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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
2.1 This chapter considers the responses of ministers to matters previously raised by the committee.
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Purpose
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This bill seeks to provide the legislative framework for Australia to give
effect to future bilateral and multilateral agreements
for cross-border access
to electronic information and communications data
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Portfolio
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Home Affairs
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Introduced
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House of Representatives on 5 March 2020
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Bill status
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Before the House of Representatives
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2.2 In Scrutiny Digest 5 of 2020 the committee requested the minister's advice as to:
• why it is necessary and appropriate to allow international production orders (IPOs) to be issued by members of the Administrative Appeals Tribunal (AAT);
• whether the bill could be amended to include a national Public Interest Monitor scheme so that Public Interest Monitors may make submissions in relation to all IPO applications;
• whether the bill could be amended to require that, for all IPOs, the relevant decision maker must be satisfied that an IPO would be ‘likely to substantially assist’ with the relevant purpose for which the IPO is sought, rather than merely ‘likely to assist’;
• whether the 3 month period in subclause 81(1) of proposed Schedule 1 to the TIA Act could be reduced, to provide the Ombudsman with more immediate oversight of the issuing of control order IPOs;
• whether clause 144 of proposed Schedule 1 to the TIA Act could be amended to provide that the Ombudsman may obtain relevant information from officers and members of staff if the Ombudsman has 'reasonable grounds to suspect' that the officer or member of staff is able to give the relevant information, rather than 'reasonable grounds to believe'.[2]
Minister's response[3]
2.3 The minister advised:
Issuing of IPOs by members of the AAT
The Bill provides for a range of independent decision-makers to authorise international production orders for disclosure of intercepted communications, stored communications and telecommunications data. To assist the Committee, a table setting out which decision-makers are able to authorise different types of orders under the Bill and the TIA Act currently is set out at Annexure A.
Administrative Appeals Tribunal (AAT) members, judges, magistrates, and the Attorney-General, all play a critical role as independent decision-makers in authorising investigatory powers domestically in the current regimes under the Telecommunications (Interception and Access) Act 1979 (TIA Act). In accordance with this current domestic approach, the Bill recognises the value of having an independent decision-maker with the skillset of being a qualified legal practitioner given the complexity of the decision-making involved in authorising investigatory powers internationally and the inherent balancing of law enforcement or national security powers with affected individuals' privacy and other rights and liberties required.
The ability for nominated AAT members to authorise the use of investigatory powers is not new. For example, nominated AA T members have played an independent decision-maker role in investigatory powers legislation, including in relation to interception and stored communication warrants under the TIA Act since 1998. Nominated AAT members also issue surveillance device warrants and computer access warrants under the Surveillance Devices Act 2004. The skill and experience of AAT members make them ideal candidates to assess applications for international production orders and make independent decisions on their compliance with the legislative requirements. In addition, the framework and principles under which AAT members operate safeguard the functional independence of their decisions.
The skill, competence, and independence of AAT members makes them suitable to assess applications for international production orders and to make independent decisions in accordance with the legal requirements under the Bill. AAT members undertake this independent decision-maker role in their personal capacity. AAT members must consent to being made an independent decision-maker under specific regimes of the TIA Act (including the Bill) and the Attorney-General must nominate them. Providing a wide range of independent decision-makers (e.g. AAT members, judges and magistrates) ensures there is a sufficient pool of available decision-makers to authorise orders sought by agencies. This is particularly important given all law enforcement agencies across Australia utilise the TIA Act to obtain these kinds of investigatory powers.
In terms of international production orders that relate to national security, this will be limited to nominated AAT Security Division members only after the consent of the Attorney-General has been received. This ensures there is a rigorous process of independent scrutiny with ASIO being required to satisfy both the Attorney-General (as the First Law Officer with a longstanding role in approving ASIO's intelligence collection powers) and a nominated member of the AAT, that the legislative thresholds have been met before an international production order can be issued. The Inspector-General of lntelligence and Security will also provide oversight of ASIO's use of powers under the legislation.
For the above reasons, the Government sees the utilisation of AAT members in their personal capacity as independent decision-makers as appropriate, necessary and critical to the effective operation of the TIA Act and the Bill.
Public Interest Monitors
In accordance with the current approach to domestic law enforcement interception warrants under the TIA Act, the Bill aligns international production orders for interception to ensure that, where Public Interest Monitors are available in relation to domestic interception warrants, they will also be available for interception international production orders.
At present, Public Interest Monitors only exists within Victoria and Queensland. Public Interest Monitors perform a broad oversight role over their jurisdiction's law enforcement agencies including when applying for certain types of warrants, such as interception warrants. Consistent with current practices, the Bill intentionally gave the ability to facilitate the role of the Public Interest Monitors for international production orders relating to interception.
Other Australian States and Territories have not legislated for this office within their jurisdictions. Consequently, the Bill only provides for the Public Interest Monitors in Victoria and Queensland. These Offices were established in Victoria under the Public Interest Monitor Act 2011 (Vic), and various pieces of legislation in Queensland, including the Police Powers and Responsibilities Act 2000 (Qld) and the Crime and Corruption Act 2001 (Qld).
Consistency of safeguards
This Government considers that 'likely to assist' is the appropriate threshold, as set out in the Bill. The threshold of 'likely to assist' applies for all warrants under the TIA Act other than control order warrants. In terms of the Bill, this threshold applies to both intelligence and law enforcement agencies for international production orders to authorise intercept live communications as well as for stored communications and telecommunications data. When applying for any of these international production orders, agencies are required to demonstrate that the use of the warrant would be likely to assist in connection with those purposes.
The issuing authority must be satisfied that the information to be gathered would be 'likely to assist' in meeting the purpose of the warrant. This criterion is then balanced alongside a range of other factors decision-makers must take into account, such as having regard to privacy interference and the gravity of conduct (for law enforcement warrants).
