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INTELLIGENCE SERVICES BILL 2001

1998-1999-2000-2001








THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA



HOUSE OF REPRESENTATIVES





INTELLIGENCE SERVICES BILL 2001




SUPPLEMENTARY EXPLANATORY MEMORANDUM





Amendments and New Clauses to be Moved on Behalf of the Government




(Circulated by authority of the Minister for Foreign Affairs, the Honourable Alexander Downer MP)

GENERAL OUTLINE

The Joint Select Committee on the Intelligence Services (JSCIS) reviewed the Intelligence Services Bill 2001, the Intelligence Services (Consequential Provisions) Bill 2001 and the provision in the Cybercrime Bill 2001 relating to ASIS and DSD – Liability for Certain Acts. In its report, the JSCIS made a number of recommendations which were accepted by the Government. This necessitated amendments to the Intelligence Services Bill 2001. The amendments affect primarily the key features of the Bill, namely the provision of limited immunities to ASIS and DSD, the requirement for the responsible Ministers to make written rules to ensure that the activities of ASIS and DSD are carried out with due regard to the privacy of Australians, and the establishment of a Parliamentary Joint Committee to review ASIO and ASIS.

The JSCIS found that the original provision detailing limited immunities for ASIS and DSD had the unintended consequence of providing wider immunity than the agencies required. As a consequence, the provision has been revised in line with the JSCIS recommendation to clarify its application and ensure that there are no unintended consequences of the provision. In order to enhance the oversight of immunities, the relevant provision has been amended to involve the Inspector-General of Intelligence and Security (IGIS) in certifying that the claiming of immunity is appropriate. These amendments, when read in conjunction with other clauses, which limit the agencies' activities, contribute to an improved control and accountability framework governing the agencies and their activities.

The Bill obliges the agencies to respect Australians' rights to privacy. This obligation is enshrined in the clauses which require the responsible Ministers to provide written rules ensuring the agencies pay due regard to those rights. In line with the JSCIS recommendation, the Bill has been amended to involve the Attorney-General in the process of developing these rules. The ministerial authorisation regime has also been enhanced to ensure the agencies' overseas activities do not infringe Australians' privacy rights.

The accountability regime which governs ASIO and ASIS is extended by the establishment of a Parliamentary Joint Committee to oversee the expenditure and administration of the agencies. The JSCIS found that it was appropriate that DSD be subject to oversight by the Parliamentary Joint Committee as well.

Other amendments to the Bill reflect the other recommendations by the JSCIS which enhance the accountability and oversight framework governing the agencies. Minor technical amendments have also been made to the Bill, where necessary.

FINANCIAL IMPACT STATEMENT

It is not expected that the Bill will have a direct financial impact.NOTES ON CLAUSES

Parliamentary Joint Committee on ASIO, ASIS and DSD

In line with Recommendation 11 from the report of the JSCIS, the Parliamentary Joint Committee will be responsible for the oversight of ASIO, ASIS and DSD. As a result, the amended Bill will reflect the addition of DSD to the Parliamentary Joint Committee's oversight responsibilities. Additionally, as the Director of DSD will be involved in briefing the Committee, references to “Director-General” will be replaced with “agency head.” The addition of DSD to the Committee's duties will impact on the following clauses:

Part 1, Clause 3, page 2 (lines 15 and 16)
Heading to Part 4, page 17 (line 2)
Heading to clause 28, page 17 (line 4)
Clause 28, page 17 (line 6)
Clause 29, page 17 (lines 18 and 19)
Clause 29, page 17 (lines 19 and 20)
Clause 29, page 17 (line 21)
Clause 29, page 17 (lines 29 and 30)
Clause 29, page 18 (line 2 and 3)
Clause 29, page 18 (line 5)
Clause 29, page 18 (line 8)
Clause 29, page 18 (line 12)
Clause 29, page 18 (line 16)
Clause 30, page 18 (line 18)
Clause 30, page 18 (after line 23), the insertion of sub-clause (ba)
Heading to Schedule 1 (page 26, line 1)
Schedule 1, paragraphs 2(4)(a) and (b) (page 26, lines 24 to 27)
Schedule 1, heading to clause 3 (page 27, line 15)
Schedule 1, sub-clause 3(1) (page 27, lines 17 and 18)
Schedule 1, sub-clause 3(2) (page 27, lines 22 and 24)
Schedule 1, sub-clause 3(4) (page 27, lines 29 and 30)
Schedule 1, paragraph 3(5)(a) (page 28, lines 2 and 4)
Schedule 1, paragraph 3(5)(b) (page 28, line 5)
Schedule 1, paragraph 4(1)(b) (page 28, lines 15 and 16)
Schedule 1, sub-paragraph 4(1)(b)(i) (page 28, lines 18 and 19)
Schedule 1, paragraph 7(1)(a) (page 31, lines 24 and 25)
Schedule 1, sub-paragraph 7(1)(c)(ii) (page 31, line 32)
Schedule 1, sub-clause 7(2) (page 32, line 2)
Schedule 1, sub-paragraph 9(1)(b)(i) (page 33, line 12)
Schedule 1, note after sub-clause 9(4) (page 33, lines 31 and 33)
Schedule 1, sub-clause 10(2) (page 34, lines 13 and 14)
Schedule 1, sub-clause 17(3) (page 39, lines 4 and 5)
Schedule 1, sub-clause 20(2) (page 40, line 5)
Schedule 1, sub-clause 22(1) (page 40, lines 16 and 17)



Clause 3

Definitions of “paramilitary activities”, “police functions” and “serious crime” will be included in response to Recommendation 17 of the JSCIS report.

A definition of “operationally sensitive information” will be moved to Schedule 1, Part 1A.

Clause 6: Functions of ASIS

A note will be inserted to indicate where a definition of “paramilitary activities” can be found in the Bill.

Clause 6A: Committee to be advised of other activities

This clause implements Recommendation 1 of the JSCIS report. The JSCIS recommended that the Note under Clause 6 be amended to include a requirement that if the Minister gives a direction under paragraph 6(1)(e), the Minister must as soon as practicable advise the Parliamentary Joint Committee on ASIO, ASIS and DSD of the nature of the activity or activities to be carried out.

Clause 8: Ministerial directions

The insertion of sub-paragraphs 8(1)(a)(i) and (ii) is in line with Recommendations 2 and 7 from the JSCIS report. These sub-paragraphs will strengthen and provide greater detail on the accountability mechanisms governing ASIS and DSD. This is achieved by requiring the agencies to obtain a Ministerial authorisation for an activity or series of activities for the specific purpose of producing intelligence on an Australian person overseas. The agencies will be also required to obtain an authorisation for any activity conducted under paragraph 6(1)(e) if that activity will, or is likely to, have a direct effect on an Australian person overseas.

The insertion of paragraph 8(1)(b) requires the responsible Minister to specify the circumstances when an agency must seek Ministerial authorisation before undertaking other activities or classes of activities under Clause 9.

Clause 9: Ministerial authorisation

The insertion of sub-clause 9(1A) is also in line with Recommendation 7 from the JSCIS report, and similarly strengthens the accountability mechanisms in combination with the amended clause 8. This sub-clause specifies that prior to the Minister giving an authorisation for matters specified in sub-paragraphs 8(1)(a)(i) and (ii), the Minister must be satisfied that the Australian person is, or is likely, to be involved in one or more of the activities listed in sub-paragraphs 9(1A)(a)(i) to (vii). Paragraph 9(1A)(b) provides further assurance concerning the consideration required prior to an authorisation given in that it obliges the responsible Minister to seek the agreement of the Minister responsible for overseeing the ASIO Act, if any activity under 9(1A)(a)(i) to (vii) may be classed as a threat to security as defined in the ASIO Act.

Sub-clause 9(1B) provides further clarification by defining some of the terms used in the preceding sub-clause.

Sub-clause 9(4) will be amended in line with recommendations 2 and 7 of the JSCIS report to make explicit that such a Ministerial authorisation, issued for an activity described in 8(1)(a)(i) or (ii), must not exceed six months.

