1.1
On 18 July 2017, the Prime Minister, the Hon Malcolm Turnbull MP, announced the establishment of a Home Affairs portfolio that would comprise immigration, border protection, domestic security and law enforcement agencies. At the same time, the Prime Minister announced reforms to the Attorney-General’s oversight of Australia’s intelligence community and agencies in the Home Affairs portfolio.
1.2
On 7 December 2017, the Prime Minister introduced the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017 (the Bill) into the House of Representatives.
1.3
The following day, the Prime Minister wrote to the Committee to refer the provisions of the Bill for inquiry and report. In his letter, the Prime Minister stated that the Bill
will give effect to the allocation of certain ministerial powers following establishment of the [Home Affairs] portfolio, and contains measures to strengthen the Attorney-General’s oversight of intelligence, security and law enforcement agencies.
1.4
The Committee agreed to complete its inquiry and report to the Prime Minister and the Parliament by February 2018, noting that the Prime Minister had requested that the Committee, so far as possible, conduct its inquiry in public.
1.5
This report focuses upon the Bill before the Parliament. Matters relating to establishment of the Home Affairs portfolio more broadly are outside the scope of this inquiry.
Conduct of the inquiry
1.6
The Chair of the Committee, Mr Andrew Hastie MP, announced the inquiry by media release on 15 December 2017 and invited submissions from interested members of the public. Submissions were requested by 22 January 2018.
1.7
The Committee received 7 submissions and 3 supplementary submissions, which are listed at Appendix A.
1.8
The Committee held two public hearings in Canberra on 7 and 9 February 2018. Details of the hearings are included at Appendix B.
1.9
Copies of submissions and the transcripts of the public hearings can be accessed on the Committee’s website at www.aph.gov.au/pjcis. Links to the Bill and Explanatory Memorandum are also available on the Committee’s website.
Context of the inquiry
1.10
The Bill is one component in the establishment of the Home Affairs portfolio.
1.11
In his second reading speech, the Prime Minister stated that the Home Affairs portfolio would be ‘modelled loosely’ on arrangements in the United Kingdom, comprising a central department responsible for policy and strategic planning and several agencies that will retain their statutory independence.
1.12
The portfolio will comprise:
The new Department of Home Affairs, combining the Department of Immigration and Border Protection, including the Australian Border Force, with:
national security, emergency management and other relevant policy elements of the Attorney-General’s Department,
counter-terrorism policy and operations, and cyber policy and coordination from the Department of the Prime Minister and Cabinet,
multicultural Affairs from the Department of Social Services, and
Office of Transport Security from the Department of Infrastructure and Regional Development.
1.13
The portfolio will also include the Australian Federal Police, Australian Security Intelligence Organisation (ASIO), Australian Criminal Intelligence Commission, and Australian Transaction Reports and Analysis Centre (AUSTRAC).
1.14
While the operational law enforcement and security agencies will become part of the Home Affairs portfolio, the Prime Minister announced 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’.
1.15
In addition, the Inspector-General of Intelligence and Security (IGIS), Independent National Security Legislation Monitor (INSLM) and Commonwealth Ombudsman will move to the Attorney-General’s portfolio. The Australian Commission for Law Enforcement Integrity will remain in the Attorney-General’s portfolio and the Attorney-General will also assume responsibility for the Public Disclosure Act 2013.
1.16
In a joint submission, the Department of the Prime Minister and Cabinet, Department of Home Affairs and Attorney-General’s Department stated that the reforms will ‘complement changes to the Australian Intelligence Community flowing from the 2017 Independent Intelligence Review’ and that:
These significant reforms will result in better integrated intelligence and domestic security arrangements, and strengthen Australia’s ability to deal with an increasingly complex security environment, evolving threats from terrorism and organised crime, and the development of new and emerging technologies.
Implementation of the Home Affairs portfolio
1.17
The Home Affairs portfolio was established on 20 December 2017.
1.18
The Departments advised that the majority of the machinery of government changes to establish the portfolio had been given effect through amendments to the Administrative Arrangements Order (and the resulting effect on section 19(1) of the Acts Interpretation Act 1901) combined with the making of the Acts Interpretation Amendment (Home Affairs) Substituted Reference Order 2017.