Replacing the threshold of 'likely to assist' with the threshold of 'likely to substantially assist' may have the effect of preventing law enforcement and intelligence agencies from accessing overseas information likely to assist in the investigation of serious crime or matters relating to national security. During the early stages of an investigation, it would be extremely difficult for agencies to demonstrate in advance of reviewing the information that the information will be 'likely to substantially assist' the investigation. For example, telecommunications data, such as account details and IP addresses, are often collected during the early stages of an investigation. When seeking an order, agencies need to demonstrate that this information is likely to assist the investigation, for example by determining a link between an account and the suspected criminal activity or offender and thereby identifying further lines of inquiry.
One of the policy objectives of this legislation is the recognition that the digital communications landscape has changed dramatically in the last decade, with communications technology providing a plethora of communications options on any given device – from traditional telecommunications and SMS through to social media and encrypted communications applications – each provided by a separate communications provider and each requiring a separate international production order. In many cases it would not be possible to know ahead of receiving the information if the data provided by any given communications provider will be the information that would 'substantially assist' an investigation. A higher threshold could therefore be detrimental to investigations by removing a critical line of inquiry during the early stages of an investigation.
For completeness, the Government notes that monitoring powers within the TIA Act that relate to control orders are subject to the threshold of 'substantially assist'. The imposition of a higher threshold for monitoring powers is appropriate because control orders have a protective or preventative purpose by facilitating monitoring of the person's compliance with the requirements of the control order, and the person is not necessarily suspected of involvement in further criminal activity since the control order was imposed. Accordingly, the Government has applied the exact same thresholds to international production orders relating to control orders.
Oversight by the Commonwealth Ombudsman
The inclusion of a three month period in subclause 81 (1) of the Bill reflects advice from the Commonwealth Ombudsman that given this is a new scheme whose frequency of use is not yet known, a period of three months would be more appropriate to facilitate timely oversight. This is already a marked reduction from current regimes. Both the Crimes Act 1914 and the TIA Act establish a six month notification period.
The Commonwealth Ombudsman conducts its inspections of agencies' use of covert and intrusive powers retrospectively, with records generally assessed after the relevant warrant, authorisation or order has ceased to be in force. As such, inspections of records regarding control order international production orders are likely to occur some months after the Commonwealth Ombudsman has been notified of a control order international production order being issued. However, it is likely to significantly assist the Commonwealth Ombudsman to schedule and allocate resources for inspections, especially as it is anticipated that the use of the international production order regime will likely increase compared to current levels.
Possible amendments
Clause 144 was drafted to mirror the same oversight powers of the Commonwealth Ombudsman contained within section 87 of the TIA Act. This is also consistent with other Commonwealth legislation, such as the Crimes Act 1914. Accordingly, amending the 'reasonable grounds to believe' threshold to ‘reasonable grounds to suspect' threshold, would require broader consideration across not only the TIA Act, but other Commonwealth legislation. The Government views that amending only the TIA Act (or parts of the TIA Act) would lead to considerable confusion as to what thresholds apply under different pieces of legislation despite the oversight role of the Commonwealth Ombudsman being broadly consistent across Commonwealth legislation.
Committee comment
The committee thanks the minister for this response.
2.4 The committee notes the minister's advice that AAT members have played a decision-making role in investigatory powers legislation since 1998—including in relation to the issue of interception and stored communication warrants under the Telecommunications (Interception and Access) Act 1979 (TIA Act) and surveillance device and computer access warrants under the Surveillance Devices Act 2004.
2.5 The committee also notes the minister's advice that the skills and experience of AAT members make them ideal candidates to assess applications for IPOs and make independent decisions on compliance with applicable legislative requirements. In addition, the committee notes the advice that the framework and principles under which AAT members operate safeguard the functional independence of their decisions.
2.6 While acknowledging the minister's advice, the committee does not consider consistency with other laws, or the fact that AAT members have been authorised to issue interception warrants in the past, to be sufficient justification for allowing AAT members to approve IPOs under the framework proposed by the bill. The committee is also concerned that the bill would permit full-time senior members of the AAT with no experience as a legal practitioner, and part-time senior and general members with only five years' legal experience, to issue IPOs. It is not apparent that these AAT members would have the skills and expertise of an independent judicial officer. Consequently, from a scrutiny perspective, the committee remains of the view that allowing AAT members to issue IPOs may not adequately protect individuals' rights and liberties—particularly the right to privacy.
2.7 The committee reiterates its longstanding view that the power to issue warrants or orders relating to the use of intrusive powers should only be conferred on judicial officers. This is particularly important where the use of such powers may involve access to significant amounts of personal information.
2.8 Finally, the committee notes that, in determining whether to issue an interception IPO, the relevant decision-maker must have regard to whether intercepting communications would be the method that is likely to have the least interference with any person's privacy.[4] However, this requirement does not appear to apply to other IPOs. The committee considers that the requirement to consider potential interference with privacy should apply to all IPOs, and not only those relating to interception.
2.9 From a scrutiny perspective, the committee considers that the bill should be amended to provide that the power to issue IPOs be limited to judicial officers or, at a minimum, to judicial officers and a President or Deputy President of the AAT with at least five years' experience as a legal practitioner.
2.10 The committee also considers that the bill should be amended to specify that, in relation to all IPOs, the issuing officer must have regard to whether the relevant method of surveillance would be the method that is likely to have the least interference with any person's privacy.
2.11 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of allowing members of the AAT to issue IPOs.
2.12 The committee notes the minister's advice that the bill aligns the IPO regime with the regime for domestic interception warrants. The committee also notes the minister's advice that the bill intentionally provides for the involvement of public interest monitors only in relation to IPOs for interception.
2.13 The committee also notes the minister's advice that public interest monitor arrangements only exist in Victoria and Queensland. Consequently, the bill only provides for public interest monitors for interception IPOs in those jurisdictions.
2.14 While acknowledging this advice, there does not appear to be anything that would prevent the bill from establishing public interest monitor or similar arrangements for IPOs at a national level.
2.15 Further, the committee does not consider consistency with existing legislation to be sufficient justification for restricting the involvement of public interest monitors to applications for interception IPOs. In this regard, the committee emphasises that the involvement of public interest monitors is an important safeguard against arbitrary or unlawful interference with privacy.
