Bills Digest No. 67,
2017–18
PDF version [623KB]
Cat Barker
Foreign Affairs, Defence and Security Section
31 January 2018
This is a revised version of the Digest published
on 25 January 2018.
Contents
Purpose of the Bill
Background
Home Affairs portfolio
Changes to the Attorney-General’s portfolio
How the changes have/will be made
Committee consideration
Parliamentary Joint Committee on
Intelligence and Security
Scrutiny committees
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
What is not in the Bill—ASIO warrants
AUSTRAC information
Independent National Security
Legislation Monitor
Inspector-General of Intelligence and
Security
Amendments to the IS Act
Security-related ministerial
authorisations
Referrals to the Parliamentary Joint
Committee on Intelligence and Security
Concluding comments
Date introduced: 7 December 2017
House: House of Representatives
Portfolio: Prime Minister and Cabinet
Commencement: Sections 1–3 on Royal Assent. Schedule 1 on Proclamation or six months after Royal Assent, whichever occurs first.
Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, 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 January 2018.
Purpose of
the Bill
The purpose of the Home Affairs and Integrity Agencies
Legislation Amendment Bill 2017 (the Bill) is to amend several Acts to reflect
the establishment of a new Home Affairs portfolio and related changes to the
Attorney-General’s portfolio. Specifically, the Bill will amend:
The Bill will not amend the Australian Security
Intelligence Organisation Act 1979.
Background
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.[1]
Australian governments had previously considered but rejected the establishment
of something similar to the US Department of Homeland Security or the UK Home
Office on several occasions since the early 2000s.[2]
The new portfolio will be ‘modelled loosely’ on the UK’s arrangements,
comprising a central department responsible for policy and strategic planning
and several agencies that will retain their statutory independence.[3]
Home
Affairs portfolio
The Home Affairs portfolio will comprise the:
- Department
of Home Affairs (made up of the Department of Immigration and Border Protection
(DIBP) and former parts of the Attorney-General’s Department, Department of the
Prime Minister and Cabinet, Department of Social Services and the Department of
Infrastructure and Regional Development)
- Australian
Border Force (which, while part of the DIBP, will remain ‘operationally
independent’ under the ABF Commissioner)
- ASIO
- Australian
Federal Police (AFP)
- Australian
Criminal Intelligence Commission (ACIC) and
- AUSTRAC.[4]
The AFP, ACIC and AUSTRAC were transferred to the Home
Affairs portfolio in December 2017, and ASIO will be transferred in 2018,
subject to the passage of the Bill.[5]
The Government expects the portfolio to be fully established by July 2018.[6]
The Department of Home Affairs, established in
December 2017, will incorporate the following functions in addition to
those previously undertaken by the DIBP:
-
National security and law enforcement policy
-
Emergency management, including crisis management and disaster
recovery
-
Countering terrorism policy and coordination
-
Cyber security policy and coordination
-
Countering foreign interference
-
Critical infrastructure protection
- Multicultural affairs
-
Countering violent extremism programs
-
Transport Security.[7]
Changes to
the Attorney-General’s portfolio
When it announced the establishment of the Home Affairs
portfolio, the Government also announced that to complement the changes that
would entail, it would ‘strengthen the Attorney-General’s oversight of
Australia’s intelligence community and the agencies in the Home Affairs portfolio’.[8]
While the operational law enforcement and security agencies will become part of
the Home Affairs portfolio, the Prime Minister stated that the Attorney-General
will ‘retain responsibility for the administration of the criminal justice
system, including formal international crime cooperation mechanisms’ and will
‘continue to sign off on all ASIO warrants’.[9]
This division of responsibility (except for the transfer of ASIO to the Home
Affairs portfolio) is reflected in December 2017 amendments to the September 2016
Administrative Arrangements Order.[10]
The Attorney-General’s portfolio will be expanded to
include the IGIS, the INSLM and the Commonwealth Ombudsman.[11]
It will also retain the Australian Commission for Law Enforcement Integrity
(ACLEI).[12]
How the
changes have/will be made
Most of the changes associated with the new portfolio
arrangements can be achieved without legislative amendments. This is because
most of the agencies concerned, including ASIO, AFP, ACIC, AUSTRAC and the
Ombudsman, operate under legislation that refers simply to ‘the Minister’ when
referring to the minister responsible for the agency, which, under the Acts
Interpretation Act 1901 is taken to mean ‘the Minister, or any of the
Ministers, administering the provision on the relevant day, in relation to the
relevant matter’.[13]
That Act further provides that in determining which minister or ministers are
referred to, instruments including an Administrative Arrangements Order in
force on the relevant day may be taken into account.[14]
The Administrative Arrangements Order is made by the Governor-General and
specifies matters and legislation dealt with by particular ministers and
departments.[15]
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. Submissions are due
by 22 January 2018 and the Committee intends to report by
February 2018. Details of the inquiry are at the inquiry
homepage.
