- Committee comment
- The Committee would like to acknowledge the concerns expressed by a number of submitters regarding the timeframe provided for the tendering of submissions to this Bill review and the rapid conduct of the public hearing.
- As identified in Chapter 1, when the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023 (the Bill) was referred to the Committee by the Attorney-General on 29 March 2023, the request was made for the Committee to report by the end of April 2023.
- While the Committee is not bound by such requested timeframes, the Committee endeavoured to identify a way to achieve the most expedient process for reviewing the Bill. That necessitated a compressed timeframe for the conduct of the review, during a period which included Easter, ANZAC Day and school holidays.
- The Committee expresses its sincere gratitude to those submitters and witnesses who devoted time to engaging with the review in these circumstances, providing the Committee with the evidence identified in this report.
Amendments for Committee comment
3.5As identified in Chapter 2, not all amendments proposed in the nine Parts to Schedule 1 of the Bill attracted evidence beyond that provided in the Explanatory Memorandum (EM), or in statements of support from affected Departments and National Intelligence Community (NIC) agencies.
3.6Accordingly, the Committee will not provide comment on the measures that did not attract substantive additional evidence, or that the Committee agrees are supported without extra comment. The sections below identify the proposed amendments in the Bill that warrant the articulation of a Committee view or recommendation for change from the Committee. These measures are outlined in the same order as earlier in this report – Comprehensive Review of the Legal Framework of the National Intelligence Community (Richardson Review) amendments, then Intelligence Services Act 2001 (IS Act) amendments.
Part 1 - Powers and functions of the Attorney-General
3.7The Committee received evidence regarding the two proposed amendments contained within Part 1 of the Bill removing the existing ability for the Attorney-General to delegate his or her powers under the Australian Security Intelligence Organisation Act 1979 (ASIO Act), and the existing ability to create a substituted reference order for the Attorney-General’s powers under the ASIO Act and the Telecommunications (Interception and Access) Act 1979 (TIA Act).
3.8The existing delegation and substitution arrangements drew criticism from Dennis Richardson in his report and the Committee agrees with the grounds for removal of these potentially significant executive government powers.
Delegation under the Law Officers Act
3.9As the First Law Officer of the Commonwealth, the Attorney-General is responsible for authorising the use of many of the most intrusive, covert and technical powers granted to the Australian Security Intelligence Organisation (ASIO). The Committee agrees that delegation of these powers must only be permitted in the rarest and most extraordinary of circumstances.
3.10The current effect of section 17 of the Law Officers Act 1964 (Law Officers Act) allows delegation of the Attorney-General’s powers to any official, regardless of level, position or department. This has the potential to seriously weaken the integrity of authorisations for significant intelligence powers that should solely rest with the relevant Minister for the purposes of responsibility and accountability.
3.11The Committee is supportive of this amendment, noting the continuation of the ability to delegate certain functions under the ASIO Act that relate to the provision of financial assistance and initiating prosecutions under secrecy provisions, rather than ASIO’s use of powers.
3.12The Committee also notes that the Richardson Review recommendation was confined to prohibiting delegation of the Attorney-General’s issuing of warrants under the ASIO Act, but the Committee agrees with the position expressed in the supplementary material and the Department’s submission, and reflected in the Bill, that the power to authorise Special Intelligence Operations, and appoint prescribed authorities for the purpose of overseeing the execution of ASIO questioning warrants, should also be non-delegable.
Substituted reference orders
3.13The Committee noted the concerns from Dr Walker-Munro regarding the discretionary ambit of the Prime Minister to determine what ‘exceptional circumstances’ may necessitate a substituted reference order of the Attorney-General’s powers under the ASIO Act and the TIA Act.
3.14The proposed amendments require that the transfer of the Attorney-General’s substantial powers and functions relating to ASIO to another Minister may only be achieved through legislative amendment, unless the Prime Minister believes that exceptional circumstances exist, justifying a substituted reference order.
3.15The Committee acknowledges that a definition of what exceptional circumstances entail may provide greater certainty regarding the potential exercise of this extraordinary transfer of authority. The Committee agrees, however, with the commentary in the Richardson Review and in the EM, that such a definition could unduly constrain the exercise of this power. Unforeseen circumstances may arise that require such an order to be made, but do not fit within a legislated definition—that would in turn create a need for legislative amendment, which is not necessarily achievable in a timeframe necessary for the exercise of authority over ASIO in a time-critical situation.
3.16The circumstance where there is no Attorney-General is cited as an example of an exceptional circumstance, and the Committee accepts that that would generally be the type of rare occasion on which such an order would be made.
3.17Additionally, the Committee notes that substituted reference orders made under section 19B of the Acts Interpretation Act 1901 are a legislative instrument and must be tabled in Parliament—these are therefore transparent to the Parliament and the Australian public. Therefore, further amendment, such as that being proposed in the current Ministers of State Amendment Bill 2022 to prevent secretive allocation of ministerial authority, is not required to ensure transparency in this circumstance.
