2.1
In contrast to a number of other Bills it has reviewed only 4 submissions from non-government sources were received by the Committee. These were from the Inspector General of Intelligence and Security, the Law Council, NSW Council on Civil Liberties and Civil Liberties Australia.
2.2
This chapter will deal with those schedules of the Bill on which substantive recommendations have been proposed. That is schedules 1-5, 8 and 9. It will contain a brief description of each schedule, the link between the schedule and the Independent Intelligence Review and/or the Comprehensive Review (CR), a setting out of the rationale provided by Home Affairs and other government agencies for the schedule, criticism (if any) of the schedules aims or drafting including any recommendations followed by any reply to this criticism by Home Affairs and other government agencies.
2.3
It is noted that, in addition to substantive recommendations, the Law Council offered comment on other schedules to the Bill. These were addressed by Home Affairs in their supplementary submission.
Schedule 1 – Emergency authorisations
2.4
Schedule 1 enables ASIS, ASD and AGO to immediately undertake activities to produce intelligence where there is, or is likely to be, an imminent risk to the safety of an Australian person.
2.5
Home Affairs state that:
In emergency circumstances, time is of the essence. The ministerial authorisation process, including the existing emergency authorisation provisions, can constitute a significant delay. Operational experience has demonstrated that the current emergency authorisation provisions in sections 9A and 9B do not support expeditious action by the relevant agencies where an Australian person’s life may depend on immediate action.
2.6
In describing the relationship of Schedule 1 to the Independent Intelligence Review (IIR) and the Comprehensive Review (CR) Home Affairs stated:
According to the Independent Intelligence Review, currently ‘the emergency authorisation provisions can be an unnecessary delay’ in situations that pose a threat to the safety of Australians. The Comprehensive Review agreed with the Independent Intelligence Review, noting that ‘hostage situations are readily distinguishable from the vast majority of emergency authorisations…, in that they are situations where it is reasonable to believe a person would consent to the IS Act agency producing intelligence on them’. The Comprehensive Review supported the Independent Intelligence Review recommendation to amend the IS Act to ‘permit IS Act agencies to act immediately and without a ministerial authorisation in situations where it is reasonable to believe that an Australian person consents to the IS Act agency producing intelligence on that person’. These amendments implement recommendation 52 in the Comprehensive Review, and recommendation 16(e) of the Independent Intelligence Review.
2.7
In relation to Schedule 1 the IGIS stated that is would ‘review any authorisations made under proposed section 9D, including determinations of whether a person would consent to the production of intelligence’ and
is also likely to consider any delegations made pursuant to proposed subsection 9D(14). This may include reviewing the reasons for delegation and whether the level of persons making decisions pursuant to delegations is appropriate.
2.8
The Law Council, while having no in-principle objection to the new authorisation ground and mechanism did raise the following five concerns:
There is no explicit, stand-alone requirement for an objective assessment of the significance of the risk, for the purpose of determining whether it is appropriate to proceed under section 9D, to the exclusion of obtaining an ordinary MA under section 9, or one of the other emergency authorisations in section 9A (Ministerial) or section 9B (agency head) which require an assessment that the relevant Minister or Ministers are not readily available or contactable
no explicit requirement that a section 9D authorisation can only be granted if the primary purpose of producing that intelligence is to assist the Australian person—that is, by seeking to remove or reduce the identified risk to their safety
concerned that if an Australian person engaged in activities which concern Australia’s security, international relations or economic well-being is also taken hostage or otherwise arbitrarily detained overseas, an agency may seek to produce intelligence on them for multiple purposes which could include, but also extend far beyond, assisting that person to escape a risk to their life or safety.
whether a single authorisation, issued by the agency head, should cover the entire period of up to six months, subject only to what is essentially a discretionary Ministerial power of ‘veto’ (being the exercise of the Minister’s cancellation power in proposed subsection 9D(10)
in the absence of explicit statutory authorisation requirements for the production of intelligence on Australian children, it appears possible that the section 9D authorisation mechanism could lawfully enable the production of intelligence on an Australian child, without Ministerial approval, in broader circumstances than may be possible in relation to an Australian adult.
that the power of delegation in proposed subsection 9D(14) is overly broad, to the extent it applies to the agency head’s power to issue authorisations under proposed subsection 9D(2).