Scrutiny
committees
Neither the Senate Standing Committee for the Scrutiny of
Bills nor the Parliamentary Joint Committee on Human Rights had reported on the
Bill as at the date of publication of this Digest. The Bill was introduced
after the final meetings of those committees for 2017. The committees are each
due to table their next reports in the week commencing
5 February 2018.
Policy
position of non-government parties/independents
When the Government announced the establishment of the new
Home Affairs portfolio in July 2017, the Australian Labor Party questioned
the need for the proposed changes and raised concerns that making changes to
arrangements that were generally functioning well could be detrimental to
national security.[16]
However, it stated that it would not oppose the changes if the Government could
make the case that they would in fact increase the safety of Australians.[17]
The Labor Party did not appear to have made public its final position on the
Bill as at the date of publication of this Digest.
When the new portfolio was announced in July 2017,
the Australian Greens stated that the proposed changes ‘would move Australia closer
to becoming a police state’, and expressed concern that they would reduce
accountability for significant powers.[18]
Other non-government parties and independents did not
appear to have publicly stated their positions on the Bill or the new portfolio
as at the date of publication of this Digest.
Position of
major interest groups
In its submission to the PJCIS’s inquiry into the Bill,
the IGIS objected to the proposed amendments to give the minister responsible
for IGIS the power to direct the IGIS to undertake certain inquiries.[19]
See further the ‘Key issues and provisions’ section of this Digest.
The Law Council of Australia stated in its submission to
the PJCIS’s inquiry that it would prefer explicit references in the IGIS Act
and the INSLM Act to the Attorney-General instead of ‘the Minister’, so
that responsibility for those offices cannot be reassigned to another minister
through administrative arrangements alone.[20]
This issue is outlined in further detail under ‘Key issues and provisions’
below.
When the new portfolio was announced in July 2017, the
Community and Public Sector Union expressed concern that its establishment
‘could compromise critical immigration and settlement functions, with no
guarantees it will improve Australia’s security’ and about potential job losses.[21]
The CPSU’s concerns are more relevant to aspects of the new portfolio that will
not require legislation, such as the merging of staff and functions from other
departments into the new Department of Home Affairs and the employment
conditions of transferred staff.[22]
Financial
implications
The Explanatory Memorandum states that the Bill does not
have a financial impact.[23]
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
Bill’s 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 Bill is compatible.[24]
As noted above, the Parliamentary Joint Committee for
Human Rights had not commented on the Bill at the date of publication of this
Digest.
Key issues
and provisions
What is not
in the Bill—ASIO warrants
The Government’s July 2017 announcement stated that the
Attorney-General ‘will continue to be the issuer of warrants under the ASIO
Act, and Ministerial Authorisations under the Intelligence Services Act’.[25]
In his second reading speech for the Bill, the Prime Minister stated that the
Attorney-General ‘will continue to sign off on all ASIO warrants’.[26]
However, the Bill does not contain amendments to the Australian Security
Intelligence Organisation Act 1979 to explicitly give the
Attorney-General those powers.
