Submission No. 9 - Attorney-General's Department
REVIEW BY THE PARLIAMENTARY JOINT COMMITTEE ON THE AUSTRALIAN
SECURITY INTELLIGENCE ORGANIZATION
SUBMISSION BY ATTORNEY-GENERAL'S DEPARTMENT
Background
The Australian Security Intelligence Organization (ASIO), Australia's
security service, was established under a Charter signed on 16 March 1949
by the Prime Minister, Mr Ben Chiefly. Since 1956 ASIO has operated under
its own statute. Currently the Organization operates under the Australian
Security Intelligence Act 1979 (ASIO Act).
2. The full ambit of ASIO's authorised functions is set out in subsection
17(1) of the ASIO Act. Speaking generally, those functions require ASIO
to obtain intelligence relevant to security and, within Australia, foreign
intelligence as well as to communicate such intelligence to Commonwealth
and State authorities in accordance with the ASIO Act. 'Security' and
'foreign intelligence' are both defined in the ASIO Act; the former term
meaning the protection of the Commonwealth and the States from six specified
activities that are harmful to national security (eg. espionage, politically
motivated violence and acts of foreign interference), and to fulfil Australia's
obligations to other countries in relation to those activities. ASIO's
primary purpose is to fulfil a defensive need of Australian governments
and the community that is not otherwise met.
3. Inevitably ASIO will face significant difficulties in collecting
relevant intelligence. It is to be expected that persons and organisations
of interest to ASIO will often go to considerable lengths to conceal their
activities. Frequently information relevant to ASIO's functions will be
heavily protected as well as hidden. Parliament has accepted that ASIO,
like other investigative agencies, needs appropriate special powers in
order to obtain information in such circumstances.
4. Most of the special powers conferred on ASIO are set out in Division
2 of Part III of the ASIO Act and include the powers to search premises,
use listening devices and inspect postal articles under a warrant issued
by the Attorney-General. The most significant other power available to
ASIO is the ability to intercept telecommunications under ministerial
warrant (see Part III of the Telecommunications (Interception) Act
1979).
5. ASIO, however, is not a police force. It has no powers to detain
or arrest people and the Organization may not enforce measures to prevent
the activities with which it is concerned (subsection 17(2)).
6. Given the nature of its functions, the scope of the powers entrusted
to ASIO will always require careful balancing of public policy. On the
one hand there is a clear public interest in ASIO being adequately and
appropriately equipped to safeguard Australia against threats to security
as defined in the Act. Equally, however, the activities of ASIO or other
authorities should not threaten individual rights and liberties.
7. Consideration should also be given to the part ASIO plays in international
cooperation. ASIO, through its extensive overseas liaison network, ensures
both that Australian agencies have access to relevant information from
cooperating foreign agencies and that the Commonwealth Government is able
to carry out its obligations under international law to other nations.
ASIO cannot carry out this role if it is unable to maintain a level of
efficiency consistent with the pace of technological change.
Origins of proposed amendments
8. The present ASIO Act resulted from the recommendations of a 1977
Royal Commission into Security while the last major amendments in 1986
followed a second Royal Commission inquiry into all of Australia's security
and intelligence agencies and included progress made in implementing the
recommendations of the earlier report. Both reports lead to significant
changes to ASIO's functions and to arrangements for ministerial and parliamentary
oversight of ASIO.
9. The changes contained in the Australian Security Intelligence Organization
Legislation Amendment Bill (the Bill) arise from ASIO's practical experience
and continuing examination of the operation of the ASIO Act since 1986
and after extensive consultation within government. The present proposals
are intended to modernise ASIO powers, mainly to reflect advances in technology.
ASIO's effectiveness and efficiency must inevitably decline if it is not
able to keep pace with technological change. In respect of the proposed
amendments relating to tax and FTR information, the effect would be to
provide ASIO with no more than the tools already at the disposal of law
enforcement agencies.
