House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Home Affairs, the Honourable Karen Andrews MP)

GENERAL OUTLINE

1. The Bill implements the Government response to a number of recommendations of the Comprehensive Review of the Legal Framework of the National Intelligence Community (Comprehensive Review) led by Dennis Richardson AC. The measures in the Bill improve the legislative framework governing the National Intelligence Community (NIC) by addressing key operational challenges facing the Australian Security Intelligence Organisation (ASIO), the Australian Secret Intelligence Service (ASIS), the Australian Signals Directorate (ASD), the Australian Geospatial-Intelligence Organisation (AGO), the Defence Intelligence Organisation (DIO) and the Office of National Intelligence (ONI). The Bill also includes amendments recommended by the 2017 Independent Intelligence Review (IIR) and other measures intended to address important and pressing issues facing these agencies.

2. The Bill includes the following measures:

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Schedule 1 enables ASIS, ASD and AGO to immediately undertake activities to produce intelligence where there is, or is likely to be, an imminent risk to the safety of an Australian person.

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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.

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Schedule 3 enables ASD and AGO to seek ministerial authorisation to undertake activities to produce intelligence on an Australian person or a class of Australian persons where they are assisting the Australian Defence Force (ADF) in support of military operations.

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Schedule 4 inserts new provisions which:

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Amend the requirement for ASIS, ASD and AGO to obtain ministerial authorisation to produce intelligence on an Australian person to circumstances where the agencies seek to use covert and intrusive methods, which include methods for which ASIO would require a warrant to conduct inside Australia.

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Make explicit the long-standing requirement for ASIS, ASD and AGO to seek ministerial authorisation before requesting a foreign partner agency to produce intelligence on an Australian person.

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Schedule 5 enhances the ability of ASIS to cooperate with ASIO in Australia when undertaking less intrusive activities to collect intelligence on Australian persons relevant to ASIO's functions, without ministerial authorisation.

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Schedule 6 amends section 13 of the Intelligence Services Act 2001 to provide that, for the purposes of carrying out its non-intelligence functions, AGO is not required to seek ministerial approval for cooperation with authorities of other countries.

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Schedule 7 requires ONI to obtain Director-General approval when undertaking cooperation with public international organisations.

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Schedule 8 extends the period for passport suspension and foreign travel document surrender from 14 to 28 days, to allow sufficient time for ASIO to prepare a security assessment.

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Schedule 9 extends the immunity provisions provided 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.

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Schedule 10 requires DIO to have legally binding privacy rules, requires ASIS, ASD, AGO and DIO to make their privacy rules publicly available, and updates ONI's privacy rules provisions so that they apply to intelligence about an Australian person under ONI's analytical functions.

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Schedule 11 includes ASD in the Assumed Identities scheme contained in the Crimes Act 1914.

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Schedule 12 clarifies the meaning of an 'authority, of another country' in the Intelligence Services Act 2001.

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Schedule 13 permits 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 1979, clarifies the permissible scope of classes under section 12 of that Act and under section 24 of the Australian Security Intelligence Organisation Act 1979, and introduces additional record-keeping requirements regarding persons exercising the authority conferred by all relevant ASIO warrants and relevant device recovery provisions.

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Schedule 14 makes technical amendments related to the Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Act 2018.

3. The Bill amends the:

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Intelligence Services Act 2001 (IS Act)

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Criminal Code Act 1995 (Criminal Code)

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Crimes Act 1914 (Crimes Act)

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Australian Passports Act 2005 (Passports Act)

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Foreign Passports (Law Enforcement and Security) Act 2005 (Foreign Passports Act)

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Office of National Intelligence Act 2018 (ONI Act)

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Inspector-General of Intelligence and Security Act 1986 (IGIS Act)

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Australian Security Intelligence Organisation Act 1979 (ASIO Act), and

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Telecommunications (Interception and Access) Act 1979 (TIA Act).

FINANCAL IMPACT

4. The Bill has nil financial impact.

COMMON ABREVIATIONS AND ACRONYMS