2.9
The Law Council made five recommendations designed to address these concerns. The NSW Council for Civil Liberties’ recommendations in relation to Schedule 1 are similar to those made by the Law Council.
2.10
In relation to concerns around there being no stand-alone requirement for an objective assessment of the significance of the risk Home Affairs noted that it ‘is not possible to issue an authorisation without considering the nature and gravity of the risk’. In addition Home Affairs pointed out that making
the seriousness or significance of the risk part of the authorisation threshold, as distinct from a consideration, could prevent authorisations from being granted for risks that are imminent but which cannot be immediately quantified. Uncertainty over the significance of the risk could prevent the emergency authorisation from being used in the precise situations it is designed for.
2.11
In relation to the Law Council’s recommendation that a primary purpose test be introduced in relation to section 9D authorisations Home Affairs points out that in practice a
‘primary purpose’ test could introduce uncertainty as to whether the threshold has been met, potentially introducing delays and hindering agencies’ ability to immediately assist Australians at risk.
2.12
In relation to the Law Council’s concern that, without a primary purpose test for the authorisation in relation to section 9D, an Australian person who is of security interest at the same time they have imminent risk to their safety may have intelligence produced on them that goes beyond that risk Home Affairs stated:
I think the notion that an intelligence agency is sitting there hoping that an imminent risk to an Australian's safety somehow appears so they can start collecting intelligence that they otherwise would want to collect is far from the most effective use of intelligence agencies' time or powers. They have existing ministerial authorisation provisions they can go and get that don't rely on waiting for an imminent risk to Australians. If they truly believed this person was a threat in some way, shape or form, they would go and get that ministerial authorisation. If they needed to get that quickly, the agency head already has the ability to do emergency authorisations. What we're talking about with this amendment is a niche circumstance, where all of a sudden it arises there is an imminent threat to an Australian's safety. I cannot see how that would be a worthwhile workaround for an intelligence agency.
2.13
In relation to whether a single authorisation, issued by the agency head, should cover the entire period of up to six months Home Affairs pointed out that there ‘is no practical or legal difference between the mechanism in the Bill and the Law Council’s recommendation.’ Home Affairs reiterated that an agency head
must notify the responsible Minister of the authorisation within eight hours and, within 48 hours, provide the Minister with a copy of the authorisation and a summary of facts. The Minister must, as soon as practicable thereafter, consider whether to cancel the authorisation. The Minister may also cancel the authorisation at any time after this.
If the Minister decides not to cancel the emergency authorisation, it is equivalent to the Minister having issued the authorisation themselves and therefore the maximum period has been aligned with other authorisations under the framework.
2.14
The Law Council’s concerns re production of intelligence on Australian children resulted in them making a detailed recommendation which Home Affairs disagreed with by pointing to the exact wording of proposed subsection 9D(1)(d) of the Bill. Home Affairs stated that an emergency authorisation
can only be granted if having regard to the nature and gravity of the risk, it is reasonable to believe that the person would consent if they were able to do so. Where the Australian at risk is a child, or otherwise incapable of consenting, this test would inherently involve child-specific considerations, including whether producing intelligence would be in their best interests.
2.15
Home Affairs also make the point that introducing any additional child-specific requirements into the authorisation process
could introduce additional delays that hinder agencies’ ability to help. Any delays could prevent the authorisation from being used in the precise situations it is designed for. It would create a perverse outcome if the legislative provisions meant it was easier to assist adults who faced an imminent risk to their safety than children in the same circumstances.
2.16
The NSW Council for Civil Liberties made a similar, if broader recommendation in relation to consent:
Before an emergency authorisation is granted, all reasonable efforts should be made to contact the relatives of the affected Australian person to seek their consent on behalf of the Australian person if it is not possible to obtain the consent of the person themself.
2.17
Home Affairs pointed out that any ‘requirement to seek the consent of a person’s relatives beforehand would introduce delays into time critical situations’ and that consent
in this context is also something that would need to be given personally, rather than by a family member who might not have authority to give such consent. For this reason, the provision has been framed to only be used where it is reasonable to believe the person themselves would give consent.