10. One important change is connected to the Year 2000 Olympic Games.
However, as many of the changes concern intelligence collection, the Government
considers it would be prudent for Australia to have them in place before
the Olympics. The Government has consequently given high priority to the
Bill and wishes it to be considered by Parliament as soon as possible.
There is a sunset clause of 31 December 2000 on that amendment.
Proposed new warrants
Computer access warrant
11. The Bill provides for three new forms of warrant. The most significant
is the proposed computer access warrant (clause 25). This new provision
will authorise the Attorney-General to issue a warrant permitting ASIO
to access and copy data in a target computer if the Attorney-General is
satisfied there are reasonable grounds to believe that access to the data
held in that computer will substantially assist the collection of intelligence
in respect of a matter that is important to security.
12. The nature of the powers conferred on ASIO as a collector of security
intelligence and foreign intelligence must necessarily be amended from
time to time to reflect changes in technologies used to store and communicate
information. Powers will also need to be changed as new operational techniques
for gaining access to relevant intelligence become available. The new
warrant provision takes into account the dominant role of computers in
the modern information environment as well as advances in operational
techniques.
13. The new warrant provision will enable ASIO to use techniques not
presently available and will supplement methods presently available under
ASIO's special powers.
14. It should be emphasised that this provision would not permit ASIO
to undertake general or casual searches of computer data. The limitations
include:
- the identification of the target computer in the warrant;
- the collection of intelligence must be connected to a matter that
is important in relation to security or, in the case of foreign intelligence,
important for defence or the conduct of international affairs;
- an express prohibition that ASIO must not interfere with the lawful
use of the target computer or cause any loss or damage to persons lawfully
using the target computer; and
- the requirement in all but emergencies for a warrant issued to be
issued by the Attorney-General.
15. The Bill makes it clear that in gaining entry to a target computer
ASIO is not permitted to cause damage to either computer or data. Indeed
it would be in ASIO's interests to go to extreme lengths to ensure that
it did not cause damage that might compromise its operations.
Tracking device warrants
16. Clause 23 of the Bill makes provision for ASIO to use tracking
devices (defined in new subsection 26A(3)) under warrant. The new warrant
provisions are similar to the present section 26 of the ASIO Act dealing
with listening devices eg the Attorney-General will be able to issue a
warrant for ASIO to follow the movements of either a person or an object
in the course of a security investigation.
17. The authority to use tracking devices will supplement ASIO's ability
to follow a person or object and thus will permit more efficient use of
ASIO's resources.
18. These amendments are needed for two purposes. The first is to
provide ASIO with the authority to do things that are necessary to apply,
maintain or remove a tracking device but which would be unlawful without
statutory authority.
19. The new warrant regime is also necessary because several States
are in the process of legislating to control the use of tracking devices
within their jurisdictions. This legislation will apply to ASIO if the
Commonwealth Parliament does not pass its own legislation. The Government
believes that the special powers of ASIO should be regulated under express
Commonwealth legislation rather than laws of general application in individual
States and Territories.
Access to delivery service articles
20. The third new form of warrant proposed in the Bill is set out
in the new subsection 27AA which provides for a warrant that would authorise
ASIO to inspect an article that is being delivered by a delivery service
provider (as defined in new subsection 27AA (12)).
21. This new warrant is similar to, and supplements, the authority
of the Attorney-General under section 27 of the ASIO Act to issue warrants
for the inspection of postal articles.
22. This amendment will partially restore ASIO's position which has
been eroded in recent years with the growth of private delivery services
which has affected the usefulness of section 27 warrants.
Statutory authority to remove listening and tracking devices
23. The Bill would include several 'device recovery provisions' in
the ASIO Act. These provisions are listed in clause 13. The purpose of
these provisions is to provide ASIO with an express statutory authority
to enter premises for the purpose of recovering a listening device or
tracking device that has been installed under warrant.
24. At present the ASIO Act permits the Attorney-General to authorise
ASIO to enter premises for the purpose of recovering a listening device
that has been installed under a warrant (see subsections 26(3) and 26(4)),
but only while that warrant is in force.
