Introductory Info
Date introduced: 28 June 2018
House: House of Representatives
Portfolio: Prime Minister
Commencement: Refer to page 5 of this Digest for details.
The Bills Digest at a glance
Purpose of the Bill
The purpose of the Office of National Intelligence Bill
2018 (the ONI Bill) is to expand what is now the Office of National Assessments
(ONA) into the Office of National Intelligence (ONI), including establishing
the functions and powers of the agency and the Director-General of National
Intelligence.
Background
One of the most significant recommendations of the 2017
Independent Intelligence Review was the replacement of ONA with ONI,
led by a Director-General who would be the head of the National Intelligence
Community (NIC) and the Prime Minister’s principal adviser on intelligence
community issues. The reviewers recommended that ONI have a leadership and
coordination role across the NIC, including advising the Government on
intelligence collection and assessment priorities and the appointment of senior
NIC office-holders, and the evaluation of NIC agencies. The reviewers also
recommended that ONI have a broader assessment role and that the Open Source
Centre be ‘enhanced as a centre of expertise for open source collection,
analysis, tradecraft and training’.
Key elements
The key differences between the functions of ONA and those
proposed for ONI are as follows.
Assessments and open source collection and analysis
ONI will have a broader assessment function—its
main focus will remain on international matters that are of political,
strategic or economic significance to Australia, but this will explicitly
include the domestic aspects of such matters; ONI will also prepare assessments
and reports on other matters of political, strategic or economic significance
to Australia where doing so would support another of its functions or
complement the work of the NIC.
ONI will be responsible for collecting, interpreting and
disseminating information relating to matters of political, strategic or
economic significance to Australia that is accessible to any section of the
public. This will provide a broader mandate for the Open Source Centre,
which currently operates as part of ONA’s assessment function. Staff members of
ONI will also be permitted to acquire and use assumed identities for the
purposes of collecting open source intelligence.
Intelligence enterprise management
The ONA has coordination functions in relation to foreign
intelligence activities and agencies. ONI will instead have leadership
functions, and those functions will span the entire NIC, including agencies
with a domestic focus. Its leadership functions will be complemented by
specific functions of providing advice to the Prime Minister on national
intelligence priorities, requirements and capabilities from a whole-of-NIC
perspective, and on matters relating to the NIC more generally.
The ONA has an evaluation function in relation to foreign
intelligence activities. ONI will have broader evaluation functions,
spanning the entire NIC and including the allocation as well as the adequacy of
resources, additional aspects of agencies, and (at the Prime Minister’s
request) the effectiveness of one or more agencies in relation to specific
matters.
Purpose of
the Bills
The purpose of the ONI Bill is to expand ONA into ONI,
including establishing the functions and powers of the agency and the
Director-General of National Intelligence.
The Office of National Intelligence (Consequential and
Transitional Provisions) Bill 2018 (the CTP Bill) will repeal the Office of National
Assessments Act 1977 (ONA Act), make amendments to other
Acts consequential to that repeal and the establishment of the ONI, and provide
for matters relating to the transition from ONA to ONI. It will also make
several more substantive amendments, including to:
Structure
of the Bills
The ONI Bill comprises six Parts:
- Part 1
contains a simplified outline of the Act and definitions of key terms, and will
provide that the Act extends to every external territory
- Part 2
will establish ONI and its functions and powers, and set out how ONI may
cooperate with other persons and entities
- Part 3
will establish the position of Director-General of National Intelligence (DNI)
and the functions and powers of the DNI, and make provision for the appointment
of the DNI and employment of staff
- Part 4
deals with information gathering and contains secrecy offences
- Part 5
will provide for the continuation of the National Assessments Board, set out
its composition and make provision for meetings of the Board and
- Part 6
will allow the DNI to delegate functions and powers under the Act and allow the
Prime Minister to make rules relating to the Act, by legislative instrument.
The CTP Bill comprises four Schedules:
Commencement
details
Sections 1 and 2 of the ONI Bill will commence
on Royal Assent. The substantive provisions will commence on proclamation or six
months after Royal Assent, whichever occurs first.
Sections 1 to 3 of the CTP Bill will commence on
Royal Assent. Schedules 1 and 2 will commence at the same time as
section 3 of the ONI Bill, but will not commence at all if that section
does not commence. Schedule 3 will commence the later of the commencement
of section 3 of the ONI Bill and immediately after the commencement of
Schedule 2 to the EFI Act, but will not commence at all unless
provisions of both commence. Schedule 4 will commence immediately after
the commencement of section 3 of the ONI Bill.
Background
The most recent independent review of the Australian
Intelligence Community (AIC) was completed in June 2017, with a public version
of the report released in July 2017.[1]
The reviewers made 23 recommendations relating to structural arrangements,
capability and resourcing, legislation, and oversight.[2]
They also judged that looking ahead, the AIC construct would become
increasingly artificial, and that a more useful frame of reference will be the
NIC, which they considered includes:
- the
six agencies comprising the AIC (Australian Security Intelligence Organisation
(ASIO), Australian Signals Directorate (ASD), Australian Secret Intelligence
Service (ASIS), Australian Geospatial-Intelligence Organisation (AGO), Defence
Intelligence Organisation (DIO) and ONA)
- ACIC
and the Australian Transaction Reports and Analysis Centre (AUSTRAC) and
- the
relevant parts of the Australian Federal Police (AFP) and the Department of
Immigration and Border Protection (now DoHA).[3]
One of the 2017 Review’s most significant recommendations
was the expansion of ONA into ONI, led by a Director-General who would be the
head of the NIC and the Prime Minister’s principal adviser on intelligence
community issues. The reviewers recommended that ONI have a leadership and
coordination role across the NIC, including advising the Government on
intelligence collection and assessment priorities and the appointment of senior
NIC office-holders, and the evaluation of NIC agencies.[4]
The ONI’s leadership and coordination functions will be similar to the Office
of the Director of National Intelligence in the United States, which began
operations in April 2005. The Director is the principal intelligence adviser to
the President, and the Office is responsible for determining and managing the
National Intelligence Program budget and leading and supporting integration across
the US intelligence community.[5]
Establishment of ONA
ONA was established following the Royal Commission on
Intelligence and Security, which concluded in 1977. Justice Hope considered
that there was a need for ‘a centrally located assessments function’ not under
the control of either the Department of Defence or the Department of Foreign
Affairs, but rather ‘placed in a location in the centre of government’.[6]
Justice Hope recommended the establishment of an independent Office of
Australian Intelligence Assessments, the key functions of which would be:
(a) To
assemble, evaluate and correlate such intelligence as will enable the Office to
present to Commonwealth ministers, departments and agencies intelligence
reports, assessments and appreciations or other information that are required
to assist those authorities in the formation of national policy and plans.
(b) To
provide for the appropriate dissemination of such intelligence within the
Australian Government.[7]
He also considered that the head of the new agency should
‘assume responsibilities for the leadership and coordination of the Australian
intelligence community as a whole’.[8]
Legislation to establish ONA was passed in 1977, and ONA
began operations in February 1978.[9]
Expansion of ONA and 2017 Review
findings
ONA’s mandate and resources have been expanded over the
intervening years, including in response to the findings and recommendations of
the Royal Commission on Australia’s Security and Intelligence Agencies in the
1980s and the 2004 inquiry into Australian intelligence agencies.[10]
However, the 2017 Review found that ONA was ‘neither oriented to, nor
structured for, the modern leadership role and co-ordination responsibilities
that Australian intelligence in the twenty-first century requires’:
... In our view, 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. In
this context, realities have changed since the time ONA was established
following the first Hope Royal Commission ... the processes of intelligence are
more diffuse; the balance of strategic and operational intelligence has shifted;
the demarcations between security and foreign intelligence have blurred in some
respects; and the requirements for effective co-ordination of national intelligence
have also changed.