Under the ASIO Act, it is ‘the Minister’ who makes
the various warrants and authorisations available under the Act, including
search warrants, computer access warrants, surveillance device warrants,
identified person warrants, foreign intelligence warrants, and authorities to
conduct special intelligence operations, and who consents to applications being
made for questioning and questioning and detention warrants in relation to
terrorism.[27]
‘Minister’ is not defined in the ASIO Act, but section 19 of the Acts
Interpretation Act 1901 provides that such references are taken to mean ‘the
Minister, or any of the Ministers, administering the provision on the relevant
day, in relation to the relevant matter’.[28]
The Government may be intending that the Attorney-General be
the minister for the purposes of those provisions. However, if it is intended
that the Attorney-General will continue to be responsible for making those
warrants and authorisations, it would be clearer to amend the ASIO Act
to specifically refer to the Attorney-General, in the same way as parts of the Telecommunications
(Interception and Access) Act 1979 (TIA Act).[29]
While the operation of the Acts Interpretation Act might mean that a
reference to the Attorney-General could still be taken to mean the minister
administering the provisions on a relevant day, such amendments would provide a
clearer expression of the intended divisions of responsibility.[30]
The absence of such amendments is conspicuous given the proposed amendments to
the IS Act in the Bill, which seek to clarify the division of
responsibilities between the Minister for Home Affairs and the
Attorney-General.
AUSTRAC
information
Section 128 of the AML/CTF Act sets out when AUSTRAC
information may be passed on by an official of a designated
agency.[31]
Item 1 of Schedule 1 will amend subsection 128(13) of the
AML/CTF Act so that ASIO officials may disclose AUSTRAC information to
the Attorney-General if the disclosure is for the purposes of, or in connection
with, ‘security’ within the meaning of the ASIO Act or the performance
of the Attorney-General’s functions under the ASIO Act or the TIA
Act.
Items 2 and 3 will amend
subsections 128(13B) and (13C) respectively so that officials of defence
intelligence organisations and the Office of National Assessments may disclose
AUSTRAC information to the Attorney-General if the disclosure is for the
purposes of, or in connection with, the Attorney-General’s functions under the TIA Act.
These amendments reflect responsibilities imposed
specifically on the Attorney-General under the TIA Act and
responsibilities imposed on ‘the Minister’ under the ASIO Act that the
Government has stated will remain with the Attorney-General despite the responsibility
for administration of those Acts transferring to the Minister for Home Affairs.[32]
Independent
National Security Legislation Monitor
The INSLM is responsible for reviewing on his or her own
initiative the operation, effectiveness and implications of Australia’s
counter-terrorism and national security legislation and related laws on an
ongoing basis. The INSLM is also required to conduct statutory reviews of
certain legislation and report on any matter relating to counter-terrorism or
national security referred by the Prime Minister.[33]
The INSLM is an independent officer appointed by the Governor-General and will
remain so under the Bill.[34]
The INSLM has been part of the Prime Minister and Cabinet
portfolio since the office was established in 2010, and the Prime Minister is currently
the only minister who may refer a matter to the INSLM.[35]
The INSLM Act also requires the INSLM to report annually to the Prime
Minister.[36]
In accordance with the proposed transfer of the INSLM to
the Attorney-General’s portfolio, items 4 to 27 of Schedule 1 will
amend the INSLM Act to reflect that the INSLM will now report to a
minister other than the Prime Minister. This will include:
- enabling
either the Prime Minister or ‘the Minister’ to refer a matter to the INSLM (items 4
and 5)
- requiring
the INSLM to report annually to ‘the Minister’ (item 17) and
- requiring
reports on matters referred by the Prime Minister or the minister to be
provided to the referring minister and allowing such reports to be provided to
the other minister where the INSLM considers this to be appropriate (items
18 to 26).
Parliament may wish to consider additional legislative
amendments to instead refer explicitly to the Attorney-General, in the same way
as parts of the TIA Act.
Items 8, 10, 13 and 16
are savings provisions that will ensure that administrative arrangements in
place at the time the amendments commence (such as leave and acting
arrangements) can continue unchanged after the amendments commence.
