BILLS DIGEST NO. 28, 2018–19              27 September 2018

Office of National Intelligence Bill 2018 [and] Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018

Cat Barker
Foreign Affairs, Defence and Security Section 

Date introduced: 28 June 2018

House:  House of Representatives

Portfolio: Prime Minister

Commencement: Refer to page 5 of this Digest for details.

Links: The links to the Bills, their Explanatory Memoranda and second reading speeches can be found on the home pages for the Office of National Intelligence Bill 2018 and the Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at September 2018.

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:

•       the Crimes Act 1914, to allow staff members of ONI to acquire and use assumed identities for the purposes of collecting open source intelligence

•       the Australian Security Intelligence Organisation Act 1979 (ASIO Act) and the Intelligence Services Act 2001 (IS Act), to enable other intelligence agencies to cooperate with and assist ONI to perform its functions and

•       the Australian Border Force Act 2015 (ABF Act) and the Australian Crime Commission Act 2002 (ACC Act), to allow certain information held by the Department of Home Affairs (DoHA) and the Australian Criminal Intelligence Commission (ACIC) to be shared with ONI for the performance of its functions.

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:

•       Schedule 1 will repeal the ONA Act

•       Schedule 2 contains amendments to a range of Acts consequential to the repeal of the ONA Act and establishment of ONI, and more substantive amendments to the Crimes Act, ASIO Act, IS Act, ABF Act and the ACC Act

•       Schedule 3 contains a consequential amendment to the Criminal Code Act 1995 contingent on commencement of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (EFI Act) and

•      Schedule 4 contains transitional provisions.

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 communication of information to the Commonwealth Ombudsman and ACLEI, or making or dealing with records for the purposes of such a communication and

•       disclosures made in accordance with the Public Interest Disclosure Act 2013 (PID Act) or the Freedom of Information Act 1982 (FOI Act).[107]

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]

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[1].              Department of the Prime Minister and Cabinet (PM&C), 2017 Independent Intelligence Review (2017 Review), Commonwealth of Australia, Canberra, June 2017. The reviewers were Michael L’Estrange and Stephen Merchant, with Sir Iain Lobban acting as an adviser.

[2].              For a summary of recommendations, see: Ibid., pp. 13–22.

[3].              Ibid., pp. 46–48.

[4].              Ibid., pp. 57–64.

[5].              For information on the US Office of the Director of National Intelligence (ODNI) see: ODNI, ‘History’, ‘Organization’ and ‘What we do’, ODNI website; ODNI, ODNI fact sheet, ODNI, updated 24 February 2017.

[6].              Royal Commission on Intelligence and Security, Third report: abridged findings and recommendations, Australian Government Printing Service, Canberra, 1977, p. 8.

[7].              Ibid., pp. 9–10.

[8].              Royal Commission on Intelligence and Security, Third report (Commission working copy), Royal Commission on Intelligence and Security, Canberra, 1976, paragraph 304.

[9].              Office of National Assessments (ONA), ‘A short history of the Office of National Assessments’, ONA website.

[10].              Ibid.

[11].              2017 Review, op. cit., p. 56.

[12].              Ibid., p. 48.

[13].              Ibid., p. 49.

[14].              Ibid., pp. 55–69.

[15].              Ibid., p. 67.

[16].              Ibid.

[17].              The PJCIS had initially expected to report by 10 September 2018, but a report had not been tabled as at the date of this Digest: Parliamentary Joint Committee on Intelligence and Security (PJCIS), Inquiry into bills establishing Office of National Intelligence, media release, 6 July 2018.

[18].              Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), Scrutiny digest, 8, 2018, The Senate, 15 August 2018, pp. 24–29.

[19].              Letter from the Attorney-General, Christian Porter, to the Chair of the Scrutiny of Bills Committee on the ONI Bill, 31 August 2018, p. 3 (available in Ministerial responses under Scrutiny digest 10/2018).

[20].              This means the defendant would need to adduce or point to evidence that suggests a reasonable possibility that the matter exists: Criminal Code Act 1995 (Criminal Code), section 13.3.

