Introduction
3.1
The Office of National Intelligence Bill 2018 (the Bill) establishes ONI and the positon of the Director-General of National Intelligence (DGNI); outlines the functions and powers of both; introduces secrecy offences and provisions relating to information; and covers administrative and miscellaneous matters.
3.2
The Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018 (the C&T Bill) repeals the Office of National Assessments Act 1977; makes a number of provisions for transitional arrangements from ONA to ONI; and amends a further 18 acts to reflect the proposed operation of the Bill.
3.3
In line with the Committee’s terms of reference for this inquiry, the Committee examined the provisions of both bills, and how the proposed legislation reflects the recommendations from the Independent Intelligence Review (the Review).
3.4
The Committee also examined whether ONI has been given adequate powers and functions to lead a better coordinated and more integrated intelligence community, and looked at any impact on the existing roles and statutory functions of the other Australian intelligence agencies.
ONI Bill: Part 1 – Introduction
3.5
Clause 4—Definitions, captures part of the Review’s first recommendation that the remit of DGNI extends to the ‘broader’ National Intelligence Community (NIC). The Bill ensures the NIC includes the traditional Australian Intelligence Community (AIC) agencies, plus the intelligence-related functions of the
Australian Transaction Reports and Analysis Centre (AUSTRAC),
Australian Federal Police (AFP),
Department of Home Affairs, and
Defence Department (other than DIO and AGO, but not the Australian Defence Force).
ONI Bill: Part 2 – Office of National Intelligence
3.6
In line with the first recommendation of the Review, clause 6 establishes ONI as a continuation of ONA.
3.7
Clauses 7 to 10 describe the functions of ONI as being leadership, evaluation, assessment, advice and open source collection. Each function is addressed as follows:
Leadership function
3.8
Clause 7(1)(a) gives ONI the function of leading the NIC, in line with the first recommendation of the Review that DGNI be the head of the NIC. Leadership of the NIC is expanded further in clause 8, which provides that ONI guide the direction of the NIC to ensure:
the development, strategic planning, coordination and appropriate integration of matters relating to the NIC,
the prioritisation of national intelligence priorities and requirements, and allocation of resources accordingly, and
structured and appropriate responses to technological advancements.
3.9
The note to clause 8(2) provides examples of ONI’s leadership, which capture some of the recommendations from the Review. These include leading engagement with the private sector, workforce planning, data management and training for NIC agencies.
3.10
Clause 8(3) states that ONI must perform its leadership in a way that is consistent with NIC agencies’ development of relationships with other entities, including international partners and the private sector. ONI’s engagement with other entities under its leadership function is
intended to complement (rather than replace) the relationships developed or maintained by other NIC agencies in connection with the performance of their roles or functions.
Evaluation function
3.11
Clause 7(1)(b) gives ONI the function of evaluating matters relating to the NIC. The evaluation function is defined further in clause 9, which is ‘based upon ONA’s existing evaluation functions with some modifications to reflect the Review’s recommendations’.
3.12
Under clause 9(1)(a), the evaluation of Australia’s foreign intelligence priorities in the Office of National Assessments Act 1977 has been changed to evaluation of Australia’s national intelligence priorities in the Bill. This reflects the Review’s comments that
ONA’s focus on its role as the peak body for foreign intelligence assessment does not give it the appropriate perspective for co-ordinating the activities of Australia’s intelligence agencies within the framework of a twenty-first century national intelligence enterprise … the demarcations between security and foreign intelligence have blurred in some respects …
3.13
Clause 9(1)(b) extends ONA’s ability to evaluate the adequacy of resources to allow ONI to also evaluate ‘whether those resources are being appropriately allocated’. This change reflects the Review’s second recommendation that DGNI’s evaluation responsibilities include ’practical assessments’ in relation to resource allocation.
3.14
Clause 9(1)(c) allows ONI to evaluate other aspects of an affected agency or agencies to the extent required to perform any other function.
3.15
Clause 9(1)(d) provides that the Prime Minister may direct ONI to evaluate an agency or agencies to assess the NIC’s effectiveness in relation to specific matters. For example, the Prime Minister may direct ONI to evaluate an ‘intelligence failure’ under this function.
Assessment function
3.16
ONA’s assessment function has been expanded under clause 7(d) to enable ONI to make assessments relating to other matters that are of political, strategic or economic significance to Australia. ONI’s assessment function under 7(d) would be to ‘complement the work’ of the NIC rather than to duplicate or replace it. In line with comments made in the Review, the Explanatory Memorandum explains that the clause
reflects the recommendations of the Review regarding the need for ONI’s assessment capability to have greater scale and scope to meet Government requirements, while also recognising the existing roles and statutory functions of other assessment agencies including ASIO and DIO.
3.17
The joint submission from the Department of the Prime Minister and Cabinet and the Office of National Assessments (Joint Submission) noted that clause 7(d) would ‘allow ONI to prepare strategic assessments on matters that do not have an international connection’, and that while this function may result in ONI having greater access to personal information relating to Australians, ‘ONI’s assessment focus will remain at the strategic, rather than individual level’.
Advisory function
3.18
Clauses 7(1)(e) and (f) enable ONI to provide advice to the Prime Minister from a whole-of-NIC perspective, and on matters relating to the NIC more generally. The Explanatory Memorandum notes these clauses
reflect the recommendations of the Review regarding [DGNI]’s role as principal adviser to the Prime Minister on intelligence matters, supported by ONI’s role as the principal advisory agency to the Prime Minister on intelligence matters.
