Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010 - 2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
INTELLIGENCE SERVICES LEGISLATION AMENDMENT BILL 2011
REPLACEMENT EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
This memorandum takes account of recommendations made by the Senate Legal
and Constitutional Affairs Legislation Committee report tabled on 22 June
2011
INTELLIGENCE SERVICES LEGISLATION AMENDMENT BILL 2011
OUTLINE
This Bill makes amendments to the Australian Security Intelligence
Organisation Act 1979 (ASIO Act), the Intelligence Services Act 2001 (IS
Act) and the Criminal Code. The amendments have been identified through a
targeted review and practical experience with the legislation relating to
security and intelligence agencies, and are aimed at improving the
operation of some provisions of those Acts.
Amendments to the Australian Security Intelligence Organisation Act 1979
The Bill will amend the ASIO Act to align the definition of 'foreign
intelligence' and the collection of foreign intelligence under the ASIO Act
with the IS Act and Telecommunications (Interception and Access) Act 1979
(TIA Act). This will ensure that the collection of foreign intelligence
under the ASIO Act encompasses the same range of intelligence about state
and non-state threats as covered by the term 'foreign intelligence' in
those other Acts. It will mean that ASIO's foreign intelligence function
is consistent with the functions of Australia's foreign intelligence
agencies, reflecting the fact that ASIO's limited foreign intelligence
function is intended to complement those other agencies where necessary to
collect foreign intelligence within Australia. ASIO's foreign intelligence
function is exercised under warrant or authorisation issued by the Attorney-
General and on advice from the Minister for Defence or Minister for Foreign
Affairs. Similar amendments to the TIA Act were made in the Anti-People
Smuggling and Other Measures Act 2010.
The Bill will also amend the ASIO Act to clarify that a computer access
warrant authorises access to data held in the target computer at any time
while the warrant is in force. This makes clear that the provision is
intended to authorise access to data that is held in the target computer
during the life of the warrant, and is not limited to data held at a
particular point in time (such as when the warrant is first executed).
This amendment is not intended to change the law, but rather to clarify the
intent of the provision and ensure consistent language is used throughout
the provision.
The Bill will further amend the ASIO Act to exclude the communication of
information concerning the engagement or proposed engagement of staff
within the Australian Intelligence Community (AIC) from the security
assessment provisions in the ASIO Act. This will put ASIO on the same
footing as other AIC agencies in relation to sharing information relevant
to employment within the AIC.
Amendments to the Intelligence Services Act 2001
The Bill will amend the IS Act to provide the Defence Imagery and
Geospatial Organisation (DIGO) with a function to specifically allow DIGO
to provide assistance to the Australian Defence Force (ADF) in support of
military operations and to cooperate with the ADF on intelligence matters.
This is not an extension of the functions of DIGO but a clarification of
them and is consistent with the similar function of the Defence Signals
Directorate.
The Bill will also provide a new ground for obtaining a Ministerial
Authorisation for the purpose of producing intelligence on an Australian
person. The new ground will apply where the Minister is satisfied that an
Australian person is involved in, or likely to be involved in, activities
related to a contravention of a UN sanction enforcement law. There is an
increasing focus and requirement for intelligence on goods and money being
moved to specific countries contrary to UN sanctions. Some of the existing
grounds for Ministerial Authorisations would cover some, but not all, such
activities. The proposed amendment will avoid any gaps and will provide
transparency as to the grounds for granting Ministerial Authorisations.
The Bill will further amend the IS Act to clarify that the immunity
provision in section 14 is intended to have effect unless another law of
the Commonwealth, a State or Territory expressly overrides it. This
provision provides immunity from civil and criminal activities for a
limited range of circumstances directly related to the proper performance
by the agencies of their functions. This limited immunity is necessary as
certain Australian laws, including State and Territory laws, could impose
liability on the agencies. The proposed amendment will not prevent other
laws from limiting this immunity. However, the amendment will ensure that
any such limitation cannot be done inadvertently, and will require express
consideration to be given to whether section 14 should be overridden.
The Bill will also amend the IS Act to place existing exemptions from the
Legislative Instruments Act 2004 in the IS Act rather than in the
Legislative Instruments Regulations 2004. This is consistent with the
Government's commitment to clearer laws, as the status of certain
instruments under the IS Act will be clear on the face of that Act. The
existing exemptions apply to instruments made under paragraph 6(1)(e)
(Ministerial directions in relation to ASIS activities), section 8
(Ministerial directions to agencies), section 15 (Privacy Rules), and
clause 1 of Schedule 2 (guidelines for the use of weapons and self defence
techniques). These amendments will not change the existing law.