2.16 The committee therefore reiterates its scrutiny view that the bill should be amended to allow public interest monitors to make submissions, and appear at hearings, in relation to all IPO applications—regardless of whether they relate to interception or involve the law enforcement agencies of a particular jurisdiction.
2.17 From a scrutiny perspective, the committee considers that the bill should be amended to establish a national public interest monitor scheme so that monitors may make submissions, and appear at hearings, in relation to all applications for international production orders, regardless of whether the order relates to interception or involves the law enforcement agencies of a particular jurisdiction.
2.18 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of restricting the involvement of public interest monitors to applications for IPOs relating to interception involving the law enforcement agencies of Queensland and Victoria.
2.19 The committee notes the minister's advice that replacing the threshold of 'likely to assist' with 'likely to substantially assist' may prevent law enforcement and intelligence agencies from accessing overseas information that is likely to assist in the investigation of serious crime and matters relating to national security.
2.20 In this regard, the committee notes the minister's advice that, during the early stages of an investigation, it would be extremely difficult for an agency to demonstrate that information is 'likely to substantially assist' the investigation before viewing the information. The committee notes the advice that telecommunications data—such as account details and IP addresses—is often collected during the early stages of an investigation. When seeking an IPO, agencies must demonstrate that this information is likely to assist the investigation—for example by determining a link between an account and suspected criminal activity. This identifies further lines of inquiry. The minister advised that the higher threshold of 'likely to substantially assist' could be detrimental to investigations by removing critical lines of inquiry.
2.21 In relation to the higher threshold of 'likely to substantially assist' being applied only to IPOs relating to control orders, the committee notes the minister's advice that this is appropriate because control orders have a protective or preventative purpose, and the person to whom the order applies is not necessarily suspected of involvement in further criminal activity.
2.22 The committee requests that the key information provided by the minister 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).
2.23 In light of the information provided by the minister, the committee makes no further comment on this matter.
2.24 The committee notes the minister's advice that the inclusion of a three-month period in subclause 81(1) of the bill reflects the Ombudsman's advice that such a notification period is appropriate, given that the IPO scheme is a new scheme whose frequency of use is not yet known. The committee also notes the minister's advice that this is a marked reduction from other regimes. The committee notes the advice that both the Crimes Act 1914 and the TIA Act establish a six-month notification period. The committee further notes the minister’s advice that the Ombudsman conducts inspections of agencies' use of covert and intrusive powers retrospectively, with records generally assessed after the relevant warrant, authorisation or order ceases to be in force.
2.25 The committee acknowledges that the three-month notification period reflects advice from the Ombudsman, and that this period is substantially shorter than similar notification periods under other Commonwealth legislation. However, given the significant consequences that may flow from the issue of an IPO, from a scrutiny perspective, the committee remains concerned that a three-month notification period (rather than a shorter period of time) may still limit the Ombudsman's ability to provide effective and responsive oversight. The committee is also concerned that the bill does not appear to impose specific consequences for a failure to comply with the requirements in proposed section 81. It only provides that a failure to comply with those requirements does not affect the validity of an IPO.
2.26 In addition, the minister's advice regarding how the Ombudsman conducts inspections indicate that shortening the notification period in relation to IPOs may permit the Ombudsman to spend additional time scheduling and allocating resources before starting an inspection. Ideally, this would result in a more comprehensive inspection process and improved compliance outcomes. The committee therefore considers that an agency should be required to notify the Ombudsman that a control order IPO has been issued, and provide the Ombudsman with a copy of the IPO, as soon as reasonably practicable after the IPO is issued.
2.27 In this regard, the committee notes that this does not seek to alter the time required for the Ombudsman to complete an inspection. Instead, it would ensure that the Ombudsman has access to the information needed to commence an inspection as soon as possible.
2.28 The committee requests that the key information provided by the minister 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).
2.29 From a scrutiny perspective, the committee considers that the bill should be amended to require the chief officer of a control order IPO agency to notify the Commonwealth Ombudsman that an IPO has been issued, and give the Ombudsman a copy of the IPO, as soon as reasonably practicable after the IPO is issued.
2.30 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of providing that the chief officer of a control order IPO agency may notify the Commonwealth Ombudsman that an IPO has been issued, and give the Ombudsman a copy of the IPO, up to three months after the IPO is issued.
2.31 The committee notes the minister's advice that clause 144 was drafted to mirror the oversight powers of the Ombudsman in section 87 of the TIA Act, and is consistent with other Commonwealth legislation. The committee notes the advice that changing 'reasonable grounds to believe' to 'reasonable grounds to suspect' would require broader consideration not only across the TIA Act, but other Commonwealth laws.
2.32 The committee also notes the minister's advice that the government considers that amending only the TIA Act would lead to considerable confusion as to the thresholds that apply under different laws, despite the oversight role of the Ombudsman being broadly consistent across Commonwealth legislation.
2.33 While the committee acknowledges that the bill was drafted to mirror the oversight powers of the Ombudsman in section 87 of the TIA Act, the committee does not consider consistency with existing legislation alone to be sufficient justification for providing that the Ombudsman may obtain information when the Ombudsman has 'reasonable grounds to believe' an officer is able to give information, rather than the lower threshold of 'reasonable grounds to suspect'. In this regard, the committee notes that concerns about consistency in relation to the oversight role of the Ombudsman across Commonwealth legislation could be addressed by providing that the Ombudsman's power to obtain information is engaged when the Ombudsman has 'reasonable grounds to suspect' across the Commonwealth statute book.
2.34 From a scrutiny perspective, the committee considers that clause 144 of proposed Schedule 1 to the TIA Act should be amended to provide that the Ombudsman has the power to obtain relevant information from officers and members of staff if the Ombudsman has 'reasonable grounds to suspect' that the officer or member of staff is able to give the relevant information, rather than the higher threshold of 'reasonable grounds to believe'.