3.19
The Explanatory Memorandum also notes that ONI’s advisory role will ‘complement the existing advisory roles and responsibilities of other NIC agencies’.
Open Source collection
3.20
ONA currently operates the Open Source Centre (OSC). Clause 7(1)(g) will support ONI’s operation of the OSC, and allow ONI to enhance its ability to be a ‘centre of expertise for open source collection, analysis, tradecraft and training’ as recommended in the Review.
3.21
Clause 7(1)(g) mandates ONI to ‘collect, interpret and disseminate matters of political, strategic or environmental significance to Australia that is accessible to any section of the public’. The Explanatory Memorandum notes that generally
the [OSC’s] collection is about what people are saying cumulatively rather than the individuals involved.
3.22
It continues that the reference to the term ‘accessible to any section of the public’
is intended to capture information that is generally available to the public, including information that requires conditions to be met before it can be accessed, for example, the payment of a fee or membership of a group. It does not require information to be available to all sections of the public. The function does not authorise ONI to undertake unlawful activity to obtain the information.
3.23
In relation to assessing whether information is accessible to ‘any section of the public’, the Inspector-General of Intelligence and Security (IGIS) submitted that this ‘is more complicated than it may seem’.
Examples of where a difficult assessment may be required include activities in closed forums where membership must be approved by an administrator and/or requires payment of a fee, or where membership is limited to those with specialist skills, knowledge or access to technology. The assessment may involve questions of fact and degree in individual cases. There may also reach a point where the persons to whom the information is accessible cannot be regarded as a section of the public because the ‘section’ is so confined that it becomes private.
3.24
However, the IGIS provided assurance that
Given that several NIC agencies collect open source information, when overseeing this collection the IGIS will be well positioned to compare the governance arrangements of different agencies for managing collection, sharing and protection of this information.
Assumed Identities
3.25
As a result of ONI’s defined open source remit, ONI staff will be able to access assumed identities through the C&T Bill’s amendments to the Crimes Act 1914. According to the Joint Submission,
Access to the assumed identities regime will support the OSC’s access to a range of rapidly-evolving internet-based platforms. For example, access to some subscription services or social media platforms increasingly requires identity verification before permitting access. Although access to such platforms could be obtained through Australian Government accounts, in many cases it is not desirable for access to these services to be directly attributable to the Australian Government; attributable access could indicate an intelligence interest in particular matters or the nature of Australia’s intelligence collection priorities.
3.26
Evidence of an assumed identity—such as a drivers licence or Medicare card—will not be authorised under the C&T Bill. Instead, ONI will ‘rely on ASIO and ASIS to obtain evidence of an assumed identity on its behalf if required’.
3.27
The amendments to the Crimes Act 1914 provide safeguards around ONI’s use of assumed identities, including that:
ONI’s access to assumed identities is limited to the purpose of carrying out its open source collection function and does not extend to any of its other functions, including its assessment, evaluation or leadership roles,
acquisition or use of an assumed identity by staff of ONI must be supervised by an Australian Public Service Executive Level Officer Level 1 position, or an equivalent or higher position, in ONI,
ONI is not exempt from providing evidence of an assumed identity at the request of a participating State or Territory jurisdiction, and
DGNI can delegate to a Senior Executive Service employee of ONI any of DGNI’s functions relating to the granting, variation, cancellation and transfer of control of assumed identities.
3.28
In her submission, the IGIS noted her expectation that in relation to ONI’s use of assumed identities,
ONI will have a robust internal management and auditing scheme under the Crimes Act 1914. The IGIS is likely to review those arrangements once they are operational.
3.29
The matter of assumed identities was raised during the public hearing, with witnesses being asked whether ONI will have in place robust internal management and auditing schemes to deal with assumed identities. ONA responded that its
compliance regime is one to ensure that we're recording our use of those assumed identities accurately; that we are referring matters to the IGIS to ensure that she's got oversight and coverage; and that we're applying their use in line with our privacy rules. So the nature of how we develop our assumed-identities use is one of monitoring and recording and then reporting back under the assumed-identities framework twice a year.
Matters not part of ONI’s functions
3.30
Clause 10 outlines matters that are not part of ONI’s functions. The clause reflects the Review’s first recommendation that, while DGNI should be able to direct the co-ordination of the NIC, he or she should not direct the specific activities of agencies. The Bill specifies that DGNI must ensure ONI ‘performs its functions in ways that do not inappropriately impact on, or encroach on the functions, powers and responsibilities’ of NIC members, their portfolio departments, or persons holding office or appointment in relation to a NIC agency.
3.31
The clause further clarifies that ONI’s functions do not include
directing the operational activities of the other NIC agencies nor infringing on their statutory responsibilities,
conducting inquiries into individual complaints against agencies,
directing the content or conclusions of intelligence, advice, assessments or reports prepared by an intelligence agency,
inquiring into the legality, propriety or integrity of activities undertaken by NIC members.
3.32
The Explanatory Memorandum notes that although DGNI should be able to influence and shape the balance of resources across the NIC, he or she
would not have control over, or responsibility for, individual agency appropriations.
3.33
At the public hearing, the Director-General of ONA, Mr Nick Warner, was asked about the parameters of his role in relation to providing advice to the Prime Minister on the hypothetical example of whether or not companies should be able to tender for a 5G network.
