Wednesday, 30 March 2022
National Security Legislation Amendment (Comprehensive Review and Other Measures No. 1) Bill 2021; Second Reading
The National Security Legislation Amendment (Comprehensive Review and Other Measures No. 1) Bill 2021 implements the government's response to a small number of recommendations of the review of the legal framework of the national intelligence community, which was led by Dennis Richardson AC, an eminent Australian; a review which was delivered to the government in December 2020. The bill also, implicitly at least, rejects one of Mr Richardson's recommendations. The bill also includes amendments recommended by the 2017 Independent Intelligence Review, which was conducted by Michael L'Estrange and Stephen Merchant, and other measures intended to address important and pressing issues facing those agencies.
The important purpose of the bill is to address or mitigate critical operational challenges facing key agencies that comprise the national intelligence community, being the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service, the Australian Signals Directorate, the Australian Geospatial-Intelligence Organisation, the Defence Intelligence Organisation and the Office of National Intelligence. Regardless of who forms government following the next election, it is safe to say that this parliament will see further legislation implementing other recommendations of the comprehensive review conducted by Mr Richardson in coming months.
This bill includes the following 14 schedules. Schedule 1 empowers the head of ASIS, ASD or AGO to authorise the production of intelligence on an Australian person who is overseas, without the approval of the responsible minister in an emergency situation. To give an emergency authorisation, the agency head must be satisfied that there is or is likely to be an imminent risk to the safety of an Australian person, that it is not reasonably practicable to obtain the person's consent and that it is reasonable to believe that the person would consent if they were able to do so—for example, where an Australian has been kidnapped. The responsible minister must be notified of the authorisation as soon as practicable, and, in any event, within eight hours, and the minister may cancel it at any time. The Inspector-General of Intelligence and Security, who of course has the oversight role for the intelligence community, must also be notified of the authorisation as soon as practicable. There are also a range of other safeguards in place, including record-keeping requirements.
Schedule 2 enables ASIS, ASD and AGO to seek ministerial authorisation to produce intelligence on a class of Australian persons who are or are likely to be involved with a listed terrorist organisation, noting that under existing law an agency must obtain an individual ministerial authorisation for each separate Australian on whom it seeks to produce intelligence. Schedule 2 would impose additional requirements for class authorisations, including in relation to the information that an agency head must provide to the responsible minister.
Schedule 3 enables ASD and AGO to seek ministerial authorisation to undertake activities to produce intelligence on an Australian person or class of Australian persons to assist the Australian Defence Force in support of military operations. Currently, when ASD and AGO are supporting Australian Defence Force operations, they must seek a ministerial authorisation for each individual Australian person who is determined to be part of, for example, a foreign militia group that is conducting operations against the ADF. Dennis Richardson argued that this requirement can delay ASD's and AGO's ability to respond rapidly and identify new threats to the ADF and its operations. The amendments in schedule 3 respond to that concern.
Schedule 4 would provide a definition of 'prescribed activity' and an explanation of what is meant by 'producing intelligence' to clarify that the range of activities for which ASIS, ASD and AGO require ministerial authorisation include the use of covert and intrusive intelligence collection methods, including those methods for which ASIO would require a warrant if conducted onshore, and expressly or impliedly requesting a foreign partner agency to produce intelligence on an Australian person.
The upshot of these amendments would be to limit the meaning of the expression 'producing intelligence on an Australian person' so that ministerial authorisations are required for a more limited range of intelligence activities than is currently the case. This is consistent with recommendation 41 of the Richardson review, which found that agencies are having to seek ministerial authorisation in a broad range of circumstances, including circumstances where intelligence activities do not materially interfere with the privacy or other interests of persons.
Schedule 5 would amend the Intelligence Services Act to enable ASIS, without ministerial authorisation, to conduct activities to produce intelligence on an Australian inside Australia if ASIO requests that assistance for the purposes of assisting ASIO to carry out its functions. Currently, ASIS can only provide ASIO with assistance of this nature outside Australia. The amendments do not allow ASIS to conduct activities in Australia that would otherwise be unlawful. It is very important to highlight that the Richardson review did not support this change, with Dennis Richardson arguing that there was not enough evidence to demonstrate the operational need for ASIS to play a supporting role to ASIO onshore in the same way that it provided that support offshore. However, it is also important to note that such a change was supported by the 2017 Independent Intelligence Review. Ultimately, the intelligence and security committee agreed with the conclusion and recommendations of the 2017 Independent Intelligence Review on this matter.
