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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
COUNTER-TERRORISM LEGISLATION AMENDMENT BILL (NO. 1) 2014
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments
to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, Senator the Honourable George Brandis QC)
AMENDMENTS TO THE COUNTER-TERRORISM LEGISLATION AMENDMENT
BILL (NO. 1) 2014
GENERAL OUTLINE
1. The Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 (the Bill) was
introduced in the Senate on 29 October 2014, and was the subject of an inquiry by the
Parliamentary Joint Committee on Intelligence and Security (the Committee). The
Committee tabled its Advisory Report on the Counter-Terrorism Legislation Amendment Bill
(No. 1) 2014 (the Parliamentary Joint Committee on Intelligence and Security Report on the
Bill) on 20 November 2014.
2. The Government will move a number of amendments to the Bill to implement the
recommendations made by the Committee.
3. The Government will also move amendments to the Bill to fully implement two
outstanding recommendations made by the Committee in its Advisory Report on the
Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (the Parliamentary
Joint Committee on Intelligence and Security Report on the Foreign Fighters Bill).
4. In addition, the Government will move four amendments to the Criminal Code Act
1995 (Criminal Code) to correct minor oversights that occurred in the drafting of the Bill and
the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (the Foreign
Fighters Act).
FINANCIAL IMPACT STATEMENT
5. The amendments to the Bill do not have a financial impact.
2
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Amendments to the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014
7. This Bill, as proposed to be amended by the Government in the Senate, is compatible
with the human rights and freedoms recognised or declared in the international instruments
listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
8. The proposed amendments to Schedule 1 of the Counter-Terrorism Legislation
Amendment Bill (No. 1) 2014 (the Bill) amend the Criminal Code to implement
recommendations of the Parliamentary Joint Committee on Intelligence and Security Report
on the Bill and correct minor errors in the cross references in the Bill.
9. The proposed amendments to Schedule 2 of the Bill, which amends the Intelligence
Services Act 2001 (IS Act), will implement seven recommendations of the Parliamentary
Joint Committee on Intelligence and Security, which are supported by the Government.
These amendments will primarily strengthen Ministerial control and Parliamentary and
independent oversight of the proposed reforms, regarding the issuing of emergency
authorisations to IS Act agencies, enabling them to collect intelligence in relation to
Australian persons overseas, and, in the case of the Australian Secret Intelligence Service
(ASIS), to undertake activities that have a direct effect on Australian persons overseas.
10. The proposed amendments to Schedule 2 of the Bill also amend the IS Act to
implement two outstanding recommendations of the Parliamentary Joint Committee on
Intelligence and Security Report on the Foreign Fighters Bill.
Overview of measures
Criminal Code Act 1995
11. The Criminal Code is amended to:
require the Australian Federal Police (AFP) to provide a statement of facts including
any known reason the interim control order should not be made when seeking the
Attorney-General's consent to request an interim control order
correct minor oversights in the cross references in the Bill
return to the existing requirements in the Criminal Code that the AFP must explain
each obligation, prohibition or restriction sought to be imposed by the control order,
and the issuing court must be satisfied in relation to each obligation, prohibition or
restriction before imposing it, and
require that the Attorney-General's consent to an urgent interim control order be
obtained within eight hours, rather than twelve hours as proposed in the Bill.
3
Intelligence Service Act 2001
12. The main amendments to the IS Act implement the Government's response to
recommendations of the Parliamentary Joint Committee on Intelligence and Security Report
on the Bill. These amendments:
provide for a shorter timeframe (eight hours) within which relevant Ministers must be
notified of:
o emergency authorisations issued by agency heads under proposed section 9B
o the issuing of emergency authorisations in reliance on the agreement of the
Director-General of Security (if the Attorney-General is required to provide an
agreement but is not readily available or contactable) under proposed
section 9C, and
o the issuing of emergency authorisations in the absence of the agreement of
either the Attorney-General or the Director-General of Security (where such
agreement is required, but neither is readily available or contactable) under
proposed section 9C
require the Inspector-General of Intelligence and Security (IGIS) to consider and
report to the relevant responsible Minister on the extent of an agency head's
compliance with legislative requirements in relation to the issuing of emergency
authorisations by agency heads under proposed section 9B, and agreements to
emergency authorisations under proposed section 9C
require the IGIS to provide a copy of the conclusions of his or her reports referred to
in the above point to the Parliamentary Joint Committee on Intelligence and Security
within 30 days, and
clarify the meaning of references to Ministers in the IS Act to refer only to the most
senior portfolio Minister (to the exclusion of junior Ministers and Parliamentary
secretaries).
13. In addition, the amendments to the IS Act implementing the Government's response
to the Parliamentary Joint Committee on Intelligence and Security Report on the Foreign
Fighters Bill will provide for the Committee to review the following provisions by
7 March 2018:
the police stop, search and seizure powers in Division 3A of Part IAA of the Crimes
Act 1914 (the Crimes Act)
the control order regime in Division 104 of the Criminal Code
the preventative detention order regime in Division 105 of the Criminal Code, and
the declared areas offence and the related provision authorising the making of
declarations in Division 119 of the Criminal Code.
14. These reviews will be additional to that currently provided for in paragraph 29(1)(bb)
of the IS Act, concerning the Australian Security Intelligence Organisation's (ASIO's)
questioning warrants and questioning and detention warrants in Division 3 of Part III of the
Australian Security Intelligence Organisation Act 1979 (ASIO Act). The reporting date for
the Committee's review of these provisions is also 7 March 2018.