2.18
In relation the Law Council’s concerns that power of delegation in proposed subsection 9D(14) is overly broad, to the extent it applies to the agency head’s power to issue authorisations under proposed subsection 9D(2) Home Affairs pointed out some relevant operational concerns with the recommendation proposed by the Law Council.
2.19
Home Affairs state that there
is a strong operational need for this power to be devolved to ensure that appropriate decisions can be made quickly where there is a imminent threat to an Australian person’s safety. The new emergency authorisation is for the limited scenario in which an immediate or near-immediate response is required. Introducing additional delay into the authorisation process could make the new authorisation framework unworkable and potentially defeat its purpose by putting Australians at further risk. Crucially, the scenario is also limited to where it is reasonable to believe that the person would consent to the production of intelligence if they were able to do so.
2.20
Additionally, Home Affairs points out that overseas staff operate in different time zones, with differing levels of seniority, the delegation ensures it is possible for appropriately qualified individuals in the relevant location and time zone to make decisions if required and that in the
in the unlikely circumstances where no senior officer can be located, the operational need for approval by a junior officer to immediately act in potentially life or death situations, coupled with the strong safeguards and the need for fast consideration by the agency head and Minister, outweighs any limited risks posed by junior staff being delegated this power in these specific set of circumstances where Australians are at risk.
Schedule 2 – Authorisations relating to counter-terrorism
2.21
Schedule 2 enables ASIS, ASD and AGO to seek ministerial authorisation to produce intelligence on a class of Australian persons who are, or are likely to be, involved with a listed terrorist organisation.
2.22
Home Affairs noted that the amendments implement recommendation 45 of the CR and recommendation 16(a) of the IIR. In relation to the IIR Home Affairs pointed out that it said that the
use of class authorisations would allow the IS Act agencies to respond quickly to developing threats from previously unidentified individuals’. It considered that the ‘existing provisions of the IS Act do not meet contemporary needs given both the seriousness of the threat and the number of Australians with connections to international terrorist groups’.
2.23
Home Affairs stated that:
As identified by both the Independent Intelligence Review and the Comprehensive Review, the use of class authorisations, in addition to existing individual authorisations, will strengthen the ability of agencies to investigate terrorist organisations. Specifically, reducing barriers to the ability of agencies to investigate classes of persons with links to terrorist organisations will enhance their ability to identify previously unidentifiable individuals of security concern. Allowing agencies to seek a ministerial authorisation to cover a class of persons, rather than requiring them to seek separate ministerial authorisation for each individual that would fall within the class, allows for the production of intelligence that is timelier, more agile and more responsive to the contemporary security environment, particularly where methodologies employed by terrorists have become more discreet than in the past and their methods for obfuscation of their activities more sophisticated
2.24
In relation to Schedule 2 the IGIS states:
Clear statutory limitations on the extent to which an intelligence agency may exercise powers, especially powers which may result in adverse consequences for an Australian person, are a critical feature in ensuring effective oversight. The proposed list of circumstances which define when a person is taken to be involved with a listed terrorist organisation is non-exhaustive. However, as currently drafted and suggested by the explanatory memorandum, the list evinces an intention by parliament that, for the purposes of subsection 9(1AAB), involvement must be active and intentional—this clear intention will assist in oversight.
The Office of the IGIS will also examine lists that are maintained under subsection 10AA(4) as part of its routine inspections into agencies’ compliance with the ministerial authorisation framework, but may also access these lists at any time.
2.25
In relation to their concerns regarding circumstances in which a person is taken to be ‘involved with’ a terrorist organisation under proposed ss 9(1AAA) and 9(1AAB) the Law Council recommended that:
Consideration should be given to exhaustively defining the circumstances in which a person is taken to be ‘involved with’ a terrorist organisation for the purpose of the class authorisation ground in proposed subsection 9(1AAA). In particular, consideration should be given to transforming the illustrative list of circumstances in proposed subsection 9(1AAB) into an exhaustive definition, noting the significant breadth of those activities.
In any event, consideration should be given to amending the deemed grounds of ‘involvement’ in proposed paragraphs 9(1AAB)(e) (in relation to ‘non-financial support’) and (f) (in relation to ‘advocacy’) so that they only cover the provision of ‘non-financial support’ to a terrorist organisation, or ‘advocacy’ for and on behalf of that organisation which is likely to be material to the organisation’s engagement in, or capacity to engage in, terrorism-related activities.