[21].              Scrutiny of Bills Committee, Scrutiny digest, 8, 2018, op. cit., pp. 24–27.

[22].              Scrutiny of Bills Committee, Scrutiny digest, 10, 2018, The Senate, 12 September 2018, pp. 31–34. The Committee remained concerned about the exceptions in subclauses 42(2) and 44(3) relating to information or matters already communicated or made available to the public with the authority of the Commonwealth. In relation to the exceptions in subclauses 42(3) and 44(4) relating to IGIS officials, it was satisfied with the Attorney-General’s explanation and asked for the additional information to be incorporated into the Explanatory Memorandum.

[23].              Scrutiny of Bills Committee, Scrutiny digest, 8, 2018, op. cit., pp. 26–27.

[24].              Scrutiny of Bills Committee, Scrutiny digest, 10, 2018, op. cit., pp. 33–34.

[25].              Explanatory Memorandum, ONI Bill, pp. 7–8. See ‘Establishment of ONI and its functions’ in the ‘Key issues and provisions’ section of this Digest).

[26].              Subclause 53(1). Identifiable information is defined in subclause 4(1). It will include certain information about identified Australian citizens and permanent residents.

[27].              Subclauses 53(2) and (8).

[28].              Scrutiny of Bills Committee, Scrutiny digest, 8, 2018, op. cit., pp. 27–29.

[29].              Scrutiny of Bills Committee, Scrutiny digest, 10, 2018, op. cit., pp. 35–37.

[30].              Parliamentary Joint Committee on Human Rights (PJCHR), Human rights scrutiny report, 7, 14 August 2018, pp. 48–64.

[31].              Ibid., pp. 50–54.

[32].              Ibid., pp. 55–56. Section 13.3 of the Criminal Code provides that a defendant wishing to rely on an exception bears an evidential burden in relation to the relevant matter.

[33].              PJCHR, Human rights scrutiny report, 10, 18 September 2018, pp. 54–68.

[34].              Commonwealth authority is defined in subclause 4(1).

[35].              PJCHR, Human rights scrutiny report, 7, op. cit., pp. 57–60.

[36].              Ibid., pp. 60–62. The excerpt is from the Explanatory Memorandum to the ONI Bill (p. 6), as quoted by the PJCHR.

[37].              PJCHR, Human rights scrutiny report, 10, op. cit., pp. 68–76.

[38].              Ibid., p. 76.

[39].              PJCHR, Human rights scrutiny report, 7, op. cit., pp. 62–63.

[40].              PJCHR, Human rights scrutiny report, 10, op. cit., pp. 76–78.

[41].              PJCHR, Human rights scrutiny report, 7, op. cit., p. 63.

[42].              Ibid., pp. 63–64.

[43].              PJCHR, Human rights scrutiny report, 10, op. cit., pp. 79–80.

[44].              M Dreyfus (Shadow Attorney-General), Transcript of interview with Fran Kelly: RN Breakfast with Fran Kelly, media release, 19 July 2017.

[45].              R Patrick, ‘Adjournment: national security’, Senate, Debates, 5 December 2017, pp. 9788–9793.

[46].              Inspector-General of Intelligence and Security (IGIS), Submission to PJCIS, Review of the Office of National Intelligence Bill 2018 and the Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018, 27 July 2018, p. 2. A Privacy Impact Statement for the Bills is appended to PM&C and ONA’s submission to the PJCIS inquiry: PM&C and ONA, Submission to PJCIS, Review of the Office of National Intelligence Bill 2018 and the Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018, July 2018.

[47].              PM&C and ONA, Submission to PJCIS, op. cit., pp. 3, 10.

[48].              Ibid. See further PJCIS, Advisory report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, PJCIS, Canberra, June 2018 and the ‘Key issues and provisions’ section of this Digest.

[49].              Letter from the Attorney-General, op. cit.

