House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Home Affairs, the Honourable Clare O'Neil MP)

SCHEDULE 2 - Protecting identities and information

Part 1 – Cover employment

Australian Security Intelligence Organisation Act 1979

93. This part would amend the ASIO Act to enable current and former ASIO employees and affiliates to identify an authority of the Commonwealth as the person's employer or place of work, where the authority has been determined by the Director-General of Security. Persons using cover employment, or facilitating cover under these arrangements would be protected from criminal liability if done in the proper performance of that person's duties, or in their professional capacity.

94. This part is intended to formalise and update existing cover arrangements for ASIO where it would be inappropriate for current and former ASIO employees and affiliates to identify ASIO as their employer for security reasons. It would give effect to recommendation 71 of the Comprehensive Review.

95. For the avoidance of doubt, it is not intended that a person who identifies another authority of the Commonwealth as their employer or place of work, would be able to perform the functions of that authority of the Commonwealth, or exercise the powers conferred on officers of that authority (however described). The amendments that would be introduced by this part only relates to the identification of that authority as the person's employer or place of work.

Item 1 Subsection 16(1)

96. This item would include the words "Subject to subsection 92C(8)" into subsection 16(1). This item would be a consequence of Item 2.

Item 2 At the end of Part V

97. This item would add provisions to enable current and former ASIO employees and affiliates to employ cover arrangements, in accordance with a determination given by the Director-General of Security under subsection 92C(1), and protect persons employing cover, or facilitating cover in accordance with the arrangements from criminal liability.

98. Subsection 92B(1) would provide that a person who is a current or former ASIO employee or ASIO affiliate, may identify as their employer or place of work, an authority of a Commonwealth determined by the Director-General of Security. The period for which the current or former ASIO employee or ASIO affiliate may identify that authority as their employer or place of work, is limited to those periods in which that person is or was an ASIO employee or ASIO affiliate.

99. Subsection 92B(2) would provide that subsection 92B(1) applies despite any other law of the Commonwealth, a State or a Territory (whether passed or made before or after the commencement of section 92B), including any other law that is expressed to apply despite any other law. This provision is intended to protect the current or former ASIO employee or ASIO affiliate from criminal liability arising from any action permitted to be undertaken under subsection 92B(1).

100. Subsection 92C(1) would provide that the Director-General of Security may, in writing, determine one or more authorities of the Commonwealth that may be identified as the employer or place of work for a current or former ASIO employee or ASIO affiliate. The authorities of the Commonwealth that can be determined is limited to paragraphs (a), (aa), (b) and (c) of the definition of authority of the Commonwealth, being:

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a Department of State or an Agency within the meaning of the Public Service Act 1999;

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a Department within the meaning of the Parliamentary Service Act 1999;

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the Defence Force; or

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a body, whether incorporated or not, established for public purposes by or under a law of the Commonwealth or of a Territory.

101. A written determination under subsection 92C(1) enables the immunity provisions under subsection 92B(2) and section 92D. It is not intended to be exhaustive of the relevant arrangements, policies, procedures or requirements for the use of cover. A determination need not have a date of expiry. For example, a determination made under subsection 92C(1) could take the form of a simple statement.

102. Subsection 92C(2) would provide that a determination made under subsection 92C(1) may determine a specified authority in relation to a specified class of current or former ASIO employees or ASIO affiliates, or specify limitations or restrictions.

103. Subsection 92C(3) would be an avoidance of doubt provision, providing that if a determination under subsection 92C(1) determines a specified authority in relation to a class of current or former ASIO employees or ASIO affiliates, the class includes an office or position that comes into existence after the determination is made.

104. Subsection 92C(4) would provide that subsection 92C(3) does not affect the interpretation of any other provision of the ASIO Act. For example, the provision is not intended to demonstrate a contrary intention to subsection 33(3AB) of the Acts Interpretation Act 1901 in respect of any other provision of the ASIO Act, insofar as it may relate to specifying, declaring or prescribing matter, or doing anything in relation to a matter, and classes.

105. Subsection 92C(5) would require the Director-General of Security to obtain in writing the agreement of the head of the authority of the Commonwealth before making a determination under subsection 92C(1). As with a determination under subsection 92C(1), this agreement need not be exhaustive of the relevant cover arrangements, policies, procedures or requirements, and need not have a date of expiry. For example, a written agreement for the purposes of subsection 92C(5) could be a simple exchange.

106. Subsection 92C(6) would be an avoidance of doubt provision that clarifies that the Chief of the Defence Force (within the meaning of the Defence Act 1903) is the head of the Defence Force for the purposes of subsection 92C(5). The Defence Force would be an authority of the Commonwealth (see paragraph (b) of the definition) which may be specified in a determination under subsection 92C(1).

107. Subsection 92C(7) would provide that a determination under subsection 92C(1) and an agreement under subsection 92C(5) are not legislative instruments. The provision is intended to assist the reader as a determination made under subsection 92C(1) and an agreement under subsection 92C(5) are not legislative instruments as they do not determine or alter the content of the law.

108. Subsection 92C(8) would provide that the Director-General of Security may, in writing, delegate his or her powers or duties under section 92C, in relation to cover employment, to an ASIO employee, or an ASIO affiliate, who holds or is acting in a position in the Organisation that is equivalent to or higher than a position occupied by an SES employee with a classification of SES Band 3. This power is in addition to, and is not intended to limit the operation of the Director-General's power to delegate powers, functions or duties under section 16.

