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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
NATIONAL SECURITY LEGISLATION AMENDMENT BILL (NO. 1) 2014
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments and
New Clauses to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, Senator the Honourable George Brandis QC)
AMENDMENTS TO THE NATIONAL SECURITY LEGISLATION AMENDMENT
BILL (NO. 1) 2014
GENERAL OUTLINE
1. The National Security Legislation Amendment Bill (No. 1) 2014 was introduced into
the Senate and referred to the Parliamentary Joint Committee on Intelligence and Security
(the Committee) for inquiry on 16 July 2014. The Committee conducted public and private
hearings and received 30 submissions and 11 supplementary submissions.
2. The Committees report, tabled out of session on 17 September 2014, contains a
number of recommendations for amending the Bill.
3. The amendments to the Bill:
(a) respond to the Committees report (items 1, 2, 7-15, 17-19, 21-32, and 34-54)
(b) respond to an issue raised by the Scrutiny of Bills Committee in its Alert Digest
on the Bill of 3 September 2014 (item 16)
(c) correct an oversight in the evidentiary certificate provisions (items 3-6), and
(d) make two technical corrections to erroneous cross-references to provisions in the
Bill as presented and read a first time in the Senate on 16 July (items 20 and 33).
4. The amendments increase the clarity of provisions of the Bill and enhance safeguards,
primarily in respect of the measures in Schedules 2, 3 and 6 to the Bill, directed to the
intelligence collection powers of the Australian Security Intelligence Organisation (ASIO)
under Division 2 of Part III of the Australian Security Intelligence Organisation Act 1979
(ASIO Act), special intelligence operations conducted by ASIO, and secrecy offences under
the ASIO Act and the Intelligence Services Act 2001.
FINANCIAL IMPACT STATEMENT
5. The amendments to the Bill do not have a financial impact.
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NOTES ON CLAUSES
Item 1 - Notification requirements in relation to the use of force under warrant
1. This item amends Schedule 2 of the Bill (powers of the organisation) in response to
recommendation 6 of the Committees report.
2. It inserts a new section in proposed new Subdivision H (general provisions relating to
warrants) specifying notification requirements that will apply to any warrants issued under
the Australian Security Intelligence Organisation Act 1979 (ASIO Act) authorising the use of
force against persons. It requires the Director-General of Security to notify the Attorney-
General and the Inspector-General of Intelligence and Security if such force is used against a
person in the execution of a warrant. The notification must be given in writing and as soon as
practicable after force against a person is used.
3. This adopts a different reporting timeframe to that proposed by the Committee
(notification within 24 hours and a written report within 7 days). It acknowledges the value
of a specific reporting requirement in relation to the use of reasonable force against persons
in the execution of warrants. However, the amendment requires the notification to be
provided as soon as practicable in recognition of the importance of ensuring appropriate
operational flexibility in addition to oversight and reporting arrangements.
Item 2 - Reporting on material interferences
4. This item amends Schedule 2 of the Bill (powers of the organisation) in response to
recommendation 5 of the Committees report.
5. It inserts a new subsection (2) in section 34 of the ASIO Act (reporting on ASIO
warrants) requiring a specific matter to be included in reports on warrants authorising
computer access. Section 34 requires the Director-General to provide reports to the Attorney-
General on warrants issued under the Act. The proposed new subsection 34(2) will apply to
search warrants (section 25), computer access warrants (section 25A) and identified person
warrants (sections 27D and 27E) where those warrants authorise things to be done in relation
to computers. In those cases, it will require the reports to include details of anything done
that materially interfered with, interrupted or obstructed the lawful use by other persons of a
computer. (Other provisions make it clear that such interference, interruption or obstruction
can only be done where necessary to do one or more of the things specified in the warrant -
proposed new subsections 25(6) at item 12 in the Bill, 25A(5) at item 25, 27D(7) at item 41,
and 27E(5) at item 41).
6. This will provide additional reporting in an area identified by the Committee as
particularly intrusive and assist in focusing oversight on those activities.
Items 3 - 6 - Evidentiary certificates
7. These items amend Schedule 2 of the Bill (powers of the organisation) to correct an
oversight in the Bill as introduced.
8. The Bill (item 47) adds a new evidentiary certificate regime at section 34AA which
seeks to protect from disclosure technical and sensitive information about ASIOs
intelligence gathering capabilities. Under section 34AA, the Director-General of Security or
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a Deputy Director-General of Security can issue certificates in relation to certain acts or
things done by (or done on behalf of, or in relation to) ASIO under a specified type of
intelligence collection warrant, or a specified type of non-warrant based authorisation under
the ASIO Act to collect intelligence relevant to security. These are defined in new subsection
34AA(5) as ,,relevant warrants and ,,relevant authorising provisions. Relevant warrants are
computer access warrants, and other types of warrants that involve computer access.