Inspector-General
of Intelligence and Security
The IGIS is responsible for reviewing the activities of
the six intelligence agencies that currently comprise the Australian
Intelligence Community to ensure that the agencies act legally and with
propriety, comply with ministerial guidelines and directives and accord with
human rights.[37]
The agencies overseen by the IGIS are ASIO, the Australian Secret Intelligence
Service (ASIS), the Australian Signals Directorate (ASD), the Australian
Geospatial-Intelligence Organisation (AGO), the Defence Intelligence
Organisation (DIO) and the Office of National Assessments (ONA). The IGIS is an
independent officer appointed by the Governor-General and will remain so under
the Bill.[38]
The IGIS has been part of the Prime Minister and Cabinet
portfolio since the office was established in 1986. Under the IGIS Act,
the IGIS may conduct an inquiry into a matter relating to an intelligence
agency at the request of the minister responsible for the agency or on the
IGIS’s own motion, and must conduct an inquiry into a matter relating to an
intelligence agency or an intelligence or security matter relating to a
Commonwealth agency at the Prime Minister’s request.[39]
In accordance with the proposed transfer of the IGIS to
the Attorney-General’s portfolio, items 28 to 61 of Schedule 1
will amend the IGIS Act to reflect that the IGIS will now report to a
minister other than the Prime Minister. This will include:
- enabling
‘the Minister’ (in addition to the ministers responsible for each agency) to
request that the IGIS undertake an inquiry into an intelligence agency under
section 8 of the IGIS Act (item 34)
- enabling
the ‘the Minister’ (in addition to the Prime Minister) to request an inquiry
into a matter relating to an intelligence agency or an intelligence or security
matter relating to a Commonwealth agency, and requiring the IGIS to comply with
such a request (under section 9, item 35)
- allowing
the IGIS to consult ‘the Minister’ (instead or as well as the Prime Minister)
on any matter relevant to an inquiry the IGIS is conducting (section 17, item 38)
- requiring
the IGIS to provide copies of its final reports to ‘the Minister’ (proposed
subsections 22(5) and (6) inserted by item 40;
section 24 as amended by items 42 to 44; section 24A as
amended by items 46 to 48)
- requiring
‘the Minister’ (instead of the Prime Minister) to table the IGIS’s annual
reports in Parliament, with any necessary modifications to remove sensitive
information (section 35 as amended by items 60 and 61).
The IGIS has objected to the proposed amendments to
section 9 in item 35 on the grounds that it would compromise
the independence of the office and could give rise to a perceived conflict of
interest:
Amendments to s 9 proposed in the Home Affairs Bill have the
effect of giving the Attorney-General the same power to compel the
Inspector-General to undertake an inquiry as the Prime Minister. Doubling the
number of ministers with this power is, in itself, a significant incursion into
the independence of the Inspector-General. Nevertheless, given the Prime
Minister’s position of overall responsibility for the National Intelligence
Community it is not inappropriate that this power should be retained. In the
case of the Attorney-General this consideration does not apply; moreover the
Attorney’s position as the minister responsible for authorising warrants
requested by ASIO is likely to give rise to a perceived conflict of interest.
For instance, could a direction to undertake a particular inquiry be seen to
divert the resources of this office from a review of ASIO warrants?
The power of the Attorney-General to compel an inquiry would
materially detract from the Inspector-General’s ability to assure the public,
as well as Parliament, that the decision to conduct an inquiry is free from
political influence.[40]
The IGIS urged that those amendments be rejected. It might
be preferable to retain item 35 so that the Attorney-General is
given the power to request an inquiry under section 9 of the IGIS
Act (which enables inquiries to be requested on additional matters to those
covered under section 8), but also amend subsections 9(2) and (4) so
that the IGIS is only required to comply with a request made under
subsection 9(1) or (3) that was made by the Prime Minister.
Parliament may wish to consider additional legislative
amendments to instead refer explicitly to the Attorney-General, in the same way
as parts of the TIA Act.
Amendments
to the IS Act
Security-related
ministerial authorisations
The IS Act contains specific authorisation
requirements relating to the production of intelligence on Australian persons
and activities that will, or are likely to, have a direct effect on Australian
persons. Section 8 requires the ministers responsible for ASIS, AGO and
ASD to each issue written directions to the heads of those agencies that
require the agency to obtain a ministerial authorisation under section 9
before undertaking those activities.[41]
All authorisations made under section 9 require the relevant minister to
be satisfied of a number of matters as set out in subsection 9(1).
Subsection 9(1A) sets out additional requirements that must be met before
a minister authorises certain activities that would include production of
intelligence on an Australian person or one or more members of a class of
Australian persons, or that would, or would be likely to, have a direct effect
on an Australian person or one or more members of a class of Australian persons.
Paragraph 9(1A)(b) currently requires the minister
responsible to obtain the agreement of the minister responsible for ASIO before
authorising such activities if the Australian person or class of Australian
persons is, or is likely to be, a ‘threat to security’ (where security has the
same meaning as in the ASIO Act).
