Revised Explanatory Memorandum
(Circulated by authority of the Prime Minister, the Honourable Scott Morrison MP)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018
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
9. The Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018 amends 19 Acts to reflect the proposed operation of the ONI Bill which establishes the new ONI, announced by the Prime Minister in July 2017.
10. The ONI Bill implements a key recommendation of the 2017 Independent Intelligence Review (IIR) to enhance coordination and strategic integration across the intelligence community by establishing the new ONI.
11. ONI's functions will include:
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- Leading the national intelligence community;
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- Carrying out evaluations;
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- Assessing, correlating and analysing international and domestic matters of political, strategic or economic significance to Australia;
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- Advising the Prime Minister of intelligence matters; and
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- Open source collection.
12. Schedule 1 of this Bill repeals the whole of the Office of National Assessments Act 1977.
13. Schedule 2 of this Bill amends 18 Acts, in large part to simply reflect the new arrangements by replacing references to the Office of National Assessments (ONA) or the Director-General of ONA with references to ONI or the Director-General of National Intelligence.
14. Other more substantive amendments in this schedule include:
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- Amendments to the Acts Interpretation Act 1901 to enable ONI, ASD and ASIO to seek an extension of time when publishing annual reports.
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- Amendments to the Australian Border Force Act 2015 and the Australian Crime Commission Act 2002 to remove potential restrictions on the Australian Border Force and the ACIC's ability to share information with ONI.
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- Amendments to the Australian Security Intelligence Organisation Act 1979 and the Intelligence Services Act 2001 to enable ASIO, ASIS, AGO and ASD to cooperate with and assist ONI in the performance of ONI's functions.
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- Amendments to the Crimes Act 1914 to enable ONI to access the assumed identities regime set out in part IAC of the Act.
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- Amendments to the Inspector-General of Intelligence and Security Act 1986 to require the IGIS to report on ONI's compliance with its privacy guidelines, require ONI to give a copy of directions from the Prime Minister and ONI's annual report to the IGIS and enable the IGIS to consider ONI's compliance with the Prime Minister's directions.
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- Amendments to the Intelligence Services Act 2001 to amend the remit of the Parliamentary Joint Committee on Intelligence and Security in relation to ONI and to remove secrecy provisions relating to ONI so that they can be placed in the ONI Bill.
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- Amendments to the Privacy Act 1988 to exempt the Department of Home Affairs, the AFP and AUSTRAC from the operation of that Act when communicating information to ONI.
15. Schedule 3 of this Bill includes further amendments to the Criminal Code Act 1995, which are contingent on the commencement of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018.
16. Schedule 4 of this Bill covers transitional rules and arrangements, including the continued appointment of the Director-General of ONA as the Director-General of National Intelligence and the saving of things done by or in relation to ONA or the Director-General of ONA.
Human rights implications
17. This Bill engages the following rights:
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- the right of non-discrimination in Article 2 of the International Covenant on Civil and Political Rights (ICCPR),
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- the right to privacy in Article 17 of the ICCPR; and
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- the right to freedom of expression in Article 19(2) of the ICCPR.
Right of non-discrimination - Article 2(1) of the ICCPR
18. Article 2(1) of the ICCPR requires States to respect and ensure to all individuals within their territory and subject to their jurisdiction the rights recognised in the ICCPR, 'without distinction of any kind', and prohibits discrimination on various grounds, including age.
19. This Bill engages but does not limit the right to freedom from discrimination on the basis of age by repealing the existing exemption from the Age Discrimination Act 2004 that exists for ONA. The exemption reflected provisions of the ONA Act that are no longer in force, so the exemption is no longer necessary and will be removed by this Bill.
Right to privacy - Article 17 of the ICCPR
20. Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's privacy, family, home or correspondence. The right to privacy includes respect for informational privacy. This right can be permissibly limited in order to achieve a legitimate objective, where the limitations are lawful and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances.
21. This Bill engages the right to privacy by:
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- including new exemptions from the Privacy Act 1988 for disclosures to ONI by the Department of Home Affairs, the AFP and AUSTRAC,
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- enabling ONI to access the assumed identities regime in the Crimes Act 1914, and
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- expanding the ability of the ACIC and the Australian Border Force to share information with ONI.
Privacy Act exemptions for Home Affairs, AFP and AUSTRAC
22. This Bill limits the right to privacy by setting out an exemption from the provisions of the Privacy Act for the Department of Home Affairs, the AFP and AUSTRAC, to the extent that those agencies constitute an 'agency with an intelligence role or function' within the meaning of the ONI Bill.
23. ONA's acts and disclosures are currently exempt from the Privacy Act, and this Bill continues that exemption for ONI. However, unlike disclosures to other intelligence agencies (ASIO, ASIS and ASD), other bodies that are subject to the Privacy Act will remain subject to the Privacy Act when they disclose information to ONI, including when they disclose information under section 38 or 39 or in response to a request under section 37 of the ONI Bill.