Amendment to the Criminal Code
An amendment will also be made to the immunity provision for the computer
offences in Part 10.7 of the Criminal Code to clarify that the provision is
intended to have effect unless another law of the Commonwealth, a State or
Territory expressly overrides it. This provision mirrors the immunity
provision in section 14 of the IS Act, so it is desirable for these two
provisions to maintain consistency.
FINANCIAL IMPACT STATEMENT
The amendments made by the Intelligence Services Legislation Amendment Bill
2011 will have no financial impact.
NOTES ON CLAUSES
Clause 1 Short title
Clause 1 is a formal provision specifying the short title of the Bill,
which may be cited as the
Intelligence Services Legislation Amendment Act 2011.
Clause 2 Commencement
Clause 2 provides for the commencement of the Bill. This Bill will
commence on the day after this Act receives Royal Assent.
Clause 3 Schedule(s)
Clause 3 provides that each Act that is specified in a Schedule is amended
or repealed as set out in the applicable items in the Schedule concerned,
and any other item in a Schedule to this Act has effect according to its
terms.
Schedule 1 - Amendments of intelligence laws etc.
Schedule 1 - Part 1 - Amendments
Amendments to the Australian Security Intelligence Organisation Act 1979
Amendments relating to ASIO's foreign intelligence function
Items 1 - 3 and 5 - 15 make amendments that relate to ASIO's foreign
intelligence function, which is provided for in paragraph 17(1)(e) of the
Australian Security Intelligence Organisation Act 1979 (ASIO Act).
ASIO has both a 'security intelligence' function and a 'foreign
intelligence' function. Foreign intelligence collection is performed at
the request of the Minister for Foreign Affairs or the Minister for
Defence, who are responsible for Australia's foreign intelligence agencies.
The collection of foreign intelligence is not something ASIO initiates,
and it is not ASIO's core focus.
Australia's foreign intelligence agencies collect foreign intelligence
under the Intelligence Services Act 2001. The functions of the agencies
are set out in Part 2 of that Act. Each of the agencies covered by that
Act has a function 'to obtain, in accordance with the Government's
requirements, intelligence about the capabilities, intentions or activities
of people or organisations outside Australia'. The agencies' collection of
foreign intelligence is limited by section 11 of the Intelligence Services
Act, which provides that 'the functions of the agencies are to be performed
only in the interests of Australia's national security, Australia's foreign
relations or Australia's national economic well-being and only to the
extent that those matters are affected by the capabilities, intentions or
activities of people or organisations outside Australia'.
ASIO's foreign intelligence role complements the functions of the other
intelligence agencies, which are responsible for obtaining foreign
intelligence outside Australia. ASIO's foreign intelligence function is
intended to enable similar intelligence to be collected where it is
necessary to collect foreign intelligence within Australia.
The Bill will amend the ASIO Act to align the definition of 'foreign
intelligence' and the collection of foreign intelligence under the ASIO Act
with the Intelligence Services Act and the Telecommunications (Interception
and Access) Act 1979. This is not 'consistency for the sake of
consistency' - rather it reflects that ASIO has long played a role that is
intended to complement the foreign intelligence role of the other
intelligence agencies. These roles have not been completely aligned
because legislation was drafted at different times, reflecting different
threat environments.
For the ASIO foreign intelligence function to operate as a truly
complementary function, it needs to reflect the same intelligence and the
same purposes for which that intelligence may be obtained under the
Intelligence Services Act. If the definition of foreign intelligence in
the ASIO Act differs to the Intelligence Services Act, this limits what can
be done by ASIO to a narrower range of intelligence than the other agencies
could obtain outside Australia. If not aligned, there are some potential
gaps in Australia's intelligence coverage. The non-alignment of the
foreign intelligence definition has become more prominent over recent years
with the rise of individuals and non-state or non-political organisations
engaging in activities such as the proliferation of nuclear, biological,
chemical and conventional weapons and related technologies.
There are a range of existing safeguards and requirements that apply to
ASIO's foreign intelligence function, which will continue to apply.
