7 August 2017
PDF version [323KB]
Cat Barker
and Stephen Fallon
Foreign Affairs, Defence and
Security
On 18 July 2017, the Prime
Minister announced
that the Government would establish a Home Affairs portfolio that will bring
together Australia’s immigration, border protection, law enforcement and
domestic security agencies in a single portfolio. As outlined in the recent
Library paper, A
Quick Guide to the History of Proposals for an Australian Department of
Homeland Security, Australian governments of different persuasions have
considered the establishment of something like the US Department of Homeland
Security or the UK Home Office on several occasions since the early 2000s. The
Prime Minister stated
that the new Home Affairs portfolio will be more similar to the UK model, as
opposed to the US model—‘a federation, if you will, of border and security
agencies’, under which the various agencies would retain their statutory independence
(see
also the Minister for Immigration and Border Protection’s comments).
This quick guide outlines what the Government has said
about the creation of the new portfolio and some of the changes that will (or
might) be involved in establishing the portfolio, and provides links to some
responses and reactions to the announcement.
All hyperlinks in this quick guide are correct as at August 2017.
Ministerial arrangements
There are currently two ministers in the
Attorney-General’s portfolio (the Attorney-General and the Minister for Justice—who
is also the Minister Assisting the Prime Minister on Counter-Terrorism) and two
in the Immigration and Border Protection portfolio (the Minister for
Immigration and Border Protection and the Assistant Minister for Immigration
and Border Protection).
The Prime Minister stated
that the Minister for Home Affairs will be supported by two ministers, one
assisting on domestic security and another on immigration. He also stated that
the current Minister for Immigration and Border Protection, Peter Dutton, was
the ‘Minister-designate for Home Affairs’, and that Michael Keenan, currently
Minister for Justice, would continue as a security-focused minister (but within
the Home Affairs portfolio). Comments
made by the Minister for Immigration and Border Protection indicate that Alex
Hawke will also retain his role as a junior minister in the portfolio, with
responsibility for immigration.
Affected agencies and departments
The Home Affairs portfolio will comprise:
The OTS and the agencies above would be moved into the
Home Affairs portfolio in their entirety. However, it is possible that some of
the non-operational or administrative parts of the agencies (such as those
relating to corporate governance) could be subsumed into the Department of Home
Affairs instead of remaining parts of the agencies. The Prime Minister stated
that the establishment of the portfolio would ‘identify opportunities for
streamlining back office and other support functions’.
The Prime Minister also announced the movement of several
oversight agencies into the Attorney-General’s portfolio, namely the Inspector-General of Intelligence and Security
(IGIS), the Independent
National Security Legislation Monitor (INSLM) and the Commonwealth Ombudsman. In this sense,
the Australian arrangements will differ from the UK model, under which
equivalent agencies (such as the Intelligence Services Commissioner,
Interception of Communications Commissioner, Independent Reviewer of Terrorism
Legislation and HM Inspectorate of Constabulary) are part of the Home Office
portfolio.
The Minister for Justice is currently
responsible for five agencies within the Attorney-General’s portfolio. The
only one not mentioned in the Prime Minister’s press conference was the Australian Institute of Criminology (AIC). It
is unclear what the future arrangements for that agency will be. A Bill
that would merge the AIC into ACIC was reintroduced in September 2016
after having lapsed
when Parliament was prorogued in April 2016. As noted in the Bills
Digest, the Australian Labor Party has expressed reservations about the
merger, and it is opposed by the Australian Greens.
The Prime Minister’s announcement focused mainly on
changes affecting agencies, rather than departments.[1]
It appears that the new central department will be an expanded version of what
is currently the Department of Immigration and Border Protection (DIBP). The Attorney-General’s
Department (AGD) is currently responsible for policy, strategy and legislation
relating to national
security and criminal
justice, and for many of the affected agencies. It is therefore likely that
some parts of AGD will be moved to the new Department of Home Affairs. However,
it is unclear at this stage what the extent of those changes will be.
The Attorney-General will retain
responsibility for issuing warrants for ASIO’s use of powers (see further
below under ‘Accountability arrangements’), and continue
to administer the Criminal Code Act 1995
(which includes key Commonwealth offences such as those relating to terrorism,
human trafficking and slavery and drug trafficking) and the Crimes
Act 1914 (which, among other matters, provides the basis for most
of the AFP’s investigative powers). These factors make it more difficult to
determine how parts of AGD responsible for national security and criminal
justice policy and legislation might be split across the Attorney-General’s and
Home Affairs portfolios. It is also unclear where other parts of AGD, such as emergency
management and international
crime cooperation, will be placed. It would appear that some or all of the
staff working in the Criminal Justice Group and the National Security and
Emergency Management Groups
will be moved into the Department of Home Affairs.
