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2019- 2020- 2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FOREIGN INTELLIGENCE LEGISLATION AMENDMENT BILL 2021
EXPLANATORY MEMORANDUM
Circulated by authority of the
Minister for Home Affairs, the Honourable Karen Andrews MP
FOREIGN INTELLIGENCE LEGISLATION AMENDMENT BILL 2021
GENERAL OUTLINE
1. The Foreign Intelligence Legislation Amendment Bill 2021 (the Bill) amends the
Telecommunications (Interception and Access) Act 1979 (TIA Act) and the Australian
Security Intelligence Organisation Act 1979 (ASIO Act) to address critical gaps in
Australia's foreign intelligence warrant framework. Foreign intelligence means
intelligence about the capabilities, intentions or activities of people or organisations
outside Australia. Without the proposed changes, gaps in foreign intelligence collection
will continue to grow and Australia will not have visibility of possible threats to Australia
and its security. The Bill will improve intelligence agencies' ability to collect intelligence
about foreign threats to Australia, and keep Australia safe and prosperous.
2. Schedule 1 of the Bill amends the foreign communications warrant in section 11C of the
TIA Act to overcome the difficulty intelligence agencies face in distinguishing between
foreign and domestic communications in the modern technological environment. Under
the reforms, the Director-General of Security will be able to apply for a warrant
authorising the interception of a communication for the purpose of obtaining foreign
intelligence from foreign communications. Currently, the interception of any domestic
communications is strictly prohibited.
3. Schedule 1 is designed to restore the foreign communications warrant to its original scope
and function. The removal of the strict prohibition is accompanied by robust safeguards to
protect domestic communications in the same way the original prohibition intended.
4. Schedule 2 of the Bill enables the Attorney- General to issue foreign intelligence warrants
to collect foreign intelligence on Australians in Australia who are acting for, or on behalf
of, a foreign power. Currently, requesting a warrant for the purpose of collecting
information concerning an Australian citizen or permanent resident is prohibited in all
circumstances.
History of the foreign intelligence framework
5. ASIO's primary functions relate to obtaining, correlating and evaluating intelligence
relevant to security, and to providing advice on matters relevant to security. In addition,
ASIO is also responsible for obtaining foreign intelligence warrants that authorise the
collection of foreign intelligence inside Australia, under sections 11A, 11B and 11C of the
TIA Act and section 27A of the ASIO Act.
6. The ability for ASIO to obtain foreign intelligence warrants has a long history. The foreign
intelligence warrant framework was introduced by the Australian Security Intelligence
Organization Amendment Act 1986 and the Intelligence and Security (Consequential
Amendments) Act 1986, in response to a recommendation of the Royal Commission on
Australia's Security and Intelligence Agencies (the Second Hope Royal Commission). In
his report, Justice Hope provided that:
2
I am satisfied that Australia has a need to collect foreign intelligence which relates to
its national security and its other national interests. Considerations of the national
interest, national independence, costs, and practical difficulties have led me to
conclude that it would be highly advantageous for Australia to be able to collect
foreign intelligence within its own territory where this is possible.
7. Justice Hope considered that ASIO would be the appropriate agency to be granted foreign
intelligence warrants to exercise 'special statutory powers of collection' inside Australia.
8. As originally introduced, the foreign intelligence warrant framework contained two
warrants: a warrant under section 11A of the TIA Act authorising the interception of a
single service (such as a single phone number), and a warrant under section 27A of the
ASIO Act, authorising the use of ASIO's pre- existing special powers.
9. In response to the technological change of the 1990s (including the uptake of mobile
phones), the Telecommunications (Interception) Legislation Amendment Act 2000 updated
the telecommunications interception framework, including by introducing the section 11C
warrant. The Explanatory Memorandum explained that:
Proposed section 11C creates a new class of "foreign communication" warrants for
circumstances where telecommunications technologies operate so as to preclude the
interception of particular communications by reference to a specific service or a
named individual. These warrants are confined to foreign communications only and
special provision is made to limit the scope of their authority since it is not possible to
identify a particular service or individual.
10. Since its introduction, the foreign communications warrant has played a critical role in
enabling intelligence agencies to identify threats to Australia's national security. This
includes malicious cyber activity targeting Australian interests, terrorist communications,
and indications of foreign intelligence services threatening Australia's interests.
11. However, further technological change since 2000 has diminished the effectiveness of the
foreign communications warrant. Schedule 1 will restore the warrant to its original
effectiveness.
Schedule 1: Section 11C foreign communications warrant amendments (section 11C of
the TIA Act)
12. Currently, foreign communications warrants, issued by the Attorney- General under
section 11C of the TIA Act, authorise the interception of foreign communications for the
purpose of obtaining foreign intelligence about a matter specified in the warrant.
13. The challenge with the existing foreign communications warrant is that the interception of
domestic communications (communications that both start and end within Australia) is
prohibited, even where that interception is inadvertent or unavoidable.
3
14. This restriction made sense when the warrant was introduced into the TIA Act in 2000.
The primary forms of communication technologies were telephone and fax, which used
reliable geographic identifiers such as country code, city code and exchange code. These
identifiers enabled intelligence agencies to determine the location of the sender and
receiver of communications, even prior to the interception occurring.
15. Since then, advances in technology--particularly widespread use of internet- based
communications and mobile applications--mean that it can be impossible to know, at the
point of interception, if a communication is foreign or domestic.
16. Currently, to avoid breaching the TIA Act, intelligence agencies do not intercept foreign
communications where there is even the smallest risk of incidentally intercepting domestic
communications. This considerable constraint on the collection of foreign intelligence is
creating the real risk that intelligence agencies are missing critical foreign intelligence.
17. The reforms will allow intelligence agencies to intercept communications, including where
the geographic location of the sender and recipient of the communications cannot be
determined prior to their interception. Robust safeguards accompany these reforms:
The proposed warrants can only be issued for the purpose of obtaining foreign
intelligence from foreign communications (paragraph 11C(1)(a)).
The warrant request must specify how the risk of intercepting domestic
communications will be minimised (paragraph 11C(3)(a)).
The Attorney- General must issue a mandatory written procedure (subsection
11C(6)) to:
o screen for domestic communications that may have been intercepted
o destroy all records of any domestic communication so identified (unless the
communication relates, or appears to relate, to activities that present a
significant risk to a person's life), and
o notify the Inspector- General of Intelligence and Security (IGIS) of any
identified domestic communication that relates, or appears to relate, to
activities that present a significant risk to a person's life.
The mandatory procedure issued by the Attorney- General may also deal with any
other matters relating to communications intercepted under a warrant under section
11C (subsection 11C(7)).
Before issuing or varying the mandatory procedure, the Attorney- General must
consult the Minister for Defence, Minister for Foreign Affairs, IGIS and the
Director- General of Security (subsection 11C(9)).
The Attorney- General must review the mandatory procedure as soon as practicable
within one year of it being issued, and then every 3 years.
4
18. The term 'screening' is intended to capture a continuous process for identifying domestic
communications.
19. The existing safeguards for foreign communications warrants will also continue to apply:
Requesting these warrants for the purpose of collecting information concerning an
Australian is specifically prohibited unless the Director- General reasonably suspects
the Australian is acting for, or on behalf of, a foreign power (subsection 11D(5), as
amended by Schedule 2).
The Attorney- General must be satisfied, on the advice of the Minister for Defence
or the Minister for Foreign Affairs, that the collection of foreign intelligence is in the
interests of Australia's national security, Australia's foreign relations, or Australia's
national economic wellbeing (subparagraph 11C(1)(b)(i)).
The Attorney- General must be satisfied that it is necessary to intercept foreign
communications in order to collect foreign intelligence, and that alternative foreign
intelligence warrants would be ineffective (subparagraphs 11C(1)(b)(ii) and (iii)).
20. Only in the exceptional circumstance where there is a significant risk to life will
intelligence agencies be able to rely on inadvertently intercepted domestic
communications. This exception will ensure Australia's intelligence agencies can respond
to terrorist, hostage and other significant threats to lives.
21. The IGIS will also continue to have oversight of agencies' activities under these warrants,
and will oversee the compliance with the mandatory procedures issued by the
Attorney- General. The IGIS has extensive powers, akin to those of a standing Royal
Commission and is an essential safeguard.
Schedule 2: Australians or permanent residents acting for, or on behalf of, a foreign
power (subsection 11D(5) of the TIA Act and 27A(9) of the ASIO Act)
22. Currently, subsections 11D(5) of the TIA Act and 27A(9) of the ASIO Act prohibit the
Director- General of Security from requesting the issue of a foreign intelligence warrant
for the purpose of collecting information concerning an Australian citizen or permanent
resident.