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Human rights implications
15. The amendments are consistent with Australia's human rights obligations and do not
engage any additional human rights to those identified in the Statement of Compatibility in
the Explanatory Memorandum to the Bill, as introduced and read for a second time in the
Senate on 29 October. For convenience of reference, these rights are:
the right to freedom from arbitrary detention and the right to liberty of the person in
Article 9 of the International Covenant on Civil and Political Rights (ICCPR)
the right to freedom of movement in Article 12 of the ICCPR
the right to a fair trial, the right to minimum guarantees in criminal proceedings and
the presumption of innocence in Article 14 of the ICCPR
the right to protection against arbitrary and unlawful interferences with privacy in
Article 17 of the ICCPR
the right to freedom of expression in Article 19 of the ICCPR
the right to freedom of association in Article 22 of the ICCPR, and
the right to work in Article 6 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR).
16. The way in which the proposed Government amendments to the Bill impact upon the
analysis of human rights compatibility provided in the original Explanatory Memorandum is
outlined below.
Criminal Code Act 1995
Control order amendments
17. The amendments to the control order regime in the Bill respond to the
recommendations of the Parliamentary Joint Committee on Intelligence and Security and
ensure that:
the Attorney-General has sufficient information when considering whether to consent
to a request for an interim control order
the AFP provides an explanation for each obligation, prohibition or restriction sought
to be imposed by the control order
the issuing court is satisfied that each obligation, prohibition or restriction sought to
be imposed by the control order in reasonably necessary, and reasonably appropriate
and adapted for one of the objects listed in section 104.1 of the Criminal Code, and
the Attorney-General's consent to an urgent interim control order is obtained within
eight hours, rather than twelve hours as proposed in the Bill.
18. Additional minor amendments address drafting errors relating to cross-references in
the Bill and in the Foreign Fighters Act.
19. These amendments engage several human rights, and reduce the limitations placed on
these rights by the existing Bill. To the extent that such rights are limited, the restrictions are
5
reasonable, necessary and proportionate to achieving the legitimate objective of protecting
the public from a terrorist act and not compromising national security interests.
20. Outlined below are the rights that are likely to be engaged by the control order
provisions in the Bill.
Right to freedom of movement in Article 12 of the ICCPR
21. Article 12 of the ICCPR provides that persons lawfully within the territory of a State
shall have the right to freedom of movement within that State. Among the restrictions that
may be placed on an individual subject to a control order is that they may be restricted from
being in specified areas or places (paragraph 104.5(3)(a)), they may be prohibited from
leaving Australia (paragraph 104.5(3)(b)) and they may be required to remain at specified
premises between specified times each day, or on specified days (paragraph 104.5(3)(c)).
Freedom of movement can be permissibly limited if the limitations are provided by law and
are necessary to achieve a legitimate purpose, such as protecting national security and public
order.
22. The amendments requiring the AFP to explain, and the issuing court to consider, each
obligation, prohibition or restriction sought to be imposed by the control order, rather than the
order as a whole will improve the issuing court's ability to ensure any obligation, prohibition
or restriction that might limit an individual's freedom of movement is reasonably necessary,
and reasonably appropriate and adapted for one of the objects listed in section 104.1 of the
Criminal Code.
Freedom of association in Article 22 of the ICCPR
23. Article 22 of the ICCPR provides that everyone shall have the right to freedom of
association with others. The control order regime may limit this right to the extent that an
express restriction may be placed on the subject of a control order that prevents them from
associating or communicating with specified individuals (paragraph 104.5(3)(e)). This may
also relevantly impact upon the right of respect for family in Articles 17 and 23 of the ICCPR
where a restriction is placed on an individual's right to associate with their own family
members. However, Article 22(2) allows for permissible limitations on the freedom of
association where it is to advance a legitimate objective, one of which is the interests of
national security.
24. The amendments requiring the AFP to explain, and the issuing court to consider, each
obligation, prohibition or restriction sought to be imposed by the control order, rather than the
order as a whole will improve the issuing court's ability to ensure any obligation, prohibition
or restriction that might limit an individual's freedom of association is reasonably necessary,
and reasonably appropriate and adapted for one of the objects listed in section 104.1 of the
Criminal Code.
Right to freedom of expression in Article 19(2) of the ICCPR
25. The right to freedom of expression in Article 19(2) of the ICCPR can be limited by
the control order regime to the extent that the subject of a control order may be prohibited or
restricted from accessing or using specified forms of telecommunications or other
6
technology, including the internet (paragraph 104.5(3)(f)). This is in accordance with a
legitimate purpose in Article 19(3) on the grounds of national security.
26. The amendments requiring the AFP to explain, and the issuing court to consider, each
obligation, prohibition or restriction sought to be imposed by the control order, rather than the
order as a whole will improve the issuing court's ability to ensure any obligation, prohibition
or restriction that might limit an individual's freedom of expression is reasonably necessary,
and reasonably appropriate and adapted for one of the objects listed in section 104.1 of the
Criminal Code.
Freedom from arbitrary detention and arrest in Article 9 of the ICCPR
27. Article 9 of the ICCPR provides that no-one shall be subjected to arbitrary arrest or
detention or deprived of their liberty except on such grounds and in accordance with such
procedure as are established by law. Under section 104.5(3)(c), a control order can impose a
requirement on an individual to remain at specified premises between specified times each
day, or on specified day, which could be considered a form of detention (by requiring an
individual to be in one place for up to twelve hours).
