submission to the PJCIS Review:
… unlike the ONI Act, the Bill’s definition of
intelligence function is not limited to intelligence ‘that relates, or may relate,
to national intelligence priorities, requirements or capabilities’. This
reflects the differences in the roles of ONI and IGIS, as it would not be
appropriate for IGIS’s oversight to be limited to intelligence activities
linked to particular purposes that are not set out in legislation.
Consistent with a recommendation of the Comprehensive Review,
the Bill’s definition of intelligence function reflects a functional approach
rather than a structural approach to IGIS’s oversight jurisdiction. That is,
IGIS’s jurisdiction is defined by reference to ACIC’s and AUSTRAC’s functions,
rather than by reference to a particular administrative structure (for example,
a specific branch or division of each agency) which could change from time to
time. The broad nature of the definition (the term ‘intelligence’ is undefined
by the Bill) will ensure that IGIS has ‘flexibility to deliver substantive
oversight when and where required, including as agencies’ activities, functions
or powers evolve’ and will ensure that IGIS can ‘inquire into agencies’ activities
regardless of who undertakes them, and cannot be undermined by administrative changes’.[86]
[citations removed]
There is no need for intelligence function
to incorporate the intelligence functions of the Department of Defence. The
IGIS already oversees those parts of the Department of Defence which have
distinct intelligence functions (AGO and DIO). They are distinct agencies and
are separately listed.
Unlike the ONI Act definition, the proposed
definition of intelligence function does not capture agencies
that maintain, develop, or are developing, a capability that materially assists
with the collection, correlation, analysis, production or dissemination of
intelligence. According to the Explanatory Memorandum:
It is not relevant to the IGIS that an agency simply has or
is preparing a capability—it is the exercise of that capability to collect,
correlate, analyse, produce or disseminate intelligence that engages the IGIS’s
oversight.[87]
Scope of IGIS inquiry functions for ACIC and AUSTRAC
The Government modelled proposed subsection 8(3A):
… on the existing and amended provisions in
subsection 8(3) (as amended by item 18 of Schedule 1)
that outline the IGIS’s functions in relation to ONI and DIO, but with
amendments to reflect that the ACIC and AUSTRAC have functions outside their
intelligence functions, and, in the case of the ACIC, a different governance
structure.[88]
Item 56 of Schedule 2 of the SLAID Act inserted subsection
8(3A) which set out the inquiry functions of IGIS in relation to ACIC
and the AFP. Items 163–165 of Schedule 2 propose amendments to subsection
8(3A) to add AUSTRAC to those provisions.[89]
If the amendments proposed in the Bill are enacted, subsection
8(3A) will provide that IGIS may, in relation to an intelligence function
of ACIC, the AFP or AUSTRAC, inquire into:
-
compliance with Commonwealth, state and territory laws (paragraph
8(3A)(d))
-
compliance by that agency with directions or guidelines given to
that agency by the responsible Minister (paragraph 8(3A)(e))
-
the propriety of particular activities by the ACIC and AUSTRAC (paragraph
8(3A)(f))
-
the effectiveness and appropriateness of the procedures relating
to the legality or propriety of the activities of the agency (paragraph
8(3A)(g))
-
a matter referred to the IGIS by the AHRC that relates to an act
or practice of the agency which may be inconsistent with a human right,
constitute discrimination, or be unlawful under Australian anti-discrimination
legislation (paragraph 8(3A)(h))
-
the ACIC’s compliance with directions, guidelines, policies or
decisions made by the board of the ACIC or the Inter-Governmental Committee
established under the Australian Crime
Commission Act 2002 (ACC Act) (paragraph 8(3A)(i)).[90]
This amendment ensures that the IGIS’s jurisdiction in
relation to AUSTRAC’s intelligence functions is analogous to its jurisdiction
in relation to the ACIC and AFP’s intelligence functions.[91]
IGIS may commence inquiries into any of the matters in amended
subsection 8(3A):
-
in response to a request by the Attorney-General or relevant
Minister (being the Minister responsible for the ACIC, the AFP or AUSTRAC) (paragraph
8(3A)(a))
-
on IGIS’s own motion (paragraph 8(3A)(b)) or
-
in response to a complaint made to IGIS by an Australian citizen
or permanent resident (within the meaning of the IS Act (proposed
paragraph 8(3A)(c)—see item 165 of Schedule 2)).
This is consistent with the way inquiries may be commenced
in relation to agencies currently within IGIS’s jurisdiction (noting that there
is a slightly different complaints jurisdiction in relation to ASIO). IGIS
retains the ability to commence an own-motion inquiry into a matter which was
the subject of a complaint from a non-citizen or non-permanent resident.[92]
Definition of permanent resident
The definition of permanent resident in
subsection 3(1) of the IGIS Act currently refers to the now redundant
term ‘illegal entrant’ under the Migration Act 1958.[93]
Item 4 of Schedule 1 repeals that definition.
Items 16 and 18 of Schedule 1 amend
subsections 8(2) and 8(3) of the IGIS Act to import the definition of permanent
resident used in the IS Act.
Item 28 of Schedule 1 applies a slightly
narrower definition of permanent resident to proposed subsection
8A(4), referring only to those permanent residents within the meaning of
paragraph (a) of the definition of permanent resident in section 3 of
the IS Act.
According to the Explanatory Memorandum:
The intention is also to apply a consistent meaning to a
‘permanent resident’ between ASIS, ASD, AGO, ONI, DIO and the intelligence
functions of the ACIC and AUSTRAC in relation to the limitations on the IGIS’s
intelligence agency inquiry functions and the Public Interest Disclosure Act
2013 (PID Act) deeming provisions in sections 8 and 8A.[94]
The proposed definitions also clarify that IGIS is able to
receive complaints from both natural persons and bodies corporate, except where
a natural person is specified.
Definition of responsible Minister
Different parts of Acts may be administered by different
Ministers. Item 5 of Schedule 1 amends the definition of responsible
Minister in subsection 3(1) of the IGIS Act to make clear
that where a part of the Act refers to a specific Minister, then that Minister
is the responsible Minister.
Exclusions from IGIS oversight
Exclusion of action taken by ACIC examiner
Subsection 8(3B) of the IGIS Act (which was
inserted by item 56 of Schedule 2 to the SLAID
Act) specifically excludes IGIS oversight of the actions taken by an ACIC
examiner. The Government contends:
This is appropriate, as the IGIS has limited jurisdiction
over matters that could be heard in a court or tribunal (sections 9AA
and 11(3)-(4) of the IGIS Act). The conduct of ACIC examiners may
be reviewed by the Ombudsman, the Law Enforcement Integrity Commissioner, and
ultimately, a court of law. As such, it is not necessary for the IGIS to
oversee these aspects of the ACIC’s activities.[95]
Exclusion of ACIC intelligence activity related to
Indigenous violence or child abuse[96]
ACIC has intelligence functions related to serious
violence or child abuse committed against an Indigenous person.[97]
Paragraph (a) of the proposed definition of intelligence function
at item 162 of Schedule 2 to the Bill excludes activity related
to Indigenous violence or child abuse from IGIS oversight on the basis that
IGIS is not the appropriate body to conduct oversight of those specific
activities:
Oversight of these matters would require specialist subject-matter
expertise, including cultural competencies that the IGIS could not be expected
to possess, or to obtain readily. These functions are overseen by the Office of
the Commonwealth Ombudsman (the Ombudsman).[98]
Exclusion of AUSTRAC’s regulatory activities
The Government’s intention, as set out in the Explanatory
Memorandum,[99]
is for intelligence function to cover AUSTRAC’s actions only in
supporting the CEO to perform their functions under section 212 of the Anti-Money
Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act),
to the extent that they involve intelligence.
The Government does not intend the definition to cover the
agency’s actions in supporting the CEO to perform their regulatory functions.[100]
The reference to “functions incidental” in
the definition of intelligence function in relation to AUSTRAC is not intended
to include AUSTRAC’s regulatory functions, such as the supervision of regulated
businesses’ compliance with the AML/CTF Act.[101]
Employee grievances and employment-related complaints
Unlike IGIS jurisdiction over ASIO, ASIS, AGO and ASD,[102]
the Bill does not provide IGIS with a function to inquire into ACIC’s or
AUSTRAC’s procedures relating to the redress of employee grievances. IGIS noted
this function was excluded to avoid:
the potential for arbitrary differences in grievance redress
mechanisms available to staff of those agencies, depending on whether they were
performing ‘intelligence’ or ‘non-intelligence’ functions.[103]
Currently, subsection 8(5) of the IGIS Act (as
amended by items 57 and 58 of Schedule 2 to the SLAID Act) excludes
complaints from employees of the AGO, DIO, ONI, ACIC and the AFP that are
directly employment-related matters. Item 167 of Schedule 2 to
the Bill will amend subsection 8(5) so that this exclusion will also cover
AUSTRAC employees. [104]
Expansion
of IGIS capacity to investigate certain complaints re DIO and ONI
Item 18 of Schedule 1 repeals paragraphs
8(3)(a) and 8(3)(b) of the IGIS Act and substitutes expanded provisions.
The overall intent is to make the provisions for DIO and ONI consistent with
the approach to ASIO, ASIS, AGO and ASD in existing subsections 8(1) and 8(2).
The amendments do not reduce the power of IGIS; they
reproduce existing powers and expand the power of IGIS to investigate certain
complaints.
The Inspector-General can currently only commence inquiries
into DIO or ONI at the request of the Attorney-General, the responsible
Minister or on the Inspector-General’s own motion. Proposed subparagraph
8(3)(a) will also enable the Inspector-General to inquire into a complaint
made by an Australian citizen or permanent resident (within the
meaning of the IS Act) about a matter that relates to:
-
the compliance by that agency with the laws of the Commonwealth
and of the states and territories
-
the compliance by that agency with directions or guidelines
given to that agency by the responsible Minister or
-
the propriety of particular activities of that agency.
Proposed subparagraph 8(3)(aa) is in similar terms
to existing subparagraph 8(3)(a)(iii) and retains the IGIS’s ability to inquire
into any matter that relates to the effectiveness and appropriateness of the
procedures of that agency relating to the legality or propriety of the
activities of that agency, at the request of the Attorney-General, the
responsible Minister or on the Inspector-General’s own motion.[105]
Proposed subparagraph 8(3)(b) will enable the
Inspector-General to inquire into a complaint made by an Australian citizen or permanent
resident about an act or practice of DIO or ONI:
where that matter is referred to the Inspector-General by
the AHRC. This is consistent with the approach taken with ASIO in
subsection 8(1)(a)(v) and ASIS, AGO and ASD in
subparagraph 8(2)(a)(iv).[106]
Inquiry
into employment practices and employment-related complaints
The provisions for ONI staff to make employment related
complaints will be amended to provide equal treatment between ONI staff and
staff from other intelligence agencies who may bring complaints to the IGIS.[107]
Proposed subparagraph 8(3)(ba) permits IGIS
inquiries into matters relating to the overarching procedures of agencies to
respond to employment grievances. It is in similar terms to existing subparagraph
8(3)(b)(ii).[108]
Subsection 8(5) of the IGIS Act, as amended by item
167 of Schedule 2, excludes IGIS jurisdiction to inquire into
complaints regarding promotion, termination, discipline, remuneration or any
other matter relating to intelligence agencies’ employment of individuals in
relation to AGO, DIO, ACIC, the AFP or AUSTRAC, or by an ONI employee who is
employed under the Public
Service Act 1999.
However, subsections 8(6)–(7) of the IGIS Act, as
amended by items 21–23 of Schedule 1, will permit the IGIS
to inquire into certain complaints directly related to promotion, termination
of appointment, discipline or remuneration or another employment matter made by
an ASIO employee, an ASIS employee, an ONI Act employee or an ASD
employee; but only if that matter cannot be reviewed by another appropriate
body.