23. The Comprehensive Review of the Legal Framework of the National Intelligence
Community (Comprehensive Review), conducted by Dennis Richardson AC,
recommended reforms to allow foreign intelligence to be collected on Australian citizens
and permanent residents in Australia, who are acting for or on behalf of foreign powers.
24. These amendments will close a legislative gap where foreign intelligence can be collected
offshore on an Australian working for a foreign power, but that same intelligence cannot
be collected inside Australia on that Australian under a warrant. As the Comprehensive
Review observed:
5
Preventing some forms of collection when the Australian target is onshore, but
enabling it when the target is offshore, seems a disproportionate restriction that costs
Australia a significant intelligence dividend. It can also cost the Government the
opportunity to collect valuable foreign intelligence that has a direct bearing on
Australia's national security, foreign relations and national economic well- being
more securely and cost effectively than offshore collection.
... An Australian serving the interests of a foreign government ... remains an agent of a
foreign power whether they are onshore or offshore.
25. There are circumstances where Australian citizens and permanent residents are of
legitimate foreign intelligence interest. For example, where an Australian citizen is acting
as an agent of a foreign state.
26. Robust safeguards will accompany these reforms:
The law will continue to prevent the request of a foreign intelligence warrant on
Australian persons who are not acting for, or on behalf of, a foreign power
(subsection 27A(9) in the ASIO Act and subsection 11D(5) of the TIA Act).
The Director- General of Security must include, in the request of a warrant, details
about the grounds on which he or she suspects that the person is acting for, or on
behalf of, a foreign power (paragraph 27A(9A)(a) of the ASIO Act and
paragraphs 11A(3)(a), 11B(4)(a) and 11C(3A)(a) of the TIA Act).
The Attorney- General must not issue a warrant unless he or she is satisfied that the
person is, or is reasonably suspected by the Director- General of Security of, acting
for, or on behalf of, a foreign power (paragraph 27A(9A)(b) of the ASIO Act and
paragraphs 11A(3)(b), 11B(4)(b) and 11C(3A)(b) of the TIA Act).
The Attorney- General must be satisfied, on advice from either the Minister for
Defence or the Minister for Foreign Affairs that the collection is in the interests of
Australia's national security, foreign relations or economic well- being (existing
paragraph 27A(1)(b) in the ASIO Act and existing paragraph 11A(1)(b), and
subparagraphs 11B(1)(b)(i) and 11C(1)(b)(i) of the TIA Act).
27. The IGIS will also continue to have oversight of agencies' activities under these warrants.
The IGIS has extensive powers, akin to those of a standing Royal Commission and is an
essential safeguard.
FINANCIAL IMPACT
28. Nil.
6
ABBREVIATIONS used in the Explanatory Memorandum
ASIO Australian Security Intelligence Organisation
ASIO Act Australian Security Intelligence Organisation Act 1979
Bill Foreign Intelligence Legislation Amendment Bill
Comprehensive Comprehensive Review of the Legal Framework of the
Review National Intelligence Community
CRC Convention on the Rights of the Child
IGIS Inspector- General of Intelligence and Security
ICCPR International Covenant on Civil and Political Rights
TIA Act Telecommunications (Interception and Access) Act 1979
7
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Foreign Intelligence Legislation Amendment Bill 2021
1. This Bill 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
2. The Foreign Intelligence Legislation Amendment Bill 2021 (the Bill) amends the
Telecommunications (Interception and Access) Act 1979 (TIA Act) and the Australian
Security Intelligence Organisation Act 1979 (ASIO Act) to address critical gaps in
Australia's foreign intelligence warrant framework. Without the proposed changes, gaps in
foreign intelligence collection will continue to grow and Australia will not have visibility
of possible threats to Australia and its security. The Bill will improve intelligence
agencies' ability to collect intelligence about foreign threats to Australia, and keep
Australia safe and prosperous.
3. Schedule 1 of the Bill amends the foreign communications warrant in section 11C of the
TIA Act to overcome the difficulty intelligence agencies face in distinguishing between
foreign and domestic communications in the modern technological environment. Under
the reforms, the Director-General of Security will be able to apply for a warrant
authorising the interception of a communication for the purpose of obtaining foreign
intelligence from foreign communications. Currently, the interception of any domestic
communications is strictly prohibited.
4. Schedule 1 is designed to restore the foreign communications warrant to its original scope
and function. The removal of the strict prohibition is accompanied by robust safeguards to
protect domestic communications in the same way the original prohibition intended.
5. Schedule 2 of the Bill enables the Attorney- General to issue foreign intelligence warrants
to collect foreign intelligence on Australians in Australia who are acting for, or on behalf
of, a foreign power. Currently, requesting a warrant for the purpose of collecting
information concerning an Australian citizen or permanent resident is prohibited in all
circumstances.
Schedule 1: Section 11C foreign communications warrant amendments (section 11C
of the TIA Act)
6. Currently, foreign communications warrants, issued by the Attorney- General under
section 11C of the TIA Act, authorise the interception of foreign communications for the
8
purpose of obtaining foreign intelligence. Foreign intelligence means intelligence about
the capabilities, intentions or activities of people or organisations outside Australia.
7. These warrants play a critical role in enabling intelligence agencies to identify threats to
Australia's national security. This includes malicious cyber activity targeting Australian
interests, terrorist communications, and foreign intelligence services threatening
Australia's interests.
8. The challenge with the foreign communications warrant is that the interception of
domestic communications (communications that both start and end within Australia) is
prohibited, even where that interception is inadvertent or unavoidable.
9. This restriction made sense when the warrant was introduced into the TIA Act in 2000.
The primary forms of communication technologies were telephone and fax, which used
reliable geographic identifiers such as country code, city code and exchange code. These
identifiers enabled intelligence agencies to determine the location of the sender and
recipient of communications, even prior to interception.
10. Since then, advances in technology--particularly widespread use of internet- based
communications and mobile applications--mean that it can be impossible to know, at the
point of interception, if a communication is foreign or domestic.
11. To avoid breaching the TIA Act, intelligence agencies do not intercept foreign
communications where there is even the smallest risk of incidentally intercepting domestic
communications. This considerable constraint on the collection of foreign intelligence
creates the real risk that intelligence agencies are missing critical foreign intelligence.
12. The reforms will allow intelligence agencies to intercept communications, including where
the geographic location of the sender and recipient cannot be determined prior to
interception. Robust safeguards accompany these reforms:
The proposed warrants can only be issued for the purpose of obtaining foreign
intelligence from foreign communications (paragraph 11C(1)(a)).
A warrant request must specify how the risk of intercepting domestic
communications will be minimised (paragraph 11C(3)(a)).
The Attorney- General must issue mandatory procedures (subsection 11C(6)) to:
o screen for domestic communications that may have been incidentally
intercepted
o destroy all records of any domestic communication so identified (unless the
communication relates, or appears to relate, to activities that present a
significant risk to a person's life), and
o notify the Inspector- General of Intelligence and Security (IGIS) of any
identified domestic communication that relates, or appears to relate, to
activities that present a significant risk to a person's life.
9
The mandatory procedure issued by the Attorney- General may also deal with any
other matters relating to communications intercepted under a warrant under section
11C (subsection 11C(7)).
Before issuing or varying the mandatory procedure, the Attorney- General must
consult the Minister for Defence, Minister for Foreign Affairs, IGIS and the
Director- General of Security (subsection 11C(9)).
The Attorney- General must review the mandatory procedure as soon as practicable
within one year of it being issued, and then every 3 years (subsection 11C(10)).
13. The term 'screening' is intended to capture a continuous process for identifying domestic
communications.
14. The existing safeguards for foreign communications warrants will also continue to apply:
Obtaining these warrants for the purpose of collecting information concerning an
Australian is specifically prohibited unless the Australian is acting for, or on behalf
of, a foreign power (subsection 11D(5), as amended by Schedule 2).
The Attorney- General must be satisfied, on the advice of the Minister for Defence
or the Minister for Foreign Affairs, that the collection of foreign intelligence is in the
interests of Australia's national security, Australia's foreign relations, or Australia's
national economic wellbeing (subparagraph 11C(1)(b)(i)).
The Attorney- General must be satisfied that it is necessary to intercept foreign
communications in order to collect foreign intelligence, and that alternative foreign
intelligence warrants would be ineffective (subparagraphs 11C(1)(b)(ii) and (iii)).
