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This is a Bill, not an Act. For current law, see the Acts databases.
2022-2023
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
National Security Legislation
Amendment (Comprehensive Review
and Other Measures No. 2) Bill 2023
No. , 2023
(Attorney-General)
A Bill for an Act to amend the law relating to
national security and intelligence matters, and for
related purposes
No. , 2023
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Part 1--Powers and functions of the Attorney-General
3
Acts Interpretation Act 1901
3
Australian Security Intelligence Organisation Act 1979
3
Law Officers Act 1964
3
Telecommunications (Interception and Access) Act 1979
4
Part 2--Defences for certain national infrastructure related
offences
5
Criminal Code Act 1995
5
Part 3--Membership of the Parliamentary Joint Committee on
Intelligence and Security
7
Intelligence Services Act 2001
7
Part 4--Spent convictions
8
Crimes Act 1914
8
Part 5--Reporting by the Inspector-General of Intelligence and
Security
9
Inspector-General of Intelligence and Security Act 1986
9
Public Interest Disclosure Act 2013
10
Part 6--Investigations by the Ombudsman
11
Ombudsman Act 1976
11
Part 7--Exemptions from freedom of information law
12
Freedom of Information Act 1982
12
Part 8--Review under the archives law
14
Administrative Appeals Tribunal Act 1975
14
Archives Act 1983
15
ii
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
No. , 2023
Freedom of Information Act 1982
16
Part 9--Other amendments
18
Intelligence Services Act 2001
18
No. , 2023
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
1
A Bill for an Act to amend the law relating to
1
national security and intelligence matters, and for
2
related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the
National Security Legislation Amendment
6
(Comprehensive Review and Other Measures No. 2) Act 2023
.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
No. , 2023
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Amendments
Schedule 1
Powers and functions of the Attorney-General
Part 1
No. , 2023
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
3
Schedule 1--Amendments
1
Part 1--Powers and functions of the
2
Attorney-General
3
Acts Interpretation Act 1901
4
1 Subsection 19B(2) (note)
5
Repeal the note, substitute:
6
Note 1:
For when the Governor-General may make a substituted reference
7
order that relates to certain provisions of the
Australian Security
8
Intelligence Organisation Act 1979
, or the
Telecommunications
9
(Interception and Access) Act 1979
, that refer to the Attorney-General,
10
see sections 5B and 6V of those Acts respectively.
11
Note 2:
A substituted reference order may be amended or revoked in the same
12
way as it is made (see subsection 33(3) of this Act).
13
Australian Security Intelligence Organisation Act 1979
14
2 At the end of Part I
15
Add:
16
5B Substitution of references to the Attorney-General
17
Unless the Prime Minister is satisfied that exceptional
18
circumstances exist, the Governor-General must not make a
19
substituted reference order under subsection 19B(2) of the
Acts
20
Interpretation Act 1901
that relates to a provision of this Act (other
21
than section 34JE) that refers to the Attorney-General.
22
Law Officers Act 1964
23
3 Subsection 17(6)
24
Repeal the subsection, substitute:
25
(6) This section does not apply to the following:
26
Schedule 1
Amendments
Part 1
Powers and functions of the Attorney-General
4
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
No. , 2023
(a) the powers and functions of the Attorney-General under the
1
Australian Security Intelligence Organisation Act 1979
2
(other than under subsections 34JE(3) and (4));
3
(b) the powers and functions of the Attorney-General under the
4
Telecommunications (Interception and Access) Act 1979
.
5
Telecommunications (Interception and Access) Act 1979
6
4 At the end of Part 1-2
7
Add:
8
6V Substitution of references to the Attorney-General
9
Unless the Prime Minister is satisfied that exceptional
10
circumstances exist, the Governor-General must not make a
11
substituted reference order under subsection 19B(2) of the
Acts
12
Interpretation Act 1901
that relates to a provision of this Act that
13
refers to the Attorney-General.
14
Amendments
Schedule 1
Defences for certain national infrastructure related offences
Part 2
No. , 2023
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
5
Part 2--Defences for certain national infrastructure
1
related offences
2
Criminal Code Act 1995
3
5 Section 473.1 of the Criminal Code
4
Insert:
5
ASIO officer
means:
6
(a) the Director-General of Security; or
7
(b) an ASIO employee (within the meaning of the
Australian
8
Security Intelligence Organisation Act 1979
); or
9
(c) an ASIO affiliate (within the meaning of that Act).
