Telecommunications (Interception and Access) Amendment Bill 2023 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 153 (6 September 2023)

• Telecommunications (Interception and Access) Amendment Bill 202341

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Telecommunications (Interception and Access) Amendment Bill 2023[41]

Purpose	This bill seeks to amend the Telecommunications (Interception and Access) Act 1979 in relation to the communication of foreign intelligence information.
Portfolio	Attorney General
Introduced	House of Representatives on 7 August 2023
Bill status	Royal Assent on 10 August 2023

Broad discretionary powers

Broad authorisation powers

Privacy^[42]

2.16 Item 1 of Schedule 1 inserts subsection 65(1A) into the Telecommunications (Interception and Access) Act 1979 (the TIA Act). This section provides that the Director-General of Security may, personally, or by a person authorised by the Director-General of Security, and for the purposes (if any) approved by the Attorney-General in writing, and subject to the conditions (if any) specified by the Attorney-General in writing, communicate foreign intelligence information to another person (the second person). Subsection 65(1B) provides that the second person, and any other person to whom that foreign intelligence information is communicated, may communicate it to another person, and use and make a record of it.

2.17 Item 7 of Schedule 1 introduces subsection 137(1A) which provides a similar power for the Director-General of Security to communicate different kinds of foreign intelligence information to another person for the purposes (if any) approved by the Attorney-General in writing and subject to the conditions (if any) specified by the Attorney-General in writing.

2.18 These provisions provide a broad discretion for the Director-General of Security to communicate foreign intelligence information, subject to any purposes and conditions imposed by the Attorney-General, and an even broader discretion for the second person to whom such information has been communicated to share this with any other person and use and make a record of it. Subsection 65(1A) also provides for a broad authorisation power, as it allows the Director-General of Security to authorise a person to communicate foreign intelligence information to a second person, subject to the purposes or conditions if any specified by the Attorney-General.

2.19 In Scrutiny Digest 9 of 2023^[43], the committee requested the Attorney-General's detailed advice as to:

• why is it necessary and appropriate to allow the Director-General of Security to authorise any person to communicate foreign intelligence information in accordance with proposed subsection 65(1A);

• why it is considered necessary and appropriate to confer a broad power on the Director-General of Security to communicate foreign intelligence information;

• what further limitations or safeguards have been considered in limiting the broad discretionary power of the Director-General of Security, and why these have been considered inappropriate to include in the bill;

• why it is considered necessary and appropriate to confer a broad power on a 'second person' to communicate foreign intelligence information to another person, and use and make a record of it; and

• what safeguards exist in the Telecommunications (Interception and Access) Act 1979 or elsewhere to limit the broad power of a second person to communicate, use and make a record of foreign intelligence information.

Attorney-General's response

2.20 The Attorney-General advised that the Director-General of Security can only authorise ASIO (Australian Security Intelligence Organisation) employees and affiliates performing ASIO's functions to communicate foreign intelligence information. The bill also allows the Attorney-General to limit or constrain the exercise of this power by specifying conditions. The Attorney-General advised that any person approved to communicate this information must operate in accordance with relevant protective security policies, privacy rules, guidelines, and sensitive handling practices to protect this information from unauthorised disclosure, including the Minister’s guidelines in relation to the performance by the Australian Security Intelligence Organisation of its functions and the exercise of its powers (Minister’s Guidelines). The Attorney-General also noted that ASIO is subject to robust and independent oversight by the Inspector-General of Intelligence and Security.

2.21 In relation to why it is considered necessary and appropriate to confer such a broad power on the Director-General of Security, the Attorney-General advised that the ability to use and disclose foreign intelligence information is critical to ASIO's ability to achieve its functions. Further, the Director-General of Security is limited by section 20 of the Australian Security Intelligence Organisation Act 1979 (ASIO Act) which requires them to take all reasonable steps to ensure that the work of ASIO is limited to what is necessary for the purposes of the discharge of its functions. Similarly, there are requirements in the Minister's Guidelines requiring the Director-General of Security to take all reasonable steps to ensure that ASIO’s collection, retention, use, handling and disclosure of personal information is limited to what is reasonably necessary to perform its functions. The Attorney-General advised that these measures constitute appropriate safeguards on the Director-General of Security's discretionary powers in this regard, in addition to the Act's requirement that information sharing is subject to conditions imposed by the Attorney-General. In relation to the breadth of the power to share information to a 'second person' and whether any safeguards exist to limit that power, the Attorney-General advised that foreign intelligence information plays a critical role in enabling intelligence agencies to identify threats to Australia's national security, and information sharing is necessary to identify and mitigate these threats. The Attorney-General advised that the amendments enable agencies to use or communicate foreign intelligence information to persons who are best placed to take actions, mitigate risk and protect Australia’s national security interests.

Committee comment

2.22 The committee thanks the Attorney-General for this response.

2.23 While the Attorney-General's response has indicated this broad discretionary power is limited by any conditions imposed by the Attorney-General, the ASIO Act, the Minister's Guidelines and other policies, it appears to the committee that many of these limitations nevertheless allow the communication of information where it is necessary for the discharge of ASIO's functions or otherwise authorised by law. As this Act authorises such a broad discretion to communicate foreign intelligence information, it appears to the committee that these safeguards will not operate in practice to limit the broad discretion to communicate foreign intelligence information.

2.24 In relation to the Director-General of Security's power to authorise another person to communicate foreign intelligence information to a 'second person', the committee reiterates that this power is broad and applicable to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. It would be preferable to see a limit set either on the scope of powers that a person may be authorised to have, or on the categories of people to whom those powers might be authorised.

2.25 The committee considers that the Attorney-General's response has not adequately justified why it is necessary and appropriate to confer such a broad power to share foreign intelligence information to a 'second person', and further, why it is not appropriate to limit the power for the second person to communicate that information to another person, use that information, or make a record of it. The committee considers that Australia's national security interests could still be protected with more rigorous safeguards on the sharing of foreign intelligence information, particularly in relation to the sharing of information to a 'second person' and the second person's scope to communicate, use or record that information.

2.26 As the bill has already passed both Houses of the Parliament and received Royal Assent, the committee makes no further comment on this matter.

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[41] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Telecommunications (Interception and Access) Amendment Bill 2023, Scrutiny Digest 10 of 2023; [2023] AUSStaCSBSD 153.

[42] Schedule 1, items 1 and 7, subsections 65(1A), 65(1B), 137(1A) and 137(1B). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i) and (ii).

[43] Senate Scrutiny of Bills Committee, Scrutiny Digest 9 of 2023 (9 August 2023) pp. 26–29.