3. Committee comment
   1. The Committee received only five public submissions for this inquiry and notes that some intelligence agencies affected by these changes, in particular ASD, did not contribute to the inquiry. This is discussed further below.
   2. The Committee agrees that the measures contained in the Bill would support Australia’s national security agencies by strengthening identity protections for their employees, increasing operational flexibility and sharing of information, clarifying some authorities to provide greater certainty, and supporting quicker processing of security clearance suitability assessments. The Bill would also promote increased oversight of national security agencies by introducing additional safeguards to provide oversight of ASIO’s work on security assessments and vetting, and limiting who can exercise certain powers.
   3. The Committee commends the ongoing commitment to implementing recommendations of the Comprehensive Review and awaits future legislation, in particular as part of the electronic surveillance reform work currently in progress. The careful consideration and implementation of the Comprehensive Review’s recommendations is making a tangible difference in enhancing the efficacy and strength of Australia’s national security legislative architecture.
   4. The Committee supports the amendments to Part IV of the ASIO Act relating to the definition of prescribed administrative action and ASIO’s ability to communicate information in a timely and effective manner. Furthermore, noting that ASIO is being granted the additional power to make regulations prescribing an action as prescribed administrative action (thus circumventing the need for legislative amendment), the Committee is pleased that it will maintain oversight of any future regulations. Parliamentary scrutiny of national security legislation is fundamental to ensuring Australia’s national security requirements are balanced against the rights of the individual.
   5. The Committee notes that the ASIO Act offers no real clarification of the meaning of ‘action of a temporary nature’ in relation to preliminary communications pending the furnishing of a security assessment. While the Committee acknowledges it would not be appropriate to provide a timeframe in the legislation, it encourages ASIO, in consultation with the IGIS, to develop internal policies clarifying appropriate timeframes within which security assessments should be furnished following the taking of prescribed administrative action of a temporary nature.
   6. The Committee acknowledges that delays in furnishing security assessments, security clearance decisions and security clearance suitability assessments have the potential to greatly impact an individual, their livelihood and their career. As such, the Committee agrees that, where delays of greater than 12 months occur, greater scrutiny should be applied to determine the reason for the delay and its appropriateness. The Committee appreciates ASIO proactively extending the Comprehensive Review’s recommendation 199 regarding notification of delayed security assessments to similarly cover security clearance decisions made under Part IVA of the ASIO Act, which was put in place after the Comprehensive Review concluded. The Committee therefore supports the notification provisions proposed in Part 3 of Schedule 1 and Part 2 of Schedule 4 of the Bill.
   7. The Committee also welcomes the requirement that ASIO and IGIS agree on a protocol for these notifications, and encourages both agencies to ensure that the protocol supports the maximum transparency possible, as well as mechanisms for appropriate steps which should be taken in response to notified delays. On the matter of transparency, the Committee considers that it would be appropriate for ASIO to include information about notifications made to the IGIS under the new provisions in its annual reporting.

3.8The Committee recommends that, following the entry into effect of the new notification provisions in Part 3 of Schedule 1 and Part 2 of Schedule 4 of the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023, ASIO include in its Annual Report all instances where it has notified the Inspector-General of Intelligence and Security about delayed security assessments, delayed security clearance decisions or delayed security clearance suitability assessments.

3.9The Committee notes that recommendation 199 of the Comprehensive Review would only be partially implemented through this proposed amendment because it does not adopt the recommendation that applicants be notified by ASIO of their right to make a complaint to the IGIS. As discussed in Chapter 2, the Government at the time did not agree that ASIO should notify the individual of their ability to make a complaint lest it risk revealing details about ASIO’s security assessment process. The Government noted that a similar outcome could instead be achieved by better alerting individuals to the right to make a complaint to the IGIS, such as through providing the information as part of relevant application forms or guidance materials.

3.10The Committee recognises the importance of informing individuals about their rights in this regard, and was therefore disappointed that it received no evidence of greater efforts being made to alert applicants to their complaint rights as the Government response to the Comprehensive Review had suggested. The Committee observes that such advice is not currently evident in any of the main resources made available to potential security clearance applicants, such as the Australian Government Security Vetting Agency (AGSVA) and ASIO webpages.

3.11The Committee recommends that the Government review all forms, guidance materials and other relevant documentation and advice made available to individuals about security assessment and security clearance processes, to ensure that all applicants are made aware of their right to make a complaint to the Inspector-General of Intelligence and Security in relation to same.

3.12The Committee acknowledges the necessity of cover arrangements for certain members of the intelligence community and agrees that such arrangements should be enshrined in legislation. The Committee is therefore supportive of and agrees with the legislative provision for cover arrangements proposed by the Bill. With such legislative provisions in place, the Committee expects that other, less formal arrangements will be replaced by determinations pursuant to section 41AB of the IS Act and section 92C of the ASIO Act. The Committee expects that these arrangements will be oversighted by the IGIS as part of their routine inspection program.