Part 2 - Defences for certain national infrastructure related offences
3.18The Committee acknowledges the concern raised by submitters that the potential scope of including ASIO affiliates within the new proposed definition of an ASIO Officer in the Criminal Code Act 1995 (the Criminal Code) would expand the proposed defences to individuals not mentioned in the Richardson Review recommendation.
3.19In the discussion with the Director-General of Security and the Department’s representatives at the public hearing, and in further submission evidence tendered by ASIO, the potential for the defences to extend to a wider range of individuals than identified in explanatory material was confirmed. As identified in ASIO’s supplementary submission ‘In practice, this could include persons such as secondees, contractors, consultants or human sources’.
3.20The Committee is satisfied that the administrative and operational controls around the exercise of the ASIO functions that might engage these defences are sound for ASIO employees, secondees, consultants and contractors engaged under formal written contracts or agreements. The potential expansion to human sources, or any other affiliates covered by less formal ‘other arrangements’, does however leave some doubt in the Committee’s mind as to whether the application of these defences to such individuals is appropriate. The Committee regards it as important that ASIO ensure it has the appropriate level of control over all affiliates to ensure the utmost direction and accountability in relation to authorising persons to commit acts that would ordinarily be criminal offences, when they may be able to later rely on the new defences to seek impunity from their consequences.
3.21In its further submission, ASIO identified that to successfully invoke the defences any such individual must be:
- acting in good faith in the course of their duties and the conduct of the person is reasonable in the circumstances for the purpose of performing that duty (proposed new subsections 474.6(4A), 477.2(2) and 477.3(2) of the Criminal Code); and
- in the case of ASIO affiliates, this would require them to be performing functions or services for ASIO, and acting in accordance with their contract, agreement or other arrangement.
- The examples identified by ASIO in which inclusion of human sources would be warranted are worth setting out again:
For example, it may be necessary to have a human source operate technical equipment on ASIO’s behalf to identify and locate a device in circumstances where they have physical access that ASIO is otherwise unable to achieve. In these circumstances, the human source would be conducting activities at the direction of ASIO, and within strict constraints.
In other circumstances, a human source might be able to facilitate ASIO’s access to a facility or area for ASIO to conduct the activities. Without being included in these targeted defences, there is a risk a human source could be liable for ancillary offences (such as aiding or abetting the commission of an offence) when assisting ASIO to undertake these activities.
3.23ASIO is further required to comply with Ministerial Guidelines which ‘require that any means used for obtaining information must be proportionate to the gravity of the threat posed and its likelihood, including any potential impact on third parties, and using the least intrusive method available. These requirements apply to all ASIO activities for obtaining intelligence relevant to security, whether conducted by ASIO employees or ASIO affiliates’. The Committee notes that these Guidelines are soon to be reviewed by the Minister for Home Affairs.
3.24The Committee accepts that the covert nature of the work of ASIO requires flexibility in operations and protecting its people from prosecution for work done to protect the security of Australia and its people. The digital ecosystem changes driving the need for these defences is understood and the Committee accepts the assurances provide by ASIO, noting that any such activity is subject to oversight by the Inspector-General of Intelligence and Security (IGIS).
3.25However, the Committee regards it as important that ASIO ensure it has enough ‘front end’ control to ensure that criminal actions are not undertaken by its affiliates in the first place, unless they are legitimate and proportionate. This seems to be particularly pertinent when affiliates are operating under ‘other arrangements’ whose terms may be less clear and accountability less concrete than under a formal written contract.
3.26The Committee therefore recommends that the Explanatory Memorandum for the Bill be amended, or a supplementary Explanatory Memorandum be issued, acknowledging that human sources are included in the scope of an ASIO affiliate. The Committee further recommends that in the upcoming review of the Ministerial Guidelines, the Government give consideration to whether additional safeguards are required to ensure appropriate control by ASIO over the activities of its affiliates, particularly human sources or any others currently operating under ‘other arrangements’, in light of the legal defences being made available to them.
3.27The Committee recommends that the Explanatory Memorandum for the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023 be amended, or a supplementary Explanatory Memorandum presented, acknowledging that human sources are included in the scope of an ASIO affiliate for the purposes of the proposed new definition of ASIO Officer in section 473.1 of the Criminal Code Act 1995.
The Committee further recommends that in the upcoming review of the Minister’s Guidelines made under section 8A of the Australian Security Intelligence Organisation Act 1979, the Minister for Home Affairs consider whether additional safeguards are required to ensure appropriate control by ASIO over the activities of its affiliates, including human sources or any affiliates working under ‘other arrangements’, in light of new legal defences to certain criminal acts becoming available to them.
Part 4 - Spent convictions
3.28The Committee notes concerns that the proposed amendments to allow ASIO access to spent conviction records under the Crimes Act 1914 might allow for unintended access to such information in Intelligence produced by ASIO.