109. The inclusion of ASIO affiliates who hold or are acting in a position in the Organisation that is equivalent to or higher than a position occupied by an SES employee with a classification of SES Band 3 is necessary to ensure persons seconded to ASIO from partner agencies can exercise these functions. Any action taken by the ASIO affiliate would be done on behalf of ASIO in the performance of its statutory functions, as set out in section 17. This ability to delegate only to persons holding or acting in a SES Band 3 position is important in that it significantly limits who may exercise the power to authorise a person for the purposes of subsection 40(1A). The Director-General of Security can be expected to give appropriate consideration as to whether such an affiliate is suitable to occupy such a senior position when appointing the affiliate to that position.

110. Subsection 92C(9) would provide that in exercising powers or discharging duties under a delegation under subsection 92C(8), the delegate must comply with written directions (if any) given by the Director-General of Security. This is consistent with subsection 16(2).

111. Subsection 92D would provide protection from criminal responsibility to particular categories of persons who facilitate or provide support to a current or former ASIO employee or ASIO affiliate, for the purposes of cover employment under section 92B.

112. Subsection 92D(1) would provide protection from Commonwealth, State or Territory law to persons who are staff members of any authority of the Commonwealth for things done in the course of exercising or performing the staff member's powers, functions or duties to facilitate the current or former ASIO employee or ASIO affiliate to employ their cover arrangements for the purposes of cover employment under subsection 92B(1), in accordance with a determination under subsection 92C(1). The protection only extends to things that would ordinarily not be an offence if the authority of the Commonwealth were the current or former ASIO employee or ASIO affiliate's employer.

113. A staff member of an authority of the Commonwealth is defined in section 4 to include the head (however described) of the body, or another person who holds an office or appointment in relation to the body, and a person who is otherwise a member of the staff of the body, including employees, consultants, contractors and secondees from an authority of the Commonwealth or State, or other persons engaged to perform services for the body.

114. For example, a staff member within ASIO might need to provide documents to support cover arrangements for the ASIO employee or ASIO affiliate who requires cover employment. Equally, a staff member of an authority of the Commonwealth might need to facilitate the provision of such documents. These documents might identify the cover employer as the ASIO employee or ASIO affiliate's employer. In the absence of the protection afforded by subsection 92D(1) from criminal liability, the ASIO staff members or staff members of the authority of the Commonwealth could potentially commit a forgery offence under the Criminal Code. Accordingly, subsection 92D(1) would provide that the staff members is protected from criminal liability.

115. Subsection 92D(2) would provide protection from Commonwealth, State or Territory law to a person who, in the proper performance of functions attached to their professional capacity, facilitate the current or former ASIO employee or ASIO affiliate to employ their cover arrangements for the purposes of cover employment under subsection 92B(1), in accordance with a determination under subsection 92C(1). This subsection would cover persons who are not a staff member of any authority of the Commonwealth. The protection only extends to things that would ordinarily not be an offence if the authority of the Commonwealth were the current or former ASIO employee or ASIO affiliate's employer.

116. For example, a medical professional might produce a report relating to a current or former ASIO employee or ASIO affiliate. That report might be prepared for an official government purpose, and require the professional to identify the cover employer as the ASIO employee or ASIO affiliate's employer. In the absence of the protection afforded by subsection 92D(2) from criminal liability, the professional might otherwise be providing false or misleading information which is an offence under the Criminal Code. Accordingly, subsection 92D(2) would protect the person from criminal liability.

117. For the avoidance of doubt, it is not intended that a person who identifies another authority of the Commonwealth as their employer or place of work, would be able to perform the functions of that authority of the Commonwealth, or exercise the powers conferred on officers of that authority (however described). The amendments that would be introduced by this part only relates to the identification of that authority as the person's employer or place of work.

Intelligence Services Act 2001

118. This part would also amend the IS Act to enable current and former staff members of ASIS or ASD to identify a Commonwealth authority as the person's employer or place of work, where the authority has been determined by Director-General of ASIS or ASD. Persons using cover employment, or facilitating cover under these arrangements would be protected from criminal liability.

119. This part is intended to formalise and update existing, or enable, cover arrangements for ASIS or ASD where it would be inappropriate for current and former staff members to identify ASIS or ASD as their employer for security reasons. Its operation is intended to be consistent with the arrangements for ASIO staff and affiliates above. It would give effect to recommendation 70 of the Comprehensive Review.

Item 3 Subsection 3(1) (definition of staff member )

120. This item would include the words ", subject to subsection 41AC(3)," into the definition of staff member in subsection 3(1). This item would be a consequence of Item 5.

Item 4 Subsection 27(1)

121. This item would include the words "Subject to subsection 41AB(8), the" into subsection 27(1). This item would be a consequence of Item 5 .

Item 5 After section 41

122. This item would add provisions to enable current and former staff members of ASIS or ASD to employ cover arrangements, in accordance with a determination given by the Director-General of ASIS or ASD under subsection 41AB(1), and protect persons employing cover, or facilitating cover in accordance with the arrangements from criminal liability.

123. Subsection 41AA(1) would provide that a person who is a current or former staff member of ASIS or ASD, may identify as their employer or place of work, a Commonwealth authority determined by the Director-General of ASIS or ASD. The period for which the current or former staff member may identify that authority as their employer or place of work, is limited to those periods in which that person is or was a staff member.

124. Subsection 41AA(2) would provide that subsection 41AA(1) applies despite any other law of the Commonwealth, a State or a Territory (whether passed or made before or after the commencement of section 41AA), including any other law that is expressed to apply despite any other law. This provision is intended to protect the current or former staff members from criminal liability arising from any action permitted to be undertaken under subsection 41AA(1).