Safeguards under the Intelligence Services Act are applicable because
ASIO's foreign intelligence function is performed at the request of the
Defence Minister or Foreign Affairs Minister, who are responsible for
Australia's foreign intelligence agencies. Therefore, before a request is
made of ASIO, requirements under the Intelligence Services Act need to be
complied with. These include requirements to obtain a Ministerial
authorisation if the agencies undertake an activity for the purpose of
producing intelligence on an Australian person. An 'activity' would
include requesting ASIO to use its foreign intelligence function to produce
intelligence on an Australian person. A Ministerial authorisation may only
be granted by the Minister for Defence or Minister for Foreign Affairs if
satisfied that the Australian person is engaged in certain specified
activities. There are a range of other safeguards that apply in the event
that a Ministerial authorisation is given, including time periods for the
authorisation (6 months).
The Defence Minister or Foreign Affairs Minister must be satisfied of the
basis of the request, and would provide sufficient information for the
Attorney-General to be satisfied as to why the request is in the interests
of Australia's national security, foreign relations or national economic
well-being.
In making a decision regarding the discharge of its foreign intelligence
function, ASIO has to comply with relevant guidelines and ministerial
directions about how it should perform its functions, and also comply with
internal protocols and procedures (which have been carefully drawn with a
view to ensuring powers are exercised carefully and appropriately). ASIO
also has to consider this in the context of its limited resources and other
intelligence priorities. Warrants are only submitted to the Attorney-
General for approval after they been through an exhaustive system of checks
within ASIO and the Attorney-General's Department.
If ASIO decides to seek a foreign intelligence collection warrant, ASIO has
to make a case with supporting material when putting a warrant request to
the Attorney-General. The Attorney-General must be satisfied, on the basis
of advice received from the relevant Minister, that the collection of
foreign intelligence relating to a matter is in the interests of
Australia's national security, Australia's foreign relations or Australia's
economic well-being. These are serious matters of significant national
interest. The Attorney-General may only issue a warrant or authorisation
under section 27A or 27B of the ASIO Act if satisfied that the legislative
grounds have been met.
There are also reporting obligations in section 34 of the ASIO Act,
requiring the Director-General of Security to report in writing to the
Attorney-General in respect of each foreign intelligence collection
warrant. The Director-General must report on the extent to which the
action taken under the warrant has assisted the Organisation in carrying
out its functions. This provides further assurance that foreign
intelligence collection by ASIO is appropriate and being used for
legitimate purposes. Similar reporting requirements apply to the foreign
intelligence agencies under section 10A of the Intelligence Services Act.
Finally, section 17A of the ASIO Act includes an express protection for
lawful advocacy, protest or dissent.
The Inspector-General of Intelligence and Security regularly reviews ASIO's
warrant documentation and in doing so has full access to all the warrant
information, including the supporting evidence that was put forward to the
Attorney-General. The IGIS looks at legality and also propriety, which
encompasses all those other aspects that sit in and around the legislation,
including whether ASIO adhered to internal guidelines.
Item 1 - Section 4
This item will insert a definition of 'Defence Minister' into section 4 of
the Australian Security Intelligence Organisation Act 1979 (ASIO Act).
This definition provides that for the purposes of the ASIO Act, Defence
Minister means the Minister administering section 1 of the Defence Act
1903. This is consistent with the way the Defence Minister is defined in
other legislation.
Item 2 - Section 4
This item will insert a definition of 'Foreign Affairs Minister' into
section 4 of the ASIO Act. This definition provides that for the purposes
of the ASIO Act, Foreign Affairs Minister means the Minister administering
the Diplomatic Privileges and Immunities Act 1967. This is consistent with
the way the Foreign Affairs Minister is defined in other legislation.
Item 3 - Section 4 (definition of foreign intelligence)
This item will repeal the current definition of 'foreign intelligence' in
section 4 of the Australian Security Intelligence Organisation Act 1979 and
substitute a new definition. The new definition defines 'foreign
intelligence' to mean intelligence about the capabilities, intentions or
activities of people or organisations outside Australia. It replaces the
existing definition which means 'intelligence relating to the capabilities,
intentions or activities of a foreign power'. A 'foreign power' is 'a
foreign government, an entity that is directed or controlled by a foreign
government or governments, or a foreign political organisation'. The new
definition will encompass intelligence about people, organisations and
governments outside Australia (the term 'people' encompasses governments,
consistent with section 22 of the Acts Interpretation Act 1901).
