House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)

Schedule 2

ASIS support to the ADF and related measures

Statutory functions of ASIS (items 1A to 2)

147. Item 1A inserts a new section 3A in the IS Act. New section 3A will expressly disapply the general rule of interpretation in section 19A of the Acts Interpretation Act 1901 (AIA). If section 19A of the AIA applied to references to Ministers in the IS Act, it would mean that all references to Ministers are to be interpreted as including all of the Ministers who are appointed to administer the portfolio with responsibility for the particular matter. (That is, a reference in a provision to 'the Minister' would include the relevant senior portfolio Minister, as well as all junior portfolio Ministers and Parliamentary secretaries who may be appointed from time-to-time.)

148. In disapplying section 19A of the AIA to the IS Act, new section 3A will expressly limit references in the IS Act to the relevant responsible Minister to only the most senior Minister administering the relevant portfolio (namely, the Foreign Minister and the Defence Minister). In the case of references to individual Ministers in the IS Act (namely, the Prime Minister and the Attorney General), proposed section 3A will provide that these references are to be read as including only the Minister with that title. Proposed section 3A will also provide guidance on the interpretation of the phrase 'the Minister responsible for administering the Australian Security Intelligence Organisation Act 1979' as it is used in the IS Act. This is to be interpreted as a reference only to the most senior such Minister (which is presently, and has to date been, the Attorney General). The note to proposed section 3A makes clear that the general rule of interpretation in section 19 of the AIA continues to apply to the IS Act. (Section 19 of the AIA provides a general rule of statutory interpretation that a reference to a Minister includes a person appointed as an acting Minister.)

149. The insertion of new section 3A implements the Government's response to recommendation 15 of the Parliamentary Joint Committee on Intelligence and Security Report on the Bill. The Government accepted the Committee's recommendation that references to the relevant responsible Ministers for matters in the IS Act should be expressly limited to the relevant senior portfolio Ministers, to the exclusion of junior portfolio Ministers and Parliamentary secretaries. That is, the Committee considered that the relevant responsible Ministers should be as follows: the Minister for Foreign Affairs in relation to ASIS; the Minister for Defence in relation to AGO and ASD; and the Attorney General in relation to ASIO.

150. The Government agrees with the Committee that it is appropriate that decision-making and other administrative powers, functions and duties conferred or imposed by the IS Act are exercisable, or are required to be performed, only by the senior portfolio Minister who has day-to-day responsibility for the relevant matter, to the exclusion of junior portfolio Ministers or Parliamentary secretaries who may not, and may therefore have limited visibility or understanding of the relevant matters. This is particularly important in relation to the issuing of Ministerial authorisations, including emergency authorisations, enabling agencies to collect intelligence on Australian persons overseas (and in the case of ASIS, undertaking activities which have a direct effect on Australian persons), given the significance of these decisions.

151. New section 3A will remove the risk that a court, if ever called upon to interpret the provisions of the IS Act referring to responsible Ministers, may favour a broader construction that includes all junior portfolio Ministers. This risk is open because there is currently ambiguity as to whether the general rule of interpretation in section 19A of the AIA applies to references to Ministers in the IS Act. As these provisions of the IS Act have always been intended to include only the relevant senior portfolio Minister, new section 3A will ensure that the intended meaning is given express effect, and will not result in any substantive change of practice.

152. Item 1 of Schedule 2 amends subsection 6(1) of the IS Act to make explicit that it is a statutory function of ASIS to provide assistance to the Defence Force in support of military operations, and to cooperate with the Defence Force on intelligence matters. This replicates an identical provision in paragraph (7)(d) of the IS Act, which confers such a function on ASD.

153. Item 2 is a consequential change which amends subsection 6(7) to remove specific reference to ASIS's support to the Defence Force, which no longer needs to be highlighted. This does not mean that subsection 6(7) no longer has any application to the ADF. Where relevant subsection 6(7) of the IS Act can still apply to ASIS's support to the ADF (as it is a Commonwealth authority).

154. In its advisory report on the Bill, the Parliamentary Joint Committee on Intelligence and Security suggested that the EM be revised to explain why the IS Act already prohibits IS Act agencies including ASIS from engaging in conduct constituting torture or cruel, inhuman or degrading treatment or punishment in contravention of Australia's international obligations

155. The explicit function conferred upon ASIS in no way changes the prohibition in subsection 6(4) against ASIS engaging in violence against the person which would include torture or cruel, inhuman or degrading treatment or punishment.

156. Such conduct would not be in the proper performance of a function of ASIS, nor would it be in the proper performance of a function of any other IS Act agency as required by section 12 of the IS Act. Accordingly, such conduct would not fall within the protection against civil or criminal liability under section 14 of the IS Act.

Class authorisations (items 4, 8-11, 17, 22, 26, 31)

157. Items 4, 8-11, 17, 22, 26 and 31 amend sections 8, 9, 10 and 10A of the IS Act to enable the Minister responsible for ASIS to give an authorisation to undertake activities for the specific purpose or for purposes which include the specific purpose of producing intelligence on a specified class of Australian persons or to undertake activities or a series of activities that will, or is likely to, have a direct effect on a specified class of Australian persons. The arrangements for class authorisations will only apply to support to the ADF following a request from the Defence Minister. Any support to foreign authorities could only arise in the context of support to the ADF. The usual individual authorisation arrangements apply to all other ASIS activities.

158. In giving the authorisation relating to the specified class, the Minister responsible for ASIS must be satisfied of the preconditions set out in subsection 9(1) of the IS Act. The Minister must also be satisfied that the class relates to support to the Defence Force in military operations as requested by the Defence Minister and that all persons in the class of Australian persons will or are likely to be involved in one or more of the activities set out in paragraph 9(1A)(a).

Limitations on classes of persons subject to authorisations

159. In its advisory report on the Bill, the Parliamentary Joint Committee on Intelligence and Security recommended further explanation on the limitations that apply to the classes of Australian persons who are able to be the subject of a Ministerial authorisation enabling ASIS to provide assistance to the ADF in support of a military operation.