Clause 10: Period during which authorisation has effect etc.

Sub-clause 10(1A) specifies that a renewal of an authorisation, issued for an activity described in 8(1)(a)(i) or (ii), must not exceed six months, without it being renewed.

Clause 11: Limits on agencies' functions

A note will be inserted to indicate where “police functions” and “serious crime” are defined in the Bill.

Sub-clause 11(2A) will be inserted to make explicit that the agencies must remain apolitical in the conduct of their activities.

Clause 12A: Special Responsibilities of Director and Director-General

The insertion of Clause 12A will place special responsibilities on the Director of DSD and the Director-General of ASIS. This is based on Section 20 of the ASIO Act.

Clause 14: Liability for certain acts

The amendment to paragraph 14(2)(b) is in accordance with Recommendation 6 of the JSCIS report.

The agencies should not be given immunity in respect of civil and criminal liability for acts against Australian law committed wholly within Australia and without foreign elements. However, it is considered that, in Australia's interests, agencies should have immunity in respect of certain acts in Australia that are connected with activity outside Australia, even where those acts might give rise to liability under an Australian law, if the liability only arises in the particular case because the Australian law has an aspect of extra-territorial application.

Sub-clause 14(2)(b) therefore applies to an act that forms a part of an offence under Australian law, but only where, in the particular case, at least one of the parts of that offence was an act, event, circumstance or result that took place, or was intended or expected to take place, outside Australia. Thus, the sub-clause only applies to an act done in Australia:

• where that act, taken together with an act, event, circumstance or result that took place, or was intended or expected to take place, outside Australia, could amount to an offence, and

• where that act, in the absence of the other act, event, circumstance or result, would not amount to an offence.


In addition, and also in line with Recommendation 6 of the JSCIS report, sub-clause 14(2A) will be inserted. This sub-clause further defines the limits of the immunity available to ASIS and DSD by making explicit that the agencies cannot undertake any activity in relation to premises, persons, computers, things or telecommunications services in Australia, being:

• that ASIO could not do without a Minister authorising it by warrant issued under the ASIO warrant regime as detailed in Division 2 of Part III of the Australian Security Intelligence Organisation Act 1979 or under Part III of the Telecommunications (Interception) Act 1979 or

• an act to obtain information that ASIO could not obtain other than in accordance with section 283 of the Telecommunications Act 1997.

In line with Recommendation 8 of the JSCIS' report, sub-clauses 14(2B) and 14(2C) will be also inserted. These sub-clauses define that the IGIS may provide a certificate which details whether an act was carried out in the proper performance of the agencies' functions. Any 'person' claiming immunity under clause 14 would require a certificate from the IGIS verifying that he or she had carried out an activity in the proper performance of a function of the agency.

Clause 15: Rules to protect privacy of Australians

In accordance with Recommendation 4 of the JSCIS' report, sub-clause 15(1) will be amended to require the responsible Ministers consult the Attorney-General before making written rules regarding communication and retention by agencies of intelligence information concerning Australians. The original wording of the clause requiring the responsible Ministers consult the IGIS before making the rules remains. The involvement of the Attorney-General in making the rules enhances the measures in place to protect Australians' rights to privacy.

Sub-clause 15(4) will be amended to require the responsible Ministers to provide a copy of the rules to the Attorney-General, as well as the IGIS, for the purposes of consultation.

Sub-clause 15(6) will be inserted to require the IGIS to brief the Parliamentary Joint Committee on the content and effect of the rules if they change, or if the Parliamentary Joint Committee requests a briefing.

Clause 19: Briefing the Leader of the Opposition about ASIS

As proposed in Recommendation 18 of the JSCIS' report, clause 19 will be amended to require the ASIS Director-General to consult regularly the Leader of the Opposition in the House of Representatives for the purpose of keeping him or her informed about ASIS. The amendment brings arrangements for ASIS into line with arrangements detailed for ASIO under section 21 of the Australian Security Intelligence Organisation Act 1979.