Relevant authorising provisions are non-warrant based authorisations relating to the use of
surveillance devices, or the exercise of certain powers under a new type of warrant - an
identified person warrant - once that warrant is issued by the Attorney-General.
9. The certificates in new section 34AA are limited to the protection of information
relevant to the matters set out in subsection 34AA(3), which relate to details of the relevant
intelligence gathering capability utilised under a relevant warrant or authorisation. (For
example, the particular types of surveillance devices used, and details of their installation and
maintenance, or actions authorised under a computer access warrant, such as details of the
specific way in which data on a target computer was accessed).
10. One type of warrant under which computer access is also able to be authorised has
been inadvertently left out of new section 34AA. This is a search warrant under section 25 of
the ASIO Act. Under subsection 25(5), ASIO can obtain a search warrant to access data on a
computer on the premises specified in a search warrant, where there is reasonable cause to
suspect that data relevant to the security matter in respect of which the warrant is issued may
be accessible by using a computer brought to, or found on, the subject premises.
11. The relevant search warrant provisions in subsection 25(5) are identical to those in
other warrants under which ASIO may access a computer, and which are able to be the
subject of an evidentiary certificate in section 34AA.
12. The amendments will include a search warrant under section 25 as a ,,relevant
warrant for the purposes of subsection 34AA(5) but only to the extent that such warrants
authorise computer access under subsection 25(5). Item 5 will add similar provisions under
identified person warrants (where computer access is authorised under search warrants) as
provisions in relation to which a certificate may be issued.
13. These amendments will ensure access to computers under search warrants, and the
similar provisions in identified person warrants, are included in section 34AA to ensure that
technical capabilities and sensitive information are protected, consistent with the intention of
the evidentiary certificate regime.
Items 7, 9 to 15, 17 to 19, 21 to 26, 32 - Special intelligence operations - authorisation
14. Items 7, 9 to 15, 17 to 19, 21 to 26 and 32 amend Schedule 3 of the Bill (special
intelligence operations) in response to recommendation 9 of the Committees report. That
recommendation is that the Attorney-General should be required to approve all special
intelligence operations, rather than the Director-General or a Deputy Director-General of
ASIO as proposed in the Bill as introduced.
15. Item 7 omits the definition of authorising officer as that is no longer required.
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16. Item 9 amends proposed section 35B(1) which relates to the application for an
authority to conduct a special intelligence operation. Instead of an ASIO employee applying
to an authorising officer, the amendment will provide for the Director-General, a senior
position holder (as defined in section 4 as amended by item 3 of Schedule 1 of the Bill) or an
ASIO employee to apply to the Attorney-General.
17. Items 10 to 15, 17, 21 to 25 replace ,,authorising officer with the Attorney-General in
relevant provisions, and make other minor changes to reflect that it will be a Minister rather
than the Director-General or Deputy Director General providing the authority for special
intelligence operations.
18. Items 18 and 19 amend the proposed variation provision for special intelligence
operations in the Bill as introduced, to provide that the Attorney-General may vary a special
intelligence operation authority on application by the Director-General, a senior position-
holder or an ASIO employee.
19. Item 26 amends the proposed cancellation provision for special intelligence
operations in the Bill as introduced, to replace ,,authorising officer with ,,Director-General,
and ,,Deputy Director-General so that the Director-General or a Deputy Director-General
will be able to cancel a special intelligence authority at any time and for any reason. This is
consistent with the Director-Generals statutory responsibility for exercising control of ASIO.
20. Item 32 is consequential to the amendments to the definition of ,,authorising officer.
It provides that the Attorney-General may issue an evidentiary certificate under proposed
s 35R(1), setting out such facts as he or she considers relevant with respect to the granting of
a special intelligence operation authority. The provision currently applies to the ,,authorising
officer (being the Director-General or a Deputy Director-General).
Items 8 and 29- Special intelligence operations - additional offence exceptions
21. Items 8 and 29 amend Schedule 3 of the Bill (special intelligence operations) in
response to recommendation 11 of the Committees report.
22. Item 8 inserts a new definition of IGIS official for the purposes of item 29. The term
is defined as the Inspector-General of Intelligence and Security or a member of the staff
referred to in subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986
(which includes staff assisting the Inspector-General).