160. There are a number of limitations and safeguards in relation to the issuing of class authorisations. When seeking a class authorisation, first, the Defence Minister must request the Foreign Minister to provide an authorisation in relation to a class of Australian persons to support the ADF in military operations.

161. The Foreign Minister must then be satisfied that the class of persons is involved, or is likely to be involved, in an activity of the type specified in paragraph 9(1A)(a). In practice, this can only be a class of Australian persons who are, or are likely to be, involved in activities which are, or are likely to be, a threat to security, as that term is defined in section 4 of the Australian Security Intelligence Organisation Act 1979 (ASIO Act). Relevantly, 'security' means the protection of, and of the people of, the Commonwealth and the several States and Territories (as well as the carrying out of Australia's responsibilities to any foreign country) in relation to any of the following matters:

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espionage

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sabotage

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politically motivated violence

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promotion of communal violence

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attacks on Australia's defence system

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acts of foreign interference, or

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the protection of Australia's territorial and border integrity from serious threats.

162. As the activities relate to a threat to security, the Attorney-General must further provide his or her agreement to the issuing of the Ministerial authorisation. By this point, three Ministers will have scrutinised the class of persons.

163. Further, a class of persons is defined solely by reference to the involvement, or likely involvement, of all of its members in activities that are, or are likely to be, a threat to security, and not the personal or situational characteristics of individual persons (such as religious, political or ideological orientation, ethnicity, or mere presence in a particular location).

164. A person who is not involved in an activity of this type is, by definition, not within the class of persons to which the authorisation relates. Therefore, it is not enough for the Minister to be satisfied that one or more members of the class are so involved, but rather that the entire class is so involved. If a Ministerial authorisation was purportedly issued in relation to a class of Australian persons that was not involved in activities which are, or are likely to be, a threat to security, it would be invalid, and there would be no legal basis on which to support any activities undertaken in reliance upon it.

165. Once the authorisation is issued, ASIS must then make decisions about whether individual Australians in relation to whom it proposes to undertake activities in reliance on the authorisation are within the specified class. Activities undertaken in reliance on a class authorisation are subject to the independent oversight of the Inspector-General of Intelligence and Security (IGIS), as well as reporting obligations to the Foreign Minister (under proposed subsection 10A(3) in amending item 31 of Schedule 2 to the Bill).

166. If ASIS incorrectly determined that an Australian person was within the class of Australian persons specified in an authorisation, its activities in relation to that person would not be supported by the authorisation. This could affect the ability of an ASIS staff member or agent to rely on the protection from civil or criminal liability under section 14 of the IS Act. It would also be subject to administrative accountability, such as adverse findings by the IGIS and potential remedial action directed by the Minister.

167. In addition, in undertaking its functions in relation to a class of Australian persons, ASIS is limited by the other provisions in the IS Act. This includes subsection 6(4) (prohibition on violence against the person) and also subsection 11(1), which provides that the "functions of the agencies are to be performed only in the interests of Australia's national security, Australia's foreign relations or Australia's national economic well-being and only to the extent that those matters are affected by the capabilities, intentions or activities of people or organisations outside Australia".

168. An example of a class of Australian persons who may be the subject of an authorisation would be Australian persons who are, or are likely to be, members of the ISIL terrorist organisation and who are, or are likely to be, fighting with that organisation or are otherwise supporting that organisation in its military operations.

169. The authorisation must be in writing and must specify how long it will have effect, but must not exceed six months. It can be renewed in writing but each renewal must not be for a period exceeding six months.

170. The Director-General of ASIS must ensure that a copy of the request from the Defence Minister and a copy of the authorisation is kept by ASIS and is available for inspection on request by the IGIS.

171. The Minister may vary or cancel the authorisation at any time in writing.

172. The Minister must consider cancelling the authorisation where advised by the relevant agency head that the grounds for the authorisation have ceased to exist. For this purpose, section 10 of the IS Act is amended to state that the grounds would cease to exist where the Minister for Defence withdraws his request for ASIS support to the Defence Force or the Defence Force is no longer deployed on the operation to which the original request related.

173. In relation to each class authorisation, the Director-General must give the Minister a written report in respect of activities undertaken by ASIS during the period of the authorisation which must be provided as soon as practicable, and no later than three months, after the authorisation ceased to have effect or the renewal of the authorisation. The amendments to section 10A of the IS Act reflect the current ASIS practice which is to provide a report to the Minister whenever an individual authorisation is renewed and add a requirement that this be provided as soon as practicable. This specific reporting requirement will ensure that the Minister has appropriate visibility of the relevant activities, and that reports are provided as soon as practicable within the relevant three-month period, and not merely at any time within three months (as is required for reports on activities undertaken pursuant to a Ministerial authorisation issued under section 9, as per subsection 10A(2)).

174. The other limits on ASIS continue to apply, including under:

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subsections 6(4) and 6(6) if the IS Act (prohibition on paramilitary activities, violence against the person, or the use of weapons by ASIS staff members and agencies, other than the provision and use of weapons or self-defence techniques in accordance with Schedule 2); and

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sections 11, 12 and 13 of the IS Act.

175. The privacy rules under section 15 of the IS Act would continue to apply in relation to an Australian person within the class of Australian persons.

Class agreement of the Attorney-General (Item 14)

176. The agreement of the Attorney-General, as the Minister responsible for ASIO, is also required to the granting of an authorisation where the relevant Australian person is, or is likely to be, involved in an activity or activities that are, or are likely to be, a threat to security. As a related amendment, subsection 9(1A) will be amended to enable the Attorney-General to provide agreement to a ministerial authorisation for an IS Act agency in relation to an individual Australian person, or an identified class of Australian persons. This amendment will have a broader application than solely where ASIS is providing assistance to the ADF in support of military operations. For example, it might also be relevant in other situations such as a class of Australian persons involved in people smuggling.

