28
June 2019
PDF version [273KB]
Cat Barker
Foreign Affairs, Defence and
Security Section
This quick guide provides summaries of,
and links to key resources on, Government Bills passed in the 44th and 45th
Parliaments that related to:
-
introducing or expanding counter-terrorism or national
security-related powers
- introducing or expanding terrorism or national security-related offences
- protecting critical infrastructure or
- the functions and powers of the six agencies comprising the
Australian Intelligence Community.[1]
It provides the same information for Government national
security Bills that lapsed when the 45th Parliament was prorogued, and which
may be re-introduced in the 46th Parliament.[2]
Government national security Bills passed in the 44th and 45th Parliaments
National Security Legislation Amendment Act (No. 1) 2014
Summary
The main purpose of the Act was to implement recommendations
made in chapter 4 of the PJCIS’s 2013 Report
of the Inquiry into Potential Reforms of Australia’s National Security
Legislation. Key changes included:
-
updating and expanding the Australian Security Intelligence
Organisation’s (ASIO) powers, including by introducing ‘identified person’
warrants and ‘special intelligence operations’
- updating and expanding the Australian Secret Intelligence
Service’s (ASIS) powers and
- updating existing offences and increasing penalties, and creating
new offences, in relation to the protection of intelligence-related
information.
Key references
Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014
Summary
The Act made extensive amendments to several existing Acts, as
part of the Government’s response to the increased threat of terrorism posed by
Australians engaging in, and returning from, conflicts in foreign states. It
also represented the Government’s response to recommendations in reports by the
Independent National Security Legislation Monitor (INSLM), and in the Council
of Australian Governments’ Review
of Counter Terrorism Legislation. Key changes included:
- extending the sunset date for a range of counter-terrorism powers
(control orders; preventative detention orders; ASIO questioning and detention
powers; and stop, search and seizure powers)
- expanding the grounds on which control orders can be made
- introducing new offences for advocating terrorism and entering
‘declared areas’
- introducing delayed notification search warrants for terrorism
offences carrying maximum penalties of seven years or more and
- allowing for cancellation of certain welfare or benefits for
individuals on security grounds.
Key references
Counter-Terrorism Legislation Amendment Act (No. 1) 2014
Summary
This Act expanded the purposes of the control order regime
and the grounds on which orders may be made; allows the PJCIS to review and
report on amendments to terrorist organisation regulations to add aliases or
remove former names of organisations; and expanded powers under the Intelligence
Services Act 2001 (IS Act) by:
-
amending ASIS’s functions to explicitly include providing
assistance to the Australian Defence Force (ADF) in support of military
operations and cooperation with the ADF on intelligence matters
- expanding provisions for emergency authorisations of ASIS,
Australian Signals Directorate (ASD) and Australian Geospatial-Intelligence
Organisation activities and
- allowing ministerial authorisations to be given for ASIS to
undertake activities in relation to one or more members of a class of
Australian persons in certain circumstances.
Key references
Telecommunications (Interception and Access) Amendment (Data Retention) Act
2015
Summary
The Act introduced a statutory obligation for telecommunications
and internet service providers to retain for two years types of telecommunications
data (metadata) prescribed in the Act and amended provisions governing
government agency access to metadata. Provisions added at the recommendation of
the PJCIS in its report
on the Bill introduced journalist information warrants for circumstances
where an agency seeks access to metadata for the purpose of identifying a
journalist’s source.
Key references
Australian Citizenship Amendment (Allegiance to Australia) Act 2015
Summary
The Act introduced two new security-related grounds on which
a dual citizen can lose their Australian citizenship—acting inconsistently with
the person’s allegiance to Australia by engaging in certain conduct; being
sentenced to at least six years imprisonment for certain offences and
ministerial satisfaction of certain issues—and expanded an existing ground (to
include fighting for or being in the service of a terrorist organisation
declared by the Minister).
Key references
Counter-Terrorism Legislation Amendment Act (No. 1) 2016
Summary
The Bill for this Act was first introduced in 2015, but
lapsed when Parliament was prorogued in April 2016. The 2016 version of the Bill
included amendments in response to the PJCIS’s report
on the 2015 Bill and two additional measures recommended by the INSLM.
The Act made amendments to several existing Acts based
on ‘recent counter-terrorism investigations and operational activity’. Key
changes included:
- further expanding the control order regime and related
provisions, including by:
- lowering
the minimum age at which a control order may be imposed from 16 to 14 years of
age
- introducing
new monitoring powers in relation to individuals subject to control orders and
- allowing
courts to consider in control order proceedings information that is not
disclosed to the person subject to the order or their representative for
security reasons (and, at the recommendation
of the INSLM, introducing special advocates to represent the interests of
those people in proceedings from which they and their legal representatives
have been excluded)
- updating offences for disclosure of information about ASIO
special intelligence operations (at the recommendation
of the INSLM) and
-
introducing a new offence of advocating genocide.
