1. Introduction

The Bill and referral

1.1The National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023 (the Bill) was introduced into the House of Representatives by the Hon Mark Dreyfus KC MP, Attorney-General, on 29 March 2023.

1.2In his second reading speech the Attorney-General outlined the background to and rationale for the Bill and the connection with implementation of the recommendations of the Comprehensive Review of the Legal Framework of the National Intelligence Community (the Richardson Review):

In Australia, as in many other similar democracies, the powers of intelligence and security agencies have changed dramatically in recent years—the product of an increasingly complex and unpredictable security landscape.

In the 1970s and 1980s, the Hope royal commissions developed a set of important principles to govern Australia's intelligence and security agencies. In his reports, Justice Robert Hope laid the foundations of a legal framework that ensures that agencies can operate effectively, in accordance with the rule of law and are appropriately oversighted and accountable. Those foundations remain just as relevant today as they did [sic] in the 1980s.

On 30 May 2018, the then government commissioned the Comprehensive Review of the Legal Framework of the National Intelligence Community, which was led by Dennis Richardson AC, an eminent Australian.

The review was delivered to the then government in December 2019, and publicly released a year later in December 2020.

The review affirmed the principles that Justice Hope delivered 40 years ago. This includes foundational principles that agencies must operate in accordance with the law, with propriety and political impartiality, in a manner that respects human rights and fundamental freedoms, and must be accountable for their conduct.

As Mr Richardson noted in his report:

Our laws are not constraints or barriers to operational effectiveness … Rather, they are the guardians of valuable principles and enablers assisting agencies to perform their functions.

Mr Richardson made 203 recommendations in his 2019 report. The former government implemented just 30 recommendations between December 2019 and May 2022.

The National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023 will implement a further 10 of the outstanding recommendations from the review that fall within my portfolio responsibilities.[1]

1.3The Bill contains 9 Parts in its Schedule 1 amendments, proposing amendments to 13 different Commonwealth Acts. These proposed amendments would implement ten of the Richardson Review recommendations, as identified by the Attorney-General, with an additional two proposed amendments to the Intelligence Services Act 2001 (IS Act).

1.4The proposed amendments related to Richardson Review recommendations were outlined by the Attorney-General in the following terms:

• Recommendation 18 would be addressed by amending the Law Officers Act 1964 to remove the ability of the Attorney-General to delegate his or her powers under the Australian Security Intelligence Organisation Act 1979 [ASIO Act].
• Recommendation 19 would be implemented through amendments to the Acts Interpretation Act 1901, the ASIO Act, and the Telecommunications (Interceptions and Access) Act 1979 to prevent the powers of the Attorney-General relating to ASIO from being conferred on another minister through executive action, instead requiring legislative amendment. If the Prime Minister is satisfied that exceptional circumstances exist, the Governor-General would continue to make a substituted reference order.
• Recommendation 66 would be addressed by providing defences in the Criminal Code Act 1995 for ASIO for four offences relating to tampering or interfering with telecommunications carrier facilities, unauthorised modification of data and unauthorised impairment of electronic communications.
• Recommendation 136 would be addressed by inserting a new exclusion into the spent conviction scheme under the Crimes Act 1914 to enable ASIO to use, record and disclose spent convictions information for the purpose of performing its functions.
• Recommendation 145 would be implemented by amending the Inspector-General of Intelligence and Security Act 1986 and the Public Interest Disclosure Act 2013 to require the Inspector-General of Intelligence and Security [IGIS] to include details in their annual reports about public interest disclosures and complaints received each year to enhance transparency.
• Recommendation 167 would be addressed through amendments to the Ombudsman Act 1976 to remove the Australian Secret Intelligence Service, the Australian Geospatial-Intelligence Organisation, the Australian Signals Directorate, the Defence Intelligence Organisation, the Office of National Intelligence, and ASIO from the jurisdiction of the Commonwealth Ombudsman. These agencies are already overseen by the IGIS.
• Recommendation 186 would be addressed by removing the exemption under the Freedom of Information Act 1982 [FOI Act] regarding the non-intelligence functions of the Australian Hydrographic Office, within the Australian Geospatial-Intelligence Organisation.
• Recommendation 188 would be implemented by expanding the exemption under the FOI Act for documents relating to suspicious matter reports and suspicious transaction reports beyond just those in the possession of the Australian Transaction Reports and Analysis Centre to ensure consistency in handling of sensitive information.
• Recommendation 191 would be addressed by amending the Administrative Appeals Tribunal Act 1975 and the Archives Act 1983 to ensure matters involving information that could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth arising under the Archives Act are heard in the Security Division of the Administrative Appeals Tribunal.
• Recommendation 192 would be addressed by amendments to the FOI Act and the Archives Act to provide that the IGIS only be required to provide evidence before the Administrative Appeals Tribunal in relation to records that concern an agency within the Inspector-General’s jurisdiction.[2]
  5. The two amendments to the IS Act were addressed in the following terms:

The first amendment would clarify the level of detail that the Minister for Foreign Affairs must describe in a direction under paragraph 6(1)(e) of that Act.

The bill would also make amendments to the Parliamentary Joint Committee on Intelligence and Security.

The purpose of the Parliamentary Joint Committee on Intelligence and Security is to ensure parliamentary oversight of the intelligence and security agencies. It is the parliament to which the agencies are accountable, and it is the parliament's responsibility to oversight and ensure agencies meet the requirements and standards it sets.

Currently, the Intelligence Services Act provides that the committee is to comprise 11 members and mandates a composition of six members of the House of Representatives and five senators.

The bill would increase the number of members appointed to the committee to 13 members and remove current constraints on the composition of the committee. The bill would provide that the committee must comprise at least two government members and Senators, and two non-government members and Senators. The remaining five members can be drawn from either chamber.

The bill does not amend the requirement for the Government to hold a majority.[3]

1.6On the same day as its introduction into the House of Representatives, the Attorney-General wrote to the Committee to refer the provisions of the Bill to the Committee for inquiry and report, pursuant to subparagraph 29(1)(b)(ia) of the IS Act.

1.7The referral requested that the Committee report by 28 April 2023.

Conduct of the inquiry

1.8The Committee resolved to undertake an inquiry into the Bill in the terms requested by the Attorney-General, and launched the inquiry on 30 March 2022, with details uploaded to the Committee’s website at www.aph.gov.au/pjcis.

1.9Submissions were invited addressing any and all aspects of the Bill by the close of business 6 April 2023, to enable the Committee to undertake the inquiry and review in the requested timeframe.

1.10The Committee received ten public submissions, four supplementary submissions, and one classified submission. A list of submissions can be found at Appendix A.

1.11The Committee held one public hearing on 11 April 2023, and one classified briefing on 8 May 2023. A list of witnesses who appeared at the public hearing can be found at Appendix B.

1.12The Committee also received some classified correspondence from relevant intelligence agencies and oversight bodies providing further information relevant to the development of certain amendments contained in the Bill.

1.13Copies of public submissions, a transcript of proceedings from the public hearing[4] and links to the Bill and Explanatory Memorandum can be accessed from the inquiry webpage.[5]

Report structure

1.14This report consists of three chapters:

• This chapter sets out the context and conduct of the inquiry, as well as an outline of the Bill;
• Chapter 2 provides consideration of the Bill and the evidence received (if any) related to those proposed amendments; and
• Chapter 3 sets out the Committee’s comments on the Bill and the Committee’s recommendations.

The Bill

1.15As outlined earlier, the Bill is proposed to enhance the legislative framework of the National Intelligence Community (NIC) by implementing some of the recommendations (recommendations 18, 19, 66, 136, 145, 167, 186, 188, 191 and 192) of the Richardson Review. The Attorney-General and the Explanatory Memorandum (EM) identify these particular recommendations as requiring amendments to Commonwealth legislation within the Attorney-General’s portfolio.

1.16The above amendments are contained within Schedule 1, Parts 1 and 2, and 4 to 8 of the Bill. Two other proposed sets of amendments, in Parts 3 and 9 of the Bill, do not arise from the Richardson review. These would alter the IS Act to make changes to membership of the Parliamentary Joint Committee on Intelligence and Security (PJCIS), and to criteria for Ministerial directions to the Australian Secret Intelligence Service (ASIS).