Schedule 6 would amend section 13 of the Intelligence Services Act to provide that, for the purposes of carrying out its non-intelligence functions, the AGO is not required to seek ministerial approval in order to cooperate with authorities of other countries.
Schedule 7 would amend the Office of National Intelligence Act to require ONI to obtain director-general approval when undertaking cooperation with public international organisations—being organisations which comprise two or more countries—such as the United Nations or the World Health Organization. The rationale for this change is that working with such organisations may have implications for Australia's international relations, and so an additional safeguard is desirable.
Schedule 8 would amend the Australian Passports Act and the Foreign Passports (Law Enforcement and Security) Act to extend the period for passport suspension and foreign travel document surrender from 14 days to 28 days to allow sufficient time for ASIO to prepare a security assessment.
Schedule 9 would amend the Criminal Code to extend existing immunities to staff members and agents of ASIS and AGO for computer related acts done outside Australia in the proper performance of those agencies' functions to acts which inadvertently affect a computer or device located inside Australia.
Schedule 10 would: amend the Intelligence Services Act to require DIO to have legally binding privacy rules; require ASIS, ASD, AGO and DIO to make their privacy rules publicly available; and update ONI's privacy rules provisions so that they apply to intelligence about an Australian person under ONI's analytical functions. Schedule 11 would amend the Crimes Act to include ASD in the 'assumed identities scheme', which allows authorised officers of law enforcement and intelligence agencies to act under false identities in the course of conducting investigations. Schedule 12 clarifies the meaning of an 'authority of another country' for the purposes of the Intelligence Services Act. The term is currently not defined, which has created uncertainty about its scope.
Schedule 13 would permit the Director-General of Security to approve a class of persons to exercise the authority conferred by an ASIO warrant in the Telecommunications (Interception and Access) Act and would clarify that, where the Director-General of Security approves a class of persons to exercise the authority of a warrant or device-recovery provision in either the ASIO Act or the TIA Act, then that approval applies to positions within the scope of the class that comes into existence after the approval is given. The schedule would also introduce additional record-keeping requirements regarding persons who exercise authority conferred by ASIO warrants. Schedule 14 makes technical amendments to correct referencing errors in the Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Act.
The Parliamentary Joint Committee on Intelligence and Security, of which I am a member, completed its review of this bill last week. We held one public hearing and received a number of confidential briefings from agencies. Ultimately, Labor and Liberal members agreed that the bill should be passed by the parliament, subject to an amendment being made to the explanatory memorandum to clarify that a ministerial authorisation enabling ASIS, ASD and AGO to produce intelligence on a class of Australian persons who are or are likely to be involved with a listed terrorist organisation will not authorise the production of intelligence on a lawyer advocating for the de-listing of a terrorist organisation. The report of the committee further explains that amendment to the explanatory memorandum that the committee has called for. I commend the bill to the House.
I would like to thank my colleagues for their contribution to the debate on the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 1) Bill 2021. These reforms will strengthen the ability of our intelligence agencies to respond to emerging threats and the increasingly sophisticated capabilities of our adversaries. The bill has been reviewed by the Parliamentary Joint Committee on Intelligence and Security. I am pleased to say that the PJCIS has recommended that the bill be passed without any amendments, reflecting the bipartisan consensus on the importance of these reforms. I thank the PJCIS for its considered review.
The explanatory memorandum for the bill has been amended in accordance with the PJCIS's recommendation, as well as to include further text requested by the Senate Standing Committee for the Scrutiny of Bills. The measures in the bill are designed to address or mitigate critical operational challenges faced by the national intelligence community. The bill reflects the government's commitment to the continual improvement of Australia's robust national security laws to ensure that Australians are kept safe and secure in our society. I commend the bill to the House and present the replacement explanatory memorandum to the bill.
Question agreed to.
Bill read a second time.