Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Daryl Williams AM QC MP)GENERAL OUTLINE
This Bill amends the Australian Security Intelligence Organization Act 1979 (the ASIO Act), the Financial Transaction Reports Act 1988 (the FTR Act), the Inspector-General of Intelligence and Security Act 1986 (the IGIS Act), the Taxation Administration Act 1953 (the TAA Act) and makes minor consequential amendments to other Acts arising from the change in spelling of 'Organization' in the title of ASIO. The amendments are intended to enable ASIO to utilise available technology and to access important sources of information in performing its statutory functions.
The amendments made by the Bill to the ASIO Act may be summarised as:
- (i)
- allowing the Minister to issue warrants which may authorise ASIO to:
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- remotely access data that is relevant to security and is stored in a computer specified in the warrant;
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- use a tracking device to assist the Organisation in collecting intelligence relevant to security; or
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- examine an article being delivered by a delivery service provider.
- (ii)
- providing ASIO with authority to enter premises for the purpose of removing a listening device or a tracking device which has been installed under warrant;
- (iii)
- amending provisions dealing with search warrants to:
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- simplify the description of the matters about which the Minister must be satisfied before issuing a warrant;
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- clarify ASIO's authority to use a computer found on the premises being searched;
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- extend the maximum period a warrant may remain in force from 7 to 28 days; and
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- permit the Minister to defer the commencement of a warrant for up to 28 days;
- (iv)
- amending provisions dealing with the collection of foreign intelligence in Australia by making provision for the new categories of warrant introduced in the Bill and allowing the Minister to authorise ASIO to collect such intelligence by means that do not require the authority of a warrant, such as human sources;
- (v)
- extending the authority of the Director-General of Security to issue certain warrants in an emergency;
- (vi)
- allowing the Director-General of Security to charge fees to recover the cost of providing advice or services to persons at their request;
- (vii)
- permitting ASIO to communicate security assessments in relation to the 2000 Olympics or Paralympics directly to State authorities;
- (viii)
- simplifying the communication of criminal intelligence given to ASIO by overseas partner agencies to Australian law enforcement agencies;
- (ix)
- providing for the making of regulations which will permit review bodies to consider decisions affecting former staff as well as current employees and allow immunity from civil proceedings to be conferred on review bodies;
- (x)
- revising the penalty provisions in the ASIO Act so that pecuniary penalties may be calculated according to the relevant formula in the Crimes Act 1914; and
- (xi)
- changing the spelling of 'Organization' in the title of ASIO to 'Organisation'.
The amendments to the FTR Act contained in Schedule 4 will give ASIO access to FTR information held by the Australian Transaction Reports and Analysis Centre (AUSTRAC). The Bill allows the Director of AUSTRAC to authorise ASIO to have access to FTR information for the purpose of performing ASIO's functions. The authorisation is to state the FTR information or class of FTR information to which ASIO has access. Provision is also made for the responsibilities of the Inspector-General of Intelligence and Security in relation to ASIO.
The amendments to the IGIS Act contained in Schedule 5 will:
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- make the monitoring role of the Inspector-General of Intelligence and Security (the Inspector-General) explicit;
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- allow the Inspector-General to remove taxation and identifying financial transaction reports information from his reports to Ministers;
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- streamline clearance procedures when providing a written response to a complainant; and
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- permit disclosure of information by the Inspector-General if the safety of a person may be at risk.
This Bill will amend the TAA Act (Schedule 6) to allow the Commissioner of Taxation to disclose tax information, with safeguards, to the Director-General of Security or persons employed under paragraphs 84(1)(a) or (b) of the Australian Security Intelligence Organisation Act 1979 (ASIO officers) provided the Commissioner is satisfied that the information is relevant to the performance of ASIO's functions under subsection 17(1) of that Act.
The amendments will give ASIO officers similar access to taxation information as law enforcement agencies now have under the Act. The amendments will allow ASIO officers to record and divulge or communicate the information in specified circumstances to law enforcement agencies and the Inspector-General of Intelligence and Security or one of his officers in specified circumstances.
Financial Impact
It is not expected that the Bill will have a direct financial impact.
NOTES ON CLAUSES
Clause 1 is a formal item which provides for the short title of the Bill.
The Bill commences on the day that it receives Royal Assent except as provided for in subsections (2) to (6) which take into account the commencement of other legislation.
This item explains that, subject to section 2, each Act specified in a Schedule is amended or repealed as set out in the Schedule concerned.
Schedule 4 - Amendment of the Financial Transaction Reports Act 1988 (the FTR Act)
This item adds section 27AA which provides for ASIO to access FTR information.
Subsections 27AA(1) to (3) allow the Director of AUSTRAC to authorise ASIO to have access to FTR information for the purpose of performing ASIO's functions. The authorisation is to state the FTR information or class of FTR information to which ASIO has access. An authorisation under s27AA(1) will permit ASIO officers authorised by the Director-General of Security to access that information in accordance with the authorisation.