28. The amendments requiring the AFP to explain, and the issuing court to consider, each
obligation, prohibition or restriction sought to be imposed by the control order, rather than the
order as a whole will improve the issuing court's ability to ensure any obligation, prohibition
or restriction that might limit an individual's freedom from arbitrary detention is reasonably
necessary, and reasonably appropriate and adapted for one of the objects listed in
section 104.1 of the Criminal Code.
Right to a fair trial in Article 14 of the ICCPR
29. The four substantial amendments to the Bill strengthen the legislative safeguards that
protect the rights of the subject of a control order. Two amendments strengthen the process
at the stage of seeking the Attorney-General's consent by:
ensuring appropriate information is provided by the AFP to inform the
Attorney-General's consent to a request for an interim control order, and
should it not be practicable to seek the Attorney-General's consent prior to a request
for an urgent interim control order, ensuring consent will be obtained within eight
hours, rather than twelve hours as proposed in the Bill.
30. Further, the amendments will improve the process at the stage of a court issuing a
control order by:
ensuring appropriate information is provided by the AFP to explain that each
obligation, prohibition or restriction sought to be imposed by the control order in
reasonably necessary, and reasonably appropriate and adapted, and
requiring the court to be satisfied on the balance of probabilities that obligation,
prohibition or restriction sought to be imposed by the control order in reasonably
necessary, and reasonably appropriate and adapted for one of the objects listed in
section 104.1 of the Criminal Code.
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Intelligence Services Act 2001
Main amendments to the IS Act
31. As noted in the Statement of Compatibility in the Explanatory Memorandum to the
Bill, the Government is of the view that the measures in Schedule 2 to the Bill concerning
amendments to the IS Act do not engage any human rights, on the basis that the provisions
are directed to clarifying and streamlining - without reducing safeguards - the procedural
arrangements that enable IS Act agencies to undertake activities, with appropriate
authorisation to do so.
32. In the event that this argument is not accepted or preferred by those scrutinising the
Bill, the Statement of Compatibility in the Explanatory Memorandum to the Bill sets out an
analysis of the compatibility of the proposed amendments with the following human rights
that some may consider to be engaged:
right to protection against arbitrary and unlawful interferences with privacy and
reputation - Article 17 of the ICCPR, and
right to an effective remedy - Article 2 of the ICCPR.
33. The Government maintains its position noted at paragraph 31 above in respect of the
Bill (including the proposed Government amendments). In line with the approach to the
Statement of Compatibility noted at paragraph 32 above, the Government provides the
following analysis of the compatibility of the Government amendments with the rights listed
above.
Right to protection against arbitrary and unlawful interferences with privacy (Article 17 of
the ICCPR)
34. As noted at paragraph 55 of the Statement of Compatibility in the Explanatory
Memorandum to the Bill, to the extent that the measures in the Bill extend the ability of
IS Act agencies to obtain a Ministerial authorisation to undertake activities permitted under
the IS Act for the purpose of collecting intelligence on, or undertaking other activities in
relation to, persons or entities outside Australia, they might be said to engage the right to
protection against arbitrary and unlawful interferences with privacy and reputation of persons
who may be the subject of, or otherwise affected by, such activities. Paragraphs 56-57 of the
Statement of Compatibility outline the legitimate objectives to which the measures in the Bill
are directed, and paragraphs 58-62 explain how any limitations on the right are subject to
extensive and appropriate safeguards to ensure that the proposed measures are necessary,
appropriate and adapted to those objectives.
35. The Government's amendments to the Bill will implement additional safeguards, as
recommended by the Parliamentary Joint Committee on Intelligence and Security, which
further strengthen arguments in support of the proportionality on any suggested limitation of
the right to protection against arbitrary and unlawful interferences with privacy under
Article 17. In particular, reducing to eight hours the maximum time period within which a
Minister must be notified of emergency actions undertaken by an agency head under
proposed sections 9B and 9C enhance the degree of Ministerial control, because the Minister
is aware of these actions at a potentially earlier time than he or she might otherwise have
8
been informed under the provisions of the Bill as introduced (as soon as practicable, within
48 hours).
36. The Government's amendments will further provide for increased independent and
Parliamentary oversight of emergency actions undertaken by agency heads, by requiring the
IGIS to consider the compliance of agency heads' actions with proposed sections 9B and 9C,
and provide a report to the relevant responsible Minister, and a copy of the conclusions in
that report to the Parliamentary Joint Committee on Intelligence and Security, within 30 days.
This oversight will ensure that the provisions are monitored in practice, and that any
contraventions are identified and addressed.
Right to an effective remedy (Article 2 of the ICCPR)
37. As noted at paragraphs 63-65 of the Statement of Compatibility in the Explanatory
Memorandum to the Bill, the proposed amendments to the IS Act may be said to engage the
right to an effective remedy under Article 2 of the ICCPR. The argument in support of this
proposition was summarised at paragraph 63 in the following terms: `to the extent that the
measures in the Bill might be said to expand the ability of IS Act agencies to obtain a
Ministerial authorisation to undertake activities permitted under that Act, they might also be
said to expand the circumstances in which the immunity from legal liability applies under
section 14 of the IS Act in respect of staff members or agents of an IS Act agency who carry
out activities in reliance on an authorisation'.
38. Paragraph 66 of the Statement of Compatibility sets out the legitimate objective to
which the main amendments in Schedule 2 to the Bill are directed, and paragraphs 66-68
explain how any limitation on the right to an effective remedy under Article 2 is necessary
and proportionate to that legitimate objective (primarily by way of the extensive safeguards
that apply to Ministerial authorisations under the IS Act).
