Commonwealth of Australia Explanatory Memoranda

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FOREIGN INTELLIGENCE LEGISLATION AMENDMENT BILL 2021

                          2019-2020-2021




   THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                 HOUSE OF REPRESENTATIVES




FOREIGN INTELLIGENCE LEGISLATION AMENDMENT BILL 2021




       SUPPLEMENTARY EXPLANATORY MEMORANDUM




       Amendments to be Moved on Behalf of the Government




                     (Circulated by authority of the
        Minister for Home Affairs, the Hon 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. The Bill will improve intelligence
 agencies' ability to collect intelligence about foreign threats to Australia, and keep Australia
 safe and prosperous.

 2.     The amendments to the Bill address two recommendations made by the Parliamentary
 Joint Committee on Intelligence and Security (PJCIS) in its report on the Bill.

 3.       The amendments to the Bill will:

         enable the PJCIS to review the provisions of the Bill after five years, and

         ensure the PJCIS is notified, and may receive a briefing, of the mandatory procedure
          made by the Attorney-General.

 FINANCIAL IMPACT STATEMENT

 4.       The amendments to this Bill will have no impact on Government revenue.

 ABBREVIATIONS

 The following abbreviations will be incorporated throughout this supplementary explanatory
 memorandum:

         Australian Security Intelligence Organisation Act 1979 (ASIO Act)
         Foreign Intelligence Legislation Amendment Bill 2021 (Bill)
         Parliamentary Joint Committee on Intelligence and Security (PJCIS)
         Telecommunications (Interception and Access) Act 1979 (TIA Act)




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             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.     These amendments are 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 Legislative Amendments

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. The Bill will improve intelligence
agencies' ability to collect intelligence about foreign threats to Australia, and keep Australia
safe and prosperous.

3.     The amendments to the Bill address two recommendations made by the Parliamentary
Joint Committee on Intelligence and Security (PJCIS) in its report on the Bill.

4.       The amendments to the Bill will:

        enable the PJCIS to review the provisions of the Bill after five years, and

        ensure the PJCIS is notified, and may receive a briefing, of the mandatory procedure
         made by the Attorney-General.

Human rights implications

5.      The human rights impacts of the Bill were outlined in the Statement of Compatibility
with Human Rights that accompanied the Bill. The amendments to the Bill do not engage any
human rights. The amendments to the Bill strengthen Parliamentary oversight and help to
ensure that any limitations on human rights in the Bill are reasonable, necessary and
proportionate to achieve legitimate national security objectives of foreign intelligence
collection.

Conclusion
This amendments are compatible with human rights as they do not raise any human rights
issues.




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NOTES ON AMENDMENTS

Amendment 1 - Page 2 (after line 11), after clause 3

1. This amendment inserts a new provision into the Bill to enable the Parliamentary Joint
   Committee on Intelligence and Security (PJCIS) to review the operation, effectiveness
   and implications of the amendments after five years from the day the Bill receives the
   Royal Assent.

2. This amendment ensures that the PJCIS is permitted to review and report on the Bill.

Amendment 2 - Schedule 1, item 10, page 5 (after line 34), after subsection 11C(10)

3. This amendment inserts new subsections 11C(10A) and (10B) into the TIA Act.

4. Section 11C of the TIA Act provides for the issue of foreign communications warrants.
   Subsection 11C(6), to be inserted by the Bill, requires the Attorney-General to issue a
   mandatory procedure for screening communications intercepted under the warrant,
   destroying identified domestic communications, and notifying the Inspector-General of
   Intelligence and Security (IGIS) if a communication is not destroyed on the basis it
   relates, or appears to relate, to activities that present a significant risk to a person's life.

5. Subsections 11C(7)-(11), to be inserted by the Bill, set out the process for issuing and
   varying such a procedure.

6. New subsection 11C(10A) requires the Attorney-General to cause the PJCIS to be
   notified about the issuing or varying of the mandatory procedure.

7. Subsection 11C(10B) allows the PJCIS to request a briefing on any mandatory procedure
   or variations made under proposed subsection 11C(6). Under subsection 11C(9), the
   Attorney-General must consult with:

      the Minister for Defence
      the Minister for Foreign Affairs
      the Inspector-General of Intelligence and Security; and
      the Director-General of Security.

   before issuing or varying the mandatory procedure.




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