Bills Digest No. 172  1998-99 Australian Security Intelligence Organisation Legislation Amendment Bill 1999


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Australian Security Intelligence Organisation Legislation Amendment Bill 1999

Date Introduced: 25 March 1999

House: House of Representatives

Portfolio: Attorney-General

Commencement: Upon Royal Assent except Schedule 3 (changing the spelling of ASIO's name as it appears in a number of other Acts), which with 4 exceptions commences immediately after the rest of the Bill commences. The 4 exceptions either avoid duplicating the spelling corrections or ensure they commence simultaneously with commencement of certain Bills currently containing the uncorrected spelling of ASIO's name.

Purpose

The Australian Security Intelligence Organisation Legislation Amendment Bill 1999 ('the Bill') has several purposes:

  • to amend existing warrant provisions for a number of purposes including:
  • to re-word the basis for grant of search warrants
  • to lengthen their maximum duration
  • to expand the range of warrants which the Director-General of the Australian Security and Intelligence Organisation ('ASIO') may grant on an emergency basis without prior Ministerial approval, and
  • to clearly authorise concealment of the fact that anything has been done under the warrant.
  • to extend ASIO's function of collecting foreign intelligence within Australia beyond means authorised by warrant (eg by the use of a human agent)
  • to provide new Special Powers such as a capacity under warrant to use tracking devices to track people and objects and also a capacity under warrant to 'hack' into computers and gain access to computer information with an accompanying power to add, delete or alter data in the target computer
  • to provide for direct communication of security assessments to State agencies until 31 December 2000 in relation to year 2000 Olympics security issues
  • to provide for access by ASIO to AUSTRAC information about significant and suspect financial transfers
  • to provide for access by ASIO to tax information, with a limited capacity to pass it on to third parties, and
  • to make other relatively minor amendments to the ASIO Act and the Inspector-General of Intelligence and Security Act 1986.

The Government has said that the Bill will not extend ASIO's functions but is designed to enable ASIO to meet its statutory responsibilities in a more effective way, given changes in its operational environment including technological developments. The Government has also stressed that the Bill is not a response to the particular security challenges of staging the Year 2000 Olympics in Sydney.(1)

Background

The Legislative Basis for ASIO's operation

For seven years after its foundation in 1949, ASIO existed as a purely executive organisation authorised by a secret Charter. It was put on a statutory footing for the first time by the Menzies Government in 1956. Following the first Royal Commission into intelligence and security conducted by Justice Hope in the mid-1970s, a new and expanded Act was passed by the Parliament in 1979. That Act was significantly amended in 1986, following a second Hope Royal Commission. A number of amendments have been made to the Act since then, but the present Bill is the first major revision of the Australian Security Intelligence Organization Act 1979 ('ASIO Act') since 1986.

ASIO and Accountability

The issue of ASIO's accountability involves a fundamental tension. As a security and intelligence organisation, ASIO is routinely involved in covert or clandestine action. The preservation of secrecy about its operations has been regarded by successive governments as inherently necessary for the effective fulfilment of its functions. At the same time, as an agency of the Commonwealth with considerable powers to intrude upon the privacy, personal and public lives of individuals, questions inevitably arise about ASIO's public and political accountability and about the lawful discharge of its functions consistent with the rule of law. This is particularly so in the latter decades of the 20th Century, when an increasingly sophisticated body of administrative law has been grafted onto Westminster conventions which purport to protect individuals against the power of the State.

The conflict between these two competing considerations has produced a legal regime for ASIO which departs from ordinary structures for accountability. For example, a number of standard checks and balances do not apply:

  • decisions are exempt from the Administrative Decisions (Judicial Review) Act 1977 (including decisions by the Minister to grant warrants targetting individuals for search or surveillance)
  • the Freedom of Information Act 1982 does not apply to an agency in relation to documents which originated with ASIO, and ASIO itself is an exempt organisation for the purposes of that Act
  • human rights complaints about ASIO cannot be investigated by the Human Rights and Equal Opportunity Commission - discrimination complaints are re-directed to the Inspector-General of Intelligence and Security
  • ASIO is legislatively exempt from the requirements to handle personal information in accordance with the Privacy Act 1988.(2)

A cardinal principle of the Australian legal system is that the courts can review whether executive agencies have exercised their powers in accordance with the law, but even the 'justiciability' of ASIO's behaviour-the ability to test it in court-was only narrowly established in a confusing series of cases involving ASIO and the Church of Scientology in the early 1980s. Justice Hope in his second Royal Commission found that the High Court had clarified that:

the courts can review whether ASIO's actions are within the scope of constitutional and legislative power. There may, however, be significant practical difficulties in mounting a successful case of that kind.(3)

The unusual system of checks and balances purporting to provide for ASIO's accountability to individuals and to the wider political system includes the following main features:

  • the legislative basis to ASIO's operations outlined above (although the difficulties in testing compliance with the law in the courts were noted by Justice Hope)
  • ministerial responsibility, by fixing responsibility for ASIO (including the issuing of directions and guidelines) on the Attorney-General who is answerable to Parliament
  • bipartisan arrangements regarding certain security issues, providing the Leader of the Opposition with privileged access to information on a confidential basis
  • a joint statutory committee of the two Houses of Parliament with limited powers of oversight
  • an avenue of appeal to the Administrative Appeals Tribunal (with specially modified procedures) for most individuals adversely affected by an ASIO security assessment
  • the provision of an annual report to the Attorney-General and the Leader of the Opposition, with an edited version tabled in Parliament
  • a system of warrants issued to ASIO upon application to the Attorney-General to govern the exercise of special powers under the Act, and
  • criminal sanctions against ASIO officers for breach of certain provisions of the ASIO Act.

The other main measure directed at making ASIO accountable is the Office of the Inspector-General of Intelligence and Security ('IGIS'). The IGIS was established by statute following the second Hope Royal Commission in the mid-1980s. The IGIS has a legislative responsibility to handle complaints and to inquire mainly into ASIO's compliance with law, Ministerial directions, propriety and human rights standards. The ability of the IGIS to scrutinise the actions of the Attorney-General under the ASIO Act is strictly limited.

The upshot of these arrangements is that measures for accountability outside the Executive arm of government are significantly circumscribed.

The year 2000 Olympics

There has been a significant amount of public comment about security threats associated with the staging of an event with worldwide importance which will draw thousands of overseas visitors to Australia, the year 2000 Olympics. The Government has been at pains to stress that this Bill is not 'a response to the challenges posed by a particular event or threat, such as the Year 2000 Olympics'.(4) However, the Bill does contain some provisions which specifically refer to 'year 2000 Games matters' and which operate until 31 December 2000. It may be that if the extension of powers provided in the Bill was perceived to be tied to the Olympics, there would be strong calls for a sunset clause to apply more widely to the Bill.

The Walsh Report

Three questions arise in relation to a document known as the Walsh Report.(5) That report, commissioned by the Attorney-General and completed in late 1996, reviewed encryption technologies that allow voice and data communications to be 'scrambled' and then unscrambled by users with access to a 'key'. Encryption technology may provide, for example, a means for secure commercial transactions over the Internet. It also offers the potential for criminal activity to elude conventional forms of surveillance by law enforcement and security agencies.