Complaints
by ONI employees about security clearances
Proposed paragraph 8(3)(bb) will permit the IGIS to
inquire into a complaint by an ONI employee about a decision relating to
‘security clearances (of the highest level)’:
The phrase “security clearances (of the highest level)” is
intended capture the Top Secret (Positive Vetting) clearance, as it [is] known
at the time of the Bill’s introduction, as well as any clearance of equivalent
level (regardless of what that clearance is called, from time to time).
This provision is necessary as the majority of ONI employees
are required to maintain a Top Secret (Positive Vetting) security clearance as
a part of their employment, and the loss of that clearance generally results in
the termination of that employee’s employment. ONI employees differ from
employees in other intelligence agencies in that it is not possible in most
cases to redeploy an ONI employee to another role where a lower clearance would
suffice. This is different from, for example, an employee in a defence
intelligence agency (DIO or AGO), where a person may be able to be employed in
another role in the Department of Defence that does not require a high level
security clearance if they are not able to obtain the requisite clearances.
This provision would ensure that, where an ONI employee’s
security clearance is processed by an agency that does not have an appeals
process to contest decisions, there would be an opportunity for an employee to
request a review. This would ensure that an individual would not face the
consequences of a loss of a Top Secret (Positive Vetting) clearance without
having access to a review process. The IGIS’s jurisdiction in relation to
security clearance complaints applies to all ONI staff, whether employed under
the Public Service Act or under the ONI Act.[109]
Changes to procedures and eligibility to make complaints
Circumstances when inquiry or further inquiry by IGIS is
not required
Item 68 of Schedule 2 of the SLAID Act inserted subsection
11(4A) which permits the IGIS to decide not to inquire into, or to inquire
further into, a complaint if:
-
the complaint has been made or could have been made to another relevant
integrity body and
-
that complaint could be more effectively or conveniently dealt
with by that integrity body.
Definition of integrity body and Integrity Commissioner
Item 53 of Schedule 2 of the SLAID Act inserted definitions
of integrity body and Integrity Commissioner
in subsection 3(1) of the IGIS Act:
integrity body:
- means
any of the following:
- the
Ombudsman;
- the
Australian Human Rights Commission;
- the
Information Commissioner;
- the
Integrity Commissioner;
- the
Inspector‑General ADF; and
- for a complaint—has the meaning given by paragraph 11(4A)(a).
Integrity
Commissioner has the meaning given by section 5 of
the Law Enforcement Integrity Commissioner Act 2006.
Repeal of requirement that IGIS
seek Ministerial approval to inquire into matters occurring outside Australia
Paragraph 9AA(a) of the IGIS Act is a statutory
limit on the IGIS’s functions which prohibits the IGIS from inquiring into a
matter relating to a Commonwealth agency that occurred outside Australia unless
approval is given by a responsible Minister, the Attorney-General or the Prime
Minister. Item 29 of Schedule 1 repeals paragraph 9AA(a) of the IGIS
Act.
The Government’s view is that repeal is necessary and the
IGIS should be able to oversee these matters as a matter of course:
The repeal of paragraph 9AA(a) is intended to reflect
the reality that the contemporary movement of Australians abroad, and the large
number of Australian laws with extraterritorial application, means that the
activities of agencies that are undertaken wholly outside Australia are far
more likely to have an impact on Australian persons (including members of the
agencies themselves) and be subject to Australian laws than was the case at the
commencement and over the first 10 years of operation of the IGIS Act.
It is appropriate that these activities are subject to IGIS oversight, and that
the IGIS should be able to oversee these matters as a matter of course, rather
than having to seek permission.[110]
Repeal
of precondition that a complainant be affected by the alleged violation of the
law
The policy position adopted in the original IGIS Act
was that the IGIS’s jurisdiction should be limited to reviewing, and providing
assurance to Ministers about, the legality and propriety of actions undertaken
in Australia, or affecting Australian citizens by ASIS, AGO and ASD; rather
than performing a broader check on all aspects of these agencies operations.[111]
Item 19 of Schedule 1 repeals subsection 8(4) of the IGIS
Act which established that Australian nexus.
Current Government policy recognises the value of the role
of the IGIS in reviewing all aspects of AIC agencies’ activities, without
reference to distinctions or limitations of that kind.[112]
By repealing subsection 8(4) it is intended that the
exercise of the IGIS’s functions under paragraph 8(2)(a) no longer require
that nexus.
Despite this amendment, the IGIS would only be able to
consider complaints about these matters where they were made by Australian
citizens or permanent residents (as provided by section 8 of the IGIS
Act). However, the IGIS would still be able to commence own-motion
inquiries (or inquiries in response to a request from the Attorney-General or
responsible Minister) into matters without an Australian nexus, thus ensuring
that there is not a gap in oversight.[113]
Update of IGIS public interest disclosure functions
Items 27 and 28 of Schedule 1 amend section
8A of the IGIS Act, which outlines the IGIS’s public interest
disclosure functions under the Public Interest
Disclosure Act 2013 (PID Act). Where the IGIS receives
information under the PID scheme, and some or all of the disclosed conduct
occurred in an intelligence agency, the PID is to be treated in the same manner
as a section 8 complaint about the propriety of particular activities of
the intelligence agency.[114]
However, under existing subsection 8A(4), the discloser
would not receive protection equivalent to an IGIS complainant if:
-
the conduct related to ASIS, AGO or ASD, and the discloser is
not an Australian citizen or permanent resident or
-
the conduct related to DIO or ONI.
The Bill would update the IGIS’s PID functions to align
with the proposed expansion of section 8 oversight. Item 28 of Schedule
1 repeals subsection 8A(4) and substitutes proposed subsection 8A(4)
to instead provide that the discloser would not receive protection equivalent
to an IGIS complainant if:
-
the relevant intelligence agency is ASIS, ASD, AGO, DIO, ONI,
ACIC, the AFP[115]
or AUSTRAC, and
-
the person who makes the disclosure is not a natural person who
is an Australian citizen or permanent resident (within the meaning of the IS
Act).[116]
Under the proposed provisions:
-
PIDs relating to DIO and ONI are no longer automatically
excluded
-
amended subsection 8A(4) would extend to all the agencies
subject to IGIS oversight (excluding ASIO, which is not included in this subsection because
the IGIS’s complaint function in relation to ASIO is not limited to Australian
citizens or permanent residents) and
-
the definition of permanent resident is now taken from
section 3 of the IS Act.[117]
Consequential
amendments re disclosure of protected information to IGIS officials
Part 2 of Schedule 1 proposes to amend 17
different Acts to ensure that individuals cannot be prosecuted for disclosing
protected information to an IGIS official for the purpose of the IGIS official
performing their powers, functions or duties as an IGIS official.[118]
These consequential amendments are also intended to ensure
that security of information provided to, or obtained by, the IGIS is
maintained and that the IGIS should not provide a back channel for agencies to
obtain information that they would not otherwise be entitled to access.[119]
The Scrutiny Committee noted the Bill replaces or amends
numerous offence specific defences in the IS Act, AML/CTF Act,
ASIO Act, Australian
Human Rights Commission Act 1986, and Taxation
Administration Act 1953. See Schedule 1: items 150, 152,
165-167, 185-193, 203 and Schedule 2: items 28,
32 and 52.[120]
Requirement to notify
complainant
Section 12 of the IGIS Act requires the IGIS to
notify a complainant in writing where the IGIS makes a decision not to inquire
into, or inquire further into, a complaint in relation to an intelligence
agency.
Item 40 of Schedule 1 repeals and replaces section
12 to require the IGIS to take reasonable steps to notify the person
in writing of the decision. The amended requirement ‘reflects that it is not
possible to notify a complainant in all circumstances, for example, where
contact details are incorrect or outdated’.[121]
Clarification of IGIS inspection and information gathering
powers
Subsection 9A(1) of the IGIS Act confers functions
on the Inspector-General to conduct inspections of the agencies.
IGIS regularly conducts inspections to determine if each
agency is acting in accordance with its statutory functions, and is complying
with any guidance provided by the responsible Minister and with its own
internal policies and procedures. Inspections enable IGIS to monitor the
activities of agencies and to identify concerns before they develop into
systemic problems that could require major remedial action. Agencies within
IGIS’s existing jurisdiction provide IGIS staff with a high level of assistance
and cooperation in support of inspections.[122]
Item 65 of Schedule 2 to the SLAID
Act inserted subsection 9A(2), which provides that for the
purpose of conducting an inspection of the ACIC or AFP, the IGIS has power to
enter premises and inspect records, and imposes an obligation on the heads of
those agencies to provide reasonable facilities and assistance. The Revised
Explanatory Memorandum to the Bill for the SLAID Act explained why
subsection 9A(2) was needed:
As the ACIC and the AFP are not presently subject to
oversight by the IGIS, and as a result have no existing relationship or
arrangements with the IGIS, these amendments are required to make clear what
the IGIS is entitled to during inspections of the ACIC and the AFP as part of
their oversight of network activity warrants.[123]
Item 171 of Schedule 2 repeals and replaces it
with proposed subsection 9A(2) so that it will apply to all intelligence
agencies subject to IGIS oversight.[124]
The Office of the IGIS argues that this is appropriate ‘given the importance of
the inspection function to the level of assurance that the Inspector-General is
tasked to provide about the legality and propriety of agencies’ actions’.[125]
Proposed subsection 9A(2) provides that for the
purposes of conducting an inspection of any of the intelligence agencies, the
Inspector-General and staff of the Office of the IGIS:
-
may, at all reasonable times, enter and remain in any premises
(including any land or place)[126]
-
are entitled to all reasonable facilities and assistance that
the agency head is capable of providing
-
are entitled to full and free access at all reasonable times to
any information, documents or other property of the agency and
-
may examine, make copies of or take extracts from any
information or documents.
Information
sharing by integrity bodies and avoiding duplication of oversight
Provisions relating to the IGIS’s relationships with other
oversight bodies are co-located and updated in the Bill to reflect the
increased scope of the IGIS oversight powers. Current Part IIIA of the IGIS
Act was inserted by item 71 of Schedule 2 to the SLAID Act, to
ensure that the IGIS could share information with, and transfer complaints to
and from, other integrity bodies with co-responsibility for oversight of the
ACIC and AFP, which were brought under the IGIS’s jurisdiction by that Act.[127]
This will be replaced by proposed Part IIIA, inserted
into the IGIS Act by item 176 of Schedule 2, which is
intended to provide mechanisms to:
-
manage the duplication of oversight between the IGIS and other
integrity bodies and
-
facilitate information-sharing and complaints transfer between
the Office of the IGIS and other integrity bodies.[128]
Avoiding duplication of
oversight
Proposed Division 1 of Part IIIA
relates to avoiding duplication of oversight by integrity bodies. Section 16
of the IGIS Act requires the IGIS to consider the Auditor-General and
the Ombudsman’s functions before commencing an inquiry. Item 46 of
Schedule 1 repeals section 16 which will no longer be necessary
because proposed section 32AB recreates and extends the existing
requirements.