10
6 After subsection 474.6(4) of the Criminal Code
11
Insert:
12
(4A) A person is not criminally responsible for an offence against
13
subsection (1) or (3) if:
14
(a) the person is, at the time of the offence, an ASIO officer
15
acting in good faith in the course of the person's duties; and
16
(b) the conduct of the person is reasonable in the circumstances
17
for the purpose of performing that duty.
18
Note 1:
A defendant bears an evidential burden in relation to the matter in this
19
subsection, see subsection 13.3(3).
20
Note 2:
See also subsection 475.1(2) for the interaction between this defence
21
and the
Radiocommunications Act 1992
.
22
7 Subsection 476.1(1) of the Criminal Code
23
Insert:
24
ASIO officer
means:
25
(a) the Director-General of Security; or
26
(b) an ASIO employee (within the meaning of the
Australian
27
Security Intelligence Organisation Act 1979
); or
28
(c) an ASIO affiliate (within the meaning of that Act).
29
Schedule 1
Amendments
Part 2
Defences for certain national infrastructure related offences
6
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
No. , 2023
8 After subsection 477.2(1) of the Criminal Code
1
Insert:
2
(2) A person is not criminally responsible for an offence against
3
subsection (1) if:
4
(a) the person is, at the time of the offence, an ASIO officer
5
acting in good faith in the course of the person's duties; and
6
(b) the conduct of the person is reasonable in the circumstances
7
for the purpose of performing that duty.
8
Note:
A defendant bears an evidential burden in relation to the matter in this
9
subsection, see subsection 13.3(3).
10
9 After subsection 477.3(1) of the Criminal Code
11
Insert:
12
(2) A person is not criminally responsible for an offence against
13
subsection (1) if:
14
(a) the person is, at the time of the offence, an ASIO officer
15
acting in good faith in the course of the person's duties; and
16
(b) the conduct of the person is reasonable in the circumstances
17
for the purpose of performing that duty.
18
Note:
A defendant bears an evidential burden in relation to the matter in this
19
subsection, see subsection 13.3(3).
20
10 Application provision
21
The amendments made by this Part apply in relation to conduct engaged
22
in on or after the commencement of this item.
23
Amendments
Schedule 1
Membership of the Parliamentary Joint Committee on Intelligence and Security
Part 3
No. , 2023
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
7
Part 3--Membership of the Parliamentary Joint
1
Committee on Intelligence and Security
2
Intelligence Services Act 2001
3
11 Subsection 28(2)
4
Repeal the subsection, substitute:
5
(2) The Committee is to consist of 13 members and must include at
6
least:
7
(a) 2 Senators who are Government members; and
8
(b) 2 members of the House of Representatives who are
9
Government members; and
10
(c) 2 Senators who are non-Government members; and
11
(d) 2 members of the House of Representatives who are
12
non-Government members.
13
12 Paragraph 18(1)(a) of Schedule 1
14
Omit "6 members", substitute "7 members".
15
13 Application provision
16
The amendments of the
Intelligence Services Act 2001
made by this
17
Part:
18
(a) apply, on and after the commencement of this item, in
19
relation to the Committee established in respect of the 47th
20
Parliament; and
21
(b) do not affect the appointment of a member of that Committee
22
made before the commencement of this item.
23
Schedule 1
Amendments
Part 4
Spent convictions
8
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
No. , 2023
Part 4--Spent convictions
1
Crimes Act 1914
2
14 At the end of Subdivision B of Division 6 of Part VIIC
3
Add:
4
85ZZJA Further exclusions--Australian Security Intelligence
5
Organisation
6
(1) Division 3 does not apply in relation to:
7
(a) the disclosure of information to or by ASIO, or an ASIO
8
officer, if the disclosure is made for the purposes of the
9
performance of the functions, or the exercise of the powers,
10
of ASIO or the officer; or
11
(b) filing or recording information that comes into the possession
12
of ASIO, or an ASIO officer, if the filing or recording is done
13
for the purposes of the performance of the functions, or the
14
exercise of the powers, of ASIO or the officer; or
15
(c) the use by ASIO, or an ASIO officer, of information for the
16
purposes of the performance of the functions, or the exercise
17
of the powers, of ASIO or the officer.
18
(2) In this section:
19
ASIO
means the Australian Security Intelligence Organisation.
20
ASIO officer
means:
21
(a) the Director-General of Security; or
22
(b) an ASIO employee (within the meaning of the
Australian
23
Security Intelligence Organisation Act 1979
); or
24
(c) an ASIO affiliate (within the meaning of that Act).
