- Introduction
The Bill and its referral
1.1The National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023 (the Bill) was introduced into the House of Representatives by the Minister for Home Affairs, the Hon Clare O’Neil MP, on 30November2023. The Bill was referred to this Committee for review on the same day.
1.2The Bill would amend the Australian Security Intelligence Organisation Act 1979 (ASIO Act), the Intelligence Services Act 2001 (IS Act), the Telecommunications (Interception and Access) Act 1979 (TIA Act) and the Archives Act 1983 (Archives Act) for the purpose of enhancing the legislative framework of the National Intelligence Community (NIC). The enactment of the Bill would implement 12 recommendations of the Comprehensive Review of the Legal Framework of the National Intelligence Community (Comprehensive Review) led by Mr Dennis Richardson AC.
1.3In her second reading speech, the Minister for Home Affairs said:
The bill supports our intelligence agencies by making changes to improve their ability to protect the identities of their employees, communicate information to other Commonwealth and state agencies, where appropriate, and clarify approval processes for various activities. The bill also promotes increased oversight of our intelligence agencies by promoting further oversight of ASIO's security assessment work, and making it clear that junior ministers are not able to exercise certain powers.
In making these changes, the bill would implement 12 recommendations of the comprehensive review.
1.4Additionally, the Bill seeks to implement two key amendments to the ASIO Act not arising directly from the Comprehensive Review, to:
- modernise the publication offences in the ASIO Act to take into account developments in technology and modern communications as well as the introduction of a new disclosure offence to protect the identity of Australian Security Intelligence Organisation (ASIO) officers and affiliates; and
- enable the Director-General of Security to delegate their power to furnish non-prejudicial security clearance suitability assessments to an ASIO employee regardless of their position.
Conduct of the inquiry
1.5The Committee announced its inquiry on 7 December 2023 and invited submissions by 2 February 2024, with details uploaded to the Committee’s website.
1.6The Committee received five public submissions and one classified submission. Appendix A sets out a list of the public submissions received.
1.7The Committee also received correspondence from the Independent National Security Legislation Monitor (INSLM), Mr Jake Blight, informing the Committee of possible overlap between this inquiry and the INSLM’s Review of Secrecy Offences in Part 5.6 of the Criminal Code 1995, which commenced in January 2024.
1.8Copies of public submissions and links to the Bill and Explanatory Memorandum (EM) can be accessed at the Committee’s website.
Report structure
1.9This report consists of three chapters:
- The remainder of Chapter 1 contains an overview of the Comprehensive Review and implementation of its recommendations.
- Chapter 2 outlines the key provisions of the Bill and the evidence received related to those proposed amendments.
- Chapter 3 sets out the Committee’s comments on the Bill and the Committee’s recommendations.
Overview of the Comprehensive Review
1.10The commencement of the Comprehensive Review was announced on 30 May 2018 and was to be a comprehensive examination of the effectiveness of the legislative framework governing the NIC, including recommendations for reforms. This was the most significant review of Australia’s intelligence legislation since the Hope royal commissions in 1974 and 1983.
1.11On 4 December 2020, the Attorney-General released the unclassified final report containing 203 recommendations, and the Government’s response.
1.12Although the Comprehensive Review found that the legislative framework governing Australia’s intelligence agencies was largely fit for purpose, targeted reforms were identified as being required to ensure Australia’s laws kept pace with the evolving technological and security landscape.
Implementation of the recommendations: progress update
1.13Since the Comprehensive Review’s completion, nearly half of the recommendations to which the Government at the time agreed have been implemented or were already in place at the time of the review.
- The Government identified 53 recommendations that required no further action because the proposed changes did not require legislative amendment or because they included a recommendation to maintain the status quo. The Government rejected four recommendations at the outset.
- The Government has enacted a series of targeted legislative amendments to implement the remaining recommendations, including:
- the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 1) Act 2022, which implemented 11 recommendations (recommendations 12, 36, 37, 41, 45, 46, 52, 74, 103, 183 and 189);
- the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Act 2023, which implemented a further 10 recommendations (recommendations 18, 19, 66, 136, 145, 167, 186, 188, 191 and 192); and
- the Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Act 2023, which implemented two recommendations (recommendations 172 and 174).
- Additionally, approximately 63 recommendations are currently being considered as part of the ongoing electronic surveillance reform project led by the Attorney-General’s Department. Of the remaining recommendations still to be implemented, a further 13 sit within the Attorney-General’s portfolio and the remainder are to be implemented by another relevant minister.
- The Bill seeks to implement 12 outstanding recommendations for which the Minister for Home Affairs has responsibility.