25. The device recovery provisions would give ASIO greater flexibility
to recover listening and tracking devices undetected by conferring a direct
statutory authority to enter premises to remove a device while the relevant
warrant is in force or within 28 days after it ceases to be in force.
The recovery provisions also allow ASIO to recover a device at the earliest
practical opportunity if it has not been recovered during the earlier
specified periods.
26. These amendments merely permit the removal of a device. They do
not in any way extend the period during which ASIO may use a device. As
is presently the case, the authority to use a device ends when the warrant
expires or it is revoked.
Amendments to existing warrant provisions
27. The Government proposes to take the opportunity provided by the
Bill to reform several aspects of the search warrant provisions at section
25 of the ASIO Act.
28. The first is to simplify the description at subsection 25(1) of
the matters about which the Attorney-General must be satisfied before
issuing a search warrant. The revised description at the new subsection
25(2) is made more comprehensible by stating the test in a positive rather
than a negative form.
29. The new subsection 25(5) sets out more clearly the powers of the
Attorney-General to authorise ASIO to use computer and other electronic
equipment found on the premises being searched under a search warrant.
The present subsection 25(1) already permits ASIO to examine computer
data found on premises being searched (this is because subsection 25(1)
expressly provides for ASIO to inspect and copy 'records' which is defined
to include objects such as magnetic tape or discs on which words or images
are stored). The amendments also allow the Attorney-General to permit
ASIO to use a computer or other electronic equipment found on premises
being searched to examine and copy data that is accessible by using that
computer or equipment. This authority is similar to that already available
to a police officer executing a warrant issued by a magistrate or other
issuing officer under section 3L of the Crimes Act 1914.
30. The new subsection 25(8) will permit the Attorney-General, should
he or she wish to do so, to specify that a search warrant will not come
into force until some specified day or when a specified event happens,
provided that day or event is not more than 28 days after the warrant
is issued. At present every search warrant comes into force immediately
it is issued. This amendment is intended to provide for circumstances
in which the Attorney-General is satisfied that there are grounds for
issuing a search warrant in relation to particular premises but the Attorney-General
also is satisfied that the warrant cannot be immediately executed. The
amendments will reduce the need for warrant applications to be prepared
and considered under great time pressure after some critical event occurs.
The time limit of 28 days ensures that a warrant cannot remain unexecuted
for so long that the original justification for its issue may lapse.
31. The amendments contained in the new subsection 25(10) will extend
the maximum period a search warrant may remain in force from 7 to 28 days.
This is to provide greater flexibility in circumstances where it is intended
that a search warrant should come into effect on issue but it is likely
that ASIO may have to wait for some time until the subject premises are
empty and the search can be carried out undetected. Practical experience
indicates that such an opportunity does not always arise. This problem
is not shared by law enforcement agencies looking for evidential material
rather than intelligence and who generally speaking execute search warrants
openly in the presence of persons occupying premises being searched.
Cost recovery
32. The amendments (new section 17AA) will permit ASIO to recover
part or all of its costs incurred in providing advice or services to other
persons at their request, for example protective security advice given
under paragraph 17(1)(d).
33. The purpose is to allow ASIO to recover costs from non Commonwealth
agencies. Costs can already be recovered from Commonwealth agencies under
administrative arrangements.
34. The provision would primarily be used in relation to ASIO's function
of providing protective security advice to other agencies with the approval
of the Attorney-General in accordance with paragraph 17(1)(d) of the ASIO
Act.
Foreign intelligence collection
35. The new section 27B will allow the Attorney-General to issue a
written notice authorising ASIO to obtain foreign intelligence in relation
to a matter specified in that notice.
36. One of ASIO's functions is to obtain within Australia foreign
intelligence - but only by means that are authorised pursuant to a relevant
warrant. This amendment will permit ASIO also to collect foreign intelligence
by other means that are lawfully available to ASIO without need for the
authority of a warrant, such as by utilising a human agent. This will
allow Ministers to utilise ASIO's existing resources to supplement foreign
intelligence collection by other agencies.