Richardson Review recommendation amendments

Part 1 of Schedule 1: Powers and functions of the Attorney-General

1.17This Part proposes to amend the Law Officers Act 1964 (Law Officers Act) to remove the ability of the Attorney‑General to delegate his or her powers under the Australian Security Intelligence Organisation Act 1979 (ASIO Act)—with the exception of financial assistance powers—to Commonwealth officials; in line with recommendation 18 of the Richardson Review.

1.18The proposed amendment would alter subsection 17(6) of that Act to prohibit the Attorney-General from delegating powers or functions under the ASIO Act (other than under subsections 34JE(3) and (4)). This would add to the existing prohibition under subsection 17(6) on delegation of the Attorney’s powers and functions under the Telecommunications (Interception and Access) Act 1979 (TIA Act).

1.19The EM states the reasoning for this proposed restriction as well as the reasoning for retention of delegation for financial assistance powers:

This reflects the Attorney-General’s unique role as the first law officer with respect to ASIO, and will ensure appropriate ministerial responsibility and accountability is maintained with respect to the powers contained in the ASIO Act.

It is appropriate that the Attorney-General continue to have the ability to delegate powers and functions under subsections 34JE(3) and (4) of the ASIO Act as these subsections relate to the provision of financial assistance to a subject, in respect of the subject’s appearance before a prescribed authority for questioning under warrant, rather than ASIO’s use of powers. The class of delegates under subsections 34JE(3) and (4) are confined to holders of nominated offices.[6]

1.20This Part also proposes to amend the ActsInterpretation Act 1901 (AI Act), the ASIO Act and the TIA Act to remove the ability of the Executive to confer the powers vested in the Attorney‑General with respect to ASIO onto another minister, except through legislative amendment, unless the Prime Minister is satisfied that exceptional circumstances exist; implementing recommendation 19 of the Richardson Review.

1.21The proposed ASIO Act amendment would insert new section 5B into the ASIO Act to provide that, unless the Prime Minister is satisfied that exceptional circumstances exist, the Governor General must not make a ‘substituted reference order’ under subsection 19B(2) of the AI Act to substitute a reference to the Attorney-General in the ASIO Act with a reference to another minister. This would not apply to section 34JE of the ASIO Act, which provides for financial assistance to a subject, in respect of the subject’s appearance before a prescribed authority for questioning under warrant.

1.22The EM states the reasoning for this proposed amendment as follows:

The Attorney-General has a unique role as the first law officer with respect to the Australian Security Intelligence Organisation (ASIO) in authorising the use of covert or intrusive powers. Ever since legislation has provided for powers for ASIO, the Attorney General has been responsible for issuing warrants to ASIO. The Attorney-General is also responsible for authorising special intelligence operations and appointing prescribed authorities under the ASIO Act. This amendment will ensure the Attorney-General’s powers in respect of ASIO cannot be conferred on another minister through an action of the executive government, except in exceptional circumstances, such as where there is no Attorney-General. The Prime Minister is the appropriate minister to determine whether exceptional circumstances exist given that the Prime Minister is responsible for the allocation of ministerial responsibilities and the unique role of the Attorney-General in executive government.

It is appropriate that the Attorney-General’s powers and functions under section 34JE of the ASIO Act would not be subject to the requirement for the Prime Minister to be satisfied that exceptional circumstances exist before a substituted reference order can be made in relation to that section. Section 34JE relates to the provision of financial assistance to a subject, in respect of the subject’s appearance before a prescribed authority for questioning under warrant, rather than ASIO’s use of powers.[7]

1.23The proposed TIA Act amendment would insert new section 6V into the TIA Act in similar terms to the ASIO Act amendment, with the EM stating:

The Attorney-General has a unique role as the first law officer with respect to authorising ASIO's use of covert or intrusive powers under the TIA Act, as well as with respect to the appointment of eligible judges, nominated Administrative Appeals Tribunal (AAT) members, and issuing authorities who may issue warrants to other agencies (as defined) under the TIA Act.