The table below outlines
the existing arrangements for affected departments and agencies, and the
revised arrangements that will apply when the new portfolio is established,
based on the Prime Minister’s announcement and the above-mentioned assumptions
about departments. It is possible that there will be other changes identified
in the coming months.
Current department/agency |
Current portfolio (minister) |
Changes |
Revised portfolio (minister)[2] |
DIBP |
Immigration and Border Protection (Immigration and
Border Protection and Assistant Minister) |
Expanded into the Department of Home Affairs |
Home Affairs (Home Affairs and two junior ministers
(security; immigration)) |
AGD |
Attorney-General’s (Attorney-General; Minister for
Justice) |
Parts of the department will be moved to the Department
of Home Affairs |
Attorney-General’s (Attorney-General) |
Department of Infrastructure and Regional Development |
Infrastructure and Regional Development (Infrastructure
and Transport; Regional Development) |
Will lose the OTS |
As per current |
ABF |
Immigration and Border Protection (Immigration and
Border Protection) |
Unclear if there will be any change. While the ABF is
part of the DIBP, the ABF Commissioner already reports
directly to the minister on operational matters. |
Home Affairs (Home Affairs) |
ASIO |
Attorney-General’s (Attorney-General) |
Will move portfolios but retain statutory independence |
Home Affairs (Home Affairs, but warrants/authorisations
will remain with the Attorney-General—see further below under ‘Accountability
arrangements’) |
AFP |
Attorney-General’s (Minister for Justice) |
Will move portfolios but retain statutory independence |
Home Affairs (Home Affairs) |
ACIC |
Attorney-General’s (Minister for Justice) |
Will move portfolios but retain statutory independence |
Home Affairs (appears it will be the junior minister
responsible for security) |
AUSTRAC |
Attorney-General’s (Minister for Justice) |
Will move portfolios but retain statutory independence |
Home Affairs (appears it will be the junior minister
responsible for security) |
OTS |
Infrastructure and Regional Development (Infrastructure
and Transport) |
Will move from the Department of Infrastructure and
Regional Development to the Department of Home Affairs |
Home Affairs (appears it will be the junior minister
responsible for security) |
IGIS |
Prime Minister and Cabinet |
Will move portfolios but retain statutory independence |
Attorney-General’s (appears it will be the Attorney-General) |
INSLM |
Prime Minister and Cabinet |
Will move portfolios but retain statutory independence |
Attorney-General’s (appears it will be the Attorney-General) |
Ombudsman |
Prime Minister and Cabinet |
Will move portfolios but retain statutory independence |
Attorney-General’s (appears it will be the Attorney-General) |
Australian Commission for Law Enforcement Integrity
(ACLEI) |
Attorney-General’s (Minister for Justice) |
Appears it will remain in the same portfolio but report
to a different minister |
Attorney-General’s (appears it will be the
Attorney-General) |
Australian Institute for Criminology |
Attorney-General’s (Minister for Justice) |
Unclear |
Unclear. If it is merged into ACIC, it would fall under the
Home Affairs portfolio and would likely report to the junior minister
responsible for security. |
Accountability arrangements for
agencies being brought under Home Affairs
ASIO is currently overseen by the IGIS, which reviews the activities of all six
intelligence agencies that currently comprise the Australian Intelligence Community
for legality, propriety and compliance with human rights. No changes would be
required for the IGIS to continue performing that oversight role following the
establishment of a Home Affairs portfolio.
ACLEI has integrity
oversight of the DIBP (including the ABF), ACIC, the AFP, and AUSTRAC. The
Government may decide to extend ACLEI’s jurisdiction to include the whole of
the Department of Home Affairs (including the OTS) as part of implementing the
new portfolio. Legislative amendments would be required for any change to
ACLEI’s jurisdiction. This could be achieved by amending the Law Enforcement
Integrity Commissioner Act 2006 or the associated regulations.[3]
The Ombudsman is responsible for
overseeing the use of certain covert and intrusive powers by law
enforcement agencies, including the AFP, ACIC and the DIBP. It also oversees
the operation of the AFP’s professional
standards framework, including the handling of complaints about the conduct
of AFP appointees. No changes would be required in order for the Ombudsman to
continue performing these functions other than minor consequential amendments
if the ABF becomes a standalone agency.