39. The Government's proposed amendments to the Bill implement further safeguards in
relation to the issuing of emergency authorisations, as recommended by the advisory report
on the Bill. (These safeguards are summarised above in the discussion on Article 17). In
enhancing Ministerial control over emergency authorisation decisions by agency heads, the
proposed amendments will enable the operation of the immunity in section 14 of the IS Act to
be limited in relation to emergency authorisations issued by an agency head, if the relevant
responsible Minister determines to cancel the authorisation upon being notified within eight
hours of its issuing. Similarly, the independent oversight of the IGIS and the Parliamentary
Joint Committee on Intelligence and Security on compliance with the requirements of
proposed sections 9B and 9C will help ensure the early identification of any contraventions of
these sections, which may be material to the operation (or otherwise) of section 14, in respect
of actions done in reliance upon an authorisation issued under section 9B, or an authorisation
under section 9A or 9B where section 9C has been relied upon.
40. Finally, and for completeness, the proposed amendments in item 19 in relation to the
meaning of Ministers referred to in the IS Act do not engage any human rights. Item 19 is a
technical amendment that gives express statutory effect to the intended meaning and practical
interpretation that references to Ministers in the IS Act are taken to be references only to the
most senior Minister in the portfolio. This ensures that powers and obligations are conferred
only upon the Minister who has day-to-day responsibility for the relevant subject matter (to
the exclusion of junior portfolio Ministers), and consequently ensures that decisions are made
9
by a Minister with an appropriate degree of seniority and expertise. The need to remove any
risk that references to Ministers could be interpreted more broadly to include junior Ministers
was endorsed by the Parliamentary Joint Committee on Intelligence and Security in its
Advisory Report on the Bill.
Parliamentary Joint Committee on Intelligence and Security review of the control order
regime, preventative detention order regime, declared areas offence and related
provision for making a declaration in the Criminal Code and the police stop, search and
seizure powers in Division 3A of Part IAA of the Crimes Act 1914
41. This amendment completes the implementation of recommendations 13 and 21 of the
Parliamentary Joint Committee on Intelligence and Security Report on the Foreign Fighters
Bill. The amendment requires the Committee to review, by 7 March 2018, the control order
regime (Division 104), the preventative detention order regime (Division 105) and the
declared areas offence and related provision for making a declaration (sections 119.2 and
119.3) of the Criminal Code and the police stop, search and seizure powers in relation to
terrorist acts and terrorism offences (Division 3A of Part IAA) in the Crimes Act. This
amendment provides an additional opportunity for Parliamentary scrutiny of the operation,
effectiveness and implications of these measures and does not engage any human rights.
10
NOTES ON CLAUSES
Schedule 1 Amendments
Items 1-18--Criminal Code Act 1995
Item 1 - requesting interim control orders
42. This item amends the Bill by inserting new paragraph 104.2(3)(aa) into section 104.2
(inserted as an amendment to item 8 in Schedule 1 of the Bill), implementing
recommendation 3 of the Parliamentary Joint Committee on Intelligence and Security Report
on the Bill.
43. This item provides that, in addition to providing the Attorney-General with a draft of
the interim control order to be requested, information (if any) that the member has about the
person's age, a summary of the grounds on which the order should be made, the senior AFP
member must also provide the Attorney-General with a statement of the facts relating to why
the order should be made, and, if the member is aware of any facts relating to why the order
should not be made--a statement of those facts. This is designed to ensure the
Attorney-General is aware of any reason known to the AFP member as to why the issuing
court might decide not to make the interim control order, ensuring the Attorney-General can
make an informed decision.
Item 2 - terrorist act
44. This item amends the Criminal Code to correct a cross-referencing omission that
occurred during drafting of the Foreign Fighters Act by removing the cross-reference to
`paragraphs (2)(a) and (b)' replacing it with a cross-reference to `subsection (2)' (inserted as
new item 8A in Schedule 1 of the Bill).
45. The Foreign Fighters Act amended section 104.2 of the Criminal Code by adding new
subsection 104.2(6). Subsection 104.2(6) provides that, for the purposes of seeking the
Attorney-General's consent to request an interim control order under either
paragraph 104.2(2)(a) or (b), a reference to a terrorist act includes a terrorist act that does not
occur, a specific terrorist act, and more than one terrorist acts.
46. Item 7 of the Foreign Fighters Act added new paragraphs 104.2(2)(c) and (d) which
provided for new grounds for seeking the Attorney-General's consent to request an interim
control order. However, the Act inadvertently fails to include an amendment listing those
additional paragraphs for the purposes of subsection 104.2(6). To address this omission and
simplify the provision, the cross-reference to the specific paragraphs has been replaced with a
cross-reference to subsection 104.2(2).
Item 3 - requesting interim control orders
47. This item amends the Bill by omitting paragraph 104.3(c) (inserted as an amendment
to item 9 in Schedule 1 of the Bill), and is consequential to the amendment in item 1.
48. This amendment omits paragraph 104.3(c) from section 104.3, which sets out the
documents that must be provided to the issuing court when requesting an interim control
11
order. This omission reflects the fact that, pursuant to item 1, the documents listed in the Bill
in paragraph 104.3(c) are now required to be provided to the Attorney-General when seeking
consent to request an interim control order. Accordingly, they must be provided to the
issuing court pursuant to paragraph 104.3(b), which requires the AFP to provide all the
materials provided to the Attorney-General when seeking consent (incorporating any
changes), and it is not necessary to list them separately as items that must be provided to the
issuing court.