37. Before authorising the collection of foreign intelligence under
this provision, the Minister must be satisfied, on advice received from
the Minister for Defence or the Minister for Foreign Affairs, that the
collection of that intelligence is important to the defence of the Commonwealth
or to the conduct of the Commonwealth's international affairs.
38. In addition, paragraph 27A(1)(a) will be amended to refer to the
new kinds of warrant added to the ASIO Act by this Bill. This will maintain
the connection between section 27A and other warrant provisions in the
ASIO Act whereby the Attorney-General may authorise ASIO, for the purpose
of obtaining foreign intelligence in Australia, to do acts or things which
the Minister can authorise in other warrants under that Act.
Emergency warrants
39. The Director-General is currently permitted to issue a listening
device warrant if the specified conditions are met, including that security
will be, or is likely to be, seriously prejudiced if the action authorised
by the warrant is not commenced before a warrant can be issued by the
Minister.
40. Under the amendments, the Director-General, subject to the same
conditions as presently apply, will be able to issue warrants of the same
kind as the Minister is able to issue under the ASIO Act, excepting a
warrant under section 27A to collect foreign intelligence which will continue
to be issued only by the Minister. The intention is to allow the Director-General
to be able to respond more effectively in an emergency.
41. An emergency warrant issued by the Director-General under section
29 may remain in force for a period of up to 48 hours but may be revoked
earlier by the Minister.
42. The Director-General must provide a copy of the warrant to the
Minister as well as a statement of the grounds on which the Director-General
was satisfied that it was necessary for him or her to issue the warrant.
Security assessments for State purposes related to the Olympics
43. Part IV of the ASIO Act sets out the statutory framework for the
preparation and communication by ASIO of security assessments on individuals.
The Bill contains amendments to Part IV in relation to security assessments
connected to the Year 2000 Olympic games. These changes are subject to
a sunset clause of 31 December 2000.
44. In general, security vetting decisions for the Year 2000 Olympic
Games will be made by the responsible State authorities. ASIO is permitted
to provide security assessments to assist those decisions where a decision
by a State authority would affect security connected with matters within
the functions of a Commonwealth agency. However, ASIO is not able to provide
a security assessment directly to a State authority. A security assessment
must be communicated to a State authority through another Commonwealth
agency.
45. The present arrangement was not designed to deal with the very
large numbers of security assessments that are expected to be requested
by State authorities for the Year 2000 Games and which would impose a
significant administrative burden on the Attorney-General's Department
in 'post officing' security assessments connected to the functions of
the Protective Security Coordination Centre (a division of this Department).
The proposed amendments would allow ASIO to give a security assessment
for Olympics purposes directly to the State authority that has requested
it.
46. The amendments maintain the rights of a person affected by a prejudicial
assessment to be given a copy of that assessment and to be advised of
their entitlement to review by the Administrative Appeals Tribunal.
47. It will still be possible to communicate security assessments
related to the Olympics through an intermediate Commonwealth agency if
that arrangement is appropriate.
FTR information
48. The Bill amends the Financial Transaction Reports
Act 1988 to give ASIO access to data on certain financial transactions
that are reported to AUSTRAC. The amendment will permit ASIO to follow
the money trail for the purpose of performing its functions, in a way
similar to that which occurs in an investigation of criminal activities.
Access to FTR information is currently available to taxation officers,
law enforcement agencies, the Australian Customs Service and State or
Territory revenue authorities.
49. Access to FTR information will assist ASIO to give security advice
to government. Further, the amendment goes some way to implementing international
measures to fight terrorism. In July 1996, the G7/P8 governments agreed
to, and invited other States to adopt, a range of measures to prevent
terrorism including the taking of appropriate domestic measures to counteract
the financing of terrorists and terrorist organisations. The official
document adopted by the G7/P8 expressly identified the adoption of appropriate
measures to monitor cash transfers and bank disclosures as a desirable
domestic response.
