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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to establish the Office of National Intelligence (ONI) as
an independent statutory agency. The ONI would subsume the
role, functions and
staff of the Office of National Assessments
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Portfolio
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Prime Minister
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Introduced
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House of Representatives on 28 June 2018
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Bill status
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Before House of Representatives
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2.44 In Scrutiny Digest 8 of 2018[28] the committee requested the Prime Minister's and Attorney-General's advice as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in relation to the matters in proposed subclauses 42(2) and (3), 43(2) and (3) and 44(3) and (4).
2.45 The committee also requested the advice of the Prime Minister and the Attorney-General as to the appropriateness of amending the bill to include a general defence to the offences in clauses 42 to 44 for all government officials who engage in relevant conduct for the purpose of exercising powers, or performing functions or duties, as a government official.
Attorney-General's response[29]
2.46 The Attorney-General advised:
Consistent with section 13.3 of the Criminal Code, the defendant bears an evidential burden in relation to the offence-specific defences in proposed subclauses 42(2) and (3), 43(2) and (3) and 44(3) and (4).
The Guide to Framing Commonwealth Offences (the Guide) acknowledges that it is appropriate to reverse the onus of proof and place a burden on the defendant in certain circumstances. This includes where a matter is peculiarly within the knowledge of the defendant and where it would be significantly more difficult and costly for the prosecution to disprove the matter than for the defendant to establish the matter.
The offences in clauses 42 and 44 of the Bill (including the offence-specific defences) are almost identical to the existing secrecy offences in sections 40A, 40J and 40K of the Intelligence Services Act 2001 (IS Act) that currently apply to the communication of, and dealing with, information acquired by or on behalf of the Office of National Assessments (ONA) in connection with its functions. They are also consistent with the secrecy offences in the IS Act, including the offence-specific defences, that apply in relation to other intelligence agencies.
This is in recognition of the special duties and responsibilities that apply to ONI staff and people with whom the agency has an agreement or arrangement. It is expected that such persons would be well aware of the sensitivity of the information being communicated or dealt with and the importance of ensuring appropriate authorisation when communicating and dealing with that information.
Subclauses 42(2) and 44(3) - Information or matter lawfully available
It is considered appropriate to cast the matters set out in subclauses 42(2) and 44(3) as an exception to the offences rather than including them as elements of the offence. Evidence of whether there was a reasonable possibility of a prior, authorised public disclosure of the relevant information or matter is evidence peculiarly within the knowledge of the defendant.
Given the generally classified nature of the information covered by the offences, this exception is likely to be of relevance in limited situations where a case is being referred for prosecution. It would be significantly more difficult and costly for the prosecution to prove in every case, beyond a reasonable doubt, that there was no prior authorised communication of the relevant information to the public.
Subclauses 42(3) and 44(4) - communication to IGIS officials
The exceptions in subclauses 42(3) and 44(4) replicate exceptions in the existing secrecy provisions in the IS Act. These exceptions were included at the recommendation of the Parliamentary Joint Committee of Intelligence and Security following their consideration of the National Security Legislation Amendment Bill (No.1) 2014, to make explicit the intention that the offences should not apply to disclosures to an Inspector-General of Intelligence and Security (IGIS) official, and ensure that they did not operate as a perceived disincentive or barrier to the provision of information, or the making of complaints to, the office of the IGIS.
It is considered appropriate to provide for this as exceptions to the offences rather than as elements of the offences. Evidence of a reasonable possibility that the conduct related to providing information to an IGIS official for the purpose of that official exercising a power, or performing a function or duty as such an official is evidence peculiarly within the knowledge of the defendant. It would be significantly more difficult and costly for the prosecution to prove in every case, beyond a reasonable doubt, that the communication of the relevant information was not for the purpose of an IGIS official exercising a power, or performing a function or duty as an IGIS official.
Subclauses 43(2) and (3)
The development of the Bill overlapped with the Parliamentary Joint Committee on Intelligence and Security's (PJCIS) consideration of the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 (EFI Bill). Noting the PJCIS' recommendations in relation to the EFI Bill, and the form in which that Bill passed the Parliament, the ONI Bill, including the Explanatory Memorandum, will be amended to remove clause 43 in its entirety.