Key references
Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016
Summary
The Act introduced continuing detention orders. A Supreme
Court may make an order that a ‘terrorist offender’ continues to be imprisoned
for up to a further three years at a time, if satisfied:
-
to a high degree of probability, on the basis of admissible
evidence, that the offender poses an unacceptable risk of committing an offence
against Part 5.3 of the Criminal Code
Act 1995 (Criminal Code) that carries a maximum penalty of
seven years or more if released into the community at the end of a custodial
sentence (or an earlier order) and
-
that there is no less restrictive measure that would be effective
in preventing the unacceptable risk.
Key references
Telecommunications and Other Legislation Amendment Act 2017
Summary
The Act:
- introduced an obligation on
carriers, carriage service providers and carriage service intermediaries to do
their best to protect networks and facilities from unauthorised access and
interference
- introduced an obligation on
carriers and some carriage service providers to notify the Government of
planned changes to their networks and services that might compromise their
ability to comply with the security obligation and
- gives the Minister a new power to
direct a carrier, carriage service provider or carriage service intermediary to
take action that is reasonably necessary to protect a network or facility from
a national security risk.
Key references
Security of Critical Infrastructure Act 2018
Summary
The Security of Critical
Infrastructure Act:
- established a Register of Critical Infrastructure Assets that
will include information about who owns and operates those assets and which
must not be made public and
- allows the Minister to give a direction to a reporting entity or
an operator of a critical infrastructure asset to do, or refrain from doing, a
specified act or thing within a certain timeframe. The power may be used if the
Minister is satisfied that there is a risk that is prejudicial to security that
cannot otherwise be mitigated.
These measures apply initially to critical infrastructure
assets in the electricity, gas, water and ports sectors.
Key references
Intelligence Services Amendment (Establishment of the Australian Signals
Directorate) Act 2018
Summary
The Act:
- established the ASD as an independent statutory agency (reporting
directly to the Minister for Defence)
- included among ASD’s statutory functions the prevention and
disruption of cybercrime and protection of specialised technologies acquired in
connection with the performance of certain other functions and
-
provides legislative authority for the ASD to provide material,
advice and other assistance relating to cybersecurity to prescribed persons and
bodies (in addition to Commonwealth and state and territory government
authorities).
These measures were recommended by the 2017
Independent Intelligence Review.
Key references
National Security Legislation Amendment (Espionage and Foreign
Interference) Act 2018
Summary
The Act:
- updated Australian espionage offences and Commonwealth secrecy
offences and offences against government (including treason)
-
introduced new foreign interference, sabotage, and theft of trade
secrets offences
-
introduced a new aggravated offence of providing false and
misleading information in the context of a security clearance processes and
- allows telecommunications interception powers to be used to
investigate most of the offences updated or inserted by the Act.
The reforms followed a comprehensive
internal review of Australian laws relating to foreign interference
requested by the Prime Minister in 2017.
Key references
Counter-Terrorism Legislation Amendment Act (No. 1) 2018
Summary
The Act:
-
extended the provisions relating to control orders, preventative
detention orders and the declared area offence, and terrorism-related stop,
search and seizure powers, for a further three years
- extended the provisions relating to ASIO questioning warrants and
questioning and detention warrants for a further 12 months (they are now due to
sunset on 7 September 2019) and
- implemented the Government’s response to certain recommendations
made by the INSLM and the PJCIS in their most recent reviews of those
provisions.
Key references
Office of National Intelligence Act 2018
Summary
The Office of National Intelligence Act expanded the
Office of National Assessments into the Office of National Intelligence (ONI),
including establishing the functions and powers of the agency and the
Director-General of National Intelligence. This implemented a key
recommendation of the 2017
Independent Intelligence Review.
The Office of National Intelligence (Consequential and
Transitional Provisions) Act made amendments to a range of Acts
consequential to the repeal of the Office of National
Assessments Act 1977 and establishment of ONI, and more substantive
amendments to the Crimes
Act 1914 (allowing ONI staff to acquire and use assumed identities),
the Australian
Security Intelligence Organisation Act 1979 (enabling other
intelligence agencies to cooperate with and assist ONI to perform its
functions) and the Australian
Border Force Act 2015 and the Australian Crime
Commission Act 2002.
Key references
Defence Amendment (Call Out of the Australian Defence Force) Act 2018
Summary
The Act clarified and streamlined the processes under which
the ADF may be called out to protect Commonwealth interests and states and
self-governing territories from ‘domestic violence’. The changes were
introduced following an internal
Defence review of the ADF’s support to domestic counter-terrorism
arrangements undertaken after the Lindt café siege in Sydney.
Key references
Telecommunications and Other Legislation Amendment (Assistance and Access) Act
2018
Summary
The Act facilitates access to certain communications and
data by law enforcement and intelligence agencies for the purposes of disrupting
and investigating criminal activity and threats to national security, including
terrorism. Key changes included:
-
introducing a new industry assistance regime under which designated
communications providers may be requested or required to assist law enforcement
and intelligence agencies to decrypt certain communications
-
introducing computer access warrants for law enforcement agencies
- expanding search powers for police and Australian Border Force
officers and
-
provisions for voluntary assistance to ASIO accompanied by a
civil liability protection, and additional coercive powers for ASIO to require
assistance in relation to its execution of a warrant authorised under existing
provisions.