AUSTRAC database
50. The AUSTRAC database of reportable transactions consists of reports
by financial institutions and other "cash dealers" on:
- cash transactions of $10,000 or more;
- transactions which the institution considers suspicious;
- all international funds transfer instructions ("wire transfers");
- the carrying or sending (for example by post) into or out of Australia
of cash of $10,000 or more.
That database is maintained in one searchable file.
Memorandum of Understanding
51. The details of ASIO's access to the AUSTRAC database of reportable
transactions will be regulated by a Memorandum of Understanding (MoU)
between the Director-General of Security and the Director of AUSTRAC.
52. In general, the access will allow authorised ASIO officers to
search by the name of the cash dealer customer, using AUSTRAC's online
inquiry system - searching by name (that is, a person's or a corporate
body's name).
53. The MoU will set out the type of access and the level of ASIO
officers who can access the database and will indicate how many officers
have been nominated by the Director-General of Security to access the
AUSTRAC database. The MoU gives the Director of AUSTRAC power to approve
wider searching of the AUSTRAC database by ASIO on a case by case basis.
54. The FTR information accessed by ASIO in accordance with the MoU
is to be treated by ASIO as personal information, so that the Attorney
General's Guidelines in relation to the performance by ASIO of its
Functions apply to that FTR information obtained by ASIO.
Use of FTR information
55. The Bill will prohibit an ASIO officer who obtains FTR information
from divulging or communicating it other than to:
- another ASIO Officer
- an IGIS officer
- a Police Officer
and only for the purposes of or in connection with the performance of
that person's duties. In the case of ASIO and IGIS officers that access
is regulated by the Bill. In the case of police officers, the access and
use of FTR information obtained from an ASIO officer is regulated by the
FTR Act, and is in accordance with the use of FTR information that a police
officer obtains directly from AUSTRAC (so that it is not a "back-door"
or unaccountable access).
56. If ASIO obtains information about a report of a suspect transaction,
the ASIO officer is not authorised by the Bill to seek further
information from the cash dealer about that report. Any further information
must be sought through the Director of AUSTRAC.
57. FTR information obtained by ASIO cannot be used for any purpose
other than the purpose for which it was obtained.
58. AUSTRAC will provide ASIO with an Online Usage Statistical Report
on a quarterly basis. Those reports give the number of times each ASIO
officer logged on to the AUSTRAC database, and the number and type of
searches conducted by that officer.
Inspector-General of Intelligence and Security
59. The Inspector-General of Intelligence and Security (IGIS) will
have a monitoring role, overseeing ASIO's access to and use of FTR information.
The IGIS will monitor ASIO's compliance with the FTR Act, the AG's Guidelines
(insofar as those Guidelines relate to access to and use of
FTR information), and the MoU.
60. The IGIS will also review the Online Usage Statistical Report
provided by the Director of AUSTRAC, in relation to ASIO's authorised
access. If the Director-General of Security seeks wider access to FTR
information and the Director of AUSTRAC agrees to that request, the Director
of AUSTRAC will advise the IGIS of any such wider searching.
61. The IGIS will provide to the Attorney-General, for dissemination
to the Director of AUSTRAC, an annual compliance statement in relation
to ASIO's compliance with the AG's Guidelines, the FTR Act, and
the MoU.
IGIS access to & use of FTR Information
62. An ASIO officer may communicate FTR information to an IGIS officer
for the purpose of or in connection with the performance of the IGIS officer's
duties.
63. An IGIS officer may communicate that information only to:
- another IGIS officer, for the purpose of that IGIS officer's duties
in relation to ASIO; or
- to the Director-General of Security in a draft report under section
21 of the IGIS Act in relation to ASIO or its employees;
- to Ministers or a complainant in a report under sections 22 or 23
of the IGIS Act in relation to ASIO or its employees, but only in a
manner that does not identify and is not reasonably capable of being
used to identify a person to whom the information relates; or
- to Ministers or the Director General of Security in a report under
section 25A of the IGIS Act.