Proposed section 32AB:
-
requires the IGIS to have regard to the functions of
other integrity bodies and the Auditor‑General to avoid duplication in
oversight and
-
allows the IGIS to consult integrity bodies or the
Auditor-General in relation to a matter.[129]
Proposed section 32AB is not intended to require
the IGIS to undertake formal consultation with each body before commencing any
activity:
For example, in determining its overall priorities and annual
inspection plans, the IGIS ought to consider other integrity bodies and their
remits. By contrast, the IGIS is not required to consider the functions of each
integrity body before commencing a discrete preliminary inquiry (under
section 14 of the IGIS Act). This is because, in many cases, some
activity by the IGIS is required to determine whether they are authorised to,
and should, inquire into an action. As such, it will often not be possible to
determine whether or not a matter falls within the functions of another
integrity body until after a preliminary inquiry has been undertaken, and
requiring consultation ahead of every instance would be administratively
burdensome.[130]
Facilitating information sharing
by other integrity bodies
Proposed Division 2 of Part IIIA
facilitates information sharing by integrity bodies by:
-
providing certain protections to people who voluntarily provide,
or make available, information or documents to the Office of the IGIS for the
purposes of the IGIS performing its functions (proposed section 32AC).[131]
Those protections are:
- immunity
from prosecution under Commonwealth law for providing the information or
documents
- a
use immunity to prevent documents and information being used in evidence in
proceedings against the person providing them
- legal
professional privilege may be asserted even where documents are provided
voluntarily
- subject to certain exceptions
for providing false or misleading information, obstruction or the commission of
specified offences
-
consolidating and expanding the protection of Commonwealth
documents or information with security classifications, formerly contained in
section 20 (proposed section 32AD)[132]
and
-
providing an exception to the prohibition on secondary use of
personal information in Australian Privacy Principle 2.6 for AUSTRAC (proposed
section 32AE).[133]
Facilitating transfer of
complaints
Proposed Division 3 of Part IIIA establishes
arrangements for the IGIS to transfer complaints and information to other
integrity bodies, as well as to receive complaints transferred to it. The IGIS
and other integrity bodies have some concurrent jurisdiction in oversight over
the ACIC and AUSTRAC.[134]
Proposed section 32AF will allow the IGIS to
share information or documents with other integrity bodies.
It is intended that the provision would reduce the potential
for duplication of individual oversight activities by integrity bodies through
the sharing of information and cooperation. For example, if the IGIS were to
share information with another integrity body it may enable that integrity body
to satisfy itself that there are no further issues arising in respect of its
specific statutory functions that would require it to undertake separate oversight
activity in relation to that matter. For example, in relation to AUSTRAC where
both the IGIS and Ombudsman could have jurisdiction over a matter, allowing the
IGIS to share contextual information with the Ombudsman could assist that body
to determine that the IGIS is the appropriate oversight agency. Sharing
information to avoid duplication reduces administrative burdens on both
overseen agencies and integrity bodies.
The provision would also support cooperation and coordination
across integrity bodies, by allowing the IGIS to share information about its
investigative processes and methodologies, as well as trends the IGIS has
identified through its oversight.[135]
Note that section 34 of the IGIS Act provides
that the IGIS may only disclose information in the performance of legislated
functions, powers or duties. Improper disclosure of information by an IGIS
official is a criminal offence, punishable by two years’
imprisonment, a fine of 50 penalty units ($11,100), or both.[136]
Proposed section 32AG will facilitate the
Office of the IGIS transferring all, or part, of a complaint to another
integrity body where the IGIS decides not to investigate a complaint on the
basis that it could be more effectively or conveniently dealt with by another
integrity body (see subsection 11(4A)).[137]
Currently, the IGIS does not have any capacity to transfer
complaints to other integrity bodies. This creates additional administration
for both integrity bodies and complainants where complaints must be re-made to
the appropriate integrity body. The complaints transfer scheme is intended to
assist complainants, by removing the need for them to re‑submit their
complaints to [an]other integrity body. Complaints-transfer provisions are
common within the legislation of integrity bodies (including the AHRC Act,
Privacy Act, Ombudsman Act and Defence Act), and support cooperation
between integrity bodies.[138]
Proposed section 32AH will facilitate the
transfer of a complaint from another integrity body to the IGIS by deeming the
complaint to have been made to the IGIS under the IGIS Act.
This will ensure that the complainant does not need to
re‑submit the original complaint to the IGIS, and that the IGIS has a
legal basis to handle transferred complaints. It also ensures that the
complainant is protected under the IGIS Act for any disclosure of
information.[139]
The Office of the IGIS noted in its submission to the
PJCIS that the decision of whether or not to transfer a complaint to another
integrity body remains at the discretion of IGIS.[140]
IS Act Amendments—Limited expansion of the jurisdiction of PJCIS
Items 134-149 of Schedule 1 amend the IS
Act to expand PJCIS oversight to AUSTRAC.
Proposed definition of intelligence function for AUSTRAC
Item 136 of Schedule 1 inserts a proposed
definition of intelligence function in section 3 of the IS Act:
intelligence function means the collection,
correlation, analysis, production and dissemination of intelligence by AUSTRAC
for the purpose of performing its functions.
The oversight jurisdiction of AUSTRAC proposed for the
PJCIS is broader than that proposed for the IGIS (discussed above):
… the PJCIS’s function is not focused on specific operations,
and in fact, the PJCIS is explicitly prevented from considering operational
information or methods by the amendments to section 29(3) (inserted by items 138-140
of Schedule 1). The PJCIS are also prevented from considering any
non-intelligence functions performed by AUSTRAC (item 141 of Schedule
1).[141]
Proposed
functions of PJCIS in relation to AUSTRAC
The functions of the PJCIS in overseeing the AIC are
specified in subsection 29(1) of the IS Act.
Item 137 of Schedule 1 inserts proposed
paragraphs 29(1)(bad), (bae) and (baf) creating functions for
the PJCIS in relation to AUSTRAC. The Government intends that the PJCIS’s
oversight for AUSTRAC is similar to the PJCLE’s oversight in relation to the
AFP and ACIC[142]
and to the PJCIS oversight of the AFP in relation to its functions under Part
5.3 (Terrorism) of the Criminal Code.[143]
-
Proposed paragraph 29(1)(bad) permits the PJCIS to
monitor and review the performance of AUSTRAC’s intelligence functions
-
Proposed paragraph 29(1)(bae) permits the PJCIS to
report to both Houses of the Parliament, as the PJCIS sees fit, on any matter
that relates to AUSTRAC’s intelligence functions. This is consistent with the
PJCIS’s reporting powers in relation to the AFP, contained in
paragraph 29(1)(bab)[144]
-
Proposed paragraph 29(1)(baf) permits the PJCIS to
inquire into the performance of AUSTRAC’s intelligence functions, under
paragraphs 29(1)(bad) or 29(1)(bae), where either House of the Parliament have
referred a question to the PJCIS. If the PJCIS inquires into such a matter, the
PJCIS may report to the referring House of Parliament. This mirrors the PJCIS’s
oversight of the AFP under paragraph 29(1)(bac).[145]
Express limitations on functions of PJCIS
Subsection 29(3) of the IS Act provides
express limitations on the functions of the PJCIS. Items 138-140 of
Schedule 1 will extend those existing limitations to AUSTRAC:
Item 138 would amend paragraph 29(3)(g) to
preclude the PJCIS from conducting inquiries into individual complaints about
the activities of AUSTRAC, consistent with current PJCIS oversight of agencies
within its remit.
Item 139 would amend paragraph 29(3)(j) to
preclude the PJCIS from reviewing sensitive operational information or
operational methods available to AUSTRAC (including AUSTRAC information),
consistent with current PJCIS oversight of agencies within its remit, particularly
the treatment of operational information by the AFP.
Item 140 would amend paragraph 29(3)(k) to
preclude the PJCIS from reviewing particular operations or investigations that
have been, are being or are proposed to be undertaken by AUSTRAC, consistent
with current PJCIS oversight of agencies within its remit, particularly the
treatment of operations and investigations by the AFP.[146]
Stakeholder comments to
Richardson Review on PJCIS oversight
Chapter 42 of the Richardson Review discusses in detail the
oversight of the NIC by Parliamentary committees and compares oversight regimes
in other countries.
Richardson summarised a number of comments from
stakeholders, including:
Dr Anthony Bergin and Kate Grayson submitted that the PJCIS
should be permitted to ‘generate their own-motion inquiries including into
operations as long as they are deemed not to be injurious to national security
by the Prime Minister or the appropriate Minister’. The Human Rights Law Centre
submitted that the PJCIS’ ‘scope of review should be broadened to operational
matters, either generally or to allow it to receive, review and assess reports
from the Inspector-General of Intelligence and Security’.
Professor George Williams AO and Dr Keiran Hardy recommended
that ‘the powers of the PJCIS be expanded to allow for parliamentary oversight
of [Australian Intelligence Community] policy and operations’. Australian
Lawyers for Human Rights also supported ‘the expansion of powers of the PJCIS
to initiate its own reviews into operational matters’.
The Hon Michael Kirby AC CMG and Bret Walker SC submitted: As
to the subject matter of the Committee’s remit, we think there is merit in
expressing it in such general terms, so comprehensive of unknown future
possibilities, that no-one will be able to say that these agencies have some
field of operations that is immune from Parliamentary scrutiny.
Senator Rex Patrick submitted that PJCIS scrutiny should
extend to ‘the full range of intelligence and national security agency
activities.’ Senator Patrick’s submission enclosed a copy of the Intelligence
Services Amendment (Enhanced Parliamentary Oversight of Intelligence Agencies)
Bill 2018, a Bill sponsored by Senator Patrick and before the Senate as at
December 2019…
AGD submitted that ‘any consideration given to expanding the
mandate of the PJCIS or another Parliamentary Committee should support primary
oversight of operational matters remaining with bodies such as the IGIS and
Ombudsman.…
The IGIS submitted that whether the PJCIS should have direct
operational oversight or otherwise expanded oversight are ‘principally policy
matters’ but observed that although it is implicit in recommendation 23(a)[147]
that the IGIS would not be obliged to conduct the requested inquiry, this
should be made explicit in any reform. The IGIS submitted that proposals
allowing for anyone other than the Prime Minister to require the IGIS to
inquire into a matter would be a significant compromise to the IGIS’
independence, which ‘is critical to the capacity of the Office to perform its
functions and satisfy the objects of the IGIS Act.’
The IGIS also noted the distinct and complementary roles of
executive and parliamentary oversight and submitted that if recommendation
23(a) was adopted, ‘consideration could be given to the right of the Committee
to receive any report produced as a result of its request.’ The IGIS submitted
that to the extent that its inspection and inquiry reports relate to agencies’
administration and expenditure, there may be merit in the IGIS having an explicit
discretion to provide these reports—or a summary of these reports—to the PJCIS
(with operational information redacted). An alternative approach might be for
the legislation to provide the minister with an explicit discretion to give a
copy of the report to the PJCIS.[148]
The Law Council of Australia also supported increased
oversight responsibilities for the PJCIS.[149]
However, Richardson commented that Parliament’s oversight of intelligence
agencies through the PJCIS must be considered in the broader context of other
oversight arrangements in Australia, particularly IGIS’s role.[150]
The 2017 IIR pointed to the ‘combination of government,
parliamentary and independent oversight of intelligence agencies’ that was
created in the aftermath of the Hope Royal Commissions and said that these
oversight arrangements, which still exist today, ‘represent a carefully
constructed architecture’.
Changes to this architecture must be carefully considered so
as not to upset the balance or create unnecessary and unproductive duplication.
The 2017 IIR concluded that ‘it is appropriate and effective for the primary
oversight of the legality and propriety of operations conducted by intelligence
agencies to be carried out by the IGIS Office’. The 2017 IIR found that PJCIS
oversight of operations would duplicate existing reporting and resourcing
requirements and could lead to simultaneous inquiries on the same issue.[151]
The Richardson Review concluded that operational oversight
is currently effectively provided by IGIS and agreed with the 2017 IIR’s view
that ‘there is significant practical benefit in having the required expertise
located in a single body, backed by appropriate powers and independence.’[152]
Richardson therefore recommended against any expansion of
the functions of the PJCIS to include direct oversight of operational
activities, whether past or current.[153]
Appendix A: Richardson Review
recommendations relevant to intelligence oversight and Government response
Recommendation 15: DIO’s mandate should be made
publicly available.
Agreed.[154]
Recommendation 16: The intelligence functions of Home
Affairs should not be specified in legislation.
Agreed.[155]
Recommendation 59: The IS Act appropriately
provides for ministerial oversight and visibility of activities to achieve a direct
effect undertaken directly by ASIS and ASD.
Agreed.[156]
Recommendation 138: The collection, retention and use
of reference information by AUSTRAC, Home Affairs and the AFP should continue
to be regulated by the Privacy Act and specific statutory frameworks.
Agreed.[157]
Recommendation 167: ASIS, AGO, ASD, ONI and DIO should
be excluded from the Commonwealth
Ombudsman’s jurisdiction.