The first question is whether the Government regards the Walsh Report as part of the relevant background to this Bill. It has certainly been treated as such by the print media who have reported on the introduction of the Bill to Parliament. The Government, however, was reported as saying that the Bill was developed as part of a wider review of security powers and that similarities to the Walsh Report were 'coincidental'.(6) The Attorney-General's Second Reading Speech did not refer specifically to the Walsh Report and it is difficult to discern whether the following quote is an indirect reference to it or not, bearing in mind the Walsh Report's Terms of Reference which are found in Appendix A to the Report:

The bill results from a periodic internal review of the ASIO Act and evolving changes in ASIO's operational environment and, in particular, the impact of technological developments on intelligence gathering.(7)

The second question relates to the Walsh Report's ambiguous status as a public policy document. The author, Gerard Walsh a former deputy Director-General of ASIO, prefaced his report with the following comment:

There is an immediate need for broad public discussion of cryptography ... How the inherent tensions in this issue are resolved will affect the whole community. Hence the need for broad discussion and contribution ... The Australian Government is seeking public comment on the contents of this report. Comments should be directed to: [address in Attorney-General's Department follows].(8)

However, the Government did not release an edited version of the paper for public consumption which Mr Walsh had reportedly prepared and, according to the group Electronic Frontiers Australia (EFA), it resisted the release of the report under freedom of information (FoI) legislation. A spokesperson for the Attorney-General was quoted in July 1997 as saying that in the process of formulating policy on encryption the Walsh Report was not suitable for public release.(9)

The third question is whether the contents of the Walsh Report are relevant to the content of the Bill.(10) An inspection of the report as edited and released under FoI leaves little doubt that they are, especially when compared with provisions found in Schedule 1 of the Bill and with comments made by the Minister in his Second Reading Speech. The first paragraph of the Report states:

This report is in response to an invitation from the Secretary of the Attorney-General's Department to review the policy relating to encryption technologies and offer a view whether legislative or other actions are indicated to cater for national security and law enforcement interests in the face of the information and communications revolution and the continuing need to safeguard privacy.(11)

Mr Walsh described the 'primary issue' in his review as being 'how law enforcement agencies and the national security service might retain their current investigative capability in a world where encryption may be generally used.'(12) He found that '[r]eal-time access by law enforcement and national security agencies to the voice and data communications of their subjects of investigation is essential to core capability'(13) and his recommendations include 'to strengthen and further protect the investigative capacity of [national security and law enforcement] agencies'(14). He stated that while major legislative action should be put on hold, 'a range of minor legislative and other actions are indicated'.(15) These included the authority to use tracking devices, and the power to re-enter premises to maintain, replace or remove devices including re-entry and removal after expiry of the relevant warrant.(16) All these comments resonate with both the contents of the Bill and the Attorney-General's Second Reading Speech.

Significantly, Mr Walsh portrays these changes as minor and interim compared to what the future may hold. Encryption technology continues to develop apace and he saw no virtue or reason in moving early to comprehensive encryption legislation. It is apparent that he regards the encryption of stored data and particularly of telecommunications as a serious looming threat to the capacity of ASIO and law enforcement agencies.

Main Provisions

Schedule 1-Warrant Provisions etc

Item 1 brings the ASIO Act into line with the terminology used in the Migration Act 1958.

Item 2 authorises the Attorney-General rather than the Governor-General (as is presently the case) to appoint an acting Director-General, when the office is temporarily vacant or the incumbent is absent from duty.

Item 3 (which is connected to items 37, 39 41 and 42) widens the functions of ASIO so that it may provide security assessments directly to States and Territories and their agencies (rather than via another Commonwealth agency) if it relates to a year 2000 Olympics security issue. The power directly to furnish such assessments will cease after 31 December 2000.

Item 4 also widens ASIO's functions and is connected to item 33 which will permit the collection of 'foreign intelligence' within Australia simply by Ministerial authorisation and without the warrant currently required by the Act.

Item 5 provides ASIO with the power to charge fees for providing services to persons at their request. The fees must reasonably relate to the costs of providing the service or advice. The Explanatory Memorandum indicates that the purpose is to authorise recovery of costs from non-Commonwealth agencies.

Item 6 extends ASIO's specific authority to communicate information from overseas or of an international character, in the national interest. Currently such information can be communicated to a Minister, Department or security or intelligence agency. This amendment will add State and Territory police forces, the Australian Federal Police and the National Crime Authority. Presently those three entities are only authorised to receive information under subsection 18(3) where the information relates to the commission of indictable offences.

For the purposes of Division 2 dealing with ASIO's special powers, item 7 defines the term 'carrier' by reference to definitions in the Telecommunications Act 1997, while items 8, 9 and 10 define the terms 'computer', 'data' and 'telecommunications facility' respectively.

Items 11-13 amend section 24 which deals with the exercise of authority granted under a warrant. The ASIO Act is being amended in a number of places so that ASIO is not compelled to recover a tracking or listening device only within the currency of a warrant, but in addition has statutory permission to enter premises after the warrant has expired and use reasonable force, for the purposes of recovering the device. These three items allow ASIO to authorise officers to exercise this additional power. The general power to recover devices to be inserted in the Act replaces the current approach where each warrant deals with this activity on a case-by-case basis. Items 18 and 20 are also consequential on the introduction of the device recovery provisions.

Item 14 is consequential on items 16, 23 and 24 which provide for new forms of warrant, dealing with computer access, tracking devices and articles carried by a delivery business.

Item 15 is a minor change related to bureaucratic job classifications with ASIO.

Item 16 is a major provision of the Bill dealing with search warrants and warrants which authorise access to computers including so-called 'remote access'. The first half of this item repeals and replaces section 25 of the ASIO Act which deals with search warrants. As it includes some features which recur in later amendments regarding other warrants, it will be dealt with in some detail here.

test for issue of warrant: the basis on which the Attorney-General may approve an application from the Director-General for a search warrant has been re-worded, and in the process appears a less rigorous requirement. Currently the Attorney-General must be satisfied it is reasonable to believe that without access to records or other things on certain premises, ASIO's collection of intelligence relevant to security 'would be seriously impaired'. Subclause 25(2) would re-cast the test in the positive, so that a warrant may issue where it is reasonable to believe that access 'will substantially assist the collection of intelligence' relevant to security.

preservation of secrecy: the ASIO Act currently permits the Minister to provide that entry may be made or containers opened without prior demand or request, and to authorize measures deemed necessary for that to occur. Proposed paragraphs 25(4)(e) and (f) authorise the Minister to specify in the warrant 'any thing reasonably necessary to conceal the fact that any thing has been done under the warrant' as well as anything reasonably incidental to activities otherwise authorised in the warrant. The Minister may do likewise where a warrant authorises access to computer information under subclause 25(5) as discussed below.

duration of warrant: whereas search warrants currently last no longer than 7 days, subclause 25(10) permits them to last up to 28 days. In addition, subclause 25(8) would allow 'activation' of the permit and onset of the 28 days period to be delayed for up to 28 days after it has been issued. The Explanatory Memorandum claims that the longer maximum period is designed to allow ASIO greater flexibility, particularly time for a suitable opportunity to arise for clandestine execution of the warrant. Item 29 grants the same extension where search warrants relate to the domestic collection of 'foreign intelligence'.

use of reasonable force: the Bill would endow ASIO with a general power under warrant to use 'any force that is necessary and reasonable to do the things specified in the warrant' (proposed paragraph 25(7)(a)).

accessing computer information: subclause 25(5) allows the Attorney-General to authorise under a search warrant the use of computers to access data relevant to security, to print copies to take away from the premises, to make electronic copies and to alter, add to or delete data. The next subsection prohibits interference with the lawful use of the computer or loss or damage to lawful users.