177. Item 14 adds new subsections 9(1AA), (1AB) and (1AC) of the IS Act to specify that the Attorney-General, as the Minister responsible for ASIO, can choose to give, in writing, his or her agreement in relation to the Minister responsible for an IS Act agency authorising an activity to produce intelligence in relation to a particular class of Australian persons - as an alternative to the existing requirement that the Attorney-General provide agreement to the Minister authorising an activity for an individual Australian person.

178. Similarly, the Attorney-General can choose to give his or her agreement in relation to the Minister responsible for ASIS authorising an activity that will, or is likely to, have a 'direct effect' on a particular class of Australian persons in circumstances where they are, or are likely to be involved in activities that are, or are likely to be, a threat to security.

179. The class agreement may specify the period for which it could have effect, and is subject to renewal. Where the period of effect of a class agreement ceases, this will not mean that a ground on which the authorisation was issued has ceased to have effect. However, once the period of an agreement has ceased, no new authorisations may be made in reliance on that agreement. A new agreement would need to be sought to support a new authorisation.

180. The comments above in relation to class authorisations apply equally to class agreements provided by the Attorney-General. In particular, the class of Australian persons is defined solely by reference to the involvement, or likely involvement, in activities that are, or are likely to be, a threat to security. A person who is not so involved is by definition not in the class and is therefore unable to be the subject of a class agreement. Therefore, it is not enough for the Attorney-General to be satisfied that one or more members of the class are so involved, but rather that the entire class is so involved.

181. Any advice provided to the Attorney-General about the provision of a class agreement is subject to the independent oversight of the IGIS.

Technical and consequential amendments (items 6, 12, 13, 15, 16, 17)

182. Items 6, 13, 15 and 17 make a number of technical amendments (relating primarily to the re-ordering of provisions) to accommodate the insertion of the new authorisation and class agreement provisions outlined above.

183. Item 6 inserts a new heading in section 9, to make clear that subsection 9(1) sets out the preconditions for the issuing of an authorisation.

184. Item 12 clarifies the existing position that the Attorney-General's agreement to the issuing of a Ministerial authorisation under paragraph 9(1A)(b) of the IS Act can be provided orally or in writing, and updates this provision to make reference to the requirement in new subsection 9(1AA) of the IS Act that any class agreement provided by the Attorney-General is required to be in writing. This form requirement is an appropriate and proportionate requirement to ensure appropriate record-keeping arrangements in relation to class agreements, noting that such agreements would generally be provided as part of broader planning or preparations for activities, rather than in urgent circumstances.

185. Item 13 is a technical amendment that inserts a note, at the end of subsection 9(1A), to cross-refer to the meaning of a defined term ('serious crime') that is used in the activities specified in paragraph 9(1A)(a) of the IS Act, in respect of which a Ministerial authorisation can be issued. It is consequential to item 15, which repeals the relevant provision currently containing this note, subsection 9(1B). Subsection 9(1B), which defines terms used in subsection 9(1A) is consolidated into new subsection 9(7) (inserted by item 17).

186. In addition, item 17 (together with item 16) repeals existing subsection 9(5) and inserts new subsections 9(4A)-(6). These provisions deal with the technical and form-related matters currently in subsections 9(4) and 9(5), which require authorisations to be issued in writing, and impose obligations on the relevant agency head to retain copies of the authorisation and provide them to the IGIS. In addition, item 17 extends these provisions to cover authorisations made in relation to ASIS support for the ADF, a request from the Defence Minister, and agreements provided by the Attorney-General.

187. Item 17 further clarifies, by the insertion of new subsection 9(6), that requests, authorisations, and the Attorney-General's agreement to the issuing of an authorisation are not legislative instruments. This is declaratory of the non-legislative character of such instruments.

Emergency authorisations (items 18, 29, 30, 31)

188. Items 18, 29, 30 and 31 implement the key amendments in relation to emergency authorisations.

189. Item 18 repeals and substitutes section 9A (Ministerial authorisations in an emergency) and inserts new section 9B (contingency if authorising Ministers are unavailable) and new section 9C (contingency if the Attorney-General is unavailable to provide agreement to the making of an emergency Ministerial authorisation).

190. Items 29, 30 and 31 insert reporting requirements in section 10A in relation to emergency authorisations issued under sections 9A and 9B.

Section 9A - authorisations in an emergency - Ministerial authorisations (item 18)

Circumstances in which an emergency authorisation may be issued under section 9A

191. New section 9A applies if the requirements in subsection (1) exist. There must exist an emergency situation in which an agency head considers it necessary or desirable to undertake an activity or series of activities. There must also exist a direction issued by the responsible Minister for the relevant agency, under subsection 8(1), that requires the agency to obtain an authorisation under section 9, 9A or 9B before undertaking the relevant activity or series of activities.

192. Authorisations in relation to classes of persons to undertake the activities specified in new subparagraphs 8(1)(a)(ia) and (ib) are excluded from the emergency Ministerial authorisation scheme. This is in recognition that any authorisation of activities under these subparagraphs, in relation to classes of persons, should be sought and obtained in advance of the commencement of the relevant ADF operations or activities (such as in the course of planning) or otherwise in circumstances that do not constitute an emergency. An emergency authorisation could still be sought in relation to an individual if there were no applicable class authorisation in effect.

Issuing criteria, form of issuing, record keeping and notification requirements

193. In the event that the requirements of subsection (1) are satisfied, subsection (2) operates to provide that a Minister specified in subsection (3) may orally give an authorisation if (subject to section 9C) the conditions in subsections 9(1) and 9(1A) are met.

194. As the note to subsection (2) clarifies, new section 9C operates to provide for contingency arrangements if the Attorney-General is not readily available or contactable in order to provide his or her agreement to the making of an authorisation, where such agreement is required by paragraph 9(1A)(b) (because the relevant Australian person in relation to whom the activity is proposed to be undertaken is, or is likely to be involved in, activities that are, or are likely to be, a threat to security).