Agreed. The Ombudsman currently does not exercise
its jurisdiction over these agencies by convention. This recommendation is
merely intended to formalise this position. This recommendation does not alter
the jurisdiction of the Defence Force Ombudsman, a role the Commonwealth
Ombudsman carries out over the employment and other administrative complaints
of ADF members, including ADF members working for intelligence agencies.[158]
Recommendation 168: The IGIS should not have oversight
of the Department of Home Affairs or the AFP as recommended in the 2017 IIR.
Agreed. The Government agrees that the IGIS should
not have oversight of the intelligence functions of the Department of Home
Affairs or the AFP. The intelligence functions of the Department of Home
Affairs and the AFP are subject to existing and effective oversight mechanisms
given the scope and nature of these functions. Neither the Review, nor the 2017
IIR, identified a gap in the existing oversight of the Department of Home
Affairs or the AFP that justified including these bodies in the jurisdiction of
the IGIS.
Consistent with Recommendation 21 of the 2017 IIR,
the Government will extend the jurisdiction of the IGIS to include the
intelligence functions of the ACIC and AUSTRAC. The Review noted that while the
ACIC and AUSTRAC are already ‘the subject of a range of oversight mechanisms,
the specialised intelligence oversight of the IGIS would more readily add value
and assurance’ in respect of the intelligence functions of the ACIC and
AUSTRAC.[159]
Recommendation 169:
Legislation establishing oversight responsibilities for the NIC should take a
functional approach. Oversight should follow intelligence function, regardless
of the structures used to support performance of the function.
Agreed.[160]
Recommendation 171: The Attorney-General should issue
publicly available guidelines for embedding oversight into NIC legislation. The
guidelines should include the following principles:
171.a Legislation should clearly state oversight
bodies’ jurisdiction.
171.b Any duplication in oversight jurisdiction
should be minimised where possible, while recognising that the elimination of
all overlap would also give rise to unintended gaps.
171.c Laws and guidelines governing NIC agencies
should be clear, precise and unambiguous in their terms and in their
interaction with each other.
171.d Legislation should allow oversight bodies to
exercise discretion in managing their oversight functions and responsibilities.
171.e NIC oversight legislation should avoid overly
prescriptive and detailed inspection or reporting requirements.
171.f Oversight bodies should be able to access all
relevant information from intelligence agencies and appropriately share
information between themselves.
171.g Careful consideration should be given to
dissemination of reports by an oversight body.
171.h NIC agencies should be required to actively
provide information to an oversight body about the use of extraordinary powers.
171.i Legislation (or guidelines, as appropriate)
should be clear about record-keeping obligations and facilitate meaningful
oversight.
171.j Oversight bodies should have a role in
supporting the continuous improvement of agencies’ legislative compliance by
sharing their expertise on compliance best practice, and regularly reviewing
agencies’ guidance materials.
Agreed.[161]
Recommendation 172: The Inspector-General of
Intelligence and Security Act should be amended to preclude the appointment to
the Office of the IGIS of a person whose immediate prior role was as head or deputy
head of an agency within the IGIS’ oversight remit.
Agreed. The IGIS has a unique role as the primary
body with responsibility for intelligence oversight. Accordingly, this
additional safeguard on IGIS's independence (and perceived independence) is appropriate.[162]
Recommendation 173: An independent panel should be
established to provide technical expertise and assistance to the IGIS.
Agreed.[163]
Recommendation 174: The Inspector-General of
Intelligence and Security Act should be amended to give the IGIS an inquiry
function for employment-related grievances of staff employed under the Office
of National Intelligence Act.
Agreed.[164]
Recommendation 175: Agencies should seek legal advice
through in-house counsel or the Australian Government Solicitor, in a manner
consistent with the Legal Services Directions.
Agreed. Although important, consultation with the
IGIS is not a substitute for such legal advice. The IGIS’ statutory functions
include overseeing the compliance of the intelligence agencies with the law,
and the propriety of their activities. The role of the IGIS can rightly include
early engagement with agencies, particularly where there are novel issues or
agencies are using a power for the first time. It is also vital that agencies
continue to proactively report on potential issues to the IGIS.[165]
Recommendation 176: The Australian Government
Solicitor should centrally and electronically store all classified legal
advices provided to National Intelligence Community agencies.
Agreed.[166]
Recommendation 177: The Independent National Security
Legislation Monitor Act should be amended to provide that the INSLM may prepare
and give to the Attorney-General a report on any matter relating to the
performance of the INSLM’s functions at any time. The Attorney-General should
be required to table an (unclassified) copy of the report in each House of the
Parliament within a reasonable time of receiving the report.
Agreed.[167]
Recommendation 178: As a matter of good practice, the
Government should provide a publicly available response to the INSLM’s
recommendations within 12 months of the INSLM’s report being tabled in
Parliament.
Agreed. The Government notes that where the
recommendations of INSLM reports raise complex legal and policy questions, it
may take more than 12 months for the Government to formally respond to those
reports. The Government will continue to endeavour to advise Parliament as soon
as practicable of its responses to future INSLM recommendations.[168]
Recommendation 179: The Independent Reviewer of Adverse
Security Assessments should continue as a standing arrangement.
Agreed.[169]
Recommendation 180: The remit of the Parliamentary
Joint Committee on Intelligence and Security should not be expanded to include
direct oversight of operational activities, whether past or current.
Agreed.[170]
Recommendation 181:
181.a The IIR recommendation to enable the PJCIS to
request the IGIS to conduct an inquiry into the legality and propriety of
particular operational activities, and report to the PJCIS, Prime Minister and
responsible minister, should be implemented.
181.b Changes to enable the PJCIS to make such a
request should make it clear that the PJCIS can only request, not oblige, the
IGIS to conduct an inquiry.
181.c The amendments should also maintain the current
restriction that prevents the PJCIS from requiring a person or body to disclose
operationally sensitive information or information that would or might
prejudice Australia’s national security or the conduct of Australia’s foreign
relations.
Disagreed. Even if the IGIS is not
obliged to conduct an inquiry, the remit of the PJCIS should not be expanded to
include oversight of agencies’ operational activities by requesting the IGIS to
inquire into and report on particular operations.
It remains appropriate for ministers to primarily
oversee operations and be accountable to Parliament. The Government considers
that the IGIS has extensive powers to oversee and inquire into the legality and
propriety of NIC operations. The IGIS already publishes unclassified versions
of reports and appears before the PJCIS on non-operational matters.
The PJCIS may also request the IGIS to brief the
Committee, although the Committee cannot require the IGIS to disclose
operationally sensitive information, under the IS Act. These existing
arrangements appropriately balance accountability with the need to protect
sensitive operations and capabilities, and further oversight by the PJCIS is
not necessary.[171]
Recommendation 182: Existing restrictions that apply
to information disclosure by the PJCIS should continue to apply in respect of
the Inspector-General of Intelligence and Security’s reports or briefings to
the PJCIS on its inquiries.
Agreed.[172]
Appendix B: All Richardson Review
recommendations marked up by policy subject area
The table below analyses the Richardson Review recommendations by policy
subject area. An attempt has been made to highlight the areas potentially of
interest to major interest groups; however, the policy subject areas inevitably
overlap, and the attribution is not precise.
Legend
| # |
Broad
recommendations |
| * |
NIC oversight |
| ^ |
Issue of
warrants and use of powers |
| ∞ |
Recommendations
re the IS Act |
| π |
Recommendations
re a new electronic surveillance Act and use of AI |
| ¤ |
Immunities |
| » |
Freedom of information,
privacy and archives |
| Ʃ |
Secrecy
offences and public interest disclosures |
| Vol. |
No. |
|
Recommendation |
| 1 (166) |
1 |
# |
NIC
agencies should ensure that their induction and ongoing training addresses
the history, background and principles that underpin their legal frameworks
and of the balance in legislation sought by government and the Parliament. |
| 1 (194) |
2 |
^ |
The
sequencing of steps required in the IS Act’s ministerial authorisation
process should be adjusted to enable the responsible minister to authorise an
IS Act agency to produce intelligence on an Australian person and then
seek the Attorney-General’s agreement to that authorisation. The
authorisation would not take effect until the Attorney-General has given
agreement. |
| 1 (199) |
3 |
# |
The
legislation governing the activities of ASIO, ASIS, ASD and AGO should
continue to distinguish between foreign intelligence and security
intelligence. |
| 1 (223) |
4 |
# |
There
should continue to be a distinction between AIC agency activities that take
place onshore and those that take place offshore. |
| 1 (242) |
5 |
^ |
The ASIO
Act and TIA Act should be amended to enable the Director-General of
Security, on a request from the Foreign Minister or Defence Minister, to seek
a warrant from the Attorney-General for the collection of foreign
intelligence on an Australian person who is acting for, or on behalf of, a
foreign power. |
| 1 (244) |
6 |
# |
The
legislation that applies to ASIO, ASD, ASIS and AGO should continue to
distinguish between Australians and non-Australians. |
| 1 (252) |
7 |
|
CLASSIFIED |
| 1 (253) |
8 |
# |
ONI
should develop guiding principles on open source information collection, in
consultation with DIO, Home Affairs, and the IGIS. |
| 1 (254) |
9 |
|
CLASSIFIED |
| 1 (255) |
10 |
^ |
DIO and
Home Affairs should not be included in the assumed identity regime in the Crimes
Act for the purposes of open source information collection. |
| 1 (255) |
11 |
|
CLASSIFIED |
| 1 (257) |
12 |
» |
The ONI
Act should be amended so that the privacy
rules apply only to analytical products of the Open Source Centre. |
| 1 (294) |
13 |
# |
AGO
should be established as a statutory authority before acquisition of a
sovereign geospatial intelligence space capability, with the timing to be
revisited as part of future independent intelligence reviews. |
| 1 (295) |
14 |
# |
DIO
should remain a semi-autonomous organisation within the Department of
Defence. |
| 1 (298) |
15 |
* |
DIO’s
mandate should be made publicly available. |
| 1 (301) |
16 |
* |
The
intelligence functions of Home Affairs should not be specified in
legislation. |
| 1 (314) |
17 |
^ |
The ASIO
Act and any new electronic surveillance framework (incorporating existing
authorities under the TIA Act, the SD Act and relevant parts of the ASIO
Act) should provide that powers vested in the Attorney-General in respect
of ASIO may only be exercised by the Attorney-General and not by a junior
minister. As with section 3A of the IS Act, references to the Attorney-General
should continue to include a person acting as the Attorney-General. |
| 1 (314) |
18 |
^ |
The Law
Officers Act should be amended to remove the ability for the Attorney-General
to delegate his or her power to issue warrants under the ASIO Act to
the Solicitor General, Secretary of the Attorney-General’s Department or any
other officer of the Commonwealth. The current prohibition in respect of
warrants issued under the TIA Act should remain in respect of the new
electronic surveillance framework. |
| 1 (315) |
19 |
^ |
The
Attorney-General’s powers in respect of ASIO should not be able to be
conferred on another minister through an action of the Executive. Legislative
amendment should be required. The ability for the Governor General in Council
to make a substituted reference order in respect of the Attorney-General’s
role in exceptional cases should be retained, but only used in exceptional
circumstances, such as where there is no Attorney-General. |
| 1 (317) |
20 |
^ |
The
ASIO Act and TIA Act (and the new electronic surveillance
framework) should permit the Director-General of Security to approach the
Prime Minister to issue a warrant, where the Attorney-General advises the
Director-General of an actual or apparent conflict of interest, or where the
Director-General is satisfied that the Attorney-General has an actual or
apparent conflict of interest. |
| 1 (318) |
21 |
∞ |
The IS
Act should be amended to permit an agency head to approach another IS
Act minister to issue an authorisation, where the responsible minister
advises the agency head of an actual or apparent conflict of interest, or
where the relevant agency head is satisfied that the authorising minister has
an actual or apparent conflict of interest. |
| 1 (329) |
22 |
# |
Legislative
amendments in respect of ONI’s budget authority are not required. |
| 1 (335) |
23 |
# |
The
Department of Home Affairs does not require cooperation provisions in
legislation. |
| 1 (341) |
24 |
# |
Section
13 of the ONI Act does not require amendment. The legislative
requirement for the Director-General to approve cooperation arrangements with
an authority of another country is appropriate. |
| 1 (350) |
25 |
^ |
The ASIO
Act should be amended to include a ministerial authorisation framework
for ASIO’s offshore intelligence collection activities in respect of
Australian persons, where those activities would require ASIO to seek a
warrant inside Australia. The
Attorney-General’s authorisation should be required irrespective of whether
ASIO’s activities are undertaken in partnership with foreign partners or with
other Australian Intelligence Community agencies. If, when
ASIO seeks a warrant from the Attorney-General to conduct activities in
respect of an Australian person inside Australia, it is reasonably
foreseeable that the person will move offshore during the period of the
warrant, and the warranted conduct can continue offshore, ASIO should inform
the Attorney-General of this and seek his or her authorisation to continue
the conduct offshore. The
Director-General of Security (and only the Director-General) should be
permitted to:
-
make an oral
application to the Attorney-General where he or she believes on reasonable
grounds that the delay in making a written application for ministerial
authorisation of ASIO’s offshore activities would likely defeat the purpose
of obtaining the authorisation, and
-
internally authorise
activities (orally or in writing) where it is not possible to make an oral
application to the Attorney-General.