This new definition will ensure that there is a consistent meaning of
foreign intelligence and a consistent approach to foreign intelligence
collection in the ASIO Act, the Intelligence Services Act 2001 and the
Telecommunications (Interception and Access) Act 1979. The amended
definition will reflect the changing nature of threats to Australia, since
activities undertaken by non-State actors, whether individually or as a
group, can also threaten Australia's national interest.
Item 4 - Paragraph 25A(4)(a)
This item is intended to standardise the wording used in section 25A of the
Australian Security Intelligence Organisation Act 1979 and clarify that
computer access warrants issued under section 25A authorise ongoing access
to data held in the target computer over the life of the warrant.
This item will update the language used in paragraph 25A(4)(a) to replace
'stored in the target computer' with 'held in the target computer at any
time while the warrant is in force'. The language 'held' in a computer is
used in subsection 25A(2) and this amendment to subsection 25A(4) will
ensure consistency in the language used throughout section 25A. The
amendment also updates the language used to make it clear that the original
legislative intent of section 25A is to authorise ongoing access to the
target computer over the life of the warrant. This amendment is not
intended to change the operation of the provision.
Items 5 and 6 - Paragraph 27A(1)(a)
These items are consequential amendments to improve the readability of the
relevant provisions and make it clear that references to the Minister are
references to the Minister who is responsible for issuing the warrants
under this section.
Item 7 - Paragraph 27A(1)(b)
This item will amend the conditions for the issue of foreign intelligence
warrants under the Australian Security Intelligence Organisation Act 1979.
The purpose of this amendment is to align the conditions for the issue of
foreign intelligence warrants under the ASIO Act with corresponding
provisions in the Intelligence Services Act 2001 and the Telecommunications
(Interception and Access) Act 1979. This will ensure a consistent approach
to foreign intelligence collection across all three Acts.
Section 27A provides the circumstances in which the Attorney-General (the
issuing Minister) may issue a warrant for foreign intelligence collection.
Currently, paragraph 27A(1)(b) provides that a condition for the issue of a
foreign intelligence collection warrant is that the Attorney-General must
be satisfied, on the basis of advice received from the relevant Minister,
that the collection of foreign intelligence relating to that matter is
important in relation to the defence of the Commonwealth or to the conduct
of the Commonwealth's international affairs.
This item will amend this condition so that the issuing Minister may issue
a warrant for foreign intelligence collection if satisfied, on the basis of
advice received from the Defence Minister or the Foreign Affairs Minister,
that the collection of foreign intelligence relating to that matter is in
the interests of Australia's national security, Australia's foreign
relations or Australia's national economic well-being. The new conditions
recognise the broader nature of the contemporary threat environment, and
the construct within which Australia's foreign intelligence agencies
collect foreign intelligence and which sets the three broad boundaries
which have been enshrined in the Intelligence Services Act since 2001.
The proposed amendment seeks to apply the existing parameters already
applicable to foreign powers and political organisations to individual 'non-
state' actors as part of the harmonisation of the legislative definitions.
This is designed to facilitate more streamlined cooperation between ASIO
and the foreign intelligence agencies and minimise the chance of an
intelligence failure.
Intelligence that concerns Australia's national economic well-being may
include matters on sustaining the economy and the national economic well-
being, in addition to matters of importance to Australia's national
security or foreign relations. Information in regards to the national
economic-wellbeing may include information about the security of our
resources, the security of our major information networks and other major
issues that may affect the national economic infrastructure. The phrase
'national economic well-being' is used in section 11 of the Intelligence
Services Act in defining the limits on the functions of intelligence
agencies. In applying this condition to the ASIO Act, this amendment will
ensure that both Acts are consistent.
Australia's national security, Australia's foreign relations and
Australia's national economic well-being are serious matter of significant
national interest.
Items 8 to 10 - Subsections 27A(1) and (3)
These items are consequential amendments to improve the readability of the
relevant provisions and make it clear that references to the Minister are
references to the Minister who is responsible for issuing the warrants
under this section.
Items 11 to 12 - Paragraph 27B(a)
These items are consequential amendments to improve the readability of the
relevant provisions and make it clear that references to the Minister are
references to the Minister who is responsible for granting authorisations
under this section.
Item 13 - Paragraph 27B(b)
This item will amend the conditions for authorising foreign intelligence
collection under the Australian Security Intelligence Organisation Act
1979, in the same way as Item 7 amends the conditions for issuing foreign
intelligence warrants.