Items 4 and 5 - details of limitations
49. Item 4 amends the Bill by omitting the words `the proposed' and replacing them with
the words `each of the proposed' in subparagraph 104.3(d)(i), while item 5 amends the Bill
by omitting the words `the proposed' and replacing them with the words `any of those' in
paragraph 104.3(d)(i) (inserted as amendments to item 9 in Schedule 1 of the Bill),
implementing recommendation 6 of the Parliamentary Joint Committee on Intelligence and
Security Report on the Bill.
50. These amendments revert to the current requirement in the Criminal Code that require
the senior AFP requesting an interim control order to provide an explanation as to why `each'
proposed obligation, restriction and prohibition requested should be imposed, rather than the
lesser requirement to merely explain why the proposed obligations, restrictions and
prohibitions requested should be imposed as proposed by the Bill.
Item 6 - details of limitations
51. This item amends the Bill by omitting the words `the order' and replacing them with
the words `each of the obligations, prohibitions and restrictions to be imposed on the person
by the order' in paragraph 104.4(1)(d) (inserted as an amendment to item 9 in Schedule 1 of
the Bill), implementing recommendation 5 of the Parliamentary Joint Committee on
Intelligence and Security Report on the Bill.
52. This amendment reverts to the current requirement in the Criminal Code that the
issuing court must be satisfied that `each' proposed obligation, restriction and prohibition
should be imposed, rather than the lesser requirement that the obligations, restrictions and
prohibitions requested should be imposed as proposed by the Bill.
Item 7 - details of limitations
53. This item amends the Bill by omitting proposed subsections 104.4(2) and 104.4(3)
(omits item 13 from Schedule 1 of the Bill), and is consequential to the amendment in item 5.
54. This amendment reverts to the current requirement in the Criminal Code that, when
considering the impact of the order on the person, the issuing court must consider `each' of
the proposed obligations, restrictions and prohibitions, rather than considering those
obligations, restrictions and prohibitions in their entirety. This is designed to ensure the
issuing court individually considers the impact of each proposed obligation, restriction and
prohibition on the person separately when deciding whether to make an order.
12
Items 8, 10, 12 and 13 - obtaining the Attorney-General's consent
55. These items amend the Bill by omitting the number `12' from subsection 104.6(2), the
heading to section 104.10, and subsections 104.10(1) and (2) (inserted as amendments to
items 15, 17, 19 and 20 in Schedule 1 of the Bill), implementing recommendation 4 of the
Parliamentary Joint Committee on Intelligence and Security Report on the Bill.
56. These amendments extend the period before which the senior AFP member must seek
the Attorney-General's consent after obtaining an urgent interim control order from an
issuing court from 4 hours to 8 hours, rather than the 12 hours proposed by the Bill. These
amendments are necessary to avoid an interim control order made by an issuing court in
urgent circumstances lapsing merely because the Attorney-General is unavailable to provide
consent, for example, because the Attorney-General is in transit or otherwise unable to be
contacted. The decision to increase the period to 8 hours rather than 12 hours reflects the fact
that, even if the Attorney-General is in transit between the east and west coasts of Australia,
8 hours should be sufficient to seek consent. Where the Attorney-General is absent for longer
periods, such as during overseas travel, it should be possible to seek the consent of the
Minister acting in the Attorney-General's position.
Items 9 and 11 - technical correction
57. These items amend the Bill by omitting the cross reference to paragraphs '104.3(1)(b)
to (e)' and '104.3(1)(a) to (e)' in paragraphs 104.6(4)(a) and 104.8(2)(a), and replacing them
with cross references to paragraphs '104.3(b) to (e)', `104.3(a) to (e)' (inserted as
amendments to items 16 and 18 in Schedule 1 of the Bill). These amendments correct
drafting errors that occurred during drafting of the Bill.
58. These amendments ensure paragraphs 104.6(4)(a) and 104.8(2)(a) refer to the correct
paragraph numbers in section 104.3, noting that neither the Criminal Code nor the
amendments made by the Bill include a subsection 104.3(1).
Item 14 - requesting interim control orders
59. This item amends the Bill by omitting the cross reference to paragraphs `104.3(1)(c)
and (d)' in subparagraph 104.12A(2)(a)(ii), and replacing it with a cross reference to
paragraphs `104.2(3)(aa) and 104.3(d)' (inserted as an amendments to item 22 in Schedule 1
of the Bill). These amendments both correct drafting errors that occurred during drafting of
the Bill and are consequential to the amendment in item 1.
60. The amendment ensures subparagraph 104.12A(2)(a)(ii) refers to the correct
paragraph numbers in section 104.3, reflecting the insertion of new paragraph 104.2(3)(aa)
and the fact that neither the Criminal Code nor the amendments made by the Bill include a
subsection 104.3(1).
Items 15, 16, 17 and 18 - details of limitations
61. These items amend the Bill by opposing items 23, 24, 26, 27 and 29 of the Bill (items
15, 16 and 18) (inserted as amendments to items 23, 24, 26, 27 and 29 in Schedule 1 of the
Bill), and by omitting the words `the varied control order' in paragraph 104.24(1)(b) and
replacing them with the words `each of the additional obligations, prohibitions and
13
restrictions to be imposed on the person by the order' (inserted as an amendment to item 28
in Schedule 1 of the Bill) (item 17). These amendments are consequential to the amendments
in items 4, 5, 6 and 7, which implement recommendations 5 and 6 of the Parliamentary Joint
Committee on Intelligence and Security Report on the Bill.
62. These amendments ensure consistency within the control order regime by requiring
the AFP to provide an explanation and the issuing court to be satisfied in relation to each
individual obligation, prohibition and restriction, whether seeking the Attorney-General's
consent, making a request to an issuing court, making, varying or confirming a control order.