In addition to permitting access to computers on specified premises under a search warrant, the Bill also introduces a separate 'computer access warrant'. Clause 25A allows the Attorney-General to authorise ASIO to use electronic means to access data relevant to security which is stored in a target computer. This includes the ability to add, delete or alter data in the target computer, copy data, do anything necessary to conceal activities under the warrant and do anything else reasonably incidental. A note makes clear that acting under a warrant will exempt an ASIO operative from criminal liability which would otherwise apply. Again the provision purports to protect lawful use and users (subsection 25A(5)).

Computer access warrants may be authorised for periods up to 6 months (subclause 25A(6)).

The Government acknowledges that remote access to data will strengthen ASIO's capacity to gather security intelligence and the powers to alter data will help combat security systems and encryption techniques.(17)

A 'use of reasonable force' provision is added to the existing listening device warrant provisions by item 21.

Item 22 is an example of the device recovery provisions referred to earlier. It authorises ASIO to enter premises and recover a listening device using any necessary and reasonable force if not during the currency of the warrant, then within 28 days after its expiry, or as soon as reasonably practicable thereafter. The Explanatory Memorandum states that it does not authorise use of a listening device once a warrant has expired and is designed to allow recovery of a device 'without the risk of detection which would impair the collection of intelligence'. A parallel provision for tracking devices is found in item 23.

Item 23 introduces for the first time into the ASIO Act provisions authorising by warrant or consent the use of devices by ASIO to track persons or objects, an activity which is otherwise rendered unlawful by subclause 26A(1) and which the Walsh Report noted may involve trespass onto property.(18) The test which the Director-General must meet in order to obtain such a tracking device warrant is set out at subclause 26B(2) in relation to persons and subclause 26C(2) in relation to objects. There must be a reasonable suspicion of activities prejudicial to security(19) and a likelihood that the tracking device will assist ASIO in carrying out its intelligence gathering function. The provisions relating to tracking device warrants substantially parallel those discussed already in relation to other warrants, including the use of force clause and device recovery provision, and such warrants may last up to 6 months.

Mr Walsh reported that proposals for draft legislation authorising the use of tracking devices have been considered in the past, 'but never advanced to the stage of a bill being listed'.(20)

Item 24 introduces provisions dealing with 'delivery services warrants'. These parallel the existing postal service warrants and the Attorney-General said in his Second Reading Speech that they reflect the emergence of private delivery service competitors to Australia Post. Clause 27AA makes it unlawful for ASIO to gain access to articles carried by delivery service providers without a warrant. The primary test for issue of such warrants has the same two limbs as apply to tracking devices: reasonable suspicion of engagement in activities prejudicial to security and a likelihood access to the articles will assist ASIO's intelligence gathering. The warrant applies to articles sent by, addressed to or intended to be received by the intelligence target ('the subject'), or where ASIO at least has a reasonable suspicion that that is the case. It permits inspection, opening, copying and anything else incidental. Subclause 27AA(6) allows warrants to issue where articles heading for a specified address are intended to be received by an intelligence target and access will likely assist ASIO intelligence gathering.

The maximum duration for a delivery service warrant is 90 days.

It is notable that while Australia Post must be informed by the Director-General about the issue and revocation of such warrants under existing subsections 27(6) and (6A), there is no parallel requirement to inform delivery service providers in clause 27AA.

Items 25-32 deal with ASIO's function of gathering foreign intelligence within Australia, by amending section 27A. Items 25-27 flow from the re-drafting and expansion of ASIO's special powers discussed immediately above (dealing with search warrants, computer access warrants, listening and tracking devices, and postal and delivery service warrants) and ensure those powers are available where ASIO seeks warrants for the domestic collection of foreign intelligence. Item 28 redrafts subsection 27A(2) in line with the access and use of force provisions applying to other warrants and discussed above. Items 29-31 confirm consistency between time limits for various foreign intelligence warrants and those applying to domestic intelligence gathering. Item 32 inserts device recovery provisions for foreign intelligence warrants which parallel those already discussed in the domestic context (see items 22 and 23 above).

Item 33 inserts a significant new power. ASIO may pursue the collection of foreign intelligence without a warrant if so authorised by the Attorney-General. Whereas a warrant is subject to terms and conditions set out in both the Act and the individual instrument, clause 27B attaches no such limitations. As for foreign intelligence warrants, the Attorney-General must merely be satisfied upon advice from the Ministers for Defence or Foreign Affairs that the proposed activity is important to Australia's defence or conduct of its international affairs. The Explanatory Memorandum suggests this power will allow use, for example, of a human agent.

Item 34 represents another significant accretion of power to ASIO. Under limited circumstances, the Director-General can cut the Attorney-General out of the issuing process and issue an emergency 48 hour warrant himself/herself. Presently this power is confined to the issue of listening device warrants. Item 34 would extend the Director-General's power to issue emergency warrants to search warrants, computer access warrants, tracking device warrants and postal and delivery service warrants. The Director-General of ASIO gave evidence to the Parliamentary Joint Committee on ASIO that only 3 emergency warrants have been granted since 1980.(21)

Item 37 inserts a definition of 'year 2000 Games matters' which appears to include any matter with a connection to the 2000 Games and associated events or activities. It is related to items 39, 41 and 42 which deal with the communication of security assessments to State agencies.