[50].              Law Council of Australia (LCA), Submission to PJCIS, Review of the Office of National Intelligence Bill 2018 and the Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018, 7 August 2018, p. 3.

[51].              Ibid.

[52].              Ibid.

[53].              A Dupont, ‘Home Affairs change driven by manifest need’, The Interpreter, Lowy Institute blog, 26 July 2017; R Medcalf and J Caldwell, ‘21st-century threats don't fit the old spy bureaucracies’, The Australian Financial Review, 26 July 2017, p. 47; D Irvine, ‘Australian intelligence reforms: “ain't broke” can still be improved’, The Interpreter, Lowy Institute blog,
21 July 2017; A Gyngell, ‘The Australia Intelligence tradition’, The Interpreter, Lowy Institute blog, 24 July 2017; G Miller ‘From ONA to ONI: getting closer to the original plan’ The Interpreter, Lowy Institute blog, 24 July 2017; P Edwards, The intelligence review: our Hope for years to come, The Strategist, Australian Strategic Policy Institute blog, 26 July 2017.

[54].              Medcalf and Caldwell, ‘21st-century threats don't fit the old spy bureaucracies’, op. cit.

[55].              Ibid.

[56].              Gyngell, ‘The Australia Intelligence tradition’, op. cit. In relation to resourcing, the Government allocated $118.5 million over five years from 2017–18 to establish ONI in December 2017: S Morrison (Treasurer) and M Cormann (Minister for Finance), Mid-year economic and fiscal outlook 2017–18, p. 175.

[57].              Edwards, The intelligence review: our Hope for years to come, op. cit.

[58].              Explanatory Memorandum, ONI Bill, p. 4.

[59].              Morrison and Cormann, Mid-year economic and fiscal outlook 2017–18, op. cit.

[60].              The Statements of Compatibility with Human Rights can be found at page 5 of the Explanatory Memorandum to the ONI Bill and page 4 of the Explanatory Memorandum to the CTP Bill.

[61].              A note to the definition states that the Defence Department does not include the Australian Defence Force.

[62].              2017 Review, op. cit., pp. 46–48.

[63].              Explanatory Memorandum, ONI Bill, p. 17.

[64].              Ibid., p. 21.

[65].              2017 Review, op. cit., 57–69. The Critical Infrastructure Centre was established in January 2017 to manage national security threats to Australia’s critical infrastructure (particularly sabotage, espionage and coercion): G Brandis (Attorney-General) and S Morrison (Treasurer), Keeping Australia’s critical infrastructure secure, media release, 23 January 2017; Department of Home Affairs (DoHA), ‘Critical infrastructure resilience’, DoHA website.

[66].              Ibid., p. 67.

[67].              Examples of the ways in which ONI might provide leadership are set out in subclause 8(2).

[68].              Affected agency or agencies will be defined by subclause 9(4) as meaning: a particular intelligence agency, a particular agency with an intelligence role or function, ONI, a class of agencies within the NIC or the NIC as a whole.

[69].              See subclauses 7(1)(d) and (g) respectively.

[70].              Subclauses 7(2) and 8(3).

[71].              Subclause 8(4). Clause 20 will provide for directions from the DNI; and clause 21 for guidelines.

[72].              Subclause 9(2).

[73].              Subclause 9(3).

[74].              2017 Review, op. cit., pp. 58–9. The same limits will be applied to the functions of the DNI by clause 16 of the Bill.

[75].              PM&C and ONA, Submission to PJCIS, op. cit., p. 7.

[76].              Inspector-General of Intelligence and Security (IGIS), ‘About IGIS’, IGIS website. The description summarises the objects of the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) (section 4) and aspects of the IGIS’s inquiry functions under section 8.

[77].              IGIS Act, subsections 8(1) (inquiry functions in relation to ASIO), 8(2) (inquiry functions in relation to ASIS, AGO and ASD), and 8(4)–(8A) (limits on inquiry functions, including in relation to complaints).