2.35 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of providing that the Ombudsman may only obtain information when the Ombudsman has 'reasonable grounds to believe' an officer is able to give information, rather than the lower threshold of 'reasonable grounds to suspect'.
2.36 In Scrutiny Digest 5 of 2020 the committee requested the minister's advice as to:
• why it is necessary and appropriate to allow a broad range of persons to make an application for an international production order;
• whether the bill could be amended to:
• limit the persons who can make an application for an international production order to the heads of relevant agencies and members of the senior executive service (SES) (or equivalent); or
• at a minimum, require that the relevant agency head be satisfied that persons authorised to apply for an IPO have the relevant qualifications and expertise to do so.[6]
Minister's response
2.37 The minister advised:
Broad delegation of administrative powers
The Bill allows for an appropriate range of Commonwealth, State and Territory agencies to make an application for an international production order. This is primarily to reduce the burden on the current mutual legal assistance regime through providing an alternative investigative pathway and to ensure that investigations of serious crime and national security, and the monitoring of control orders, are able to be undertaken in a timely and effective manner.
The agencies and people within those agencies that can make an application for an international production order is intended to mirror the current arrangements under the TIA Act. The same agencies who can access this information domestically can do so internationally, in order to ensure they can successfully investigate serious crime, national security matters, and monitor control orders. Chief Officers of relevant agencies can delegate their powers to appropriate persons within their agencies to streamline processes to assist the relevant agency to enact and discharge its functions. Law enforcement and national security officers will receive training on the legislative requirements for making applications and will be supported by their legal areas to ensure that applications are of a high quality, and meet legislative requirements.
In terms of limiting who within agencies can make an application, please see response to 1.110 below for response.
Possible amendments
Consistent with the TIA Act regime, the Bill gives certain officers within agencies the ability to delegate the power to apply for an international production order. Independent of this consistency with domestic regimes, the separate policy reasoning for this is two-fold. Firstly, given the potential high volume of international production orders from Australian agencies, requiring agency heads or members of the senior executive service to make each application for an international production order would significantly reduce the speed with which agencies can request data under the international production order scheme and thereby significantly impair its utility. Secondly, agencies will be best placed to determine which officers are sufficiently qualified and across the factual circumstances of the investigations to ensure that independent decision-makers have before them sufficient opportunities to query facts forming the foundation of the application. In many cases, this may be the relevant investigating officer in charge of an investigation, rather than agency heads or members of the senior executive service.
Australia's law enforcement and national security agencies provide all officers with high levels of training and apply appropriate levels of oversight to officers when making warrant applications and authorisations through clearance chains and, in the case of law enforcement, the chain of command. Similar training and oversight will apply in respect of officers dealing with international production orders. Training often includes the legislative requirements for making applications, as well as outlining any support officers would receive from their respective legally qualified staff. This ensures that applications are of a high quality, and meet legislative requirements set by the Australian Parliament.
It is anticipated that before an agency may apply for an international production order under the Bill, the Australian Designated Authority will first examine the capabilities of the agency and offer training on the international production order framework to that agency's relevant personnel. If the Australian Designated Authority is satisfied of the agency's ability to comply with the requirements of the international production order regime, the Australian Designated Authority may certify that agency as eligible to seek communications data through the channels established by the Bill and the relevant designated international agreement. As part of that certification process, the agency will need to demonstrate that persons authorised to apply for an international production order are appropriately qualified.
While there is flexibility to determine who is best placed to make an application for each individual agency or department, other safeguards such as orders only being issued by an independent decision maker (e.g. an eligible judge or nominated AAT member) stand as a guard for insufficient or poor applications. Comprehensive oversight arrangements by the Commonwealth Ombudsman and the Inspector-General of Intelligence and Security will also create accountability for how agencies approach the application process. For the above reasons, the Government does not think it is necessary to limit who can apply for an international production order.
Committee comment
2.38 The committee thanks the minister for this response. The committee notes the minister's advice that chief officers of relevant agencies may delegate their powers to appropriate persons within their agencies to streamline processes and support the effective exercise of powers and functions. The committee notes the advice that law enforcement and national security officers will receive training on the legislative requirements for making applications, and will be supported by their legal areas to ensure that applications are high quality and meet legislative requirements.
2.39 The committee also notes the minister's advice that law enforcement and national security agencies apply appropriate levels of oversight to officers dealing with warrant applications through clearance chains and, in the case of law enforcement agencies, the chain of command. The committee notes the advice that similar levels of oversight will apply in respect of officers dealing with IPOs.
2.40 The committee further notes the minister's advice that it is anticipated that, before an agency may apply for an IPO, the Australian Designated Authority will examine the capabilities of the agency and offer training on the IPO framework to the agency's relevant personnel. As part of this process, the agency will need to demonstrate that persons authorised to apply for IPOs are appropriately qualified.
2.41 In relation to whether the bill could be amended to restrict the categories of persons who may apply for an IPO, the committee notes the minister's advice that the powers of delegation in the bill are consistent with the broader TIA Act regime.
2.42 The committee also notes the minister's advice that, given the potentially high volume of applications from Australian agencies, requiring agency heads and members of the SES to make each application for an international production order would significantly reduce the speed with which agencies can request data under the IPO scheme and thereby significantly impair the scheme's utility.
2.43 Finally, the committee notes the minister's advice that although there is flexibility to determine who is best-placed to make an application for an IPO on behalf of an agency, there are a number of general safeguards against insufficient or poor-quality applications. These include the requirement that IPOs only be issued by an independent decision-maker, and comprehensive oversight arrangements by the Ombudsman and the Inspector-General of Intelligence and Security.
2.44 The committee acknowledges that the circumstances of particular investigations may make it necessary to delegate the power to apply for IPOs to persons who are not members of the SES (or equivalent) in certain cases. However, the committee remains of the view that the power to apply for IPOs should only be delegated to persons with appropriate skills, training and expertise. This is to ensure that applications for IPOs are only made in appropriate circumstances, noting the potentially very significant trespass on personal rights and liberties flowing from the issue of an IPO. It is not apparent to the committee that such a requirement would interfere with the effective administration of the IPO scheme. Rather, the minister’s advice indicates that such a requirement would simply codify existing practice.