The purpose of this amendment is to align the conditions for authorising
foreign intelligence collection under the ASIO Act with the corresponding
provisions in the Intelligence Services Act 2001 and the Telecommunications
(Interception and Access) Act 1979. This will ensure a consistent approach
to foreign intelligence collection across all three Acts.
Section 27B provides the circumstances in which the Attorney-General may
issue an authorisation for foreign intelligence collection. Currently,
paragraph 27B(b) provides that the Attorney-General must be satisfied, on
the basis of advice received from the relevant Minister, that the
collection of foreign intelligence relating to that matter is important in
relation to the defence of the Commonwealth or to the conduct of the
Commonwealth's international affairs.
This item will amend this condition so that the authorising Minister may
authorise the collection of foreign intelligence if satisfied, on the basis
of advice received from the Defence Minister or the Foreign Affairs
Minister, that the collection of foreign intelligence relating to that
matter is in the interests of Australia's national security, Australia's
foreign relations or Australia's national economic well-being. The new
conditions recognise the broader nature of the contemporary threat
environment, and the construct within which Australia's foreign
intelligence agencies collect foreign intelligence and which sets the three
broad boundaries which have been enshrined in the Intelligence Services Act
since 2001.
More detail on these conditions is outlined above in relation to item 7.
Items 14 and 15 - Section 27B
These items are consequential amendments to improve the readability of the
relevant provisions and make it clear that references to the Minister are
references to the Minister who is responsible for granting authorisations
under this section.
Item 16 - Subsection 35(1)
This item will insert a definition of 'agency head' into section 35 of the
Australian Security Intelligence Organisation Act 1979. It covers the
agency head of each of the six Australian Intelligence Community agencies.
This definition is for the purposes of the amendment that will be made by
Item 18.
Item 17 - Subsection 35(1)
This item will insert a definition of 'staff member' into section 35 of the
Australian Security Intelligence Organisation Act 1979. This definition is
intended to capture a broad range of 'staff members' of the six Australian
Intelligence Community agencies. These agencies operate under differing
legislative provisions, and therefore have differing employment provisions,
so this definition needs to cover all such employment arrangements. It
extends to officers, employees, consultants, contractors, persons made
available to agencies, and agency heads. This definition is for the
purposes of the amendment that will be made by Item 18.
Item 18 - At the end of section 36
This item will amend section 36 to exclude from the security assessment
provisions in Part IV of the Australian Security Intelligence Organisation
Act 1979 the communication by ASIO of information relating to the
engagement, or proposed engagement, of a person by ASIO or by another
intelligence or security agency within the AIC.
The amendment will ensure that ASIO can share information about employment
decisions with other members of the AIC. This might include information in
response to inquiries about a person's employment or proposed employment
with ASIO or another AIC agency, information about security clearances and
other related information. Other AIC agencies are already able to share
this information and are not subject to the same administrative
requirements that apply to ASIO (which includes notification and review
rights). Therefore, this amendment will put ASIO on the same footing as
other AIC agencies when it comes to sharing information relating to
employment within the AIC. This is a very limited category of information,
and the amendment will only impact on a small group of persons. Employment
decisions within the AIC need to be made carefully, and necessarily the
processes take quite some time compared to other Government employment
processes in order to ensure suitability of applicants and minimise risk of
compromising national security.
Amendments to the Criminal Code Act 1995
Item 19 - After subsection 476.5(2A) of the Criminal Code
This item will amend subsection 476.5 of the Criminal Code Act 1995 to
ensure that this immunity provision is not vulnerable to being
inadvertently overridden by subsequent legislation. It is complementary
to the amendment made by Item 26.
Subsection 476.5 provides immunity from civil and criminal liability for
staff members and agents of ASIS, DSD and DIGO for computer-related
activities carried out by the agencies in the proper performance of their
functions, which might otherwise be prohibited by the unintended
consequences of certain Australian laws.
This immunity is only available for activities that are directly related to
the proper performance by the agencies of their functions. The purpose of
this amendment is to make express the legislative intent that subsection
476.5 has broad application and cannot be overridden by other Commonwealth,
State or Territory laws, unless that law expressly states otherwise.
Amendments to the Intelligence Services Act 2001
Item 20 - After subsection 6(3)
This item will insert a new subsection 6(3A) into the Intelligence Services
Act 2001 to make express the status of instruments made under paragraph
6(1)(e) of that Act.