[78].              2017 Review, op. cit., pp. 115–7. The Government has accepted the recommendation and allocated funding for the expansion of the IGIS, but has not yet introduced amendments to the IGIS Act: C Barker, ‘National security overview’, Budget review 2018–19, Research paper series, 2017–18, Parliamentary Library, May 2018.

[79].              Australian Commission for Law Enforcement Integrity (ACLEI), ‘ACLEI’s role’, ACLEI website; Law Enforcement Integrity Commissioner Act 2006, sections 15 and 16.

[80].              The DNI will not be required to comply with directions to the extent that they relate to the DNI’s performance of functions or exercise of powers under the Public Service Act 1999, or that compliance with the direction would be inconsistent with the DNI’s performance of functions or exercise of powers under the Public Governance, Performance and Accountability Act 2013, in relation to ONI. The Prime Minister must provide a direction in writing if requested by the DNI, but directions are not legislative instruments.

[81].              Commonwealth authority and State authority are defined in subclause 4(1) (the latter includes both state and territory authorities).

[82].              2017 Review, op. cit., p. 68.

[83].              Ibid., p. 58.

[84].              Prescribed Commonwealth officer is defined in clause 4 to mean the Secretary of a Department, the Chief of the Defence Force, the Commissioners of the AFP and ABF, the Directors-General of ASD and ASIS, the CEOs of ACIC and AUSTRAC, the Director-General of Security (the head of ASIO), and any other person employed by the Commonwealth who is authorised by the Prime Minister under an instrument made in writing. Clause 22 is equivalent to subsection 5(2) of the ONA Act.

[85].              ‘National assessment’ is not defined in the ONA Act or the ONI Bill. When he announced the Government would establish ONA, the then Prime Minister, Malcolm Fraser, stated:

              The Office shall be concerned with national assessments- 'national' meaning a matter affecting the responsibility of more than one Minister, department or authority, or being of a level of importance warranting Cabinet reference, or being of importance to basic Government policy, or having major implications for the basic premises of departmental policy or programs.
M Fraser, ‘Ministerial speech: intelligence and security arrangements’, House of Representatives, Debates, 5 May 1977, pp. 1630–1633.

[86].              The National Assessments Board will be continued in existence by Division 1 of Part 5 of the ONI Bill. Its functions will be to consider which assessments made by ONI are national assessments and to consider national assessments. Subclause 16(2) will require the DNI to inform the Prime Minister if there is disagreement between the DNI and the National Assessments Board about whether an assessment made by ONI should be a national assessment and the DNI decides that it is not, and of the matters on which there is disagreement.

[87].              IS Act, section 12A; ASIO Act, section 20; Explanatory Memorandum, ONI Bill, p. 26.

[88].              2017 Review, op. cit., p. 58.

[89].              ASIO Act, section 21; IS Act, sections 19 and 27D.

[90].              Explanatory Memorandum, ONI Bill, p. 26.

[91].              Ibid., p. 27.

[92].              2017 Review, op. cit., pp. 67, 77.

[93].              Subclauses 20(2) and 21(2).

[94].              2017 Review, op. cit., p. 58.

[95].              Clauses 24 and 25; Acts Interpretation Act 1901, section 33AA.

[96].              Clause 31.

[97].              Under subsection 23(2) of the IS Act, the Governor-General must terminate the appointment of the Director-General of ASIS for any of the reasons the Governor-General may terminate the employment of the DNI under subclause 31(2); under section 27H of the IS Act, the Governor-General must terminate the appointment of the Director-General of ASD for equivalent reasons the Governor-General may terminate the employment of the DNI under subclauses 31(2)(a)–(c); under subsection 13(2) of the ASIO Act, the Governor-General must terminate the appointment of the Director-General of Security for the reasons the Governor-General may terminate the employment of the DNI under subclauses 31(2)(a)–(b).

[98].              Under paragraphs 15(2)(a) and (c) of the ONA Act, the Governor-General must terminate the appointment of the Director-General of ONA for the reasons the Governor-General may terminate the employment of the DNI under subclauses 31(2)(a)–(b).

