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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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1.17 Item 2 of Schedule 1 to the bill seeks to insert proposed section 9D into the Intelligence Services Act 2001 (Intelligence Services Act) to provide that agency heads may provide emergency authorisations to allow for the gathering of intelligence regarding Australian persons overseas without their consent in circumstances where there is an imminent risk to their safety. Proposed subsection 9D(3) provides that the agency head may specify that the authorisation is subject to conditions.
1.18 Proposed subsection 9D(4) provides that the agency head must notify the minister, either orally or in writing, of the authorisation within 8 hours of the authorisation being made. Proposed subsection 9D(5) also provides that the agency head must ensure the authorisation is recorded in writing, including a summary of the relevant facts and provide a copy of this to both the responsible minister and the Inspector-General of Intelligence and Security.
1.19 Proposed subsection 9D(14) provides that an agency head may delegate all or any of their powers, functions or duties under proposed section 9D to a staff member. Proposed subsection 9D(15) provides that, in exercising a power, performing a function or discharging a duty under a delegation under proposed subsection 9D(14), the delegate must comply with any written directions of the agency head.
1.20 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.
1.21 In this instance, the explanatory memorandum states:
ASIS, ASD and AGO operate in a range of operational environments, including overseas. The ability for the heads of these agencies to delegate their powers to staff members is necessary to ensure that each agency is able to act swiftly to protect Australian persons who are at imminent risk of harm overseas. The fact that this power must be expressly delegated, rather than given to all staff members, ensures that only those staff members that the agency head considers to be appropriately qualified to make such a significant decision will be authorised.[22]
1.22 While noting this explanation, and acknowledging the operational complexities involved, 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). For example, it is unclear to the committee why it would be necessary or appropriate for an agency head to delegate their responsibilities under proposed subsection 9D(4) or (5). The committee's concerns in this instance are heightened by significant nature of the powers involved, the fact that emergency authorisations may remain in force for up to six months,[23] and the potential impacts on an individual's privacy that may be a consequence of their use.
1.23 The committee therefore requests 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.
1.24 Schedule 2 to the bill seeks to amend the Intelligence Services Act to introduce a new counter-terrorism class ministerial authorisation. Currently, the Australian Secret Intelligence Service (ASIS), the Australian Signals Directorate (ASD) and Australian Geospatial Intelligence Organisation (AGO) are required to receive ministerial authorisation to produce intelligence on an Australian person (in addition to receiving agreement from the Attorney-General and, where conducting activities onshore, a warrant). Schedule 2 seeks to extend this to a class of persons by providing authority for these agencies to expeditiously produce intelligence on one or more members of a class of Australian persons who are, or are likely to be, involved with a listed terrorist organisation.[25]
1.25 Proposed subsection 9(1AAB) non-exhaustively provides that a person is involved with a listed terrorist organisation if they:
• direct or participate in the activities of the organisation;
• recruit a person to join the organisation;
• provide training to or receive training from the organisation;
• are a member of the organisation;
• provide financial or other support to the organisation; or
• advocate for, or on the behalf of, the organisation.
1.26 Schedule 3 to the bill seeks to amend section 8 of the Intelligence Services Act to provide that ASD and AGO can obtain an authorisation to produce intelligence on one or more members of a class of Australian persons when providing assistance to the Australian Defence Force in support of military operations.
1.27 The committee has previously commented on authorisations by class in relation to the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014.[26] The committee reiterates its previous concerns that a clear risk of class authorisations is that they may be overly inclusive. The idea that an entire class of persons, as opposed to an individual, are or are likely to be involved in certain activities or pose particular threats—in the absence of individual consideration to each member of the class—may be based on generalisations. Another related risk is that the class may not be specified with adequate precision.[27]
1.28 The committee notes the definition of persons involved with a terrorist organisation is very broad and that the authorisation powers are likely to adversely affect the rights and liberties of individuals who are the subject of an authorisation in significant ways, for example, in relation to the right to privacy. While the committee notes that proposed section 10AA provides additional safeguards in relation to class authorisations, given the broad nature of the power and potential impact on rights and liberties, the committee continues to have significant scrutiny concerns regarding the use of class authorisations in the Intelligence Services Act.
1.29 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of expanding the ministerial authorisation regime in the Intelligence Services Act 2001 to enable ASIS, ASD and AGO to produce intelligence on a class of Australian persons who are, or are likely to be, involved with a listed terrorist organisation, noting the potential of these provisions to trespass on a person's rights and liberties.
1.30 Currently, section 13B of the Intelligence Services Act provides that if ASIO has notified ASIS that it requires the production of intelligence on Australians, ASIS may support ASIO in the performance of its functions by carrying out an activity to produce such intelligence, but only if the activity will be undertaken outside Australia. Item 1 of Schedule 5 to the bill seeks to amend section 13B to remove the requirement that the activity or series of activities will be undertaken outside Australia.
1.31 The statement of compatibility states:
The Government considers that there is an increasing operational necessity to improve cooperation and integration between intelligence agencies, particularly as Australia’s security environment becomes more complex and the lines of demarcation between foreign and security intelligence more porous. With more extensive and direct involvement of some Australians in international terrorist and extremist causes, and with greater scope for external covert interference in Australia generally, domestic and foreign sources of security threats have become less mutually exclusive. Security threats to Australians, in Australia, have increased and diversified as a result.[29]
1.32 While noting this explanation, the committee has significant scrutiny concerns regarding these amendments which would allow ASIS to undertake intelligence gathering on Australians in Australia. The committee considers that this provision may have a significant impact on individuals' privacy and does not consider that the explanatory materials have adequately justified why this is necessary or appropriate. The committee's concerns in this regard are heightened noting that this was not a measure recommended by the Comprehensive Review of the Legal Framework of the National Intelligence Community, on which a number of the other amendments in this bill are based.