This amendment will ensure the Attorney-General’s powers under the TIA Act cannot be conferred on another minister through an action of the executive government, except in exceptional circumstances, such as where there is no Attorney-General.[8]

Part 2 of Schedule 1: Defence for certain national infrastructure related offences

1.24This Part proposes the insertion of a new defence in the Criminal Code Act 1995 (Criminal Code) for ASIO officers, that applies to offences in subsections 474.6(1) and (3), relating to interference with telecommunications facilities; in line with recommendation 66 of the Richardson Review. The part would also insert defences for ASIO officers to the offences in section 477.2 (unauthorised modification of data to cause impairment) and section 477.3 (unauthorised impairment of electronic communication).

1.25The justification for the new defences was summarised by the Attorney-General’s Department (the Department) in its submission:

Due to developments in technology, the activities ASIO needs to undertake to effectively discharge its functions require additional targeted legal defences. The inclusion of new defences would enable ASIO to use more efficient and effective methods when conducting functions under the ASIO Act, including to protect the covert nature of activities where necessary. While the wording of the [Richardson review] recommendation is limited to section 474.6, discussion in paragraph 24.56 of the Comprehensive Review’s report clearly contemplates that defences to offences in Parts 10.6 and 10.7 of the Criminal Code are also needed. Following consultation with ASIO and the Department of Home Affairs, the Department is satisfied that additional defences in sections 477.2 and 477.3 are necessary, appropriate and effectively balance national security interests against the individual’s right to privacy. These defences reflect the current and foreseen requirements of ASIO and will best allow it to perform its security functions in the national interest.[9]

1.26Item 5 in Part 2 proposes the insertion of a new definition of ‘ASIO officer’ in section 473.1 of the Criminal Code, to define who the new defences would cover:

ASIO officer means:

(a)the Director‑General of Security; or

(b)an ASIO employee (within the meaning of the Australian Security Intelligence Organisation Act 1979); or

(c)an ASIO affiliate (within the meaning of that Act).

1.27The EM states:

The definition of ‘ASIO officer’ is intended to capture the Director-General of Security who is the head of ASIO appointed under section 7 of the ASIOAct, persons employed under section 84 and section 90 in the ASIO Act (ASIO employees), and also persons performing functions or services for ASIO, in accordance with a contract, agreement or other arrangement, including consultants, contractors and secondees (ASIO affiliates). The term ‘ASIO officer’ is used to simplify the language of the Criminal Code and to make clear that the defences apply to these categories of persons.[10]

Part 4 of Schedule 1: Spent convictions

1.28This Part proposes to expand the exclusions in the spent convictions scheme under the Crimes Act 1914 (Part VIIC) to enable ASIO to use, record and disclose spent convictions information, in line with recommendation 136 of the Richardson Review.

1.29The Department’s submission provided the following context regarding the spent convictions scheme:

The Commonwealth spent convictions scheme aims to prevent discrimination on the basis of previous convictions by limiting the use and disclosure of older, less serious convictions and findings of guilt. Currently, certain agencies, primarily law enforcement, have exemptions to the scheme which allow them to use spent conviction information in the performance of their functions. Excluding ASIO from the spent convictions scheme will allow ASIO to use, record and disclose spent conviction information to better perform its security functions. Further, it will rectify an existing discrepancy whereby law enforcement agencies are able to use, record and disclose spent conviction information for investigations or the prevention of a crime, while ASIO is prohibited from doing the same in the performance of its functions.[11]

1.30Item 14 in Part 5 of the Bill proposes inserting a new section 85ZZJA at the end of Subdivision B of Division 6 of Part VIIC of the Crimes Act. Proposed new section 85ZZJA would provide for exclusions relating to the performance of the functions or the exercise of the powers of ASIO.

1.31New proposed subsection 85ZZJA(1) would set out the following circumstances in relation to which Division 3 of Part VIIC of the Crimes Act (where a person is not required to disclose a spent conviction) would not apply:

• the disclosure of information to or by ASIO, or an ASIO officer, if the disclosure is made for the purposes of the performance of the functions, or the exercise of the powers, of ASIO or the officer (paragraph 85ZZJA(1)(a)), or
• filing or recording information that comes into the possession of ASIO, or an ASIO officer, if the filing or recording is done for the purposes of the performance of the functions, or the exercise of the powers, of ASIO or the officer (paragraph 85ZZJA(1)(b)), or
• the use by ASIO, or an ASIO officer, of information for the purposes of the performance of the functions, or the exercise of the powers, of ASIO or the officer (paragraph 85ZZJA(1)(c)).[12]
  32. These proposed amendments are accompanied by proposed new definitions at subsection 85ZZJA(2) of ‘ASIO’ and ‘ASIO officer’ to apply to the new exclusions, by reference to the definitions of an ASIO ‘employee’ and ‘affiliate’ in the ASIO Act.