The nature of twenty-first century intelligence ... has direct
consequences for the structure and operation of Australia’s intelligence
agencies. It calls for clear direction-setting across the broad spectrum of
foreign and security intelligence, and the promotion of effective integration
and synergies in support of intelligence as a national enterprise. It also
calls for the provision of a single focus of accountability to the Government
for the performance of the NIC as a whole.
The co-ordination that Australia’s intelligence agencies
require in the twenty-first century is different to that which shaped the
establishment of ONA in 1977 and defined its legislative mandate. What is
required into the future is an enterprise-based management of the NIC that
provides leadership and a focus on integration across the full spectrum of
intelligence activities.[11]
In relation to its assessments function, the reviewers
considered that ONA pursues its role responsibly and professionally, with its
reports being ‘well-informed on an all-source basis’ and its judgments
‘subjected to robust internal review.[12]
However, they were also of the view that ONA’s reporting and assessments ‘could
be more directly connected to the needs and requirements of policy-making,
particularly in relation to economic issues and linkages between economic and
security developments’ and that the contestability of ONA’s assessments could
be improved ‘including through deeper, more structured and more productive
engagement with expertise outside government’.[13]
Recommendations on ONI
The reviewers made detailed recommendations about the
proposed ONI, with key elements including that:
- ONI
should be established in the Prime Minister’s portfolio, subsuming ONA, and be
led by a Director-General appointed at departmental Secretary level
- the
Director-General should be the head of the NIC and the Prime Minister’s
principal advisor on NIC issues, including the appointment of senior NIC
office-holders and succession planning
- ONI
should encompass two main areas of responsibility: intelligence enterprise
management (including intelligence integration), and assessments (with the
number of analysts at ONA to be increased by at least 50 per cent to
support ONI’s assessment role)
-
the Director-General:
- should
be able to direct the coordination of the NIC ‘to ensure there are appropriately
integrated strategies across the suite of NIC capabilities’, without directing
the specific activities of agencies
- should
be given authority and responsibility for advising the Government on
intelligence collection and assessment priorities, allocating responsibility
for collection across the agencies, and reporting to Government on performance
against those priorities
- should
be responsible for new arrangements for agency evaluation similar to the
Functional and Efficiency Reviews led by the Department of Finance, resulting
in ‘practical assessments of progress in relation to prioritisation,
effectiveness, resource allocation, capability development and co-ordination’.[14]
With respect to its assessment capability, the reviewers considered
that ONI ‘would need to have greater scale and scope, particularly in light of
the geopolitical, economic and technological issues that will make Australia’s
strategic environment over the coming decade more complex and unpredictable’.[15]
The reviewers also recommended that ONI have a broader assessment role and that
the Open Source Centre be ‘enhanced as a centre of expertise for open source
collection, analysis, tradecraft and training’.[16]
Committee
consideration
Parliamentary Joint Committee on
Intelligence and Security
The Bill has been referred to the Parliamentary Joint
Committee on Intelligence and Security (PJCIS) for inquiry and report. Details
of the inquiry are at the inquiry
homepage.[17]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny
of Bills Committee) raised issues in relation to two aspects of the Bill.[18]
Exceptions to secrecy offences
Division 1 of Part 6 of the IS Act sets out
secrecy offences relevant to ASIS, AGO, ASD and ONA. The offences relating to
ONA will be repealed from the IS Act by item 79 of Schedule 2
of the CTP Bill. Clauses 42 and 44 of the ONI Bill will
re-enact those secrecy offences in relation to ONI. In addition, clause 43
would create a new secrecy offence (though the Government has stated that this
clause will be removed from the Bill in its entirety).[19]
The offences in clauses 42–44 include several exceptions (or
offence-specific defences), for which a defendant will bear an evidential
burden.[20]
The Scrutiny of Bills Committee recognised that the defendant will bear only an
evidential rather than a legal burden, but nonetheless stated that it expected
any reversal of the burden of proof to be justified. It did not consider the
explanatory materials to adequately address the issue, and requested the Prime
Minister’s and Attorney-General’s advice as to why exceptions are proposed (instead
of including the relevant matters as elements of the offences).[21]
Following a response from the Attorney-General, the Committee remained
unconvinced that the matters in some of the exceptions could be described as
peculiarly within the knowledge of the defendant.[22]
Clause 46 would create an exception to all of the
secrecy offences in the Bill for IGIS officials engaging in conduct for the
purpose of exercising powers, or performing functions or duties, as an IGIS
official. The defendant will not bear an evidential burden for that exception.
This clause mirrors section 41B of the IS Act. The Scrutiny of
Bills Committee requested the Prime Minister’s and Attorney-General’s advice as
to the appropriateness of amending the Bill to expand this exception to all Australian
Government officials.[23]
The Committee accepted the Attorney-General’s response that the Government
would be undertaking a review of specific secrecy provisions, and that pending
completion of that review, it was not considered necessary to expand this exception.[24]
Privacy rules
The Government expects ONI to collect and use more
personal information than ONA does currently, because it will have a broader open
source collection and analysis function.[25]
Clause 53 will require the Prime Minister to make privacy rules to
regulate the collection of information by ONI in the context of its open source
collection and analysis function, to the extent that it is identifiable
information; and the communication, handling and retention by ONI of identifiable
information.[26]
The privacy rules may deal with other matters if the Prime Minister considers
it appropriate, and will not be legislative instruments.[27]
The Scrutiny of Bills Committee requested the Prime
Minister’s and Attorney-General’s advice as to:
- the
appropriateness of amending the ONI Bill to provide high-level regulation of
the ONI’s collection and use of identifiable information in primary
legislation, with the detail able to be specified in rules and
- why
it is necessary for the rules in their entirety not to be a legislative
instrument (meaning they will not be subject to the disallowance and sunsetting
provisions that apply to such instruments), given that the Government intends
that they will generally be made public.[28]
The Committee noted information provided by the
Attorney-General in response, but maintained its concerns, and left to the
Senate as a whole the appropriateness of these provisions.[29]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights (PJCHR)
considered that there are questions about whether parts of the ONI Bill are
compatible with certain human rights.[30]
Secrecy offences
Like the Scrutiny of Bills Committee, the PJCHR had
concerns with the secrecy offences in the ONI Bill. With respect to the right
to freedom of expression, the PJCHR requested the Prime Minister’s and
Attorney-General’s advice on:
- how
the offences are effective to achieve the stated objectives of the Bill and
- whether
the limitations on this right are reasonable and proportionate to achieve those
objectives ‘including in relation to the breadth of information subject to
secrecy provisions; the range of information or matters that may be considered
as causing harm to Australia's national security or the health and safety of
another person; the adequacy of safeguards; and the severity of the criminal
penalties’.[31]
With respect to the right to be presumed innocent,
the PJCHR requested the Prime Minister’s and Attorney-General’s advice on:
- whether
the inclusion of exceptions that place an evidential burden on a defendant are
aimed at achieving a legitimate objective for the purposes of international
human rights law
- how
those exceptions and the evidential burden are rationally connected to that
objective
- whether
the limitation on this right is reasonable and proportionate to achieve that objective
and
- whether
it would be feasible to amend the ONI Bill to instead include the relevant
matters as elements of the offences, or to provide that despite
section 13.3 of the Criminal Code, a defendant bears neither a
legal nor evidential burden when relying on one of the exceptions.[32]
Following a response from the Attorney-General, the PJCHR
welcomed the removal of clause 43 from the ONI Bill, but remained
concerned that clauses 42 and 44 may be incompatible with
the right to freedom of expression and the presumption of innocence.[33]
Information gathering powers
Clause 37 of the ONI Bill will allow the DNI
to request in writing that a Commonwealth authority provide
information, documents or things in its possession that relate to international
matters of political, strategic or economic significance to Australia, or
domestic aspects of such matters, in certain circumstances.[34]
Under clauses 38 and 39, Commonwealth authorities and NIC
agencies respectively will be able to provide information, documents and things
to ONI in certain circumstances.