One of ASIO's major functions is to supply security assessments about individuals to Commonwealth agencies. Security assessments contain advice about whether a 'prescribed administrative action' should be taken regarding an individual on security grounds, such as denying them entry to Australia or access to sensitive information. Section 40 of the ASIO Act regulates the communication of information likely to be used by a State in considering a 'prescribed administrative action'. It prohibits direct ASIO-State contact and provides for 'ASIO-to-Commonwealth agency-to-State' communication under restricted conditions. Senate debates at the time of the passage of the Principal Act in 1979 reveal that interpolating a Commonwealth agency into the process was designed to protect appeal rights in relation to security assessments which are set out in the Act.(22)

Item 41 repeals and replaces subsection 40(1) and item 42 makes a consequential change to subsection 40(2). These items cancel out the prohibition on direct communication of security assessments by ASIO to a State in the context of prescribed administrative actions by the State, where that action would affect security surrounding the 2000 Olympics. This exception is time-limited, so that any security assessment communicated under proposed paragraph 40(1)(b) must be furnished by ASIO to the State before the end of 31 December 2000. There must still be a connection between the State's prescribed administrative action and the functions of a Commonwealth agency. The Explanatory Memorandum states:

The intention is to simplify administrative processes in the expectation that State authorities responsible for security arrangements for the Sydney 2000 Olympics and Paralympics are likely to request large numbers of security assessments.(23)

Item 39 is designed, according to the Government, to preserve the notification and review rights which normally apply to communication of security assessments to Commonwealth agencies, where direct contact instead occurs with State agencies under the year 2000 Olympics exception just discussed. Ordinarily, for example, an individual the subject of an adverse or qualified security assessment will be notified of the assessment and of their right to seek a review before the Administrative Appeals Tribunal.

However, while notification may occur, it is questionable whether review rights are preserved in substance by item 39. Section 61 of the ASIO Act, which is headed 'Effect of findings', provides that a Commonwealth agency shall treat a Tribunal finding as superseding any part of an assessment which it overrules. It is difficult to discern, in relation to direct ASIO-State communications in the Olympic context, what if any effect a successful appeal to the AAT by an individual would have, as section 61 refers only to the effect on a Commonwealth agency.

Employment conditions within ASIO are not subject to typical public service arrangements. Section 90 of the ASIO Act provides that regulations may be made to deal with a number of employment matters. Item 43 would add a new subsection enabling establishment of a review process for actions by ASIO affecting employees and former employees, and providing for immunity from civil proceedings for the review body in their conduct of such reviews. That immunity seems very broadly drawn and it may be that section 33 of the IGIS Act is more carefully expressed, by emphasising immunity from action for damages for acts done in good faith.

Item 44 clarifies that the new warrant provisions apply to warrants issued after that item's commencement, where the application by the Director-General also post-dated commencement. Item 45 preserves the legal effect of an appointment of an Acting Director-General if one is in place at the time of its commencement.

Schedule 2-Penalty Provisions

Items 1-13 alter the penalty provisions for various offences under the ASIO Act. The effect is to nominate a maximum period of imprisonment but permit a court to impose as an alternative a pecuniary penalty, consistent with the formula set out in section 4B of the Crimes Act 1914. Item 14 applies the new penalty regime only to offences committed after commencement of Schedule 2.

Schedule 3-The spelling of 'Organization'

Items 1-80 will change the spelling of 'Organization' to 'Organisation' in ASIO's title as it appears in the ASIO Act and 25 other Acts.

Schedule 4-Amendment of the Financial Transaction Reports Act 1988

Item 1 inserts clause 27AA in the Financial Transactions Reports Act 1988 ('FTR Act')to provide ASIO with authorised access to FTR information. FTR information is information obtained by the Director of the Australian Transaction Reports and Analysis Centre (AUSTRAC) from the reporting of suspect and significant financial transactions by dealers in cash such as banks, insurance companies, investment trusts and casinos. The FTR Act, and particularly the transaction reporting system are designed to counter attempts at illegal money-laundering.

While FTR information is generally secret, as part of its brief to counter money-laundering, AUSTRAC provides information about transactions to certain law enforcement and revenue agencies such as the Australian Taxation Office, the Australian Customs Service, Federal State and Territory police forces and State and Territory revenue authorities.

Section 25 of the FTR Act presently imposes an obligation of secrecy on AUSTRAC employees and other officials. Subclause 27AA(1) qualifies this by permitting the Director of AUSTRAC to authorise access by ASIO to FTR information.

There are minimal restrictions on ASIO's access set out in the Bill. The Director of AUSTRAC may authorise it 'for the purpose of performing its [ASIO's] functions'. The functions of ASIO are set out in section 17 of the ASIO Act and are quite broadly drawn. This issue is discussed in the Concluding Comments section of this Digest.

An ASIO officer who obtains access to FTR information may divulge it to certain third parties in circumstances defined in subclause 27AA(4)-essentially law enforcement and intelligence contexts. One category of person to whom it may be divulged is the Inspector-General of Intelligence and Security (IGIS) or his or her staff. In turn, an IGIS officer may divulge the information to defined persons in defined circumstances as set out in subclause 27AA(5). Those circumstances relate to IGIS inquiries into or oversight of ASIO matters, where information may be passed to other IGIS officers, the Director-General of ASIO, a complainant to IGIS, the Attorney-General and in some circumstances the Prime Minister. The last three individuals appear not to be subject to the obligation of secrecy, but they will only receive the FTR information 'in a manner that does not identify, and is not reasonably capable of being used to identify, a person to whom the information relates'.

The ASIO or IGIS officers who obtain such information are granted by subclause 27AA(6) an immunity from compulsion to produce it in court. AUSTRAC staff, police and customs officers already enjoy a similar immunity under subsection 25(3), although it is qualified so that the immunity does not cover them where disclosure is 'necessary...for the purposes of carrying into effect the provisions' of the FTR Act.

A contravention of clause 27AA is an offence and will attract a maximum penalty of 2 years imprisonment (subclause 27AA(7)).

The Attorney-General in his Second Reading Speech said that ASIO's access to FTR information will be controlled by a memorandum of understanding between the Director-General of ASIO and the Director of AUSTRAC. He also advised that the ministerial guidelines applying to ASIO are being reviewed in consultation with the Privacy Commissioner to ensure that information obtained from the AUSTRAC database 'is properly handled within ASIO'.(24) This issue is discussed further in the Concluding Comments.

Schedule 5-Amendments to the Inspector-General of Intelligence and Security Act 1986

The Inspector-General of Intelligence and Security (IGIS) was established in 1986 when the Hawke Government implemented recommendations from the Hope Royal Commission on Australia's Security and Intelligence Agencies. The IGIS was established as a watchdog over ASIO, the Australian Secret Intelligence Service (ASIS), the Defence Signals Directorate (DSD), the Joint Intelligence Organisation (JIO) and the Office of National Assessments (ONA).

Item 1 adds a new function for IGIS which is to conduct regular or ad hoc inspections of these agencies at his discretion 'in consultation with the head of the relevant agency'. At present, the Act provides for inquiries into specific events or matters.

Items 2 and 3 redraft section 22 of the Inspector-General of Intelligence and Security Act ('IGIS Act') so that where a copy of a report would currently be forwarded to the relevant Minister or Prime Minister, and such a report contains confidential tax information (as will become possible if item 10 in Schedule 6 becomes law), a sanitised version is forwarded which does not disclose the tax information. An unsanitised version will be forwarded to the head of the security or intelligence agency, but he or she will be subject to the secrecy provisions in clause 3EA of the Taxation Administration Act 1953 (see item 10 in Schedule 6).