3.34
Mr Warner responded that ONI would not advise the Prime Minister on that as it would be considered policy advice:
What ONA, ONI and others in the broader intelligence community could do would be to look at the technology and the history of companies and provide analysis to the Prime Minister and to others. But that's no different to anything that ONA has done for the last 40 years. So, from ONA to ONI doesn't change that.
3.35
Mr Warner went on to state that:
We're not going to change policy. We're not going to make policy. We're not going to recommend policy. We will provide clear and honest assessments of how we see situations, as ONA does now.
Powers of ONI
3.36
Clause 11 gives ONI the power to do all things necessary or convenient to be done for, or in connection with the performance of its functions.
Directions from Prime Minister
3.37
Clause 12 allows the Prime Minister to give directions to DGNI concerning the performance of ONI’s functions or the exercise of its powers. The clause also ensures ONI and DGNI’s statutory independence by preventing the Prime Minister from ‘directing DGNI in respect to the content of ONI’s assessments’.
Cooperation
3.38
Clause 13 enables ONI to cooperate with other entities, both within or outside Australia, for the purposes of the performance of its own functions.
3.39
DGNI is required to ‘approve an authority of another country as being capable of assisting ONI in the performance of its functions and the exercise of its powers’. Under clause 54 of the Bill, this power can be delegated to a Senior Executive Service (SES) employee.
3.40
The Explanatory Memorandum explains the approval threshold requirement for ONI as being
based upon existing requirements that apply to ASIO and agencies under the Intelligence Services Act in respect of their cooperation with foreign authorities, with some modification to reflect ONI’s cooperation is much less likely to be operational in nature than is the case with these agencies.
3.41
At the public hearing, the Committee questioned whether the authorisation level to cooperate with entities was appropriate, given some other NIC agencies require Ministerial approval to deal with a foreign country.
3.42
Representatives of the Department of the Prime Minister and Cabinet responded that
at the current time ONA do not require any form of authorisation to cooperate with foreign authorities, so we balanced the fact that ONI's functions are different to ONA's and they increasingly may be cooperating with foreign authorities, perhaps on behalf of other intelligence agencies, so we felt there was a need for some form of authorisation process. But, given that the nature of the cooperation is going to be quite different to the other intelligence agencies, it was felt that it would be sufficient to have a process where the Director-General authorised it, but the Prime Minister has an option of then revoking that authorisation.
3.43
The Department also advised that
The nature of the information that we share as ONA and ONI is a broader strategic collection. It's a culmination. We're not an operational agency. Operational agencies share raw intelligence, and hence there is a opportunity in the sharing of that intelligence for partners to use that for other means. So having ministerial authorisation to engage in those relationships for specific purposes is what is in place for other NIC agencies, but we don't share raw intelligence, because we don't collect raw intelligence.
3.44
Clause 13(3) provides that DGNI must notify the Prime Minister on a monthly basis of approvals given to cooperate with an authority of a foreign country.
3.45
Clause 14 deals with ONI’s ability to cooperate with certain agencies in connection with the performance of the other agencies’ functions.
Committee comment
3.46
The Committee is broadly supportive of Part 2 of the Bill and the way it both continues the work of ONA and implements recommendations from the Review in relation to ONI’s functions and powers. The Committee considers the legislation will allow ONI to manage Australia’s national intelligence enterprise and produce national and strategic intelligence assessments, while safeguarding NIC agencies’ current roles and responsibilities.
3.47
The Committee notes the comments made in the Joint Submission that agencies were consulted during the drafting process. While some agencies raised concerns that being too specific in the legislation could be interpreted as providing ONI with a more hands-on role in those areas than was intended,
the broad nature of [clause] 8 and the restrictions placed on ONI’s functions in [clause] 10 have addressed these concerns.
3.48
However, the Committee holds concerns that ONI’s ability to cooperate with foreign authorities can be authorised by an SES delegate of DGNI.
3.49
The Committee notes this is in contrast to the authorisations required for other NIC agencies—in particular ASIO and those under the Intelligence Services Act 2001 [ISA]—who require a one-off Ministerial-level approval in order to engage with authorities of a foreign country.
3.50
The Committee recognises that ONI’s cooperation with foreign agencies is unlikely to be operational in nature. However, given ONI will have a broader assessment remit than ONA and is being encouraged to ‘develop a more intensive and substantive program of interaction with experts outside government to inform assessments’, the Committee considers there may be instances when engagement with a foreign authority may make it inappropriate for DGNI to delegate authorisation to a SES employee.
3.51
The Committee further notes that in response to the Review, the Government commissioned a Comprehensive Review into the Legal Framework of the National Intelligence Community. The Terms of Reference for the Comprehensive Review include consideration of improvements that could be made to ensure that the legislative framework for the NIC
supports effective co-operation, liaison and sharing of information between NIC agencies, and … foreign government … partners, for intelligence purposes
and
provides for accountability and oversight that is transparent and as consistent across the NIC agencies as is practicably feasible.
3.52
The Committee considers it is appropriate for the Comprehensive Review to examine the consistency and appropriateness of the different authorisation requirements contained in NIC legislation which allow NIC agencies to cooperate with authorities of a foreign country. The Committee recommends the Government request that this matter is considered by the Comprehensive Review.
3.53
Until such time as the Comprehensive Review has considered authorisation levels for NIC members to cooperate with an authority of a foreign country, the Committee recommends that all approvals to cooperate with an authority of another country under clause 13 of the Bill must be approved by DGNI and not delegated to SES officers.