With respect to the right to privacy, the PJCHR
requested the Prime Minister’s and Attorney-General’s advice on:
- whether
the information gathering powers are sufficiently circumscribed, and subject to
adequate and effective safeguards
- how
the powers constitute the least rights-restrictive approach
- whether
a copy of the proposed privacy rules can be provided and
- what
safeguards will apply to the power to collect open source information on people
who are not citizens or permanent residents of Australia.[35]
With respect to the right to equality and
non-discrimination, the PJCHR requested the Prime Minister’s and
Attorney-General’s advice on:
- whether
there is reasoning or evidence that establishes that the stated objective of
‘provid[ing] protections for Australians while facilitating the performance of
ONI’s functions in the interests of national security and for Australia’s
economic, strategic and political benefit’ addresses a pressing or substantial
concern, or whether the lack of privacy protections for people who are not
citizens or permanent residents of Australia is otherwise aimed at achieving a
legitimate objective
- how
the provisions are effective to achieve that objective and
- whether
the provisions are reasonable and proportionate to achieving the stated
objective of the ONI Bill.[36]
Following a response from the Attorney-General, the PJCHR
remained concerned that the information gathering powers may be incompatible
with the right to privacy and the right to equality and non-discrimination.[37]
In relation to the latter, the PJCHR noted the Attorney-General’s advice that
the matter is also relevant to other intelligence agencies and may be best
addressed through the comprehensive review of the legal framework governing the
NIC, and recommended that the report on that review address the right to
equality and
non-discrimination.[38]
Cooperation with other entities and
persons in connection with ONI’s functions
Under clause 13 of the ONI Bill, in performing
its functions and exercising its powers, ONI will be permitted to cooperate
with:
-
an authority of another country approved by the DNI in writing as
being capable of assisting ONI in the performance of its functions and the
exercise of its powers (subject to provisions enabling the Prime Minister to
cancel such approvals) and
- any
other person or entity, within or outside Australia.
With respect to the right to privacy, the PJCHR
noted that the Statement of Compatibility with Human Rights did not address
whether this power would engage and limit the right, and requested the Prime
Minister’s and Attorney-General’s advice on:
- whether
the power is aimed at achieving a legitimate objective for the purposes of
international human rights law
- how
the power is effective to achieve that objective and
- whether
the limitation on this right is reasonable and proportionate to achieve that
objective.[39]
The PJCHR did not consider that the Attorney-General’s
response contained sufficient information for it to assess whether or not the information
gathering powers are compatible with the right to privacy.[40]
The PJCHR further noted that international law prohibits
states that have abolished the death penalty from exposing a person to the
death penalty in another state and prohibits the provision of information to
other countries that may be used to investigate and convict someone of an
offence to which the death penalty applies. It considered that by allowing ONI
to cooperate with overseas authorities, the ONI Bill ‘appears to allow for the
sharing of personal or confidential information overseas’.[41]
In circumstances where such information is shared with the authorities of a
country that carries out the death penalty, this could engage the right to
life, a matter not addressed in the Statement of Compatibility. The PJCHR
also questioned whether the sharing of information with overseas authorities
could result in torture or cruel, inhuman or degrading treatment or
punishment, noting that there are no permissible limitations of the
prohibition on these practices. The PJCHR requested the Prime Minister’s and
Attorney-General’s advice on the compatibility of clause 13 with these
rights.[42]
The Attorney-General’s response noted among other things that
the Director-General and the Prime Minister would consider a range of factors when
deciding whether an authorisation to share information with overseas
authorities is appropriate, including ‘the human rights record of the
country/particular foreign authority’, and that ONI would establish guidelines
in consultation with the IGIS for communication of information to foreign
partners. The PJCHR considered that discretionary or administrative safeguards
may be insufficient and concluded:
The preceding analysis indicates that unless there are
adequate and effective safeguards in place, there is a risk that information
sharing may occur in circumstances where it is incompatible with the
prohibition on torture and cruel, inhuman, degrading treatment or punishment
and the right to life, that is, where the death penalty may be applied.
Noting that ONI will be developing guidelines in relation to
the disclosure of information to foreign partners, the committee requests a
copy of the guidelines, once they are drafted, insofar as they relate to
disclosure in situations where there may be risks associated with torture, and
cruel, inhuman, or degrading treatment or punishment or the death penalty.[43]
Policy position of non-government
parties/independents
The Shadow Attorney-General, Mark Dreyfus, expressed a
preliminary view that the expansion of ONA into ONI ‘looks like a sensible
idea’ when questioned about it immediately following the release of the
2017 Review.[44]
However, the Australian Labor Party did not appear to have publicly stated a
formal position on the proposal or the Bills at the date of publication of this
Digest.
In December 2017, Centre Alliance Senator, Rex Patrick, noted
that establishing ONI would bring Australia’s intelligence coordination
arrangements into line with its Five Eyes partners, but indicated that he was
not yet convinced that a case had been made for the reform.[45]
However, the Centre Alliance did not appear to have publicly stated a formal
position on the proposal or the Bills at the date of publication of this
Digest.
At the time of publication of this Bills Digest, there was
no public indication of the policy position of any other non-government parties
and independents on the Bill.