195. The ability of relevant Ministers to orally issue an emergency authorisation removes an identified limitation in the emergency authorisation provisions, which may preclude their timely issuing, having regard to the time critical circumstances in which the emergency authorisation scheme is designed to operate. Despite the availability of instantaneous, or close to instantaneous, forms of written communication by electronic means (such as via email or SMS), there may nonetheless arise circumstances in which it is neither possible nor practicable for a Minister to issue an authorisation by those means. (This may occur, for example, if the authorising Minister is only contactable by telephone or videoconference by reason of his or her remote location; or if the circumstances are of such urgency that the time required for an authorisation to be drafted may mean that the opportunity to conduct the relevant activity is lost or compromised.)

196. It is appropriate that the legislative framework for the issuing of emergency authorisations should accommodate this possibility, given the potentially serious, adverse consequences to Australia's security and other vital national interests should an intelligence agency miss an opportunity to collect critical intelligence as a result of delay occasioned by a form-related requirement.

197. The ability to issue emergency authorisations on an oral basis is consistent with established practice in the issuing of numerous types of law enforcement warrants (including search, telecommunications interception and surveillance warrants), and for authorisations issued by the Attorney-General enabling ASIO to conduct special intelligence operations under the ASIO Act.

198. Subsection (5) provides that the agency head must ensure that a written record of an oral authorisation is made as soon as practicable after the authorisation is given, and no later than 48 hours after this time. The agency head is further required to give to the IGIS a copy of the record within three days of the giving of the authorisation. These requirements ensure that records are made of emergency authorisations within a short time of their making, while accommodating the legitimate operational need for flexibility in the form in which such authorisations are issued. The IGIS notification requirement ensures that the IGIS is afforded an opportunity to exercise his or her statutory oversight powers in relation to an emergency authorisation, and the activities carried out in reliance upon it, from an early stage.

199. The term 'practicable' is used to denote the intention that records must be made as soon as possible, unless the first (or subsequent) available opportunity is not feasible or viable having regard to the circumstances of the particular case. (For example, on an assessment of any significant opportunity cost in making a record at a particular point in time - for example, if making the record at a particular time in question would require the diversion of operational resources from undertaking the relevant activities in accordance with the emergency authorisation.)

Ministers who may issue an emergency authorisation

200. Subsection (3) provides that the Ministers who may issue an emergency authorisation are either the Minister responsible for the relevant IS Act agency, or if the relevant agency head is satisfied that the responsible Minister is not readily available or contactable, any of the Prime Minister, Foreign Minister, Defence Minister or Attorney-General. This reflects the requirements in the existing subsection 9A in relation to the Ministers who may issue emergency authorisations.

Period of effect

201. Subsection (4) provides that an emergency authorisation has a non-renewable maximum duration of 48 hours. An emergency authorisation will therefore cease to have effect at the earlier of the 48 hour maximum, or when an authorisation for the activity or series of activities is given under section 9.

202. The strictly limited maximum duration of 48 hours makes clear that the arrangements provided for in new subsection 9A are of an extraordinary nature, and are designed only to operate in time critical circumstances. The expectation is that, if it is considered necessary to carry out the relevant activities after 48 hours, the agency must obtain an ordinary Ministerial authorisation, from their responsible Minister, in accordance with the requirements of section 9.

Section 9B - authorisations in an emergency - Ministers unavailable (item 18)

203. New section 9B provides for the contingency that none of the Ministers specified in subsection 9A(3) are readily available or contactable to issue an emergency Ministerial authorisation under section 9A. In these instances, section 9B enables the relevant agency head to issue an emergency authorisation. This will ensure that emergency authorisations can be granted, subject to appropriate safeguards, notwithstanding that none of the available Ministers are readily available or contactable.

204. The ability of an agency head to grant an emergency authorisation under section 9B is not delegable, ensuring that the only persons who can issue emergency authorisations are those who have overall control of, and responsibility for, the relevant agency and are subject to the special duties in section 12A. (Section 12A imposes an obligation on IS Act agency heads to ensure that their respective agencies are kept free of any influences or considerations not relevant to activities that are necessary for the proper performance of their agency, or authorised or required by another Act. IS Act agency heads are further obliged to ensure that nothing is done that might lend colour to any suggestion that their respective agency is concerned to further or protect the interests of any particular section of the community, or a suggestion that the agency is undertaking activities other than those which are necessary for the proper performance of the agency's functions, or authorised or required by another Act.)

Circumstances in which section 9B applies

205. Subsection (1) provides that the arrangements in subsection 9B are available if the agency head considers it necessary or desirable to undertake an activity or series of activities, an emergency Ministerial authorisation is sought under section 9A, and the agency head is satisfied that none of the Ministers specified in subsection 9A(3) are readily available or contactable.

206. This requirement ensures that the ability for agency heads to issue an emergency authorisation is limited to those cases in which it is strictly necessary, because there would otherwise be no ability to obtain the relevant emergency authorisation. Importantly, it requires the agency head to make reasonable attempts to contact a relevant Minister, by seeking an authorisation under section 9A, and satisfying himself or herself that none of the relevant Ministers listed in subsection 9A(3) are readily available or contactable. The actions of an agency head under subsection 9B(1) will be subject to the independent oversight of the IGIS, as well as Ministerial accountability.

Authorisation criteria

207. Subsection (2) sets out the criteria for the issuing of emergency authorisations by agency heads under section 9B. An agency head may give an authorisation if satisfied of the matters set out in paragraphs (a)-(c). These are that:

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the facts of the case would justify the responsible Minister in relation to the relevant agency given an authorisation under section 9 because (subject to section 9C) the agency head is satisfied that the conditions in subsections 9(1) and (1A) are met; and

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the responsible Minister would have given the authorisation; and

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if the activity or activities is not undertaken before an ordinary (section 9) or emergency (section 9A) Ministerial authorisation is issued - security (within the meaning of that term in section 4 of the ASIO Act) will be, or is likely to be, seriously prejudiced; or there will be, or is likely to be a serious risk to a person's safety.