3.54
The Committee recommends that the Government request the Comprehensive Review into the Legal Framework of the National Intelligence Community to examine the consistency of the various provisions across national intelligence community legislation enabling these agencies to cooperate with foreign authorities.
3.55
The Committee recommends that the Government amend clause 54(2) of the Office of National Intelligence Bill 2018 to ensure that the powers of the Director-General of National Intelligence under clause 13(2) cannot be delegated when approving an authority of another country as being capable of assisting ONI in the performance of its functions and the exercise of its powers.
ONI Bill: Part 3—DGNI and staff of ONI
3.56
Clauses 15 to 32 deal with the functions and powers of DGNI. The position is established in clause 15, which specifies that DGNI has a leadership role in the NIC, reflecting the Review’s first recommendation.
3.57
Clause 16 lists the functions of DGNI. These include ensuring the proper, efficient and effective performance of ONI’s functions, managing ONI and to respond to requests for reports or assessments. A broad power is conferred on DGNI to ‘do all things necessary or convenient to be done for or in connection with the performance of the Director-General’s functions’.
3.58
In line with the Review, clause 16(4) mirrors clause 10(1), and specifies that DGNI must perform the role in a way that does not inappropriately impact on, or encroach on the functions, powers and responsibilities of other NIC agencies.
3.59
Further, clause 16(5) mirrors clause 10(2) and lists a number of functions and powers not conferred on DGNI, including,
directing an intelligence agency to carry out operational activities or allocate resources in relation to operational activities,
conducting inquiries into individual complaints against an intelligence agency,
inquiring into the legality, propriety or integrity of activities undertaken by intelligence agencies, and
directing the content or conclusions of intelligence, advice, assessments or reports prepared by an intelligence agency.
3.60
Clause 17 and 18 deal with DGNI’s requirement to keep the Prime Minister informed on NIC-related matters, and that DGNI must also consult regularly with the Leader of the Opposition on matters DGNI considers significant. This is in line with recommendation 2(d) of the Review that DGNI
provide the Prime Minister with a written personal overview every two weeks on key issues for the intelligence agencies, and that this overview be supplemented by meetings with the Prime Minister every two weeks.
3.61
Clause 19 requires DGNI to take all reasonable steps to ensure that ONI is kept free from any influences or considerations not relevant to its functions, and that ‘nothing is done that might lend colour to any suggestion that ONI is concerned to further or protect the interests of any particular section of the community, or with any matters other than the performance of its functions’. This is in line with recommendation 1 that ONI be established as a statutory authority. The Explanatory Memorandum explains that the clause is based
upon similar provisions in the Australian Security Intelligence Organisation Act 1979 (ASIO Act) and [the ISA] and supports ONI’s statutory independence in relation to its assessment functions.
3.62
Clause 20 allows DGNI to give directions to the NIC as a whole, a class of NIC agencies or a particular NIC agency where he or she considers it necessary to do so to enable ONI to perform its leadership function. The power to issue directions cannot be delegated by DGNI and reflects recommendation 1(d) of the Review that DGNI be able to direct the coordination of the NIC without directing the specific activities of agencies.
3.63
The Explanatory Memorandum notes that it is intended that
directions would be used in limited circumstances as a last-resort tool, to address significant inadequacies or a consistent and unjustified failure of a particular agency or agencies to adhere to an enterprise approach.
3.64
The Bill contains safeguards around DGNI’s power to give directions. Clause 20(2) requires that DGNI consult with the head of the relevant NIC agency or agencies prior to issuing a direction, and Clause 20(3) outlines circumstances in which a direction has no effect. These include instances where compliance with the direction would be directly inconsistent with obligations imposed on the agency or the head of the agency by any other law of the Commonwealth. The Explanatory Memorandum notes that these restrictions are in addition to those set out in clauses 10 and 16 of the Bill.
3.65
Clause 21 allows DGNI to issue guidelines to the NIC as a whole, or a class of agencies within the NIC. Unlike directions issued under clause 20,
it is intended that high-level guidelines, providing guidance on intelligence community matters such as workforce management, ICT connectivity and intelligence capability development, will be issued by the Director-General on a relatively frequent basis.
Guidelines would not be directed at individual agencies.
3.66
The Bill specifies that failure to comply with a guideline or direction cannot result in any sanction or penalty being imposed on a NIC agency or its head.
3.67
Clause 23 requires DGNI to consult the National Assessment Board in relation to each assessment made by ONI, and provides guidelines in the event of differences of opinion on national assessments. Further details on the National Assessments Board are contained under Part 5, Division 1 of the Bill (clauses 47-51, see below).
3.68
Clauses 24-26 outline that DGNI is appointed by the Governor-General for a term no longer than five years. An acting DGNI may be appointed by the Prime Minister. Terms and conditions of appointment are included in clauses 27 to 32.
3.69
Clause 33 covers employment of ONI staff and specifies that they are engaged under the Public Service Act 1999. Secondments in and out of ONI are provided for under clauses 35 and 36.
Committee Comment
3.70
The Committee considers that Part 3 of the Bill adequately reflects the Review’s recommendations in relation to the position, functions and powers of DGNI. The Committee notes that safeguards have been included in the legislation to specify powers and functions DGNI does not have, including the power to direct a NIC agency’s operational activities, in line with the Review’s recommendations. The Committee did not receive any concerns from submitters in relation to the provisions on DGNI’s functions and powers.
