Explanatory Memorandum
(Circulated by authority of the Minister for Home Affairs, the Honourable Clare O'Neil MP)GENERAL OUTLINE
1. The National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023 (the Bill) would amend the Australian Security Intelligence Organisation Act 1979 (ASIO Act), the Intelligence Services Act 2001 (IS Act), the Telecommunications (Interception and Access) Act 1979 (TIA Act) and the Archives Act 1983 (Archives Act) to support intelligence agencies by:
- a.
- strengthening protections around the identity of their employees;
- b.
- improving the ability of the Australian Security Intelligence Organisation (ASIO) to communicate information, and providing additional protections for individuals through making the communication of certain information prescribed administrative action;
- c.
- increasing operational flexibility through updated approval processes for certain intelligence activities;
- d.
- clarifying provisions relating to the authorisation of certain intelligence activities; and
- e.
- providing for quicker processing of non-prejudicial security clearance suitability assessments.
2. The Bill would also promote increased oversight of our intelligence agencies by:
- a.
- promoting further oversight of the ASIO's work on security assessments and security clearance related activities under Parts IV and IVA of the ASIO Act, by requiring ASIO to notify the Inspector-General of Intelligence and Security where certain security assessments, security clearance decisions, and security clearance suitability assessments have not been made or furnished within 12 months; and
- b.
- making it clear that only the Attorney-General, and not junior ministers, can exercise certain powers under the TIA Act and ASIO Act.
3. The Bill would address 12 of the recommendations of the Comprehensive Review of the Legal Framework of the National Intelligence Community (Comprehensive Review) led by Dennis Richardson AC, relating to security assessments, the protection of identities and information, authorisations for intelligence activities, and oversight.
4. The Bill would also clarify the operation of existing provisions in the ASIO Act and the IS Act, and update the publication offence in the ASIO Act to take into account developments in technology and modern communications.
Security assessments
Schedule 1 of the Bill would amend the ASIO Act to:
- •
- extend the definition of prescribed administrative action to decisions relating to parole, firearms licences and security guard licences;
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- enable new categories of prescribed administrative action to be prescribed by the regulations;
- •
- clarify the application of the definitions in section 35 throughout Part IV;
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- enable ASIO to communicate information to a Commonwealth agency, a State or an authority of a State under subsection 18(3) or 19A(4), for the purposes of prescribed administrative action that is a decision relating to firearms licences and security guard licences;
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- clarify that a decision under the Foreign Acquisitions and Takeovers Act 1975 does not constitute prescribed administrative action;
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- enable ASIO to make a preliminary communication to Commonwealth agencies, States or authorities of a State on an urgent and temporary basis, where the information could be used for the purposes of certain prescribed administrative action; and
- •
- require ASIO to notify the Inspector-General of Intelligence and Security where certain security assessments are not furnished within 12 months.
Protecting identities and information
Schedule 2 of the Bill would amend the ASIO Act, the IS Act and the Archives Act to:
- •
- improve and enable cover employment arrangements and associated protections for current and former ASIO employees, ASIO affiliates and staff members of the Australian Secret Intelligence Service (ASIS), and Australian Signals Directorate (ASD);
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- consolidate secrecy offences relating to ASIS, ASD, the Australian Geospatial-Intelligence Organisation (AGO) and the Defence Intelligence Organisation (DIO);
- •
- make exempt under the Archives Act records that identify ASIO or ASIS employees, affiliates and agents; and
- •
- update and modernise the publication offence in the ASIO Act, which makes it an offence to make public the identity of current or former ASIO employees and affiliates, to take into account developments in technology and modern communications.
Authorisations for intelligence activities
Schedule 3 of the Bill would amend the ASIO Act, IS Act and the TIA Act to:
- •
- enable the Minister for Foreign Affairs and the Minister for Defence to authorise ASIS, ASD and AGO to undertake activities relating to an Australian person who is likely to be involved in activities that are likely to be a threat to security, before the Attorney-General gives their agreement to the authorisation. The authorisation will not take effect until the Attorney-General's agreement has been obtained;
- •
- clarify the Minister for Foreign Affairs and the Minister for Defence can authorise ASIS, ASD and AGO to undertake activities relating to an Australian person who is likely to be involved in activities that present a risk to their own safety, or are themselves involved in activities relating to a contravention of a UN sanction enforcement law;
- •
- remove the ability for a junior Minister to exercise a power under the ASIO Act or TIA Act; and
- •
- permit only the Director-General of Security to apply for an authority to conduct a special intelligence operation on behalf of ASIO.
Security vetting and security clearance related activities
Schedule 4 of the Bill would amend the ASIO Act to:
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- clarify the application of the definitions in section 82A throughout the Act;
- •
- support quicker processing of non-prejudicial security clearance suitability assessments by permitting the Director-General of Security to delegate their power or function to furnish non-prejudicial security clearance suitability assessments; and
- •
- require ASIO to notify the Inspector-General of Intelligence and Security where certain security clearance decisions and security clearance suitability assessments are not made or furnished within 12 months.
FINANCIAL IMPACT STATEMENT
The Bill has nil financial impacts.