23. Item 29 amends subsection 35P(3) in item 3 of Schedule 3 of the Bill to insert
additional exceptions to the offences on the unauthorised disclosure of information relating to
special intelligence operations.
24. The additional exceptions will ensure the offences do not apply if the disclosure was:
(a) for the purpose of obtaining legal advice in relation to the special intelligence
operation (in addition to the existing exception for the purpose of legal
proceedings)
(b) to an IGIS official (as defined by the amendment in item 8) for the purpose of the
IGIS exercising powers or performing functions or duties under the IGIS Act, or
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(c) by an IGIS official in connection with the IGIS official exercising powers or
performing functions or duties under the IGIS Act.
25. These amendments respond to issues raised during the Committees inquiry. They
will ensure that persons are able to obtain legal advice separately to their participation in
legal proceedings, and will ensure that the proposed offences do not operate as a perceived
barrier or disincentive to the disclosure of information to the IGIS in connection with the
performance by the IGIS of her statutory oversight functions.
Item 16 - Special intelligence operations - description of conduct authorised
26. This item amends Schedule 3 of the Bill (special intelligence operations) in response
to an issue raised by the Senate Scrutiny of Bills Committee in Alert Digest No. 11 of 2014.
27. It amends proposed paragraph 35D(1)(c) in item 3 of Schedule 3 to remove the word
,,general so that the provision will require a statement of the nature of the conduct authorised
under a special intelligence operation, rather than a general description of that nature.
28. The Scrutiny of Bills Committee was concerned that the limits of authorised conduct
under a special intelligence operation may be unclear in the Bill as introduced, because an
authority is only required to state authorised conduct in general terms. The Committee
queried whether the authorised conduct could be particularised with more clarity.
29. Proposed section 35D(1)(c) requires a special intelligence operation authority to
provide a general description of the nature of the special intelligence conduct in which the
persons referred to in paragraph (b) are authorised to engage. Proposed section 35H has the
effect of authorising each person listed in the special intelligence operation authority to
engage in the conduct set out therein. The immunity from legal liability in proposed
section 35K applies to persons and conduct duly authorised.
30. The requirement in the Bill as introduced for a general description of the nature of
authorised conduct reflects a need for operational flexibility over the 12-month duration of a
special intelligence operation, consistent with the purpose of such operations to gain close
access to persons or organisations of security concern and to build a picture of them, which
generally requires these operations to be undertaken over a sustained period of time. As
such, it would not be practicable to require a special intelligence operation authority to
include a significantly higher degree of particularisation of conduct in advance of the
commencement of an operation.
31. For example, while it would be feasible to identify the general nature of conduct to be
engaged in as part of a special intelligence operation (such as associating or participating in
training with members of a terrorist organisation) it is unlikely to be possible to identify
individual actions for the purpose of providing prior authorisation (such as authorising
specified times or places of association with an organisation, particular training activities, or
potentially individual members or affiliates of that organisation with whom participants in a
special intelligence operation can associate).
32. Accordingly, the requirement in proposed section 35D(1)(c) that the special
intelligence operation authority must "state a general description of the nature of the special
intelligence conduct" was intended to remove any risk that the immunity in proposed section
35K may be found not to apply because an authorisation did not particularise an individual
action, notwithstanding conduct of that general nature was authorised. This is consistent with
the purpose of the proposed SIO scheme, to ensure that there is adequate certainty in relation
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to the legal status of participants in such operations, in preference to relying solely on
prosecutorial and investigative discretion after they have engaged in the relevant conduct as
part of an intelligence operation.
33. However, it is considered that removal of the word ,,general would still achieve the
policy intent while addressing the issue raised by the Scrutiny of Bills Committee.
Item 20 - Technical correction
34. This item makes a technical correction in item 3 of Schedule 3, to address an incorrect
cross-reference to another provision of the Bill.
Items 27 and 28 - special intelligence operations - offences - fault elements
35. These items amend Schedule 3 of the Bill (special intelligence operations) in response
to recommendation 13 of the Committees report.
36. The amendments will make it clear that the fault element of recklessness applies to
the circumstance described in paragraph (b) of the unauthorised disclosure of information
offences relating to special intelligence operations. This circumstance is that the information
communicated relates to a special intelligence operation.
37. The amendments achieve this by inserting notes referring to section 5.6 of the
Criminal Code as the source of the fault element of recklessness. Such provisions are
exceptional and are not necessary as a matter of law. The general principles of criminal
responsibility in Chapter 2 of the Criminal Code, including those in relation to fault elements,
are of general application to all Commonwealth offences and are not required to be expressly
stated in individual offence provisions. However, the amendments acknowledge the
Committees concern to ensure that the significant threshold imposed by the fault element of
recklessness is communicated expressly on the face of the provisions, in recognition of
concerns raised in the course of the Committees inquiry.