125. Subsection 41AB(1) would provide that the Director-General of ASIS or ASD may, in writing, determine one or more Commonwealth authorities that may be identified as the employer or place of work for a current or former staff member of ASIS or ASD. The Commonwealth authorities that can be determined is limited to paragraphs (a), (b) (c) and (d) of the definition of Commonwealth authority, being:

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an Agency within the meaning of the Public Service Act 1999;

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a Department within the meaning of the Parliamentary Service Act 1999;

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the Defence Force; or

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a body (whether incorporated or not) established, or continued in existence, for public purposes by or under a law of the Commonwealth.

126. A written determination under subsection 41AB(1) enables the immunity provisions under subsection 41AA(2) and section 41AC. It is not intended to be exhaustive of the relevant arrangements, policies, procedures or requirements for the use of cover. A determination need not have a date of expiry. For example, a determination made under subsection 41AB(1) could take the form of a simple statement.

127. Subsection 41AB(2) would provide that a determination under subsection 41AB(1) may determine a specified authority in relation to a specified class of current or former staff members of ASIS or ASD, or specify limitations or restrictions.

128. Subsection 41AB(3) would be an avoidance of doubt provision, providing that if a determination under subsection 41AB(1) determines a specified authority in relation to a class of current or former staff members, the class includes an office or position that comes into existence after the instrument is made.

129. Subsection 41AB(4) would provide that subsection 41AB(3) does not affect the interpretation of any other provision of the IS Act. For example, the provision is not intended to demonstrate a contrary intention to subsection 33(3AB) of the Acts Interpretation Act 1901 in respect of any other provision of the IS Act, insofar as it may relate to specifying, declaring or prescribing a matter, or doing anything in relation to a matter, and classes.

130. Subsection 41AB(5) would require the Director-General of ASIS or ASD to obtain in writing the agreement of the head of the Commonwealth authority before making an instrument under subsection 41AB(1). For example, a written agreement for the purposes of subsection 41AB(5) could be a simple exchange.

131. Subsection 41AB(6) would be an avoidance of doubt provision that clarifies that the Chief of the Defence Force (within the meaning of the Defence Act 1903) is the head of the Defence Force for the purposes of subsection 41AB(5). The Defence Force would be a Commonwealth authority (see paragraph (c) of the definition) which may be specified in a determination under subsection 41AB(1).

132. Subsection 41AB(7) would provide that a determination under subsection 41AB(1) and an agreement under subsection 41AB(5) are not legislative instruments. This provision is intended to assist the reader as a determination made under subsection 41AB(1) and an agreement under subsection 41AB(5) are not legislative instruments as they do not determine or alter the content of the law.

133. Subsection 41AB(8) would provide that the Director-General of ASIS or ASD may, in writing, delegate his or her powers or duties under section 41AB, in relation to cover employment, to a staff member of their agency, who holds or is acting in a position in the agency that is equivalent to or higher than a position occupied by an SES employee with a classification of SES Band 3. This power is in addition to, and is not intended to limit the operation of the Director-General's power to delegate powers, functions or duties under sections 27 or 27N.

134. Subsection 41AB(9) would provide that in exercising powers or discharging duties under a delegation under subsection 41AB(8), the delegate must comply with written directions (if any) given by the Director-General of ASIS or ASD. This is consistent with subsection 27N(2).

135. Subsection 41AC would provide protection from criminal responsibility to particular categories of persons who facilitate or provide support to a current or former staff members of ASIS or ASD, for the purposes of cover employment under section 41AA.

136. Subsection 41AC(1) would provide protection from Commonwealth, State or Territory law to persons who are staff members of any Commonwealth authority for things done in the course of exercising or performing the staff member's powers, functions or duties to facilitate the current or former staff members of ASIS or ASD to employ their cover arrangements for the purposes of cover employment under subsection 41AA(1), in accordance with a determination under subsection 41AB(1). The protection only extends to things that would ordinarily not be an offence if the Commonwealth authority were the current or former staff member of ASIS or ASD's employer.

137. For example, a staff member within ASIS or ASD might need to provide documents to support cover arrangements for the ASIS or ASD staff member who requires cover employment. These documents might identify the cover employer as the ASIS or ASD staff member's employer. In the absence of the protection afforded by subsection 41AC(1) from criminal liability, the staff member could potentially commit a forgery offence under the Criminal Code. Accordingly, subsection 41AC(1) will provide that the staff member is protected from criminal liability.

138. Subsection 41AC(2) would provide protection from Commonwealth, State or Territory law to other persons who, in the proper performance of functions attached to their professional capacity, facilitate the current or former staff member of ASIS or ASD to employ their cover arrangements for the purposes of cover employment under subsection 41AA(1), in accordance with a determination under subsection 41AB(1). This subsection would cover persons who are not a staff member of any authority of the Commonwealth. The protection only extends to things that would ordinarily not be an offence if the Commonwealth authority were the current or former staff member of ASIS or ASD's employer.

139. For example, a medical professional might produce a report relating to a current or former staff member of ASIS or ASD. That report might be prepared for an official government purpose, and require the professional to identify the cover employer as the staff member's employer. In the absence of the protection afforded by subsection 41AC(2) from criminal liability, the professional might otherwise be providing false or misleading information which is an offence under the Criminal Code. Accordingly, subsection 41AC(2) would protect the person from criminal liability.