15. Only in the exceptional circumstance where there is a significant risk to life will
intelligence agencies be able to share inadvertently intercepted domestic communications.
This exception will ensure Australia's intelligence agencies can respond to terrorist,
hostage and other significant threats to Australian lives.
16. The IGIS will also continue to have oversight of agencies' activities under these warrants,
and will oversee the compliance with the mandatory procedures issued by the
Attorney- General. The IGIS has extensive powers, akin to those of a standing Royal
Commission and is an essential safeguard.
Schedule 2: Australians or permanent residents acting for, or on behalf of, a foreign
power (subsection 11D(5) of the TIA Act and 27A(9) of the ASIO Act)
17. Currently, subsections 11D(5) of the TIA Act and 27A(9) of the ASIO Act prohibit the
Director- General of Security from requesting the issue of a foreign intelligence warrant
for the purpose of collecting information concerning an Australian citizen or permanent
resident in Australia.
10
18. The Comprehensive Review of the Legal Framework of the National Intelligence
Community (Comprehensive Review), conducted by Dennis Richardson AC,
recommended reforms to allow foreign intelligence to be collected on Australian citizens
and permanent residents, who are acting for or on behalf of foreign powers. The term
foreign power is defined in the ASIO Act to mean a foreign government, an entity that is
directed or controlled by a foreign government or governments or a foreign political
organisation.
19. These amendments will close a legislative gap where foreign intelligence can be collected
offshore on an Australian working for a foreign power, but that same intelligence cannot
be collected onshore on that Australian under a warrant. As the Comprehensive Review
observed:
Preventing some forms of collection when the Australian target is onshore, but
enabling it when the target is offshore, seems a disproportionate restriction that costs
Australia a significant intelligence dividend. It can also cost the Government the
opportunity to collect valuable foreign intelligence that has a direct bearing on
Australia's national security, foreign relations and national economic well- being
more securely and cost effectively than offshore collection.
... An Australian serving the interests of a foreign government ... remains an agent of a
foreign power whether they are onshore or offshore.
20. There are circumstances where Australian citizens and permanent residents are of
legitimate foreign intelligence interest. For example, where an Australian citizen is acting
as an agent of a foreign state.
21. Robust safeguards will accompany these reforms:
The law will continue to prevent the request of a foreign intelligence warrant on
Australian persons who are not acting for, or on behalf of, a foreign power
(subsection 27A(9) in the ASIO Act and subsection 11D(5) of the TIA Act).
The Director- General of Security must include, in the request of a warrant, details
about the grounds on which he or she suspects that the person is acting for, or on
behalf of, a foreign power (paragraph 27A(9A)(a) of the ASIO Act and
paragraphs 11A(3)(a), 11B(4)(a) and 11C(3A)(a) of the TIA Act).
The Attorney- General must not issue a warrant unless he or she is satisfied that the
person is, or is reasonably suspected by the Director- General of Security of, acting
for, or on behalf of, a foreign power (paragraph 27A(9A)(b) of the ASIO Act and
paragraphs 11A(3)(b), 11B(4)(b) and 11C(3A)(b) of the TIA Act).
The Attorney- General must be satisfied, on advice from either the Minister for
Defence or the Minister for Foreign Affairs that the collection is in the interests of
Australia's national security, foreign relations or economic well- being (existing
11
paragraph 27A(1)(b) in the ASIO Act and existing paragraph 11A(1)(b), and
subparagraphs 11B(1)(b)(i) and 11C(1)(b)(i) of the TIA Act).
22. The IGIS will also continue to have oversight of agencies' activities under these warrants.
The IGIS has extensive powers, akin to those of a standing Royal Commission and is an
essential safeguard.
Human rights implications
23. The Bill engages the following human rights under the International Covenant on Civil
and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC):
Protection against arbitrary or unlawful interference with privacy in Article 17
(ICCPR) and Article 16 (CRC).
Right to freedom of expression in Article 19 (ICCPR) and Article 13 (CRC).
Right to life in Article 6 (ICCPR) and Article 6 (CRC).
The right of the child to have their best interests as a primary consideration in
Article 3 (CRC).
Protection against arbitrary or unlawful interference with privacy in Article 17 of the
ICCPR and Article 16 of the CRC
24. The Bill engages the protection against arbitrary or unlawful interference with privacy
contained in Article 17 of the ICCPR and Article 16 of the CRC. Protection against
arbitrary or unlawful interference with privacy means that no person (adult or child) shall
be subjected to arbitrary or unlawful interference with his or her privacy, family, home or
correspondence, nor to unlawful attacks on his or her honour and reputation, and that
everyone has the right to the protection of the law against such interference or attacks.
25. The protection against arbitrary or unlawful interference with privacy can be permissibly
limited where the limitations are lawful and not arbitrary. The term 'unlawful' indicates
that no interference can take place except as authorised under domestic law. The term
'arbitrary' means that any interference with privacy must be in accordance with the
provisions, aims and objectives of the ICCPR and should be reasonable in the particular
circumstances. The United Nations Human Rights Committee has interpreted
reasonableness to mean that any limitation must be proportionate and necessary in the
circumstances to achieve a legitimate objective.
Schedule 1 - Foreign communications warrant amendments
26. Schedule 1 limits the right to privacy by removing the restriction on intercepting only
communications known to be foreign communications. The amendments will enable the
Director-General of Security to apply for a warrant authorising the interception of a
communication (including where the geographic location of the sender or recipient may be
12
unknown) in order to determine whether the communication is foreign for the purpose of
obtaining foreign intelligence from foreign communications.
27. These amendments pursue the legitimate objective of national security by resolving a
critical operational gap for intelligence agencies. Currently, due to the nature of modern
communications technologies, it is increasingly the case that the geographic location of the
sender and recipient of communications cannot be determined prior to interception. As a
result, intelligence agencies cannot intercept a number of foreign communications that
would likely be of foreign intelligence value, as it could risk the incidental interception of
domestic communications. This constraint on the collection of foreign intelligence creates
the real risk that intelligence agencies are missing critical foreign intelligence to protect
Australians and their security. The amendment is rationally connected to the objective of
protecting national security, as the reforms will close this intelligence gap and improve the
ability of agencies to uncover terrorist plots, malicious cyber activity and other serious
threats to Australia's national interests.
28. The amendments only go as far as is reasonable and necessary in limiting the right to
privacy. The warrant can only be issued by the Attorney- General for the purpose of
collecting foreign intelligence from foreign communications, subject to strict safeguards.
Domestic communications cannot be targeted for interception. In addition, the
Attorney- General must issue a mandatory written procedure for screening and destroying
any identified domestic communications that may have been incidentally intercepted. The
Attorney- General must not issue a warrant unless that procedure is in force.
29. The only exception to the destruction requirement is where the communication relates, or
appears to relate, to activities that present a significant risk to a person's life. Only in this
exceptional circumstance--where a person's life is in danger--may a domestic
communication be retained. This will allow the communication to be shared with relevant
authorities in order to reduce or remove the risk to the person. This may occur where the
communication reveals a person has been taken hostage or an imminent terrorist attack
will be carried out.
30. This is a very limited exception. It only applies to 'significant risk' to a person's life,
where the likelihood of loss of life is real and imminent, or where the scale of the threat is
substantial. It would not apply to a mere possibility of harm to individuals or damage to
property. There must be a significant threat of loss of life, requiring the information to be
acted on immediately by relevant authorities.
31. Such safeguards in the Bill ensure that any limitations on the right to privacy are carefully
balanced with the objective of protecting Australia's national security.
32. The existing safeguards for the foreign communications warrant will also continue to
apply. The Attorney- General must be satisfied, on the advice of the Minister for Defence
or the Minister for Foreign Affairs, that the collection of foreign intelligence is in the
interests of Australia's national security, Australia's foreign relations, or Australia's
13
national economic well- being, and that it is necessary to intercept communications in
order to collect foreign intelligence. The Attorney- General must also be satisfied that
relying on another foreign intelligence warrant (a telecommunications service warrant or a
named person warrant) would be ineffective. The foreign communications warrant will
remain a warrant of last resort by only being available where there are no other means of
collecting the intelligence. Consequently, the measures are the least rights restrictive
means of achieving the legitimate objective.
33. The IGIS reviews the activities of intelligence agencies to ensure they act lawfully, with
propriety and in a manner which respects human rights. Should the IGIS choose to
conduct an inquiry into the actions of an intelligence agency, it has strong coercive
powers, similar to those of a Royal Commission, including powers to compel the
production of information and documents, enter premises occupied or used by a
Commonwealth agency, issue notices to persons to appear before the IGIS to answer
questions relevant to the inquiry, and to administer an oath or affirmation when taking
such evidence.