Items 30 and 31 - Special intelligence operations - additional notification requirements
38. These items amend Schedule 3 of the Bill (special intelligence operations) in response
to recommendation 10 of the Committees report. The Committee recommended a number of
notification and reporting requirements in relation to special intelligence operations, to assist
in independent and Ministerial oversight.
39. Item 30 inserts new section 35PA, which requires the Director-General to notify the
Inspector-General of Intelligence and Security (IGIS) if a special intelligence operation is
authorised under new Division 4. The notification must be given in writing, and as soon as
practicable after the authority is granted. This will ensure that the IGIS is notified of special
intelligence operations from their commencement, and can conduct oversight as considered
appropriate, in addition to receiving six-monthly reports under proposed s 35Q (inserted by
item 3 of Schedule 3 to the Bill).
40. Item 31 inserts an additional reporting requirement in section 35Q, under which the
Director-General must report to the Attorney-General and the IGIS on special intelligence
operations every six months. Item 31 inserts a new subsection (2A) which implements the
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Committees recommendation that the reports must include whether conduct of a participant
in a special intelligence operation caused injury, loss or damage in the course of an operation.
Item 33 - technical correction
41. Item 33 makes a technical correction to Schedule 6, item 2, page 81 to address an
incorrect cross-reference to another provision of the Bill.
Items 34-54 - protection of intelligence related information - Schedule 6 offences
42. Items 34-54 implement recommendation 14 of the Committees report, which
suggested that the offences in Schedule 6 to the Bill be amended to include additional
exceptions for the disclosure of information to the IGIS, and the communication of
information by IGIS staff to the IGIS or other IGIS staff in the course of their duties. The
Committee was concerned to ensure that the offences in Schedule 6 to the Bill did not operate
as a perceived barriers or disincentives to the disclosure of information to the IGIS in the
performance of statutory oversight functions.
43. Items 34, 39, 40, 41, 42 and 43 create specific exceptions (offence-specific defences)
to the offences of unauthorised communication of information in the ASIO Act and the
Intelligence Services Act. The new exceptions apply to persons who communicate
information to an IGIS official (being the IGIS or a member of staff referred to in subsection
32(1) of the IGIS Act) for the purpose of the IGIS exercising a power, or performing a
function or duty, under the IGIS Act.
44. The term ,,IGIS official for the purpose of the Schedule 6 offences is defined in items
8 and 38, which insert a definition in s 4 of the ASIO Act and s 3 of the Intelligence Services
Act. This term is defined as the IGIS or a member of the staff referred to in subsection 32(1)
of the IGIS Act.
45. Items 35, 36, and 44-53 create specific exceptions (offence-specific defences) to the
offences of unauthorised dealing with a record, and recording of information or matter, in the
ASIO Act and the Intelligence Services Act. The new exceptions apply to persons who deal
with a record, or who make a record of information, for the purpose of the IGIS exercising a
power, or performing a function or duty under the IGIS Act.
46. By reason of section 13.3(3) of the Criminal Code, a defendant bears an evidential
burden in respect of the defences in items 34, 35, 36 and 39-53. This means that the
defendant must adduce or point to evidence suggesting a reasonable possibility that the
matters set out in the relevant defence apply (that is, he or she communicated information to
an IGIS official for the relevant purpose, or dealt with a record or recorded information for
the relevant purpose). In the event that the defendant discharges the evidential burden, the
prosecution is then required to negate this to the legal standard.
47. Items 37 and 54 provide for a further exception to the offences in Schedule 6, for
IGIS officials who engage in the relevant conduct (communication of information, dealing
with a record or recording of information or matter) for the purpose of exercising powers or
performing functions or duties as an IGIS official. This exception is provided for in new
s 18D of the ASIO Act, and new s 41B of the Intelligence Services Act. The exception is
intended to place beyond doubt that the offences do not apply to IGIS officials in the
performance of their roles as IGIS officials. New s 18D of the ASIO Act, and new s 41B(2)
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of the Intelligence Services Act provide that the defendant does not bear an evidential burden
in relation to this exception. It is appropriate that the prosecution is required to discharge the
legal burden, in all prosecutions, to negate the possible application of these exceptions.
A persons status as an IGIS official creates a strong inference that his or her conduct was for
the purposes of exercising powers or performing functions or duties as an IGIS official.
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