208. These criteria ensure that the ability of agency heads to issue emergency authorisations is limited to those extraordinary circumstances in which such an authorisation is necessary and proportionate to a legitimate operational need. In particular, the agency head must be satisfied that not only would it be open to the responsible Minister to issue an authorisation (on the basis of the criteria in subsections (1) and (1A) of section 9), but also that the responsible Minister would have done so. This ensures that an agency head will expressly consider the particular way in which the relevant Minister was likely to exercise the discretion (including consideration of the weight the Minister would be likely to have placed on relevant matters).

209. The ability of agency heads to issue emergency authorisations is further limited to those circumstances in which there would be serious prejudice to security or a serious risk to a person's safety. This effectively limits authorisations issued under section 9B to circumstances of the most urgent kind, consistent with the fact that section 9B is a contingency arrangement for those instances in which Ministerial decision makers are unavailable.

210. Importantly, issuing decisions made by agency heads under section 9B will be subject to the independent statutory oversight of the IGIS in accordance with the IGIS Act, in addition to Ministerial accountability.

211. Paragraph 9B(2)(a) provides that the agency head must be satisfied that the requirements in subsections 9(1) and (1A) are met. This includes, subject to section 9C, the requirement in paragraph 9(1A)(b) that the Attorney-General's agreement must be obtained to the issuing of an authorisation in relation to activities that involve, or are likely to involve, an Australian person whose activities are, or are likely to be, a threat to security (as that term is defined in section 4 of the ASIO Act).

212. As the note to subsection 9B(2) makes clear, section 9C relevantly requires the agency head to obtain the agreement of the Director-General of Security (if readily available or contactable) to the making of an authorisation under section 9A or 9B where the relevant agency head is satisfied that the Attorney-General is not readily available or contactable. The combined effect of paragraph 9B(2)(a) and section 9C is significant because it ensures that, where a proposed authorisation is also relevant to matters of security, the decision maker is provided with all relevant information in relation to Australian persons and security (of which the decision maker may not have had visibility) and that all authorisation decisions take account of such information.

Content and form

213. Subsection 9B(3) provides that an authorisation given under section 9B may be given in relation to the same matters as an ordinary (non-emergency) authorisation may be given under subsection 9(2) (being a specified activity or class of activities; acts of a staff member or agent, or a class of such persons whether identified by name or otherwise; and activities done for a particular purpose connected with the agency's functions).

214. Subsection 9B(3) further provides that an authorisation given under section 9B is subject to the requirements in subsection 9(3) (which are that an authorisation is subject to any conditions specified in it) and new subsection 9(4A) (which is that an authorisation must be in writing). These requirements are appropriate safeguards, in that agency heads can, in appropriate cases, place further limitations on the activities or other matters specified in an authorisation in the form of conditions. In addition, the requirement that emergency authorisations issued under section 9B are in writing ensures appropriate standards of record keeping in the circumstances, having regard to the status of the decision maker as an agency head rather than a Minister, as is the case under section 9A.

Notifying the responsible Minister

215. Subsection 9B(4A) requires an agency head who has issued an emergency authorisation under section 9B to notify the relevant responsible Minister in relation to the agency within eight hours of giving the authorisation. This is in addition to the requirements in subsection 9B(6) that the relevant responsible Minister must be provided with the documents in proposed subsection 9B(5) as soon as practicable within 48 hours of the giving of the authorisation (and that the IGIS must be provided with that documentation as soon as practicable within three days of the authorisation).

216. Subsection 9B(4A) implements the Government's response to recommendation 9 of the Parliamentary Joint Committee on Intelligence and Security Report on the Bill. The Committee supported a fixed, eight-hour maximum period in which the relevant responsible Minister must be notified (while retaining the existing period for the provision of documentation to that Minister and the IGIS). The Government has accepted this recommendation, and accepts the Committee's view that this shorter timeframe would give stronger effect to the paramount principle of Ministerial responsibility and accountability for authorisations issued under the IS Act.

72. In retaining the existing maximum timeframes for the provision of documents to the relevant responsible Minister and the IGIS (namely, as soon as practicable within 48 hours and three days respectively), the Government further supports the observations of the Committee that it may not always be immediately practicable for such documentation to be prepared or provided within a fixed, eight-hour period in all cases. Separating the time limits for notification and the provision of documentation enables appropriate operational flexibility. This will allow the agency head to send, or cause the sending of, notification of a section 9B authorisation to the relevant responsible Minister at the earliest possible stage (for example, depending on the circumstances, by sending that Minister a text message or an email, or leaving a voicemail message, advising that an authorisation has been given under section 9B) with the accompanying documentation to follow as soon as practicable within 48 hours.

Period of effect

217. Subsection (4) provides that an authorisation issued under section 9B has a maximum duration of 48 hours. An emergency authorisation will end sooner if an authorisation for the activity or series of activities is given under section 9, or if the authorisation is cancelled by the responsible Minister in accordance with subsection (8).

218. This is consistent with the maximum duration for emergency Ministerial authorisations issued under new section 9A. A maximum duration of 48 hours makes clear that emergency authorisations are of an extraordinary nature, and are designed only to operate in time critical circumstances. The expectation is that, if it is considered necessary to carry out the relevant activities after 48 hours, the agency must obtain an ordinary Ministerial authorisation, from the responsible Minister, in accordance with the requirements of section 9.