140. For the avoidance of doubt, it is not intended that a person who identifies another authority of the Commonwealth as their employer or place of work, would be able to perform the functions of that authority of the Commonwealth, or exercise the powers conferred on officers of that authority (however described). The amendments that would be introduced by this part only relates to the identification of that authority as the person's employer or place of work.

141. Subsection 41AC(3) would provide that, for the purposes of paragraphs 41AC(1)(a) and 41AC(1)(b), a staff member of a Commonwealth authority means the head (however described) of the Commonwealth authority, or another person who holds an office or appointment in relation to the Commonwealth authority and a person who is otherwise a member of the staff of the Commonwealth authority. A person will otherwise be a member of the staff of the Commonwealth authority whether an employee of the Commonwealth authority, consultant or contractor to the Commonwealth authority or a secondee from the Commonwealth, State, or other persons who performs services for the authority. This is described broadly, and is intended to capture other members, however described, including members of the Defence Force (within the meaning of the Defence Act 1901).

142. Subsection 41AC(3) is intended to be broader than the definition of a staff member in relation to ASIO or an agency in section 3, in that it includes the head (however described) of the Commonwealth authority.

Item 6 Application of amendments

143. This item would provide that the amendments of the ASIO Act and IS Act made by this part apply in relation to a person identifying, on or after the commencement of this part, their employer or place of work in relation to a period regardless of whether the person became an ASIO employee, ASIO affiliate or staff member of ASIS or ASD before, on or after that commencement and regardless of whether the period occurred, partly or wholly, before on or after that commencement.

Part 2 – Consolidating secrecy offences

Division 1 – Main amendments

144. This part would amend the IS Act to consolidate the secrecy offences in Division 1 of Part 6 of the IS Act. The purpose of these amendments would be to increase the protection of identity of staff members of agencies that are regulated by the IS Act and to reduce the number of secrecy offences in Commonwealth laws. By consolidating these offences, it would reduce the ability to identify the precise agency to whom the conduct giving rise to the offence relates. It is not intended for these amendments to alter, or otherwise affect the scope of these secrecy offences. This would give effect to recommendation 143 of the Comprehensive Review.

Intelligence Services Act 2001

Item 7 Subsection 3(1) (at the end of the definition of staff member )

145. This item would add paragraph (c) to the definition of staff member in relation to DIO. It would largely mirror the definition of staff member in relation to ASIO and to an agency, and would include employees, consultants, contractors and secondees from an authority of the Commonwealth or State, or other persons engaged to perform services for DIO. Noting DIO is not a statutory authority, it refers to that part of the Defence Department known as DIO.

Item 8 Section 39 (at the end of the heading)

146. This item would insert a reference to AGO, DIO and ASD into the heading of section 39. This item and Items 9 to 15 consolidate the communication offences in sections 39 to 40B into section 39.

Item 9 Paragraph 39(1)(a)

147. This item would insert a reference to AGO, DIO and ASD into paragraph 39(1)(a). It would also define the ASIS, AGO, DIO or ASD as "the relevant agency" for the purposes of section 39.

Item 10 Paragraph 39(1)(b)

148. This item would repeal paragraph 39(1)(b) and substitute it with a new paragraph 39(1)(b). The amended paragraph 39(1)(b) would require, as an element of the offence, that the information or matter has come to the knowledge or into the possession of the person by reason of the person being or having been a staff member of the relevant agency or an agent of ASIS, having entered into any contract, agreement or arrangement with the relevant agency or having been an employee or agent of a person who has entered into a contract, agreement or arrangement with the relevant agency. As a result of the amendment made by item 9, the relevant agency means ASIS, AGO, DIO or ASD.

149. This amendment maintains the intent of the existing paragraph 39(1)(b) and sections 39A to 40B (which are repealed by item 15) requiring that an element of the communication offence is that the person has knowledge or possession of the information by reason of being a staff member, entered into any contract, agreement or arrangement with the agency, or having been an employee or agent of a person who has entered into a contract, agreement or arrangement with the agency.

Item 11 Subparagraphs 39(1)(c)(i) and (ii)

150. This item would replace the reference to "the Director-General of ASIS or staff member" with the more general "head of the relevant agency or a staff member of the relevant agency" into subparagraphs 39(1)(c)(i) and (ii).

Item 12 Subparagraphs 39(1)(c)(iii)

151. This item would replace the reference to "the Director-General of ASIS" with the more general "head of the relevant agency" into subparagraph 39(1)(c)(iii).

Item 13 Subparagraphs 39(1)(c)(iv)

152. This item would replace the reference to "the Director-General of ASIS or of a staff member having the authority of the Director-General of ASIS" with the more general "head of the relevant agency or of a staff member of the relevant agency having the authority of the head of the relevant agency" into subparagraph 39(1)(c)(iv).

Item 14 At the end of section 39

153. This item would insert a definition of head of the relevant agency at subsection 39(4). In relation to ASIS, AGO or ASD, which are agencies under the IS Act, that person is the agency head, as defined in section 3. In relation to DIO, that person is the Director of DIO, which would be consistent with section 40B.

Item 15 Sections 39A to 40B

154. This item would repeal sections 39A to 40B. The effect of these provisions would be maintained in section 39, as amended by Items 8 to 14.

Item 16 Section 40C (at the end of the heading)

155. This item would insert a reference to AGO, DIO and ASD into the heading of section 40C. This item and Items 17 to 21 consolidate the unauthorised dealing with records offences in sections 40C, 40E, 40G and 40L into section 40C.