3.71
The Committee notes the comment in the Joint Submission that the inclusion of provisions in the Bill limiting the powers and functions of ONI and DGNI ensures that
ONI’s and DGNI’s remits remain appropriately at the strategic level and that ONI will not be involved in the types of covert intelligence activities of other intelligence agencies, and that ONI can neither direct agencies to carry out operational activities, nor to use specific methods or means when carrying out such operations.
3.72
The Committee notes the Review specifies that DGNI and ONI would not have control over—or responsibility for—individual agency appropriations. The Explanatory Memorandum confirms this.
ONI Bill: Part 4 – Provisions relating to information
3.73
The Part 4 provisions relating to information deal with ONI’s handling and obtaining of information, and create three secrecy offences.
Information
3.74
Clause 37 gives DGNI the ability to make written requests to a Commonwealth authority to provide information relevant to ONI’s international assessments function. Before making such a request, DGNI must consult with the relevant agency head and consider any concerns they raise. The Commonwealth agency is obliged to hand over any information, documents or things to ONI unless prevented from doing so by the law of the Commonwealth, State or Territory.
3.75
The Explanatory Memorandum notes that it is intended that the majority of information provided to ONI will be provided voluntarily, and that this power will be exercised rarely.
It is intended that [DGNI] consider the implications of making a request that would require the authority to act in a manner that was inconsistent with their obligations under a contract, arrangement or understanding … [DGNI] should only make such a request where he or she considers that the importance of the obtaining the information is so significant as to outweigh the potential consequences for the authority of acting in a manner that would be inconsistent with the contract, arrangement or understanding …
It is intended that, where appropriate, [DGNI] will tailor a request to enable Commonwealth authorities to redact sensitive operational or investigative information from documents provided in response to a request.
3.76
Clause 38 permits Commonwealth authorities to provide information to ONI relating to matters of political, strategic or economic significance to Australia; clause 39 permits an NIC member to provide ONI with information relevant to the performance of ONI’s functions.
3.77
Clauses 40 and 41 provide safeguards around what the information provided to ONI may be used for, and protection afforded to such information.
3.78
Clause 40(1) places an obligation on DGNI to ensure that information provided to ONI under clause 37 is only used for the performance of ONI’s function under clause 7(1)(c) of the Bill, unless an agency gives written authorisation for the subsequent use of information.
3.79
Clause 40(2) clarifies, for the avoidance of doubt, that ONI does not contravene clause 40(1) if the information is referred to in any way in an assessment or report under clause 7(1)(c).
3.80
Under clause 41(1), DGNI must make arrangements with the head of an intelligence agency for the protection of information provided by an agency to ONI. If such arrangements are not made, ONI must take all reasonable steps under clause 41(2) to ensure the appropriate storage, access, use or further disclosure of the information and documents, according to their sensitivity.
3.81
The Explanatory Memorandum notes that
where the restrictions in clause 41 are more restrictive than those in clause 40, any disclosure done under subclause 40(2) must still comply with the protections in clause 41 – for example, mentioning information in an assessment or report must be done in a way consistent with any arrangements made between agency heads under 41(1) or in a way that is appropriate under 41(2).
3.82
The Committee sought clarification around the interaction of these clauses at the public hearing. The Department provided a supplementary submission that:
ONI is required to comply with the requirements in subsection 41(2) when dealing with the information. However, subsection 41(3) provides that this is subject to section 40.
This is intended to ensure that the references to appropriate use or further disclosure in subsection 41(2) are taken to include adhering to the restrictions in section 40 in relation to section 37 information.
Secrecy
3.83
Clauses 42 to 44 of the Bill create three offences relating to secrecy:
Clause 42 creates a penalty of imprisonment for up to 10 years for unauthorised communication of information or matters prepared or acquired by or on behalf of ONI in connection with its functions,
Clause 43 creates a penalty of up to five years imprisonment for the secondary disclosure of certain ONI information, and
Clause 44 creates a penalty of up to three years for unauthorised dealing with records that were acquired by or prepared by or on behalf of ONI in connection with its functions, or records which relate to the performance by ONI of its functions.
Clause 43
3.84
In their Joint Submission, the Department of Prime Minister and Cabinet and the Office of National Assessments recommended that clause 43—which relates to secondary disclosure by ‘outsiders’—be removed from the Bill. The proposed removal of clause 43 was supported by the Law Council of Australia.
3.85
The Joint Submission noted that development of the Bill
overlapped with the PJCIS’ consideration — and the subsequent amendment — of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 …
Noting the Committee’s recommendations on the Espionage and Foreign Interference Bill, and the form in which that Bill passed the Parliament, PM&C recommends that the ONI Bill, including Explanatory Memorandum, be amended to remove s 43 (Offence—subsequent communications of certain information) in its entirety.
3.86
The National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 (the EFI Bill) referenced in the Joint Submission was considered by the Committee in its June 2018 Advisory Report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017. The EFI Bill repealed the existing secrecy offences in the Crimes Act 1914, and replaced them with new secrecy offences in new Part 5.6 of the Criminal Code.
Committee Comment
3.87
The Committee supports the proposed removal of clause 43 from the Bill. The clause creates an offence for subsequent disclosures by ‘outsiders’—i.e. people who come to possess ONI information other than a staff member of ONI or under an arrangement with ONI. This would include, for example, journalists. The clause is modelled on Section 35P of the ASIO Act, which was limited to ASIO’s special intelligence operations only. Clause 43 of the Bill, on the other hand, applies to all ONI information.