24. This amendment pursues two legitimate objectives. First, they go towards ensuring national security by enabling agencies to provide information to assist ONI in performing its functions of promoting the collective performance of the NIC agencies through its leadership and enterprise management functions; and secondly to promote well-informed and rigorous policy making by the Australian government through preparing assessments on the basis of all available information.
25. The amendment is reasonable, necessary and proportionate to achieve these objectives. Firstly, the amendment is limited to agencies that are part of the NIC and who will need to provide information on a regular basis. As part of ONI's leadership and evaluation roles, ONI will need to access personal information from agencies within the national intelligence community - this might include, for example, information about agencies' staffing profiles or other workforce information, or personal information that relates to intelligence product or an agency's activities. If the NIC agencies were required to comply with the Privacy Act in relation to those disclosures - for example, by notifying the person that their information was being disclosed to ONI - it would significantly hinder ONI's ability to perform its functions.
26. Further, the amendment is limited to what is necessary to achieve these objectives. It only applies to the Department of Home Affairs, the AFP and AUSTRAC, on the basis that they will be required to provide information to ONI on a regular basis, and is further limited to the parts of those agencies that fall within ONI's remit. The Bill does not provide a complete exemption for those agencies, but only an exemption where those agencies are disclosing personal information to ONI for the purposes of its functions.
27. Further protections also apply to information once it has been received by ONI, including strict secrecy laws that in many ways provide greater protections than the Privacy Act, and the application of the privacy rules required to be made under section 53 of the ONI Bill. Therefore, the Bill does not have the effect of intruding on privacy in an unwarranted or unreasonable basis.
Expanded ability to share information with ONI
28. This Bill also engages the right to privacy by including amendments to the Australian Crime Commission Act 2002 and the Australian Border Force Act 2015 to allow those agencies to share information with ONI for the purpose of it performing its functions.
29. These amendments are designed to achieve the same legitimate objectives as set out above. First, they go towards ensuring national security by enabling agencies to provide information to assist it in promoting the collective performance of the NIC agencies through its leadership and enterprise management functions; and secondly to promote well-informed and rigorous policy making by the Australian government through preparing assessments on the basis of all available information.
30. The amendments are reasonable, necessary and proportionate to achieve those objectives. Both amendments ensure that it remains within the discretion of the Secretary of the Department (in the case of the Australian Border Force) and the CEO (of the ACIC) to determine whether or not it is appropriate to share information. ONI must comply with the privacy rules required to be made under section 53 of the ONI Bill in relation to identifiable information, and individuals are subject to strict secrecy obligations in relation to all ONI information.
Access to the assumed identities regime
31. The Bill further engages the right to privacy by including ONI in the assumed identities regime in Part IAC of the Crimes Act 1914 for the purposes of its open source function in paragraph 7(1)(g) of the ONI Bill. The Bill limits this right by giving ONI a greater ability to collect information, including personal information, than it would otherwise have without access to assumed identities.
32. However, the limitation is directed to a legitimate purpose, which is the performance of ONI's role as a centre of excellence for open source intelligence, as recommended by the 2017 Review.
33. The limitation of the right to privacy goes no further than is reasonable, necessary and proportionate to achieve this purpose. ONI will be subject to the same accountability requirements under the assumed identities regime as other agencies with access to that regime, including record keeping, review, auditing and reporting requirements, and oversight by the IGIS. Adding ONI to the legislation promotes accountability and transparency.
34. ONI's functions include collecting, interpreting and disseminating information relating to matters of political, strategic or economic significance to Australia that is accessible to any section of the public. The reference to 'accessible to any section of the public' captures information that is generally available to the public, including information that requires conditions to be met before it can be accessed, for example, the payment of a fee or membership of a group. It is not intended to extend to sources of information that are essentially private or personal in nature.
35. Similarly, the Open Source Centre's focus is at the strategic level, for example, observing online discourse regarding foreign political or electoral processes; trends in online terrorist propaganda and narratives; and state-based interactions in particular geographic areas. The Open Source Centre's collection is about what people are saying cumulatively rather than the individuals involved; access to the assumed identities regime, which may be necessary to access platforms where such discussions are occurring, will not change this focus.
36. Any limitation of the right to privacy will be minimal, as use of assumed identities will be limited to the performance of ONI's open source function, which only enables ONI to collect information that is publicly available, rather than private information.
Right to freedom of expression - Article 19(2) of the ICCPR
37. Article 19(2) of the ICCPR stipulates that all individuals shall have the right to freedom of expression. This Bill amends secrecy provisions in the Australian Crime Commission Act 2002 and the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 to remove potential restrictions on the ability of the Australian Border Force and the ACIC to share information with ONI in certain circumstances.
38. By allowing the ACIC and the Australian Border Force to share information in a wider range of circumstances, these provisions engage but do not limit the right to freedom of expression in Article 19(2) of the ICCPR.