Explanatory Memorandum
(Circulated by the authority of the Minister for Defence, Senator the Hon Marise Payne)Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Bill 2018 (the Bill) implements the recommendations of the 2017 Independent Intelligence Review (the Review) to establish the Australian Signals Directorate (ASD) as an independent statutory agency within the Defence portfolio reporting directly to the Minister for Defence.
In broad terms, the Bill will separate ASD from the Department of Defence, and establish it as an independent statutory agency under the control of the Director-General of ASD. The Bill will also amend ASD's functions to bring the Australian Cyber Security Centre (ACSC) into ASD, in accordance with recommendation 3(b) of the Review. Related to the transition of ACSC, the national computer emergency response team (CERT) and its functions relating to cyber policy and security will also be transferred from the Attorney-General's Department to ASD. CERT was established in 2010 as the national computer emergency response team, and is the primary government contact point for major Australian businesses in relation to matters involving cyber security.
Specifically, the Bill implements the recommendations of the Review by:
- a)
- amending ASD's functions to include providing material, advice and other assistance to any person listed in the Act (rather than Commonwealth and State authorities only) on matters relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means, which will allow the ACSC to liaise with industry;
- b)
- amending ASD's functions to include preventing and disrupting cybercrime. This section will provide ASD with a function to prevent and disrupt, by electronic or similar means, the use of information and communication technologies to commit or facilitate serious crime by people or organisations outside Australia. Serious crimes, such as child exploitation and illicit narcotics, will be captured by this new function;
- c)
- establishing ASD on a statutory basis, and providing provisions for the appointment of the Director-General of ASD to control ASD and its staff;
- d)
- requiring the Director-General of ASD brief the Leader of the Opposition about matters relating to ASD;
- e)
- giving the Director-General of ASD powers to employ persons as employees of ASD under this Bill (outside the framework of the Public Service Act 1999);
- f)
- amending other legislation as appropriate to replace references to 'Director of ASD' with 'Director-General of ASD', and to remove references to the Department of Defence.
In relation to the employment of staff, ASD would operate outside of the Public Service Act 1999 (Public Service Act) framework. This will provide ASD with greater flexibility to recognise the skills of its specialised workforce. This structure will reflect the need to retain those individuals with highly sought after skills, such as those with STEM (science, technology, engineering and maths) qualifications. The Bill will allow for transfers of employment from ASD to the Australian Public Service. ASD will be required under the Bill to adopt the principles of the Public Service Act in relation to employees of ASD to the extent the Director-General of ASD considers they are consistent with the effective performance of the functions of ASD.
The Bill also includes an additional function for ASD, to protect the specialised technologies and capabilities acquired in the performance of its other functions. To carry out its functions to obtain intelligence, provide assistance to the Australian Defence Force, to assist other Commonwealth and State authorities, and to combat cybercrime, ASD uses specialised tools. ASD needs to be able to protect those tools to ensure their ongoing utility and protect Australia's national interests.
Human rights implications
The Bill engages the right to privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which provides:
- (1)
- No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
- (2)
- Everyone has the right to the protection of the law against such interference or attacks.
The use of the term 'arbitrary' means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted 'reasonableness' to imply that any limitation must be proportionate and necessary in the circumstances. The right to privacy can be limited by necessity in a democratic society in the interests of national security or the protection of the rights and freedoms of others.
As a result of the Bill, a number of consequential amendments, which are necessary following the establishment of ASD, have also been identified. The most notable amendment in terms of human rights implication relates to the proposed amendments to the Australian Communications and Media Authority Act 2005 (ACMA Act), which is necessary following the transfer of the functions of CERT from AGD to ASD.
CERT was established in 2010 as the national computer emergency response team, and is the primary government contact point for major Australian businesses in relation to matters involving cyber security. Currently, an Australian Communications and Media Authority (ACMA) official authorised by the Chair of ACMA may disclose 'authorised disclosure information' to a number of authorities specifically listed in section 59D if the Chair is satisfied that the information will enable or assist the authority to perform or exercise any of its functions or powers. The term 'authorised disclosure information' includes information that was given in confidence to ACMA in connection with the performance of its functions, or obtained by ACMA as a result of the exercise of any of its powers. The ACMA Act allows ACMA officials authorised by the Chair to disclose 'authorised disclosure information' to Australian Public Service employees in CERT whose duties relate to telecommunications or law enforcement.