3.13The Committee notes that legislating cover authority for staff of ASD was not a recommendation of the Comprehensive Review.[1]

3.14The Committee notes that ASD was specifically invited to make a submission to the Committee’s review of this Bill and did not do so.

3.15The Committee therefore considers the EM could be revised to include reasons for this inclusion and to remove reference to Recommendation 70. In addition, the Committee can provide additional scrutiny of ASD’s development and use of arrangements to implement this legislative change, through the Committee’s administration and expenditure review process.

3.16The Committee recommends that, in respect of the inclusion of the Australian Signals Directorate (ASD) in the proposed new cover employment provisions in the Intelligence Services Act 2001 in Part 1 of Schedule 2 of the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023:

• the Explanatory Memorandum be amended to include information as to ASD’s inclusion and remove reference to Recommendation 70 of the Comprehensive Review; and
• ASD report to the Committee, as part of the Committee’s 2023-24 annual review of ASD’s administration and expenditure, on its development, implementation and use of cover arrangements, including justification for their use by staff or particular subsets of staff, and safeguards to ensure that use of cover is necessary and proportionate.
  17. The Committee understands and supports the rationale behind the consolidation of secrecy offences contained in sections 39–40M of the IS Act, consistent with recommendation 143 of the Comprehensive Review. Given the concurrent review of secrecy offence provisions being conducted by the INSLM, the Committee considers the most appropriate course of action is to align the proposed amendments to the IS Act and the ASIO Act secrecy offences contained in Parts 2 and 4 of Schedule 2 with recommendations that may be relevant from INSLM’s review into secrecy offence legislation, pending the timing of completion of that review and passage of this legislation.
  18. In a similar vein, the Committee has also closely considered the arguments for and against introducing updated publication offences into the ASIO Act. The Committee appreciates ASIO’s need for updated publication offences in light of a changed communications landscape. However, the Committee also recognises that successive reviews into the secrecy provisions contained throughout Commonwealth legislation have consistently recommended that the provisions need to be simplified and the number of discrete offences reduced. Therefore, while the Committee supports the changes to secrecy offences set out in Parts 2 and 4 of Schedule 2 of the Bill, it considers that the Government should consider aligning the proposed amendments with recommendations that may be relevant from the INSLM’s review into secrecy offence legislation, pending the timing of completion of that review and passage of this legislation.

3.19The Committee recommends that the Government consider aligning the proposed amendments to the Intelligence Services Act 2001 and the Australian Security Intelligence Organisation Act 1979 secrecy offences contained in Parts 2 and 4 of Schedule 2 with recommendations that may be relevant from the Independent National Security Legislation Monitor’s review into secrecy offence legislation, pending the timing of completion of that review and passage of this legislation.

3.20The Committee supports the amendments set out in Schedule 3 of the Bill. The Committee acknowledges that, per the EM, the proposed change to the sequencing of ministerial authorisations to allow the minister to sign in advance of the Attorney-General is only to be used in exceptional circumstances. This change in sequencing does not in any way alter the fact that the activity is only authorised once both the relevant minister and the Attorney-General have provided their approval.

3.21Close consideration was given to the proposed amendments to the conditions of which the relevant minister must be satisfied in granting an authorisation to ASIS, AGO or ASD to conduct activity against an Australian person in Part 1 of Schedule 3 of the Bill to explicitly include a person who is engaged in activities that present a significant risk to their own safety. The Committee notes that this could be considered a possible broadening of the circumstances in which ASIS, AGO or ASD could seek a ministerial authorisation in relation to an Australian person. However, it is confident current oversight provided by this Committee and the IGIS would ensure this power is used with respect to the principles of propriety and proportionality. The Committee is confident that, following the passage of these changes to the process for ministerial authorisations, the IGIS would pay the necessary attention to agencies’ use of their powers.

3.22The Committee supports the proposed refinements to Part IVA of the ASIO Act to enable more efficient processing of security clearance decisions, especially given the increased workload placed on ASIO with the addition of the new Top Secret Privileged Access function. The Committee notes that the change in approval level is only for non-prejudicial cases.

3.23The Committee supports the ongoing implementation of recommendations from the Comprehensive Review and looks forward to continued progress in this respect. Following the implementation of the recommendations listed in this chapter, the Committee recommends the Bill be passed by the Parliament.

3.24The Committee recommends that, following implementation of the recommendations in this report, the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023 be passed by the Parliament.

Mr Peter Khalil MP

Chair

March 2024

Footnotes

[1]D Richardson, Comprehensive Review, vol. 2, pp. 219–221.