As part of the establishment of the Home Affairs
portfolio, responsibility for administering the ASIO Act will be
transferred from the Attorney-General to the Minister for Home Affairs.[42]
Items 62 to 66 will amend section 9 of the IS Act so
that despite that change, ministerial authorisations currently requiring the
agreement of the minister responsible for administering the ASIO Act
will (subject to section 9C) continue to require the Attorney-General’s agreement.
Items 70 to 75 will make consequential amendments to
section 9C of the IS Act (which currently provides for authorisations
that require the agreement of the minister responsible for administering the ASIO
Act to be given without such agreement in certain circumstances).
Section 9A of the IS Act allows most
ministerial authorisations to be given to ASIS, ASD and AGO by the Prime
Minister, Defence Minister, Foreign Minister or Attorney-General if an
emergency situation arises and the minister with responsibility for the agency
is not readily available or contactable to consider making the usual
authorisation under section 9. The Attorney-General will continue to be able
to make an emergency authorisation, but because the Attorney-General will no
longer be the minister responsible for ASIO, item 68 will amend
subsection 9A(3) to add the minister responsible for administering the ASIO Act
to the list of ministers able to make emergency authorisations.
Section 13B of the IS Act provides for ASIS to
undertake an activity or series of activities to support ASIO in the
performance of its functions if certain conditions are met. Section 13G
allows the ministers responsible for ASIO and ASIS to jointly make written
guidelines in relation to undertaking activities in accordance with
section 13B. Item 76 will insert proposed
subsection 13G(1A) to require the ministers responsible for ASIO and
ASIS to consult the Attorney-General before making guidelines under
section 13G.
Referrals
to the Parliamentary Joint Committee on Intelligence and Security
Part 4 of the IS Act establishes and sets out
the functions of the Parliamentary Joint Committee on Intelligence and
Security. Under section 29, one of the Committee’s functions is to review
any matter in relation to an intelligence agency referred to it by the minister
responsible for an agency or a House of Parliament. Subsection 29(2)
allows the Committee to request that a minister responsible for an agency refer
a particular matter. Items 77 to 79 will amend section 29
so that the Committee may review a matter in relation to an intelligence agency
referred to it by the Attorney-General, and allow it to request such a
referral.
Concluding comments
To offset the concentration of power associated with bringing
together federal border protection, law enforcement and domestic security
agencies in a new Home Affairs portfolio, the Government has proposed to
strengthen the Attorney-General’s integrity function. Specifically, it is
intended that the Attorney-General will continue to issue ASIO warrants and
provide agreement for ASIS, ASD and AGO activities impacting Australians, and
the IGIS, INSLM and Commonwealth Ombudsman will be moved from the Prime
Minister and Cabinet portfolio to the Attorney-General’s portfolio. Parliament
may wish to consider whether it would be preferable to give the enhanced
integrity functions of the Attorney-General statutory footing by referring
specifically to the Attorney-General in the ASIO Act, INSLM Act, IGIS
Act, Ombudsman Act 1976 and the Law Enforcement Integrity
Commissioner Act 2006.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. M
Turnbull (Prime Minister), G Brandis (Attorney-General), P Dutton (Minister for
Immigration and Border Protection) and M Keenan (Minister for Justice), A
strong and secure Australia, joint media release,
18 July 2017; M Turnbull (Prime Minister), G Brandis
(Attorney-General), P Dutton (Minister for Immigration and Border
Protection) and M Keenan (Minister for Justice), Transcript
of press conference: National security reform announcement, media
release, 18 July 2017.
[2]. N
Brew, A
quick guide to the history of proposals for an Australian department of
homeland security, Research paper series, 2017–18, Parliamentary
Library, Canberra, 14 July 2017.
[3]. M
Turnbull, ‘Second
reading speech: Home Affairs and Integrity Agencies Legislation Amendment Bill
2017’, House of Representatives, Debates, 7 December 2017,
p. 13151. See further C Barker and S Fallon, What
we know so far about the new Home Affairs portfolio: a quick guide, Research
paper series, 2017–18, Parliamentary Library, Canberra,
7 August 2017.
[4]. M
Turnbull, ibid.; P Dutton (Minister for Home Affairs), A
new era for national security, media release,
20 December 2017; Senate Legal and Constitutional Affairs Legislation
Committee, Official
committee Hansard, 23 October 2017, pp. 4–6;. The Australian Border
Force Act 2015 establishes and provides for the appointment of the ABF
Commissioner.