Part 5 of Schedule 1: Reporting by the Inspector-General of Intelligence and Security

1.33This Part proposes to amend the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) to require the Inspector-General of Intelligence and Security (IGIS) to report annually on public interest disclosures received by, and complaints made to, the IGIS, in line with recommendation 145 of the Richardson Review.

1.34This item would amend section 35 of the IGIS Act by inserting new subsections 35(2AB), (2AC) and (2AD) to require reporting of information relating to complaints the IGIS received, information about public interest disclosures (PID), and to require the relevant head of a NIC agency to provide information and assistance to the IGIS for these reporting functions.

1.35The detail of the complaints information and PID information that the new provisions would require to be included in the IGIS annual report are outlined at page 22 of the EM, but the IGIS identified that these details are substantially already included in its public reporting:

As a matter of practice, the IGIS already includes information about the handling of complaints made under the IGIS Act and disclosures made under the PID Act in its annual report. However, these amendments will now impose a legislative requirement to do so. While the IGIS will be required to report on a broad range of information, there is also sufficient flexibility as to the detail to be included to ensure that information relating to the actions of the intelligence agencies in this context is made public to the extent possible, but without compromising national security information or the privacy of individuals.

The IGIS’s public interest disclosure (PID) reporting requirements pursuant to proposed section 35(2AC) broadly align with the existing annual reporting requirements for the Ombudsman under section 76 of the PID Act. Noting that the IGIS will now be required to provide the relevant information in relation to all the disclosures it receives - and not just those allocated to it - proposed section 35(2AD) provides that the head of an intelligence agency must give the IGIS such information and assistance as the IGIS reasonably requires in relation to matters on which the IGIS is required to report under section 35. This amendment will support the provision of relevant PID-related information from the intelligence agencies to the IGIS for the purposes of the IGIS’s annual report.[13]

Part 6 of Schedule 1: Investigations by the Ombudsman

1.36This Part proposes to amend the Ombudsman Act 1976 to exclude ASIO, ASIS, the Australian Geospatial-Intelligence Organisation (AGO), the Australian Signals Directorate (ASD), the Office of National Intelligence (ONI) and the Defence Intelligence Organisation (DIO) from the Commonwealth Ombudsman’s jurisdiction, in line with recommendation 167 of the Richardson Review.

1.37This item would insert new paragraph 5(2)(e) which would provide that the Ombudsman is not authorised to investigate action taken by the above NIC agencies.

1.38As stated in the EM:

The Ombudsman is currently prevented from investigating action taken by ASIO in accordance with the Ombudsman Regulations 2017. By convention, the Ombudsman also does not investigate action taken by ASIS, AGO, ASD, DIO or ONI, although these agencies are currently within its jurisdiction.

This amendment would formalise this position by excluding in the primary legislation investigation of action taken by ASIO, ASIS, AGO, ASD, DIO and ONI from the functions of the Ombudsman. These intelligence agencies are already overseen by the IGIS, Australia’s dedicated intelligence oversight body, which possesses the capabilities and technical expertise to provide specialised intelligence oversight. Excluding ASIO, ASIS, AGO, ASD, DIO and ONI from the jurisdiction of the Ombudsman would reduce unnecessary overlap in the oversight of these agencies.[14]

Part 7 of Schedule 1: Exemptions from freedom of information law

1.39This Part proposes to amend the Freedom of Information Act 1982 (FOI Act)toremove the AGO’s exemptions under the FOI Act in relation to documents that have originated with, or been received from, the Australian Hydrographic Office (AHO) in the performance of its non-intelligence functions; in line with recommendation 186 of the Richardson Review.