Position of
major interest groups
IGIS
The IGIS’s submission to the PJCIS inquiry into the Bills states
that the IGIS has no significant concerns about the proposed amendments, and
that once ONI is established, oversight of the agency will continue as with ONA,
but with increased emphasis on ONI’s open source function and compliance with
privacy rules:
For many years the IGIS exercised a ‘light touch’ inspection
regime with respect to the activities of ONA, given ONA was not directly
collecting covert intelligence. Its activities were therefore less likely than
those of the collection agencies to intrude upon the personal affairs of
Australian persons ... the broader open source function, the new privacy rules
and the approach to enterprise management are likely to change the emphasis of
the IGIS inspection regime and the relationship between the IGIS and ONI.[46]
PM&C and ONA: proposed
amendment
The joint submission to the PJCIS inquiry by PM&C and ONA
recommends that the proposed new secrecy offence in clause 43 of
the ONI Bill be removed from the Bill in its entirety.[47]
The offence would apply to communication of certain information relating to ONI
by persons who obtained the information otherwise than through employment with
or an arrangement with ONI. PM&C and ONA noted that development of the ONI
Bill overlapped with the PJCIS’s consideration of the National Security
Legislation Amendment (Espionage and Foreign Interference) Bill 2018 (EFI Bill),
which contained new secrecy offences relating to communication of certain
Commonwealth information. Given the PJCIS’s recommendations on that Bill and
the form in which it was passed by Parliament, PM&C and ONA recommended
that clause 43 of the ONI Bill be removed for consistency.[48]
The Attorney-General has stated that this provision will be removed from the
ONI Bill.[49]
Law Council of Australia
The Law Council of Australia (LCA) supports PM&C and
ONA’s recommendation to remove the proposed new secrecy offence in clause 43
from the ONI Bill.[50]
The LCA also recommended that the PJCIS consider whether the other secrecy
offences in clauses 42 and 44 of the ONI Bill, which will
replace those currently in the ONA Act, might capture officers from
other Commonwealth agencies, such as the AFP, in addition to ONI staff. If
those offences may capture officers from other agencies, the LCA recommended
the inclusion of additional exceptions.[51]
It also recommended the inclusion of exceptions for information communicated to
a court or tribunal, or for the purposes of obtaining legal advice.[52]
Security and intelligence experts
The proposal to establish ONI has generally been welcomed
by Australian security, intelligence and foreign affairs experts, though with
some cautioning that there are potential risks as well as benefits, and that
the success or otherwise of ONI will depend on how it is implemented and
whether it is adequately resourced.[53]
For example, Rory Medcalf (Head of the National Security College at the
Australian National University (ANU)) and his colleague Jay Caldwell
considered:
There is no perfect security architecture. Now, however, we
have the potential for something effective and coherent, if it is properly
resourced, assiduously implemented and given a chance by politicians on all
sides. Of course these are very substantial ifs.[54]
They also cautioned that it would be critical that ONA’s
all-source analysis, which they consider to be ‘a jewel in Australia's security
crown’ not be compromised in the course of ONA’s expansion into ONI.[55]
Allan Gyngell (a former head of ONA now at the Crawford
School of Public Policy at ANU) considered that maintaining a clear distinction
between intelligence and policy is probably achievable, but could prove
challenging, and that much would depend on the specifics of implementation:
The review glides a little too easily over some quite basic
tensions between the principle of independence, which it fully endorses, and
pressures for greater policy relevance. Its authors note the ‘indispensable
requirement’ for ‘intelligence assessments to be independent of policy-making’,
but also emphasise the need to ‘further accentuate’ the ‘connection between
high-quality intelligence assessments and policy-making needs’.
The reconciliation of these two valid but sometimes
conflicting requirements will, I suspect, require tougher trade-offs than the
reviewers acknowledge, particularly by a Director-General in much closer
proximity to the Prime Minister as his ‘principal adviser on intelligence
community issues’.
I worked three times in ONA over a period of 30 years and the
great strength of the organisation – noted again by L’Estrange and Merchant –
lies in its strong culture of intellectual independence and internal
contestability. Its small size, flat structure and the room it occasionally
finds for passionate eccentrics who know their subject matter deeply, help
sustain that culture. A great deal will depend on whether the ONI preserves and
builds on this asset or overwhelms it in a new culture of operational
responsiveness.
...
We won’t be able to make final judgements about any of these
issues until we see the precise terms of proposed legislative changes, the
details of the resources the government is prepared to invest, and the
character of the people it appoints to the new positions. Structural changes
without the resources to back them up will be more dangerous than beneficial.[56]
Similarly, Peter Edwards (a military and diplomatic
historian), pointed to some of the challenges that would need to be navigated if
ONI is to be effective:
Turning ONA into ONI has potential risks as well as likely
benefits. L’Estrange and Merchant emphasise the importance of preserving the
independence of intelligence assessments, while also saying that assessments
must be timely and relevant to policymakers. Both statements are right, but
getting the balance between relevance and independence will be no easy matter.
Similarly, there is potential tension between two stated aims, greater
coordination and greater contestability. How can we ensure that assessments are
contested, without descending into interagency rivalry (like the notorious
FBI–CIA antagonism before 9/11), and that the agencies are coordinated, without
succumbing to groupthink? There are no simple answers, and outcomes depend on
personalities and organisational cultures as much as on structures. The
review’s recommendations seem wise, if implemented with the designated checks
and balances ...[57]
Financial
implications
There is no financial impact associated with the Bill
itself.[58]
The Government allocated $118.5 million over five years from 2017–18 to
establish ONI in December 2017.[59]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bills’ compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bills are compatible.[60]
Parliamentary
Joint Committee on Human Rights
As noted in the ‘Committee consideration’ section of this
Digest, the PJCHR was concerned about the human rights compatibility of some
parts of the ONI Bill.
Key issues
and provisions
Key definitions (Part 1)
Subclause 4(1) of the ONI Bill includes
definitions for the purposes of the ONI Act. Most notably, the
definitions will formalise the NIC. National intelligence community
will mean:
- ONI
- each intelligence agency (ASD, ASIO, ASIS, AGO, DIO and ACIC) and
- each
agency with an intelligence role or function, which will be
AUSTRAC, AFP, DoHA and the Defence Department (other than AGO and DIO), to the
extent that the agency:
- collects,
correlates, analyses, produces or disseminates intelligence that relates, or
may relate, to national intelligence priorities, requirements or capabilities
or
- either
maintains a capability that materially assists in doing any of the
above-mentioned things, or is developing a capability that is designed to
materially assist in doing any of the above-mentioned things.[61]
This definition of the NIC is consistent with that suggested
in the 2017 Review, except that it includes parts of the Defence Department and
does not include AUSTRAC in its entirety.[62]
The Explanatory Memorandum states that the definition is not intended to
include:
- ‘general
operational matters and activities’ of the DoHA, ‘such as activities related to
the collection of evidence undertaken by the Australian Border Force’
- activities
undertaken by the DoHA that are subject to administrative review by a court or
tribunal
- the
AFP’s policing activities or
- the
regulatory activities of AUSTRAC (the agency has a dual role as Australia’s
financial intelligence unit and its anti-money laundering and counter-terrorism
financing regulator).[63]
Establishment of ONI and its
functions (Part 2, Divisions 1 and 2)
Key changes in the functions of
ONA/ONI
The ONA has an assessment function, but it is limited to international
matters that are of political, strategic or economic significance to Australia.
ONI’s mandate will be broader, and the role performed by the Open Source Centre
will be explicitly included in ONI’s functions and not confined to
international matters.
The ONA has coordination functions in relation to foreign
intelligence activities and agencies. ONI will instead have leadership
functions, and those functions will span the entire NIC, including agencies
with more of a domestic focus such as ASIO and ACIC. Its leadership functions
will be complemented by specific functions of providing advice to the Prime
Minister on national intelligence priorities, requirements and capabilities
from a whole-of-NIC perspective, and on matters relating to the NIC more
generally.
The ONA has an evaluation function in relation to foreign
intelligence activities. ONI will have broader evaluation functions, spanning
the entire NIC and including the allocation as well as the adequacy of
resources, additional aspects of agencies, and (at the Prime Minister’s
request) the effectiveness of one or more agencies in relation to specific
matters (the Explanatory Memorandum gives the example of a specific
intelligence failure[64]).