[5]. M
Turnbull (Prime Minister) and P Dutton (Minister for Immigration and
Border Protection), A
stronger, safer and secure Australia, joint media release,
7 December 2017; Department of Home Affairs, ‘Update
on machinery of government changes’, Department of Home Affairs website,
20 December 2017. Legislation under which the AFP, ACIC, AUSTRAC and
ASIO operate refers simply to ‘the Minister’ when referring to the minister
responsible for the agency, meaning responsibility for those agencies can be
transferred from one minister to another without legislative amendments. See
further under the ‘How the changes have/will be made’ section of this Digest.
[6]. Department
of Home Affairs, ‘Update
on machinery of government changes’, op. cit. For further detail, see:
Department of the Prime Minister and Cabinet, Department of Home Affairs and
the Attorney-General’s Department, Submission
to Parliamentary Joint Committee on Intelligence and Security, Inquiry into
the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017,
18 January 2018, [submission No. 3].
[7]. Department
of Home Affairs, ‘Update
on machinery of government changes’, op. cit. See further Administrative
Arrangements Order, 20 December 2017.
[8]. M
Turnbull et al, A
strong and secure Australia, op. cit., p. 2.
[9]. M
Turnbull, ‘Second
reading speech: Home Affairs and Integrity Agencies Legislation Amendment Bill
2017’, op. cit. See also Turnbull and Dutton, A
stronger, safer and secure Australia, op. cit., and D Wroe, ‘Dutton
flags espionage focus’, The Sydney Morning Herald,
21 December 2017, p. 7.
[10]. The
September 2016 order and amendments made in October 2016, April 2017,
November 2017 and December 2017 are available from Department of the
Prime Minister and Cabinet (PM&C), ‘Administrative
Arrangements Order—amendment made 20 December 2017’, PM&C
website. The December 2017 amendments did not transfer responsibility for
administering the Australian Security Intelligence Organisation
Act 1979 from the Attorney-General to the Minister for Home Affairs.
Further amendments will be required to reflect the proposed split of
responsibilities relating to ASIO.
[11]. M
Turnbull, ‘Second
reading speech: Home Affairs and Integrity Agencies Legislation Amendment Bill
2017’, op. cit.
[12]. M
Turnbull et al, Transcript
of press conference: National security reform announcement,
op. cit.
[13]. Acts Interpretation
Act 1901, subsection 19(1) (table item 1). See: Australian Security
Intelligence Organisation Act 1979 (ASIO Act);
Australian
Federal Police Act 1979; Australian Crime
Commission Act 2002; Anti-Money-Laundering
and Counter-Terrorism Financing Act 2006; Ombudsman Act 1976.
[14]. Acts Interpretation
Act 1901, subsection 19(2).
[15]. Parliament
of Australia, ‘Administrative
Arrangements Orders, 1906+’, Australian Parliament website.
[16]. M
Dreyfus, Transcript
of interview with Fran Kelly, media release, 19 July 2017; M
Dreyfus, Transcript
of interview with Matt Wordsworth, media release,
2 August 2017.
[17]. Ibid;
B Shorten, Transcript
of doorstop interview, media release, 19 July 2017.
[18]. N
McKim, Dutton's
new department an attack on freedom, media release,
17 July 2017.
[19]. Inspector-General
of Intelligence and Security (IGIS), Submission
to Parliamentary Joint Committee on Intelligence and Security, Inquiry into
the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017,
18 January 2018, [submission No. 1].
[20]. Law
Council of Australia, Submission
to Parliamentary Joint Committee on Intelligence and Security, Inquiry into
the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017, 18 January 2018,
[submission No. 2].
[21]. Community
and Public Sector Union, Home
Affairs portfolio a threat to core immigration functions, media
release, 18 July 2017.
[22]. D Dingwall,
‘Trouble
on Home front’ The Canberra Times, 4 November 2017,
p. 1.