25
Amendments
Schedule 1
Reporting by the Inspector-General of Intelligence and Security
Part 5
No. , 2023
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
9
Part 5--Reporting by the Inspector-General of
1
Intelligence and Security
2
Inspector-General of Intelligence and Security Act 1986
3
15 After subsection 35(2AA)
4
Insert:
5
(2AB) The Inspector-General must include in a report referred to in
6
subsection (2):
7
(a) the number of complaints made to the Inspector-General
8
under Division 2 of Part II of this Act during the period to
9
which the report relates; and
10
(b) the kinds of matters to which the complaints related; and
11
(c) the actions taken by the Inspector-General in response to the
12
complaints, including the number of inquiries conducted by
13
the Inspector-General in response to the complaints; and
14
(d) a summary of the actions taken by the relevant intelligence
15
agencies in response to the following:
16
(i) the complaints;
17
(ii) the Inspector-General's conclusions and
18
recommendations as a result of the inquiries.
19
(2AC) The Inspector-General must include in a report referred to in
20
subsection (2):
21
(a) the number of disclosures of information received by the
22
Inspector-General under the
Public Interest Disclosure Act
23
2013
during the period to which the report relates; and
24
(b) the kinds of disclosable conduct with which the information
25
was concerned; and
26
(c) the actions taken by the Inspector-General to handle the
27
disclosures, including:
28
(i) the number of inquiries conducted by the
29
Inspector-General under this Act; and
30
(ii) the number of investigations conducted by the
31
Inspector-General under the
Public Interest Disclosure
32
Act 2013
; and
33
Schedule 1
Amendments
Part 5
Reporting by the Inspector-General of Intelligence and Security
10
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
No. , 2023
(d) a summary of the actions taken by the relevant intelligence
1
agencies in response to the following:
2
(i) the disclosures;
3
(ii) the Inspector-General's conclusions and
4
recommendations as a result of the inquiries or
5
investigations;
6
(iii) any other matters set out in reports relating to the
7
inquiries or investigations.
8
(2AD) The head of an intelligence agency must give the
9
Inspector-General such information and assistance as the
10
Inspector-General reasonably requires in relation to the matters
11
mentioned in paragraphs (2AB)(d) and (2AC)(d).
12
Public Interest Disclosure Act 2013
13
16 At the end of subsection 76(2)
14
Add:
15
Note:
The IGIS's annual report is also required to include information about
16
public interest disclosures received by the IGIS: see section 35 of the
17
Inspector-General of Intelligence and Security Act 1986
.
18
17 Application provision
19
Subsections 35(2AB) to (2AD) of the
Inspector-General of Intelligence
20
and Security Act 1986
, as inserted by this Part, apply in relation to an
21
annual report for a period that begins on or after the commencement of
22
this item.
23
Amendments
Schedule 1
Investigations by the Ombudsman
Part 6
No. , 2023
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
11
Part 6--Investigations by the Ombudsman
1
Ombudsman Act 1976
2
18 Subsection 3(1)
3
Insert:
4
Department of Defence
means the Department administered by the
5
Minister administering section 1 of the
Defence Act 1903
.
6
19 After paragraph 5(2)(d)
7
Insert:
8
(e) action taken by any of the following:
9
(i) the Australian Security Intelligence Organisation;
10
(ii) the Australian Secret Intelligence Service;
11
(iii) the part of the Department of Defence known as the
12
Australian Geospatial-Intelligence Organisation;
13
(iv) the Australian Signals Directorate;
14
(v) the part of the Department of Defence known as the
15
Defence Intelligence Organisation;
16
(vi) the Office of National Intelligence; or
17
Schedule 1
Amendments
Part 7
Exemptions from freedom of information law
12
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
No. , 2023
Part 7--Exemptions from freedom of information law
1
Freedom of Information Act 1982
2
20 Subparagraph 7(2A)(a)(v)
3
Repeal the subparagraph, substitute:
4
(v) the Australian Geospatial-Intelligence Organisation
5
(other than a document that has originated with, or has
6
been received from, the Australian Hydrographic Office
7
in the performance of its functions under
8
subsection 223(2) of the
Navigation Act 2012
);
9
21 At the end of subsection 7(2A)
10
Add:
11
Note:
The Australian Hydrographic Office is part of the Australian
12
Geospatial-Intelligence Organisation (see subsection 6B(3) of the
13
Intelligence Services Act 2001
).