3.88
During its review of the EFI Bill, the Committee considered the application of general secrecy offences proposed to be inserted into the Criminal Code to outsiders such as journalists. Following the Committee’s review, section 122.4A will be inserted into the Criminal Code to provide harm-based secrecy offences in relation to the subsequent disclosure of Commonwealth information by outsiders. Section 122.5 of the Criminal Code will also provide a comprehensive set of defences to allow for innocuous conduct that should not be subject to an offence. The Committee notes these offences and defences in the EFI Bill will apply to all Commonwealth information, including ONI information. As such, the Committee considers there are adequate protections available if clause 43 is removed from the ONI Bill.
3.89
The Committee recommends the Office of National Intelligence Bill 2018 be amended to remove clause 43 (Offence—subsequent communications of certain information).
Clauses 42 and 44
3.90
Clauses 42 and 44 are modelled off the existing secrecy offences relating to ONA in the ISA, with ‘some minor changes to reflect changes in drafting practices’.
3.91
At the public hearing, the Committee questioned whether the offences in clauses 42 and 44 were still required given that the EFI Bill will implement similar secrecy offences through new Division 122 of the Criminal Code. The Committee received a submission from the Law Council of Australia that
the Committee examine the Bill’s consistency with recommendations made by the Australian Law Reform Commission in its Report No [112], Secrecy Laws and Open Government in Australia and to the extent that there is any inconsistency that these matters be addressed prior to enactment.
3.92
Ms Horner from the Department of the Prime Minister and Cabinet noted that clauses 42 and 44 ‘were really just replicating what was there for ONA’ in the ISA, and that the Department
felt it was better to wait until the review that was recommended by this Committee to look at the specific secrecy provisions, which would be better placed to look at that from a holistic point of view … we were concerned that we'd have some unintended consequences if we did it without looking at it from the perspective of the provisions that apply to all the intelligence agencies.
3.93
The review referred to by Ms Horner was a recommendation made by the Committee in its review of the EFI Bill. The Committee recommended the Attorney-General initiate a review of all the existing secrecy offences contained in other legislation, taking into account the set of principles contained in the Australian Law Reform Commission’s report, Secrecy Laws and Open Government in Australia.
3.94
The Director-General of ONA, Mr Nick Warner, added that secrecy provisions contained in the Bill would be considered in the Comprehensive Review into the Legal Framework of the National Intelligence Community being undertaken by former Director-General of Security Mr Dennis Richardson. Mr Warner noted the Comprehensive Review would consider both the ONI Bill and the ISA, and that ONA would ‘like them to be a replication of each other’.
3.95
The Department and ONA agreed with the Committee’s summary of the rationale to leave clauses 42 and 44 in the Bill.
So the suggestion you're both making is that you don't want there to be a gap and it can wait—we're legislating to avoid a gap now, and because there's a very large review being conducted by Mr Richardson … that's the time to have a look at the whole set.
3.96
The Law Council raised further queries in relation to clauses 42 and 44. In particular, the Law Council questioned whether officers from agencies that may have dealings with ONI, such as the AFP, may be captured by the offence provision; whether an exemption for disclosures made under the Public Interest Disclosure Act 2013 and Freedom of Information Act 1982 may be required if officers of agencies other than ONI may be captured; and that defences for information communicated for the purposes of obtaining legal advice and to a court or tribunal were not provided for.
3.97
The Department responded that clauses 42 and 44
really just replicate something that currently exists … Our preference would be to not add and amend, and add defences in, because you'll end up with inconsistency with the provisions that apply to the rest of the intelligence community.
3.98
At the public hearing, the Department further advised the Committee that the Bill contained ‘a provision for [DGNI] to authorise disclosure’. The provision for DGNI to authorise disclosure is contained in clauses 42(1)(c)(iii) and (iv)—communication of information or matter; 44(1)(d)(iii) and (iv)—unauthorised dealing with records; and 44(2)(d)(iii) and (iv)—unauthorised recording of information or matter.
3.99
The Department further noted that
in the case of intelligence information, it needs to be disclosed to the IGIS in any event under the Public Interest Disclosure Act. So there is already an exemption for disclosures to the IGIS. In relation to the Freedom of Information Act, it is envisaged that most of the information that would be captured by the secrecy offences would actually not be subject to that legislation, because the majority of the national intelligence community is actually exempt from the Freedom of Information Act.
3.100
Clause 45 requires that the Attorney-General must provide consent to a prosecution under Part 4, Division 2. Clause 46 exempts officials from the IGIS from committing an offence if they are exercising powers or performing functions or duties in their official capacity.
Committee comment
3.101
The Committee notes that Recommendation 24 from its review of the EFI Bill stands. The Committee notes that the Government has agreed to implement the recommendation and that the Attorney-General will review these broader secrecy provisions as soon as possible to determine whether they are still required with the enactment of the proposed offences in the EFI Bill, or whether amendments are required. The Australian Law Reform Commission’s guidance should be taken into account in the review.
3.102
The Committee notes that clauses 42 and 44 duplicate existing secrecy offences in the ISA, and accepts evidence obtained during the public hearing that these provisions have been included in the Bill in order to maintain consistency with other intelligence agencies. The Committee considers the Comprehensive Review into the Legal Framework of the National Intelligence Community, and the Attorney-General’s review recommended in the EFI Bill, are best placed to consider the secrecy offences across the NIC. The Committee therefore accepts that clauses 42 and 44 should remain in the Bill until such time as they have been reviewed.