Item 17 Paragraph 40C(1)(b) and (c)

156. This item would repeal paragraphs 40C(1)(b) and 40C(1)(c) and substitute new paragraphs 40C(1)(b) and 40C(1)(c).

157. Amended paragraph 40C(1)(b) would insert a reference to AGO, DIO and ASD into paragraph 40C(1)(b). It would also describe ASIS, AGO, DIO or ASD as "the relevant agency".

158. The amended paragraph 40C(1)(c) would require, as an element of the offence, the record to be obtained by the person by reason of the person being or having been a staff member of the relevant agency or an agent of ASIS, having entered into any contract, agreement or arrangement with the relevant agency or having been an employee or agent of a person who has entered into a contract, agreement or arrangement with the relevant agency. As a result of the amended paragraph 40C(1)(b), the relevant agency means ASIS, AGO, DIO or ASD.

159. This amendment maintains the intent of the existing paragraph 40C(1)(c) and sections 40E, 40G and 40L (which are repealed by item 28) requiring that an element of the unauthorised dealing with records offences is that the record is obtained by the person by reason of the person being a staff member, entered into any contract, agreement or arrangement with the agency, or having been an employee or agent of a person who has entered into a contract, agreement or arrangement with the agency.

Item 18 Subparagraph 40C(1)(d)(ii)

160. This item would replace the reference to "ASIS" with the more general "the relevant agency" in subparagraph 40C(1)(d)(ii).

Item 19 Subparagraph 40C(1)(d)(iii)

161. This item would replace the reference to "the Director-General of ASIS" with the more general "head of the relevant agency" into subparagraph 40C(1)(d)(iii).

Item 20 Subparagraphs 40C(1)(d)(iv)

162. This item would replace the reference to "the Director-General of ASIS or of a staff member having the authority of the Director-General of ASIS" with the more general "head of the relevant agency or of a staff member of the relevant agency having the authority of the head of the relevant agency" into subparagraph 40C(1)(d)(iv).

Item 21 At the end of section 40C

163. This item would insert subsection 40C(5). The item would provide that the head of the relevant agency for the purpose of section 40C has the same meaning as in section 39.

Item 22 Section 40D (at the end of the heading)

164. This item would insert a reference to AGO, DIO and ASD into the heading of section 40D. This item and Items 23 to 27 consolidate the unauthorised recording offences in sections 40D, 40F, 40H and 40M into section 40D.

Item 23 Paragraphs 40D(1)(b) and (c)

165. This item would repeal paragraphs 40D(1)(b) and 40D(1)(c) and substitute with new paragraphs 40D(1)(b) and 40D(1)(c).

166. Amended paragraph 40D(1)(b) would insert a reference to AGO, DIO and ASD into paragraph 40C(1)(b). It would also describe ASIS, AGO, DIO or ASD as "the relevant agency".

167. The amended paragraph 40D(1)(c) would require as an element of the offence, the information or matter to come into the knowledge or possession of the person by reason of the person being or having been a staff member of the relevant agency or an agent of ASIS, having entered into any contract, agreement or arrangement with the relevant agency or having been an employee or agent of a person who has entered into a contract, agreement or arrangement with the relevant agency. As a result of the amended paragraph 40D(1)(b), the relevant agency means ASIS, AGO, DIO or ASD.

168. This amendment maintains the intent of the existing paragraph 40D(1)(c) and sections 40F, 40H and 40M (which are repealed by item 28) requiring that an element of the unauthorised recording offences is that information or matter comes into the knowledge or possession of the person by reason of the person being a staff member, entered into any contract, agreement or arrangement with the agency, or having been an employee or agent of a person who has entered into a contract, agreement or arrangement with the agency.

Item 24 Subparagraph 40D(1)(d)(ii)

169. This item would replace the reference to "ASIS" with the more general "the relevant agency" in subparagraph 40D(1)(d)(ii).

Item 25 Subparagraph 40D(1)(d)(iii)

170. This item would replace the reference to "the Director-General of ASIS" with the more general "head of the relevant agency" into subparagraph 40D(1)(d)(iii).

Item 26 Subparagraphs 40D(1)(d)(iv)

171. This item would replace the reference to "the Director-General of ASIS or of a staff member having the authority of the Director-General of ASIS" with the more general "head of the relevant agency or of a staff member of the relevant agency having the authority of the head of the relevant agency" into subparagraph 40D(1)(d)(iv).

Item 27 At the end of section 40D

172. This item would insert subsection 40D(5). The item would provide that the head of the relevant agency for the purpose of section 40D has the same meaning as in section 39.

Item 28 Sections 40E to 40M

173. This item would repeal sections 40E to 40M. The effect of these provisions would be maintained in sections 40C and 40D, as amended by Items 16 to 27.

Item 29 Subsection 41B(3) (definition of information offence provision )

174. This item would repeal and replace the definition of information offence provision in section 41B. This would be a consequence of the offences in Division 1 of Part 6 of the IS Act being consolidated into subsections 39(1), 40C(1) and 40D(1).

Item 30 Application of amendments

175. This item contains the application provisions for the amendments in Division 1 of Part 2 of this Bill.

176. Subitem 30(1) provides that the amendment of section 39, and the repeal of sections 39A, 40 and 40B of the IS Act made by Division 1 of Part 2 of this Bill apply in relation to a communication by a person of any information or matter on or after the commencement of this item, regardless of whether the information or matter came to the knowledge or into the possession of the person before, on or after that commencement, or if the information or matter was acquired or prepared by or on behalf of ASIS, AGO, DIO or ASD before, on or after that commencement.