Where an
activity is authorised internally by the Director-General:
- the Director-General
should be required to notify the Attorney-General in writing as soon as
possible, and no later than 48 hours, after the internal authorisation is
issued, and
the
Director-General should be required to notify the IGIS as soon as possible,
but no later than three days, after the internal authorisation is issued. |
| 1 (356) |
26 |
^ |
DFAT
should be informed before any NIC agency (other than ASIS) conducts covert
human intelligence activity in another country without the agreement of the
host authorities. DFAT is responsible for determining whether the Foreign
Minister should be advised of the activity. |
| 1 (356) |
27 |
# |
Processes
for managing foreign relations risks, including determining the agencies
subject to these processes, should be considered each time there is an
Independent Intelligence Review. |
| 1 (373) |
28 |
# |
The
Commonwealth should not develop a common legislative framework in the form of
a single Act governing all or some NIC agencies. |
| 2 (48) |
29 |
# |
NIC
legislation should not be amended to include standalone proportionality tests
as part of the threshold for the authorisation of intrusive powers. |
| 2 (61) |
30 |
# |
Ministers
should continue to authorise ASIO and IS Act agency activities. These
authorisations should not also be subject to judicial or other independent
authorisation. |
| 2 (64) |
31 |
^ |
All ASIO
warrants and special intelligence operation authorisations should be reviewed
by the Attorney-General’s Department, noting the need for appropriate
security clearances and relevant briefings. |
| 2 (65) |
32 |
^ |
In
circumstances of extreme urgency ASIO should provide warrants or authorisations
to the Attorney-General without review by the Attorney- General’s Department.
In such situations, ASIO should advise the Attorney-General that the warrant
or authorisation has not been reviewed by the Department, and subsequently
present the warrant or authorisation to the Department for review. |
| 2 (66) |
33 |
∞ |
Existing
consultation processes for ministerial authorisations under the IS Act are
robust and support an appropriate level of assurance. These processes should
continue. |
| 2 (88) |
34 |
^ |
The
duration of search warrants in the ASIO Act should be kept at 90 days. |
| 2 (89) |
35 |
^ |
The
duration of inspection of postal articles and inspection of delivery service
articles warrants in the ASIO Act should be kept at six months. |
| 2 (93) |
36 |
^ |
ASIO
should be required to keep accurate records of all individuals involved in
the execution of a warrant. The requirement for ASIO to specify who may
exercise authority under a warrant in section 24 of the ASIO Act
should be retained. |
| 2 (94) |
37 |
^ |
The ASIO
Act should be amended to make it clear that the permissible scope of
classes under section 24 includes changes to, or expansion of, the class
which occur after the authorisation is initially made. |
| 2 (96) |
38 |
^ |
ASIO
should continue to seek foreign intelligence collection warrants from the
Attorney-General for activities within Australia that require a warrant, on
the advice of the Foreign Minister or Defence Minister. |
| 2 (98) |
39 |
^ |
The
maximum duration of foreign intelligence collection warrants in the ASIO
Act should remain at six months for all powers except search warrants,
which should remain at 90 days, except in the limited circumstances, and
subject to the additional safeguards, described in our classified report. |
| 2 (99) |
40 |
|
CLASSIFIED |
| 2 (105) |
41 |
∞ |
The IS
Act should be amended to provide that an agency is ‘producing
intelligence’ on an Australian person or a class of Australian persons only
if:
-
the agency
undertakes a covert and intrusive activity, or a series of covert and
intrusive activities, or
-
the agency expressly
or impliedly requests a body, authority, organisation or group to undertake a
covert and intrusive activity, or a series of covert and intrusive activities
to obtain that intelligence.
|
| 2 (108) |
42 |
∞ |
The IS
Act should continue to provide that an IS Act agency can only
undertake activities for the specific purpose of producing intelligence on an
Australian in relation to a serious crime where the minister is satisfied
that person is, or is likely to be, involved in committing a serious crime
by: moving money, goods or people; using or transferring intellectual
property; or transmitting data or signals by means of guided and/or unguided
electromagnetic energy. |
| 2 (118) |
43 |
^ |
The ASIO
Act and the new electronic surveillance Act should not allow warrants to
be issued in respect of a class of persons, subject to the recommendations
about groups and foreign organisations in relation to electronic surveillance
powers (see Chapter 28). |
| 2 (119) |
44 |
∞ |
A broad
intelligence warrant should not be introduced to allow IS Act agencies
to collect intelligence in accordance with their functions inside Australia. |
| 2 (124) |
45 |
∞ |
The 2017
Independent Intelligence Review recommendation, that IS Act agencies
be able to obtain ministerial authorisation in respect of a class of
Australian persons where the class is defined by reference to involvement
with a terrorist organisation proscribed for the purposes of the Criminal
Code, should be implemented (Recommendation 16(a)). This should include
the following requirements:
-
the responsible
minister may only issue the authorisation after obtaining the agreement of
the Attorney-General
-
the authorisation
must not exceed six months
- IS Act agencies must maintain a current list of
all individuals on whom it sought to produce intelligence under the class
authorisation with reasons why the agency believed the individual to be part
of the class
-
this list should be
provided to ASIO for visibility and to coordinate counter terrorism
activities, and be available for inspection and review by the IGIS, who may
provide advice to the agency head and responsible minister, and
-
agencies must report
to the responsible minister within six months of the original authorisation
providing details on activities undertaken and attaching the current list of
individuals that fall within the class.
|
| 2 (127) |
46 |
^ |
The 2017
IIR recommendation to allow AGO and ASD, like ASIS, to obtain a ministerial
authorisation in relation to a class of Australians in respect of activities
performed when assisting the Australian Defence Force should be implemented
(Recommendation 16(b)). |
| 2 (128) |
47 |
∞ |
The IS
Act should not be amended to allow ministers to issue a class ministerial
authorisation in any circumstance the minister considers appropriate. |
| 2 (143) |
48 |
^ |
The ASIO
Act should be amended to, and the new electronic surveillance Act should,
provide for the issuing of ASIO warrants in emergencies as follows: The
Attorney-General must issue ASIO warrants in writing wherever possible. The
Attorney-General may orally authorise a warrant, on application from the
Director-General of Security, if he or she believes on reasonable grounds
that the delay in making a written application would likely defeat the
purpose of obtaining the warrant. The threshold for issuing the warrant should
remain as for the Attorney-General’s consideration of a written application. The
Director-General of Security may authorise activities in writing where it is
not possible to make an oral application to the Attorney-General. This must
be limited to circumstances where the Attorney-General is unavailable, or
where making an oral application would pose an unacceptable risk to
operational security. The threshold for the Director-General issuing the
warrant should remain as for the Attorney-General’s consideration of a
written application. The
Director General of Security may only orally authorise an emergency warrant
where it is not possible to make an oral application to the Attorney-General
(as defined above), and where delay in authorising the application in writing
would defeat the purpose of obtaining the warrant. The threshold for the
Director-General issuing the warrant should remain as for the Attorney-General
issuing a warrant. |
| 2 (144) |
49 |
^ |
Where a
warrant is authorised orally:
-
the Director-General
must ensure that a written record of the warrant is made as soon as possible,
but no later than 48 hours, after the authorisation is issued
-
the Director-General
should provide a copy of the record to the IGIS as soon as possible, but no
later than three days, after the authorisation is issued, and
-
the IGIS should be
required to provide a report to the Attorney- General on whether the
Director-General complied with the legislative requirements in giving the
authorisation.
|
| 2 (145) |
50 |
^ |
The
power to issue emergency warrants should be vested only in the Director-General
of Security, or any person acting in that position, and should not be able to
be delegated to any other ASIO officer. |
| 2 (146) |
51 |
^ |
The
Director-General of Security should be required to submit a written warrant
application to the Attorney-General as soon as possible, but no later than 48
hours, after the authorisation is issued. On receipt of the written
application, the Attorney-General must decide whether to:
-
endorse the
authorisation, and issue a regular warrant authorising ongoing activities
-
endorse the
authorisation, but decline to issue a regular warrant authorising ongoing
activities and direct that activities cease, or
-
invalidate the
authorisation, and direct that any material obtained under that authorisation
be quarantined from further use (other than for limited purposes relating to
oversight, or any investigation or proceeding relating to the activities).
|
| 2 (148) |
52 |
∞ |
The
emergency authorisation provisions in the IS Act do not require
amendment, beyond implementing amendments to address situations where it is
reasonable to believe that an Australian person consents to the production of
intelligence by the IS Act agency on that person, as recommended by
the 2017 Independent Intelligence Review. |
| 2 (154) |
53 |
∞ |
For the
purposes of section 9 of the IS Act, the Minister should continue to
obtain the Attorney-General’s agreement before authorising activities with
respect to Australians involved in threats to security. |
| 2 (154) |
54 |
∞ |
Section
13B of the IS Act should continue to require ASIO to notify ASIS that
it requires ASIS’s assistance to undertake activities to support ASIO in the
performance of its functions. |
| 2 (156) |
55 |
∞ |
The IS
Act should not be amended to allow ASIO to request ASIS to produce
‘foundational intelligence’ on a person suspected to be an Australian person
using methods that would require a warrant
if undertaken in Australia. |
| 2 (159) |
56 |
¤ |
The
immunities in section 14 of the IS Act should not be extended. |
| 2 (164) |
57 |
∞ |
Section
13B of the IS Act should not be extended to apply to ASIS’s onshore
activities. |
| 2 (164) |
58 |
∞ |
Current
arrangements under section 13B of the IS Act should not be extended to
ASD and AGO. |
| 2 (172) |
59 |
* |
The IS
Act appropriately provides for ministerial oversight and visibility of
activities to achieve a direct effect undertaken directly by ASIS and ASD. |
| 2 (173) |
60 |
∞ |
IS
Act agencies should
advise their minister, when seeking a producing intelligence ministerial
authorisation to cooperate with the ADF or ASIS, that intelligence provided
by it may be used to achieve a direct effect. |
| 2 (174) |
61 |
∞ |
IS
Act agencies should
advise the responsible minister, when seeking a producing intelligence
authorisation on an Australian, of the likelihood that a foreign partner may
use the reporting produced to achieve a direct effect. If,
during the course of the authorisation period, the agency becomes aware that
a foreign partner is using the information to achieve a direct effect, the
agency should notify the minister. |
| 2 (175) |
62 |
^ |
ASIO
should be required to seek authorisation from the Attorney-General for
unilateral activities undertaken offshore, and when communicating
intelligence to a foreign partner, where it is reasonably foreseeable that
undertaking the activities will result in:
-
the death of, or
serious harm to, the Australian person
-
the Australian
person being detained, arrested, charged with or convicted of an offence
punishable by the death penalty, or
-
the Australian
person being subject to torture or other cruel, inhuman or degrading
treatment or punishment.