1.19
This Bill ‘is necessary to give effect to other aspects of the changes which could not be achieved through those mechanisms’.
1.20
Implementation is occurring in two phases.
Phase One
1.21
Phase One commenced on 20 December 2017 with the swearing in of Ministers and the transfer of functions and agencies through the amendment to the Administrative Arrangements Order. This included subsuming the Department of Immigration and Border Protection into the Department of Home Affairs, and the transfer of functions relating to cybersecurity, counterterrorism coordination, law enforcement, emergency management, aviation security and multicultural affairs together with the AFP, ACIC, AUSTRAC and Australian Border Force.
1.22
The Administrative Arrangements Order was supplemented by the Substituted Reference Order (SRO), which commenced on 21 December 2017. The SRO substitutes ministerial, secretarial and departmental references in 28 Acts and legislative instruments. Amendments to legislation to reflect the SRO ‘will be made in due course, as is the usual practice’.
1.23
The joint Departmental submission noted that in addition to the SRO, the Attorney-General signed an authorisation to enable the Home Affairs Ministers to exercise relevant powers and functions under Part 5.3 of the Criminal Code. This approach was necessary
because of complexities associated with the reference from the States of Constitutional powers which underpins 5.3 of the Criminal Code.
1.24
The Departments advised that amendments to Part 5.3 to reflect these arrangements will be brought forward in due course.
Phase Two
1.25
Phase Two will occur following passage of the Bill and includes:
transfer of responsibility for ASIO and associated functions (including responsibility for the Telecommunications (Interception and Access) Act 1979 (TIA Act) and the Surveillance Devices Act 2004) to the Minister for Home Affairs, and
transfer of responsibility for the IGIS, INSLM and Commonwealth Ombudsman to the Attorney-General.
1.26
Transfer of responsibility for the IGIS Act and INSLM Act will occur through the further amendment to the Administrative Arrangements Order and does not require legislative change.
1.27
The joint Departmental submission noted that:
These transfers will be given effect through a further amendment to the AAO and a further SRO. The SRO in particular will provide for a number of substitute references in the Australian Security Intelligence Organisation Act 1979 and the TIA Act to facilitate the Attorney-General’s continued role including in relation to the issuing of ASIO warrants.
1.28
With regard to the SRO, the Deputy Secretary of the Department of the Prime Minister and Cabinet advised the Committee that:
The government intends and has always intended to bring forward further amendments this year to ensure the changes in ministerial responsibilities are clear on the Commonwealth statute book. We are well positioned to bring forward amendments to primary legislation in a relatively short period of time.
1.29
The Department provided the following additional information about the extent of proposed legislative amendments:
[The Home Affairs and Intelligence Review Implementation] Taskforce initially assessed around 60 Acts from various portfolios which could have fallen within the scope of this MoG change. As well as considering which portfolio should properly administer each Act, the Taskforce considered whether certain powers were appropriate to be exercised by the Attorney-General as First Law Officer and Minister with responsibility for integrity and oversight, or by the Minister for Home Affairs as the Minister responsible for national security. Of those, 14 Acts were assessed as not requiring any change either to administrative arrangements or to specific powers (some of these Acts sit within the Attorney-General’s portfolio, and some Acts are in other portfolios).
On the final assessment, 46 Acts are directly affected by the MoG change:
In total, responsibility for the administration of 33 Acts will be transferred by amendments to the Administrative Arrangements Order (AAO) (the first amendment made on 20 December 2017, and the second which is proposed to follow the passage of this Bill, subject to agreement of the Governor-General).
In addition to the 4 Acts amended in the Home Affairs Bill, the further proposed legislative amendments will affect 33 Acts (which includes the 19 Acts already included in the SRO made on 20 December).
Outline of the Bill
1.30
The Bill will amend the following acts:
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act),
Independent National Security Legislation Monitor Act 2010 (INSLM Act),
Inspector-General of Intelligence and Security Act 1986 (IGIS Act), and
Intelligence Services Act 2001 (IS Act).
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
1.31
Section 128 of the AML/CTF Act provides for the disclosure of AUSTRAC information by officials of designated agencies. For ASIO, this includes disclosure to the ASIO Minister and the Minister responsible for administering the TIA Act. Similar provisions exist for defence intelligence officials and Office of National Assessment officials.