3.29The Committee accepts the evidence of the Director-General of Security that such information would not be accessible to other agencies directly, but does acknowledge Dr Walker-Munro’s concern that intelligence generated by ASIO, that potentially includes spent conviction information on an individual, could be shared with an intelligence agency not authorised to receive intelligence collected on Australian citizens.
3.30However, the Committee agrees with the Director-General’s position that the generation of intelligence and access by other agencies to that intelligence is not as clear cut as a simple unintended, or even deliberate, sharing of such intelligence —rather, restrictions on access to that intelligence under law would apply to ensure that any sharing with, or use by, other agencies, did not allow for contravention of the spent convictions scheme.
3.31Additionally, the Committee identifies that any spent conviction information collected and used for the purposes of generating intelligence is subject to oversight by the IGIS, and such oversight is acknowledged as usual practice in the IGIS’s submission.
Part 8 - Review under the archives law
3.32The Committee supports the proposed amendments to the Administrative Appeals Tribunal Act 1975 (AAT Act) and the Archives Act 1983 (Archives Act) under Schedule 1, Part 8 of the Bill.
3.33However, the Committee notes the work underway by the Government to reform Australia’s system of administrative review, effectively abolishing the Administrative Appeals Tribunal (AAT), to be replaced by an as yet unknown review body.
3.34The Committee’s support for the changes proposed in Part 8 of the Bill is predicated on the assumption that these issues will be adequately addressed in whatever new review body is established.
Part 3 - Membership of the Parliamentary Joint Committee on Intelligence and Security
3.35The Committee notes with interest the measure included in Schedule 1, Part 3 of the Bill to amend the composition of the Committee.
3.36The justifications provided for the change, citing flexibility, reducing constraints, and covering of leave as well as expediency, were recommended by Government.
3.37However, the Committee also notes that on the previous occasion that the constitution of the Committee was changed—in 2011, by Government amendments to the Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010—no justification or indication of consultation was provided in either the Minister’s speech or the supplementary EM presented with the amendments.
3.38Moreover, the Committee recognises that while the proposed changes will increase the membership to 13, and tie only eight of those positions to a particular House of Parliament, the requirement for a majority of government members does not change, nor does the process for appointment of members to the Committee.
3.39Should the membership be increased, the increase in quorum from six to seven members is essentially a consequential change to ensure that a quorum constitutes a majority of Committee members.
3.40The Committee therefore makes no objection to the proposed changes, should both Houses of the Parliament choose to pass them.
3.41Should the changes become law, the Committee notes that the amendments commence immediately so will require expedient appointment of the extra members. The Committee also notes that the current appointments to the Committee are not affected by the measure, so the current members remain in place unless their membership ceases in accordance with Clause 15 of Schedule 1 of the IS Act.
Part 9 - Other amendments
3.42The Committee acknowledges the concerns regarding the proposed changes to Part 2 of the IS Act related to Ministerial directions from the Foreign Minister to the Australian Secret Intelligence Service (ASIS).
3.43By necessity, the majority of detail and evidence provided to the Committee regarding the need for and impact of this proposed change is highly classified. The functions of ASIS are clearly defined within section 6 of the IS Act, but the current discretionary power under paragraph 6(1)(e), enabling direction of activities ‘relating to the capabilities, intentions or activities of people or organisations outside Australia’, is one that can enable some of the most sensitive and important foreign intelligence activities that the Australian Government deems necessary.
3.44The discretionary nature of these activities, as the operational enabler of obtaining sensitive intelligence or covert conduct of operations, requires the highest level of secrecy.
3.45The concerns raised by both Dr Walker-Munro and the Law Council of Australia reflect the need for careful consideration of any change to these sensitive enabling provisions in the IS Act. The Committee’s access to the required classified information provides for clear understanding and full review while protecting the necessary secrecy required.
3.46The contentions of the submitters that the proposed changes lack sufficient justification, and that practice to date has been for directions to be for a purpose and the changes will disconnect the activities or class of activities from stated purpose, are refuted by ASIS.
3.47As outlined in Chapter 2, ASIS and the IGIS provided both public and classified evidence explaining the need for the amendment.
3.48Having considered the classified and unclassified evidence put before it, the Committee accepts their reasoning.
3.49The Committee also notes that any such directions will continue to be subject to oversight by the IGIS.
Conclusion
3.50Overall, the Committee supports the proposed amendments within the Bill. The implementation of the associated Richardson Review recommendations is welcome and the additional IS Act amendments are supported for the reasons stated above.
3.51The Committee noted evidence from the Government that outstanding recommendations of the Richardson Review are under consideration and will come to this Committee in future bills in due course.
3.52In its ongoing review of the IS Act the Committee also observes that further consideration should be given to the level of transparency by the Committee of directions made by the Minister for Foreign Affairs to ASIS; and the quorum requirements for meetings of the Committee.
3.53Following the implementation of the recommendation in this report, the Committee recommends that the Bill be passed by Parliament.
3.54The Committee recommends that, following implementation of the recommendation in this report, the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023 be passed by the Parliament.
Mr Peter Khalil MP
Chair
9 May 2023