Explanatory Memorandum
(Circulated by authority of the Treasurer, the Hon Peter Costello MP)Outline and Financial Impact Statement
The Intelligence Services Act 2001 ('the ISA') came into force on 29 October 2001. The ISA stemmed largely from the 1995 Commission of Inquiry into the Australian Secret Intelligence Service (ASIS) - one of the key findings of this Inquiry was the need for a legislative base for ASIS. The ISA also established legislative bases for the activities of the Defence Signals Directorate (DSD), and for the Parliamentary Joint Committee on the Australian Security Intelligence Organisation (ASIO), ASIS and DSD (PJCAAD), which replaced the former Parliamentary Joint Committee on ASIO.
In March 2004, the Prime Minister announced an independent review of the Australian foreign intelligence community including, inter alia, the effectiveness of oversight and accountability mechanisms; the suitability of the current division of labour among the agencies; the contestability of intelligence assessments and the adequacy of current resourcing of intelligence agencies. Mr Philip Flood AO conducted the Inquiry into Australian Intelligence Agencies ('the Flood Inquiry') and submitted his report to the Prime Minister in July 2004. The Government subsequently agreed to accept the recommendations of the Flood Inquiry, with the exception of the proposal to change the name of the Office of National Assessments (ONA).
The Bill implements several recommendations from the Flood Inquiry that require legislative amendments to be implemented, namely:
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- The mandate of the PJCAAD should be extended to all of Australia's intelligence agencies - that is, it should also cover ONA, the Defence Intelligence Organisation (DIO) and the Defence Imagery and Geospatial Organisation (DIGO) on the same basis as it currently covers ASIO, ASIS and DSD. The parliament may consider renaming the committee as the Parliamentary Joint Committee on Intelligence and Security.
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- The functions and ministerial accountabilities of DIGO should be formalised in legislation by amendments to the ISA. Similarly, the Inspector-General of Intelligence and Security Act 1986 ('the IGIS Act') should be amended to include scrutiny of DIGO on a basis comparable with that which applies to DSD and ASIS.
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- The mandate of the Inspector-General of Intelligence and Security (IGIS) should be extended to allow IGIS to initiate inquiries at his or her own discretion into matters relating to ONA and DIO without ministerial referral, consistent with the IGIS jurisdiction in respect of ASIO, ASIS and DSD. The Inspector-General should also conduct a periodic review of ONA's statutory independence.
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- The Office of National Assessments Act 1977 ('the ONA Act') should be amended to remove the references to two assessments board - the National Assessments Board and the Economic Assessments Board - to reflect the reality that there is only one National Assessments Board which covers strategic, political and economic issues, but with provision for different composition according to subject matter. The Act should also be amended to strengthen ONA's community coordination role in section 5(1)(d).
The Government has also agreed that this legislative package include the further amendments that have been agreed as a result of a review of the ISA coordinated by the Department of the Prime Minister and Cabinet (PM&C). This review was initially suggested in the 2002 and 2003 Annual Reports of the IGIS. These reports recommended a review of the operation of the ISA on the basis that its application had shown some refinement was needed. In addition, increased public interest in the activities of intelligence agencies and the ability of some agencies to impact on the privacy of Australians warranted an examination and fine-tuning of accountability mechanisms.
In August 2004, the PJCAAD proposed to the Government that it consider a number of changes to that committee, including an increase in the size of the committee and other adjustments to help the PJCAAD respond to its increasing workload. The Government agreed that these proposals would be considered in the context of the wider review of the ISA. As a result, the Government has agreed that the committee's membership be increased from seven to nine, a position of Deputy Chair be established, and the committee be empowered to establish subcommittees when required.
Financial impact statement
The amendments made by the Intelligence Services Legislation Amendment Bill 2005 have no financial impact.
Notes on sections and schedule items
Section 1: Short title
The short title of this Act is the Intelligence Services Legislation Amendment Act 2005.
Section 2: Commencement
This section provides a table that identifies the day of commencement for each item which is noted in the explanation for each item.
Sections 1 to 3 are technical provisions and will commence on Royal Assent.
Amendments listed in Schedules 1, 2, 3, 4, 5, 6, 7 and 8 to, respectively, the Intelligence Services Act 2001, the Inspector-General of Intelligence and Security Act 1986, the Office of National Assessments Act 1977, the Australian Security Intelligence Organisation Act 1979, the Telecommunications (Interception) Act 1979, the Privacy Act 1988, the Freedom of Information Act 1982, as well as the consequential amendments to the Archives Act 1983, the Australian Security Intelligence Organisation Act 1979, the Crimes Act 1914, the Crimes (Overseas) Act 1964, the Criminal Code Act 1995 and the Human Rights and Equal Opportunity Commission Act 1986, will commence on the 28th day after the day this Act receives the Royal Assent.
Section 3: Schedule(s)
This section provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule.
Schedule 6 - Privacy Act 1988
The purpose of this schedule is to amend the Privacy Act 1988 ('the Privacy Act') to provide DIGO with a similar standing under that legislation to the other intelligence collection agencies. This is consistent with the recommendation by the Flood Inquiry that DIGO be put on a proper legislative footing. This schedule also extends the exemption currently provided to ASIO and ASIS under section 7(1A) of the Privacy Act to DSD.