34. These measures, in the Bill and existing legal framework, provide appropriate safeguards
to ensure that any limitation on the right to privacy under foreign communications
warrants are the least rights restrictive means of achieving the outcome of protecting
national security. To that end, while Schedule 1 limits the right to privacy, those
limitations are reasonable, necessary and proportionate.
Schedule 2 - Foreign power amendments
35. Schedule 2 limits the right to privacy by allowing foreign intelligence to be collected on
Australian citizens and permanent residents onshore, who are acting for or on behalf of a
foreign power. The Attorney- General will be able to issue foreign intelligence warrants
for the purpose of collecting foreign intelligence on Australians who are acting for, or on
behalf of, a foreign power.
36. The amendments pursue the legitimate objective of national security by closing the current
gap in the legal framework where foreign intelligence may be collected offshore on an
Australian working for a foreign power, but that same intelligence cannot be collected
inside Australia on that Australian under a warrant. This gap prevents intelligence
agencies from collecting foreign intelligence in circumstances where Australian citizens
and permanent residents are of legitimate foreign intelligence interest, such as where an
Australian citizen is recruited as an agent of a foreign state. There are often no alternate
warrant options for collecting foreign intelligence on these individuals. The amendments
are rationally connected to the objective of protecting national security, by closing the gap
that otherwise prevents intelligence agencies from collecting foreign intelligence on
Australians acting for, or on behalf of, a foreign power.
37. The amendments only goes as far as is reasonable and necessary in limiting the right to
privacy. Foreign intelligence warrants may only be requested by the Director- General of
14
Security for the purpose of obtaining foreign intelligence. The Director- General must
include details in the request about the grounds on which the person is suspected to be
acting for, or on behalf of, a foreign power. This ensures the Director- General provides
information supporting his or her suspicion, and that this information can be scrutinised by
the Attorney- General before issuing the warrant, or scrutinised by the IGIS in his or her
review of the warrant. The measures are also proportionate. The Attorney- General must
not issue a warrant unless he or she is also satisfied the person is, or is reasonably
suspected by the Director- General of Security of, acting for, or on behalf of a foreign
power. This provision ensures the Attorney- General independently turns his or her mind
to, and makes a decision concerning, whether an Australian is acting for, or on behalf of, a
foreign power (or is reasonably suspected by the Director- General of Security as doing
so). To this end, the Bill protects against the possibility of foreign intelligence warrants
being sought on Australians who are not acting for, or on behalf of, a foreign power.
38. The measure is also the least rights restrictive means of achieving the legitimate objective.
Existing safeguards for foreign intelligence warrants will continue to apply. The
Attorney- General may only approve the warrant when satisfied, on advice from the
Minister for Defence or the Minister for Foreign Affairs, that the collection of foreign
intelligence is in the interests of Australia's national security, foreign relations or
economic well- being. The Attorney- General may also place conditions and restrictions
on the warrant to limit the impact on the privacy of Australians. In addition, the
intelligence agencies which use foreign intelligence are subject to Privacy Rules under
section 15 of the Intelligence Services Act 2001. These Privacy Rules limit the
communication of information concerning Australian persons.
39. The IGIS reviews the activities of intelligence agencies to ensure they act lawfully, with
propriety and in a manner which respects human rights. Should the IGIS choose to
conduct an inquiry into the actions of an intelligence agency, it has strong coercive
powers, similar to those of a Royal Commission, including powers to compel the
production of information and documents, enter premises occupied or used by a
Commonwealth agency, issue notices to persons to appear before the IGIS to answer
questions relevant to the inquiry, and to administer an oath or affirmation when taking
such evidence.
40. These measures ensure that any limitation on the right to privacy are the least rights
restrictive means of achieving the outcome of protecting national security. To that end,
while Schedule 2 limits the right to privacy, those limitations are reasonable, necessary
and proportionate.
Protection of the right to freedom of expression in Article 19 of the ICCPR and Article 13
of the CRC
41. Article 19(2) of the ICCPR and Article 13 of the CRC provide that everyone shall have the
right to freedom of expression, including the right 'to seek, receive and impart information
15
and ideas of all kinds and regardless of frontiers, either orally, in writing or in print, in the
form of art, or through any other media of his choice.'
42. The right to freedom of expression may be limited on certain grounds, including national
security. However, any limitations must be prescribed by legislation and reasonable,
necessary and proportionate to achieve the legitimate objective.
Schedule 1 - Foreign communications warrant amendments
43. Schedule 1 may indirectly limit the right to freedom of expression if an individual
concerned about their communications being intercepted does not feel free to express
themselves.
44. These amendments pursue the legitimate objective of national security by resolving a
critical operational gap for intelligence agencies. Currently, due to the nature of modern
communications technologies, it is increasingly the case that the geographic location of the
sender or recipient of many communications cannot be determined prior to interception.
As a result, intelligence agencies cannot intercept a number of foreign communications
that would likely be of foreign intelligence value, as it could risk the incidental
interception of domestic communications. This constraint on the collection of foreign
intelligence creates the real risk that intelligence agencies are missing critical foreign
intelligence to protect Australians and their security. The amendment is rationally
connected to the objective of protecting national security, as the reforms will close this
intelligence gap and improve the ability of agencies to uncover terrorist plots, malicious
cyber activity and other serious threats to Australia's national interests.
45. The amendments only go as far as is reasonable and necessary in limiting the right to
freedom of expression. The warrant can only be issued by the Attorney- General for the
purpose of collecting foreign intelligence from foreign communications. Domestic
communications cannot be deliberately targeted for interception. In addition, the
Attorney- General must issue a mandatory written procedure for screening and destroying
identified domestic communications that may have been incidentally intercepted. The
procedure must be in force before the Attorney- General issues a warrant.
46. The only exception to the destruction requirement is where the communication relates, or
appears to relate, to activities that present a significant risk to a person's life. Only in this
exceptional circumstance--where a person's life is in danger--may a domestic
communication be retained. This will allow the communication to be shared with relevant
authorities in order to reduce or remove the risk to the person. This may occur where the
communication reveals a person has been taken hostage or an imminent terrorist attack
will be carried out.
47. This is a very limited exception. It only applies to 'significant risk' to a person's life,
where the likelihood of loss of life is real and imminent, or where the scale of the threat is
substantial. It would not apply to a mere possibility of harm to individuals or damage to
16
property. There must be a significant threat of loss of life, requiring the information to be
acted on immediately by relevant authorities.
48. Such safeguards in the Bill ensure that any limitations on the right to freedom of
expression are carefully balanced with the objective of protecting Australia's national
security.
49. The measure is also the least rights restrictive means of achieving the legitimate objective.
Existing safeguards for the foreign communications warrant will continue to apply. The
Attorney- General must be satisfied, on the advice of the Minister for Defence or the
Minister for Foreign Affairs, that the collection of foreign intelligence is in the interests of
Australia's national security, Australia's foreign relations, or Australia's national
economic wellbeing, it is necessary, and that alternate warrants would be ineffective. The
foreign communications warrant remains a warrant of last resort, by only being available
where there are no other means of collecting the intelligence. Consequently, the measures
are the least rights restrictive means of achieving the legitimate objective.
50. The IGIS continues to have oversight of agencies' activities under these warrants, to
ensure agencies act lawfully, with propriety and in a manner which respects human rights.
Should the IGIS choose to conduct an inquiry into the actions of an intelligence agency, it
has strong coercive powers, similar to those of a Royal Commission, including powers to
compel the production of information and documents, enter premises occupied or used by
a Commonwealth agency, issue notices to persons to appear before the IGIS to answer
questions relevant to the inquiry, and to administer an oath or affirmation when taking
such evidence.
51. These measures ensure that any potential limitations on the right to freedom of expression
are the least rights restrictive means of achieving the outcome of protecting national
security. To the extent Schedule 1 limits the right to freedom of expression, those
limitations are reasonable, necessary and proportionate.
Schedule 2 - Foreign power amendments
52. Schedule 2 may limit the right to freedom of expression by allowing foreign intelligence
warrants to be obtained on an Australian acting for, or on behalf of a foreign power,
onshore. The amendments may cause an individual to be concerned that their interactions
with a foreign power are being observed, and consequently limit their interactions.