Subsection 27AA(4) prohibits an ASIO officer who obtains FTR information from divulging or communicating it other than to the following persons, for the purposes of or in connection with the performance of those persons' duties:
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- a police officer;
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- an IGIS officer; and
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- another ASIO officer.
When the person is no longer an ASIO officer, the person is prohibited from making a record of the information or divulging or communicating it in any circumstances.
Subsection 27AA(5) prohibits an IGIS officer who obtains FTR information from divulging or communicating it except to:
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- another IGIS officer for the purposes of or in connection with the performance of that officer's duties in relation to ASIO or its employees;
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- to the Director-General in a draft report under section 21 of the IGIS Act in relation to ASIO or its employees;
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- to Ministers or a complainant in a report under sections 22 or 23 of the IGIS Act in relation to ASIO or its employees, but only in a manner that does not identify and is not reasonably capable of being used to identify a person to whom the information relates; or
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- to Ministers or the Director-General in a report under section 25A of the IGIS Act.
When the person is no longer an IGIS officer the person is prohibited from making a record of the information or divulging or communicating it in any circumstances.
Subsection 27AA(6) proscribes requiring an ASIO or IGIS officer to produce in a court any document containing FTR information or divulge or communicate FTR information to any court.
Subsection 27AA(7) makes it an offence for an ASIO or IGIS officer or former officer to make a record of, divulge or communicate information in breach of section 27AA, subject to a penalty of two years imprisonment.
Subsections 27(6) to (13) deal with the use by a police officer of FTR information obtained from ASIO.
Subsection 27AA(8) defines "ASIO", "ASIO Officer" "IGIS officer" and "police officer" for the purposes of section 27AA.
Schedule 6 - Amendment of the Taxation Administration Act 1953 (the TAA Act)
These items add definitions to section 2. Added definitions are "ASIO", "ASIO officer", "authorised ASIO officer", "Director-General of Security" and "IGIS officer". The definitions are inserted to provide a framework in the TAA Act for the provision of tax information to ASIO.
This item amends subsection (1AA) of section 3B to provide for annual reporting of the number of requests received by the Commissioner of Taxation from ASIO to provide tax information and the number of times that information was disclosed under new section 3EA.
Subsection 3E(2) is amended by omitting "authorised law enforcement agency officer, or to an authorised Royal Commission officer, under subsection (1)" and substituting "officer under subsection (1) of this section or paragraph 3EA(3)(e)".
Subsection 3E(3) is amended by inserting "of this section or paragraph 3EA(3)(e)" after "subsection (1) or (2)".
Subsection 3E(4) is amended by omitting "authorised law enforcement agency officer, or to an authorised Royal Commission officer, under subsection (1)" and substituting "officer under subsection (1) of this section or paragraph 3EA(3)(e)".
These amendments to subsections 3E(2), (3) and (4) will provide that the prohibition against recording, divulging or communicating tax information obtained, and the exceptions to those prohibitions, contained in section 3E will also apply to a law enforcement agency officer who obtains tax information from an ASIO officer under new paragraph 3EA(3)(e).
Item 10 inserts new sections 3EA, 3EB and 3EC.
New Section 3EA will allow the Commissioner of Taxation to disclose tax information to an ASIO officer provided the Commissioner is satisfied that the information is relevant to the performance of ASIO's functions under subsection 17(1) of the Australian Security Intelligence Organisation Act 1979 (ASIO's 17(1) functions). Subject to exceptions, Section 3EA will also prohibit an ASIO officer, or a former ASIO officer, to whom the information is, or has been, disclosed from recording, divulging or communicating the information to another person and provides a penalty for breach of that obligation.
New Section 3EB will impose an obligation on barristers and solicitors not to record, divulge or disclose tax information where that information has been disclosed by an ASIO officer under an exception in new section 3EA. It will also impose that obligation on a person to whom the barrister or solicitor has divulged or disclosed the information under the exception to disclosure.
Section 3EC will impose obligations on the Inspector-General of Intelligence and Security holding office under Inspector-General of Intelligence and Security Act 1986 or a member of staff appointed to assist the Inspector-General (IGIS officer) in cases where tax information is disclosed to an IGIS officer by an ASIO officer under one of the exceptions in new section 3EA.
Subsection 3EA(1) overrides any taxation secrecy provisions and allows the Commissioner of Taxation to disclose tax information to an ASIO officer provided the Commissioner is satisfied that the information is relevant to the performance of ASIO's 17(1) functions.
'Tax information' means information acquired by the Commissioner under the provisions of a tax law as defined in subsection 3EA(6).
Information has its normal meaning and disclosure of information includes the production of a document or the granting of access to a document.
Subsection 3EA(2) imposes a general secrecy obligation prohibiting an ASIO officer or a former ASIO officer from recording, divulging or disclosing any tax information obtained under subsection 3EA(1) from the Commissioner of Taxation, under subsection 3EA(3) from another ASIO officer or under subsection 3EC(2) from an IGIS officer. A penalty for breach of that secrecy obligation is provided for.