1.40The amendment would repeal and substitute subparagraph 7(2A)(a)(v) of the FOI ACT, which currently provides that an agency is exempt from the operation of the FOI Act in relation to a document that has originated with, or has been received from, the AGO. New subparagraph 7(2A)(a)(v) would provide that an agency is exempt in relation to a document that originated with, or has been received from the AGO, other than a document that has originated with, or has been received from, the AHO in the performance of its functions under subsection 223(2) of the Navigation Act 2012 (Navigation Act).

1.41The EM states:

The AGO is currently completely exempt from the operation of the FOI Act. This exemption is appropriate in relation to the AGO’s intelligence functions where sensitive information, if released, could cause harm to Australia’s national security. However, the functions of the Australian Hydrographic Office (which is part of the AGO) under subsection 223(2) of the Navigation Act are not intelligence functions.

This amendment is intended [to] improve transparency by ensuring that documents related to the non-intelligence functions of the Australian Hydrographic Office are not automatically exempt from the operation of the FOI Act.

This amendment will retain the exemption from the FOI Act for AGO staff that work under the Australian Hydrographic Office but conduct activities in the performance of AGO’s functions under section 6B of the IS Act.[15]

1.42The Department’s submission provided more context for the inclusion of this measure:

The AHO produces a number of non-intelligence documents as part of its role in providing Australia’s national nautical charting service under the Navigation Act. Following the transfer of the AHO’s functions to the AGO (in October 2017), these non-intelligence documents are all currently exempt from the FOI Act due to the AGO’s blanket exemption. This exemption is appropriate in relation to the AGO’s intelligence functions where sensitive information, if released, could cause harm to Australia’s national security. However, the functions of the AHO (which is part of the AGO) under subsection 223(2) of the Navigation Act are not intelligence functions.[16]

1.43Part 7 also proposes further amendments to the FOI Act to align protections afforded to the Australian Transaction Reports and Analysis Centre’s (AUSTRAC) Suspicious Matter Reports and Suspicious Transaction Reports, regardless of the agency holding the documents, in line with recommendation 188 of the Richardson Review.

1.44This amendment would insert new subsection 7(2G) into section 7 of the FOI Act. Section 7 provides that certain persons and bodies are exempt from the operation of the FOI Act, either in full or in relation to the kinds of documents specified. New subsection 7(2G) would provide that a minister and an agency are exempt from the operation of the FOI Act in relation to:

• a document (an AUSTRAC intelligence document) that has originated with, or has been received from AUSTRAC and that concerns information that was communicated to AUSTRAC under section 16 of the Financial Transaction Reports Act 1988 (FTR Act), section 41 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) or in response to a notice given under section 49 of the AML/CTFAct, and
• a document that contains a summary of, or an extract or information from, an AUSTRAC intelligence document, to the extent that it contains such a summary, extract or information.[17]
  45. The Department’s submission provided the rationale for the inclusion of this measure:

The FOI Act currently protects AUSTRAC suspicious matter reports, suspect transaction reports and information given to AUSTRAC in response to a notice under section 49 of the AML/CTF Act, only when they are held by AUSTRAC and not when they are held by another agency. The suspicious matter reports and suspect transaction reports contain sensitive information from reporting entities that are critical to AUSTRAC’s intelligence role, while information given in response to a notice under section 49 of the AML/CTF Act may include information that is relevant to, or facilitative of, an active investigation. This amendment recognises that suspicious matter reports and suspect transaction reports require protection, regardless of the agency they are in the possession of. This amendment is consistent with the FOI Act’s treatment of other documents. For example, section 7(2A) provides that any agency is exempt from the operation of the FOI Act in relation to an intelligence agency document that has originated with, or has been received from, any of the listed intelligence agencies.[18]

1.46The Bill also repeals a redundant item in Division 1 of Part II of Schedule 2 of the FOI Act that would no longer be required if the above amendment is made.

Part 8 of Schedule 1: Review under the archives law

1.47This Part proposes to amend the Administrative Appeals Tribunal Act 1975 (AAT Act) and the ArchivesAct 1983 (Archives Act) to require that all proceedings in relation to security records under the Archives Act be heard in the Security Division of the Administrative Appeals Tribunal; in line with recommendation191 of the Richardson Review.