2.26
The NSW Council for Civil Liberties made a recommendation along similar grounds.
2.27
At the public hearing Home Affairs noted that their supplementary submission had been written based on a misreading of the Law Council’s submission meaning the Department accepted that the Law Council’s
recommendation was not to exclude the provision of financial assistance from the categories of deemed involvement. Rather, it was to insert a materiality threshold in relation to the provision of non-financial assistance and advocacy. Our submission specifically mentions that we're not calling for a materiality threshold in relation to the provision of financial assistance. It was a bit concerning that the submission seemed to suggest we were excluding financial assistance entirely.
2.28
Home Affairs explain that limiting the deemed grounds in paragraph 9(1AAB)(f) to advocacy that is ‘material to the organisation’s engagement in… terrorism related activities’ would preclude
agencies from producing intelligence whose involvement may have only just started and may yet be minor, but could nonetheless result in valuable intelligence. It would also distort the threshold: what is material to a smaller terrorist organisation may not be material to a larger organisation, resulting in a threshold that would in practice operate differently for different organisations.
2.29
In the public hearing Home Affairs were questioned on whether, in defining a class of persons, is there anything that constrains the minister in regard to the breadth of that class. Specifically, Home Affairs were asked if an entire diaspora community be included as a class of persons. Home Affairs replied that
it wouldn't be, because the class still has to have reference to the definitions about being involved with a listed terrorist organisation. I would imagine, ultimately, the class is going to be limited (1), by the fact that it's a terrorist organisation; and (2), Australians involved with that terrorist organisation. That's going to be the sort of class authorisation that you would see.
2.30
Departmental and agency witnesses at the public hearing were pressed further on the possibility that the amendments set up a circular definition that would allow authorisations to collect intelligence on a group of people who are defined by their association with a terrorist organisation and that the Government were seeking a legislative basis upon which to identify a class of persons who are involved in a terrorist organisation so that the Government may collect information to establish whether or not they're involved in a terrorist organisation. In response ASD explained that
at the moment, if we're concerned about or collecting intelligence on people who are already known to us or to other intelligence agencies as being connected with, say, Islamic State, we can get a ministerial authorisation on those individuals with a relevant case that actually still needs to meet the two tests set out: (1) that they're involved with a listed terrorist organisation; and (2) that they're actively doing stuff to participate in those terrorist activities. If, in the course of collecting intelligence on person A, intelligence is found on three other people who are not yet known to any intelligence agencies—individuals who are perhaps around the world but may be Australian—and who are doing active things in accordance with the list, . . . to participate in and facilitate those terrorist activities, under a class authorisation we would immediately be able to produce intelligence and make other agencies, such as ASIO, aware of a threat, particularly in a case where those previously unknown terrorists were planning an imminent attack on our homeland, for example
So it's about being able to act more quickly, generate the intelligence more quickly and then follow up, as the bill sets out. Then, though, in every circumstance where we've produced intelligence on Australians who were not yet known to us but met those two tests, we need to document both who they were and the case whereby we judged that they fell within the criteria in the bill, and we need to make that available for inspection by the IGIS.
2.31
The Law Council's suggestion that section 9(1AAB)(f)—'advocates for, or on behalf of, the organisation'—potentially, because of the generality of that language, would capture a law firm advocating for the delisting of the terrorist organisation was addressed by Home Affairs as follows:
I think that's potentially a misreading. I don't think that lawyer is going to be involved with a listed terrorist organisation in that way, so we would say that wouldn't cover 'involvement with'. So you've still got to have 'be satisfied that the class of Australian persons mentioned in that subparagraph is, or is likely to be, involved with' and then 'without limiting the circumstances—you have that. I don't think there is any reasonable interpretation where we would suggest that intelligence agencies would be collecting intelligence on a lawyer who is advocating for the delisting. I don't think that's the natural reading of that subprovision.
Schedule 3 – Authorisations for activities in support of the Australian Defence Force
2.32
Schedule 3 enables ASD and AGO to seek ministerial authorisation to undertake activities to produce intelligence on an Australian person or a class of Australian persons where they are assisting the Australian Defence Force (ADF) in support of military operations.