Copies of authorisation and other documents

219. Subsections (5) and (6) provide that the agency head must give certain documents to the responsible Minister as soon as practicable and no later than within 48 hours of the giving of the authorisation; and to the IGIS as soon as practicable and no later than within three days of the giving of the authorisation. These documents are a copy of the authorisation itself, a summary of the facts of the case that the agency head was satisfied justified giving the authorisation under section 9B, and an explanation of the Minister's obligation under subsection (7). (Under subsection (7), the Minister is obliged to consider, as soon as practicable after being given the documents, whether to cancel the authorisation under subsection (8); or give a new authorisation for the activities or series of activities under section 9 or 9A; or, by necessary implication, to allowing the emergency authorisation to simply continue to run until it expires 48 hours after issuing.)

220. These provisions ensure that the responsible Minister has appropriate early awareness and oversight of the making of emergency authorisations by the relevant agency head. Not only must the Minister be notified of the authorisation within eight hours of the making of an emergency authorisation, and provided with documentation as soon as practicable but he or she is under a positive obligation to make a decision about whether it should be cancelled, replaced with a Ministerial authorisation (of an emergency or ordinary variety as considered appropriate in the circumstances) or allowed to run to its maximum duration of 48 hours and cease in accordance with paragraph 9B(4)(c). The relevant agency head is under an obligation (which is subject to scrutiny by the IGIS) to bring this obligation to the Minister's attention and explain it, as part of providing notice of the authorisation under subsection (5).

221. Subsections (5) and (6) further ensure that the IGIS is afforded an opportunity to exercise his or her statutory oversight powers in relation to the issuing of emergency authorisations under section 9B in a timely way. This includes an opportunity for the IGIS to scrutinise not only the grounds on which an emergency authorisation was issued under section 9B, but also the agency head's advice to the Minister in respect of the Minister's positive obligation to make a decision on continuation (or otherwise) under subsection (7).

222. Subsections (5) and (6) are of a similar effect to the existing requirements under subsection 10(2A), which apply to the agency head's duty to inform and advise the Minister if the agency head is satisfied that the grounds on which an authorisation made under section 9 have ceased to exist. (In these cases, subsection 10(2A) provides that the agency head's obligations relevantly include to inform the Minister accordingly, and as soon as practicable after being so informed, the Minister must consider cancelling the authorisation.)

223. As noted above, the term 'practicable' is used to denote the intention that the relevant documents must be provided as soon as possible within 48 hours (in the case of the Minister) or three days (in the case of the IGIS), unless the first (or subsequent) available opportunity within this maximum period is not feasible or viable having regard to the circumstances of the particular case. (For example, on an assessment of any significant opportunity cost in providing documents at a particular point in time - for example, if providing them at a particular time would require the diversion of operational resources from undertaking the relevant activities in accordance with the emergency authorisation.)

Responsible Minister must consider cancelling authorisation or giving new authorisation

224. Subsection (7) provides that the Minister responsible for the relevant IS Act agency in respect of which an emergency authorisation is issued under section 9B must, as soon as practicable after being given the documents referred to in subsection (5), consider whether to exercise his or her power under subsection (8) to cancel the authorisation; or give a new authorisation for the activity or series of activities under section 9 or 9A.

225. This provision ensures that the Minister retains appropriate oversight and control of the activities of the agency for which he or she is responsible, and in particular does so by placing a positive obligation on the Minister to determine whether the emergency authorisation should continue for its maximum duration of up to 48 hours, be cancelled, or be replaced by a Ministerial authorisation of either an emergency (s 9A) or ordinary (s 9) kind.

Oversight by Inspector-General of Intelligence and Security

226. Subsection 9B(8A) provides that the IGIS must, within 30 days of being given the relevant documentation accompanying an agency head's decision to give a section 9B emergency authorisation, consider whether the agency head complied with the requirements of section 9B. The IGIS must also provide the relevant responsible Minister for the agency with a report on the IGIS's views of the extent of the agency head's compliance, and provide the Parliamentary Joint Committee on Intelligence and Security with a copy of the conclusions in that report.

227. This subsection implements the Government's response to recommendations 10 and 11 of the Parliamentary Joint Committee on Intelligence and Security Report on the Bill. The Government accepts these recommendations, and agrees that it is important the IGIS conducts oversight of emergency authorisations issued by agency heads. In recognition of the exceptional nature of such authorisations, and the intention they should be used rarely, the Government further agrees it would be appropriate for the Committee to be informed of the issuing of such authorisations and the IGIS's views on the extent of compliance with the requirements of proposed section 9B.

228. The Government notes that it is exceptional to confer an express oversight requirement on the IGIS, outside the general provisions of the IGIS Act. An important part of the statutory independence of the IGIS is the discretion of the IGIS to determine his or her oversight priorities within the statutory mandate of the IGIS Act. However, following consultation with the IGIS, the Government is satisfied that subsection 9B(8A) would not unduly compromise the independence of the IGIS, given the extraordinary and rare nature of the emergency authorisation provisions in proposed section 9B. In addition, the requirement in subsection 9B(8A) that the IGIS reports to the responsible Minister, and provides a copy of the conclusions in that report to the Parliamentary Joint Committee on Intelligence and Security, promotes consistency with the statutory role of the IGIS to report to Ministers and to the Parliament through Ministers. This requirement further promotes consistency with the statutory remit of the Committee, which does not include oversight of operational matters. It is intended that the IGIS's conclusions, as provided to the Committee, will not include operational information.

Responsible Minister may cancel authorisation

229. Subsection (8) invests the Minister with discretion to cancel, in writing, an emergency authorisation issued by an agency head under section 9B.

230. This provision, in conjunction with subsections 9B (4)-(7) ensure that the responsible Minister has appropriate oversight and control over emergency authorisation decisions made by the head of the relevant agency under section 9B. Not only must the Minister be informed of the making of an authorisation under section 9B within eight hours, but he or she must also be specifically advised of his or her powers to decide to allow an emergency authorisation to continue, or to cancel it, or to replace it with a new Ministerial authorisation made under section 9 or section 9A. Further, the Minister is under a positive obligation to consider whether or not to exercise these powers, as soon as practicable after being provided with the relevant documents containing this advice.