These changes generally respond to the findings and
recommendations of the 2017 Review. The reviewers recommended that ONI
should be the principal advisory agency to the Prime Minister on intelligence
matters, and that it should comprise two main areas—a national intelligence
enterprise management role, with ‘ a focus on issues of prioritisation,
evaluation of the NIC and individual agency performance as well as the promotion
of integration and inter-agency synergies’ and an assessment role with ‘greater
scale and scope’, including greater capacity to provide assessments on foreign
investment issues and ‘inform the Critical Infrastructure Centre at a strategic
level’.[65]
They also recommended that the Open Source Centre be ‘enhanced as a centre of
expertise for open source collection, analysis, tradecraft and training’.[66]
Detail and provisions
Clause 6 of the ONI Bill will provide that ONA
will continue in existence as ONI, under and subject to the ONI Act.
Clauses 7–9 will set out the functions of ONI,
and clause 10 the limits on those functions. ONI’s functions will be:
- providing
leadership in the NIC by guiding 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
related allocation of resources and
- structured
and appropriate responses to technological advancements[67]
- evaluating
matters relating to the NIC, including:
- evaluating
the activities of an affected agency or agencies, having regard
to Australia’s national intelligence priorities and requirements and the
intelligence needs of relevant Ministers[68]
- evaluating
the adequacy and allocation of the resources available to carry out Australia’s
national intelligence activities
- evaluating
other aspects of an affected agency or agencies, to the extent required to
perform any other function
- evaluating
an affected agency or agencies to assess the NIC’s effectiveness in relation to
specific matters, at the direction of the Prime Minister and
- providing
advice to the Prime Minister on the results of its evaluations and any
improvements or changes that should be made to remedy any identified
inadequacies
- assembling,
correlating and analysing information on international matters that are
of political, strategic or economic significance to Australia (including
domestic aspects of those matters) and preparing related assessments and
reports
- assembling,
correlating and analysing information on other matters that are of
political, strategic or economic significance to Australia and preparing
related assessments and reports for Government, if doing so would
support the performance of any other function of ONI or the DNI, or complement
the work of the NIC
- providing
advice to the Prime Minister on national intelligence priorities, requirements
and capabilities from a whole-of-NIC perspective
- providing
advice to the Prime Minister from time to time on matters relating to the NIC
more generally
- collecting,
interpreting and disseminating information on matters of political, strategic
or economic significance to Australia that is accessible to any section of the
public
- cooperating
and assisting intelligence agencies, agencies with an intelligence role or
function and Commonwealth and State authorities prescribed by the rules, in
accordance with clause 14 of the ONI Bill
- providing
assessments it prepares on international and other matters of political,
strategic or economic significance to Australia to persons and bodies inside or
outside Australia
- performing
any other functions conferred on ONI by the ONI Act or another
Commonwealth law and
- doing
anything incidental or conducive to the performance of its functions.
ONA’s open source collection and analysis activities are
currently undertaken as part of its assessment function, which is limited to
international matters that are of political, strategic or economic significance
to Australia. While ONI’s assessment function will only extend to other matters
where it would support the performance of another function of ONI or the DNI or
complement the work of the NIC, no such limitation has been included in
relation to open source collection and analysis.[69]
This represents a significant expansion of the Open Source Centre’s mandate,
and one that was not explicitly recommended in the public version of the 2017
Review.
ONI will be required to perform its leadership functions
in ways that promote the appropriate integration of the intelligence
capabilities of the NIC, and that are consistent with other agencies in the NIC
developing relationships with other entities, including international partners
and the private sector.[70]
Its leadership function is to be supported by directions given and guidelines issued
by the DNI.[71]
In carrying out its evaluation functions, ONI may have
regard to directions given and guidelines issued by the DNI and any failure by
an affected agency or agencies to comply with those directions and guidelines.[72]
Before providing advice to the Prime Minister as part of its evaluation
functions, ONI will be required to consult with any affected agency or agencies
to which the advice relates, and to include agency comments in the advice it
provides.[73]
Clause 10 will set out limits on ONI’s
functions. Subclause 10(1) will require the DNI to ensure that ONI
performs its functions in ways that do not inappropriately impact on, or
encroach on the functions, powers or responsibilities of: another NIC agency; a
person holding any office or appointment that relates to the NIC or an NIC
agency; or a department, in relation to an NIC agency in the same portfolio. Subclause 10(2)
will provide that ONI’s functions do not include:
- directing
an NIC agency to carry out operational activities, or to allocate resources or
use particular methods when carrying out operational activities
- directing
the content of, or conclusions reached in any intelligence communicated, advice
given or assessments or reports prepared by an NIC agency
- conducting
inquiries into individual complaints about the activities of an NIC agency or
- inquiring
into the legality, propriety or integrity of activities undertaken by an NIC
agency.
The first two of these points reflect the recommendations
of the 2017 Review that the DNI should be given responsibility for leading and
ensuring coordination across the NIC, but should not control agencies’
operational activities or infringe on their statutory responsibilities.[74]
The last two of the points above have been included to ensure that it is clear
that ONI’s functions do not encroach upon those of the IGIS or the Australian
Commission for Law Enforcement Integrity (ACLEI).[75]
The IGIS reviews the activities of AIC agencies to ensure that they ‘act
legally and with propriety, comply with ministerial guidelines and directives
and respect human rights’;[76]
this includes investigating some individual complaints about the activities of
ASIO, ASIS, AGO and ASD.[77]
The 2017 Review recommended that the IGIS’s remit be expanded to include, in
addition to the AIC agencies, the intelligence functions of other NIC agencies.[78]
ACLEI is responsible for preventing, detecting, investigating and reporting on
corrupt conduct and systemic corruption in Commonwealth law enforcement
agencies (including the AFP, ACIC, AUSTRAC and DoHA).[79]
Clause 11 will give ONI the power to do ‘all
things necessary or convenient to be done for or in connection with the
performance of its functions’.
Clause 12 will provide that the Prime Minister
may give directions to the DNI about the performance of ONI’s functions or the
exercise of its powers, except in relation to the content of, or conclusions to
be reached in, any advice given or report or assessment prepared by ONI under
the ONI Act.[80]
ONI’s compliance with any directions given will be overseen by the IGIS. Item
56 of Schedule 2 of the CTP Bill will insert proposed
subparagraph 8(3)(a)(ia) into the IGIS Act to include the
compliance by ONI with any ministerial directions within the IGIS’s inquiry functions.
Item 64 will amend subsection 32B(1) of the IGIS Act to
require the Prime Minister to give the IGIS a copy of any such directions as
soon as practicable after giving them to the DNI.
Cooperation and assistance (Part 2,
Division 3)
Clauses 13 and 14 of the ONI Bill will
set the parameters for ONI’s cooperation with persons and entities in relation
to its own functions and powers, and with agencies and authorities in relation
to their functions.
Under clause 13, in performing its own functions
and exercising powers, ONI will be permitted to cooperate with:
- an
authority of another country approved by the DNI is writing as being capable of
assisting ONI in the performance of its functions or exercise of its powers
(subject to provisions enabling the Prime Minister to cancel such approvals)
and
- any
other person or entity, within or outside Australia.
Under clause 14, ONI will also be permitted to
cooperate with and assist:
- an
intelligence agency, in the performance of the intelligence agency’s functions
- an
agency with an intelligence role or function, in the performance by the agency of
that role or function and
- any
Commonwealth authority or State authority
prescribed by the rules.[81]
ONI will only be able to cooperate and assist with other
agencies’ functions on request by the head of the other agency, and subject to
any arrangements made or directions given in writing by the Prime Minister.