177. Subitem 30(2) provides that the amendment of section 40C, and the repeal of sections 40E, 40G and 40L of the IS Act made by Division 1 of Part 2 of this Bill apply in relation to conduct engaged in by a person in relation to a record on or after the commencement of this item, regardless of whether the record was obtained by the person before, on or after that commencement or whether the record was acquired or prepared by or on behalf of ASIS, AGO, DIO or ASD before, on or after that commencement.

178. Subitem 30(3) provides that the amendment of section 40D, and the repeal of sections 40F, 40H and 40M of the IS Act made by Division 1 of Part 2 of the Bill apply in relation to the making of a record of any information or matter by a person on or after the commencement of this item, regardless of whether the information or matter came to the knowledge or into the possession of the person before, on or after that commencement or whether the record was acquired or prepared by or on behalf of ASIS, AGO, DIO or ASD before, on or after that commencement.

Division 2 – Consequential amendments

Privacy Act 1988

Item 31 Subsection 80P(7) (paragraph (c) of the definition of designated secrecy provision )

179. This item would omit references to sections 39A, 40, 40B to 40H, 40L, 40M of the IS Act in paragraph (c) of the definition of designated secrecy provision, and substitute references to sections 40C and 40D. This would be a consequence of items 8 to 28.

180. Section 80P of the Privacy Act provides that at any time when an emergency declaration under section 80J or 80K is in force, an APP entity may collect, use or disclose personal information, if certain conditions are met. Subsection 80P(2) of the Privacy Act provides that an entity is not liable to any proceedings for contravening a secrecy provision, unless the secrecy provision is a designated secrecy provision. Accordingly, an entity would continue to not be permitted to disclose or use personal information in breach of sections 39, 40C or 40D of the IS Act, even if an emergency declaration is in force.

Part 3 – Protection from disclosure under Archives Act 1983

181. This part would amend the Administrative Appeals Tribunal Act 1975 and the Archives Act to ensure the identity of current and former ASIO employees, ASIO affiliates, staff members of ASIS and agents of ASIS that are included in Commonwealth records that are in the open access period are protected from public access.

182. Under section 31 of the Archives Act, a Commonwealth record that is in the open access period, that is in the care of the Archives or in the custody of a Commonwealth institution, but not an exempt record, must be available for public access. A Commonwealth record is an exempt document if it meets at least one of the criteria set out in section 33.

183. While a Commonwealth record is an exempt record if it contains information or matter, the disclosure of which could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth, it would be consistent with the requirements of security that the identity of current and former ASIO employees, ASIO affiliates, staff members of ASIS and agents of ASIS are appropriately protected.

184. This part would implement recommendation 190 of the Comprehensive Review.

Administrative Appeals Tribunal Act 1975

Item 32 Subsection 3(1) (paragraph (b) of the definition of exempt security record )

185. This item would insert a reference to subsections 33(4A) and 33(4C) into the definition of exempt security record. This would ensure that a review of a decision of the National Archives of Australia under the Archives Act relating to records that are exempt on the basis of the new categories of exempt records that would be inserted by Item 35 is considered by the Security Division of the Administrative Appeals Tribunal in accordance with section 19F.

Archives Act 1983

Item 33 Subsection 3(1)

186. This item would insert a definition of ASIO affiliate and ASIO employee into subsection 3(1). These terms will have the same meaning as in the ASIO Act.

Item 34 Paragraphs 29(6)(a) and (7)(a)

187. This item would insert a reference to subsections 33(4A) and 33(4C) in paragraphs 29(6)(a) and 29(7)(a).

188. This would provide that a record that is in the open access period is not, by virtue of a determination under subsections 29(1) or 29(2) a record to which the National Archives of Australia is not entitled to have access in accordance with section 28, unless the records are exempt on the basis of the new categories of exempt records that would be inserted by Item 35 and a security classification applies to the record such that access by the National Archives of Australia would not be appropriate.

Item 35 After subsection 33(4)

189. This item would insert new categories of exempt records into section 33 of the Archives Act.

190. Subsection 33(4A) would provide that a Commonwealth record is an exempt record if it contains information or matter that identifies a current or former ASIO employee or ASIO affiliate, or from which the identity of such a person could reasonably be inferred, or that could reasonably lead to the identity of such a person being established, and the information or matter has not been lawfully been made public by means of broadcasting or reporting proceedings of the Parliament.

191. Such a Commonwealth record would not however be an exempt record if the Minister administering section 92 of the ASIO Act or the Director-General of Security has consented in writing for the information or matter being made public.

192. Subsection 33(4B) would provide that if the Minister administering section 92 of the ASIO Act or the Director-General of Security has given consent in writing for the purposes of that section, which relates to the publication of identity of ASIO employees or ASIO affiliates, then that consent is taken to be consent for the purposes of subsection 33(4A). Consent by the Minister or Director-General can be provided before or after the commencement of this item. This would ensure that an ASIO employee or ASIO affiliate whose identity has lawfully been publicly declared, is not covered by subsection 33(4A).

193. Subsection 33(4C) would provide that a Commonwealth record is an exempt record if it contains information or matter that identifies a current or former staff member of ASIS or an agent of ASIS, or from which the identity of such a person could reasonably be inferred, or that could reasonably lead to the identity of such a person being established, and the information or matter has not been lawfully been made public by means of broadcasting or reporting proceedings of the Parliament.