[23]. Explanatory
Memorandum, Home Affairs and Integrity Agencies Legislation Amendment Bill
2017, p. 3.
[24]. The
Statement of Compatibility with Human Rights can be found at page 4 of the Explanatory
Memorandum to the Bill.
[25]. Turnbull
et al, A
strong and secure Australia, op. cit.
[26]. M
Turnbull, ‘Second
reading speech: Home Affairs and Integrity Agencies Legislation Amendment Bill
2017’, House of Representatives, Debates, 7 December 2017,
pp. 13151–5.
[27]. ASIO
Act, see in particular sections 25 (search warrants), 25A (computer
access warrants), 26 (surveillance device warrants), 27 and 27AA (warrants to
inspect postal and delivery service articles), 27A (warrants to obtain foreign
intelligence in Australia), 27C (identified person warrants, under which the Minister
or the Director-General may then authorise certain powers in relation to a
particular person), 34D (consent to application for a questioning warrant in
relation to terrorism), 34F (consent to application for a questioning and
detention warrant in relation to terrorism) and 35C (special intelligence
operation authorities).
[28]. Acts Interpretation
Act 1901, subsection 19(1) (table item 1).
Subsection 19(2) provides that instruments including an Administrative
Arrangements Order in force on the relevant day may be used to work out which
minister or ministers are referred to under subsection 19(1).
[29]. Telecommunications
(Interception and Access) Act 1979 (TIA Act). Of most relevance,
Part 2–2 (warrants authorising ASIO to intercept telecommunications).
[30]. Under
item 3 of the table in subsection 19(3) of the Acts Interpretation
Act, if at the time a provision commenced or reference to a minister was
inserted, the minister referred to by title administered the provision, the
reference can be interpreted to mean ‘the Minister, or any of the Ministers,
identified by item 1’ (which applies if a provision refers simply to ‘the Minister’).
See further: Explanatory
Memorandum, Acts and Instruments (Framework Reform) Bill 2014, p. 89; A Lehane
and R Orr, ‘Amendments
to the Commonwealth Acts Interpretation Act’, AIAL Forum, 73,
July 2013, pp. 40–51:
Historically there have been and, occasionally,
even today there need to be, provisions which identify a particular Minister in
legislation, for example 'the Treasurer'. Clearly, the presumption is that
these functions will be exercised by the person who is appointed as the
specified Minister, that is, the Treasurer. Section 19A of the Acts
Interpretation Act [as it was at the time—the relevant provision is now
section 19] enables even these references to be read as references to the
Minister, or any one of the Ministers, responsible for administering the
provision or Act at the relevant time. [p. 45]
[31]. AUSTRAC
information and designated agency are defined in
section 5 of the AML/CTF Act.
[32]. Explanatory
Memorandum, p. 9. While the Explanatory Memorandum indicates that
responsibility for administering the TIA Act and the ASIO Act
will transfer to the Minister for Home Affairs, those changes were not
reflected in the December 2017 amendments to the Administrative Arrangements
Order. It appears that further changes will be made to the Administrative
Arrangements Order after the Bill is passed. The September 2016 order and
amendments made in October 2016, April 2017, November 2017 and
December 2017 are available from PM&C, ‘Administrative
Arrangements Order—amendment made 20 December 2017’, PM&C
website.
[33]. Independent
National Security Legislation Monitor Act 2010, section 6.
[34]. Ibid.,
section 11.
[35]. Ibid.,
sections 7 and 30.
[36]. Ibid.,
section 29.
[37]. Inspector-General
of Intelligence and Security Act 1986 (IGIS Act),
sections 4, 8, 8A, 9, 9AA and 9A.
[38]. Ibid.,
section 6.
[39]. Ibid.,
sections 8 and 9. Section 8 also allows the IGIS to inquire into
certain matters relating to ASIO, ASIS, AGO and ASD in response to a complaint.
[40]. IGIS,
Submission
to Parliamentary Joint Committee on Intelligence and Security, op. cit.,
p. 3.
[41]. Directions
issued under section 8 are not publicly available, but a copy must be
given to the IGIS as soon as practicable after they are given; IGIS Act, section 32B.
[42]. M
Turnbull, ‘Second
reading speech: Home Affairs and Integrity Agencies Legislation Amendment Bill
2017’, op. cit., p. 13151.
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