2.33
Home Affairs noted that these amendments implement recommendation 46 of the Comprehensive Review, and recommendation 16(b) of the Independent Intelligence Review and that:
The Independent Intelligence Review considered that all IS Act agencies should ‘be able to obtain an authorisation to produce intelligence on one or more members of a class of Australian persons when providing assistance to the ADF in support of military operations’.
The Comprehensive Review agreed with the Independent Intelligence Review, stating ‘the Review sees no principled reason why the ability to obtain ministerial authorisation in relation to a class of Australians when providing support to the ADF should not be extended to AGO and ASD. All IS Act agencies have a clear and well established function of assisting the ADF. A class ministerial authorisation which is only available in respect of that function is specific and targeted’.
2.34
In relation to the specific amendments Home Affairs stated:
In the context of a high-tempo conflict, the requirement to seek individual ministerial authorisations can delay agencies’ ability to respond rapidly and identify new threats to the ADF and its operations. In these situations, ASD and AGO would benefit from the ability to seek authorisation to produce intelligence on a class of individuals to support the ADF in military operations, such as Australian foreign fighters who chose to fight for ISIS, rather than having to seek individual authorisations for each Australian.
Adding ASD and AGO to the existing provision allowing for ASIS to seek class authorisations when assisting the ADF will ensure ASD and AGO are able to provide critical operational support to the ADF, including providing timely intelligence on, and more readily discover new, adversary threats. This is necessary to assist the ADF in responding to threats to life – for example, imminent risks to the security of ADF personnel.
2.35
The Law Council did not oppose expansion of the class authorisation mechanism with respect to the ADF support functions of ASD and AGO, but recommended further consideration of two matters, as follows:
Issues arising from the subsequent use of intelligence by the ADF
Defence Minister’s requests for intelligence agency support
2.36
Ultimately the Law Council made the following recommendation:
Paragraph 9(1)(d) of the ISA should be amended to apply a six-month maximum period of effect to written requests made by the Defence Minister for an ISA agency to provide assistance to the ADF in support of military operations outside Australia. (This amendment should apply to ASIS, ASD and AGO.)
2.37
In response Home Affairs explained that the ‘primary safeguard is that ministerial authorisations themselves are only valid for six months at a time’ and that:
A six-month renewal of the request for assistance would constitute an unnecessary additional burden for an arbitrary timeframe, when authorisations must already be reconsidered each 6 months.
And
Implementing a six-month maximum period of effect to written requests made by the Defence Minister would also not be viable as this would reduce the standard maximum duration of a ministerial authorisation, which is six months, as an authorisation is not likely to be granted immediately upon request. Given this, the timeframe for the renewal request would also need to be brought forward, meaning again that less intelligence from the initial authorisation could be included to justify a renewal.
Schedule 4 – Authorisations for producing intelligence on Australians
2.38
Schedule 4 inserts new provisions which:
Amend the requirement for ASIS, ASD and AGO to obtain ministerial authorisation to produce intelligence on an Australian person to circumstances where the agencies seek to use covert and intrusive methods, which include methods for which ASIO would require a warrant to conduct inside Australia.
Make explicit the long-standing requirement for ASIS, ASD and AGO to seek ministerial authorisation before requesting a foreign partner agency to produce intelligence on an Australian person.
2.39
Home Affairs stated that both the IIR and the CR
identified that the original intention of the ministerial authorisation regime in the IS Act was to require IS Act agencies to obtain a ministerial authorisation to use covert and intrusive intelligence collection capabilities in relation to an Australian person overseas, particularly where that collection method would require a warrant if conducted in Australia.
2.40
In relation to these two changes Home Affairs, explained that ‘prescribed activity’ is introduced in section 3 and subsection 8(1B) to mean a covert and intrusive activity, or series of activities which includes, but is not limited to, activities that ASIO could not undertake without a warrant. Home Affairs went on to state that it is intended
that activities will not fall within the definition of ‘prescribed activity’ unless they are both covert and intrusive. IS Act agencies might conduct an activity overtly, for example by conducting an interview where the interviewee knows they are dealing with the Australian Government, which could be considered intrusive depending on the nature of the information requested, but not covert. Similarly, an agency could conduct an activity that is covert but not intrusive, such as observing a person in a public place where there is no legitimate expectation of privacy. In these cases, the requirement to seek ministerial authorisation would be disproportionate to the nature of the activity.