Equivalent provisions do not exist in the ONA Act. Clause 13
is similar to section 13 of the IS Act, which makes comparable provision
for ASIS, AGO and ASD, and section 19 of the ASIO Act (except that
ASIS, AGO and ASD are limited to cooperating with Commonwealth, state and
overseas authorities). The ability for ONI to cooperate with any person or
entity is consistent with the 2017 Review recommendation that ONI develop ‘a
more intensive and substantive program of interaction with experts outside
government to inform assessments’.[82]
Clause 14 is consistent with section 13A of the IS Act,
which makes equivalent provision for ASIS, AGO and ASD, and section 19A of
the ASIO Act.
Item 24 of Schedule 2 of the CTP
Bill will amend section 19A of the ASIO Act, and item 70
will amend section 13A of the IS Act, to add ONI to the list of
agencies that ASIO, ASIS, AGO and ASD may cooperate with and assist in their
functions.
Director-General of National
Intelligence (Part 3, Divisions 1–3)
Establishment and functions
Subclause 15(1) of the ONI Bill will provide
that there is to be a Director-General of National Intelligence (DNI). Subclauses 15(2)
and (3) will provide that the DNI has a leadership role in the NIC and may
provide advice relating to the appointment or engagement of persons in senior leadership
roles within the NIC, but that the DNI’s advice need not be sought on any such appointment
or engagement. The 2017 Review recommended that the DNI be the head of the
NIC and that the DNI’s role should include providing advice on appointments and
succession planning.[83]
Under subclause 16(1), the DNI’s functions
will be:
- subject
to any direction from the Prime Minister under section 12, to ensure the
proper, efficient and effective performance of ONI’s functions
- to
manage ONI
- to
endeavour to respond to requests made under section 22 (which will enable
a Minister or prescribed Commonwealth officer to request a report
or assessment from ONI for the purpose of obtaining assistance in forming
policies or plans by the Government[84])
- if
there is disagreement between the DNI and the National Assessments Board about
whether an assessment made by ONI should be a national assessment, to decide
whether an assessment is a national assessment and[85]
- any
other functions conferred on the DNI by the ONI Act or another
Commonwealth law.[86]
Subclause 16(3) will give the DNI the power to
do ‘all things necessary or convenient to be done for or in connection with the
performance’ of the DNI’s functions.
Subclauses 16(4) and (5) will place the
same limits on the DNI’s functions and powers as clause 10 will place on
ONI’s functions and powers. In addition, clause 19 will require the
DNI 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’. Clause 19
is equivalent to provisions that apply to ASIS, AGO, ASD and ASIO and is
intended to support ONI’s statutory independence in relation to its assessment
functions.[87]
Clauses 17 and 18 will require the DNI
to keep the Prime Minister informed on matters relating to the NIC, and to
consult regularly with the Leader of the Opposition for the purpose of keeping
that person informed on matters relating to intelligence that the DNI considers
significant. Clause 17 reflects the 2017 Review recommendation that the
DNI be the Prime Minister’s principal adviser on NIC issues.[88]
Clause 18 is consistent with consultation requirements for the
heads of ASIO, ASIS and ASD.[89]
Giving directions and issuing
guidelines
To support the DNI’s and ONI’s leadership and coordination
roles, clauses 20 and 21 of the ONI Bill will provide the
DNI with powers to give directions to the NIC as a whole or one or more agencies
within the NIC, and to issue guidelines to the NIC.
The power to give written directions under clause 20
will be limited to where the DNI considers it necessary to enable ONI to
perform its function of leading the NIC. The Explanatory Memorandum states that
this power is intended to 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’.[90]
Directions given by the DNI will have no effect to the extent that they are
inconsistent with directions, guidelines or statutory rules given by the
Minister responsible for an NIC agency, and to the extent that compliance with
the direction would conflict with any statutory obligations of the agency.
To assist ONI’s performance of its functions or the DNI’s
performance of his or her functions, the DNI will have the power to issue
written guidelines under clause 21 to the heads of the NIC
agencies, to be followed in relation to matters relevant to or affecting the
NIC as a whole or a class of agencies within the NIC. The Explanatory
Memorandum states that it is intended that such guidance will be issued
relatively frequently, and address matters such as workforce management, ICT
connectivity and intelligence capability development.[91]
It appears that guidelines issued under this provision will be one of the means
through which some of the more specific recommendations of the 2017 Review will
be implemented. Such recommendations include that ONI be responsible for
‘leading and co-ordinating data management and ICT connectivity initiatives
across the NIC’ and for ‘developing and overseeing the implementation of a
strategic approach to the development of the [NIC] workforce as part of its
intelligence enterprise management responsibilities’.[92]
Before giving a direction or issuing any guidelines, the
DNI will be required to consult with the head of any NIC agency that would be
affected, and for AGO or DIO, also the Secretary of the Department of Defence.[93]
The powers in clauses 20 and 21, in
conjunction with the limits on ONI’s and the DNI’s functions set out in clause
10 and subclauses 16(4) and (5), are intended to implement
the 2017 Review recommendation that ONI and the DNI lead and coordinate
the NIC without controlling agencies’ operational activities or infringing on
their statutory responsibilities.[94]
Appointment and termination
Clause 24 of the ONI Bill will provide that the DNI
is to be appointed by the Governor-General by written instrument, and that
before a recommendation is made to the Governor-General for the appointment of
a person to that role, the Prime Minister must consult with the Leader of the
Opposition. Clauses 25–32 will make further provision for matters
relating to the appointment, employment and termination of the DNI. Of note,
the DNI:
- will
hold office on a full-time basis, for a period of no more than five years as
specified by the Governor-General in the instrument of appointment, and may be
re-appointed and[95]
- may
be terminated by the Governor-General for misbehaviour, on the basis of
physical or mental incapacity, or in certain other circumstances (including if
the DNI becomes bankrupt or engages in outside employment without the Prime Minister’s
approval).[96]
Some of the grounds on which the Governor-General may
terminate the DNI’s employment are grounds on which the Governor-General must
terminate the employment of the heads of ASIS, ASD and ASIO.[97]
Further, some of them are grounds on which the Governor-General must
currently terminate the employment of the Director-General of ONA.[98]
The Explanatory Memorandum does not provide reasons for these discrepancies.
Item 2 of Schedule 4 of the CTP
Bill is a transitional provision that will provide that the person holding
office as the head of ONA immediately before the commencement of the ONI Act
is taken to have been appointed by the Governor-General as the DNI.
Staff of ONI (Part 3,
Division 4)
As is currently the case under the ONA Act, the DNI
will have the flexibility to employ ONI staff under the Public Service Act
1999 or otherwise.[99]
Subclause 33(1) of the ONI Bill will provide that the staff of ONI
are to be persons engaged under the Public Service Act and such other
persons, if any, as the DNI considers necessary for the performance of ONI’s
functions. For those employed outside the Public Service Act, the DNI
will be required to adopt the principles of that Act to the extent to which the
DNI considers they are consistent with the effective performance of ONI’s
functions.[100]
The Explanatory Memorandum states that it is expected that most of ONI’s staff
will be engaged under the Public Service Act, but that allowing
employment outside that framework is intended to ‘give the Director-General a
similar ability to set the terms and conditions of employment of ONI staff as
other heads of agencies in the NIC (who are not Public Service Act agencies)
have in relation to their employees’.[101]
Clauses 34–36 will allow the DNI to engage
consultants and provide for the secondment of staff from ONI to other bodies
and organisations in Australia or overseas, and the secondment of staff from other
bodies and organisations in Australia or overseas to ONI.