1.32
As noted above, administration of the ASIO Act and TIA Act will transfer to the Minister for Home Affairs with the Attorney-General retaining certain functions, such as issuing ASIO warrants and authorising special intelligence operations.
1.33
Items 1 to 3 of the Bill will amend the AML/CTF Act to allow ASIO and other intelligence agency officials to continue to disclose AUSTRAC information to the Attorney-General for the purpose of those functions.
Independent National Security Legislation Monitor Act 2010
1.34
The Bill includes the following amendments to the INSLM Act to facilitate its transfer to the Attorney-General:
Item 5 provides that both the Prime Minister and the Minister administering the INSLM Act may to refer a ‘matter relating to counter-terrorism or national security’ to the Monitor. The Monitor must report on the reference. However subsection 7(3) of the INSLM Act remains unchanged so that only the Prime Minister may give the INSLM ‘directions about the order in which he or she is to deal with references’,
Items 18 to 21 clarify the Monitor’s reporting requirements and provide that the Monitor must give a report made under section 7 to the Minister who made the reference (Item 19), and may if appropriate, (Item 22) give a report to the Minister who did not make the reference,
Item 6 provides that the Prime Minister continues to be responsible for consulting with the Leader of the Opposition on the appointment of the Monitor, and
References to the Prime Minister are removed in items 7, 9, 11, 12, 14, 15 and 17, and replaced with ‘Minister’ to reflect the transfer of responsibility from the Prime Minister to the Minister administering the INSLM Act.
Inspector-General of Intelligence and Security Act 1986
1.35
The Bill includes the following amendments to the IGIS Act to facilitate its transfer to the Attorney-General:
Item 34 provides for the Minister administering the IGIS Act, in addition to the responsible Minister for an intelligence agency, to request the IGIS to inquire into a matter set out in subsections 8(1), (2) and (3) of the IGIS Act (and receive relevant reports),
Item 35 provides for both the Prime Minister and the Minister administering the IGIS Act to request the IGIS to conduct additional inquiries into a matter relating to an intelligence agency or an intelligence or security matter relating to a Commonwealth agency (subsections 9(1) and (3)) and requires the IGIS to comply with such a request,
Items 40 to 49 and 51 to 53 provide for reporting arrangements to the Minister and Prime Minister, including that the IGIS may continue to provide copies of reports to the Prime Minster if he or she considers it appropriate to do so,
Items 29 and 32 provide that the Prime Minister continues to be responsible for consulting with the Leader of the Opposition on the appointment an acting or substantive IGIS, and
References to specific ministers in a number of provisions are removed to reflect the transfer of responsibility for the Act from the Prime Minister to the Minister administering the IGIS Act.
Intelligence Services Act 2001
1.36
Amendments to the IS Act are intended to clarify ministerial responsibilities and ensure that the Act accurately reflects the division of responsibility between the Attorney-General and the Minister responsible for the ASIO Act.
1.37
The Bill includes the following amendments:
Items 62 to 65 provide that responsibility for agreeing to security-related Ministerial authorisations under section 9 of the Act remains with the Attorney-General,
Item 67 adds the Minister responsible for the ASIO Act to the list of Ministers who may give an oral authorisation in an emergency situation when the relevant responsible Minister is not readily available or contactable under section 9A,
Item 74 provides that the relevant intelligence agency head (ASIS, ASD or AGO) must notify the Attorney-General, the Minister responsible for the ASIO Act and the IGIS under section 9C when an emergency authorisation has been given in certain circumstances,
Item 76 inserts a new subsection into section 13G that requires the Ministers responsible for ASIO and ASIS to consult with the Attorney-General prior to making written guidelines (which relate to the undertaking of certain types of activities by ASIS at the request of ASIO that would normally require ministerial authorisation),
Item 77 enables the Attorney-General (in addition to the responsible Minister for an agency) to refer matters relating to the Australian Intelligence Community agencies to the PJCIS under section 29, and
Item 79 enables the PJCIS, under subsection 29(2) to request either the responsible Minister or the Attorney-General to refer a matter relating to the activities of the Australian Intelligence Community agencies.