These amendments remove uncertainty around whether ministerial authorisations are required for a range of administrative and preliminary activities not involving the use of covert and intrusive intelligence collection capabilities. This reflects the original intention of the ministerial authorisation framework.
2.41
In addition, Home Affairs explained that the amendment to the definition of ‘intelligence information’ to remove the word ‘information’, means that agencies’ will need to apply their Privacy Rules when communicating intelligence and not when an agency is communicating routine, publicly available information. ‘The practical impact of this
is that agencies will not have to apply required processes under their privacy rules when communicating routine, publicly available information concerning Australians. This could include, for example, the sharing of media articles about Australians, or the CVs of visiting Australians to partner agencies. Although not covered by privacy rules, these types of activities will continue to be subject to oversight by the IGIS.
2.42
The Law Council raised concerns around the term ‘covert and intrusive’ and recommended consideration be given to amending the Bill to provide further statutory guidance about the meaning of that term.
2.43
When this recommendation was put to the IGIS he was careful to indicate that such an amendment would depend on ‘what the presumptive additional clarification would say’ and that sometimes
simple words are simpler to understand. Sometimes the view is appropriately taken that the legislature has gone too far with too much verbiage and lost the essential element. So, it's really a drafting problem rather than a policy one, or even an oversight one. It's possible, of course, that there might be cases where the line between what is covert and intrusive and what is not is difficult to draw, but we wouldn't claim the wisdom to be able to say you could improve on this, because if I said you could improve on it your next question would be: 'With what wording would you improve on it?' and I really wouldn't presume to enter into that field.
2.44
At the public hearing Home Affairs endorsed the Inspector-General’s evidence on how difficult defining 'covert and intrusive' could be. In addition, Home Affairs pointed out that any attempt to define the term more tightly could risk excluding things. Noting that the Law Council had proposed adopting a legislative design approach, more analogous to that in the United Kingdom under section 26 of the Regulation of Investigatory Powers Act 2000 (UK) (RIPA) which provides more detailed statutory guidance on relevant factors in determining whether an activity is ‘covert and intrusive’ Home Affairs stated that
it seems to us that that is a tighter definition and, in fact, there are things that may fall out of that definition and that we would say here do require an MA. So this becomes the difficulty when you try to define things too much. I think this was what the inspector-general was getting to. The more you try to define something, the more you might risk unintended consequences of potentially creating some grey space where you don't want it. That's the reason we have gone with 'covert and intrusive' and have not further defined it and have sought to enshrine current agency practices in the legislation.
Schedule 5 – ASIS cooperating with ASIO
2.45
Schedule 5 enhances the ability of ASIS to cooperate with ASIO in Australia when undertaking less intrusive activities to collect intelligence on Australian persons relevant to ASIO’s functions, without ministerial authorisation.
2.46
In relation to the Comprehensive Review recommending against amending section 13B, Home Affairs pointed out that the
Comprehensive Review’s primary concern was that ASIS should continue to require a written notice from ASIO that ASIS’s assistance is required. It did not explicitly consider whether onshore cooperation should be permitted where written notice has been provided.
2.47
Home Affairs noted that changes in this schedule implements
recommendation 18(b) of the Independent Intelligence Review, which emphasised that ‘cooperation among agencies is essential to maximise the likelihood of success in thwarting attacks and defeating other threats to Australia’s national security’. The Independent Intelligence Review recommended that the geographical limitation in section 13B(1) be removed to enable cooperation under section 13B to operate in Australia.
2.48
In relation to the proposed amendments Home Affairs stated:
Allowing ASIS to assist ASIO by undertaking less intrusive activities that extend onshore will enhance cooperation and integration between the agencies, and enable Australia to better thwart attacks and defeat other threats to security. The amendments do not authorise or provide a legal basis for ASIS to undertake activities inside Australia that would otherwise be unlawful.