Information gathering (Part 4,
Division 1)
Division 1 of Part 4 of the ONI Bill will
provide the DNI the power to request information, documents and things from
Commonwealth authorities, make it clear that Commonwealth authorities and NIC
agencies may proactively provide information, documents and things to ONI and
govern the use of information, documents and things by ONI.
Notices to provide information,
documents and things
Clause 37 will allow the DNI to request in
writing that a Commonwealth authority provide information,
documents or things in its possession that relate to international matters of
political, strategic or economic significance to Australia, or domestic aspects
of such matters.[102]
The power will only be available for the purpose of ONI’s function of
assembling, correlating and analysing information on those international
matters and related domestic aspects. Before making a request, the DNI must
consult with the Commonwealth authority and consider any concerns it raises.
The authority will be required to comply with such a request, unless and to the
extent that a Commonwealth or state or territory law prohibits the provision of
the relevant information, documents or things.
Clause 40 will require the DNI to ensure that
any information, documents or things provided in response are used only for the
purpose of ONI’s function of assembling, correlating and analysing information
on those international matters and related domestic aspects, unless the head of
the relevant authority gives written authorisation for them to be used for the
performance of another of ONI’s or the DNI’s functions or the exercise of ONI’s
or the DNI’s powers.
Other information, documents and
things may be provided
Under clause 38, a Commonwealth authority may
provide information, documents and things that its head considers relate to
matters of political, strategic or economic significance to Australia to ONI,
for the purposes of ONI performing its assessment functions.
Under clause 39, an NIC agency may provide
to ONI information, documents and things that relate, or may relate, to any of
ONI’s functions.
Item 17 of Schedule 2 of the CTP
Bill will insert proposed paragraph 46(la) into the ABF Act to
make it clear that ‘Immigration and Border Protection information’ may be
disclosed for a purpose relating to the performance of functions under
section 7 of the ONI Act.[103]
Item 19 will insert proposed subsection 59AA(2B) into
the ACC Act to provide that the CEO of ACIC may disclose ‘ACC
information’ to ONI if he or she considers it appropriate to do so, the
information is relevant to the performance of ONI’s functions under
section 7 of the ONI Act, and disclosing the information would not
be contrary to a Commonwealth, state or territory law that would otherwise
apply.[104]
Protection of information,
documents and things provided by NIC agencies
If information, documents and things are provided to ONI under
Division 1 of Part 4 by an NIC agency, the DNI will be required under clause 41
of the ONI Bill to make arrangements with the head of the agency for their
protection while they remain in ONI’s possession. If such arrangements are not
made, ONI must take all reasonable steps to ensure appropriate storage, access,
use and further disclosure.
Secrecy offences (Part 4,
Division 2)
Transfer of existing secrecy
offences
Division 1 of Part 6 of the IS Act sets out
secrecy offences relevant to ASIS, AGO, ASD and ONA. The offences relating to
ONA will be repealed from the IS Act by item 79 of Schedule 2
of the CTP Bill. Clauses 42 and 44 of the ONI Bill will
re-enact those secrecy offences in relation to ONI. These offences will apply
to the communication of certain information, unauthorised dealing with records
and unauthorised recording of information or matter. They will only apply to
persons who came across the information, matter or record through their current
or past employment with ONI, through having entered into a contract, agreement
or arrangement with ONI, or by having been an employee or agent of another
person who entered into a contract, agreement or arrangement with ONI—that is,
they will only apply to ‘insiders’.[105]
The LCA recommended that the PJCIS consider whether these
secrecy offences might capture officers from other Commonwealth agencies, such
as the AFP, in addition to ONI staff and contractors.[106]
If those offences may capture officers from other agencies, the LCA recommended
consideration be given to the inclusion of additional exceptions for:
The LCA also recommended the inclusion of exceptions for
information communicated to a court or tribunal, or for the purposes of
obtaining legal advice, consistent with defences to general secrecy offences
recently enacted by the EFI Act.[108]
The EFI Act updated secrecy offences relating to communication of
certain Commonwealth information.[109]
Defences to those offences include communicating or dealing with information
for the purposes of the PID Act or the FOI Act, reporting an
offence, alleged offence or certain maladministration or obtaining or providing
legal advice; and communicating information to a court or tribunal, or dealing
with information for the purposes of such a communication.[110]
New secrecy offence for subsequent
disclosures
Clause 43 of the ONI Bill would enact a new
secrecy offence in relation to ONI information that would apply to subsequent communication
of that information by ‘outsiders’ such as journalists, in certain
circumstances. Unlike the existing offences for insiders, this offence would
only apply where the person who communicates the information does so either
intending to, or knowing that the communication will or is likely to, cause
harm to national security or endanger the health or safety of another person.
As noted earlier in this Digest, PM&C and ONA
recommended that this offence be removed from the ONI Bill in its entirety, for
consistency with the final form of the EFI Bill, which reflected
recommendations of the PJCIS.[111]
The LCA supports that recommendation.[112]
Secrecy offences in the EFI Bill/Act
The EFI Bill as introduced included general secrecy
offences for communication of certain Commonwealth information that would have
applied in the same way to current and former Commonwealth officers and to
other persons. In response to stakeholder concerns, the Attorney-General
proposed a range of amendments to the Bill, including amendments to create separate
secrecy offences for current and former Commonwealth officers and for other
persons, with the latter narrower in scope. The PJCIS strongly supported those
amendments and recommended that they be passed, stating:
While the Committee notes that the proposed new offences for
non-Commonwealth officers do not fully replicate the model proposed by the
Australian Law Reform Commission, the Committee notes that the offences are
appropriately limited to highly classified information and conduct that results
in, or is likely to result in, harm to essential public interests.[113]
The amendments were passed by Parliament and subsection 122.4A(1)
of the Criminal Code contains an offence of communication of certain
information by non-Commonwealth officers that carries a maximum penalty of five
years imprisonment. The offence will only apply to the communication of
information if one or more of the following applied, and the person was
reckless as to the relevant matter:
- the
information has a security classification of secret or top secret and/or
- the
communication of the information:
- damages
the security or defence of Australia
- interferes
with or prejudices the prevention, detection, investigation, prosecution or
punishment of a Commonwealth offence and/or
- harms
or prejudices the health or safety of the Australian public or a section of the
Australian public.[114]
Proposed offence
If the offence in clause 43
proceeds, a person would commit an offence if:
- the
person has come to know or possess information or a matter other than by
reason of their being or having been a staff member of ONI; having entered into
a contract, agreement or arrangement with ONI; or having been an employee or
agent of another person who entered into a contract, agreement or arrangement
with ONI (and the person was reckless as to this circumstance)
- the
information or matter was acquired by or on behalf of ONI in connection with
its functions, or relates or related to the performance by ONI of its functions
(and the person was reckless as to this circumstance)
- the
person communicated the information or matter (and did so intentionally)
and
- the
person either:
- intended
that the communication cause harm to national security or endanger the health
or safety of another person or
- knew
that the communication would, or would be likely to, cause harm to national
security or endanger the health or safety of another person.[115]
National security would mean ‘Australia’s
defence, security, international relations or law enforcement interests’.[116]
The maximum penalty for this offence would be five years
imprisonment (half that of the offence that applies to disclosures by
insiders).