2.45 The committee requests that the key information provided by the minister 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).
2.46 From a scrutiny perspective, the committee considers that the bill should be amended to require that the relevant agency head must be satisfied that persons authorised to apply for IPOs possess the appropriate skills, training and expertise.
2.47 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of allowing a broad range of persons to apply for IPOs, in the absence of any legislative requirement that such persons possess appropriate skills, training and expertise.
2.48 In Scrutiny Digest 5 of 2020 the committee requested the minister's advice as to the rationale for including a no-invalidity clause in relation to requirements to notify the Ombudsman about the issuing of control order IPOs or where the chief officer of an agency has contravened paragraph 114(1)(d).[8]
Minister's response
2.49 The minister advised:
The notification requirement in clause 81 facilitates Commonwealth Ombudsman oversight of agency use of the international production order regime as it relates to control orders. This additional notification requirement in respect of control order international production orders is necessary given the extraordinary nature of the control order monitoring powers. Sub clause 81(3) seeks to clarify that if an agency fails to comply with the administrative requirements in sub clauses (1) or (2), the validity of the order remains unaffected. The purpose of this clause is to ensure that an administrative oversight does not result in the potential for invalidity.
Control order international production order agencies are required to comply with their reporting obligations in this clause and more broadly throughout the Bill. However, sub clause 81(3) ensures that where an administrative reporting obligation is included and contravened, the contravention would not undermine the validity of the order, which could result in perverse outcomes eventuating, for instance the inability to obtain information relevant to preventing a terrorist attack or subsequent prosecution relating to that potential attack.
Control order international production order agencies will be subject to strict oversight by the Commonwealth Ombudsman, as is the case for existing agencies that can apply for a control order warrant. Failure to comply with obligations in clause 81 may result in the investigation and public reporting on agency practices. This is consistent with current practices under the TIA Act for domestic control order warrants.
Committee comment
2.50 The committee thanks the minister for this response, and notes the minister's advice that the no-invalidity clause was included in subclause 81(3) to ensure that administrative oversight does not result in the invalidity of a control order IPO. In this respect, the committee notes the advice that if a failure to comply with the relevant administrative requirements did mean that an IPO is invalid, this could result in perverse outcomes such as the inability to obtain information relevant to preventing a terrorist attack or prosecution relating to that potential attack.
2.51 The committee further notes the minister's advice that control order IPO agencies will be subject to strict oversight by the Commonwealth Ombudsman and that failure to comply with the obligations in clause 81 may result in the investigation and public reporting on agency practices.
2.52 The committee requests that the key information provided by the minister 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).
2.53 In light of the information provided by the minister, the committee makes no further comment on this matter.
2.54 In Scrutiny Digest 5 of 2020 the committee requested the minister's advice as to:
• why it is necessary to allow most of the Ombudsman's powers and functions to be delegated to APS employees at any level; and
• whether the bill could be amended to:
• provide some legislative guidance as to the scope of powers that might be delegated, or the categories of people to whom those powers might be delegated; or
• at a minimum, require that the Ombudsman be satisfied that persons performing delegated functions and exercising delegated powers have the expertise appropriate to the function or power delegated.[10]
Minister's response
2.55 The minister advised:
Delegation of administrative powers
The broad delegation power allows the Commonwealth Ombudsman to determine how best to allocate resources and who the most appropriate officers will be when executing the functions or powers of the Commonwealth Ombudsman. This position is consistent with existing powers to delegate under the TIA Act.
This provision, and the provision at clause 149 regarding immunity from suit, replicate long standing provisions contained in the Ombudsman Act 1976 (subsections 33 and 34) and mirror similar provisions contained in the oversight and accountability regimes established in the Telecommunications (Interception and Access) Act 1979 and the Surveillance Devices Act 2004 (Part 6), and the Crimes Act 1914 (Part IAB).
The purpose of the delegation provision is to ensure that the staff of the office of the Commonwealth Ombudsman can perform the functions of the Commonwealth Ombudsman as required. It is important that the Commonwealth Ombudsman be able to determine the most efficient, effective and appropriate means of operationalising his functions as between himself and his staff cognisant of the powers involved and the expertise required to exercise them. In practice exercise of these functions and powers is limited to members of the team within the office of the Commonwealth Ombudsman responsible for conducting inspections of covert and intrusive powers by agencies.
Possible amendments
The choice of delegate is largely a matter to be determined by the person making the delegation. However, the Government expects that where delegation is appropriate and permitted by domestic law, the original decision-maker will consider the appropriateness and the expertise required to perform that delegation effectively and in line with Australian community expectations.
Committee comment
2.56 The committee thanks the minister for this response. The committee notes the minister's advice that the purpose of the delegation provisions is to ensure the Office of the Commonwealth Ombudsman can perform the Ombudsman's functions as required. The committee also notes that the provisions are consistent with other provisions in the TIA Act, as well as provisions relating to oversight and accountability in other Commonwealth legislation.
2.57 The committee acknowledges the minister's advice that it is important for the Ombudsman to be able to determine the most efficient, effective and appropriate means of operationalising his functions as between himself and his staff—cognisant of the powers involved and the expertise required to exercise them. The committee further notes the advice that, in practice, the exercise of the relevant functions and powers is limited to members of the team within the Office of the Commonwealth Ombudsman responsible for conducting inspections of covert and intrusive powers by agencies.
2.58 While noting this advice, the committee remains concerned that the bill would permit the Commonwealth Ombudsman to delegate functions and powers to a broad range of persons—including APS employees responsible to the Ombudsman and other persons with similar roles—without any guidance on the face of the bill as to how the powers of delegation are to be exercised.
2.59 In addition, the committee does not consider operational efficiency—or consistency with other laws—to be sufficient justification for permitting the delegation of significant functions and powers to APS officers at any level. In this respect, the committee acknowledges that it may be necessary for a range of APS officers to undertake work on the Ombudsman’s behalf. However, the committee considers it important that the Ombudsman, or sufficiently qualified and senior staff, remain accountable for the exercise of the Ombudsman’s powers.