Status of instruments

Subsection (9) provides that an authorisation, a cancellation and reports prepared under section 9B are not legislative instruments. This provision is declaratory of the non-legislative character of such decisions and reports, and has been included to assist readers in this regard.

Section 9C - authorisations in an emergency - ASIO Minister unavailable (item 18)

231. New section 9C provides for the further contingency that one of the Prime Minister, Foreign Minister or Defence Minister may be available to issue an emergency authorisation under section 9A, but the Attorney-General - as the Minister responsible for ASIO - is not readily available or contactable to provide his or her agreement to the making of an emergency authorisation, where such agreement is required under paragraph 9(1A)(b). (As noted above, paragraph 9(1A)(b) is imported into the requirements of section 9A emergency authorisation by subsection 9A(2). It applies if the proposed activity relates to an Australian person who is, or who is likely to be, involved in activities that are, or are likely to be, a threat to security, as that term is defined in section (4) of the ASIO Act.)

Circumstances in which section 9C applies

232. Subsection (1) provides that section 9C applies if the conditions in paragraphs (a)-(c) are met. These are that:

•

an agency head considers it necessary or desirable to undertake an activity or series of activities;

•

an authorisation is sought under section 9A or 9B; and

•

all of the following apply:

•

the agreement of the Attorney-General (as Minister responsible for administering the ASIO Act) is required to be obtained under paragraph 9(1A)(b);

•

the agreement has not been obtained; and

•

the agency head is satisfied that the Attorney-General is not readily available or contactable.

233. These requirements make clear that section 9C is intended to operate as an exceptional, contingency measure in those circumstances in which the Attorney-General is unavailable and an authorisation is sought in time critical circumstances of emergency. Section 9C does not, and is not designed to, circumvent the usual requirements of paragraph 9(1A)(b).

Giving authorisation

234. Subsection (2) explains the effect of section 9C on the requirement in paragraph 9(1A)(b). It provides that, where subsection 9C applies, the authorisation may, subject to subsection (3), be given without obtaining the agreement of the Attorney-General.

Obtaining the agreement of the Director-General of Security

235. Subsection (3) provides that, before an authorisation is given under section 9A or section 9B, the agency head must obtain the agreement of the Director-General of Security to the authorisation being given, unless the agency head is satisfied that the Director-General is not readily available or contactable.

236. The requirement that the agreement of the Director-General of Security must be obtained to the making of an authorisation that concerns activities relevant to security will ensure that the decision maker is provided with all relevant information in relation to Australian persons and security (of which the decision maker may not have had visibility), and that all authorisation decisions take account of such information. The requirement that the agency head must be satisfied the Director-General is readily available and contactable also provides for appropriate operational flexibility, in that authorisations can be made in the absence of the Director-General's agreement if the relevant agency head is not satisfied that the Director-General is readily available or contactable.

Notifying the ASIO Minister and the IGIS

237. Subsection (4) provides that the relevant agency head must notify the Attorney-General and the IGIS that an authorisation was given under section 9C. The notification must specifically state whether the agreement of the Director-General of Security was obtained to the issuing of the authorisation. These provisions ensure that there is an appropriate opportunity for Ministerial oversight by the Attorney-General, as the Minister responsible for ASIO, and appropriate independent oversight by the IGIS.

238. The term 'notify' conveys the expectation that the agency head must provide (within eight hours to the Minister, and as soon as practicable within three days to the IGIS) basic factual information as to the issuing of an authorisation and the provision (or otherwise) of the necessary agreement, and that this does not need to be a detailed advice or a report (noting that provision is already made for the provision of documentation under proposed section 9B).

239. Subsection (5) provides that notification to the Attorney-General must be provided no later than eight hours after the authorisation is issued.

240. Notification to the IGIS must be provided as soon as practicable and no later than three days after the authorisation is given. The term 'practicable' is used to denote the intention that this advice must be provided to the IGIS as soon as practicable within the three day maximum period, unless the first (or next subsequent) available opportunity within this maximum is not feasible or viable having regard to the circumstances of the particular case. (For example, on an assessment of any significant opportunity cost in providing the advice a particular point in time - for example, if providing advice at a particular time would require the diversion of operational resources from undertaking the relevant activities in accordance with the emergency authorisation.)

241. Subsection 9C(5) implements the Government's response to recommendation 12 of the Parliamentary Joint Committee on Intelligence and Security Report on the Bill. The Committee recommended (consistent with its recommendation 9 in relation to emergency authorisations), a maximum timeframe of eight hours should apply to an IS Act agency head's duty to notify the ASIO Minister of the issuing of an emergency authorisation with the agreement of the Director-General of Security under section 9C (because the ASIO Minister was not readily available and contactable) or without any agreement where permitted under section 9C (because neither the ASIO Minister nor the Director-General of Security were readily available or contactable). The Government accepts the Committee's view that a maximum timeframe of eight hours gives effect to the paramount principle of Ministerial responsibility and accountability for emergency authorisations and agreements given under the IS Act.

242. In addition, separating the time limits for the notification of the ASIO Minister (within eight hours) and the IGIS (as soon as practicable within three days) enables an appropriate degree of operational flexibility. This will allow the agency head to send, or cause the sending of, notification to the relevant responsible Minister at the earliest possible stage (for example, depending on the circumstances, by sending a text message or an email, or leaving a voicemail message, advising that authorisation has been issued with the Director-General's agreement, or with no agreement) with further notification to be provided to the IGIS as soon as practicable within three days, and documentation to be provided to the relevant responsible Minister under section 9B as soon as practicable within 48 hours (and to the IGIS as soon as practicable within three days).

Oversight by Inspector-General of Intelligence and Security

243. Subsection (6) implements the Government's responses to recommendations 13 and 14 of the Parliamentary Joint Committee on Intelligence and Security Report on the Bill, which contain similar arrangements for IGIS and Committee oversight of emergency section 9B authorisations (per the Committee's recommendations 10 and 11).