Items 4 and 5 cut the Attorney-General out of a decision-making process about the release of information. Where IGIS inquires into a complaint, it forwards a written response to the complainant. Before doing so, the response is submitted to the responsible Minister and the head of the agency for clearance on defence, foreign affairs and security grounds. Items 4 and 5 mean that the IGIS and the head of the relevant agency will decide on clearance, while the Minister will simply receive a copy of the response. The Explanatory Memorandum states that this streamlines procedures because the Minister would be relying on agency advice about defence, security etc issues. Nonetheless, there is clearly a difference between advice and decision-making on a question of such potentially significant political sensitivity.

Item 6 is related to item 1, and provides for the IGIS to deliver a report about an inspection carried out under clause 9A. Curiously, whereas all IGIS inquiries under the Act are reported to both the head of the relevant agency and the responsible Minister, the report on an inspection may be made to the responsible Minister or the head of the agency. As Ministerial oversight is one of the major pillars of the accountability system established in 1986, it seems curious that the Minister may not necessarily see the fruits of an IGIS inspection. In this regard, it should be noted that item 9 will require the IGIS to include 'comments' on any section 9A inspections in his or her annual report. Such annual reports are furnished to the Prime Minister and then passed to the Leader of the Opposition, and an edited version is tabled in Parliament.

Items 7 and 8 exempt the IGIS or his/her staff from the general secrecy provision applying to IGIS information where the IGIS believes on reasonable grounds that breaching secrecy is necessary to preserve 'the well-being or safety of another person'. The Explanatory Memorandum states:

On occasion, the Inspector-General has received information indicating that a person may be at physical risk from a complainant. So that the Inspector-General may seek expert professional guidance or refer such information to police, a new subsection 34(1A) is proposed...

There is no limit placed on the identity of people to whom such information may be disclosed nor the circumstances in which it may occur, beyond the reference to 'well-being or safety'.

Schedule 6-Amendments to the Taxation Administration Act 1953

The effective administration of the tax system, and particularly the system of self-assessment, relies heavily on the preservation of confidentiality of tax information. A general prohibition on disclosure of tax information by the Australian Taxation Office (ATO) gives taxpayers confidence about making full and frank disclosure of their financial affairs in submitting tax returns. Over the years the principle of confidentiality has been increasingly qualified on public policy grounds by an array of legislation dealing with issues such as law enforcement, child support, student assistance and migration.

Schedule 6 proposes for the first time to authorise release of tax information to ASIO for the purposes of performing its functions under the ASIO Act. It also authorises the release of such information by ASIO to third parties such as the IGIS and legal practitioners in defined circumstances. Indeed it establishes a chain of authorised disclosure which may take tax information two or more steps beyond the ASIO officer to whom it was disclosed.

There is no statutory barrier to ASIO's access to tax information beyond an assessment by the Tax Commissioner that the information 'is relevant to the performance of ASIO's functions under subsection 17(1)' of the ASIO Act.

Items 1-5A inserts ASIO-related definitions into the Taxation Administration Act 1953 (TAA). Item 6 requires the Tax Commissioner to record in each annual report the number of requests from ASIO for disclosure of tax information as well as the number of disclosures made.

Section 3E of the TAA provides for disclosure of tax information by the ATO to law enforcement agencies and royal commissions. One effect of item 10 is that ASIO may in certain circumstances divulge tax information obtained from the ATO to law enforcement agency officers (see proposed paragraph 3EA(3)(e)). Items 7-9 apply to law enforcement agencies the same prohibitions and permissions regarding disclosure, and the same immunity from compulsory disclosure in court, as apply where they receive the tax information directly from the ATO.

Item 10 inserts three new sections into the TAA: clauses 3EA, 3EB and 3EC. The Tax Commissioner may divulge tax information to an authorised ASIO officer if satisfied that it is relevant to the performance of ASIO's intelligence and security functions which are set out in section 17 of the ASIO Act. This over-rides any secrecy provision in the TAA.

While the ASIO officer is subject to a general prohibition on recording the information or communicating it to third parties (punishable by 2 years imprisonment), subclause 3EA(3) sets out a number of exceptions. These are:

  • recording or intra-ASIO communication of the information in the performance of ASIO security and intelligence functions under section 17 of the ASIO Act
  • communicating with a lawyer representing a person in a tax prosecution or proceedings for a proceeds of crime order
  • communicating with an IGIS officer carrying out his or her statutory functions, or
  • communicating with a law enforcement agency officer in connection with certain criminal investigations and possible or actual tax prosecutions or proceeds of crime proceedings.

It should be noted that ASIO's functions under section 17 of its Act are broadly drawn and include the communication of intelligence relevant to security 'to such persons, and in such manner, as are appropriate to those purposes' (paragraph 17(1)(b)). There appears to be some tension between the general prohibition on recording or disclosure in subclause 3EA(2) and the authorised recording or intra-ASIO communication of tax information pursuant to ASIO's paragraph 17(1)(b) function. The question is what if any modification of the tax information is legally required in the communication of intelligence to 'such persons...as are appropriate' for security purposes.

It should also be noted that the reference to the possibility of a proceeds of crime order proceedings makes clear that no conviction for an offence may yet have occurred, which significantly widens the range of situations in which disclosure to a law enforcement agency may occur (see subsection 3EA(5)).

A current or former ASIO officer who receives otherwise secret tax information is immune from being compelled to divulge it to a court and may not do so voluntarily except in a tax prosecution or proceedings for a proceeds of crime order (subclause 3EA(4)).

A person who receives tax information from an ASIO officer because they come within the 'lawyer exemption' referred to above (proposed paragraph 3EA(3)(c)) or because a lawyer has communicated it to them in connection with the same proceedings (subclause 3EB(2)) is also subject to an obligation of secrecy, breach of which is punishable by 2 years imprisonment. The latter exception would seem to apply to a potentially endless chain of people leading from the original lawyer, as long as the communication or recording of the information is done 'for the purposes of, or in connection with' the tax prosecution or proceeds of crime order proceedings. All recipients of such information are immune from compulsory disclosure in court (subclause 3EB(3)).

Under clause 3EC, an IGIS officer who obtains tax information from an ASIO officer, or from another IGIS officer where it originally came from an ASIO officer, is also subject to the same secrecy obligation. They cannot be compelled to reveal it in court and they may not do so voluntarily. The three exceptions for a current IGIS officer are:

  • recording it in connection with his or her duties as an IGIS officer
  • intra-IGIS communication in performance of IGIS duties, and
  • a report to the Director-General of ASIO following an IGIS inquiry or inspection under sections 21, 22 and 25A of the IGIS Act.

 

Concluding Comments

Discussion of ASIO inevitably raises a dichotomy between the protection of privacy and civil liberties on the one hand and protection of national security on the other. In the past, some have questioned the need for agencies such as ASIO at all. But the Organisation is 50 years old, so more relevantly perhaps the present debate is whether the Bill takes necessary steps to preserve existing investigative capabilities within the parameters of satisfactory safeguards, or whether it tilts the balance too far in favour of ASIO as against the individual.