Inclusion of a general defence for all government officials
As outlined above, clauses 42 and 44 of the Bill are almost identical to existing secrecy provisions in the IS Act. The Government has agreed to undertake a review of specific secrecy provisions following the passage of the general secrecy provisions in the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018.
Until such time that this review is completed, an amendment to include a general defence for all government officials is not considered necessary on the basis that the Bill already contains mechanisms to facilitate the appropriate communication of, or dealing with, ONI information by government officials.
The offences only apply to government officials who have obtained ONI information by reason of being a staff member of ONI, having entered into a contract, agreement or arrangement with ONI or being an employee or agent of another person who has entered into a contract, agreement or arrangement with ONI. The offences also do not apply in the circumstances set out in paragraph 42(1)(c), paragraph 44(1)(d) and paragraph 44(2)(d). This includes communication made with the specific authority or approval of the Director-General of National Intelligence or another person authorised by the Director-General.
Committee comment
2.47 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that it is considered appropriate to reverse the evidential burden of proof in relation to the matters in subclauses 42(2) and 44(3) because evidence of whether there was a reasonable possibility of a prior, authorised public disclosure of the relevant information is peculiarly within the knowledge of the defendant, and it would be significantly more difficult and costly for the prosecution to prove beyond a reasonable doubt that there was no prior authorised communication of the relevant information to the public.
2.48 However, it remains unclear to the committee how evidence as to whether or not the Commonwealth has previously authorised the communication of relevant information to the public could be described as peculiarly within the knowledge of the defendant, as this would also be known to the Commonwealth.
2.49 The committee notes the Attorney-General's advice that it is appropriate to reverse the evidential burden of proof with respect to the exceptions set out under subclauses 42(3) and 44(4), as evidence of a reasonable possibility that the conduct related to providing information to an IGIS official for the purpose of that official exercising a power or performing a function or duty is peculiarly within the knowledge of the defendant.
2.50 The committee further notes the Attorney-General's advice that, in light of the form in which the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018 passed the parliament, it is intended that the bill will be amended to remove clause 43 in its entirety.
2.51 Finally, the committee notes the Attorney-General's advice that the government has agreed to undertake a review of specific secrecy provisions following the passage of the general secrecy provisions in the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018, and that, pending the completion of this review, it is not considered necessary to amend the bill to include a general defence for all government officials who deal with ONI information in the course of their official duties.
2.52 In respect of subclauses 42(2) and 44(3), the committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof in relation to the matters set out in those subsections, which do not appear to be peculiarly within the knowledge of the defendant.
2.53 In respect of subclauses 42(3) and 44(4), in light of the information provided, the committee makes no further comment.
2.54 The committee requests that the key information provided by the Attorney-General with respect to subclauses 42(3) and 44(4) be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.55 In respect of clause 43 and the committee's query relating to a general defence for all government officials, in light of the information provided, particularly the government's intention to amend the bill to remove clause 43 and to conduct a review of specific secrecy provisions, the committee makes no further comment.
2.56 In Scrutiny Digest 8 of 2018[31] the committee requested the detailed advice of the Prime Minister and the Attorney-General as to:
• the appropriateness of amending the bill to provide high-level regulation of the collection of identifiable open source information and the communication, handling and retention by the Office of National Intelligence of identifiable information; and
• why it is necessary to declare the entirety of the privacy rules not to be a legislative instrument (and therefore not subject to the usual disallowance and sunsetting procedures under the Legislation Act 2003), given that it is intended that they will generally be made public.
Attorney-General's response[32]
2.57 The Attorney-General advised:
Delegated legislation not subject to disallowance
Clause 53 of the Bill, which is the enabling provision for the privacy rules, is based upon section 15 of the IS Act which requires the responsible Ministers for the Australian Secret Intelligence Service (ASIS), the Australian Signals Directorate (ASD) and the Australian Geospatial Intelligence Organisation (AGO) to make privacy rules to protect Australians.
Rules made under section 15 are currently made available to the public. However, subsection 15(7) of the IS Act provides that they are not legislative instruments, in recognition that it may sometimes not be appropriate for all privacy rules to be made publicly available through the tabling process. Clause 53(8) is consistent with that approach.