This amendment will provide that a direction given under paragraph 6(1)(e)
is not a legislative instrument. A direction made under paragraph 6(1)(e)
is currently exempt from the Legislative Instruments Act 2003, and this is
stated in the Legislative Instruments Regulations 2004. Consistent with
the recommendations of the 2008 Review into the Legislative Instruments
Act, there is a preference for exemptions to be included in a primary Act
rather than the Legislative Instruments Regulations. This makes laws
clearer and means that it is only necessary to consult the primary Act to
ascertain whether an instrument is a legislative instrument. Therefore
this item moves the exemption from the Regulations into the Intelligence
Services Act 2001.
The amendment does not change the law as instruments made under paragraph
6(1)(e) are already exempt under the Legislative Instruments Regulations
(this is an actual exemption from the operation of the Legislative
Instruments Act).
Item 21 - At the end of section 6B
This item will insert a new paragraph 6B(g) into the Intelligence Services
Act 2001 to provide the Defence Imagery and Geospatial Organisation (DIGO)
with a general function of assisting the Australian Defence Force (ADF).
Section 6B of the Intelligence Services Act 2001 sets out the functions of
DIGO. The proposed new paragraph 6B(g) specifically allows DIGO to provide
assistance to the ADF in support of military operations and to cooperate
with the ADF on intelligence matters. This is not an extension of the
functions of DIGO but a clarification of them. The function is consistent
with a similar function of the Defence Signals Directorate.
Item 22 - At the end of section 8 (before the note)
This item will insert a new subsection 8(5) into the Intelligence Services
Act 2001 to make express the status of instruments made under section 8 of
that Act.
This amendment will provide that a direction given under section 8 is not a
legislative instrument. A direction made under section 8 is currently
exempt from the Legislative Instruments Act 2003, and this is stated in the
Legislative Instruments Regulations 2004. Consistent with the
recommendations of the 2008 Review into the Legislative Instruments Act,
there is a preference for exemptions to be included in a primary Act rather
than the Legislative Instruments Regulations. This makes laws clearer and
means that it is only necessary to consult the primary Act to ascertain
whether an instrument is a legislative instrument. Therefore this item
moves the exemption from the Regulations into the Intelligence Services Act
2001.
The amendment does not change the law as instruments made under section 8
are already exempt under the Legislative Instruments Regulations (this is
an actual exemption from the operation of the Legislative Instruments Act).
Item 23 - After subparagraph 9(1A)(a)(iv)
This item will insert new subparagraph 9(1A)(a)(iva) into the Intelligence
Services Act 2001 to provide an additional ground for granting a
Ministerial Authorisation under that section.
Under the Intelligence Services Act 2001, a Ministerial Authorisation is
required for the Australian Secret Intelligence Service (ASIS), the Defence
Signals Directorate (DSD) or the Defence Imagery and Geospatial
Organisation (DIGO) to undertake activities for the purpose of producing
intelligence on an Australian person. Under paragraph 9(1A)(a), a
condition for the issue of such a Ministerial Authorisation is that the
Minister must be satisfied that the Australian person is, or is likely to
be, involved in one or more of the activities listed in paragraph 9(1A)(a).
This item will amend the grounds for obtaining Ministerial Authorisations
to include, as a specific ground, that the Australian person is, or is
likely to be, involved in activities involving a contravention of a 'UN
sanction enforcement law'. 'UN sanction enforcement law' has the same
meaning as in the Charter of the United Nations Act 1945, and covers things
such as providing money and goods to persons and entities contrary to UN
sanctions.
Item 24 - Subsection 9(1B)
This item will insert a definition of 'UN sanction enforcement law' into
subsection 9(1B) of the Intelligence Services Act 2001 for the purpose of
the amendment made by Item 23. This definition provides that UN sanction
enforcement law has the same meaning as in the Charter of the United
Nations Act 1945.
Item 25 - Subsection 11(3)
This item will amend subsection 11(3) to include new paragraph 6B(g) of the
Intelligence Services Act 2001, consequential to the amendment made by Item
21. This will ensure that the cooperation and assistance function of DIGO
inserted by Item 21 is not limited by subsection 11(1), and enables DIGO to
provide a broad range of cooperation and assistance to the ADF.
Item 26 - After subsection 14(2A)
This item will insert new subsections 14(2AA) and (2AB) into the
Intelligence Services Act 2001 to ensure that the immunity provision in
section 14 is not vulnerable to being inadvertently overridden by
subsequent legislation.
