3.1
As previously set out the Committee received four submissions from non-government sources. These were from the Inspector General of Intelligence and Security, the Law Council and the NSW Council on Civil Liberties and Civil Liberties Australia.
3.2
This was in addition to two comprehensive submissions from the Department of Home Affairs, including a helpful submission in reply to the Law Council’s submission. Separately to Home Affairs the Committee received submissions from all agencies of the intelligence community. Some were, necessarily, classified and taken as confidential submissions.
3.3
The Committee notes that the most substantive evidence it received proposing changes to the Bill was from the Law Council. In stating this the Committee notes that the Law Council could not have had access to sensitive information on how operations are run by the intelligence agencies. This is not a criticism of the Law Council in any way, it is simply stating the fact that they would not have certain information available to them.
Schedule 1 – Emergency authorisations
Objective assessment of the significance of the risk
3.4
The Committee notes the Law Council’s concern that a granting of an emergency authorisation has no explicit, stand-alone requirement for an objective assessment of the significance of the risk. In contrast Home Affairs suggested that uncertainty over the significance of the risk could prevent the emergency authorisation from being used in the precise situations it is designed for. Home Affairs made the point that there can be risks which are imminent but cannot be immediately quantified.
3.5
The Committee considers that the possibility of an imminent unquantifiable risk to an Australian in an, possibly opaque, operational environment justifies the exclusion of an explicit, stand-alone requirement for an objective assessment of the significance of such a risk.
Primary purpose of producing intelligence
3.6
The Committee is satisfied that the proposed emergency authorisation power is intended only to be used in rare and exceptional circumstances and that a primary purpose test is not required.
Single authorisation covering the entire period of up to six months
3.7
The Committee notes the Law Council’s concern in relation to whether a single authorisation, issued by the agency head, should cover the entire period of up to six months. The Committee notes 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.
3.8
Additionally, 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.
3.9
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.
3.10
With such Ministerial responsibility and safeguards in place the Committee has no concerns in relation to a single authorisation, issued by the agency head, covering the entire period of up to six months.
Possible production of intelligence on Australian children
3.11
The Committee notes the Law Council’s concern, mirrored in a broader sense by the NSW Council for Civil Liberties in relation to consent and possible production of intelligence on Australian children. The Committee does not share these concerns.
3.12
In stating this the Committee draws attention to the specific wording of proposed subsection 9D(1)(d) of the Bill which states 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. The Committee’s view is therefore that a person who may technically not be able to consent; for example, someone with severe mental illness or, as suggested by the Law Council, a child, are to be considered as if the circumstance that gives rise to an inability to consent does not exist. That is, again in the words of proposed subsection 9D(1)(d) of the Bill, the person would consent if they were able to.
Schedule 2 – Authorisations relating to counter-terrorism
3.13
The ability for 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 is supported by the Committee. Any concern that such power could be used to produce intelligence on all Australians or on a diaspora group are countered by reference to the fact that a person must be one who is or are likely to be, involved with a listed terrorist organisation.
3.14
The Committee notes the Law Council’s concern 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. The Committee also notes Home Affairs’ evidence that there would not be any reasonable interpretation where intelligence agencies would be collecting intelligence on a lawyer who is advocating for the delisting of a terrorist organisation. For the avoidance of any doubt the Committee recommends that the Explanatory Memorandum be amended to state that a Ministerial Authorisation enabling ASIS, ASD and AGO to produce intelligence on a class of Australian persons who are, or are likely to be, involved with a listed terrorist organisation will not authorise the production of intelligence on a lawyer advocating for the delisting of a terrorist organisation.
3.15
The Committee recommends that, for the avoidance of any doubt, the Explanatory Memorandum for the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 1) Bill 2021 be amended to state that a Ministerial Authorisation enabling ASIS, ASD and AGO to produce intelligence on a class of Australian persons who are, or are likely to be, involved with a listed terrorist organisation will not authorise the production of intelligence on a lawyer advocating for the delisting of a terrorist organisation.
3.16
The Committee is satisfied with the proposed list of circumstances which define when a person is taken to be involved with a listed terrorist organisation being non-exhaustive. The Committee notes that, the list demonstrates an intention by Parliament that, for the purposes of subsection 9(1AAB), involvement must be active and intentional and that the IGIS has stated that this drafting will assist in oversight.
Schedule 3 – Authorisations for activities in support of the Australian Defence Force
3.17
The Committee notes that 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 that 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.)