53. The amendments pursue the legitimate objective of national security by closing the current
gap in the legal framework where foreign intelligence may be collected on an Australian
working for a foreign power offshore, but that same intelligence cannot be collected on
that Australian under a warrant inside Australia. This gap prevents intelligence agencies
from collecting foreign intelligence in circumstances where Australian citizens and
permanent residents are of legitimate foreign intelligence interest, such as where an
Australian citizen is recruited as an agent for a foreign state. There are often no alternate
17
warrant options for collecting foreign intelligence on these individuals. The amendment is
rationally connected to the objective of protecting national security, by closing the gap that
otherwise prevents intelligence agencies from collecting foreign intelligence on an
Australian acting for, or on behalf of, a foreign power.
54. The amendments only goes as far as is reasonable and necessary in limiting the right to
freedom of expression. Foreign intelligence warrants may only be requested by the
Director- General of Security for the purpose of obtaining foreign intelligence. The Bill
does not allow intelligence agencies to collect foreign intelligence on an individual
without a warrant authorised by the Attorney- General for the sole purpose of collecting
foreign intelligence. The Director- General must include details in the request about the
grounds on which the person is suspected to be acting for, or on behalf of, a foreign
power. This ensures the Director- General provides information supporting his or her
suspicion, and this information can be scrutinised by the Attorney- General before issuing
the warrant, or scrutinised by the IGIS in their review of the warrant. The
Attorney- General must not issue a warrant unless he or she is also satisfied the person is,
or is reasonably suspected by the Director- General of Security of, acting for, or on behalf
of a foreign power. This provision ensures the Attorney- General independently turns his
or her mind, and makes a decision concerning, whether an Australian is acting for, or on
behalf of, a foreign power. To this end, the Bill protects against the possibility of foreign
intelligence warrants being sought on Australians who are not acting for, or on behalf of a
foreign power.
55. The measure is also the least rights restrictive means of achieving the legitimate objective.
Existing safeguards for foreign intelligence warrants will continue to apply. The
Attorney- General may only approve the warrant when satisfied, on advice from the
Minister for Defence or the Minister for Foreign Affairs, that the collection of foreign
intelligence is in the interests of Australia's national security, foreign relations or
economic well- being. The Attorney- General may also place conditions and restrictions
on the warrant to limit the impact of the warrant on the privacy of Australians. The
intelligence agencies which use foreign intelligence are subject to Privacy Rules under
section 15 of the Intelligence Services Act 2001. Those Privacy Rules limit the
communication of information concerning Australian persons.
56. The IGIS reviews the activities of intelligence agencies to ensure they act lawfully, with
propriety and in a manner which respects human rights. Should the IGIS choose to
conduct an inquiry into the actions of an intelligence agency, it has strong coercive
powers, similar to those of a Royal Commission, including powers to compel the
production of information and documents, enter premises occupied or used by a
Commonwealth agency, issue notices to persons to appear before the IGIS to answer
questions relevant to the inquiry, and to administer an oath or affirmation when taking
such evidence.
57. These measures ensure that any limitations on the freedom of expression are the least
rights restrictive means of achieving the outcome of protecting national security. To the
18
extent Schedule 2 limits the freedom of expression, those limitations are reasonable,
necessary and proportionate.
The right to life and security of the person contained in Article 6 and 9 of the ICCPR and
the right to life in Article 6 of the CRC
58. The right to security of the person in Article 9 of the ICCPR requires states to provide
reasonable and appropriate measures to protect a person's physical security. The right to
life in Article 6 of the ICCPR and Article 6 of the CRC places a positive obligation on
states to protect individuals from unwarranted actions that threaten their right to life. The
obligation to protect life requires the state to take preventative operational measures to
protect individuals whose safety may be compromised in particular circumstances, such as
by a terrorist act.
59. The Bill promotes the right to life and security by enhancing the ability of intelligence
agencies to identify and respond to foreign threats, including malicious cyber activity
targeting Australian interests, terrorist communications, and foreign intelligence services
operating inside Australia.
Schedule 1 - Foreign communications warrant amendments
60. Schedule 1 promotes the right to life and security by resolving a critical operational gap
for intelligence agencies. Currently, due to the nature of modern communications
technologies, the geographic location of the sender or recipient of many communications
cannot be determined prior to interception. As a result, intelligence agencies cannot
intercept a number of foreign communications, as it could risk the incidental interception
of domestic communications. This constraint on the collection of foreign intelligence
creates the real risk that intelligence agencies are missing critical foreign intelligence to
protect Australians and their security. The reforms will close this intelligence gap and
improve the ability of agencies to uncover terrorist plots, malicious cyber activity and
other serious threats to Australia's national interests.
61. While the amendments require any communications identified as domestic to be
destroyed, there is an exception for domestic communications which relate, or appear to
relate, to activities that present a significant risk to a person's life. This may occur where
the communication indicates that a person has been taken hostage or an imminent terrorist
attack will be carried out. In these exceptional circumstances, the communication may be
shared with relevant authorities in order to reduce or remove the risk to the person.
62. This is a very limited exception. It only applies to 'significant risk' to a person's life,
where the likelihood of loss of life is real and imminent, or the scale of the threat is
substantial. It would not apply to a mere possibility of harm to individuals or damage to
property. There must be a significant threat of loss of life, requiring the information to be
acted on immediately by relevant authorities.
63. This safeguard explicitly promotes the right to life.
19
Schedule 2 - Foreign power amendments
64. Schedule 2 promotes the right to life and security by closing the current gap in the legal
framework where foreign intelligence may be collected on an Australian working for a
foreign power offshore, but that same intelligence cannot be collected on that Australian
under a warrant inside Australia. This gap prevents intelligence agencies from collecting
foreign intelligence in circumstances where Australian citizens and permanent residents
are of legitimate foreign intelligence interest, such as where an Australian citizen is
recruited as an agent of a foreign state. There are often no alternate warrant options for
collecting foreign intelligence on these individuals.
65. The amendments promote the right to life by improving intelligence agencies' ability to
collect intelligence about foreign threats to Australia, and keep Australians safe.
The right of the child to have their best interests as a primary consideration by courts of
law, administrative authorities or legislative bodies in Article 3 of the CRC
66. Article 3 of the CRC requires that, in all actions concerning children, the best interests of
the child shall be a primary consideration. This places a positive obligation on states to
take all appropriate measures to ensure the child such protection and care as is necessary
for his or her safety and wellbeing. The best interests of the child is not the sole
consideration, and other legitimate considerations such as national security including the
gathering of intelligence, may be considered alongside the best interests of the child.
67. The Bill makes no distinction between children and adults in the amendments to foreign
communications warrants (Schedule 1) or foreign intelligence warrants more broadly
(Schedule 2). However, the amendments in the Bill are also not specifically directed at
minors. There is a legitimate need to collect foreign intelligence, even if the subject of the
intelligence gathering is a minor.
68. The safeguards in the Bill will also apply to the exercise of these powers on minors. The
amendments are carefully framed and considered to ensure the rights and freedoms of
individuals are balanced with the objectives of protecting Australia's national security.
Schedule 1 - Foreign communications warrant amendments
69. Schedule 1 engages Article 3 of the CRC, as there is no limit as to the age of people whose
communications may be intercepted under a foreign communications warrant. This is
because the foreign communications warrant authorises the collection of communications
which have foreign intelligence value, as opposed to the collection of communications
from a particular person. When the foreign communications warrant was introduced into
the TIA Act in 2000, the explanatory memorandum clarified:
section 11C creates a new class of "foreign communication" warrants for
circumstances where telecommunications technologies operate so as to preclude the
interception of particular communications by reference to a specific service or a
20
named individual. These warrants are confined to foreign communications only and
special provision is made to limit the scope of their authority since it is not possible to
identify a particular service or individual.
70. Advances in technology mean that in some cases it can be impossible to identify, at the
point of interception, the person who is behind a communication, including their age. The
section 11C warrant is designed for these purposes, where a targeted warrant on an
individual or their service would be ineffective. In these circumstances, the section 11C
warrant plays a critical role in identifying threats to Australia's national security. Given
that it is impossible to know the age of the person prior to interception, it is not possible to
include particular safeguards to prevent the interception of minors' communications.
71. In the case that intelligence agencies discover that communications collected under
section 11C relate to a child in Australia, they must comply with the internal practices in
place with respect to producing intelligence on children. The IGIS has strong powers to
review the activities and procedures of intelligence agencies to ensure they act lawfully,
with propriety and in a manner which respects human rights.