2.60 The committee therefore considers that the bill should specify that the Ombudsman’s powers and functions may only be delegated to certain persons or positions or, at a minimum, specify that the Ombudsman must be satisfied that persons performing delegated functions or exercising delegated powers possess appropriate training, qualifications and expertise. The minister's advice regarding how powers of delegation are exercised in practice indicates that such a requirement would not interfere with the effective administration of the Office of the Commonwealth Ombudsman. Rather, the requirement would only codify existing practice.
2.61 The committee requests that the key information provided by the minister 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).
2.62 From a scrutiny perspective, the committee considers that the bill should be amended to restrict the delegation of the Commonwealth Ombudsman’s powers under the international production orders scheme to specific persons or roles or, at a minimum, require that the Ombudsman be satisfied that persons exercising delegated functions and powers possess the expertise appropriate to the relevant function or power.
2.63 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of allowing the Commonwealth Ombudsman to delegate functions and powers to Commonwealth APS officers at any level, and to persons with equivalent functions in other jurisdictions, in the absence of any legislative requirement that persons exercising delegated functions and powers possess appropriate skills, training and expertise.
2.64 In Scrutiny Digest 5 of 2020 the committee requested the minister's advice as to why it is necessary to provide the Ombudsman, an inspecting officer, or a person acting under an inspecting officer's direction or authority with immunity so that affected persons have their right to bring an action to enforce their legal rights limited to situations where lack of good faith is shown.[12]
Minister's response
2.65 The minister advised:
As mentioned above, clause 149 ensures the Commonwealth Ombudsman and staff with the office of the Commonwealth Ombudsman are able to perform their inspection functions under Part 10 without being impeded by the possibility of legal action. This provision is fundamental to enabling the Commonwealth Ombudsman and their staff to carry out their functions and powers freely and independently within the confines of the law. This immunity only applies if the inspection functions are being carried out in good faith. Immunity provisions of this kind are long-standing safeguards afforded to the Commonwealth Ombudsman and staff of the office of the Commonwealth Ombudsman, and similar immunities are contained elsewhere, such as section 33 of the Ombudsman Act 1976.
Committee comment
2.66 The committee thanks the minister for this response. The committee notes the minister's advice that the proposed immunity is fundamental to enabling the Commonwealth Ombudsman and their staff to carry out their functions and powers freely and independently within the confines of the law. The committee also notes the advice that the immunity only applies if the relevant functions are being carried out in good faith.
2.67 The committee further notes the minister's advice that immunity provisions of this kind are long-standing safeguards afforded to the Ombudsman and staff of their office, and similar immunities are contained elsewhere—such as in section 33 of the Ombudsman Act 1976.
2.68 The committee requests that the key information provided by the minister 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).
2.69 In light of the information provided by the minister, the committee makes no further comment on this matter.
2.70 In Scrutiny Digest 5 of 2020 the committee requested the minister's advice as to whether the bill can be amended to provide that an evidentiary certificate made under clause 161 will be prima facie evidence rather than conclusive evidence of the matters stated in the certificate.[14]
Minister's response
2.71 The minister advised:
Both prima facie and conclusive evidentiary certificates continue to be vital to the functioning of the TIA Act, and indeed, the effective administration of justice. Since the early 1990s, the TIA Act has included a framework for the use of evidentiary certificates. Consistent with existing provisions in the TIA Act, evidentiary certificates issued by designated communication providers are to be received into evidence in proceedings as conclusive evidence of the matters stated in the certificate, and evidentiary certificates issued by law enforcement are to be received into evidence in proceedings as prima facie evidence of the matters stated in the certificate.
The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide) sets out best practice in terms of the application of whether evidentiary certificate provisions are prima facie or conclusive evidence of the matters stated within. The Guide also notes evidentiary certificate provisions may specify that certificates are conclusive evidence of the matters stated in it where they cover technical matters that are sufficiently removed from the main facts at issue.
As noted by the Committee, the evidentiary certificates under clause 161 are to be treated in proceedings as conclusive evidence of the matters stated within from foreign designated communications providers. The policy objective here is the recognition of the inherent difficulties associated with having to have persons from those providers attend court to give witness testimony on matters that are merely technical or formal matters the provider had undertaken to comply with the international production order. These difficulties are likely to be compounded by the expected numbers of international production orders that will be focused on a few large foreign designated communications providers.
These evidentiary certificates will not cover matters in dispute or matters that go to questions of legality. The provision of conclusive evidentiary certificates that apply to the technical or formal matters will ensure that courts have complete information before them to assist in the administration of justice.
Committee comment
2.72 The committee thanks the minister for this response. The committee notes the minister's advice that both prima facie and conclusive evidentiary certificates are vital to the functioning of the TIA Act, and to the administration of justice generally. In this respect, the committee notes the advice that evidentiary certificates issued under clause 161 are consistent with existing provisions in the TIA Act.
2.73 The committee also notes the minister's advice that certificates issued under clause 161 recognise inherent difficulties associated with requiring persons from foreign communications providers to attend court to give testimony on matters that are merely technical or formal. The committee notes the advice that these difficulties are likely to be compounded by the expected numbers of IPOs that will be focussed on a few large foreign communications providers. The committee further notes the minister's advice that evidentiary certificates issued under clause 161 will not cover matters in dispute or go to questions of legality.
2.74 The committee appreciates that the proposal to allow communications providers to issue conclusive evidentiary certificates under clause 161 recognises the difficulties associated with requiring the providers to attend court to give evidence. In addition, the committee notes that the Guide to Framing Commonwealth Offences states that conclusive certificates may be appropriate in limited circumstances where they cover technical matters that are sufficiently removed from the main facts at issue. The Guide points to subsection 18(2) of the TIA Act as an example of where the use of conclusive certificates may be appropriate.[15] Clause 161 of the bill is similar to subsection 18(2) of the TIA Act.