Tax information
64. The amendments to the Taxation Administration Act 1953
will permit the Tax Commissioner to disclose tax information to ASIO.
This provision will put ASIO into the same position as law enforcement
agencies which may already receive tax information from the Commissioner.
65. This amendment has the potential to assist ASIO in espionage and
terrorist investigations, but especially the former.
66. Before disclosing tax information to ASIO, the Commissioner will
need to be satisfied that the information requested is relevant to the
performance of ASIO's functions. ASIO's use and capacity to disclose tax
information will be strictly regulated and confined, and its access to
and use of tax information can be monitored by the Inspector-General of
Intelligence and Security. As with the FTR Act amendment, tax information
disclosed to ASIO will be treated as personal information so that the
Attorney-General's Guidelines in relation to the performance by ASIO of
its functions will apply to the information.
67. Conditions of ASIO's access will be regulated by a Memorandum
of Understanding between the Tax Commissioner and the Director-General
of Security. An important provision in the MoU is that the ATO will not
be required to collect information on ASIO's behalf-any ATO response will
be limited to information already in ATO's possession. Another is that
a request for information can only be made by the Director-General or
by an SES officer delegated by the Director-General for that purpose.
68. In addition to secrecy provisions and IGIS monitoring, accountability
mechanisms include an annual report to Parliament of the number of ASIO
requests and ATO disclosures.
Control and accountability
69. There currently exists a comprehensive system for the control
and oversight of ASIO. That system strikes a balance between ASIO's requirements
for secrecy and the need for supervision of its activities in the public
interest. It enables ASIO to get on with its job while at the same time
ensuring it does not exceed its charter or interfere improperly with individual
rights and liberties.
70. Key features of the system of control and accountability include:
- statutory definition of ASIO's authorised functions and special powers;
- ministerial direction - including the power of the responsible minister
to issue directions and guidelines to the Director-General;
- ministerial control over the issue of warrants;
- the IGIS as a 'watchdog' to inspect and inquire into ASIO's activities;
- express requirements that the Leader of the Opposition be:
- consulted on the appointment of the Director-General
- kept regularly informed on security matters by the Director-General
- provided with a copy of ASIO's annual report including parts not
tabled in Parliament on security grounds
- oversight by the Parliamentary Joint Committee; and
- the rights of individuals to obtain administrative or judicial review
of certain decisions by ASIO.
71. The Bill will strengthen these arrangements in several ways. Schedule
5 of the Bill contains amendments to the Inspector-General of Intelligence
and Security Act 1986 which will make separate provisions for monitoring
inspections of ASIO, as well as other intelligence agencies. The Inspector-General
will be empowered to inspect ASIO on a regular basis to confirm that ASIO
is complying with Australian laws and with ministerial directives (and
guidelines) as well as the appropriateness and effectiveness of its internal
procedures. More detail is given in the Inspector-General's submission.
72. Parliament has decided that the Privacy Act 1988 should
not apply to ASIO. However, the Attorney-General has issued guidelines
under section 8A of the ASIO Act dealing with the treatment of personal
information by the Organization.
73. As the Bill will allow ASIO to access additional forms of personal
information for the performance of its functions, the Attorney-General
has decided that the present guidelines should be reviewed in consultation
with the Privacy Commissioner. This will be done before the Bill is enacted.
Revised guidelines would be tabled in Parliament in accordance with the
ASIO Act (subsection 8A(4)).
Discussions with Privacy Commissioner's office
74. The Attorney-General's Department sought the views of the Privacy
Commissioner's office on the Bill. In response the Privacy Commissioner's
office raised questions about the accountability mechanisms in relation
to ASIO's access to AUSTRAC and ATO information. In response, this Department
provided assurances about the degree to which the amendments and the associated
administrative arrangements strengthened the reporting and monitoring
functions of the IGIS.
75. On this basis, the Privacy Commissioner has advised that his concern
that the new data flows could become entrenched without independent examination
of how the information is being used should be substantially allayed.
A copy of this submission is also available from the
Committee Secretariat.
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