2.49
In the public hearing ASIO were asked to illustrate what some of the practical problems are with the law as it is. Specifically, they were asked to address how the current law prevents the collection of intelligence on an issue of concern to our country that this amendment would fix. ASIO specifically explained the role of ASIS and the way in which the proposed amendment would work:
In a practical sense, ASIS obviously operates offshore in fulfilling its mandate. It is a human agency, so it recruits and runs human sources. A practical example would be in the context of a human source that ASIS may potentially be running for its own purposes, under its own mandate, who may have access to information from an individual onshore in Australia. The current legislation would not allow ASIS to collect that intelligence or task their source to reach out to that individual onshore in Australia to collect that intelligence. So that is an impediment we would be seeking to avoid.
The proposed amendment, as you are aware, puts strict parameters around the circumstances under which that would occur. It would have to be at the request of ASIO. We would have to seek ASIS assistance in this manner. We would do that in writing. We would be in a position to put the scope and constraints around what that activity could entail. So that's proposed in the amendment. I would stress that this is activity and conduct that ASIS is able to do on ASIO's behalf now, offshore, so it would be extending that to the onshore environment. The other point I would make is that, as the legislation stipulates, this is conduct that is at the lower level of intrusiveness. This is conduct that ASIO would otherwise not require a warrant or MA to undertake, so it's at the lower level of intrusiveness.
2.50
The Law Council expressed concern ‘that there was insufficient evidence’ for the changes proposed in Schedule 5.
2.51
In the public hearing, reflecting the concerns of the Law Council, witnesses were asked to comment on the suggestion that the proposed changes would impact the onshore/offshore distinction between ASIO and ASIS and the implications of that. Home Affairs stated that they
fundamentally agree that that remains an important distinction, and this cooperation provision is in no way seeking to change that onshore/offshore distinction. I think that's a really important point to get out. What was mentioned earlier by ASIO is really important: this does not allow any cooperation where ASIO would otherwise require a warrant onshore. So ASIS cannot do anything otherwise intrusive onshore. They're not going to be able to do intercepts and other things under this 13B provision where a warrant would be required.
2.52
Home Affairs went on to explain that there may be a situation where there's a critical piece of intelligence that ASIS, through their resources, can get to that happens to onshore. Rather than ASIO trying to develop such intelligence with someone else, the Director-General can write a request to ASIS setting out that ASIS can potentially get such intelligence for ASIO , and it's relevant to ASIO’s functions. The ASIO Director-would be asking ASIS to cooperate with ASIO but only in relation to things that are not of an intrusive nature where ASIO would require a warrant. ASIO pointed out that such a written request would
provide the necessary scope and constraints and terms of the request. So I agree completely: it's not open slather. Those very longstanding legislative frameworks that separate foreign intelligence from security intelligence remain valid. There's also an expectation that the intelligence community is able to collaborate and cooperate in a way that helps to reduce harm and prevent threat. With appropriate legislative boundaries, this enables that cooperation and collaboration to occur, with adequate oversight and accountabilities.
2.53
Two further points were put to Home Affairs and ASIO at the public hearing. First ASIO were asked to comment, noting the open forum, to give a sense of how common the use of such a power would be. Second the rationale for the minister not being involved in the direction process for onshore cooperation between ASIO and ASIS was requested.
2.54
In relation to the first point ASIO explained that the powers would be used in ‘unique and rare circumstances’ and would be something ASIO would unlikely be something they’d need to ‘draw on heavily’.
2.55
In relation to the second point Home Affairs explained that the rationale for the minister not being involved is because the power would be used in situations where ASIO wouldn't otherwise need to get a warrant and involve the minister. That is the situations are not of an intrusive nature that would otherwise require a minister to be involved. Requiring ministerial involvement with this power would be somewhat counterproductive to have a minister involved in a cooperation arrangement where, but for the cooperation, ASIO wouldn't have required the minister to be involved anyway. In addition Home Affairs made this important clarifying comment:
Without going into the operational nature of how it might happen, the bill amendment very clearly requires it to be: 'This cooperation is for ASIO's purposes, in support of the performance by ASIO of its functions.' So ASIS couldn't say, 'We'd like you to authorise us to go and collect some intel in Australia for our own purposes.' It has to be for supporting ASIO in the performance of its functions.
Schedule 8 – Suspension of travel documents
2.56
Schedule 8 extends the period for passport suspension and foreign travel document surrender from 14 to 28 days, to allow sufficient time for ASIO to prepare a security assessment.