2.75 However, the Guide also states that evidentiary certificates should generally only be used to settle formal or technical matters, and asserts that evidentiary certificate provisions should generally specify that certificates are prima facie evidence of the matters to which they relate, and allow an opportunity for evidence of contrary matters to be adduced. In relation to conclusive certificates, the Guide also asserts that requiring courts to exclude contrary evidence can destroy any reasonable chance to place complete facts before the court.[16]
2.76 The committee will have significant scrutiny concerns about the use of conclusive evidentiary certificates, and considers that any proposal to allow the use of such certificates should be accompanied by a detailed explanation as to why the certificates are appropriate. This should include an explanation of why it is necessary for the certificate to be conclusive evidence of the matters to which it relates rather than prima facie evidence. In this instance, while the minister's response explains why it is considered necessary use evidentiary certificates generally, it does not provide a clear explanation of why conclusive certificates are appropriate.
2.77 The committee requests that the key information provided by the minister 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).
2.78 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of allowing designated communications providers to issue written certificates as conclusive evidence of the matters to which the certificates relate (rather than prima facie evidence), in the absence of a clear justification as to why the use of conclusive evidentiary certificates is appropriate.
2.79 In Scrutiny Digest 5 of 2020 the committee requested the minister's advice as to why it is considered necessary and appropriate to allow information held in Australia to be accessed by foreign governments, in circumstances where existing legislative protections for the accessing of information have been removed and no safeguards are provided on the face of the bill to ensure a designated international agreement contains sufficient safeguards regarding the circumstances in which information can be accessed.
2.80 The committee also requested the minister's advice as to whether the bill can be amended to:
• set out minimum protections and safeguards related to privacy that must be included in designated international agreements;
• specify that designated international agreements must be tabled in the Parliament; and
• provide that any regulation that specifies the name of a designated international agreement does not commence until after the Parliament has had the opportunity to scrutinise the designated international agreement.[18]
Minister's response
2.81 The minister advised:
The Bill facilitates Australia entering into international cross-border access to data agreements with like-minded foreign governments who share Australia's commitment to combating serious crime, rule of law principles, and who strive for electronic surveillance laws that respect the balance between the needs of law enforcement and national security with protecting their communities from arbitrary and unlawful interference to their privacy. Whilst the Bill provides the mechanism for these agreements to be designated by regulation (clause 3), before getting to this point agreements will be subject to considerable parliamentary and public scrutiny, such as:
1. The Australian Government will conduct a thorough assessment of the privacy regime of the foreign country before entering into, and during, any agreement negotiations.
2. The Attorney-General and the Minister for Foreign Affairs will approve any proposed agreement before it is signed. Both Ministers have unique responsibilities for both domestic and international privacy matters.
3. Copies of the Treaty text will be tabled in parliament. The Department of Home Affairs will prepare a National Interest Analysis.
4. Any agreement will be referred to the Joint Standing Committee on Treaties (JSCOT) for consideration. Stakeholders and members of the public will be able to make submissions to JSCOT indicating any privacy concerns that JSCOT will take into account before providing its recommendations.
5. Before Australia can ratify an Agreement, Regulations will be made under the TIA Act to declare the agreement as a 'designated international agreement'. Such Regulations will be subject to the normal disallowance periods in parliament, and to oversight by parliamentary committees such as the Parliamentary Joint Committee on Human Rights.
Accordingly, there will be considerable opportunities for the Australian Parliament and the Australian community to scrutinise proposed agreements that go to facilitating efficient and effective access to electronic data to combat serious crime.
A thorough assessment will be conducted of applicable domestic laws and policies of the foreign government before entering into any agreement. This will be supported by a range of safeguards and restrictions to reflect in those agreements Australian values such as rule of law, privacy considerations and that electronic surveillance powers be exercised under a purported agreement where it is necessary, proportionate and reasonable.
Privacy
Our collective safety and security depends on the ability of Australian agencies to maintain lawful and efficient access to electronic evidence. The Bill creates a framework for ensuring that Australia can enter into international cross-border access to data agreements with trusted foreign countries while respecting privacy interests and foreign sovereignty. However, the benefits of allowing Australian law enforcement agencies and ASIO to be able to directly issue orders on foreign providers, cross-border arrangements and agreements would need to be reciprocal.
For example, in order for Australia to be a qualifying foreign government that is able to enter into an agreement under the United States Clarifying Lawful Overseas Use of Data (CLOUD) Act, it must ensure the removal of blocking statutes. Blocking statutes are laws that would prevent the United States Government from issuing legal process directly on Australian providers to access electronic information held in Australia. Accordingly, it was necessary that amendments be made to the Telecommunications Act 1997 to clarify that disclosures would be authorised by law for the purposes of the Privacy Act 1988 so as to ensure that Australian providers were legally able to comply with such legal process.
The Bill sets the outer framework for these agreements, whilst the treaty negotiation process and the agreements themselves will provide flexibility for Australia to ensure that individual agreements reflect appropriate safeguards and restrictions, and the changing technological environment. Agreements negotiated will have a range of safeguards and restrictions to ensure respect for privacy and civil liberties, rule of law, requirements for appropriate thresholds, and independent authorisation processes, to ensure orders are reasonable, necessary and proportionate. These necessary safeguards set an important foundation for future negotiations of cross-border access to data agreements with like-minded foreign governments.
Possible amendments
The Government considers that the current framing of the Bill permits sufficiently strong protections and safeguards to be agreed on between governments when negotiating cross-border access to data agreements. Australia's treaty-making process requires that all treaties be subject to Parliamentary scrutiny, including tabling in Parliament. Ordinarily, the treaty text is tabled before the Parliament to ensure transparency and allow for Parliamentary scrutiny processes to occur. Please refer to the response under 1.131 detailing the available opportunities that the Australian Parliament would have to scrutinise any cross-border access to data agreements that the Government pursues.