194. Such a Commonwealth record would not however be an exempt record if the responsible Minister for ASIS or the Director-General of ASIS has consented in writing for the information or matter being made public.

195. Subsection 33(4D) would provide that if the responsible Minister for ASIS or the Director-General of ASIS has given consent in writing for the purposes of section 41 of the IS Act, which relates to the publication of identity of agents or staff members of ASIS, then that consent is taken to be consent for the purposes of subsection 33(4C). Consent by the Minister or Director-General can be provided before or after the commencement of this item. This would ensure that an agent or staff member of ASIS whose identity has lawfully been publicly declared, is not covered by subsection 33(4C).

Item 36 At the end of section 33

196. This item would add subsection 33(6) to provide that only the most senior Minister responsible for administering ASIO or ASIS can give consent under section 33. This item would also include a note that a reference to a Minister in section 33 may include a reference to a person acting as that Minister as is provided for in subsection 19(4) of the Acts Interpretation Act 1901. This note is included to assist the reader.

Item 37 At the end of subsection 39(1)

197. This item would add the phrase "or subsections 33(4A) or 33(4C)" to subsection 39(1). This item would provide that nothing in the Act requires the National Archives of Australia to give information as to the existence or non-existence of a record, if it contains information relating to the identity of ASIO employees, ASIO affiliates, staff members of ASIS or an agent of ASIS.

Item 38 Paragraph 39(2)(b)

198. This item would add a reference the phrase "or subsections 33(4A) or 33(4C)" to paragraph 39(2)(b). This item would provide that the National Archives of Australia may give notice to an applicant who makes an application for access to a record relating to certain exempt records, including by virtue of subsections 33(4A) and 33(4C), neither confirming nor denying the existence of such record. The decision to give such a notice would be deemed to be a decision refusing to grant the applicant access to the record, on the ground that the record is an exempt record.

Part 4 – Protecting the identity of ASIO employees and ASIO affiliates

Division 1 – Main amendments

199. This part would amend the ASIO Act to strengthen the protection of identities of ASIO employees or ASIO affiliates, by modernising and updating the publication offence under section 92.

200. Section 92 currently makes it an offence for a person to publish, including through various means, any matter stating, or from which it could reasonably be inferred that a person is a current or former ASIO employee or ASIO affiliate, or is in any way connected with an ASIO employee or ASIO affiliate, without the consent of the ASIO Minister or the Director-General of Security.

Australian Security Intelligence Organisation Act 1979

Item 39 Section 92

201. This item would repeal and replace section 92, which would relate to the publication of the identity of a current or former ASIO employee or ASIO affiliate, and introduce new section 92A, which would relate to the disclosure of the identity of such a person to another person.

202. Sections 92 and 92A have been developed with reference to the principles for framing secrecy offences agreed to by the Government to implement the Commonwealth Government's Review of Secrecy Provisions Final Report.

203. Subsection 92(1) would provide that a person commits an offence if the person makes information public, or causes or permits information to be made public, where the information identifies or could reasonably lead to establishing the identity of a current or former ASIO employee or ASIO affiliate or such an identity could be reasonably inferred from the information. Subsection 92(1) would provide that the penalty for this offence is imprisonment for 10 years, which is consistent with existing subsection 92(1).

204. The effect of this subsection would be that it removes the methods of publication that currently exist in subsection 92(1), namely in a newspaper, or other publication, or by radio broadcast or television. The inclusion of specific methods of publication have caused the provision to become outdated, especially considering the proliferation of modern forms of publication like social media. Removing references to specific publication methods will ensure the section remains current and would be consistent with other publication offences relating to intelligence officials, such as in section 41 of the IS Act.

205. Section 92 was originally introduced in response to a concerted campaign in the 1970s to publicly identify ASIO officers, contrary to the interests of their personal security, and national security. More recently, Australia's deteriorating security environment has been reflected in the Director-General of Security's annual public threat assessments. In his 2023 threat assessment, the Director-General noted those who chose to publicly identify themselves as security clearance holders or revealed they worked in the intelligence community were 'high value targets'.

206. Publication of the identity of an ASIO employee or ASIO affiliate therefore continues to have the potential to cause grave harm to security. Release of the identity of ASIO employees or ASIO affiliates would substantially increase the risk they will be targeted by hostile third parties to undermine Australia's security, and put the lives of ASIO employees and affiliates, as well as their families at risk. This could result in coercive action being directed towards such persons.

207. Recognising the importance that the identity of an ASIO employee or ASIO affiliate is protected, the offence does not distinguish between Commonwealth officers and other persons. The culpability of engaging the conduct does not differ between these classes of persons. The history of the offence, and the current security environment, also means it is important the offence continue to apply to all persons equally.

208. Subsections 92(2) and 92(3) would establish exceptions to the offence at subsection 92(1).

209. Subsection 92(2) would provide an exception to the offence in subsection 92(1) where the ASIO Minister or Director-General of Security has consented in writing to the information being made public. This would be consistent with the existing subsection 92(1).

210. Subsection 92(2) would also include a note that a defendant bears an evidential burden in relation to the matters in the subsection, by reason of subsection 13.3(3) of the Criminal Code. This is appropriate because consent being given would be exceptional. The decision to give consent needs to be made with very careful consideration of the impact of the publication of the identity of current or former ASIO employees and affiliates on their colleagues in ASIO, and other agencies, and the impact on other people in the community or internationally they have engaged with while working for ASIO. It also has to give regard to the sensitive matters they have been involved in that relate to Australia's national security. It is reasonable to expect that any consent is clearly given and therefore can be demonstrated by the defendant. Clarity that the consent has been granted is a necessary consideration in ensuring the offence is operating effectively to protect the interests of the Commonwealth, of ASIO, and of the current or former ASIO employees or affiliates.