The Senate
Standing Committees on Legal and Constitutional Affairs currently oversee
the Attorney-General’s and Immigration and Border Protection portfolios. As
most of the changes associated with establishing the Home Affairs portfolio
involve movement of agencies and functions from the Attorney-General’s
portfolio to what is currently the Immigration and Border Protection portfolio,
the committees’ role would remain substantially the same. If the allocation of
portfolios remains as it is currently, oversight of the IGIS, INSLM, and the
Ombudsman (currently overseen by the Senate
Standing Committees on Finance and Public Administration) and the OTS
(currently overseen by the Senate
Standing Committees on Rural and Regional Affairs and Transport) would be
added to their responsibilities. While House of Representatives standing
committees are organised slightly differently, the jurisdiction of the House
of Representatives Standing Committee on Social Policy and Legal Affairs
would be similarly affected.
The responsibilities of other relevant committees—specifically
the Parliamentary Joint Committees on the Australian
Commission for Law Enforcement Integrity, Law
Enforcement (which oversees the AFP and ACIC), and Intelligence and Security (which
oversees ASIO, several other intelligence agencies (see below) and the AFP’s
performance of its counter-terrorism functions)—are set by legislation and
based on agencies and functions, rather than portfolios. It would not be
necessary to amend their mandates to account for the establishment of the Home
Affairs portfolio. However, the creation of the new portfolio presents an
opportunity to consider the roles of these committees and whether any
adjustments might be desirable.
Changes recommended by the
Independent Intelligence Review
The Prime Minister released the 2017
Independent Intelligence Review on the same day that he announced the
establishment of a Home Affairs portfolio. The Review, completed by Michael
L’Estrange (Reviewer), Stephen Merchant (Reviewer) and Sir Iain Lobban
(Adviser), included several recommendations for changes to the oversight of
Australia’s intelligence agencies. If accepted and implemented, they would
affect agencies in the new Home Affairs portfolio. The Review recommended:
-
the IGIS and the Parliamentary Joint Committee on Intelligence
and Security (PJCIS), both of which currently oversee ASIO, the Australian
Secret Intelligence Service, the Australian Signals Directorate, the Australian
Geospatial-Intelligence Organisation, the Defence Intelligence Organisation and
the Office of National Assessments, also be given responsibility for
overseeing:
– AUSTRAC
(in its entirety) and
– the
intelligence functions of the AFP, ACIC and the DIBP
-
the PJCIS be given the ability to request that the IGIS conduct
an inquiry into the legality and propriety of particular operational activities
of any of the ten above-mentioned agencies and report to the PJCIS, the Prime
Minister and the responsible minister and
-
the PJCIS be given the ability to initiate its own inquiries into
the administration and expenditure of the ten above-mentioned agencies.
The functions of the IGIS and the PJCIS are set by statute.
Implementation of these recommendations would require amendments to the Inspector-General
of Intelligence and Security Act 1986 and the Intelligence
Services Act 2001.
Warrants and authorisations
Most of ASIO’s powers under the Australian Security
Intelligence Organisation Act 1979 and the Telecommunications
(Interceptions and Access) Act 1979 are exercised under warrants issued
by the Attorney-General.[4]
Under the Intelligence
Services Act 2001, the ministers responsible for the Australian Secret
Intelligence Service (the Minister for Foreign Affairs) and the Australian
Signals Directorate and Australian Geospatial-Intelligence Organisation (both
the Minister for Defence) must obtain the agreement of the minister responsible
for ASIO before authorising any activities that would affect, or would be
likely to affect, an Australian citizen or permanent resident. The Prime
Minister stated that the Attorney-General would continue to be the minister
issuing those warrants and giving such agreement (even though ASIO will report
to the Minister for Home Affairs).
Implementation
The Minister for Immigration and Border Protection has
been tasked
with overseeing the development of the governance structures, legislative
changes and operational planning necessary to establish the Home Affairs
portfolio in
cooperation with the Attorney-General, the Minister for Justice and the Department
of the Prime Minister and Cabinet (PM&C).
The Prime Minister asked the head of PM&C to establish
a taskforce to consider the recommendations of the 2017 Independent
Intelligence Review and manage the implementation of those that will be
adopted (the Prime Minister has already accepted some of the key
recommendations). The Prime Minister stated
that he had instructed the head of his department to:
... ensure that the arrangements to create the Home Affairs
portfolio are prepared with a unity of purpose and fully coordinated with
changes to the intelligence community. The taskforce will develop the necessary
governance, legislative and other changes to effect the Government’s
objectives. And it will ensure that the changes to the intelligence community,
and the establishment of a Home Affairs portfolio, are aligned.
