Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Bill 2018 [2018] AUSStaCSBSD 54 (21 March 2018)

• Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Bill 2018
• Broad delegation of administrative powers 25
• Privacy27

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Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Bill 2018

Purpose	This bill seeks to amend the Intelligence Services Act 2001 to establish the Australian Signals Directorate as an independent statutory agency
Portfolio	Defence
Introduced	House of Representatives on 15 February 2018

Broad delegation of administrative powers ^[25]

1.29 Proposed subsection 27N(1) seeks to allow the Director-General of the Australian Signals Directorate (ASD)^[26] to delegate all or any of his or her functions or powers under proposed Part 5A to any staff member at the Executive Level 1 (EL1) level or above. Proposed Part 5A sets out the Director-General's powers in relation to employment and termination, engagement of consultants and service providers, secondments, the application of the principles of the Public Service Act 1999 to ASD employees, voluntary movement of ASD staff to the Australian Public Service and staff grievance procedures.

1.30 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum.

1.31 In this case, the explanatory materials provide no information about why these powers are proposed to be delegated to ASD staff members holding positions at the EL1 level or higher.

1.32 The committee requests the minister's advice as to why it is necessary to allow the powers and functions of the Director-General under proposed Part 5A to be delegated to Executive Level 1 employees or above, rather than to members of the Senior Executive Service.

Privacy^[27]

1.33 Item 43 of Schedule 1 proposes to insert a new section 133BA in the

Anti-Money Laundering and Counter-Terrorism Financing Act 2006. The proposed section would allow the Director-General of ASD to communicate AUSTRAC information to a foreign intelligence agency if he or she is satisfied that it is appropriate in all the circumstances of the case to do so and the foreign intelligence agency has given appropriate undertakings for protecting the confidentiality of the information, controlling the use of the information, and ensuring the information will only be used for the purpose for which it is communicated to the foreign country.

1.34 The committee notes that AUSTRAC information^[28] may include a wide array of personal and financial information and the proposed section does not limit the purposes for which the Director-General may communicate such information with a foreign intelligence agency, other than that the Director-General considers it is appropriate to do so in all the circumstances. The explanatory materials accompanying the bill do not provide any information on why it is necessary to provide the Director-General with a broad discretion with respect to the purposes for which such information can be communicated to foreign intelligence agencies, merely explaining the operation of proposed section.^[29]

1.35 The committee therefore requests the minister's advice as to why it is considered necessary and appropriate to provide the Director-General with a broad discretion as to the purposes for which AUSTRAC information may be communicated with a foreign intelligence agency.

1.36 The committee also requests the minister's advice as to the appropriateness of amending the bill so as to include at least high-level guidance as to the purposes for which AUSTRAC information may be communicated to a foreign intelligence agency.

1.1

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[25] Schedule 1, item 27, proposed subsection 27N(1). The committee draws Senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).

[26] The Director-General of ASD is a position the bill seeks to create. See Schedule 1, item 27, proposed section 27B.

[27] Schedule 1, item 43, proposed section 133BA. The committee draws Senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[28] AUSTRAC information is defined in section 5 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 as meaning eligible collected information (or a compilation or analysis of such information) and 'eligible collected information' is defined as information obtained by the AUSTRAC CEO under that Act or any other Commonwealth, State or Territory law or information obtained from a government body or certain authorised officers, and includes financial transaction report information as obtained under the Financial Transaction Reports Act 1988.

[29] Explanatory memorandum, p. 20.