Clause 29: Functions of the Committee

In line with Recommendation 12 of the JSCIS report, sub-clause 29(2) will be amended in lines 29, 30 and 31 to bring the language into line with previous clauses preceding it. Sub-clause 29(2) will also be amended in line with Recommendation 11 from the JSCIS report, which recommended the Parliamentary Joint Committee be responsible for the oversight of ASIO, ASIS and DSD.

Clause 41: Publication of identity of staff

In the note following sub-clause 41(1), the words “agent and” have been omitted. This is a technical correction.

Schedule 1 – Committee on ASIO, ASIS and DSD

Part 1 - Procedure

Part 1A - Definitions

A Definitions section will be inserted for Schedule 1. This is in line with amendments flowing from DSD being subject to the scrutiny of the Parliamentary Joint Committee.

Clause 1: Committee must not require certain information to be disclosed

The note after this clause, which refers to the definition of “operationally sensitive information”, will be omitted (page 26, line 10), as the term is no longer defined in Clause 3, but is included in Part 1A, where it is used.




Clause 2: Power to obtain information and documents

The period within which either documents must be produced to the Committee, or a person appear before it, will be amended from 14 to 5 days (page 26, line 18). This is in accordance with Recommendation 15 of the JSCIS' report.

Sub-clause 2(6) will be omitted in line with Recommendation 16 of the JSCIS report (page 27, lines 8 to 10). The sub-clause requires that a Parliamentary Joint Committee member issuing a notice to a person to appear before the Committee must give a copy of the notice to the Minister responsible for the agency concerned. The JSCIS found this clause unnecessary and recommended its omission.

Clause 3: Provision of information to Committee by ASIO, ASIS and DSD

The period within which either documents must be produced to the Committee, or a person appear before it, will be amended from 14 to 5 days (page 27, line 23). This is in accordance with Recommendation 15 of the JSCIS' report.

Sub-clause 3(6) will be omitted in line with Recommendation 16 of the JSCIS report (page 28, lines 6 to 8). The sub-clause requires that a Parliamentary Joint Committee member issuing a notice to an agency head to appear before the Committee must give a copy of the notice to the Minister responsible for the agency concerned. The JSCIS found this clause unnecessary, noting that it was a matter for the agency head to inform the relevant Minister and recommended its omission.

Clause 6: Publication of evidence or contents of documents

Flowing from Recommendation 13 of the JSCIS report, sub-clauses 6(2) to 6(5) will be amended (page 30, line 14, to page 31, line 14). The effect of these amendments is to bring the Bill into line with Section 92G(4) of the Australian Security Intelligence Organisation Act 1979.

Clause 7: Restrictions on disclosure to Parliament

The amendment to paragraph 7(1)(a) will protect ASIO and ASIS staff, and the agents of ASIO, ASIS and DSD, by not permitting the Committee to publish the identities of ASIS and ASIO staff, or ASIS, ASIO and DSD agents (page 31, lines 24 and 25). The amendment responds to the inclusion of DSD under Recommendation 11 of the JSCIS' report to scrutiny by the Parliamentary Joint Committee. While agents of all agencies need protection, DSD staff do not require the same protection of their identities as ASIO and ASIS staff.

The note after sub-paragraph 7(1)(c)(i), which refers to the definition of “operationally sensitive information”, will be omitted (page 32 line 1), as the term is no longer defined in Clause 3, but is included in Part 1A, where it is used.

The amendment of sub-clause 7(2) (page 32, lines 4 and 5) which relates to an insertion of “his or her agency” is a technical correction.

The amendment of sub-clause 7(3) (page 32, line 6) is a technical correction.

The amendment of sub-clause 7(4) (page 32, line 10) is a technical correction.

Part 2 - Offences

Clause 9: Offences relating to publishing or disclosing evidence or documents

Sub-clause 9(1) will be amended in line with Recommendation 13 of the JSCIS report (page 33, lines 7 to 9). The requirement to obtain written authority to publish is only relevant to evidence or documents produced to the Committee in private.

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