14
22 After subsection 7(2F)
15
Insert:
16
(2G) A Minister and an agency are exempt from the operation of this
17
Act in relation to the following documents:
18
(a) a document (an
AUSTRAC
intelligence document
) that has
19
originated with, or has been received from, the Australian
20
Transaction Reports and Analysis Centre (
AUSTRAC
) and
21
that concerns information that was communicated to
22
AUSTRAC:
23
(i) under section 16 of the
Financial Transaction Reports
24
Act 1988
; or
25
(ii) under section 41 of the
Anti-Money Laundering and
26
Counter-Terrorism Financing Act 2006
; or
27
(iii) in response to a notice given under section 49 of the
28
Anti-Money Laundering and Counter-Terrorism
29
Financing Act 2006
;
30
(b) a document that contains a summary of, or an extract or
31
information from, an AUSTRAC intelligence document, to
32
Amendments
Schedule 1
Exemptions from freedom of information law
Part 7
No. , 2023
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
13
the extent that it contains such a summary, extract or
1
information.
2
23 Division 1 of Part II of Schedule 2 (item dealing with the
3
Australian Transaction Reports and Analysis Centre)
4
Repeal the item.
5
24 Application provision
6
Subsection 7(2G) of the
Freedom of Information Act 1982
, as inserted
7
by this Part, applies in relation to the following requests for access to a
8
document:
9
(a) a request made on or after the commencement of this item;
10
(b) a request made, but not finally determined, before that
11
commencement.
12
Schedule 1
Amendments
Part 8
Review under the archives law
14
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
No. , 2023
Part 8--Review under the archives law
1
Administrative Appeals Tribunal Act 1975
2
25 Subsection 3(1)
3
Insert:
4
exempt security record
means:
5
(a) a record of the Australian Security Intelligence Organisation;
6
or
7
(b) a record that is claimed to be an exempt record under the
8
Archives Act 1983
for the reason that it contains information
9
or matter of a kind referred to in paragraph 33(1)(a) or (b) of
10
that Act.
11
26 Paragraph 17B(2)(b)
12
Omit "a record of the Australian Security Intelligence Organisation",
13
substitute "an exempt security record".
14
27 Subsection 19F(1)
15
Omit "a record of the Australian Security Intelligence Organisation",
16
substitute "an exempt security record".
17
28 Subsection 19F(3)
18
Omit "A presidential", substitute "If the proceeding relates to a record
19
of the Australian Security Intelligence Organisation, a presidential".
20
29 Subsection 42(1)
21
Omit "If", substitute "Subject to subsection (1A), if".
22
30 After subsection 42(1)
23
Insert:
24
(1A) If:
25
(a) the Tribunal is constituted for the purposes of a proceeding
26
by 3 presidential members in accordance with section 19F;
27
and
28
Amendments
Schedule 1
Review under the archives law
Part 8
No. , 2023
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
15
(b) the proceeding is not in relation to a review of a decision
1
relating to a record of the Australian Security Intelligence
2
Organisation; and
3
(c) the members disagree about a question of law arising in the
4
proceeding;
5
the disagreement is to be settled:
6
(d) if only one presidential member is a Judge--according to the
7
opinion of that member; or
8
(e) if 2 presidential members are Judges--according to the
9
opinion of the majority of the members.
10
Archives Act 1983
11
31 Sections 46 and 48
12
Repeal the sections.
13
32 Subsection 50A(1)
14
Repeal the subsection, substitute:
15
(1) This section applies in a proceeding before the Tribunal in relation
16
to review of a decision of the Archives in respect of access to a
17
record that:
18
(a) is claimed to be an exempt record for the reason that it
19
contains information or matter of a kind referred to in
20
paragraph 33(1)(a) or (b); and
21
(b) relates directly or indirectly to:
22
(i) the performance of the functions or duties, or the
23
exercise of the powers, of a body mentioned in
24
paragraph (a) of the definition of
intelligence agency
in
25
subsection 3(1) of the
Inspector-General of Intelligence
26
and Security Act 1986
; or
27
(ii) the performance of an intelligence function (within the
28
meaning of that Act) of a body mentioned in
29
paragraph (b) of that definition; and
30
(c) is not a record of the Inspector-General of Intelligence and
31
Security.
