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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 amend the:
• Criminal Code Act 1995;
This bill seeks to implement the government response to a number of
recommendations of the Comprehensive Review of the Legal Framework of the
National Intelligence Community (Comprehensive Review). The measures in the
bill seek to improve the legislative framework governing the National
Intelligence Community by addressing key
operational challenges facing the
Australian Security Intelligence Organisation, the Australian Secret
Intelligence Service, the
Australian Signals Directorate, the Australian
Geospatial-Intelligence Organisation, the Defence Intelligence Organisation and
the
Office of National Intelligence.
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Portfolio
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Home Affairs
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Introduced
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House of Representatives on 25 November 2021
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Bill status
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Before the House of Representatives
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2.66 In Scrutiny Digest 1 of 2022 the committee requested the minister's advice as to whether the bill can be amended to either:
• limit the ability to delegate powers, functions or duties under proposed section 9D (relating to emergency authorisations) to staff members of the senior executive service (or equivalent) and above; or
• limit the scope of the powers, functions and duties under proposed section 9D that can be delegated to a staff member.[36]
Minister's response[37]
2.67 The minister advised:
Schedule 1 amends the Intelligence Services Act 2001 (IS Act) to permit the Australian Secret Intelligence Service (ASIS), Australian Signals Directorate (ASD) and Australian Geospatial-Intelligence Organisation (AGO) (together, the IS Act agencies) to produce intelligence on an Australian person, without first obtaining ministerial authorisation, in circumstances where there is an imminent risk to the person’s safety overseas, and only in the very narrow situation where it is reasonable to believe that the person would consent to the IS Act agencies taking action. This allows for swift action to be taken in situations of imminent risk to an Australian person’s safety overseas, such as a kidnapping or hostage situation.
In emergency circumstances, time is of the essence. The ministerial authorisation process, even including the existing emergency authorisation provisions, can constitute a significant and unacceptable delay. Operational experience has demonstrated that the current emergency authorisation provisions in sections 9A, 9B and 9C of the IS Act do not support expeditious action by the relevant agencies where an Australian person’s life may depend on immediate action. In particular, under the current framework, if an agency head considers it necessary or desirable to undertake an activity or series of activities, they must be satisfied that relevant Ministers are not available before giving an authorisation. In time-critical situations, the extra time involved in satisfying this requirement can put Australians at risk.
The ability to delegate powers, functions or duties under proposed section 9D
There is a strong operational need for this power to be devolved. The new emergency authorisation is for the limited scenario in which an immediate or near-immediate response is required. Introducing any delay into the authorisation process would defeat the purpose of the new authorisation and potentially put Australians at further risk. Crucially, the new authorisation is only for the very narrow scenario where it is reasonable to believe that the person would consent to the production of intelligence on themselves, if they were able to do so.
The scope of the delegation
It is also appropriate for the scope of the delegation to include all or any powers, functions or duties of the agency head under this section. The other obligations that may be delegated – for example, requirements to notify the responsible Minister and Inspector-General of Intelligence and Security (IGIS) – ensure that the responsible Minister maintains visibility and that the IGIS can properly exercise its oversight function. Requiring these obligations to only be fulfilled by the agency head personally could have the counter-productive effect of delaying provision to the responsible Minister and IGIS of the information and documentation to which they are legally entitled. Similarly, limiting a delegate’s ability to cancel an authorisation under subsection 9D(12) could result in an authorisation continuing for longer than necessary, if the relevant agency-head was not immediately available.
The IGIS will have an important oversight role for agencies’ use of this emergency authorisation, including whether the agencies act legally and with propriety, comply with ministerial guidelines and directives, and respect human rights. Under proposed subsection 9D(8) of Schedule 1, the IGIS is required to consider whether the agency head has complied with the requirements of section 9D, prepare a compliance report for the responsible Minister each time this power is exercised and provide the Committee with a copy of the conclusions to this report.
Fundamentally, the proposed emergency authorisation provisions are for the protection and benefit of individual Australians and can only be used in very narrow circumstances – to collect intelligence on an Australian who is at imminent risk of harm overseas, and where that Australian is likely to want, and indeed expect, the Government to take every action to assist them. It is therefore appropriate that the ability to delegate this power is reflective of the operational reality.
Committee comment
2.68 The committee thanks the minister for this response. The committee notes the minister's advice that there is a strong operational need for the power under proposed section 9D (relating to emergency authorisations) to be devolved and that introducing any delay into the authorisation process would defeat the purpose of the new authorisation and potentially put Australians at further risk.
2.69 The committee also notes the minister's advice that the new authorisation is only for the very narrow scenario where it is reasonable to believe that the person would consent to the production of intelligence on themselves, if they were able to do so.
2.70 The committee further notes the minister's advice that requiring these obligations to only be fulfilled by the agency head personally could have the counter-productive effect of delaying provision to the responsible minister and IGIS of the information and documentation to which they are legally entitled.
2.71 While the committee acknowledges the need for immediate action in certain circumstances, it remains unclear to the committee why all of the powers and functions of an agency head under proposed section 9D may be delegated to any staff member (other than a consultant or contractor).