Section 14 provides immunity from civil and criminal liability for staff
members and agents of ASIS, DSD and DIGO for activities carried out by the
agencies in the proper performance of their functions, which might
otherwise be prohibited by the unintended consequences of certain
Australian laws.
This immunity is only available for activities that are directly related to
the proper performance by the agencies of their functions. The purpose of
this amendment is to make express the legislative intent that section 14
has broad application and cannot be overridden by other Commonwealth, State
or Territory laws, unless that law expressly states otherwise.
Item 27 - At the end of section 15
This item will insert a new subsection 15(7) into the Intelligence Services
Act 2001 to make express the status of instruments made under section 15 of
that Act.
This amendment will provide that rules made under section 15 are not
legislative instruments. Rules made under section 15 are currently exempt
from the Legislative Instruments Act 2003, and this is stated in the
Legislative Instruments Regulations 2004. Consistent with the
recommendations of the 2008 Review into the Legislative Instruments Act,
there is a preference for exemptions to be included in a primary Act rather
than the Legislative Instruments Regulations. This makes laws clearer and
means that it is only necessary to consult the primary Act to ascertain
whether an instrument is a legislative instrument. Therefore this item
moves the exemption from the Regulations into the Intelligence Services Act
2001.
The amendment does not change the law as instruments made under section 15
are already exempt under the Legislative Instruments Regulations (this is
an actual exemption from the operation of the Legislative Instruments Act).
Item 28 - At the end of clause 1 of Schedule 2
This item will insert a new subclause 8 at the end of clause 1 of Schedule
2 of the Intelligence Services Act 2001 to make express the status of
instruments made under subclause 1(6) of Schedule 2 of that Act.
This amendment will provide that guidelines issued under subclause (6) are
not legislative instruments. Guidelines issued under subclause (6) are
currently exempt from the Legislative Instruments Act 2003, and this is
stated in the Legislative Instruments Regulations 2004. Consistent with
the recommendations of the 2008 Review into the Legislative Instruments
Act, there is a preference for exemptions to be included in a primary Act
rather than the Legislative Instruments Regulations. This makes laws
clearer and means that it is only necessary to consult the primary Act to
ascertain whether an instrument is a legislative instrument. Therefore
this item moves the exemption from the Regulations into the Intelligence
Services Act 2001.
The amendment does not change the law as instruments made under subclause
(6) are already exempt under the Legislative Instruments Regulations
(noting that this exemption is declaratory and describes the effect of the
Legislative Instruments Act).
Schedule 1 - Part 2 - application provisions
Item 29 - Application - paragraph 25A(4)(a) of the ASIO Act
This item is an application provision.
This item will provide that paragraph 25A(4)(a) of the Australian Security
Intelligence Organisation Act 1979, as amended by this Schedule, applies in
relation to a request that is made under subsection 25A(1) of that Act
after this Schedule commences.
Item 30 - Application - sections 27A and 27B of the ASIO Act
This item is an application provision.
This item provides that section 27A of the Australian Security Intelligence
Organisation Act 1979, as amended by this Schedule, applies in relation to
a notice that is given under paragraph 27A(1)(a) of that Act after this
Schedule commences.
It also provides that section 27B of the Australian Security Intelligence
Organisation Act 1979, as amended by this Schedule, applies in relation to
a notice that is given under paragraph 27B(a) of that Act after this
Schedule commences.
Item 31 - Application - paragraph 36(c) of the ASIO Act
This item is an application provision.
This item provides that paragraph 36(c) of the Australian Security
Intelligence Organisation Act 1979, as added by this Schedule, applies in
relation to a security assessment that is furnished by the Organisation
after this Schedule commences.
Item 32 - Application - subsection 15(7) of the Intelligence Services Act
This item is an application provision.
This item provides that subsection 15(7) of the Intelligence Services Act
2001 (IS Act), as added by this Schedule, applies in relation to rules that
are made under subsection 15(1) of that Act before or after this Schedule
commences. This is necessary to clarify the status of rules made under
subsection 15(1) of the IS Act, since the rules have only been stated to be
exempt from the Legislative Instruments Act 2003 since 2010, when an
amendment was made to the Legislative Instruments Regulations 2004. This
retrospective operation is necessary to ensure the validity of actions done
in reliance on the existing rules made under subsection 15(1).
Index]
[Search]
[Download]
[Bill]
[Help]