32
Schedule 1
Amendments
Part 8
Review under the archives law
16
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
No. , 2023
Freedom of Information Act 1982
1
33 Section 55ZA
2
Repeal the section, substitute:
3
55ZA Evidence by Inspector-General of Intelligence and Security--
4
scope
5
This Division applies in an IC review of a decision in relation to a
6
document that:
7
(a) is claimed to be an exempt document under section 33
8
(national security documents); and
9
(b) relates directly or indirectly to:
10
(i) the performance of the functions or duties, or the
11
exercise of the powers, of a body mentioned in
12
paragraph (a) of the definition of
intelligence agency
in
13
subsection 3(1) of the
Inspector-General of Intelligence
14
and Security Act 1986
; or
15
(ii) the performance of an intelligence function (within the
16
meaning of that Act) of a body mentioned in
17
paragraph (b) of that definition; and
18
(c) is not a document of the Inspector-General of Intelligence
19
and Security.
20
34 Subsection 60A(1)
21
Repeal the subsection, substitute:
22
(1) This section applies in a proceeding before the Tribunal under this
23
Act in relation to a document that:
24
(a) is claimed to be an exempt document under section 33
25
(national security documents); and
26
(b) relates directly or indirectly to:
27
(i) the performance of the functions or duties, or the
28
exercise of the powers, of a body mentioned in
29
paragraph (a) of the definition of
intelligence agency
in
30
subsection 3(1) of the
Inspector-General of Intelligence
31
and Security Act 1986
; or
32
Amendments
Schedule 1
Review under the archives law
Part 8
No. , 2023
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
17
(ii) the performance of an intelligence function (within the
1
meaning of that Act) of a body mentioned in
2
paragraph (b) of that definition; and
3
(c) is not a document of the Inspector-General of Intelligence
4
and Security.
5
35 Application provisions
6
(1)
The amendments of sections 17B, 19F and 42 of the
Administrative
7
Appeals Tribunal Act 1975
made by this Part apply in relation to a
8
proceeding for the review of a decision made on or after the
9
commencement of this item.
10
(2)
Despite the repeal of sections 46 and 48 of the
Archives Act 1983
by
11
this Part, those sections continue to apply, in relation to a proceeding
12
for the review of a decision made before the commencement of this
13
item, as if the repeal had not happened.
14
(3)
Subsection 50A(1) of the
Archives Act 1983
, and subsection 60A(1) of
15
the
Freedom of Information Act 1982
, as inserted by this Part, apply in
16
relation to a proceeding for the review of a decision made on or after the
17
commencement of this item.
18
(4)
Section 55ZA of the
Freedom of Information Act 1982
, as inserted by
19
this Part, applies in relation to an IC review that starts on or after the
20
commencement of this item.
21
Schedule 1
Amendments
Part 9
Other amendments
18
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
No. , 2023
Part 9--Other amendments
1
Intelligence Services Act 2001
2
36 Paragraph 6(1)(e)
3
Repeal the paragraph, substitute:
4
(e) to undertake the following other activities relating to the
5
capabilities, intentions or activities of people or organisations
6
outside Australia:
7
(i) such activities of a general or specific nature as the
8
responsible Minister directs;
9
(ii) activities included in such a class or classes of activity
10
or activities as the responsible Minister directs.
11
37 After subsection 6(1)
12
Insert:
13
(1A) Without limiting subparagraph (1)(e)(i), a direction given under
14
that subparagraph may specify the purpose or purposes for which
15
an activity or activities are to be undertaken.
16
(1B) Without limiting subparagraph (1)(e)(ii), a direction given under
17
that subparagraph may specify the purpose or purposes for which a
18
class or classes of activity or activities are to be undertaken.
19
38 Subsection 6(2)
20
Omit "direct ASIS to undertake activities referred to in
21
paragraph (1)(e)", substitute "give a direction under
22
subparagraph (1)(e)(i) or (ii)".
23
39 Subsections 6(3) and (3A)
24
Omit "paragraph (1)(e)" (wherever occurring), substitute
25
"subparagraph (1)(e)(i) or (ii)".
26
40 Section 6A
27
Omit "paragraph 6(1)(e)", substitute "subparagraph 6(1)(e)(i) or (ii)".
28
Amendments
Schedule 1
Other amendments
Part 9
No. , 2023
National Security Legislation Amendment (Comprehensive Review and
Other Measures No. 2) Bill 2023
19
41 Section 6A
1
Omit "undertaken", substitute "undertaken in accordance with the
2
direction".
3
42 Subparagraph 8(1)(a)(ii)
4
Omit "paragraph 6(1)(e)", substitute "subparagraph 6(1)(e)(i) or (ii)".
5