Schedule 2 Amendments
Items 19-30--Intelligence Services Act 2001 amendments
63. Items 19-29 implement the Government's response to recommendations 9-15 of the
Parliamentary Joint Committee on Intelligence and Security Advisory Report on the Bill.
The Government has accepted all of these recommendations, which will primarily strengthen
Ministerial control, and independent and Parliamentary oversight, of the proposed
amendments to emergency authorisations issued under the IS Act (recommendations 9-14).
In addition, one of the Committee's recommendations (recommendation 15) will address
ambiguity in references to relevant responsible Ministers under the IS Act.
Item 19 - new section 3A - references to Ministers
64. Item 19 inserts amending item 1A in Schedule 2 to the Bill, which will insert a new
section 3A in the IS Act. New section 3A will expressly disapply the general rule of
interpretation in section 19A of the Acts Interpretation Act 1901 (AIA). If section 19A of the
AIA applied to references to Ministers in the IS Act, it would mean that all references to
Ministers are to be interpreted as including all of the Ministers who are appointed to
administer the portfolio with responsibility for the particular matter. (That is, a reference in a
provision to `the Minister' would include the relevant senior portfolio Minister, as well as all
junior portfolio Ministers and Parliamentary secretaries who may be appointed from time-to-
time.)
65. In disapplying section 19A of the AIA to the IS Act, proposed section 3A will
expressly limit references in the IS Act to the relevant responsible Minister to only the most
senior Minister administering the relevant portfolio (namely, the Foreign Minister and the
Defence Minister). In the case of references to individual Ministers in the IS Act (namely,
the Prime Minister and the Attorney-General), proposed section 3A will provide that these
references are to be read as including only the Minister with that title. Proposed section 3A
will also provide guidance on the interpretation of the phrase `the Minister responsible for
administering the Australian Security Intelligence Organisation Act 1979' as it is used in the
IS Act. This is to be interpreted as a reference only to the most senior such Minister (which
is presently, and has to date been, the Attorney-General). The note to proposed section 3A
makes clear that the general rule of interpretation in section 19 of the AIA continues to apply
to the IS Act. (Section 19 of the AIA provides a general rule of statutory interpretation that a
reference to a Minister includes a person appointed as an acting Minister.)
66. Item 19 implements the Government's response to recommendation 15 of the
Parliamentary Joint Committee on Intelligence and Security Advisory Report on the Bill.
14
The Government accepted the Committee's recommendation that references to the relevant
responsible Ministers for matters in the IS Act should be expressly limited to the relevant
senior portfolio Ministers, to the exclusion of junior portfolio Ministers and Parliamentary
secretaries. That is, the Committee considered that the relevant responsible Ministers should
be as follows: the Minister for Foreign Affairs in relation to ASIS; the Minister for Defence
in relation to the Australian Geospatial Intelligence Organisation and the Australian Signals
Directorate; and the Attorney-General in relation to ASIO.
67. The Government agrees with the PJCIS that it is appropriate that decision-making and
other administrative powers, functions and duties conferred or imposed by the IS Act are
exercisable, or are required to be performed, only by the senior portfolio Minister who has
day-to-day responsibility for the relevant matter, to the exclusion of junior portfolio Ministers
or Parliamentary secretaries who may not, and may therefore have limited visibility or
understanding of the relevant matters. This is particularly important in relation to the issuing
of Ministerial authorisations, including emergency authorisations, enabling agencies to
collect intelligence on Australian persons overseas (and in the case of ASIS, undertaking
activities which have a direct effect on Australian persons), given the significance of these
decisions.
68. The proposed amendments in item 19 will remove the risk that a court, if ever called
upon to interpret the provisions of the IS Act referring to responsible Ministers, may favour a
broader construction that includes all junior portfolio Ministers. This risk is open because
there is currently ambiguity as to whether the general rule of interpretation in section 19A of
the AIA applies to references to Ministers in the IS Act. As these provisions of the IS Act
have always been intended to include only the relevant senior portfolio Minister, item 19 will
ensure that the intended meaning is given express effect, and will not result in any substantive
change of practice.
Items 20 to 25 - emergency authorisations by agency heads (proposed section 9B)
69. Items 20-25 will implement the Government's responses to recommendations 9-11 of
the Parliamentary Joint Committee on Intelligence and Security Advisory Report on the Bill.
These amendments will strengthen Ministerial control and oversight by the IGIS and the
Parliament of emergency authorisations made by agency heads under proposed section 9B, in
the event that none of the relevant Ministers are readily available or contactable and an urgent
intelligence need arises.
Items 20 to 22 - Notifying the responsible Minister
70. Item 20 inserts a new subsection 9B(4A) in amending item 18 of Schedule 2 to the
Bill. New subsection 9B(4A) requires an agency head who has issued an emergency
authorisation under section 9B to notify the relevant responsible Minister in relation to the
agency within eight hours of giving the authorisation. This is in addition to the requirements
in subsection 9B(6) that the relevant responsible Minister must be provided with the
documents in proposed subsection 9B(5) as soon as practicable within 48 hours of the giving
of the authorisation (and that the IGIS must be provided with that documentation as soon as
practicable within three days of the authorisation).
71. Item 20 implements the Government's response to recommendation 9 of the
Parliamentary Joint Committee on Intelligence and Security Advisory Report on the Bill.
15
The Parliamentary Joint Committee on Intelligence and Security supported a fixed, eight-
hour maximum period in which the relevant responsible Minister must be notified (while
retaining the existing period for the provision of documentation to that Minister and the
IGIS). The Government has accepted this recommendation, and accepts the Committee's
view that this shorter timeframe would give stronger effect to the paramount principle of
Ministerial responsibility and accountability for authorisations issued under the IS Act.
