National Security Legislation Amendment (Comprehensive Review and Other Measures No 1) Bill 2021 - Commentary on Ministerial Responses [2022] AUSStaCSBSD 51 (30 March 2022)

• National Security Legislation Amendment (Comprehensive Review and Other Measures No. 1) Bill 2021
• Broad delegation of administrative powers1

---

National Security Legislation Amendment (Comprehensive Review and Other Measures No. 1) Bill 2021

Purpose	This bill seeks to amend the: • Intelligence Services Act 2001; • Criminal Code Act 1995; • Crimes Act 1914; • Australian Passports Act 2005; • Foreign Passports (Law Enforcement and Security) Act 2005; • Office of National Intelligence Act 2018; • Inspector-General of Intelligence and Security Act 1986; • Australian Security Intelligence Organisation Act 1979; and • Telecommunications (Interception and Access) Act 1979. 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.
Portfolio	Home Affairs
Introduced	House of Representatives on 25 November 2021
Bill status	Before the House of Representatives

Broad delegation of administrative powers^[1]

2.23 The committee initially scrutinised this bill in Scrutiny Digest 1 of 2022 and requested the minister's advice.^[2] The committee considered the minister's response in Scrutiny Digest 2 of 2022 and requested 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.^[3]

Minister's response^[4]

2.24 The minister advised:

Due to the sensitive nature of the operational activities involved, I will not comment on the specific levels of staff members who may be delegated the power to give emergency authorisations under proposed
subsections 90(1)-(3).
As I stated in my previous response to the Committee, there is a strong operational need for this power to be devolved to ensure that appropriate decisions can be made quickly where there is an imminent threat to an Australian person's safety. The new emergency authorisation is for the limited scenario in which an immediate or near-immediate response is required. Introducing additional delay into the authorisation process could make the new authorisation framework unworkable and potentially defeat its purpose by putting Australians at further risk. Crucially, the scenario is also limited to where it is reasonable to believe that the Australian person would consent to the production of intelligence about them if they were able to do so.
Overseas staff operate in a variety of contexts, with differing levels of seniority. Officers in the field are often best placed to assess the immediacy of a threat, and the best way to gather intelligence to assist an Australian person whose safety is at risk.
In practice, decisions would likely be made by the most senior officer in the relevant location. However, the level of these officers can differ between locations. The delegation ensures it is possible for suitable individuals in the relevant location and time zone to make decisions if required.
In the unlikely circumstance that the most senior officer is not available, the operational need for approval by a more junior officer to act immediately in a potentially life or death situation, coupled with the need for fast consideration by the agency head and responsible Minister, outweighs any limited risks posed by a more junior staff member being delegated this power in the very limited circumstance where an Australian person is at imminent risk overseas.
The requirement that the power be expressly delegated by the agency head in writing, rather than conferred automatically to all, or a class of, agency staff, ensures the agency head will have regard to the appropriateness of the officers being authorised at the time of granting the delegation. In practice, the agency head will only delegate the power to issue emergency authorisations to those officers he or she considers to possess the necessary skills and training to make time critical judgments about the production of intelligence. Further, officers will be required to comply with any written directions given by the agency head when exercising a power, performing a function or discharging a duty under the delegation.
For these reasons, it is not necessary to amend the Bill to include additional decision-making criteria in the proposed delegation power in Schedule 1.
Finally, the Committee requested more detailed advice as to whether Schedule 1 of the Bill could be amended to limit the delegation of an agency head's responsibilities under proposed subsections 9D(4) or (5) to members of the Senior Executive Service.
The responsibilities under proposed subsections 9D(4) and (5) include requirements to notify the responsible Minister, Inspector-General of Intelligence and Security (IGIS), the Attorney-General and the Minister responsible for administering the Australian Security Intelligence Organisation Act 1979 (the ASIO Minister). These requirements ensure that responsible Ministers maintain visibility, that the IGIS can properly exercise its oversight function, and that the Attorney-General and ASIO Minister are made aware of threats to security.
Requiring these obligations to only be fulfilled by members of the Senior Executive Service (SES) could have the counter-productive effect of delaying provision of the information and documentation to the responsible Minister, IGIS, Attorney-General and ASIO Minister due to SES having a wide remit of responsibilities and significant competing priorities for their time.
Enabling, in appropriate circumstances, non-SES officers to provide these notifications, for example when SES or a senior officer is not available, will maximise opportunities for Ministerial and IGIS oversight. and will ensure that the Attorney-General and the ASIO Minister are made aware of threats to security as soon as possible.
For these reasons it is not necessary or appropriate to amend the Bill to limit certain elements of the delegation power to members of the SES.

Committee comment

2.25 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 to give emergency authorisations to be devolved to ensure that appropriate decisions can be made quickly where there is an imminent threat to an Australian person's safety. The minister also advised that in practice, decisions would likely be made by the most senior officer in the relevant location and the level of these officers can differ between locations. The minister noted that the delegation ensures it is possible for suitable individuals in the relevant location and time zone to make decisions if required.

2.26 The committee also notes the minister's advice that the requirement that the power be expressly delegated by the agency head in writing, rather than conferred automatically to all, or a class of, agency staff, ensures the agency head will have regard to the appropriateness of the officers being authorised at the time of granting the delegation. The minister also advised that in practice, the agency head will only delegate the power to issue emergency authorisations to those officers he or she considers to possess the necessary skills and training to make time critical judgments about the production of intelligence. The minister further advised that officers will be required to comply with any written directions given by the agency head when exercising a power, performing a function or discharging a duty under the delegation.

2.27 The committee also notes the minster's advice that, in relation to proposed subsections 9D(4) and (5), requiring these obligations to only be fulfilled by members of the Senior Executive Service (SES) could have the counter-productive effect of delaying provision of the information and documentation to the responsible minister, IGIS, Attorney-General and ASIO Minister due to SES having a wide remit of responsibilities and significant competing priorities for their time.

2.28 The committee further notes the minister's advice that enabling, in appropriate circumstances, non-SES officers to provide these notifications, for example when SES or a senior officer is not available, will maximise opportunities for ministerial and IGIS oversight and will ensure that the Attorney-General and the ASIO Minister are made aware of threats to security as soon as possible.

2.29 While noting the minister's advice, the committee continues to have scrutiny concerns regarding the broad power for agency heads to delegate their powers and functions under proposed subsection 9D(14). For example, if in practice, only the most senior officers in a location would likely exercise the emergency authorisation powers in proposed subsections 9D(1)–(3), it remains unclear why the bill could not limit the delegation of these powers to only senior officers, unless particularly exceptional circumstances exist.

2.30 Additionally, if in practice, the agency head will only delegate their powers to officers with appropriate skills and experience, it is unclear to the committee why this is unable to be included on the face of the primary legislation to provide additional legislative assurance that any delegation would be appropriate. The committee has generally not accepted a reliance on administrative practice to be a sufficient justification for a lack of safeguards on the face of the primary legislation.

2.31 It also 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.

2.32 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.

2.33 From a scrutiny perspective, the committee considers that the bill should 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, function or duty.

2.34 The committee otherwise draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of the broad delegation power relating to emergency authorisations in proposed subsection 9D(14).

---

[1] 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).

[2] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2022, pp. 8-10.

[3] Senate Scrutiny of Bills Committee, Scrutiny Digest2 of 2022, pp. 88-91.

[4] The minister responded to the committee's comments in a letter dated 28 March 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 3 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.