Key references
Intelligence Services Amendment Act 2018
Summary
The Act allows:
- the Minister for Foreign Affairs to specify additional persons
(or classes of persons) who may be protected by ASIS staff members and agents
outside Australia under Schedule 2 to the IS Act (which provides for
limited provision of weapons, and use of and training in the use of weapons and
self-defence techniques) and
- ASIS staff members and agents, to use force (including the use of
a weapon) outside Australia in certain circumstances, under approvals given by
the Minister for Foreign Affairs.
Key references
Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019
Summary
The Act introduced new offences for internet service
providers, content service providers and hosting services related to allowing
the sharing of ‘abhorrent violent material’ (including material that records or
streams engagement in a terrorist act). It also enables the eSafety
Commissioner to issue a notice to a content service provider or hosting service
notifying them that such material can be accessed by, or is hosted on, their
service.
The Act was introduced in the wake of the March 2019 terrorist
attack in Christchurch, New Zealand, which the attacker live-streamed
on Facebook. The video footage was then copied
and shared across social media platforms.
Key references[3]
Government national security Bills
that lapsed when the 45th Parliament was prorogued
Crimes Legislation Amendment
(Police Powers at Airports) Bill 2018
Summary
The Bill would amend the Crimes Act to:
- expand existing police powers to require identity information from
a person at a major airport
- introduce new move-on powers for police under which they may give
a written direction to a person at a major airport to not take a flight, or to leave
the airport premises as soon as possible
-
introduce new powers for police to give a direction to a person
at a major airport that the person stop or do anything else considered
necessary to facilitate the exercise of the identity information request or
move-on powers and
- allow the Minister to determine by legislative instrument that
certain airports are major airports for the purposes of exercising the powers
outlined above.
Key references
Australian Citizenship Amendment
(Strengthening the Citizenship Loss Provisions) Bill 2018
Summary
The Bill would amend section 35A of the Australian
Citizenship Act 2007 to:
- adjust the ‘statelessness threshold’ for the exercise of the
cessation power from the existing requirement that a person is a citizen or
national of another country, to a requirement that the Minister be satisfied the
person will not ‘become’ a person who is not a citizen or national of any
country
-
include additional offences for which conviction may lead to the
loss of a person’s Australian citizenship and
-
provide that Australian citizenship may be lost regardless of any
sentence imposed on conviction for some offences (currently, it may only be
lost where a person has been sentenced to at least six years imprisonment).
Key references
Counter-Terrorism (Temporary
Exclusion Orders) Bill 2019
Summary
The Bill would introduce two new orders, each of which could
be made by the Minister for Home Affairs:
- a temporary exclusion order, which may prevent an Australian
citizen aged 14 years or older who is overseas from returning to Australia for
up to two years at a time and
- a return permit, under which the Minister may impose conditions
on the person’s entry into Australia, including conditions with which the
person must comply for up to 12 months after re-entering the country.
Key references
Counter-Terrorism Legislation
Amendment Bill 2019
Summary
The Bill would amend:
- provisions in the Crimes Act relating to restrictions on
bail and parole, including introducing a presumption against bail and parole
for individuals who have demonstrated support for, or have links to, terrorist
activity and
- the continuing detention order regime in the Criminal Code
to expand eligibility for the scheme and amend information disclosure
obligations relating to applications for such orders.
Key reference[4]
Telecommunications and Other
Legislation Amendment (Miscellaneous Amendments) Bill 2019
Summary
The Bill would:
- amend the Independent
National Security Legislation Monitor Act 2010 to change the timeframe
in which the INSLM must review the operation, effectiveness and implications of
the Telecommunications and Other Legislation Amendment (Assistance and
Access) Act and
- amend the Telecommunications
Act 1997 and make a series of consequential amendments to facilitate
additional agencies to use the industry assistance powers in Part 15 of that
Act.
Key references[5]
[1].
The summaries of the Acts are, for the most part, based closely on the
descriptions of the Bills in the ‘Bills Digest at a glance’ or ‘Purpose of the
Bill’ sections of the relevant Bills digests, adapted as necessary to take
account of any amendments to the Bill during its passage through Parliament.
The Parliamentary Joint Committee on Intelligence and Security also considered
several Bills that did not necessarily fit neatly into the above parameters:
the Law
Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016,
the Criminal
Code Amendment (War Crimes) Bill 2016, the Home
Affairs and Integrity Agencies Legislation Amendment Bill 2018, and the Foreign
Influence Transparency Scheme Bill 2018.
[2].
The summaries of these Bills are taken, with minor adaptations, from the ‘Bills
Digest at a glance’ or ‘Purpose of the Bill’ sections of the relevant Bills
digests (except where none was published before the Bill lapsed).
[3].
The Bill for this Act was introduced and passed within two days. The Bill was
not referred to a committee for inquiry, and no Bills digest was published.
[4].
The Bill was referred
to the PJCIS, but a report on that inquiry was not published before the
Bill lapsed, nor was a Bills digest. A Bills digest will be published if
the Bill is re-introduced in the 46th Parliament.
[5].
The Bill was not referred to a committee for inquiry.
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