He also stated that during the transition period, ‘our
operational agencies will continue to report to their current ministers,
pending the finalisation of new arrangements’.
Timing
The Prime Minister stated
that the National Security Committee of Cabinet would approve the ‘portfolio
implementation plan’ later this year, and that the transition was expected to
be completed by 30 June 2018.
Select responses and reactions
-
A Bergin and D Woolner, ‘Blank
canvas: creating a Home Affairs portfolio’, The Strategist, blog, 1 August
2017
-
J Blaxland, ‘The
new Department of Home Affairs is unnecessary and seems to be more about
politics than reform’, The Conversation, blog, 18 July 2017
-
J Carroll, ‘Clear
and present danger’, The Australian, 31 July 2017, p. 11
-
Community and Public Sector Union (CPSU), Home
Affairs portfolio a threat to core immigration functions, media
release, 19 July 2017
-
J Coyne, ‘Law
enforcement and the Home Affairs portfolio’, The Strategist, blog, 20 July
2017
-
A Dupont, ‘Home
Affairs change driven by manifest need’, The Interpreter, blog, 26 July
2017
-
A Garnier, ‘Australia’s
new “Home Office” is a worry for immigration policy’, The Conversation,
blog, 20 July 2017
-
P Gourley, ‘The
folly of the Home Affairs super ministry revamp’, The Canberra Times,
1 August 2017, p. 14
-
A Gyngell, ‘The
Australian Intelligence tradition’, The Interpreter, blog, 24 July 2017
-
G Hutchens, ‘Experts
split over merits of Peter Dutton’s national security super ministry’, The
Guardian, 18 July 2017
-
D Irvine, ‘Australian
intelligence reforms: “ain’t broke” can still be improved’, The Interpreter,
blog, 21 July 2017
-
P Jennings, ‘The good
and not so good of policymaking’, The Strategist, blog, 21 July 2017
-
J Kelly, ‘“Courage”
to repair a working system’, The Australian, 31 July 2017, p. 6
-
P Leahy, ‘Home
affairs department: security demands a fresh approach’, The Australian,
29 July 2017
-
G Sheridan, ‘Rushed
decision on home affairs could very quickly turn out to be a mistake’, The
Australian, 22 July 2017, p. 15
-
N Stuart, ‘Why
a bigger Home is not always better’, The Canberra Times, 26 July
2017, p. 17
-
L Tingle, ‘Immigration:
a subject so scary that Turnbull hid it’, Australian Financial Review,
21 July 2017, p. 39
-
C Williams, ‘National
security changes – Australian style’, The Interpreter, blog, 25 July 2017
-
R Woolcott, ‘Government
policies have made us less safe’, Pearls and Irritations, blog, 25 July
2017
-
M Wordsworth, ‘“There
are a number of questions of detail to answer”, says former Defence Secretary’,
PM, transcript, ABC Radio Canberra, Australian Broadcasting
Corporation (ABC), 18 July 2017
-
D Wroe and J Massola, ‘Supersized
security’, The Canberra Times, 18 July 2017, p. 1
[1].
All of the affected agencies are statutory agencies; that is, they have
specific functions set by legislation. Departments are established
by the Governor-General through Administrative
Arrangements Orders, and have responsibility for particular areas of policy
and administration of particular legislation.
[2].
The Prime Minister’s announcement explicitly stated that the ABF, AFP and
ASIO would report directly to the Minister for Home Affairs. This appears to
suggest the other agencies, which are all security-focused, will report to the
junior minister responsible for security.
[3].
The Act gives ACLEI oversight responsibilities for law enforcement
agencies. ‘Law enforcement agency’ is defined in subsection 5(1) to
include, as well as those specifically listed, any other Commonwealth government
agency that has a law enforcement function and is prescribed by regulations for
the purpose of that definition.
[4].
The Australian Security Intelligence Organisation Act 1979 refers to
‘the Minister’, which under section 19 of the Acts Interpretation
Act 1901 means ‘the Minister, or any of the Ministers, administering
the provision on the relevant day, in relation to the relevant matter’. The Telecommunications
(Interceptions and Access) Act 1979 refers specifically to the
Attorney-General.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia

Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
This work has been prepared to support the work of the Australian Parliament using information available at the time of production. The views expressed do not reflect an official position of the Parliamentary Library, nor do they constitute professional legal opinion.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Enquiry Point for referral.