Preserving Capability or Agency Expansionism

The Government says the Bill's proposals 'will not extend ASIO's functions'(25) and 'are intended to modernise ASIO powers, mainly to reflect advances in technology'.(26) The IGIS, purportedly the key watchdog on behalf of the public, has echoed that sentiment, denying that the Bill is 'a "Trojan Horse" for the unjustified extension of ASIO's functions'.(27)

In strict legal terms the 'functions' of ASIO which are spelt out in section 17 of its Act remain essentially the same, although that is not completely true as items 3 and 4 of Schedule 1 indicate. But at a less semantic level, clearly the Bill contains significant increases in the array of intrusive powers available to the agency. Do they simply allow ASIO to keep up with the pace or do they give it powerful new tools which make new and dramatic intrusions upon civil liberties? By granting ASIO access to tax records and confidential data collected to combat money-laundering and tax evasion, the Bill prompts questions about 'function creep' which are discussed further below. Are all these powers strictly necessary to the fulfilment of existing functions or do they suggest an attempt to stake out new bureaucratic territory?

It should be noted that in contrast to the array of new powers, there are few proposals in the Bill which enhance scrutiny rather than simply extend existing mechanisms to newly created powers. The Bill clarifies that the IGIS may make periodic inspections, not just in response to specific events or matters, and report accordingly. The Government has also said that the guidelines issued by the Attorney-General to ASIO about the treatment of personal information will be reviewed in consultation with the Privacy Commissioner.

The Financial Services Consumer Policy Centre submitted to the recent inquiry into the Bill by the Parliamentary Joint Committee on ASIO (PJCA) that it 'delivers far more to ASIO than a mere "updating" exercise could or should deliver'.(28) The organisation Electronic Frontiers Australia (EFA) expressed similar concerns. In its view, the balance between individual rights and security concerns of the state 'is shifted in favour of the latter' and the case has not been made why the individual rights of Australians should be further eroded.(29)

Allied to the concern about 'function creep' is the provision to allow ASIO to recover costs from non-Commonwealth agencies for services provided. Given that ASIO may pass intelligence to any 'persons' for security purposes including protection from espionage, does this revenue-raising capacity effect a subtle change in the atmospherics of ASIO activity? One submission put it this way:

If money enters the equation, then surely ASIO is moving into a completely new arena.(30)

In evidence to the PJCA, the Director-General of ASIO said the amendment would allow ASIO to charge for protective security advice, but on a cost recovery rather than profit basis.

Access to AUSTRAC information

The first question here is whether ASIO should be given direct access to AUSTRAC information at all. One submission to the PJCA suggested that it would undermine support for AUSTRAC, by associating its operations in the public mind with a 'spy agency' making it 'difficult for AUSTRAC to retain its current image of being focused on money laundering and tax evasion'.(31) It also said that ASIO must first demonstrate that AUSTRAC information would facilitate the detection and prosecution of those who pose a risk to national security and that similar results cannot be obtained by existing methods.

AUSTRAC's submission to the PJCA said it had been advised that:

in a number of well-known terrorism incidents, substantial funds were sent to banks in the victim country to pay for the materials etc. used in subsequent acts of terrorism. AUSTRAC understands that financial transaction reports information could be used by ASIO as an intelligence source in relation to assessments where there are already some suspicions about a particular person in relation to a matter of national security.(32)

But members of AUSTRAC's Privacy Committee questioned whether the proposal was a signal that 'ASIO was moving into a more mainstream law enforcement role'.(33) A similar question-which stems perhaps from the passing of the Cold War era-arises more pointedly in relation to ASIO's proposed access to tax information (see below). One submission to the PJCA drew attention to the 'tendency of bureaucratic organisations to resist shrinkage' and stressed that, without necessarily imputing such a motive to these amendments, ASIO 'should not be allowed to "invent" reasons for survival and growth which are not founded squarely on the statutory reasons for their existence'.(34)

If Parliament grants ASIO access to AUSTRAC information, the next question is on what terms. During AUSTRAC's confidential consultations in 1997 with its stakeholders about the Bill both financial institutions and members of its Privacy Committee urged strict controls on ASIO's access to FTR information.(35) The Bill itself establishes no criteria or limits on access beyond the AUSTRAC Director's judgement about relevance to the broad functions given to ASIO under section 17 of its Act. There is no warrant provision involving a relevant Minister.

In its submission to the PJCA, AUSTRAC stressed the value of controls on access which would be imposed by a Memorandum of Understanding (MoU) to be entered into by the Director-General of ASIO and the Director of AUSTRAC. But a MoU will be negotiated by ASIO not imposed upon it, it will be between two senior members of the bureaucracy, and it is unclear what if any consequences will flow if it is breached. AUSTRAC's submission suggests the draft MoU already contains a provision for relaxation of controls over ASIO's access to FTR information down the track as well as for certain forms of 'downloading' and 'data-matching'.(36) In any case, a MoU clearly is different to legislative controls imposed by Parliament and at least theoretically testable by affected individuals in the courts.

A final point of interest to emerge from AUSTRAC's submission to the PJCA is the disclosure that the Privacy Commissioner submitted a proposal to the Attorney-General's Department before March 1998 for the insertion of a sunset clause in the Bill, presumably on the basis that extensions of ASIO's powers could be reviewed by Parliament after a period of operation to ascertain whether they should continue or not.(37) The Attorney-General's Department submission to the PJCA referred to consultations with the Privacy Commissioner but did not refer to a sunset clause proposal.(38)

Access to Tax Information

Schedule 6 to the Bill prompts a number of questions:

  • Should ASIO have access to tax records at all-i.e. are they relevant to a security intelligence organisation?
  • If so, on what grounds should access be granted?
  • Once granted, how should ASIO's access and use be regulated?

It appears from the Tax Commissioner's submission to the PJCA that he will not see the background facts that have led to a request from ASIO being made. Instead a senior ASIO officer will tell him the request is relevant to ASIO functions. The ASIO officer will also state the general nature of the matter being investigated and how the information will be used.(39) This, and the subsequent exercise of the Tax Commissioner's discretion based on this material, is all that stands between previously secret tax information and an intelligence agency which operates free of many conventional measures for public and political accountability.

According to its submission to the PJCA, the Taxation Institute of Australia (TIA) is a national body of over 10,000 members, professionals and practitioners with an interest in taxation. It expressed concern with the breadth of ASIO's access to tax records and said, that ASIO's functions in section 17 of its Act are so broadly drawn that their use as the criterion for access means 'the general confidentiality and secrecy of taxation information are at risk'.(40)

More generally, the TIA posed the question whether ASIO and the Government had made the case for access to tax information in the first place. Because confidentiality is essential for full taxpayer disclosure and the integrity of the tax system, the TIA suggested that it should only be breached where 'ASIO can clearly satisfy the Commissioner that the information requested is relevant for a particular suspected or anticipated serious crime or security breach'.(41)

The only case put for the proposal in the Attorney-General's Department submission to the PJCA is that it 'has the potential to assist ASIO in espionage and terrorist investigations, but especially the former'.(42) Other Government statements contain similarly brief or no justification for the measure. The Second Reading Speech, for example, said that it would put ASIO in the same position as law enforcement agencies and strengthen its capacity to investigate activities such as espionage involving concealed financial transactions. The Corporate Tax Association in its submission to the PJCA had no objection to the tax proposal in the Bill, provided the safeguards were adhered to.(43)

The Tax Commissioner indicated in his submission to the PJCA that a MoU is being negotiated with ASIO to facilitate disclosure under the proposed amendments and will be finalised by the time the Bill commences. The comments about MoUs made above apply equally here. Again a warrant is not required for ASIO to access the information.