3.103
The Committee notes that the Bill already contains provisions to allow DGNI to authorise disclosure of information and records, and as such there exists an available process that can provide appropriate protection for the officers in the situations referred to by the Law Council in its submission.
ONI Bill: Part 5—Administration
3.104
Clauses 47 to 51 relate to the continuation of the National Assessments Board, including its membership and meetings. The National Assessments Board already exists under the ONA Act.
3.105
Clause 52 allows DGNI to establish committees to advise or assist in the performance of ONI’s functions. This gives ONI the flexibility to implement recommendations from the Review, including that ONI establishes an board ‘consisting of senior leaders from ONI, other intelligence agencies and relevant policy departments as well as individuals from business, non-government organisations, universities and think-tanks who can add relevant perspectives to intelligence assessment matters’.
Privacy
3.106
Clause 85 of the C&T Bill ensures that ONI will be exempt from the Privacy Act 1988, as is the case with ONA. Clause 86 also exempts from the Privacy Act the provision of personal information to ONI by agencies with an intelligence role or function (AUSTRAC, AFP and the Department of Home Affairs and the Department of Defence, other than AGO and DIO), but only to the extent that these agencies perform specific functions relating to intelligence.
3.107
Clause 53 of the Bill requires the Prime Minister to make privacy rules in relation to ONI’s collection, communication, handling and retention of identifiable information. The Australian Government Solicitor noted that the ONI Bill expands ONA’s existing functions, and as such
in carrying out its information collection and reporting functions ONI may be involved in the collection of more information. However, to the extent this includes personal information of Australians, relevant provisions of the ONI Bill are positively directed towards enhancing the protection of personal privacy compared to the current position with ONA.
3.108
The IGIS noted that the Bill
does not contain a statutory requirement that the privacy rules be made public. The IGIS considers that privacy rules applicable to ONI should be made public as are those applying to agencies under the Intelligence Services Act 2001 (the ISA). The Australian Security Intelligence Organisation (ASIO) Ministerial Guidelines are also publicly available on the ASIO website.
3.109
The Law Council of Australia agreed with the IGIS, noting that making the privacy rules public was
important to ensure transparency in ONI’s dealings with identifiable and personal information and would be consistent with requirements for agencies operating under the ISA.
3.110
At the public hearing, the Director-General of ONA responded by noting that ONA had drafted privacy rules which will be published on the ONI website.
3.111
The Committee questioned whether a voluntary publication of the privacy rules would be sufficient. At the public hearing, the Committee asked whether the Bill should contain a provision requiring publication of the privacy rules. The Department responded that the privacy rules should not be included in the legislation as
the section enabling the making [of] the privacy rules is based on the equivalent provision in the Intelligence Services Act that has a provision that they're not legislative instruments but also to give flexibility to the Prime Minister if he or she wished to issue rules that for some reason were classified in nature … It's really to give flexibility for those rare circumstances that rules did contain information that could not be made public because, obviously, if the legislation said that they had to be made public, you wouldn't have that flexibility.
3.112
The Department noted that existence of classified privacy rules would be known to the public via
IGIS oversight and the fact that one of the amendments in the consequential and transitional bill is an express requirement for the Inspector-General to report on ONI's compliance with the privacy rules in her public annual report. [The IGIS] would be able to refer to those classified rules compliance in that report, but the nature of the actual rules themselves wouldn't be publicly available.
3.113
The Law Council of Australia expressed concerns with the exemption proposed in clause 86 of the C&T Bill. It submitted that the Committee seek an assessment of the Bill from the Privacy Commissioner to inform its consideration of the Bill.
3.114
Clause 53(4) of the Bill requires the Prime Minister to consult with DGNI, the IGIS and the Attorney-General before making privacy rules. The Law Council submitted that the Prime Minister should also consult with the Privacy Commissioner before the making of privacy rules.
3.115
At the public hearing, the Committee questioned witnesses on the issue of consultation with the Privacy Commissioner, noting that the ‘Privacy Commissioner would almost certainly be consulted by the Attorney-General before the Attorney-General responds to the Prime Minister's suggested rules’.
3.116
The Department responded to this suggestion by noting there is
nothing in the legislation that would stop the Inspector-General or the Attorney-General from consulting with the Privacy Commissioner as part of that consultation process.
3.117
The Law Council also submitted that consideration should be given to amending the Bill to require appropriate privacy protection measures to be included in the primary legislation, including
requirements to conduct privacy impact assessments, annual compliance audits, the provision of appropriate training, requirements to publicly report on the number of instances where information is disclosed or used in a manner inconsistent with the privacy rules. Appropriate privacy protection measures for inclusion in the Bill should be developed in consultation with the Privacy Commissioner and the IGIS.
3.118
At the public hearing, ONA responded
The simple answer is that those measures are already conducted by the IGIS when she conducts her review of our compliance and privacy regime and she records that in her public annual report.
Committee comment
3.119
The Committee notes the Bill does not require the privacy rules to be legislative instruments. The Committee accepts the Department of the Prime Minister and Cabinet’s twofold explanation for this:
the clause in the Bill enabling the Prime Minister to make privacy rules is based on the equivalent provision in the ISA, which states that the rules are not legislative instruments, and
the Prime Minister would have flexibility not to publish the rules in the ‘rare’ circumstances in which the rules contained classified information or capabilities.
3.120
However, the Committee notes Mr Warner’s statement at the public hearing that it is intended that ONI’s ‘privacy rules will be on the ONI website. They will be made public’. Accordingly, to enhance transparency and public assurance, the Committee considers that—so long as any classified information is exempt from publication—the Bill should be amended to ensure that the privacy rules are made public.