72. In retaining the existing maximum timeframes for the provision of documents to the
relevant responsible Minister and the IGIS (namely, as soon as practicable within 48 hours
and three days respectively), the Government further supports the observations of the PJCIS
that it may not always be immediately practicable for such documentation to be prepared or
provided within a fixed, eight-hour period in all cases. Separating the time limits for
notification and the provision of documentation enables appropriate operational flexibility.
This will allow the agency head to send, or cause the sending of, notification of a section 9B
authorisation to the relevant responsible Minister at the earliest possible stage (for example,
depending on the circumstances, by sending that Minister a text message or an email, or
leaving a voicemail message, advising that an authorisation has been given under section 9B)
with the accompanying documentation to follow as soon as practicable within 48 hours.
73. Items 21 and 22 make technical amendments to proposed subsections 9B(6) and (7) in
amending item 18 of Schedule 2 to the Bill, which give effect to the main amendment in
item 20. In particular, items 21 and 22 give effect to the different timeframes for notifying
the relevant responsible Minister (within eight hours of giving the authorisation) and for
providing documents to the relevant responsible Minister (as soon as practicable within 48
hours of giving the authorisation) and the IGIS (as soon as practicable within three days of
giving the authorisation). Item 22 confirms that the Minister's obligation under proposed
subsection 9B(7)to consider whether to cancel an emergency authorisation given under
proposed section 9B arises as soon as practicable after being given the relevant documents
under proposed subsection 9B(6).
Items 23 to 25 - Oversight by the IGIS and Parliamentary Joint Committee on Intelligence
and Security
74. Item 23 inserts proposed subsection 9B(8A) in amending item 18 of Schedule 2 to the
Bill. Proposed subsection 9B(8A) provides that the IGIS must, within 30 days of being given
the relevant documentation accompanying an agency head's decision to give a s 9B
emergency authorisation, consider whether the agency head complied with the requirements
of section 9B. The IGIS must also provide the relevant responsible Minister for the agency
with a report on the IGIS's views of the extent of the agency head's compliance, and provide
the Parliamentary Joint Committee on Intelligence and Security with a copy of the
conclusions in that report.
75. Item 23 implements the Government's response to recommendations 10 and 11 of the
Parliamentary Joint Committee on Intelligence and Security's Advisory Report on the Bill.
The Government accepts these recommendations, and agrees that it is important the IGIS
conducts oversight of emergency authorisations issued by agency heads. In recognition of
the exceptional nature of such authorisations, and the intention they should be used rarely, the
Government further agrees it would be appropriate for the Committee to be informed of the
issuing of such authorisations and the IGIS's views on the extent of compliance with the
requirements of proposed section 9B.
16
76. The Government notes that it is exceptional to confer an express oversight
requirement on the IGIS, outside the general provisions of the Inspector-General of
Intelligence and Security Act 1986 (IGIS Act). An important part of the statutory
independence of the IGIS is the discretion of the IGIS to determine his or her oversight
priorities within the statutory mandate of the IGIS Act. However, following consultation
with the IGIS, the Government is satisfied that the measures in item 23 would not unduly
compromise the independence of the IGIS, given the extraordinary and rare nature of the
emergency authorisation provisions in proposed section 9B. In addition, the requirement in
proposed subsection 9B(8A) that the IGIS reports to the responsible Minister, and provides a
copy of the conclusions in that report to the Parliamentary Joint Committee on Intelligence
and Security, promotes consistency with the statutory role of the IGIS to report to Ministers
and to the Parliament through Ministers. This requirement further promotes consistency with
the statutory remit of the Committee, which does not include oversight of operational matters.
It is intended that the IGIS's conclusions, as provided to the Parliamentary Joint Committee
on Intelligence and Security, will not include operational information.
77. Items 24 and 25 make consequential amendments to proposed subsection 9B(9) in
amending item 18 of Schedule 2 to the Bill, so that proposed subsection 9B(9) provides that
reports prepared and provided under proposed subsection 9B(8A) are not legislative
instruments (along with authorisations and cancellations made under proposed section 9B).
This is declaratory of the non-legislative nature of these reports.
Items 26 to 29 - agreements to emergency authorisations (proposed section 9C)
78. Items 26-29 will implement the Government's responses to recommendations 12-14
of the Parliamentary Joint Committee on Intelligence and Security Advisory Report on the
Bill. Items 26-28 make technical and consequential amendments to item 29. Item 29
contains the core provisions implementing the Government's responses to Parliamentary
Joint Committee on Intelligence and Security recommendations 12-14.
Item 29 - time limit for Ministerial notification; and oversight by the IGIS and Parliamentary
Joint Committee on Intelligence and Security
79. Item 29 omits subsection 9C(5) from amending item 18 of Schedule 2 to the Bill and
substitutes new subsections 9C(5) and 9C(6).
80. New subsection 9C(5) implements the Government's response to recommendation 12
of the Parliamentary Joint Committee on Intelligence and Security Advisory Report on the
Bill. The Committee recommended (consistent with its recommendation 9 in relation to
emergency authorisations), a maximum timeframe of eight hours should apply to an IS Act
agency head's duty to notify the ASIO Minister of the issuing of an emergency authorisation
with the agreement of the Director-General of Security under section 9C (because the ASIO
Minister was not readily available and contactable) or without any agreement where
permitted under section 9C (because neither the ASIO Minister nor the Director-General of
Security were readily available or contactable). Consistent with the reasoning set out under
item 20 above (which implements the Government's response to the Committee's
recommendation 9 in relation to emergency agency head authorisations), the Government
accepts the Committee's view that a maximum timeframe of eight hours would give stronger
effect to the paramount principle of Ministerial responsibility and accountability for
emergency authorisations and agreements given under the IS Act.