1.48This part also proposes to amend the FOI Act and Archives Act such that the IGIS would only be obliged to provide evidence in proceedings under those Acts where the material in the proceedings relates to one or more of the agencies the IGIS oversees; in line with recommendation 192 of the Richardson Review.

1.49The first proposed amendment would expand the current requirement for Security Division hearings from only records of ASIO, to those covered by the proposed new definition to be inserted into subsection 3(1):

exempt security record means:

(a)a record of the Australian Security Intelligence Organisation; or

(b)a record that is claimed to be an exempt record under the Archives Act 1983 for the reason that it contains information or matter of a kind referred to in paragraph33(1)(a) or (b) of that Act.

1.50The EM sets out the detailed amendments across both the AAT Act and the FOI Act associated with the proposed measure;[19] however the Department’s submission provides a more accessible summary of the requirement and mechanism of this proposed amendment:

Currently, the AAT’s power under the Archives Act to review a decision of the National Archives of Australia in respect of access to a record of ASIO is the only class of decision under the Archives Act that may be exercised by the AAT only in the Security Division. This results in inconsistency in proceedings relating to ASIO records, in comparison to records of the rest of the NIC. The Security Division must be constituted by at least one presidential member. Requiring all proceedings in relation to security records under the Archives Act to be heard in the Security Division will also have practical benefits in utilising tribunal members and staff that have experience with national security proceedings, as well as more efficient processes and procedures.

The amendment would ensure that proceedings concerning all exempt records under paragraphs 33(1)(a) and (b) of the Archives Act are heard in the Security Division. Paragraphs 33(1)(a) and (b) concern:

• records which contain information or a matter, the disclosure of which could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth (33(1)(a)), or
• information or a matter that was communicated by a foreign entity to an Australian Commonwealth entity, which the foreign entity advises is confidential and the confidentiality of which is reasonable to maintain (33(1)(b)).

Paragraphs 33(1)(a) and (b) of the Archives Act are intended to capture all security matters arising under the Archives Act in accordance with Recommendation 191 of the Comprehensive Review.

The amendment would also include records that did not originate with NIC agencies, which will ensure that all relevant exempt records are captured, including where information provided by NIC agencies is included in a record of another department or agency.[20]

1.51Current subsections 50A(2) and (3) and 55ZB(1) and (2) of the Archives Act provide that the AAT and the Information Commissioner respectively must request the IGIS to appear personally and give evidence for any proceedings before the AAT or the Information Commissioner under the Archives Act in relation to a document that is claimed to be an exempt record under paragraphs 33(1)(a) or (b) of the Archives Act. Subsections 50A(5) and 55ZC provides that the IGIS must comply with the requests to give evidence unless the IGIS is of the opinion that the IGIS is not appropriately qualified to do so.[21]

1.52The second proposed amendment would repeal and replace subsection 50A(1) in the Archives Act and section 55ZA of the FOI Act, to require the IGIS only be obliged to provide evidence in proceedings under those Acts when the material in the proceedings is claimed to be an exempt document under FOI Act section 33 and it relates to one or more of the agencies the IGIS oversees.

Intelligence Services Act 2001 proposed amendments

1.53As outlined earlier in this chapter, the Bill proposes two sets of amendments to the IS Act that do not relate to recommendations of the Richardson Review.

Part 3 of Schedule 1: Membership of the Parliamentary Joint Committee on Intelligence and Security

1.54This Part proposes to amend subsection 28(2) of the IS Act to provide that constitution of the PJCIS be 13members (increased from the current 11 members), comprised of at least two Government Senators, two Government members of the House of Representatives, two non‑Government Senators, and two non‑Government members of the House of Representatives. A further proposed amendment would also be made to clause 18 of Schedule 1 of the IS Act to raise the number constituting a quorum of the Committee from 6 to 7 members.

1.55Current subsection 28(2) of the IS Act provides that the PJCIS is to consist of 11 members, 5 of whom must be Senators and 6 of whom must be members of the House of Representatives.

