National Security Legislation Amendment (Comprehensive Review and Other Measures No 2) Bill 2023 [2023] AUPJCHR 44 (9 May 2023)

• National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 20231
• Expanded permissible disclosures of spent convictions
• International human rights legal advice
• Right to privacy
• Committee view

---

National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023^[1]

Purpose	Schedule 1 Part 1 would amend the Law Officers Act 1964 to remove the ability of the Attorney-General to delegate some of his or her powers under the Australian Security Intelligence Organisation Act 1979 (ASIO Act) to Commonwealth officials, and amend the Acts Interpretation Act 1901, the ASIO Act, and the Telecommunications (Interception and Access) Act 1979 to limit the ability for the Executive to confer the powers vested in the Attorney-General with respect to ASIO onto another minister. Part 2 would insert a new defence in the Criminal Code Act 1995. Part 3 would amend the Intelligence Services Act 2001 in relation to the Parliamentary Joint Committee on Intelligence and Security. Part 4 would expand the exclusions in the spent convictions scheme under the Crimes Act 1914 to enable ASIO to use, record and disclose spent convictions information. Part 5 would amend the Inspector-General of Intelligence and Security Act 1986 to require the Inspector-General of Intelligence and Security (IGIS) to report on public interest disclosures received by, and complaints made to, the IGIS. Part 6 would amend the Ombudsman Act 1976 to exclude intelligence services from the Commonwealth Ombudsman’s jurisdiction. Part 7 would amend the Freedom of Information Act 1982 to remove the Australian Geospatial-Intelligence Organisation's exemptions regarding documents related to the Australian Hydrographic Office, and align protections afforded to the Australian Transaction Reports and Analysis Centre’s Suspicious Matter Reports and Suspicious Transaction Reports under the FOI Act. Part 8 would amend the Administrative Appeals Tribunal Act 1975 and the Archives Act 1983 to require all proceedings in relation to security records under the Archives Act be heard in the Security Division of the Administrative Appeals Tribunal, and to amend requirements for IGIS to provide evidence. Part 9 would amend the Intelligence Services Act 2001 regarding the level of detail required to describe the directed activities in a Ministerial direction.
Portfolio	Attorney-General
Introduced	House of Representatives, 29 March 2023
Rights	Privacy

Expanded permissible disclosures of spent convictions

1.92 This bill seeks to amend the Crimes Act 1914 (Crimes Act) to expand the exclusions in the spent convictions scheme. Proposed section 85ZZJA would permit the Australian Security Intelligence Organisation (ASIO) to use, file or record and disclose spent convictions information in the exercise of its functions or the performance of its functions.^[2] This would extend to the Director-General of Security, an ASIO employee, and an ASIO affiliate (including a contractor, consultant or secondee).^[3]

1.93 A conviction for an offence is spent if it has been 10 years since the date of the conviction; the individual was not sentenced to imprisonment or was not sentenced to imprisonment for more than 30 months; the individual has not re-offended during the 10 years waiting period; and a statutory or prescribed exclusion does not apply.^[4] Section 85ZA provides that where a conviction is spent a person is not required to disclose it to any person or Commonwealth authority, for any purpose (unless an exception applies).

International human rights legal advice

Right to privacy

1.94 Expanding the circumstances in which spent convictions may be permissibly used, filed, recorded and disclosed to ASIO engages and limits the right to privacy. The right to privacy includes respect for informational privacy, including the right to respect for private and confidential information, particularly the storing, use and sharing of such information.^[5] It also includes the right to control the dissemination of information about one's private life.

1.95 The right to privacy may be permissibly limited where the limitation pursues a legitimate objective (one that is necessary and addresses an issue of public or social concern that is pressing and substantial enough to warrant limiting the right), is rationally connected to (that is, capable of achieving) that objective and is a proportionate means of achieving it.

1.96 The statement of compatibility acknowledges that the measure limits the right to privacy.^[6] It states that the objective of the bill is to improve the legislative framework governing national intelligence agencies to 'protect the lives and security of Australians, mitigate imminent and significant risks to their safety and address national security risks to Australia', and that this measure would allow ASIO access to the information necessary to perform its functions, and to protect Australia from security threats.^[7] The explanatory memorandum states that this item implements recommendation 136 of the Comprehensive Review of the Legal Framework of the National Intelligence Community.^[8] The Comprehensive Review noted that spent convictions could be shared with other law enforcement agencies for the purposes of the investigation or prevention of crime but not to ASIO, and that the Australian Criminal Intelligence Commission had provided a number of examples demonstrating where it had encountered problematic limitations to sharing information with ASIO.^[9] As such, it appears that the amendment would address a problem that has been encountered in practice. Consequently, protecting against security risks would be capable of constituting a legitimate objective under international human rights law, and allowing ASIO to access such information would appear rationally connected to, that is, capable of achieving, that objective.

1.97 With respect to proportionality, the statement of compatibility states that ASIO would only be able to access, disclose or use spent conviction information for the purposes of performing its functions or exercising its powers.^[10] However, it does not identify any safeguards that would operate to protect spent conviction information. It merely states that the interests of ASIO in protecting Australia from national security threats should outweigh the individual's entitlement to privacy in respect of a spent conviction. The acts and practices of ASIO are exempt from the Privacy Act 1988.^[11]

1.98 It is noted that ASIO is subject to guidelines issued by the Minister for Home Affairs, which include requirements as to how ASIO should treat personal information.^[12] These guidelines require ASIO to maintain policies about its access to and retention of personal information, which must provide clear guidance on the purposes for which ASIO may disclose personal information, including the disclosure of information overseas.^[13] Policies made pursuant to these guidelines have the capacity to serve as an important safeguard, however, as the policies are not publicly available it is not possible to ascertain their full safeguard value. In particular, it is not clear to whom ASIO may permissibly disclose personal information. As such, it is not possible to fully assess the compatibility of this measure with the right to privacy.

Committee view

1.99 The committee notes that permitting ASIO to use, file or record and disclose spent convictions information in the exercise of its functions or the performance of its functions, limits the right to privacy, particularly as it is not clear to whom ASIO may disclose personal information about spent convictions. The committee considers the measure seeks to achieve the legitimate objective of allowing ASIO access to the information necessary to perform its functions, and to protect Australia from security threats. In considering the proportionality of the measure, the committee considers it would have been useful had the statement of compatibility identified any applicable safeguards. The committee appreciates this information may not be available on national security grounds, however, without information as to whom the spent conviction information may be disclosed, it is not possible for the committee to fully assess the compatibility of this measure with the right to privacy.

1.100 The committee draws this matter to the attention of the Attorney-General and the Parliament.

---

[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023, Report 5 of 2023; [2023] AUPJCHR 43.

[2] Item 14.

[3] Schedule 1, Part 4, item 14, proposed subsection 85ZZJA(2).

[4] Crimes Act 1914, section 85ZM.

[5] International Covenant on Civil and Political Rights, article 17.

[6] Statement of compatibility, p. 10.

[7] Statement of compatibility, p. 10.

[8] Explanatory memorandum, p. 21.

[9] Report of the Comprehensive Review of the Legal Framework of the National Intelligence Community, Volume 3; Information, Technology, Powers and Oversight, p. 50.

[10] Statement of compatibility, p. 10.

[11] Privacy Act 1988, s. 7.

[12] Minister's Guidelines to the Australian Security Intelligence Organisation, Part 4.

[13] Minister's Guidelines to the Australian Security Intelligence Organisation, clause 4.3.