17
81. In addition, consistent with the remarks under item 20 above, separating the time
limits for the notification of the ASIO Minister (within eight hours) and the IGIS (as soon as
practicable within three days) enables an appropriate degree of operational flexibility. This
will allow the agency head to send, or cause the sending of, notification to the relevant
responsible Minister at the earliest possible stage (for example, depending on the
circumstances, by sending a text message or an email, or leaving a voicemail message,
advising that authorisation has been issued with the Director-General's agreement, or with no
agreement) with further notification to be provided to the IGIS as soon as practicable within
three days, and documentation to be provided to the relevant responsible Minister under
section 9B as soon as practicable within 48 hours (and to the IGIS as soon as practicable
within three days).
82. Item 29 further inserts new subsection 9C(6) in amending item 18 of Schedule 2 to
the Bill. This implements the Government's responses to recommendations 13 and 14 of the
Parliamentary Joint Committee on Intelligence and Security Advisory Report on the Bill,
which contain similar arrangements for IGIS and Parliamentary Joint Committee on
Intelligence and Security oversight of emergency section 9B authorisations (per the
Committee's recommendations 10 and 11, given effect in item 23).
83. In particular, proposed subsection 9C(6) provides that the IGIS must, within 30 days
of being given notification under proposed paragraph 9C(5)(b), consider whether the agency
head complied with the requirements of proposed section 9C. The IGIS must further provide
the responsible Minister with a report on his or her views on the extent of the agency head's
compliance, and provide a copy of the conclusions in that report to the Parliamentary Joint
Committee on Intelligence and Security.
84. The Government accepts the recommendation and reasoning of the Committee that it
is important the IGIS conducts oversight of agreements given under proposed section 9C (or
instances in which an emergency authorisation is given without agreement in purported
compliance with proposed section 9C). In recognition of the exceptional nature of the
measures in proposed section 9C, and the intention that the provision should only be used
rarely, the Government further agrees it would be appropriate for the Committee to be
informed of those instances in which it is used (complementary to its proposed role in
relation to emergency authorisations issued under proposed section 9B).
85. Consistent with the comments under item 23, the Government notes it is exceptional
to confer a new oversight requirement on the IGIS outside the general provisions of the
IGIS Act, having regard to the independence of the IGIS (which necessarily requires
discretion to independently determine oversight priorities). The Government does not intend
to create a precedent in this regard, but rather is of the view that proposed items 23 and 29 do
not unduly compromise the independence of the IGIS because proposed sections 9B and 9C
are intended to be used very rarely.
86. Similarly, proposed subsection 9C(6) requires the IGIS to provide a report to the
responsible Minister and copy of the conclusions in that report to the Parliamentary Joint
Committee on Intelligence and Security in recognition of the IGIS's role to report to
Ministers, and to the Parliament through Ministers. Proposed subsection 9C(6) further
maintains consistency with the statutory remit of the Committee, which excludes examination
of operational matters. It is intended that the conclusions in the reports of the IGIS would not
include operational information.
18
Items 26 to 28 - technical and consequential amendments to item 29
87. Items 26-28 ensure that consistent terminology is used in subsection 9C(4) with that
in proposed new subsections 9C(5) and 9C(6) (per item 29). The terms `notify' and
`notification' are preferred to describe the obligation on the agency head to inform the ASIO
Minister and IGIS of the issuing of an emergency authorisation with the agreement of the
Director-General of Security (or without such agreement if the Director-General is not readily
available or contactable)
88. The term `notify' more clearly conveys the expectation that the agency head must
provide (within eight hours to the Minister, and as soon as practicable within three days to the
IGIS) basic factual information as to the issuing of an authorisation and the provision (or
otherwise) of the necessary agreement, and that this does not need to be a detailed advice or a
report (noting that provision is already made for the provision of documentation under
proposed section 9B).
Item 30 - Parliamentary Joint Committee on Intelligence and Security reviews
89. This item amends the IS Act to provide for the Parliamentary Joint Committee on
Intelligence and Security to review certain provisions in Commonwealth legislation by
7 March 2018 (inserted as new item 32 in Schedule 2 to the Bill). This amendment
completes the implementation of Recommendations 13 and 21 of the Parliamentary Joint
Committee on Intelligence and Security Advisory Report on the Foreign Fighters Bill.
90. Amending item 32 removes existing paragraph 29(1)(bb) from the IS Act and replaces
it with new paragraph 29(1)(bb). While paragraph 29(1)(bb) provides for the Committee to
review the questioning warrant, and questioning and detention warrant scheme in Division 3
of Part III of the ASIO Act by 7 March 2018, it does not require the Committee to review
Division 3A of Part IAA of the Crimes Act, the control order regime in Division 104 of the
Criminal Code or the preventative detention order regime in Division 105 of the Criminal
Code as required by Recommendation 13, or the declared areas offence and the related
provision authorising the making of declarations in Division 119 as required by
Recommendation 21.
91. This amendment rectifies that omission and fully implements Recommendations 13
and 21 of the Parliamentary Joint Committee on Intelligence and Security Advisory Report
on the Foreign Fighters Bill by requiring inquiry into each of the listed measures, including
any other provision as far as it relates to the relevant provisions, by 7 March 2018.
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