Committee comment
2.82 The committee thanks the minister for this response.
2.83 The committee notes the minister's advice that the bill creates a framework for ensuring that Australia can enter into international cross-border access to data agreements with trusted foreign countries, while respecting privacy interests and foreign sovereignty. This includes allowing Australian law enforcement agencies and ASIO to issue orders on foreign providers. The committee notes the advice that the benefits conferred on Australia under such agreements would need to be reciprocal and, as a consequence, it was necessary to dis-apply certain Australian privacy laws to ensure Australian providers can comply with requests by foreign governments.
2.84 The committee also notes the minister's advice that the bill sets the legal framework for entering into the relevant agreements, while treaty negotiation processes and the agreements themselves provide flexibility for Australia to ensure individual agreements include appropriate safeguards and reflect the changing technological environment. In this respect, the committee notes the advice that the relevant agreements will contain a range of safeguards and restrictions to ensure that personal rights and liberties are adequately protected.
2.85 The committee further notes the minister's advice that, before an agreement is made, the Australian Government will conduct a thorough assessment of the privacy regime of the foreign country—noting that it will be the laws of the foreign country that will establish the safeguards which apply when a foreign government requests information from Australian providers. The committee also notes the advice that the ministers responsible for domestic and international privacy matter (that is, the Attorney-General and the Minister for Foreign Affairs) must approve any proposed agreement before it is signed.
2.86 The committee welcomes the advice that the government will undertake a thorough assessment of the privacy regime of the relevant foreign country before entering into such agreements, including approval by the Attorney-General and Minister for Foreign Affairs. However, the committee remains concerned that the bill provides no guidance as to what must be included in reciprocal agreements between Australia and foreign governments, no guidance as to how the issue of orders or the making of requests will occur, and no guidance as to the persons or entities which constitute 'competent authorities'. Further, while noting that an assessment of the privacy regime of the relevant foreign country may occur in practice, the committee remains concerned that there is nothing on the face of the bill that would require such an assessment to be conducted, or require the relevant minister or ministers to be satisfied that the laws of the foreign country provide adequate privacy protections.
2.87 Additionally, while noting the minister's advice that agreements will have a range of safeguards to ensure respect for personal rights and liberties, there is no requirement on the face of the bill that the relevant minister(s) be satisfied that the relevant foreign country has appropriate legal and democratic processes in place, and that these processes are underpinned by the rule of law and the separation of powers.
2.88 The committee therefore remains of the view that, as currently drafted, these provisions have the potential to significantly trespass on personal rights and liberties.
2.89 In relation to the oversight mechanisms that apply to access to data agreements, the committee notes the minister's advice that copies such agreements will be tabled in Parliament and will be referred to the Joint Standing Committee on Treaties for consideration. In addition, the committee notes the minister's advice that, before Australia can ratify an agreement, the name of the agreement must be specified in regulations. The committee notes the advice that such regulations will be subject to disallowance, and to oversight by parliamentary committees such as the Parliamentary Joint Committee on Human Rights.
2.90 While noting this advice, given the significant nature of the agreements and associated powers and the potential trespass on personal rights and liberties, the committee considers that the bill should be amended to provide that any regulation that specifies the name of a designated international agreement does not come into effect until it has been approved by resolution of each House of the Parliament.[19]
2.91 The committee requests that the key information provided by the minister 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).
2.92 The committee considers that the provisions of the bill as currently drafted have the potential to significantly trespass on personal rights and liberties, particularly in circumstances where access to information held in Australia may be given to foreign jurisdictions whose governance structures are not underpinned by respect for the rule of law and the separation of powers.
2.93 The committee considers that the bill should be amended to:
• specify minimum protections and safeguards related to privacy that must be included in designated international agreements;
• require that, before the Australian Government signs a designated international agreement with a foreign government:
• the Australian Government must conduct a publicly-available assessment of the laws and the legal and democratic processes of the relevant foreign country, to ensure that there are adequate safeguards in place against undue trespass on personal rights and liberties, including but not limited to undue trespass on the right to privacy; and
• the ministers responsible for domestic and international privacy and human rights matters must approve the proposed agreement.
2.94 In addition, from a scrutiny perspective, the committee considers that the bill should be amended to provide that any regulation that specifies the name of a designated international agreement does not come into effect until it has been approved by resolution of each House of the Parliament.
2.95 The committee otherwise draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of dis-applying Australian privacy laws in relation to requests by foreign governments for access to information held in Australia under designated international agreements, in the absence of safeguards on the face of the bill to ensure that the information is only accessed in appropriate circumstances, or express requirements that designated international agreements be subject to appropriate parliamentary oversight.
[1] Proposed Schedule 1 to the Telecommunications (Interception and Access) Act 1979. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
[2] Senate Scrutiny of Bills Committee, Scrutiny Digest 5 of 2020, pp. 24-28.
[3] The minister responded to the committee's comments in a letter dated 18 May 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 7 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest
[4] Proposed paragraph 60(5)(f).
[5] Schedule 1, item 43, clause 22. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).
[6] Senate Scrutiny of Bills Committee, Scrutiny Digest 5 of 2020, pp. 28-29.
[7] Schedule 1, item 43, clause 81. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a) (i) and (iii).
[8] Senate Scrutiny of Bills Committee, Scrutiny Digest 5 of 2020, pp. 29-30.
[9] Schedule 1, clause 148. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).
[10] Senate Scrutiny of Bills Committee, Scrutiny Digest 5 of 2020, pp. 30-31.
[11] Schedule 1, clause 149. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
[12] Senate Scrutiny of Bills Committee, Scrutiny Digest 5 of 2020, pp. 31.
[13] Schedule 1, item 43, clause 161. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
[14] Senate Scrutiny of Bills Committee, Scrutiny Digest 5 of 2020, pp. 32.
[15] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 55.
[16] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 55.
[17] Schedule 1, item 43, clauses 168 and 169. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i), (iv) and (v).
[18] Senate Scrutiny of Bills Committee, Scrutiny Digest 5 of 2020, pp. 33-35.
[19] For an example of this approach, see section 10B of the Health Insurance Act 1973.
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