Following the transfer of functions of CERT from AGD to ASD, it is necessary to amend the ACMA Act to allow ACMA officials authorised by the Chair to disclose 'authorised disclosure information' to ASD. This change may engage the right to privacy, as ASD has been added to the list of specific authorities able to receive information under the ACMA Act.
However, the amendment pursues the legitimate objective of protecting the rights and freedoms of individuals and businesses. Specifically, the amendment protects Australians and Australian businesses through enabling the performance of CERT functions in providing material, advice and other assistance to any person relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means or cybersecurity.
The amendment only goes so far as necessary in affecting the right to privacy. First, only an ACMA official authorised by the Chair of ACMA may disclose 'authorised disclosure information' to a number of authorities specifically listed in section 59D. Second, the Chair of ACMA must be satisfied that the information will enable or assist the authority to perform or exercise any of its functions or powers. Lastly, the Chair of ACMA may impose written conditions on the disclosure of 'authorised disclosure material' to the listed authorities. For example, a condition could be imposed that the information must not be further disclosed by the authority that receives it.
Therefore, the Bill does not have the effect of intruding into privacy on an unwarranted or unreasonable basis. The inclusion of ASD in the disclosure provisions would not be arbitrary, as it would be limited to what is necessary to perform any of its functions or powers, and it would need to be in compliance with conditions set by the Chair of ACMA.
Articles 6(1), 7 and 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Right to work
The right to work is the right of all people to have the opportunity to gain their living through decent work they freely choose, allowing them to live in dignity. It provides:
- (1)
- that everyone must be able to freely accept or choose their work, including that a person must not be forced in any way to engage in employment;
- (2)
- a right not to be unfairly deprived of work, including minimum due process rights if employment is to be terminated; and
- (3)
- that there is a system of protection guaranteeing access to employment.
Right to just and favourable conditions of work
The right to just and favourable conditions of work provides that all workers
have the right to just and favourable conditions of work, particularly adequate and fair remuneration, safe working conditions, and the right to join trade unions.
Currently, ASD as part of the Department of Defence, operates under the framework of the Public Service Act. Under the proposed arrangements, ASD would operate outside the Public Service Act framework. Instead, the Director-General of ASD would be given the power to employ by written agreement such employees of ASD as the Director-General thinks necessary for the purposes of the Act, and may determine the terms and conditions on which employees are to be employed. The Director-General may also, at any time, terminate the employment of a person employed by him/her.
This change may affect the right to just and favourable conditions of work, as the employees are no longer under the Public Service Act framework, but instead under the determinations of the Director-General as he/she sees appropriate.
However, the amendment pursues the legitimate objective of providing ASD with greater flexibility to recruit, retain, train, develop and remunerate its specialist staff, in accordance with the recommendations of the 2017 Independent Intelligence Review. For ASD, the option of continuing to operate within the Public Service Act employment framework, even with some specific exemptions, is not the most effective way forward. It would increase the risk of losing additional critical talent, skills and capabilities.
An important safeguard has been included in the Bill to ensure that the new ASD employment framework would not be arbitrary. Under section 38F, The Director-General of ASD must adopt the principles of the Public Service Act in relation to employees of ASD to the extent to which the Director-General considers they are consistent with the effective performance of the functions of ASD. This has the effect of protecting ASD employees, similar to the protection received by public servants employed under the Public Service Act.
There are two additional measures to safeguard workers. First, the Fair Work Act 2009 will continue to apply to ASD employees and provide them with an avenue for redress for their employment-related grievances. In addition, the Inspector-General of Intelligence and Security (IGIS) will be given powers to investigate complaints regarding employment-related grievances from ASD employees. At present, the IGIS is not able to investigate these complaints, and ASD employees can seek redress through the Public Service Commissioner or the Merit Protection Commissioner. After 1 July 2018, ASD employees can bring their grievances to the IGIS in the same way as for ASIO and ASIS employees.
Therefore, the Bill does not have the effect of intruding into the right to work on an unwarranted or unreasonable basis.
Conclusions
The Bill is compatible with human rights and to the extent that it limits some rights, those limitations are reasonable, necessary and proportionate in achieving a legitimate objective.