|
| 2 (177) |
63 |
# |
Ministerial
directions or guidelines providing guidance on the meaning of the term
‘direct effect’ should be issued to each of ASIS, ASD, AGO and ASIO. |
| 2 (185) |
64 |
¤ |
ASIO
should not have a broad immunity from criminal liability for its activities. |
| 2 (188) |
65 |
^ |
The
Attorney-General, when issuing a warrant under the ASIO Act, should be
empowered to specify particular things ASIO can do that are necessary and
proportionate to achieve the purpose of the warrant. |
| 2 (192) |
66 |
^ |
The
defence in subsection 474.6(7) of the Criminal Code should be extended
for ASIO so that it applies to all offences in section 474.6 (Interference
with facilities). The defence should only be available where ASIO officers
are acting in the course of their duties, and where that conduct is
reasonable in the circumstances for the purpose of performing those duties. |
| 2 (195) |
67 |
# |
The
ONI-led National Intelligence Community Legislation Forum should be informed
of all upcoming criminal law Bills to ensure consultation with all NIC
agencies occurs at the policy and drafting stages, before a Bill is
introduced to Parliament. |
| 2 (214) |
68 |
^ |
Applications
to the Attorney-General for a special intelligence operation authorisation
should only be made by the Director-General of Security. |
| 2 (218) |
69 |
^ |
A
special intelligence operation authority obtained under the ASIO Act
should continue to describe the nature of the conduct in which identified
persons are authorised to engage. |
| 2 (221) |
70 |
∞ |
The IS Act should be amended to provide
that the Director General of ASIS can authorise the use of a Commonwealth department
or agency as the cover employer for ASIS officers. |
| 2 (221) |
71 |
^ |
The ASIO
Act should be amended to provide that the Director-General of Security
can authorise the use of a Commonwealth department or agency as the cover
employer for ASIO employees and affiliates. |
| 2 (225) |
72 |
¤ |
The Criminal
Code should be amended to give Australian Defence Force members immunity
under Part 10.7 for computer-related acts done outside Australia in the
course of properly declared operations under legally approved rules of
engagement. |
| 2 (226) |
73 |
¤ |
The Criminal
Code should not be amended to give Australian Defence Force members
immunity for telecommunications offences in Part 10.6. |
| 2 (227) |
74 |
¤ |
The
current immunity in section 476.5 of the Criminal Code for ASIS, ASD
and AGO should be extended to apply where a staff member or agent reasonably
believes the relevant conduct is likely to take place outside Australia,
whether or not it in fact takes place outside Australia. This should also
apply to the Australian Defence Force, if it is included within the immunity
in section 476.5. |
| 2 (268) |
75 |
# |
The SD
Act, TIA Act and those parts of the ASIO Act governing the
use of computer access and surveillance devices powers should be repealed and
replaced with a new Act. |
| 2 (273) |
76 |
^ |
Agencies
should continue to be required to obtain separate warrants to authorise
covert access to communications, computer access or the use of a listening or
optical surveillance device under a new Act. The Act should not introduce a
‘single warrant’ capable of authorising all electronic surveillance powers. |
| 2 (277) |
77 |
π |
As part
of the development of a new electronic surveillance Act, AUSTRAC should be
able to access telecommunications data in its own right under arrangements
consistent with other Commonwealth, state and territory law enforcement
agencies presently authorised to access telecommunications data. |
| 2 (279) |
78 |
π |
As part
of the development of a new electronic surveillance Act, corrective services
authorities should be granted the power to access telecommunications data, if
the relevant state or territory government considers it to be necessary. |
| 2 (281) |
79 |
π |
As part
of the development of a new electronic surveillance Act:
-
electronic
surveillance powers should be vested in the Australian Border Force, not the
Department of Home Affairs, and
-
the Australian
Border Force should also be granted the power to use tracking devices under
warrant and authorisation, for the purpose of serious criminal
investigations.
|
| 2 (285) |
80 |
π |
Electronic
surveillance should only be authorised where it is necessary for, and
proportionate to, the purposes of an investigation. |
| 2 (288) |
81 |
π |
Electronic
surveillance should be directed at persons who are under investigation,
subject to limited exceptions in relation to third parties, groups,
unidentified persons and foreign intelligence. To the extent that
person-based, third party and group warrants are not adequate to address all
cases, an object or premises-based warrant should be retained. |
| 2 (292) |
82 |
π |
Electronic
surveillance warrants should be available in respect of a person who is not
under investigation (a third party), where the issuing authority is satisfied
that, in addition to the test for an ordinary warrant, obtaining information
under a warrant in respect of the subject of the investigation would be
impractical or ineffective. |
| 2 (293) |
83 |
π |
Electronic
surveillance warrants should be available in respect of a group where the
issuing authority is satisfied that:
-
the group has
engaged in, or is reasonably suspected of having engaged in, or being engaged
in, or being likely to engage in common activities, that would justify the
issue of an electronic surveillance warrant, and
-
obtaining warrants
in respect of the individual members of the group would be impractical or
ineffective.
|
| 2 (294) |
84 |
π |
Electronic
surveillance warrants should continue to be available in respect of a person
who cannot be identified at the time of the warrant application. |
| 2 (295) |
85 |
π |
Foreign
intelligence warrants with respect to foreign organisations should be
retained in the new electronic surveillance Act. |
| 2 (299) |
86 |
π |
The
Attorney-General should be permitted to issue warrants authorising ASIO to
intercept telecommunications, access stored communications, access computers,
and use optical and listening devices under a new Act, if satisfied that:
-
a person is engaged
in, or is reasonably suspected of being engaged in or of being likely to
engage in, activities relevant to security, and
-
the exercise of
powers under the warrant in respect of the person is likely to substantially
assist ASIO in obtaining intelligence in respect of a matter that is
important in relation to security.
|
| 2 (310) |
87 |
π |
An
issuing authority should be permitted to issue warrants authorising a law
enforcement agency to intercept telecommunications, access stored communications,
access computers, and use optical and listening devices under a new Act, if
he or she is satisfied that:
-
a person has
committed, or is reasonably suspected of committing or of being likely to
commit, an offence that is punishable by a maximum penalty of at least five
years’ imprisonment, and
-
the exercise of
powers under the warrant in respect of the person is likely to substantially
assist the agency in the investigation of the offence.
|
| 2 (312) |
88 |
π |
Electronic
surveillance powers should be available to the ACIC for the purposes of
special investigations, as well as for evidentiary investigations carried out
under the authority of a special operation. |
| 2 (315) |
89 |
π |
Under a
new electronic surveillance Act, offences should only be included as
exceptions to the five year threshold for surveillance if they are punishable
by at least three years’ imprisonment and the use of electronic surveillance
powers is necessary in order to effectively investigate the offences. |
| 2 (316) |
90 |
π |
Under a
new electronic surveillance Act, surveillance device powers should continue
to be available for the purposes of integrity operations. |
| 2 (316) |
91 |
π |
Agencies
should continue to be permitted to obtain warrants to use electronic
surveillance powers to monitor persons subject to control orders, for mutual
assistance purposes, to assist with an order for the recovery of a child, and
other similar purposes currently contained in the TIA Act and the SD
Act. |
| 2 (317) |
92 |
π |
The use
of tracking devices should be regulated separately from other electronic
surveillance powers in a new electronic surveillance Act. |
| 2 (318) |
93 |
π |
Under a
new Act, ASIO’s tracking device warrants should be subject to the same test
as ASIO’s other electronic surveillance warrants. |
| 2 (320) |
94 |
π |
A new
electronic surveillance Act should allow an issuing authority to authorise a
law enforcement agency to use a tracking device if satisfied that:
-
a person has
committed, or is reasonably suspected of committing or of being likely to
commit an offence that is punishable by a maximum penalty of at least three
years’ imprisonment, and
-
the use of a
tracking device under the warrant in respect of the person is likely to
assist the agency in the investigation of the offence.
|
| 2 (322) |
95 |
π |
ASIO and
law enforcement agencies should be permitted to internally authorise the use
of a tracking device, where:
-
the installation and
use of the device will not involve entry onto premises or interference with
the interior of a vehicle without permission, and
-
the use of a
tracking device would otherwise meet the threshold for a warrant—that is, in
the case of law enforcement agencies the device will be used for the purposes
of the investigation of an offence punishable by a maximum penalty of at
least three years’ imprisonment, and in the case of ASIO the device will be
used in respect of a matter that is important in relation to security.
|
| 2 (325) |
96 |
π |
Future
reviews should re-evaluate the legal framework for tracking a person by accessing
location data from carriers once the 5G network roll-out is substantially
complete, to determine whether access to network data has become functionally
equivalent to using a tracking device. |
| 2 (328) |
97 |
π |
A new
electronic surveillance Act should accommodate the issuing of warrants to law
enforcement agencies in emergencies as follows.
-
An issuing authority
must issue law enforcement warrants in writing wherever possible.
-
An issuing authority
may orally authorise a warrant, on application from an agency, if he or she
believes on reasonable grounds that the delay in making a written application
would likely defeat the purpose of obtaining the warrant. The threshold for
issuing the warrant should remain the same as for the issuing authority’s
consideration of a written application.
|
| 2 (329) |
98 |
π |
The
relevant minister should continue to report on law enforcement agencies’ use
of time-sensitive warrants in his or her annual report. |
| 2 (329) |
99 |
π |
Where a
law enforcement warrant is authorised orally, the head of the agency should
be required to make a written record and provide a copy to the Ombudsman as
soon as possible. The Ombudsman should be required to provide a report to the
Attorney-General on whether the agency head complied with the legislative
requirements in giving the authorisation. |
| 2 (329) |
100 |
π |
The law
enforcement agency should be required to submit a written warrant application
to an issuing authority as soon as possible. On receipt of the written
application, the issuing authority must decide whether to issue a warrant,
decline to issue a warrant, or decline to issue a warrant and invalidate the
authorisation. |
| 2 (331) |
101 |
π |
A new
electronic surveillance Act should enable law enforcement agencies to use
electronic surveillance powers, without a requirement to obtain a warrant,
to:
-
prevent or lessen
imminent threats to life, or of serious harm or damage to property
-
locate and
investigate suspected kidnappings
-
locate missing
persons, and
-
recover a child
subject to a child recovery order,
where an
officer reasonably suspects that the circumstances are so urgent as to
require the immediate use of the power, and that it is not practicable in the
circumstances to apply for a warrant. |
| 2 (332) |
102 |
π |
A new
electronic surveillance Act should continue to permit ASIO and law
enforcement agencies to use optical and listening devices, without obtaining
a warrant, in limited circumstances in the performance of their duties, where:
-
in the case of an
optical surveillance device—the installation and use does not involve
unauthorised entry onto premises or interference with a vehicle or thing, and
-
in the case of a
listening device—the device is used to record a conversation to which an
officer or agent is party, or could be reasonably expected to overhear.
|
| 2 (337) |
103 |
π |
A new
electronic surveillance Act should require ASIO and law enforcement agencies
to specify, in writing, the people or class of people who may exercise the authority
of a warrant, and to keep accurate records of all individuals involved in the
execution of a warrant. |
| 2 (342) |
104 |
π |
As part
of a new electronic surveillance Act, the Attorney-General or issuing
authority should have the discretion to approve an agency to vary minor,
specified aspects of a warrant while it is in force, if he or she is
satisfied that it is necessary to do so. Agencies should not have the
authority to vary warrants beyond such minor variations. |
| 2 (342) |
105 |
π |
When
agencies make minor modifications to warrants, they should be required to:
-
apply the same
statutory test when deciding whether to vary a warrant as the issuing
authority applied at the time the warrant was issued
-
make any variations
in writing, other than in urgent cases which should follow a similar
procedure to time-sensitive authorisations, and
-
list and explain all
variations when seeking a renewal of the warrant, or reporting to the
Attorney-General.