3.18
The Committee notes Home Affairs’ evidence that the ‘primary safeguard is that ministerial authorisations are only valid for six months at a time’ and accepts 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 six months
Schedule 4 – Authorisations for producing intelligence on Australians
3.19
The main issue in dispute in relation to Schedule 4 was whether the term ‘covert and intrusive’ should be defined. The Committee notes that the Law Council recommended that consideration be given to defining the term. The Committee further notes that Home Affairs gave evidence that any attempt to define the term more tightly could risk excluding things. The Committee took this to mean excluding things that might ordinarily be considered ‘covert and intrusive.’
Schedule 5 – ASIS cooperating with ASIO
3.20
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 was considered very deeply by the Committee. Questioning on this power took up much of the Committee’s public hearing.
3.21
This power was one of those issues where in ASIS's classified submission and presentation to the Committee the case was articulated quite clearly. In addition there were some case studies that were presented to the Committee at its private briefing on 10 February 2022.
3.22
The Law Council suggested that there was insufficient evidence led for the changes. The Committee notes that there having been circumstances where ASIS may have assisted ASIO - which has brought about the discussion and eventual drafting of this amendment - would have to remain highly classified. Such explanations are unable be put in a public forum.
3.23
The Committee’s main concern was that the proposed changes would impact the onshore/offshore distinction between ASIO and ASIS. The following three aspects of Schedule 5 give the Committee confidence that the fundamental distinction between ASIO and ASIS is not being eroded:
the Schedule does not allow any cooperation where ASIO would otherwise require a warrant onshore. ASIS cannot do anything otherwise intrusive onshore. ASIS are not going to be able to do intercepts and other things under this 13B provision where a warrant would be required
an ASIO request for assistance must be at the request of ASIO
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’
Schedule 8 – Suspension of travel documents
3.24
The Committee notes the critical time sensitivities faced by agencies in a rapidly shifting operational environment. Schedule 8’s extension of the period for passport suspension and foreign travel document surrender from 14 to 28 days will allow sufficient time for ASIO to prepare a security assessment and is not merely a matter of administrative convenience.
Schedule 9 – Online activities
3.25
The Committee notes that Home Affairs state that schedule 9 will align immunities for ASIS and AGO with those of ASD following passage of the Security Legislation Amendment (Critical Infrastructure) Act 2021. Home Affairs stated that the Committee’s, recommendation 10 in its Advisory Report on the Security Legislation Amendment (Critical Infrastructure) Bill 2020 and Statutory Review of the Security of Critical Infrastructure Act 2018 was for the Government to consider whether the expanded immunity should also include AGO and ASIS.
3.26
Recommendation 10 of 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 was as follows:
Recommendation 10
The Committee recommends that proposed Schedule 2 of the Security Legislation Amendment (Critical Infrastructure) Bill 2020 be amended in accordance with the principles outlined in paragraph 3.62 and included as part of Bill One.
3.27
Paragraph 3.62 of the report stated the following:
Accordingly, the Committee is recommending that Schedule 2 of the SOCI Bill be reviewed with the concerns expressed by the Law Council of Australia in mind, and amended in Bill One taking into account the following principles:
whether an immunity, rather than a defence of a mistake or ignorance of fact, is a more suitable mechanism to address potential accidental onshore acts. If so, articulate the preference in explanatory material;
whether the proposed immunities are appropriate to extend to both criminal and civil liabilities, given the proposed expanded civil immunity leaves no recourse for affected entities to seek reparations for unintended damages;
whether the expanded immunity could adversely impact on the warrant and issuing safeguards regarding interceptions and access to telecommunications and data under the Telecommunications (Interception and Access) Act 1979 (TIA Act); and
whether the expanded immunity should be expanded to include AGO and ASIS, as per the majority of recommendation 74 of the Richardson Review.
3.28
The Committee thanks the Government for its consideration of this recommendation and notes their evidence provided at the public hearing relating to its implementation. This will be further considered and discussed in the Committee’s Review of the Security Legislation Amendment (Critical Infrastructure Protection) Bill 2022.
3.29
The changes the Committee have been asked to consider in its review of this Bill have, arguably, been a long time coming. They are backed by two detailed reviews of the intelligence community and their powers.
3.30
Whilst some changes, particularly those in schedule 5 were ASIS are permitted to further assist ASIO onshore, are significant and required deep consideration, the Committee is satisfied by the detailed classified and unclassified evidence received throughout this inquiry. The Committee thanks the agencies for their candour and has confidence that the changes are proportionate, and as transparent as possible given the national security aspects of the changes and are backed by IGIS oversight.
3.31
The Committee therefore recommends that, subject to the amendment outlined above, the Bill be passed.
3.32
The Committee recommends that, subject to the amendment outlined above, the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 1) Bill 2021 be passed.
Senator James Paterson
Chair
23 March 2022