3.121
The Committee recommends that clause 53 of the Office of National Intelligence Bill 2018 be amended to include a statutory requirement that the privacy rules be made public, except to the extent that those rules contain classified information.
3.122
The Committee accepts the Law Council’s suggestion that the Prime Minister consult with the Privacy Commissioner prior to the publication of privacy rules. The Committee notes that although the Privacy Commissioner could be consulted by the Attorney-General before the Attorney-General responds to the Prime Minister’s suggested rules, the Bill does not make this consultation mandatory. The Committee recommends the Bill be amended to ensure the Prime Minister consults with the Privacy Commissioner before making the privacy rules.
3.123
The Committee recommends that clause 53(4) of the Office of National Intelligence Bill 2018 be amended to require the Prime Minister to consult with the Privacy Commissioner, including by providing the Commissioner with a copy of the privacy rules the Prime Minister is proposing to make.
ONI Bill: Part 6—Miscellaneous
3.124
Clause 54 allows DGNI to delegate his/her functions or powers, with some noted exceptions, and clause 55 provides for the making of rules by the Prime Minister by legislative instrument.
The C&T Bill
3.125
The C&T Bill amends the following 18 Acts to reflect the proposed operation of the ONI Bill:
Acts Interpretation Act 1901,
Age Discrimination Act 2004,
Anti-Money Laundering and Counter-Terrorism Financing Act 2006,
Australian Border Force Act 2015,
Australian Crime Commission Act 2002,
Australian Human Rights Commission Act 1986,
Australian Security Intelligence Organisation Act 1979,
Freedom of Information Act 1982,
Independent National Security Legislation Monitor Act 2010,
Inspector-General of Intelligence and Security Act 1986,
Intelligence Services Act 2001,
Public Interest Disclosure Act 2013, and
Remuneration and Allowances Act 1990.
3.126
A majority of the changes to these Acts simply reflect the new arrangements by replacing references to ONA or the Director-General of ONA with references to ONI or DGNI. Some of the more substantial changes are outlined below.
Age Discrimination Act 2004
3.127
The C&T Bill will amend the Age Discrimination Act 2004 to allow the appointment of a DGNI aged over 65 years. When the Office of National Assessments Act 1977 was enacted it contained a provision preventing the appointment or reappointment of a Director-General of ONA who was aged over 65 years. This provision was subsequently repealed by the Abolition of the Compulsory Age of Retirement (Statutory Officeholders) Act 2001 however the exemption to the Age Discrimination Act was not.
Australian Security Intelligence Organisation Act 1979
3.128
The C&T Bill amends the ASIO Act to allow ASIO to cooperate with and assist ONI in the performance of its functions.
Crimes Act 1914
3.129
As discussed earlier in this chapter, the amendments to the Crimes Act 1914 will enable ONI to access the assumed identities regime set out in part IAC of the Act. Such assumed identities will be used by ONI for collection activities undertaken through its open source function in clause 7(1)(g) of the Bill.
Intelligence Services Act 2001
3.130
The amendments to the ISA ensure the functions of the Committee will not extend to reviewing anything done by ONI in its leadership role that relates to a matter that is currently excluded from the Committee’s remit under section 29(3) in respect of individual agencies.
Inspector-General of Intelligence and Security Act 1986
3.131
Under the C&T Bill, the IGIS’s responsibilities increase to include the ability to inquire into ONI’s compliance with directions given to ONI by its responsible Minister. Further, comments must be included in the IGIS annual report on the extent of compliance by ONI with privacy rules made under section 53. The C&T Explanatory Memorandum notes that
these rules will be an important accountability mechanism to ensure ONI appropriately collects, stores and deals with personal information that is in its possession.
Privacy Act 1988
3.132
As noted earlier in this chapter, Clause 86 exempts the provision of personal information to ONI under the Privacy Act 1988 by agencies with an intelligence role or function (AUSTRAC, AFP and the Department of Home Affairs and the Department of Defence, other than AGO and DIO), but only to the extent that these agencies perform specific functions relating to intelligence.
Concluding comments
3.133
Overall, the Committee considers the bills achieve the recommendations set out in the Independent Intelligence Review. The bills create an Office of National Intelligence mandated to lead a better coordinated and more integrated NIC.
3.134
The Committee notes that while ONI has the flexibility to achieve its remit, the bills do not diminish the powers and statutory functions of other NIC agencies.
3.135
The Committee has considered statements made by the Department that these bills will ‘ensure that ONI can lead a national intelligence enterprise that is agile, innovative and effective in responding to the challenges of a rapidly evolving geostrategic and security environment’.
3.136
The Committee notes the Comprehensive Review into the Legal Framework of the National Intelligence Community may result in further changes being made to the bills. The Attorney-General’s review of the secrecy provisions across multiple acts of Parliament—as recommended by the Committee—may also result in further changes being made to the bills.
3.137
In the meantime however, the Committee considers the bills should remain as drafted—subject to the recommendations in this report. The Committee considers that changes to pre-empt the reviews may have the unintended consequence of creating inconsistencies with other legislation.
3.138
Overall, the Committee recommends that, subject to the recommendations in this report, the bills be passed.
3.139
The Committee recommends that, following the implementation of the recommendations in this report, the Office of National Intelligence Bill 2018 and the Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018 be passed.
Mr Andrew Hastie MP
Chair
October 2018