2.57
Home Affairs explained that the changes in Schedule 8 were not a matter of administrative convenience explaining that the
Government must have the power to stop people from travelling overseas to commit terrorist attacks and other prejudicial activities. The reality is that security investigations take time, and often cannot be completed within a fortnight—particularly when cases come up on short notice.
2.58
The Law Council recommended that further explanation be given as to the necessity of doubling the suspension timeframe. In particular the Law Council recommended that further information should be provided as to why such a doubling is needed in preference to taking administrative action (such as increasing and re-prioritising resources) in order to meet the 14-day time period. The Law Council noted that whilst it may be necessary for the Committee to obtain such evidence in camera, consideration should be given to placing on the public record as much additional information as possible about the necessity of the proposed amendments, as distinct to gains in convenience or efficiency.
2.59
In relation to Schedule 8 ASIO states that
These amendments are based on operational experience that the current 14-day suspension period is often insufficient for ASIO to undertake all appropriate investigative steps and provide advice to the Minister for Foreign Affairs on whether person’s passport should be cancelled.
Schedule 9 – Online activities
2.60
Schedule 9 extends the immunity provisions provided to staff members and agents of ASIS and AGO for computer-related acts done outside Australia, in the proper performance of those agencies’ functions, to acts which inadvertently affect a computer or device located inside Australia.
2.61
Home Affairs explained schedule 9 as follows:
This will align the immunities for ASIS and AGO with those of ASD following passage of the Security Legislation Amendment (Critical Infrastructure) Act 2021. In the Committee’s Advisory Report on the Security Legislation Amendment (Critical Infrastructure) Bill 2020 and Statutory Review of the Security of Critical Infrastructure Act 2018, recommendation 10 was for the Government to consider whether the expanded immunity should also include AGO and ASIS.
These amendments are also consistent with Recommendation 74 of the Comprehensive Review, which recommends the current immunity in section 476.5 of the Criminal Code for IS Act agencies should be extended to apply where a staff member or agent reasonably believes the relevant conduct is likely to take place outside Australia, whether or not it in fact takes place outside Australia. The Comprehensive Review provides that criminal liability should not apply to a staff member or agent of an agency who ‘acts in genuine belief that the activity is outside Australia’. As the Comprehensive Review found, ‘internet-based communications are increasingly untethered to geographic identifiers’, making it difficult for agencies to perform their functions under the current law. Since ‘it is not always possible to determine the geographic location of a device or computer ... extending the immunity afforded to agencies under section 476.5 in this manner would protect staff from criminal liability who have acted in good faith in the proper performance of the agency’s functions’ The amendments reflect the ‘increasingly complex online environment’, where it is not always possible to determine the geographic location of a computer, a person’s location, or a communication’s origins and end point.
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The Law Council recommended implementation of the Committee’s recommendation 10 on the SOCI Bill, in relation to ASD, ASIS and AGO in relation to the expansion of the immunity in favour of ASD staff members, and the proposed expansion in favour of ASIS and AGO staff members.
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In response Home Affairs indicated that the Government had responded to recommendation 10 of the Committee’s advisory report through its revised Security Legislation Amendment (Critical Infrastructure) Act 2021 (SLACI Act), which was passed by the Parliament in November 2021.
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Home Affairs stated that the amendments proposed in the Bill for ASIS and AGO are consistent with the amendments extending immunity to ASD in the SLACI Act and that it is
important for all agencies to have the same immunity on a consistent basis, as recommended by the Comprehensive Review.
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Home Affairs offered further detailed explanation as follows:
The proposed amendments in Schedule 9, including those in the SLACI Act, did not create a new immunity framework. Prior to the SLACI Act, ASD, AGO and ASIS all had the same immunity from the computer offences in the Criminal Code Act 1995 for acts done outside Australia. Consistent with recommendation 74 of the Comprehensive Review, this immunity is extended to circumstances where officers reasonably believe the acts are done outside Australia, whether or not they in fact take place outside of Australia. This has already occurred in relation to ASD through the SLACI Act, and the Bill seeks to mirror this for AGO and ASIS.
The proposed amendments also align the immunity provisions in the Criminal Code with the general protections available to AGO, ASD and ASIS under section 14 of the IS Act, such that the same provisions apply to each agency.