1.33 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of allowing ASIS to undertake intelligence gathering on persons in Australia, noting the potential of the measure to impact on a person's right to privacy.
1.34 Currently, section 22A of the Australian Passports Act 2005 (Passports Act) and section 15A of the Foreign Passports (Law Enforcement and Security) Act 2005 (Foreign Passports Act) allow the Director-General of Security to request the Minister for Foreign Affairs to suspend a person's Australian passport or to order the temporary surrender of a person's foreign travel documents (including passports) for a period of 14 days.
1.35 Schedule 8 to the bill seeks to amend both the Passports Act and the Foreign Passports Act to extend this period to 28 days.
1.36 The committee has previously raised scrutiny concerns regarding the introduction of the 14-day suspension power in its Report relating to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014.[31] In its report, the committee noted that the Independent National Security Legislation Monitor had recommended a strict timeframe for interim cancellations and suggested that an initial period of 48 hours, followed by extensions of up to 48 hours at a time for a maximum period of seven days may be appropriate.[32]
1.37 In this instance, the explanatory memorandum states:
Operational requirements have evolved since the amendments conferring the ability to suspend or temporarily surrender travel documents were introduced via the Foreign Fighters Act. In particular, the conflict in Syria and Iraq has demonstrated that events overseas can drive significant and sustained increases in the number of people who may seek to leave Australia to engage in harmful conduct overseas. The suspension and cancellation powers are used only where necessary, and in a relatively small proportion of all passport matters. Since the commencement of the powers in December 2014, around 190 Australian passports have been cancelled or refused in relation to the conflict in Syria and Iraq, while in the same period around 40 passports were subject to temporary suspension. On a number of occasions, the first time a person has come to ASIO’s attention has been as they are preparing to travel overseas to a conflict zone. It has therefore been necessary to take action in a very short timeframe to prevent them from leaving Australia. A security assessment must be prepared by officers who may also be involved in other (or related) priority investigations.[33]
1.38 While noting this explanation, from a scrutiny perspective, it remains unclear to the committee that it is necessary or appropriate to extend the ability of the minister to suspend or to the order the temporary surrender of a person's Australian or foreign travel documents from 14 to 28 days. The committee does not consider that the infrequent use of these broad powers to be a sufficient justification. As a result, the committee continues to have significant scrutiny concerns regarding the minister's broad discretionary power to suspend or to order the temporary surrender of a person's travel documents for up to 28 days.
1.39 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of extending the period of time the minister may suspend, or order the temporary surrender of, a person's travel documents from 14 to 28 days, noting the potential of the measure to trespass on a person's rights and liberties.
1.40 Item 2 of Schedule 10 to the bill seeks to amend subsection 15(5) of the Intelligence Services Act to provide that the responsible ministers for ASIS, ASD and AGO must ensure that the relevant agency's privacy rules, which regulate the communication and retention by the agency of intelligence information concerning Australian persons, are published on the agency's website except to the extent that the rules contain operationally sensitive or prejudicial information.
1.41 Additionally, item 12 seeks to insert proposed section 41C into the Intelligence Services Act to provide that the responsible minister for the Defence Intelligence Organisation (DIO) must make privacy rules. Proposed subsection 41C(6) provides that the minister must ensure that that the privacy rules are published on DIO's website except to the extent that the rules contain operationally sensitive or prejudicial information.
1.42 There is no legislative requirement for any of the relevant privacy rules to be tabled in Parliament.
1.43 The committee's consistent scrutiny view is that tabling documents in Parliament is important to parliamentary scrutiny, as it alerts parliamentarians to the existence of documents and provides opportunities for debate that are not available where documents are not made public or are only published online. The explanatory materials contain no justification as to why none of the privacy rules published by the relevant agencies (with operationally sensitive information excluded) are required to be tabled in Parliament.
1.44 The committee therefore requests 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.
[21] 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).
[22] Explanatory memorandum, p. 58.
[23] Proposed subsection 9D(9).
[24] Schedule 2 and Schedule 3, item 1. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i) and (ii).
[25] Schedule 2, item 2, proposed subparagraph 8(1)(a)(iaa) and item 3, proposed subsection 9(1AAA).
[26] Senate Standing Committee for the Scrutiny of Bills, First Report of 2015, 11 February 2015, pp. 47-81.
[27] Senate Standing Committee for the Scrutiny of Bills, First Report of 2015, 11 February 2015, p. 66.
[28] Schedule 5, items 1 and 2. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[29] Statement of compatibility, p. 26.
[30] Schedule 8, items 1 and 4, subsections 22A(1) and 15A(2). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i) and (ii).
[31] Senate Standing Committee for the Scrutiny of Bills, Report relating to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, 23 October 2014, pp. 6-8.
[32] Senate Standing Committee for the Scrutiny of Bills, Report relating to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, 23 October 2014, p. 7.
[33] Explanatory memorandum, p. 77.
[34] 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).
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