Item 1
In line with the proposed amendments to the Freedom of Information Act 1982 in Schedule 7 of this Bill, this item changes reference in this section to Division 1 Part 1 of Schedule 2.
Item 2
This item preserves the current application of the Privacy Act to acts done by DIGO, DIO and DSD, which may otherwise have been affected by the changes made in Schedule 7 of the Bill.
Item 3
This item amends the paragraph to include reference to the Defence Imagery and Geospatial Organisation.
Item 4
This item creates a new paragraph 7(1A)(c) to include reference to the Defence Signals Directorate of the Department of Defence.
Item 5
This item amends the paragraph to include reference to Defence Imagery and Geospatial Organisation.
Schedule 7 - Freedom of Information Act 1982
The purpose of this schedule is to amend the Freedom of Information Act 1982 ('the FOI Act') to provide DIGO with a similar standing under that legislation to the other intelligence collection agencies. This is consistent with the recommendation by the Inquiry into Australian Intelligence Agencies in 2004 that DIGO be put on a proper legislative footing.
The various intelligence agencies are currently treated differently under the FOI Act. ASIO, ASIS and ONA are exempt agencies under the FOI Act by virtue of being listed in Part I of Schedule 2 to the FOI Act. Subsection 7(1) of the FOI Act provides that these agencies are exempt from the operation of the FOI Act. They do not have to comply with the procedural requirements of the Act. DSD and DIO, on the other hand, are treated as an integral part of the Department of Defence. The Department is the agency for FOI purposes. By virtue of subsection 7(2) and being listed in Part II of Schedule 2 to the FOI Act, documents relating to the activities of DSD and DIO are exempt. However, the Department of Defence must still comply with the procedural requirements of the FOI Act. That is, it must respond to an FOI request on behalf of DSD and DIO in accordance with the FOI Act timeframes, and give written reasons for refusing access to any documents which the applicant sought. These access decisions are subject to internal review and Administrative Appeals Tribunal merits review.
These amendments to the FOI Act result in all intelligence agencies being treated alike. DIGO is included in Part I of Schedule 2 and DSD and DIO are moved from Part II to Part I of Schedule 2. All intelligence agencies are then fully exempt from the operation of the FOI Act.
Items 1, 2 and 3
These items insert definitions of DIGO, DIO and DSD into the FOI Act.
Items 4 and 5
These items reflect the changed structure of Part 1 of Schedule 2 and moves the current list of exempt agencies from Part 1 to Division 1 of Part 1.
Item 6
This item creates a new subsection 7(1A) which provides clarity in relation to the definition of agency as it applies to a part of the Department of Defence specified in Division 2 of Part I of Schedule 2 to the FOI Act.
Item 7
This item amends the subsection to include reference to the Defence Imagery and Geospatial Organisation.
Item 8
This item amends the subsection to include new paragraphs 16(2)(c) and 16(2)(d) which provide for requests relating to a document that originated with, or has been received from, a part of the Department of Defence specified in Division 2 of Part I of Schedule 2 to the FOI Act, to be transferred to that Department.
Item 9
This item amends the subsection to include new paragraphs 51C(2)(c) and 51C(2)(d) which provide for applications relating to a document that originated with, or has been received from, a part of the Department of Defence specified in Division 2 of Part I of Schedule 2 to the FOI Act, to be transferred to that Department.
Item 10
This item inserts a new heading 'Division 1' after the heading of 'Part 1' in Schedule 2.
Item 11
This item amends Part I of Schedule 2 to add a new Division 2. Division 2 is comprised of the Defence Imagery and Geospatial Organisation, the Defence Intelligence Organisation and the Defence Signals Directorate.
Item 12
This item amends Part II of Schedule 2 to omit reference to the Department of Defence, in relation to documents in respect of activities of the Defence Intelligence Organisation and the Defence Signals Directorate.
Schedule 8 - Consequential amendments of other Acts
This schedule has two purposes. The first is to implement a series of consequential amendments to the Archives Act 1983, the Australian Security Intelligence Organisation Act 1979, the Crimes Act 1914, the Crimes (Overseas) Act 1964, the Criminal Code Act 1995 and the Human Rights and Equal Opportunity Commission Act 1986 to provide DIGO with a similar standing under those Acts to the other intelligence agencies. This is consistent with the recommendation by the Inquiry into Australian Intelligence Agencies that DIGO be put on proper legislative footing.
The second purpose is to achieve consequential changes to references in the ASIO Act to reflect the proposal, in Schedule 1, to change the name of the Parliamentary Joint Committee on ASIO, ASIS and DSD to the Parliamentary Joint Committee on Intelligence and Security. This name change was also recommended by the Inquiry into Australian Intelligence Agencies.
Part 1 - Consequential amendments relating to DIGO
These items amend the section to include reference to DIGO in the definition of intelligence or security agency to ensure consistency with the other agencies being excluded from the federal spent convictions scheme, for the purpose of in-depth security clearance of staff members.
This item amends the subsection to include reference to DIGO.
This item amends the subsection to state that DIGO means that part of the Department of Defence known as the Defence Imagery and Geospatial Organisation.
This item includes 'contractor' in the definition of staff member in relation to ASIS and DSD.
This item includes a definition of staff member in relation to DIGO.