Subsection 3EA(3) provides 5 exceptions to the prohibition contained in subsection (2). The exceptions apply to an ASIO officer (but not a former ASIO officer).
First, an ASIO officer may make a record of the tax information for the purposes of the performance of that officer's duties in carrying out ASIO's 17(1) functions. [New paragraph 3EA(3)(a)]
Secondly, an ASIO officer may divulge or communicate the information to another ASIO officer for the purposes of the performance of that ASIO officer's duties in carrying out ASIO's 17(1) functions. [New paragraph 3EA(3)(b)]
The ASIO officer to whom the tax information is disclosed by another ASIO officer is bound by the same secrecy obligation under subsection 3EA(2) as the ASIO officer to whom the Commissioner of Taxation disclosed the information.
Thirdly, an ASIO officer may divulge or communicate the information to a barrister or solicitor representing a person in:
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- a prosecution of a person for a tax-related offence; or
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- proceedings for the making of a proceeds of crime order;
for the purposes of, or in connection with, the prosecution or proceedings. [New paragraph 3EA(3)(c)]
The barrister or solicitor may only use the tax information as provided for in new section 3EB.
Fourthly, an ASIO officer may divulge or communicate the tax information to an IGIS officer for the purposes of, or in connection with, the performance of that IGIS officer's duties in relation to ASIO or employees of ASIO. [New paragraph 3EA(3)(d)]
The IGIS officer may only use the tax information as provided for in new section 3EC.
Fifthly, an ASIO officer may divulge or communicate the information to a law enforcement agency officer for the purposes of, or in connection with:
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- the investigation of a serious offence; or
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- an investigation relating to the making, or proposed or possible making, of a proceeds of crime order; or
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- the prosecution, or proposed or possible prosecution, of a person for a tax-related offence; or
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- the proceedings, or proposed or possible proceedings, for the making of a proceeds of crime order. [New paragraph 3EA(3)(e)]
The law enforcement officer may only use the information as provided for in amended section 3E.
Subsection 3EA(4) provides that if an ASIO officer or former ASIO officer has obtained information under subsections 3EA(1) or (3) or subsection 3EC(2) the person must not:
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- be required to divulge or communicate the tax information to a court; or
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- voluntarily give the tax information in evidence in proceedings before a court except in the course of:
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- the prosecution of a person for a tax-related offence; or
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- the proceedings for the making of a proceeds of crime order.
Subsection 3EA(5) clarifies that the expressions "the possible making of a proceeds of crime order" or "the possible proceedings for the making of a proceeds of crime order" include a reference to the making of an order, or proceedings, that are only a possibility at the time in question because the person has not been convicted of an offence to which the order relates.
Subsection 3EA(6) defines "proceeds of crime order", "serious offence", "taxation secrecy provision", "tax information", "tax law", and "tax related offence" for the purposes of the section.
Subsection 3EB(1) prohibits a person from recording, divulging or disclosing any tax information obtained under paragraph 3EA(3)(c) or subsection 3EB(2). A penalty for breach of the secrecy obligation is provided for.
Subsection 3EB(2) provides one exception in the case of a barrister or solicitor from the general secrecy obligation in subsection (1).
A barrister or solicitor will be allowed to divulge or communicate the information or make a record of the information for the purposes of or in connection with the proceedings mentioned in paragraph 3EA(3)(c).
The person to whom the barrister or solicitor divulges or communicates the tax information is also bound by the secrecy obligation is subsection 3EA(1).
Subsection 3EB(3) provides that a person who has received tax information under paragraph 3EA(3)(c) or under subsection 3EB(2) must not be required to divulge or communicate the information to a court.
Subsection 3EB(4) defines the term "tax information" for the purposes of section 3EB by reference to the definition in section 3EA.
Subsection 3EC(1) imposes a general obligation on an IGIS officer or a former IGIS officer who has obtained tax information not to record the information or divulge or communicate the information to any other person. A penalty for breach of the secrecy obligation is also provided for.
Subsection 3EC(2) provides exceptions from the general secrecy obligation in subsection (1) and allows an IGIS officer (but not a former IGIS officer) to:
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- make a record of the tax information for the purposes of the performance of the officer's duties in relation to ASIO or its employees; [new paragraph 3EB(2)(a)]
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- divulge or communicate the tax information to another IGIS officer for the purposes of or in connection with the performance of that officer's duties in relation to ASIO or its employees; [new paragraph 3EC(2)(b)] and
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- divulge or communicate the tax information to the Director-General of Security in:
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- a draft report under section 21 of the IGIS Act; [new subparagraph 3EC(2)(c)(i)] or
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- a report under section 22 or 25A of the IGIS Act; [new subparagraph 3EC(2)(c)(ii)]
in relation to ASIO or its employees.
Subsection 3EC(3) clarifies that an IGIS officer (or former IGIS officer) must not be required to divulge or communicate the tax information received under section 3EA or subsection 3EC(2) to a court or to voluntarily give the information in evidence before a court.
Subsection 3EC(4) defines "tax information" for the purposes of section 3EC by reference to the definition in section 3EA.