Warrants

Neither the Explanatory Memorandum nor the Second Reading Speech nor the Attorney-General's Department submission to the PJCA point out that in redrafting the basis for the grant of a search warrant, the test has been relaxed. Each of those documents talks of 'clarifying' the requirements or making them 'more comprehensible' or 'simplifying' the description. However, as several written submissions to the PJCA point out, in re-casting the test from the negative to the positive the test appears to have been significantly relaxed. The adequacy of the Explanatory Memorandum was questioned in the PJCA hearing. The Director-General of ASIO's statement that the driving force behind the amendment was to use plain English 'not to lower the test'(44) reinforces the impression that the provision may need to be revisited by Parliament.

Some submissions to the PJCA question whether the case has been adequately made for various other changes to the warrant provisions which intrude on privacy such as grant of tracking devices for a period of up to 6 months, and the expansion of search warrant powers in relation to computers. The Australian Privacy Charter Council submitted that extending warrants from 7 to 28 days and allowing an 'activation' period of up to 28 days 'mark a major increase in ASIO's discretion and loss of detailed control by the Minister'.(45) The Presiding Member of the PJCA called these changes 'a massive expansion' of time. The Director-General of ASIO responded by saying:

the current period of seven days is too narrow in the sense that targets can vary their intentions and they can make last-minute decisions to do things differently from what we assessed. When that happens, we are required to go back, sometimes at very short notice, and get a second warrant. The proposed amendments are designed to add flexibility there in the activation of a warrant.(46)

The role of the Attorney-General in deciding whether to grant warrants for the exercise of various intrusive powers is purportedly an accountability measure to buttress public confidence. But there is no judicial review available against the Minister's decision and a high degree of secrecy surrounds the administration of the warrants system. For example, the public version of ASIO's Annual Report does not even record how many warrants were granted in the 1997-98 year. It simply says that the Attorney-General granted every single application which ASIO made to him. The NSW Privacy Commissioner called for a review of the system for ministerial authorisation of warrants and for the system to pass from the Executive to the Judiciary:

the system of ministerial authorisation of warrants should be reviewed. As an accountability measure it inspires limited confidence given that ministers are likely to be apprehensive about the potential political fall-out should they decline to issue a warrant. The expansion of the circumstances in which warrants can be issued calls for a more arms length process using judicial officers. The confidence in judicial officers as best able to assess the scopes of the organisations activities have already been demonstrated by the Hope Royal Commissions into ASIO.(47)

Constitutional questions surround the use of judges for non-judicial functions and, noting that Federal Court judges have objected to their warrant-granting workload in the past, the Australian Privacy Charter Council submitted that 'one or more retired senior judges nominated by the judiciary' would be appropriate independent officers for the purpose.(48)

Adding, Deleting and Altering Data

The Bill would allow ASIO to add, alter or delete data in a target computer. One submission to the PJCA argued that it was premature to give ASIO such a wide-ranging power to hack into computers and alter data when Australia is yet to formulate comprehensive policies regarding cryptography.(49)

Other submissions raised a liability issue. The Walsh Report acknowledged that it is just a matter of time before major software producers such as Microsoft offer an encryption function as a matter of course with their mainstream software products. There is a liability question if Commonwealth legislation authorises ASIO secretly to 'hack' into computers and add, alter or delete data. If companies suffer loss because of ASIO interference with the operation of their computers, assuming ASIO's intervention comes to light, the Commonwealth could be confronted with substantial legal liabilities. Major software producers, sued because their products suddenly do not perform according to contractual specifications, may go looking for causes and, if they detect alteration of data by ASIO, they may also seek to sue the Commonwealth.

The Bill purports to deal with this issue in subclause 25A(5) which says that the Act does not authorise interference with the lawful use of computers by others or acts which cause any loss or damage to others engaged in lawful use. This provision however, prompts a number of questions. How will 'accidental' interference be avoided by ASIO when data is being manipulated by remote access? How will it be detected by lawful users who suffer computer malfunction as a result? Why is there no reference under 'Financial Impact' in the Explanatory Memorandum to the financial implications of clause 25A?

There may even be a question about the acquisition of property. The law surrounding section 51(xxxi) of the Constitution-the just terms guarantee for Commonwealth laws which acquire property-is complex, and questions such as the parameters for government regulation of property deemed to fall short of 'acquisition' remain unclear. But if deleting or altering data to which intellectual property rights attach amounts to an 'acquisition of property', a failure to provide 'just terms' will render such a provision invalid.

Direct Communication to the States

The Bill allows ASIO to communicate directly with State agencies in relation to Year 2000 Olympics security assessments. ASIO estimates it may have to handle between 40,000 and 80,000 requests for the purposes of the Games and seeks to streamline the process for communicating the outcome of security checks.

The NSW Privacy Commissioner, Mr Chris Puplick, in a written submission to the PJCA said the Wood Royal Commission into the NSW Police Service found several defects in the NSW Special Branch (now disbanded) and its handling of intelligence. Mr Puplick concluded:

The circumstances of the branch's closure raises the question of how far there is effective accountability for information provided by ASIO to state police services.(50)

A question was posed under 'Main Provisions' in this Digest about item 39 in Schedule 1 and the extent to which review rights are preserved where direct ASIO-State communication occurs.

Parliamentary and Public Scrutiny of the Bill

Questions have been raised about the degree of public scrutiny the Government is prepared to allow, given the scope of changes in the Bill.

It is apparent that AUSTRAC, for example, was approached by the Attorney-General's Department about the proposed inclusion of FTR access in a package of ASIO amendments in September 1997. The Walsh Report was completed in late 1996. Clearly, many proposals in the Bill have been on the table within the bureaucracy for some time.

However, since the Bill became public, the pace has suddenly accelerated. The Attorney-General asked the PJCA to review and report on the Bill within what the Committee itself called 'a very short time frame'-ie less than 4 weeks after it was referred. A public hearing was held at which 9 out of 10 witnesses were from Government agencies. The Presiding Member of the PJCA recognised it was very difficult for interested parties to make submissions within the nominated deadline and that there were 'some people who would have liked to have appeared before the committee ... but who in the time available were unable to make arrangements to do so'.(51)

As noted in the Background, the Government was at pains to stress that the Bill 'is not a response to the challenges posed by a particular event or threat, such as the Year 2000 Olympics'.(52) Yet, the Attorney-General Department's submission to the PJCA asserted that it would be prudent to have the changes to intelligence collection in place well before the Olympics start and this explains the 'high priority' given to the Bill and the Government's wish to have Parliament consider it as soon as possible.(53)

It is to be noted that major changes to the ASIO legislation in 1979 and 1986 were preceded by the conduct of Royal Commissions which released public reports.