[99].              ONA Act, section 17.

[100].              Subclause 33(3).

[101].              Explanatory Memorandum, ONI Bill, p. 31.

[102].              Commonwealth authority is defined in subclause 4(1). It includes an agency, department, body corporate in which the Commonwealth (or another Commonwealth authority) has a controlling interest and a body established or continued in existence by or under a Commonwealth law.

[103].              Immigration and Border Protection information is defined in subsection 4(1) of the ABF Act.

[104].              ACC information is defined in subsection 4(1) of the ACC Act to mean information that is in the agency’s possession.

[105].              The offences in sections 40A (Communication of certain information—ONA), 40J (Unauthorised dealing with records—ONA) and 40K (Unauthorised recording of information or matter—ONA) of the IS Act will be replaced by the offences in clause 42, subclause 44(1) and subclause 44(2) respectively. The same maximum penalties and exceptions will apply, and the same provisions relating to extended geographical jurisdiction, alternative verdicts and institution of proceedings.

[106].              LCA, Submission to PJCIS, op. cit., p. 3.

[107].              Ibid.

[108].              Ibid., p. 3.

[109].              Criminal Code, Division 122, to be inserted by Schedule 2 to the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018.

[110].              Criminal Code, section 122.5.

[111].              PM&C and ONA, Submission to PJCIS, op. cit., pp. 3, 10.

[112].              LCA, Submission to PJCIS, op. cit., p. 3.

[113].              PJCIS, Advisory report on the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, op. cit., p. 151. See further J Tomaras, O Griffiths, D Markham and C Petrie, National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, Bills digest, 134, 2017–18, Parliamentary Library, Canberra, 28 June 2018, pp. 103–105.

[114].              National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018, item 6 (which will insert Part 5.6 into the Criminal Code). This amendment was part of Schedule 2 of the Act, which will commence on proclamation or 30 December 2018, whichever occurs first. Security or defence of Australia will include ‘the operations, capabilities or technologies of, or methods or sources used by, domestic intelligence agencies or foreign intelligence agencies’.

[115].              This description of the offence takes into account the application of ‘default’ fault elements to physical elements of the offence in accordance with section 5.6 of the Criminal Code Act 1995 (Criminal Code).

[116].              Subclause 4(1); National Security Information (Criminal and Civil Proceedings) Act 2004, section 8.

[117].              Subclauses 43(2) and (3). There is also 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 does not bear an evidential burden for that exception: clause 46.

[118].              Criminal Code, section 13.3.

[119].              PM&C and ONA, Submission to PJCIS, op. cit., p. 10.

[120].              2017 Review, op. cit., p. 68.

[121].              As noted earlier in this Digest, if there is disagreement between the DNI and the National Assessments Board about whether an assessment made by ONI should be a national assessment, the DNI must decide whether an assessment is a national assessment: see clause 16.

[122].              Clause 48.

[123].              2017 Review, op. cit., pp. 59, 68, 80–1.

[124].              Subclause 53(2).

[125].              Subclauses 53(3) and (4).

[126].              Subclause 53(8).

[127].              IGIS, Submission to PJCIS, op. cit., p. 4.

[128].              The purposes are set out in paragraph 15KB(2)(a) of the Crimes Act, and include ‘the exercise of powers and performance of functions of an intelligence agency’.

[129].              Crimes Act, section 15KA. Intelligence agency and law enforcement agency are defined in section 15K of the Crimes Act.

[130].              Explanatory Memorandum, CTP Bill, p. 12.

[131].              Items 34–41 of Schedule 2, amending sections 15KG, 15KH, 15KI and 15KX of the Crimes Act.

[132].              Items 36 and 37 of Schedule 2, amending section 15KI and items 38–41, amending section 15KX of the Crimes Act.

[133].              Items 26–31 of Schedule 2, amending section 15K of the Crimes Act.

[134].              Item 32 of Schedule 2.

[135].              IGIS, Submission to PJCIS, op. cit., pp. 4–5.