There would be several specific exceptions to the offence.
The offence would not apply if:
- the
information or matter had already been communicated or made available to the
public with the authority of the Commonwealth or
- the
communication was:
- for
the purposes of any legal proceedings arising out of or otherwise related to
section 43 of the ONI Act or of any report of any such proceedings
- in
accordance with any requirement imposed by law or
- to
an IGIS official for the purpose of the IGIS official exercising a power, or
performing a function or duty, as an IGIS official.[117]
A defendant wishing to rely on any of these exceptions would
bear an evidential burden, meaning he or she would need to adduce or point to
evidence that suggests a reasonable possibility that the matter exists.[118]
If the offence proceeds,
there would be both a degree of overlap between this specific offence and the
general secrecy offence enacted by the EFI Act, and some inconsistencies
between the two offences. In recommending that clause 43 be removed
from the ONI Bill PM&C and ONA stated:
This secrecy offence was included primarily to facilitate
fluid engagement between ONI and ‘outsiders’ in academia and business—enabling
the explicit protection of ONI information without requiring a formal agreement
or arrangement. While removing this offence may have a minor impact on some ONI
engagement, we assess this would be limited and manageable.[119]
Administration and rules (Parts 5
and 6)
National Assessments Board
As recommended by the 2017 Review, the National
Assessments Board (NAB) established under section 6 of the ONA Act
will be continued under clause 47 of the ONI Bill.[120]
Its functions will be to consider which assessments made by ONI are national
assessments (this is an additional function) and to consider national
assessments (as it does currently).[121]
The NAB will be comprised of the current members (Director-General
of ONA/DNI, officials from the Department of Foreign Affairs and Trade,
Department of Defence and PM&C, and a member of the Defence Force),
officials from DoHA and the Treasury and such other persons as the Prime
Minister directs. The DNI will be able to add one or more persons for the
purposes of a particular national assessment.[122]
Committees
Clause 52 of the ONI Bill will allow the DNI
to establish committees to advise or assist in the performance of ONI’s
functions. This may be the means through which the Government intends to
address recommendations of the 2017 Review for the establishment of new
boards, as well as a way of formalising existing committees (such as the
National Intelligence Co-ordination Committee and the National Intelligence
Collection Management Committee). The Review recommended:
- an
Intelligence Integration Board, chaired by the DNI and comprising the heads of
NIC agencies, to ‘oversee strategic planning, staffing, resources and
benchmarking in current or new areas of integration focus’
- an
ONI Assessment Consultation Board, chaired by the DNI and comprising senior
leaders from ONI, intelligence agencies and relevant policy departments and
individuals from the private sector and civil society who can add relevant
perspectives, in order to promote contestability in the intelligence assessment
process and
- a
National Intelligence Community Science and Technology Advisory Board, as part
of a more structured approach to the NIC’s responses to technological change.[123]
Privacy rules
Subclause 53(1) of the ONI Bill will require
the Prime Minister to make privacy rules to regulate the collection of
information by ONI in the context of its open source collection and analysis
function, to the extent that it is identifiable information; and the
communication, handling and retention by ONI of identifiable information. Identifiable
information will be defined in subclause 4(1) to mean:
... information or an opinion about an identified Australian
citizen or permanent resident, or an Australian citizen or permanent resident
who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a
material form or not.
Subclause 53(5) will prohibit ONI from
collecting identifiable information except in accordance with the privacy
rules.
The privacy rules may deal
with other matters if the Prime Minister considers it appropriate.[124]
The Prime Minister will be required to:
- ‘have
regard to the need to ensure that the privacy of Australian citizens and
permanent residents is preserved as far as is consistent with the proper
performance by ONI of its functions’ in making the rules and
- before
making the rules, consult with the DNI, the IGIS and the Attorney-General
(including by providing a copy of the proposed rules).[125]
The privacy rules will not be legislative instruments.[126]
Clause 53 is consistent with section 15
of the IS Act, which requires the Ministers responsible for ASIS, AGO
and ASD to make rules to protect the privacy of Australians.
ONI’s compliance with the privacy rules will be overseen
by the IGIS. Item 65 of Schedule 2 of the CTP Bill will
insert proposed subsection 35(2C) into the IGIS Act to
require the IGIS to include in his or her annual reports comments on the extent
of ONI’s compliance with the privacy rules during the reporting period. In her
submission to the PJCIS inquiry, the IGIS stated that she considers that ONI
should publish the privacy rules, as agencies governed by the IS Act
have done.[127]
Consideration could be given to including a statutory requirement that the
privacy rules for ONI and other agencies are to be made public.
General rules and delegations
Clause 55 of the ONI Bill will allow the Prime
Minister to make general rules for the purposes of giving effect to the ONI
Act, by legislative instrument.
Under clause 54, the DNI will be able to
delegate most of the DNI’s functions and powers under the ONI Act or the
general rules to a person holding or performing the duties of an SES or
equivalent position in ONI. The DNI may not delegate the powers to give written
directions under clause 20, issue guidelines under clause 21
or make a written request for information, documents or things under clause 37.
Assumed identities
The assumed identities scheme in Part IAC of the Crimes
Act enables authorised persons to acquire and use an assumed identity (which
allows for the person to operate under a false name) for certain purposes.[128]
Officers of two types of agency may apply for an assumed identity—intelligence
agencies (currently defined to include only ASIO and ASIS) and law
enforcement agencies.[129]
Items 26–43 of Schedule 2 of the CTP
Bill amend Part IAC of the Crimes Act to provide ONI with access to
the assumed identities regime, but only for the purpose of its function under paragraph 7(1)(g)
of the ONI Act (open source collection and analysis). The Explanatory
Memorandum states:
ONI, through the functions of its Open Source Centre, will
need access to rapidly evolving internet-based platforms and their access to
the assumed identities regime will support this access. For example, access to
some subscription services or social media platforms increasingly requires
identity verification before permitting access. Though access could still 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 as attributable access could indicate an intelligence
interest in particular matters or the nature of Australia’s intelligence
collection priorities.[130]
Unlike the heads of law enforcement agencies and of ASIO
and ASIS, the DNI will not be able to apply to have an entry made in a register
of births, deaths and marriages and will not be able to request evidence of an
assumed identity from an issuing agency (such as the Australian
Passport Office or a motor registry).[131]
Instead, the head of ASIO or ASIS may make requests on ONI’s behalf.[132]
Key provisions include:
- amendments
to the definitions of chief officer, intelligence agency
and intelligence officer and[133]
- proposed
subsection 15KA(3A), which will provide that an application to acquire
and use an assumed identity may only be made by an ONI officer for the purposes
of ONI carrying out its open source collection and analysis function.[134]
Due to the amendments of key definitions noted above, the
existing accountability and oversight mechanisms that apply under the regime
will extend to ONI. These include an offence for misuse of an assumed identity
under subsection 15LB(1) and reporting and record keeping requirements
under sections 15LE, 15LF and 15LG of the Crimes Act. In her
submission to the PJCIS inquiry, the IGIS stated that she expected that ONI
‘will have a robust internal management and auditing scheme’ for its use of
assumed identities and that she would be likely to review such arrangements
once they are operational.[135]