Endnotes

  1. The Hon. Daryl Williams MP, Debates, House of Representatives, 25 March 1999, p. 3667, Second Reading Speech.

  2. The Attorney-General has issued guidelines to ASIO regarding the handling of personal information.

  3. Royal Commission on Australia's Security and Intelligence Agencies, Report on the Australian Security Intelligence Organization, December 1984, AGPS, Canberra 1985, para 17.52.

  4. The Hon. Daryl Williams MP, Debates, House of Representatives, 25 March 1999, p. 3667, Second Reading Speech.

  5. G. Walsh, Review of Policy relating to Encryption Technologies, 10 October 1996. An edited version of the Walsh Report was released to the Electronic Frontiers Australia (EFA) organisation following a freedom of information application in June 1997 and EFA published it on the Internet at www.efa.org.au.

  6. The Australian, 30 March 1999.

  7. The Hon. Daryl Williams MP, Debates, House of Representatives, 25 March 1999, p. 3667, Second Reading Speech.

  8. G. Walsh, op. cit., 'Foreword'.

  9. The Australian, 15 July 1997.

  10. Obviously, the Bill deals with a number of issues beyond the potential impact of encryption on ASIO's capacity. The question is not whether the Walsh Report is a 'blueprint' for the entire Bill but whether it is relevant to some of its contents.

  11. G. Walsh, op.cit., 'Foreword'.

  12. Ibid., para 2.2.1.

  13. Ibid., para 1.2.44.

  14. Ibid., para 1.2.2

  15. Ibid., para 1.2.1.

  16. Ibid., paras 1.2.32 and 1.2.34

  17. Explanatory Memorandum, p.6.

  18. G. Walsh, op.cit., para 4.3.3.

  19. Section 4 of the ASIO Act defines security as:

    (a) the protection of, and of the people of, the Commonwealth and the several States and territories from:

    (i) espionage;

    (ii) sabotage;

    (iii) politically motivated violence;

    (iv) promotion of communal violence;

    (v) attacks on Australia's defence system; or

    (vi) acts of foreign interference;

    whether directed from, or committed within, Australia or not; and

    (b) the carrying out of Australia's responsibilities to any foreign country in relation to a matter mentioned in any of the subparagraphs of paragraph (a).

  20. G. Walsh, op.cit., para 6.2.6.

  21. Joint Committee on Australian Security Intelligence Organization, Proof Committee Hansard, 27 April 1999, p. 19.

  22. The Hon. Sen Peter Durack, Debates, Senate, 2 May 1979, p. 1588.

  23. Explanatory Memorandum, p. 10.

  24. The Hon. Daryl Williams MP, Debates, House of Representatives, 25 March 1999, p. 3668, Second Reading Speech.

  25. Ibid., p. 3667.
  26. Attorney-General's Department, Submission No. 9 to Parliamentary Joint Committee on the Australian Security Intelligence Organization Review of the Australian Security Intelligence Organization Legislation Amendment Bill 1999, para 9.
  27. Inspector-General of Intelligence and Security, Submission No. 1 to Parliamentary Joint Committee on the Australian Security Intelligence Organization Review of the Australian Security Intelligence Organization Legislation Amendment Bill 1999, 19 April 1999, p. 2.
  28. Financial Services Consumer Policy Centre, Submission to the Parliamentary Joint Committee on ASIO Inquiry re ASIO Legislation Amendment Bill 1999, April 1999, p. 3.
  29. Electronic Frontiers Australia, Submission No. 10 to Parliamentary Joint Committee on the Australian Security Intelligence Organization Review of the Australian Security Intelligence Organization Legislation Amendment Bill 1999, p. 2.
  30. Joan Coxsedge, Submission No. 3 to Parliamentary Joint Committee on the Australian Security Intelligence Organization Review of the Australian Security Intelligence Organization Legislation Amendment Bill 1999.

  31. Financial Services Consumer Policy Centre, op.cit., p. 8.
  32. Australian Transaction Reports and Analysis Centre (AUSTRAC), Submission No. 7 to Parliamentary Joint Committee on the Australian Security Intelligence Organization Review of the Australian Security Intelligence Organization Legislation Amendment Bill 1999, 23 April 1999, para 3.1.

  33. Ibid., para 7.11.
  34. The Australian Privacy Charter Council, Submission No. 11 to Parliamentary Joint Committee on the Australian Security Intelligence Organization Review of the Australian Security Intelligence Organization Legislation Amendment Bill 1999, p. 3.
  35. In its written submission to the PJCA, AUSTRAC disclosed that it had engaged in consultations authorised by the Attorney-General's Department with its Provider Advisory Group (made up of financial institutions) and its Privacy Committee (which includes government agencies as well as representatives of civil liberties organisations). See AUSTRAC, op.cit., paras 7.1-7.23.

  36. Ibid., paras 6.4-6.5.
  37. Ibid., para 7.19. It is not clear from the AUSTRAC submission whether the Privacy Commissioner's proposal related only to access to AUSTRAC information, or applied to a wider range of proposals contained in the Bill.

  38. Attorney-General's Department, op.cit., para 74.
  39. Australian Taxation Office, Submission No. 8 to Parliamentary Joint Committee on the Australian Security Intelligence Organization Review of the Australian Security Intelligence Organization Legislation Amendment Bill 1999, para 18.
  40. Taxation Institute of Australia, Submission No. 4 to Parliamentary Joint Committee on the Australian Security Intelligence Organization Review of the Australian Security Intelligence Organization Legislation Amendment Bill 1999, p. 3.

  41. Ibid., p. 4.

  42. Attorney-General's Department, op.cit., para 65.

  43. Corporate Tax Association, Submission No. 6 to Parliamentary Joint Committee on the Australian Security Intelligence Organization Review of the Australian Security Intelligence Organization Legislation Amendment Bill 1999.

  44. Joint Committee on Australian Security Intelligence Organization, Proof Committee Hansard, 27 April 1999, p. 57.

  45. The Australian Privacy Charter Council, op.cit., p. 4.

  46. Joint Committee on Australian Security Intelligence Organization, Proof Committee Hansard, 27 April 1999, p. 11.

  47. NSW Privacy Commissioner, Submission No. 5 to Parliamentary Joint Committee on the Australian Security Intelligence Organization Review of the Australian Security Intelligence Organization Legislation Amendment Bill 1999.

  48. The Australian Privacy Charter Council, op.cit., p. 5.

  49. Financial Services Consumer Policy Centre, op.cit., p. 6.

  50. Ibid.

  51. Joint Committee on Australian Security Intelligence Organization, Proof Committee Hansard, 27 April 1999, p. 1.

  52. The Hon. Daryl Williams MP, Debates, House of Representatives, 25 March 1999, p. 3667, Second Reading Speech.

  53. Attorney-General's Department, op.cit., para 10.

 

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6 May 1999
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