2.72 For example, it remains unclear to the committee why there could not be some limit on the persons to whom the power to give emergency authorisations under proposed subsections 9D(1)–(3) may be delegated. The committee notes that this could include a requirement that an agency head is satisfied that the person has the appropriate training, qualifications or experience to appropriately exercise the delegated power.
2.73 Additionally, it remains unclear to the committee why the power of an agency head to delegate their responsibilities under proposed subsection 9D(4) or (5) could not be limited to relevant members of the Senior Executive Service without compromising the ability of the agency to ensure that the minister and IGIS are efficiently informed.
2.74 The committee reiterates that its scrutiny concerns in this instance are heightened by the significant nature of the powers involved, the fact that emergency authorisations may remain in force for up to six months, and the potential impacts on an individual's privacy that may be a consequence of their use.
2.75 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials 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).
2.76 As the minister's response has not adequately addressed the committee's scrutiny concerns, the committee requests the minister's further advice as to:
• the level of staff members who, in practice, it is expected will be delegated the power to give emergency authorisations under proposed subsections 9D(1)–(3); and
• whether the bill could be amended to:
• require that an agency head, when making a delegation under proposed subsection 9D(14), must be satisfied that the person has the appropriate training, qualifications or experience to appropriately exercise the delegated power; and
• limit the delegation of an agency head's responsibilities under proposed subsections 9D(4) or (5) to members of the Senior Executive Service.
2.77 In Scrutiny Digest 1 of 2022 the committee requested the minister's advice as to whether the bill can be amended to provide that the privacy rules published online under proposed subsections 15(5) and 41C(6) are also tabled in the Parliament.[39]
Minister's response[40]
2.78 The minister advised:
Schedule 10 implements recommendations 12 and 189 of the Comprehensive Review. It requires the Defence Intelligence Organisation (DIO) to have legally binding privacy rules, requires ASIS, ASD, AGO and DIO to make their privacy rules publicly available (except for operationally sensitive information or information that would or might prejudice Australia’s national security, foreign relations, or the performance of agency functions), and updates the Office of National Intelligence’s (ONI) privacy rules provisions so that they only apply to intelligence about an Australian person under ONI’s analytical functions. The purpose of the amendments is to ensure increased transparency and accountability by requiring the privacy rules to be publicly available and reviewable by the Parliamentary Joint Committee on Intelligence and Security (PJCIS).
Under the reforms, the privacy rules will be subject to robust ministerial oversight. In each case, the privacy rules are made by the responsible Minister – ensuring the principle of ministerial accountability is engaged. In making the privacy rules, the relevant Minister must have regard to the need to ensure that the privacy of Australians is preserved as far as is consistent with the proper performance by the agencies of their functions.
The main argument in favour of tabling the privacy rules is to provide an opportunity for parliamentary scrutiny. This is a policy outcome that is already achieved by the Bill introducing a new function for the PJCIS to review each agency’s privacy rules (see amended subsections 29(1) and 29(3) in Schedule 10). Review by the PJCIS provides openness, transparency and accountability and provides an avenue for members of the public to raise any concerns with respect to the privacy rules. PJCIS members have significant insight into the activities and functions of the intelligence agencies, and are well-placed to review agencies’ privacy rules in a comprehensive manner that is cognisant of the unique operating environment of those agencies.
As the Bill already requires the privacy rules to be published (other than sensitive information) and subject to parliamentary committee oversight, a requirement to table the rules is unlikely to result in any additional transparency or scrutiny.
Committee comment
2.79 The committee thanks the minister for this response. The committee notes the minister's advice that the opportunity for parliamentary scrutiny is already achieved by the bill introducing a new function for the Parliamentary Joint Committee on Intelligence and Security (PJCIS) to review each agency’s privacy rules.
2.80 The committee also notes the minister's advice that review by the PJCIS provides openness, transparency and accountability and provides an avenue for members of the public to raise any concerns with respect to the privacy rules. The minister also advised that PJCIS members have significant insight into the activities and functions of the intelligence agencies, and are well-placed to review agencies’ privacy rules in a comprehensive manner that is cognisant of the unique operating environment of those agencies.
2.81 While the committee welcomes the proposal to introduce a new function for the PJCIS to review each agency’s privacy rules, the committee reiterates that the process of tabling documents in Parliament provides opportunities for debate that are not available where documents are only published online, even where such documents are also subject to review by a parliamentary committee.
2.82 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials 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).
2.83 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of not providing that the privacy rules published online under proposed subsections 15(5) and 41C(6) are also tabled in the Parliament.
[35] Schedule 1, item 2, proposed subsection 9D(14). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).
[36] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2022, pp. 8-10.
[37] The minister responded to the committee's comments in a letter dated 22 February 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 2 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.
[38] Schedule 10, items 2 and 12, proposed subsections 15(5) and 41C(6). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(v).
[39] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2022, pp. 14-15.
[40] The minister responded to the committee's comments in a letter dated 22 February 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 2 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.
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