|
| 2 (347) |
106 |
π |
The
development and testing framework that is presently contained in Part 2-4
of the TIA Act should be extended to enable the Attorney-General to
authorise the testing and development of electronic surveillance and cyber
capabilities, as part of a new electronic surveillance Act. |
| 2 (348) |
107 |
π |
The development
and testing framework should be extended, as part of a new Act, to enable the
Attorney-General to authorise the use of electronic surveillance and cyber
capabilities for the purposes of:
-
training personnel
on technologies and capabilities, and
-
maintaining,
improving, repairing and evaluating the performance of technologies and
capabilities.
|
| 2 (351) |
108 |
π |
The
development and testing authorisation framework should permit the Attorney-General
to authorise the retention of information obtained under another testing
authorisation, or a separate warrant, authorisation or power, as well as non
compliant information, as part of a new Act. |
| 2 (371) |
109 |
π |
The core
definitions in a new electronic surveillance Act should:
-
provide clarity to
agencies, oversight bodies and the public about the scope of agencies’ powers
-
ensure that there
are no gaps in the types of information that agencies may intercept, access
or obtain under warrants and authorisations, and
-
be capable of
applying to new technologies over time.
|
| 2 (378) |
110 |
π |
A new
electronic surveillance Act should not require carriers, carriage service
providers or other regulated companies to develop and maintain ‘attribute
based’ interception capabilities. These companies should continue to be
required to develop and maintain the capability to intercept communications
sent and received by specified services and devices. |
| 2 (379) |
111 |
π |
Under a
new electronic surveillance Act, the Attorney-General should be given the
power to require a company to develop and maintain a specified attribute-based
interception capability. If such a capability has been developed, agencies
should be able to obtain attribute-based interception warrants in cases where
it will be practicable for the warrant to be executed. |
| 2 (380) |
112 |
π |
As part
of a new electronic surveillance Act, ASIO and law enforcement agencies
should be permitted to use their own attribute-based interception
capabilities, in conjunction with service providers, under warrant. |
| 2 (382) |
113 |
π |
As part
of a new electronic surveillance Act, law enforcement agencies should
continue to be able to request an issuing authority to impose a condition or
restriction on a warrant, requiring that specified communications that are
unlikely to be relevant to the matter under investigation not be intercepted,
or be promptly destroyed once they are delivered to the agency. |
| 2 (383) |
114 |
π |
Interception
warrants issued under a new electronic surveillance Act should be capable of authorising
the interception of communications by reference to one or more services or
devices that the person (or group) who is the subject of the warrant uses, or
is likely to use. |
| 2 (386) |
115 |
π |
Law
enforcement agencies should only be permitted to use deployable interception
capabilities, beyond the circumstances presently provided for in the TIA
Act, under the following conditions:
-
where the agency has
certified, in consultation with service providers, that the use of its
capabilities will not interfere with the operation of the telecommunications
network, and
-
subject to the
development of arrangements for agencies to compensate a service provider,
should the use of their capabilities cause damage to, or seriously disrupt,
the telecommunications network.
|
| 2 (391) |
116 |
π |
A new
electronic surveillance Act should retain specific secrecy offences for the
use and disclosure of, and other dealings with, information obtained by, and
relating to, electronic surveillance. |
| 2 (393) |
117 |
π |
A new
electronic surveillance Act should continue to prohibit the use and
disclosure of, and other dealings with, information obtained as a result of
unlawful surveillance activities. |
| 2 (395) |
118 |
π |
Secrecy
offences in a new electronic surveillance Act should apply to a defined
category of ‘entrusted persons’, who have obtained information in an official
capacity, or under an agreement or arrangement with an agency. The offences
applying to ‘entrusted persons’ should not require that the disclosure or
other conduct cause, or be likely or intended to cause, harm to an essential
public interest. |
| 2 (397) |
119 |
π |
Secrecy
offences in a new electronic surveillance Act should continue to apply to
‘outsiders’. However, the ‘outsider’ offences should differentiate between
information obtained by electronic surveillance and information related to,
or otherwise connected with, electronic surveillance—the latter of which
should require that the disclosure or other conduct cause, or be likely or
intended to cause, harm to an essential public interest. |
| 2 (400) |
120 |
π |
Existing
use and disclosure provisions in the SD Act and the TIA Act
should be replaced with simple, principles-based rules that maintain strict
limitations on the use and disclosure of information obtained by electronic
surveillance. |
| 2 (403) |
121 |
π |
A new
electronic surveillance Act should permit the use and disclosure of, and
other dealings with, surveillance information for the purpose for which the
information was originally and lawfully obtained. |
| 2 (411) |
122 |
π |
A new
electronic surveillance Act should permit agencies to use, disclose and
otherwise deal with surveillance information for a defined range of secondary
purposes, including:
-
the performance of
functions by ASIO, ASIS, ASD, AGO, ACIC, IGIS and the Commonwealth Ombudsman
-
the investigating or
prosecuting of a criminal offence punishable by a maximum penalty of at least
three years’ imprisonment
-
crime-related
proceedings, such as bail, parole, proceeds of crime, control order,
preventative detention order or continuing detention order proceedings
-
purposes relating to
corruption or serious misconduct by public officials
-
the provision of
mutual legal assistance to a foreign country under the Mutual Assistance
in Criminal Matters Act 1987, and
-
the prevention or
lessening of a serious risk to individual life, health or safety, or
substantial damage to property.
|
| 2 (412) |
123 |
π |
A new
electronic surveillance Act should continue to permit the use and disclosure
of, and other dealings with, surveillance information for a defined range of
miscellaneous purposes that fall outside the scope of the recommended primary
and secondary purpose provisions. |
| 2 (414) |
124 |
π |
A new
electronic surveillance Act should enable agencies to disclose surveillance
information to any person or authority, provided the disclosure is for a
permitted purpose. |
| 2 (421) |
125 |
π |
A new
electronic surveillance Act should require ASIO to destroy records of
information obtained by electronic surveillance, as soon as reasonably
practicable after the information is no longer required for the performance
of its functions or exercise of its powers, and to ensure such information is
rendered inaccessible pending its destruction. |
| 2 (426) |
126 |
π |
A new
electronic surveillance Act should require law enforcement agencies to
destroy records of information obtained by electronic surveillance and ensure
the information is inaccessible pending destruction, as soon as reasonably
practicable after:
-
the agency is
satisfied that the records are not required for a specified purpose (being a
purpose for which the information may be used and disclosed), or
-
five years unless
the agency positively certifies the records are required for a specified
purpose.
|
| 2 (428) |
127 |
» |
A new
electronic surveillance Act should require Commonwealth, state and territory
agencies (other than ASIO, IS Act agencies and law enforcement agencies) to
destroy records of information obtained by electronic surveillance consistent
with the destruction requirement for law enforcement agencies recommended
above. IS Act agencies should be subject to destruction requirements
consistent with their privacy rules. |
| 2 (431) |
128 |
π |
ASIO
conduct under a new electronic surveillance Act should continue to be
overseen by the IGIS. |
| 2 (433) |
129 |
π |
The
Commonwealth Ombudsman should have oversight responsibility for the use of
Commonwealth electronic surveillance powers by all agencies other than ASIO. |
| 2 (433) |
130 |
π |
The
existing ability of the Commonwealth Ombudsman to exchange information with
state and territory counterparts should be maintained. |
| 2 (435) |
131 |
π |
The
Ombudsman should oversee the compliance of all agencies (other than ASIO)
with a new electronic surveillance Act, including state and territory
agencies. |
| 2 (442) |
132 |
π |
Under a
new electronic surveillance Act, the Ombudsman’s reporting requirements
should be harmonised, including so that all reports are tabled by the
Minister in full, except where information has been redacted in order to
avoid prejudice to security, the defence of Australia, Australia’s relations
with other countries, law enforcement operations, the privacy of individuals
or to avoid danger to a person’s safety. |
| 2 (443) |
133 |
|
CLASSIFIED |
| 2 (444) |
134 |
|
CLASSIFIED |
| 3 (48) |
135 |
» |
A common
legislative framework for NIC information sharing, either in the form of a
single Act that regulates information sharing or a new Act that facilitates
information sharing, should not be adopted. |
| 3 (51) |
136 |
» |
Exclusions
in the spent convictions scheme in Part VIIC of the Crimes Act should
be expanded to enable ASIO to use, record and disclose spent conviction
information for the performance of its functions. |
| 3 (71) |
137 |
» |
NIC
agencies do not require new powers or authorities to collect or obtain
reference information. |
| 3 (76) |
138 |
» |
The
collection, retention and use of reference information by AUSTRAC, Home
Affairs and the AFP should continue to be regulated by the Privacy Act
and specific statutory frameworks. |
| 3 (83) |
139 |
» |
The ASIO
Guidelines and the Privacy Rules for ASIS, ASD, AGO, ONI, DIO and the ACIC
should be amended to deal with the collection, retention, use and disclosure
of reference information concerning Australian persons. |
| 3 (85) |
140 |
» |
The ASIO
Guidelines and the Privacy Rules for ASIS, ASD, AGO, ONI, DIO and the ACIC
should require each agency to regularly review its holdings of reference
information, and to destroy information unless it is necessary and
proportionate to continue retaining it. Any such requirement should reflect
each agency’s functions and activities, including the ACIC’s statutory
function of holding national policing information on behalf of Commonwealth,
state and territory law enforcement agencies. |
| 3 (87) |
141 |
» |
Future
Independent Intelligence Reviews should reconsider whether statutory controls
on the collection, retention or use of reference data are required. |
| 3 (111) |
142 |
Ʃ |
Specific
secrecy offences are not required to protect the identities of ASD officers
or members of the ADF Special Operations Command. |
| 3 (117) |
143 |
Ʃ |
The
secrecy offences in sections 39-40M of the IS Act should be
consolidated. The scope of the offences should not be expanded. |
| 3 (128) |
144 |
Ʃ |
Current
mechanisms for public interest disclosures of information obtained by, or
relating to, NIC agencies remain appropriate. Neither the specific secrecy
offences applying to NIC agencies, nor the general secrecy offences in the Criminal
Code, should be amended to include an exception or defence for
disclosures made in the public interest. |
| 3 (131) |
145 |
Ʃ |
The IGIS
should be subject to a legislative requirement to report annually on public
interest disclosures received by, and complaints about similar conduct made
to, the IGIS. |
| 3 (135) |
146 |
Ʃ |
Specific
secrecy offences applying to agencies within the IGIS’ jurisdiction should
contain exceptions to permit disclosures of information to, and by, IGIS
officials. |
| 3 (152) |
147 |
|
CLASSIFIED |
| 3 (159) |
148 |
|
CLASSIFIED |
| 3 (161) |
149 |
|
CLASSIFIED |
| 3 (165) |
150 |
|
CLASSIFIED |
| 3 (165) |
151 |
|
CLASSIFIED |
| 3 (166) |
152 |
|
CLASSIFIED |
| 3 (168) |
153 |
|
CLASSIFIED |
| 3 (190) |
154 |
π |
ONI
should coordinate NIC agencies’ development of governance and ethical
frameworks for the use of artificial intelligence capabilities for
intelligence purposes. |
| 3 (194) |
155 |
π |
The
requirement to have human involvement in significant or adverse decisions
made by automated capabilities or artificial intelligence should be
maintained. Similar controls should be included when new artificial
intelligence capabilities are developed and implemented. |
| 3 (201) |
156 |
π |
Where a
NIC agency relies on an artificial intelligence capability to contribute to
the production of intelligence that is subsequently relied on to make a
decision (by that agency or another government entity), the NIC agency should
be able to explain how it produced that intelligence— including how the
artificial intelligence capability contributed to that intelligence. |
| 3 (201) |
157 |
π |
Artificial
intelligence capabilities, and their outputs, should not be protected from
examination in legal proceedings merely because of the involvement of
artificial intelligence. |
| 3 (206) |
158 |
π |
Future
Independent Intelligence Reviews should consider the use of artificial
intelligence for intelligence purposes. |
| 3 (206) |
159 |
π |
The
PJCIS should receive a briefing from agencies on the development of their
artificial intelligence-based intelligence capabilities at least once per
year. |
| 3 (215) |
160 |
π |
ASIO
already lawfully engages in threat reduction and disruption activities and
there is no need for it to have a statutory threat reduction or disruption
function. |
| 3 (218) |
161 |
∞ |
ASD’s
cybercrime function under section 7(1)(c) of the IS Act should not be
extended to apply onshore. |
| 3 (221) |
162 |
π |
The AFP,
with ASD’s assistance, should develop high end capability to fight cybercrime
and fully utilise its existing powers to disrupt online offending. |
| 3 (228) |
163 |
^ |
The ACC
Act should not be amended to introduce a covert or delayed notification
search warrant power for the ACIC. |
| 3 (231) |
164 |
^ |
The ACC
Act should not be amended to allow the conduct of coercive examinations
offshore. |
| 3 (233) |
165 |
¤ |
The ACC
Act should not be amended to include a civil immunity for private sector
bodies that have provided information to the ACIC voluntarily or on request. |
| 3 (235) |
166 |
^ |
The
ACIC’s notice to produce powers under the ACC Act should not be
amended to allow it to compel the ongoing disclosure of information over a
particular time period. |
| 3 (244) |
167 |
* |
ASIS,
AGO, ASD, ONI and DIO should be excluded from the Commonwealth Ombudsman’s
jurisdiction. |
| 3 (262) |
168 |
* |
The IGIS
should not have oversight of the Department of Home Affairs or the AFP
as recommended in the 2017 IIR. |
| 3 (263) |
169 |
* |
Legislation
establishing oversight responsibilities for the NIC should take a functional
approach. Oversight should follow intelligence function, regardless of the
structures used to support performance of the function. |
| 3
(267) |
170 |
* |
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.