Schedule 2 - Foreign power amendments
72. Schedule 2 engages Article 3, as there is no age limit on any individual who may be
reasonably suspected to be acting for, or on behalf of, a foreign power (and therefore
subject to a foreign intelligence warrant). In the case that agencies seek to produce
intelligence on an Australian child, they have internal practices in place with respect to
producing intelligence on children. The IGIS has strong powers to review the activities
and procedures of intelligence agencies to ensure they act lawfully, with propriety and in a
manner which respects human rights.
Conclusion
73. The Bill is compatible with human rights because it promotes the protection of human
rights. To the extent that it may limit human rights, those limitations are reasonable,
necessary and proportionate.
21
NOTES ON CLAUSES
Preliminary
Clause 1 - Short title
1. Clause 1 provides that the short title of the Act is the Foreign Intelligence Legislation
Amendment Act 2021.
Clause 2 - Commencement
2. Subclause 2(1) provides the provisions of the Act commence in accordance with the table
entitled 'Commencement information.'
3. The table provides that the whole of the Act will commence on a single day to be fixed by
Proclamation. However, if the provisions do not commence within the period of 6 months
beginning on the day this Act receives the Royal Assent, they commence on the day after
the end of that period.
4. The note clarifies that the commencement information table relates only to the provisions
of this Act as originally enacted. It will not be amended to deal with any later amendments
of this Act.
5. Subclause 2(2) provides that any information in column 3 of the table is not part of this
Act. Information may be inserted in this column, or information in it may be edited, in any
published version of this Act.
Clause 3 - Schedules
6. Clause 3 provides that legislation that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any other item in
a Schedule to this Act has effect according to its terms.
22
Schedule 1--Section 11C foreign intelligence warrants
Telecommunications (Interception and Access) Act 1979
Item 1 - Before subsection 11C(1)
7. This item inserts the heading 'issue of warrant' before subsection 11C(1). This is a
stylistic amendment, which is intended to assist readability following the insertion of
additional subsections. The new heading reflects the substance of the subsections which
immediately follow in relation to the issuing of a foreign communications warrant.
Item 2 - Paragraph 11C(1)(a)
8. This item amends paragraph 11C(1)(a) to enable the Director- General of Security to give
a notice in writing requesting the Attorney- General issue a warrant authorising the
interception of communications for the purpose of obtaining foreign intelligence relating
to a matter specified in the notice from foreign communications intercepted under the
warrant. Section 5 of the Telecommunications (Interception and Access) Act 1979 (TIA
Act) defines 'foreign communication' to mean a communication sent or received outside
Australia and 'foreign intelligence' to mean intelligence about the capabilities, intentions
or activities of people or organisations outside Australia.
9. This item reflects the amended authority of the warrant, to allow the interception of
communications, of which the sender and recipient may have no clear geographic location,
if the purpose is to obtain foreign intelligence from foreign communications. The
amendment is intended to overcome the challenge intelligence agencies face in
determining the geographic location of a sender or recipient of communications prior to
their interception. Advances in technology - including the widespread use of
internet- based communications and mobile applications - mean that it can be impossible
to know, at the point of interception, if some communications are foreign or domestic.
This item overcomes these technical challenges, by removing the strict prohibition on
intercepting domestic communication, in recognition of the complex nature of modern
communications.
Item 3 - Subparagraph 11C(1)(b)(ii)
10. This item amends subparagraph 11C(1)(b)(ii) to require the Attorney- General, before
issuing a warrant, to be satisfied, on the basis of advice from the Minister of Defence or
the Minister of Foreign Affairs, that it is necessary to intercept communications for the
purpose of obtaining that foreign intelligence from the foreign communications
intercepted under the warrant.
Item 4 - Subsection 11C(1)
11. This item amends subsection 11C(1) to allow the Attorney- General to authorise the
interception of communications for the purpose of obtaining that foreign intelligence from
23
foreign communications intercepted under the warrant. This amendment is intended to
overcome the challenge intelligence agencies face in determining the geographic location
of a sender or recipient of communications prior to their interception.
Item 5 - Subsection 11C(2)
12. This item amends subsection 11C(2) to provide that a warrant under subsection (1) must
not authorise the interception of any communications except for the purpose of obtaining
foreign intelligence relating to a matter specified in the notice referred to in subsection (1)
from foreign communications intercepted under the warrant. This provision reinforces that
the purpose of the warrant is to obtain foreign intelligence from foreign communications.
Interception is only authorised where the purpose of the interception is to obtain foreign
intelligence from foreign communications. A definition of 'domestic communication' is
introduced by subsection 11C(12), being a communication that is not a foreign
communication.
13. This item reflects the amended authority of the warrant, to allow the interception of
communications, which may have no clear geographic origin or destination, if the purpose
is to obtain foreign intelligence from foreign communications. The amendment is intended
to overcome the challenge intelligence agencies face in determining the geographic
location of the sender or recipient of many communications prior to interception.
Item 6 - Paragraph 11C(3)(a)
14. This item repeals existing paragraph 11C(3)(a) and substitutes it with a new paragraph
11C(3)(a) that requires a request by the Director- General of Security for the issue of a
foreign communications warrant to specify how the interception of communications is
proposed to be conducted under the warrant, including how the risk of intercepting
domestic communications will be minimised.
15. A request is no longer required to describe the nature of the interception solely by
reference to a particular part of the telecommunications system. Rather, the new paragraph
allows the Director- General of Security to more accurately and completely describe the
nature of the interception that is proposed to take place. This may include a description of
the telecommunications system, or alternative or additional descriptions to provide the
Attorney- General with information on how the interception will be conducted.
16. A request must specify how the risk of intercepting domestic communications will be
minimised. This may include details of the technical or other processes put in place to
ensure interception is only targeted towards obtaining foreign intelligence from foreign
communications. This will ensure that the Attorney- General is informed of the measures
taken to limit incidental collection prior to making his or her decision to issue the warrant.
Item 7 - Subsection 11C(4)
17. This item repeals subsection 11C(4) and substitutes it with new subsections (4) and (4A).
24
18. Under new subsection 11C(4), the Attorney- General must not issue a warrant unless the
mandatory procedure required under subsection 11C(6) is in force. This ensures that a
process and appropriate safeguards are in place for the identification and destruction of
domestic communications (other than domestic communications that relate, or appear to
relate, to activities that present a significant risk to a person's life) before any interception
is conducted under a new section 11C warrant.
19. Under new subsection 11C(4A), the Director- General of Security must prepare a notice
addressed to any carrier who operates any part of the telecommunications system that is
covered by the warrant. The notice must give a description that is sufficient to identify that
part of the telecommunications system covered by the warrant, unless the
Attorney- General is satisfied that giving such notice would not be in the interests of
national security or reasonable in the circumstances. This item accounts for the limited
instances where the Attorney- General is satisfied it may not be reasonable to serve the
notice on a carrier (for example, because it is not possible to identify the carrier in advance
of interception), or, because it may not be in the interests of national security to do so.
Under paragraph 15(7)(d), as amended by Item 12, the Director- General of Security is
required to give any such notice to the authorised representative of the carrier as soon as
practicable.
Item 8 - Before subsection 11C(5)
20. This item inserts the heading 'destruction of irrelevant intercepted communications'
before subsection 11C(5). This is a stylistic amendment, which is intended to assist
readability following the insertion of additional subsections. The new heading reflects the
substance of the subsection which immediately follows in relation to the
Director- General of Security causing the destruction of irrelevant intercepted
communication.
Item 9 - Subsection 11C(5)
21. This item amends subsection 11C(5) to provide that if a communication obtained under a
foreign intelligence warrant is not relevant, the Director- General of Security must cause
all records of the communication to be destroyed, unless the communication relates, or
appears to relate, to activities that present a significant risk to a person's life. Where a
communication relates, or appears to relate, to activities that present a significant risk to a
person's life, the Director- General of Security is not required to destroy those
communications. However, the Director- General of Security must cause the
Inspector- General of Intelligence and Security (IGIS) to be notified if the communication
is not destroyed.
22. This amendment provides an exception from destruction only where there is a significant
risk to a person's life. Whether a risk is significant will depend on how imminent the
threat to a person's life is and the likelihood of it coming to pass, taking into account the
circumstances of the case. The term is intended to capture circumstances where there is a
25
high likelihood that a person's life is imminently in danger (for example, where a
communication indicates a strong likelihood that a person has been taken hostage).
23. In considering whether the risk is significant, the scale of the threat should also be taken
into account. For example, where a communication indicates that a terrorist attack may be
carried out on a large group of people, this would make the risk more significant.