1.56The EM provides the following explanation regarding this proposed amendment:

This item does not affect subsection 28(3) which provides that a majority of the PJCIS’s members must be Government members. The remaining 5 members of the PJCIS can be determined subject to subsection 28(3) and the provisions on the appointment of members in Part 3 of Schedule 1 of the IS Act.

This amendment is intended to allow greater flexibility in determining PJCIS membership while retaining the requirement for representation of both the Senate and House of Representatives, and Government and non-Government members.[22]

1.57The Department’s submission provided the following rationale for this proposed change:

Oversight and accountability by an expanded PJCIS will provide confidence to the Australian public that intelligence and security agencies are subject to robust parliamentary oversight.[23]

Part 9 of Schedule 1: Other amendments

1.58This Part proposes to amend the IS Actin relation to the level of detail required to describe the activities in a Ministerial direction to ASIS under paragraph 6(1)(e).

1.59The EM states that the proposed amendments are:

…intended to provide certainty regarding the level of detail required to describe the directed activities in a Ministerial direction under paragraph 6(1)(e). The practice to date has been for the Minister to direct ASIS to undertake activities predominantly by reference to a purpose. Review and consideration of the provision has identified the need for greater certainty about the level of detail required to specify activities in a direction. The amendment is intended to make clear that the Minister may direct ASIS to undertake an activity or activities which can be of a specific or general nature, or by way of a class or classes. Where a class has been specified by the Minister, ASIS will be responsible for satisfying itself that a proposed activity falls within the specified class.

Using the disruption of terrorism as an example possible directions could include a direction to ASIS to:

• interfere in the movement of an individual outside Australia suspected of involvement in a terrorist attack;
• disrupt the supply of weapons to terrorist organisations outside Australia;
• degrade the capabilities of terrorist organisations outside Australia; or
• communicate information for the purpose of disrupting terrorism outside Australia.

The amendment would not change the existing limitations on ASIS in the performance of its functions under the IS Act, such as the limitations in subsections 6(4), (5B) and (6) and sections 11 and 12.[24]

1.60This Part also proposes to insert new subsections 6(1A) and 6(1B) to make clear that in giving a direction under paragraph 6(1)(e) the Minister may also specify a purpose for which the activities may be carried out.

1.61No further information regarding the purpose or reasoning for these proposed amendments was provided in the Bill or supplementary material. Further detail was provided to the Committee in evidence to this review, which is further discussed in Chapter 2.

Footnotes

[1]Hon Mark Dreyfus KC MP, Attorney-General, Proof House of Representatives Hansard, 29 March 2023, p.11.

[2]The Hon. Mark Dreyfus KC MP, Attorney-General, Proof House of Representatives Hansard, 29 March 2023, pp. 12-13.

[3]The Hon. Mark Dreyfus KC MP, Attorney-General, Proof House of Representatives Hansard, 29 March 2023, p. 13.

[4]Hansard transcripts referenced throughout this report are taken from Proof transcripts. Accuracy of verbatim evidence is not assured, however Official transcripts incorporating corrections from witnesses will be available on the Committee’s website in due course.

[5]www.aph.gov.au/NSLAB2

[6]Explanatory Memorandum, p. 15.

[7]Explanatory Memorandum, pp. 14-15.

[8]Explanatory Memorandum, pp. 15-16.

[9]Attorney-General’s Department, Submission 7, p. 6.

[10]Explanatory Memorandum, p. 16.

[11]Attorney-General’s Department, Submission 7, pp. 6-7.

[12]Explanatory Memorandum, p. 21.

[13]Inspector-General of Intelligence and Security, Submission 5, pp. 4-5.

[14]Explanatory Memorandum, pp. 23-24.

[15]Explanatory Memorandum, p. 24.

[16]Attorney-General’s Department, Submission 7, p. 9.

[17]Explanatory Memorandum, p. 25.

[18]Attorney-General’s Department, Submission 7, p. 9.

[19]Explanatory Memorandum, pp. 26-29.

[20]Attorney-General’s Department, Submission 7, p. 10.

[21]Explanatory Memorandum, p. 29.

[22]Explanatory Memorandum, p. 20.

[23]Attorney-General’s Department, Submission 7, p. 6.

[24]Explanatory Memorandum, p. 32.