This requirement should be included in the Legislation Handbook. |
| 3 (271) |
171 |
* |
The
Attorney-General should issue publicly available guidelines for embedding
oversight into NIC legislation. The guidelines should include the following
principles:
-
Legislation should
clearly state oversight bodies’ jurisdiction.
-
Any duplication in
oversight jurisdiction should be minimised where possible, while recognising
that the elimination of all overlap would also give rise to unintended gaps.
-
Laws and guidelines
governing NIC agencies should be clear, precise and unambiguous in their
terms and in their interaction with each other.
-
Legislation should
allow oversight bodies to exercise discretion in managing their oversight
functions and responsibilities.
-
NIC oversight
legislation should avoid overly prescriptive and detailed inspection or
reporting requirements.
-
Oversight bodies
should be able to access all relevant information from intelligence agencies
and appropriately share information between themselves.
-
Careful
consideration should be given to dissemination of reports by an oversight
body.
-
NIC agencies should
be required to actively provide information to an oversight body about the
use of extraordinary powers.
-
Legislation (or
guidelines, as appropriate) should be clear about record keeping obligations
and facilitate meaningful oversight.
-
Oversight bodies
should have a role in supporting the continuous improvement of agencies’
legislative compliance by sharing their expertise on compliance best
practice, and regularly reviewing agencies’ guidance materials.
|
| 3 (278) |
172 |
* |
The IGIS
Act should be amended to preclude the appointment to the Office of the
IGIS of a person whose immediate prior role was as head or deputy head of an
agency within the IGIS’ oversight remit. |
| 3 (281) |
173 |
* |
An independent
panel should be established to provide technical expertise and assistance to
the IGIS. |
| 3 (285) |
174 |
* |
The IGIS Act
should be amended to give the IGIS an inquiry function for employment related
grievances of staff employed under the ONI Act. |
| 3 (289) |
175 |
* |
Agencies should
seek legal advice through in-house counsel or the Australian Government
Solicitor, in a manner consistent with the Legal Services Directions. |
| 3 (290) |
176 |
* |
The Australian
Government Solicitor should centrally and electronically store all classified
legal advices provided to NIC agencies. |
| 3 (292) |
177 |
* |
The INSLM
Act should be amended to provide that the INSLM may prepare and give to
the Attorney-General a report on any matter relating to the performance of
the INSLM’s functions at any time. The Attorney-General should be required to
table an (unclassified) copy of the report in each House of the Parliament
within a reasonable time of receiving the report. |
| 3 (294) |
178 |
* |
As a
matter of good practice, the Government should provide a publicly available
response to the INSLM’s recommendations within 12 months of the INSLM’s
report being tabled in Parliament. |
| 3 (296) |
179 |
* |
The
Independent Reviewer of Adverse Security Assessments should continue as a
standing arrangement. |
| 3 (311) |
180 |
* |
The
remit of the Parliamentary Joint Committee on Intelligence and Security
should not be expanded to include direct oversight of operational activities,
whether past or current. |
| 3 (314) |
181 |
* |
The IIR
recommendation to enable the PJCIS to request the IGIS to conduct an inquiry
into the legality and propriety of particular operational activities, and
report to the PJCIS, Prime Minister and responsible minister, should be
implemented. Changes
to enable the PJCIS to make such a request should make it clear that the
PJCIS can only request, not oblige, the IGIS to conduct an inquiry. The
amendments should also maintain the current restriction that prevents the
PJCIS from requiring a person or body to disclose operationally sensitive
information or information that would or might prejudice Australia’s national
security or the conduct of Australia’s foreign relations. |
| 3 (315) |
182 |
* |
Existing
restrictions that apply to information disclosure by the PJCIS should
continue to apply in respect of the IGIS’s reports or briefings to the PJCIS
on its inquiries. |
| 3 (320) |
183 |
» |
The IS
Act should be amended so that the PJCIS is only limited to not reviewing
agency compliance with agency privacy rules, leaving scope for it to review
the rules as made. |
| 4 (35) |
184 |
» |
ASIS,
ASIO, ASD, DIO and ONI should continue to be exempt from the operation of the
Freedom of Information Act 1982 (FOI Act). |
| 4 (37) |
185 |
» |
The
Department Home Affairs, including its Intelligence Division, should remain
subject to the FOI Act. |
| 4 (39) |
186 |
» |
The FOI
Act should be amended to remove AGO’s exemption in respect of its
non-intelligence function. |
| 4 (42) |
187 |
» |
The ACIC
should remain subject to the FOI Act. |
| 4 (44) |
188 |
» |
In
respect of AUSTRAC, consistent protections should be afforded to Suspicious
Matter Reports and Suspicious Transaction Reports under the FOI Act. |
| 4 (52) |
189 |
» |
ASIO,
ASIS, ASD, AGO, DIO and ACIC should be required, by legislation, to have
legally-binding privacy guidelines or rules. These rules should be made
public (except to the extent that those rules contain classified
information). |
| 4 (55) |
190 |
» |
The
identities of ASIO and ASIS staff members and agents should be protected from
disclosure under the Archives Act 1983. |
| 4 (57) |
191 |
» |
All
security matters arising under the Archives Act should be heard in the
Security Division of the Administrative Appeals Tribunal. |
| 4 (61) |
192 |
» |
The FOI
Act and Archives Act should be amended so that the IGIS is only
required to provide evidence that addresses the damage that would, or could
reasonably be expected to, arise from the release of material where the
matter involves one or more of the agencies that the IGIS oversees. |
| 4 (73) |
193 |
^ |
The
definition of ‘prescribed administrative action’ in the ASIO Act
should be amended to include the exercise of powers or functions in relation
to parole, security guard licences and firearms licences. |
| 4 (74) |
194 |
^ |
A
regulation making power should be inserted into the definition of ‘prescribed
administrative action’ in the ASIO Act. The
regulation making power should allow regulations to add an action to the
definition of ‘prescribed administrative action’ where that action has
potential to affect an individual’s liberty or livelihood. Matters relating
to security would be a key consideration in taking that action. Regulations
made under the regulation making power should be reviewed by the PJCIS before
the end of the applicable disallowance period in each Chamber prior to coming
into effect. |
| 4 (76) |
195 |
^ |
A
decision to suspend or revoke an ASIS staff member’s security clearance
should fall within the definition of ‘prescribed administrative action’ in
the ASIO Act. A
decision to suspend access to information or places which are controlled or
limited on security grounds while a decision to revoke or suspend a clearance
is reviewed should not fall within the definition of ‘prescribed
administrative action’ in the ASIO Act. A
decision to deny access to information or places which are controlled or
limited on security grounds once a decision to revoke a security clearance is
confirmed should not fall within the definition of ‘prescribed administrative
action’ in the ASIO Act. |
| 4 (79) |
196 |
» |
ASIO’s
passage of vetting information on former ASIO staff and unsuccessful ASIO
applicants should not be exempted from the operation of Part IV. ASIO’s
passage of third party information or unassessed lead information to a
Commonwealth or state agency for the purposes of prescribed administrative
action should not be exempted from the operation of Part IV. |
| 4 (79) |
197 |
» |
ASIO
security assessments prepared for the purpose of informing the Foreign
Investment Review Board should be exempted from the operation of Part IV of
the ASIO Act. |
| 4 (82) |
198 |
» |
The ASIO
Act should be amended to allow ASIO to make a preliminary communication
directly to a state or territory agency where the requirements of security
make it necessary, as a matter of urgency, to take action of a temporary
nature pending the furnishing of a security assessment. |
| 4 (86) |
199 |
* |
The ASIO
Act should be amended to require ASIO to notify the IGIS in every
instance where it has taken more than 12 months to finalise a security
assessment, and subject to the requirements of security, notify the
individual in writing of their ability to make a written complaint under the IGIS
Act. If the requirements of security do not permit notification of the
individual, IGIS must be notified of this fact. |
| 4 (89) |
200 |
^ |
A person
the subject of an ACIC assessment that may be acted on by the recipient in a
decision that affects the employment or liberty of the person should be
notified of that assessment and given the opportunity to seek review. |
| 4 (89) |
201 |
^ |
DIO
assessments should not be subject to rights of notification and review
similar to those in Part IV of the ASIO Act. |
| 4 (114) |
202 |
» |
The National
Security Information (Criminal and Civil Proceedings) Act should be
amended to include a rebuttable presumption to protect the identity of ASIO
and ASIS staff member and agents. The presumption should preserve the court’s
discretion and ensure that the respondent is given notice of the fact that
the rebuttable presumption is engaged in a particular case. |
| 4 (116) |
203 |
Ʃ |
The
offences in Part 5 of the National Security Information (Criminal and
Civil Proceedings) Act should be reviewed and redrafted to include a
tiered range of offences with penalties commensurate to the fault elements
specified. |
Source: D Richardson, Comprehensive
Review of the Legal Framework of the National Intelligence Community
(Richardson Review), Commonwealth of Australia, Canberra, 7 December 2019: Volume
1: Recommendations and Executive Summary; Foundations and Principles;
Control, Coordination and Cooperation, pp. 60–85.
Appendix C: Recent intelligence and
national security legislation
Intelligence legislation passed during 46th Parliament
Intelligence legislation passed during this 46th Parliament
(Prime Minister Scott Morrison) as at 30 September 2021:
Government Bills before Parliament as at 30 September
2021:
Several private member Bills have also been introduced
this session:
Government Bills passed in the 44th and 45th Parliaments
The Government Bills listed below were passed in the 44th
(Prime Minister Tony Abbott and Prime Minister Malcolm Turnbull) and 45th
Parliaments (Prime Minister Malcolm Turnbull and Prime Minister Scott
Morrison). The Acts listed relate to:
-
introducing or expanding counter-terrorism or national
security-related powers
-
introducing or expanding terrorism or national security-related
offences
-
protecting critical infrastructure or
-
the functions and powers of the six agencies comprising the AIC.
The effect of the Acts is discussed in National
security legislation in the 44th and 45th Parliaments: a quick guide.[173]