24. The term is intended to set a high bar, but also provide for circumstances where the public
would expect intelligence agencies to take immediate action upon identifying the
imminent threat to life. It is not an acceptable position to have clear information about a
threat to life and be legally obliged to destroy that information, rather than pass that
information on to prevent loss of life. In these circumstances, this intelligence is shareable
with relevant authorities in order to reduce the risk to the person.
Item 10 - After subsection 11C(5) (before the note)
25. Item 9 inserts the heading 'mandatory procedure for all intercepted communications' and
new subsections 11C(6), (7), (8), (9), (10), (11) and (12).
26. New subsection 11C(6) requires the Attorney- General to issue, in writing, a mandatory
procedure. The procedure must cover:
screening communications intercepted under a warrant under section 11C for the purpose
of identifying any domestic communications that may have been intercepted, and
destroying all records of any domestic communication so identified from that screening
(other than a domestic communication that relates, or appears to relate, to activities that
present a significant risk to a person's life), and
notifying the IGIS of any identified domestic communication if all records are not
destroyed because the communication relates, or appears to relate, to activities that
present a significant risk to a person's life.
27. The mandatory procedure issued by the Attorney- General may also deal with any other
matter relating to communications intercepted under a warrant under section 11C
(subsection 11C(7)).
28. It is intended that the term 'procedure' be read as including both the singular and the
plural. The ability for the Attorney- General to issue one or more written procedures for
how this screening is to take place is intended to allow the Attorney- General to issue
procedures that are tailored to particular technical capabilities, systems, and operating
environments.
29. The concept of 'screening communications' in paragraph 11C(6)(a) is intended to cover a
range of automated and manual processes designed and implemented for the purpose of
identifying domestic communications that may have been intercepted. The concept is not
26
intended to cover a single point in time assessment of communications. This means that
the identification of domestic communications may occur through different processes and
at different points at time. For example, a person may 'screen' a communication when
analysing a communication for its foreign intelligence value, and a computer may 'screen'
a communication by identifying a domestic communication at an earlier or later point in
time. Consequently, the safeguards do not cease following a single assessment and the
destruction of identified domestic communications remains an ongoing requirement at any
point where such a communication is identified.
30. Paragraph 11C(6)(b) requires that the mandatory procedures cover destroying all records
of any domestic communication so identified from the screening process. The ability for
the Attorney-General to issue one or more written procedures will ensure the
Attorney-General is satisfied that appropriate destruction measures are in place.
31. The exception to destroying domestic communications where there is a significant risk to a
person's life allows agencies to take actions to reduce or remove the risk to the person.
32. Whether a risk is significant will depend on how imminent the threat to a person's life is
and the likelihood of it coming to pass, taking into account the circumstances of the case.
The term is intended to capture circumstances where there is a high likelihood that a
person's life is imminently in danger (for example, where a communication indicates a
strong likelihood that a person has been taken hostage).
33. In considering whether the risk is significant, the scale of the threat should also be taken
into account. For example, where a communication indicates that a terrorist attack may be
carried out on a large group of people, this would make the risk more significant.
34. The term is intended to set a high bar, but also provide for circumstances where the public
would expect intelligence agencies to take immediate action upon identifying the
imminent threat to life. It is not an acceptable position to have clear information about a
threat to life and be legally obliged to destroy that information, rather than pass that
information on to prevent loss of life. In these circumstances, this intelligence is shareable
with relevant authorities in order to reduce the risk to the person.
35. An identified domestic communication may not be retained under any other circumstance
and the IGIS will be notified of any instance the exception is relied upon (new paragraph
11C(6)(c)).
36. New subsection 11C(7) provides that the mandatory procedure issued by the
Attorney- General may also deal with any other matters relating to communications
intercepted under a warrant under section 11C. This will enable the Attorney- General to
deal with other matters relevant to intercepted communications, for example, by
specifying the individuals to whom the procedure applies.
37. New subsection 11C(8) provides that a person must comply with the mandatory procedure
to the extent that it applies to that person. This ensures there is an obligation for persons
27
dealing with communications intercepted under a foreign communications warrant to
comply with the mandatory procedure insofar as it applies to that specific person. The
IGIS will be able to monitor and report on any non- compliance with the procedure,
consistent with his or her existing functions and powers.
38. New subsection 11C(9) requires the Attorney- General to consult the Minister for
Defence, Minister for Foreign Affairs, IGIS and Director- General of Security before
issuing or varying the mandatory procedure.
39. It is appropriate for the Attorney- General to consult the Minister for Defence and
Minister for Foreign Affairs on the procedure, as those Ministers have portfolio
responsibility for foreign intelligence matters. Although ASIO is responsible for seeking
foreign intelligence warrants, foreign intelligence agencies are key users of the foreign
intelligence obtained under the warrants. Under 11C(1)(b), the Attorney- General may
only issue a section 11C warrant on the basis of advice from the Minister for Defence or
Minister for Foreign Affairs.
40. The Attorney- General is required to consult the IGIS, as the IGIS has responsibility for
oversighting compliance with the warrant, legislation and written procedures. The IGIS
also maintains responsibility for ensuring that agencies act legally and with propriety,
comply with ministerial guidelines and directives and respect human rights.
41. The Attorney- General must also consult the Director- General of Security, who is
responsible for requesting foreign communications warrants.
42. New subsection 11C(10) requires the Attorney- General to review the mandatory
procedure as soon as practicable after the end of the first anniversary of the procedure
being issued, and every three year period after that. The subsection also expressly enables
the Attorney- General to review the procedure at any other time. Regular review of the
procedure is necessary to ensure the procedure remains appropriate, having regard to
developments in technology, systems and operational experience.
43. Subsection 11C(11) provides that the mandatory procedure, or any variation of the
mandatory procedure is not a legislative instrument. This is an exempting provision.
44. Subsection 11C(12) provides the definition of 'domestic communication' for the purposes
of 11C. Domestic communication means a communication that is not a foreign
communication. Section 5 of the TIA Act defines a foreign communication to mean a
communication that is sent or received outside Australia.
Item 11 - Section 14 (note)
45. This item amends the note to section 14 by inserting a reference to new paragraph
11C(6)(b). Section 14 requires the Director- General of Security to cause the destruction
of records or copies of intercepted communications under a Part 2- 2 warrant when the
Director- General is satisfied that the record or copy is not required, and is not likely to be
28
required in, or in connection with, the performance of ASIO's functions. The amended
note draws attention to the obligation within the mandatory procedure for destroying
domestic communications identified from screening.
Item 12 - After paragraph 15(7)(b)
46. This item inserts new paragraph 15(7)(ba) to ensure that the Director- General of Security
is only required to cause a representative of a carrier to be informed of a warrant where a
carrier is required to be given a notice under subsection 11C(4A).
47. This item is consequential to the insertion of subsection 11C(4A), which requires the
Director- General of Security to prepare a notice addressed to any carrier who operates
any part of the telecommunications system covered by the warrant (and give a description
to identify the telecommunications system), unless the Attorney- General is satisfied that
giving the notice would not be in the interests of national security or reasonable in the
circumstances.
Item 13 - Paragraph 15(7)(d)
48. This item repeals existing paragraph 15(7)(d) and substitutes it with a new paragraph
15(7)(d). New paragraph 15(7)(d) requires the authorised representative to be given a
notice under 11C(4A) as soon as practicable, provided the conditions in paragraphs
15(7)(a), (b) and (ba) are met. That is, an authorised representative must be given a notice
where the Director- General of Security is informed of the issue of a warrant, and it is
proposed to intercept communications while passing over a telecommunications system
operated by a carrier, and the carrier is required to be given a notice under 11C(4A).
49. This item is consequential to the insertion of subsection 11C(4A), which requires the
Director- General to prepare a notice addressed to any carrier who operates any part of the
telecommunications system covered by the warrant (and give a description to identify the
telecommunications system), unless the Attorney- General is satisfied that giving the
notice would not be in the interests of national security or reasonable in the circumstances.
Item 14 - Application of amendments
50. This item provides that the amendments made by this Schedule apply in relation to
applications made after the commencement of this Schedule for the issue of a warrant.