244. In particular, subsection 9C(6) provides that the IGIS must, within 30 days of being given notification under paragraph 9C(5)(b), consider whether the agency head complied with the requirements of section 9C. The IGIS must further provide the responsible Minister with a report on his or her views on the extent of the agency head's compliance, and provide a copy of the conclusions in that report to the Committee.

245. The Government accepts the recommendation and reasoning of the Committee that it is important the IGIS conducts oversight of agreements given under proposed 9C (or instances in which an emergency authorisation is given without agreement in purported compliance with proposed section 9C). In recognition of the exceptional nature of the measures in proposed section 9C, and the intention that the provision should only be used rarely, the Government further agrees it would be appropriate for the Committee to be informed of those instances in which it is used (complementary to its proposed role in relation to emergency authorisations issued under proposed section 9B).

246. The Government notes it is exceptional to confer a new oversight requirement on the IGIS outside the general provisions of the IGIS Act, having regard to the independence of the IGIS (which necessarily requires discretion to independently determine oversight priorities). The Government does not intend to create a precedent in this regard, but rather is of the view that subsection 9B(8A) and subsection 9C(6) do not unduly compromise the independence of the IGIS because proposed sections 9B and 9C are intended to be used very rarely.

247. Similarly, proposed subsection 9C(6) requires the IGIS to provide a report to the responsible Minister and copy of the conclusions in that report to the Parliamentary Joint Committee on Intelligence and Security in recognition of the IGIS's role to report to Ministers, and to the Parliament through Ministers. Subsection 9C(6) further maintains consistency with the statutory remit of the Committee, which excludes examination of operational matters. It is intended that the conclusions in the reports of the IGIS would not include operational information.

Section 10A - reporting requirements - emergency authorisations (items 29-31)

248. Item 29 extends the obligation on agency heads in subsection 10A(1) to give to the responsible Minister a written report on each activity or series of activities carried out in reliance on a Ministerial authorisation issued under section 9, to cover activities carried out in reliance on an authorisation issued under section 9A or section 9B. This will ensure that the responsible Minister continues to have appropriate visibility of activities carried out in reliance on emergency authorisations.

249. Item 30 makes a technical amendment to subsection 10A(2), to accommodate new subsections 10A(3) and (4), as inserted by item 31 (discussed above).

250. Item 31 also inserts new subsection 10(4), which provides that reports in respect of activities undertaken in reliance on an emergency authorisation issued under section 9A or section 9B must be provided to the relevant Minister as soon as practicable, but no later than one month after the day on which the authorisation ceased to have effect. The shorter reporting period compared to that in section 10A(2), which applies to Ministerial authorisations issued under section 9, is proportionate to the limited maximum duration (48 hours) of emergency authorisations, and thereby ensures an appropriate degree of Ministerial oversight of emergency authorisations. (The term 'practicable', for the purpose of new subsection 10(4), is intended to have the same meaning as outlined above in this Explanatory Memorandum. That is, as soon as possible unless the first or subsequent opportunity is not feasible in the circumstances of the case, having regard to all relevant considerations.)

Technical and consequential amendments - emergency authorisations (items 3, 5, 19, 20, 21, 23, 24, 25, 27, 28)

251. Items 3 and 5 make technical amendments to paragraphs 8(1)(a) and 8(1)(b) (Ministerial directions requiring agency heads to obtain Ministerial authorisation under section 9, in relation to the activities specified in those paragraphs) to make reference to the new emergency Ministerial authorisation provisions in sections 9A and 9B. These amendments will ensure that Ministers must issue written directions to the relevant agency head, requiring the agency to obtain an authorisation under section 9 (ordinary Ministerial authorisation) or 9A or 9B (emergency authorisation) in relation to the activities listed in subsection 8(1).

252. The remaining items listed above (19, 20, 21, 23, 24, 25, 27 and 28) make largely technical amendments to the provisions of section 10 (the period during which an authorisation has effect etc) and section 10A (Ministerial reporting on authorised activities) to make clear the specific requirements applying to Ministerial authorisations issued under section 9, which are discrete to those applying to emergency authorisations issued under section 9A or section 9B.

253. In particular, these items make clear that the existing requirements set out in section 10 (period of effect of a Ministerial authorisation) apply exclusively to ordinary (non-emergency) Ministerial authorisations issued under section 9. This is because provision is made for the requirements applicable to emergency authorisations issued under section 9A or 9B in those sections (as per the commentary on item 18 above).

Reviews of counter-terrorism powers - functions of the Parliamentary Joint Committee on Intelligence and Security (item 32)

254. Item 32 amends the IS Act to provide for the Parliamentary Joint Committee on Intelligence and Security to review certain provisions in Commonwealth legislation by 7 March 2018. This item completes the implementation of Recommendations 13 and 21 of the Parliamentary Joint Committee on Intelligence and Security Report on the Foreign Fighters Bill.

255. Item 32 removes existing paragraph 29(1)(bb) from the IS Act and replaces it with new paragraph 29(1)(bb). While paragraph 29(1)(bb) provides for the Committee to review the questioning warrant, and questioning and detention warrant scheme in Division 3 of Part III of the ASIO Act by 7 March 2018, it does not require the Committee to review Division 3A of Part IAA of the Crimes Ac t, the control order regime in Division 104 of the Criminal Code or the preventative detention order regime in Division 105 of the Criminal Code as required by Recommendation 13, or the declared areas offence and the related provision authorising the making of declarations in Division 119 as required by Recommendation 21.

256. This amendment rectifies that omission and fully implements Recommendations 13 and 21 of the Parliamentary Joint Committee on Intelligence and Security Report on the Foreign Fighters Bill by requiring inquiry into each of the listed measures, including any other provision as far as it relates to the relevant provisions, by 7 March 2018.