As noted, it is anticipated that the privacy rules will generally be made public. Additionally, rules made under clause 53 will be subject to a form of Parliamentary oversight through the Parliamentary Joint Committee on Intelligence and Security. Subclause 53(6) requires the IGIS to brief that Committee on the content and effect of the privacy rules if requested to do so, or if the rules change. Amendments contained in the Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018 will also place a requirement on the IGIS to report in its public annual report on ONI's compliance with the privacy rules. This will include compliance with any rules that are classified in nature and not publicly available.
Significant matters in delegated legislation
As outlined above, clause 53 of the Bill is in similar terms to section 15 of the IS Act which forms the basis for the making of privacy rules that apply to ASIS, ASD and AGO. Although ONA currently prepares privacy guidelines that are similar to the rules made under the IS Act, there is not a legislative requirement to do so. The inclusion of a privacy rules regime in the Bill clearly supports enhanced privacy protection, as recognised by the Australian Government Solicitor in their independent privacy impact assessment of the establishment of ONI.
In addition, before making proposed privacy rules, the Prime Minister must consult the IGIS and the Attorney-General. This will ensure that the rules are informed by the independent advice and consideration of both national security and broader legal perspectives, including in relation to privacy.
Setting out ONI's obligations in relation to the collection, communication, handling and retention of identifiable information in rules rather than the primary legislation is appropriate. This approach will enable ONI's fulfilment of those obligations to be more responsive and adaptive to changing circumstances and community expectations about the collection, use and disclosure of sensitive and personal information by intelligence agencies.
Committee comment
2.58 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that the privacy rules made under clause 53 will be subject to a form of parliamentary oversight in that the Inspector-General of Intelligence and Security (IGIS) must brief the Parliamentary Joint Committee on Intelligence and Security (PJCIS) on the rules if requested to do so, or if the rules change. The Office of National Intelligence (Consequential and Transitional) Bill 2018 will also require the IGIS to report on the ONI's compliance with the privacy rules in its public annual report.[33]
2.59 The committee also notes the Attorney-General's advice that the proposed requirement that the privacy rules must be made represents an improvement on the current situation in which the Office of National Assessments prepares privacy guidelines but is under no legislative requirement to do so, and that by requiring the Prime Minister to consult the IGIS and the Attorney-General prior to making the privacy rules, the bill seeks to ensure the rules are informed by independent advice.
2.60 Finally, the committee notes the Attorney-General's advice that it is considered appropriate to set out the ONI's obligations in relation to identifiable information in rules rather than primary legislation as this will enable the ONI to be more responsive to changing circumstances and community expectations in relation to the collection, use and disclosure of sensitive and personal information by intelligence agencies.
2.61 However, the committee considers that the fact that the PJCIS could be briefed, in private, on the content of the rules, does not provide adequate parliamentary oversight of those rules. The committee notes the advice that the proposal in the bill to require non-legislative rules to be made represents an improvement on the current situation, but considers that this alone is not a sufficient justification to include such significant matters in a non-legislative form. It remains unclear to the committee why at least high-level guidance cannot be included in the primary legislation to regulate the collection of identifiable open source information and the communication, handling and retention by the ONI of identifiable information. It also remains unclear why, if it is intended that the privacy rules will generally be made public, any rules containing more technical matters cannot be made as legislative instruments, noting the possibility of providing the rule maker with the discretion to ensure that any guidance relating to sensitive national security information is issued by way of a non-legislative instrument. The committee considers that taking this approach would not limit the ability of the ONI to adapt to changing circumstances and community expectations with respect to the handling of sensitive and personal information by intelligence agencies.
2.62 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving significant matters, such as the privacy rules governing the collection and use of identifiable information by the Office of National Intelligence, to be set out in non-legislative rules (which will not be subject to the usual disallowance and sunsetting procedures under the Legislation Act 2003).
2.1
[27] Clauses 42 to 44 and clause 46. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[28] Senate Scrutiny of Bills Committee , Scrutiny Digest 8 of 2018, pp. 24 to 27.
[29] The Attorney-General responded to the committee's comments in a letter dated 31 August 2018. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest No. 10 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest
[30] Clauses 7, 37 to 39 and 53. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i),(iv) and (v).
[31] Senate Scrutiny of Bills Committee, Scrutiny Digest 8 of 2018, pp. 27 to 29.
[32] The Attorney-General responded to the committee's comments in a letter dated 31 August 2018. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest No. 10 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest
[33] See Schedule 2, item 65 of the Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018.
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