29
Schedule 2-- Australians or permanent residents acting for, or on behalf of, a
foreign power
Australian Security Intelligence Organisation Act 1979
Item 1 - At the end of subsection 27A(9)
52. This item amends subsection 27A(9) to allow the Director- General of Security to apply
for a foreign intelligence warrant under section 27A for the purpose of collecting
information concerning an Australian citizen or permanent resident where the
Director- General of Security reasonably suspects that the person is acting for, or on
behalf of, a foreign power. This amends the prohibition against the Director- General of
Security requesting a foreign intelligence warrant for the purpose of collecting information
concerning an Australian citizen or permanent resident. Section 4 of the Australian
Security Intelligence Organisation Act 1979 (ASIO Act) defines a foreign power to mean
a foreign government, an entity that is directed or controlled by a foreign government or
governments, or a foreign political organisation.
Item 2 - After subsection 27A(9)
53. This item inserts new subsection 27A(9A). Paragraph 27A(9A)(a) provides that if the
Director- General of Security requests the issue of a warrant for the purpose of collecting
information on an Australian citizen or permanent resident, then the Director- General of
Security must include details in the request about the grounds on which they suspect the
person is acting for, or on behalf of, a foreign power. This ensures the Director- General
of Security provides information supporting his or her suspicion, and that this information
can be scrutinised by the Attorney- General before issuing the warrant.
54. Paragraph 27A(9A)(b) provides that the Attorney- General must not issue a warrant
unless the Attorney- General is satisfied that the person is, or is reasonably suspected by
the Director- General of Security of acting for, or on behalf of, a foreign power. This
provision ensures the Attorney- General independently turns his or her mind to, and
makes a decision concerning, whether an Australian is (or is reasonably suspected by the
Director- General of) acting for, or on behalf of, a foreign power.
Telecommunications (Interception and Access) Act 1979
Item 3 - Subsection 5(1)
55. This item inserts a definition of foreign power in subsection 5(1), which is the same
definition as in the ASIO Act. Section 4 of the ASIO Act defines a foreign power to mean
a foreign government, an entity that is directed or controlled by a foreign government or
governments, or a foreign political organisation.
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Item 4 - After subsection 11A(2) (before the note)
56. This item inserts new subsection 11A(3). Paragraph 11A(3)(a) provides that if the
Director- General of Security requests the issue of a warrant for the purpose of collecting
information concerning an Australian citizen or permanent resident, then the
Director- General of Security must include details in the request about the grounds on
which the Director- General of Security suspects that the person is acting for, or on behalf
of, a foreign power. This ensures the Director- General of Security provides information
supporting his or her suspicion, and that this information can be scrutinised by the
Attorney- General before issuing the warrant.
57. Paragraph 11A(3)(b) provides that the Attorney- General must not issue a warrant unless
the Attorney- General is satisfied that the person is, or is reasonably suspected by the
Director- General of Security of acting for, or on behalf of, a foreign power. This
provision ensures the Attorney- General independently turns his or her mind to, and
makes a decision concerning, whether an Australian is (or is reasonably suspected by the
Director- General of) acting for, or on behalf of, a foreign power.
Item 5 - After subsection 11B(3) (before the note)
58. This item inserts new subsection 11B(4). Paragraph 11B(4)(a) provides that if the
Director- General of Security requests the issue of a warrant for the purpose of collecting
information concerning an Australian citizen or permanent resident, then the
Director- General of Security must include details in the request about the grounds on
which the Director- General of Security suspects that the person is acting for, or on behalf
of, a foreign power. This ensures the Director- General of Security provides information
supporting his or her suspicion, and that this information can be scrutinised by the
Attorney- General before issuing the warrant.
59. Paragraph 11B(4)(b) provides that the Attorney- General must not issue a warrant unless
the Attorney- General is satisfied that the person is, or is reasonably suspected by the
Director- General of Security of acting for, or on behalf of, a foreign power. This
provision ensures the Attorney- General independently turns his or her mind to, and
makes a decision concerning, whether an Australian is (or is reasonably suspected by the
Director- General of) acting for, or on behalf of, a foreign power.
Item 6 - After subsection 11C(3)
60. This item inserts new subsection 11C(3A). Paragraph 11C(3A)(a) provides that if the
Director- General of Security requests the issue of a warrant for the purpose of collecting
information concerning an Australian citizen or permanent resident, then the
Director- General of Security must include details in the request about the grounds on
which the Director- General of Security suspects that the person is acting for, or on behalf
of, a foreign power. This ensures the Director- General of Security provides information
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supporting his or her suspicion, and that this information can be scrutinised by the
Attorney- General before issuing the warrant.
61. Paragraph 11C(3A)(b) provides that the Attorney- General must not issue a warrant unless
the Attorney- General is satisfied that the person is, or is reasonably suspected by the
Director- General of Security of acting for, or on behalf of, a foreign power. This
provision ensures the Attorney- General independently turns his or her mind to, and
makes a decision concerning, whether an Australian is (or is reasonably suspected by the
Director- General of) acting for, or on behalf of, a foreign power.
Item 7 - At the end of subsection 11D(5)
62. This item amends subsection 11D(5) to allow the Director- General of Security to request
the issue of a foreign intelligence warrant for the purpose of collecting information on an
Australian citizen or permanent resident under section 11A, 11B or 11C, if the
Director-General reasonably suspects that the person is acting for, or on behalf of, a
foreign power. This amends the prohibition against the Director- General of Security
requesting a foreign intelligence warrant for the purpose of collecting information
concerning an Australian citizen or permanent resident. A foreign power is defined as a
foreign government, an entity that is directed or controlled by a foreign government or
governments, or a foreign political organisation in section 4 of the ASIO Act.
Item 8 - paragraphs 63AB(2)(e) and 63AC(2)(e)
63. This item amends paragraphs 63AB(2)(e) and 63AC(2)(e) to remove the reference to
"(within the meaning of the Australian Security Intelligence Organisation Act 1979)" in
relation to foreign power. Item 3 has defined foreign power in the TIA Act, resulting in the
reference to the ASIO Act no longer being required.
Item 9 - Application of amendments
64. This item provides that amendments made by this Schedule apply in relation to
applications made after the commencement of this Schedule for the issue of a warrant.
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Schedule 3-- Other amendments
Telecommunications (Interception and Access) Act 1979
Item 1 - Section 65 (heading)
65. This item amends the heading for section 65 by omitting the word 'Communicating' and
substituting the words 'Dealing in'. This is a stylistic amendment, which is intended to
assist readability following the amendments to section 65(2). The new heading reflects the
substance of the subsections which immediately follow in relation to the communication,
use and recording of foreign intelligence information.
Item 2 - Subsection 65(2)
66. This item amends subsection 65(2) to put beyond doubt that a person to whom foreign
intelligence information has been communicated in accordance with subsection 65(1), or
in accordance with an approval given under this subsection, may use that information for
such purposes as are approved in writing by the Attorney- General, and make a record of
that information. The ability for the Attorney-General to determine the purposes for which
such information may be used includes the ability to limit the purposes for which such
information may be used.
67. A person to whom foreign intelligence information has been communicated will continue
to be able to communicate that information to such persons and in such manner as
approved in writing by the Attorney- General.
Item 3 - Subsection 65(6)
68. This item inserts new subsection 65(6A), which provides that an approval under
subsection 65(2), as amended, is not a legislative instrument. This amendment is required
for certainty.
Item 4 - Section 137 (heading)
69. This item amends the heading for section 137 by omitting the word 'Communicating' and
substituting the words 'Dealing in'. This is a stylistic amendment, which is intended to
assist readability following the amendments to section 137(3). The new heading reflects
the substance of the subsections which immediately follow in relation to the
communication, use and recording of foreign intelligence information.
Item 5 - Subsection 137(3)
70. This item amends subsection 137(3) to put beyond doubt that a person to whom foreign
intelligence information has been communicated in accordance with subsection 137(1), or
in accordance with an approval given under this subsection, may use that information for
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such purposes as are approved in writing by the Attorney- General, and make a record of
that information.
71. A person to whom foreign intelligence information has been communicated will continue
to be able to communicate that information to such persons and in such manner as
approved in writing by the Attorney- General.
Item 6 - At the end of section 137
72. This item inserts new subsection 137(4), which provides that an approval under subsection
137(3), as amended, is not a legislative instrument. This amendment is required for
certainty.
Item 7 - Application of amendments and savings
73. This item provides that the amendments made by this Schedule apply in relation to the
communication, use or making of records of foreign intelligence information that occurs
after the commencement of this Schedule, whether the foreign intelligence information
was obtained from interceptions made before or after that commencement
74. Despite the amendments made to subsections 65(2) and 137(3), approvals given under
those subsections that are in force immediately before the commencement of this Schedule
continue in force after that commencement as if they were made under the relevant
subsection (as amended by this Schedule).
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