211. Subsection 92(3) would provide an exception to the offence in subsection 92(1) where a former ASIO employee or affiliate has consented in writing to their identity being made public, or otherwise caused or authorised their identity to be made public by the third person. This would continue the effect of existing subsection 92(1B), protecting third parties who act in reliance on advice from former ASIO employees or affiliates. However, this defence does not apply for the former ASIO employee or affiliate themselves.

212. This change would ensure that former ASIO employees or affiliates cannot unilaterally publicly 'self-declare' their ASIO affiliation. When the existing subsection 92(1B) exception was first conceived, a self-declaration would not necessarily have an impact on other officers or affiliates around them. Modern technology, however, has meant this is no longer the case, and it is now necessary to clarify the operation of this exception.

213. If a former ASIO employee or affiliate were to publicly self-declare their association with ASIO, other ASIO employees or affiliates around them who are digitally linked to them, whether through social media or other digital means, can be discovered. Public self-declarations are not only the business of the former ASIO employees or affiliates, and it is necessary to clarify the operation of the exception so that it is clear it cannot be relied upon by former ASIO employees or affiliates. Former ASIO employees or affiliates will still, however, be able to seek the permission of the Minister or Director-General to publicly declare their affiliation with ASIO.

214. Subsection 92(4) would provide that section 15.4 of the Criminal Code applies to an offence against subsection 92(1). This would provide that an offence against subsection 92(1) applies whether or not the conduct constituting the alleged offence occurs in Australia and whether or not the result of the conduct constituting the alleged offence occurs in Australia.

215. Subsection 92(5) would provide that subsection 92(4) does not, by implication, affect the interpretation of any other provision of the ASIO Act, or another Act.

216. Subsection 92(6) would provide that a prosecution for an offence against subsection 92(1) may only be instituted by, or with the consent of, the Attorney-General. This would continue the effect of existing subsection 92(3).

217. Subsection 92(6) would also include a note referencing subsection 18(3) relating to the communication of information about an offence against subsection 92(1). Subsection 18(3) provides that the Director-General of Security or authorised person may communicate information that relates, or appears to relate, to the commission or intended commission, of a serious crime.

218. Subsection 92(7) would provide that consent given under subsection 92(2) is not a legislative instrument. This provision is intended to assist the reader as consent given under subsection 92(2) is not a legislative instrument as it does not determine or alter the content of the law.

219. Subsection 92A(1) is a new offence that has been introduced to strengthen protections for the identity of ASIO officers and affiliates, bringing them into closer alignment with those afforded to ASIS officers under section 41 of the Intelligence Services Act 2001.

220. Subsection 92A(1) would provide that a person commits an offence if they either disclose, or engage in conduct that results in the disclosure of, information that identifies, could reasonably lead to establishing the identity of or could reasonably infer the identity of a current or former ASIO employee or ASIO affiliate or such an identity could be reasonably inferred from the information.

221. Paragraph 92A(1)(c) provides that a person only commits the offence if they intend to, or the know the disclosure will, endanger the health or safety of a person, or prejudice the effective performance of the functions or duties, or the effective exercise of the powers of ASIO.

222. Introducing the new subsection 92A(1) offence is necessary in light of the deteriorating security environment. As noted by the Director-General of Security in his 2023 annual threat assessment, those who choose to publicly identify themselves as security clearance holders or reveal they work in the intelligence community are 'high value targets'. Those who disclose the identity of ASIO employees similarly render those officers 'high value targets'. Disclosure of the identity of ASIO employees or ASIO affiliates would substantially increase the risk they will be targeted by hostile third parties to undermine Australia's security, and put the lives of ASIO employees and affiliates, as well as their families at risk of harm. Disclosure of the identity of ASIO employees can also degrade the effective performance of ASIO's functions, duties or powers.

223. Although the offence brings the protections for ASIO officers into closer alignment with those afforded to ASIS officers under section 41 of the Intelligence Services Act 2001, there are important distinctions. Under the new offence, the person must also either intend or know, that the disclosure of the information would endanger the health or safety of a person, or would prejudice the effective performance of the functions and duties, or the effective exercise of powers by ASIO. The inclusion of the element in paragraph 92A(1)(c) is not included in the section 41 offence. This is appropriate given the differing operating contexts of ASIO and ASIS employees and affiliates.

224. Recognising the importance that the identity of an ASIO employee or ASIO affiliate is protected, the offence does not distinguish between Commonwealth officers and other persons. The culpability of engaging in the conduct does not differ between these classes of persons.

225. Subsection 92A(2) would provide that section 15.4 of the Criminal Code applies to an offence against subsection 92A(1). This would provide that an offence against subsection 92A(1) applies whether or not the conduct constituting the alleged offence occurs in Australia and whether or not the result of the conduct constituting the alleged offence occurs in Australia.

226. Subsection 92A(3) would provide that subsection 92A(2) does not, by implication, affect the interpretation of any other provision of the ASIO Act, or another Act.

227. Subsection 92A(4) would provide that a prosecution for an offence against subsection 92A(1) may only be instituted by, or with the consent of, the Attorney-General. This would be consistent with the effect of existing subsection 92(3).

228. Subsection 92A(4) would also include a note referencing subsection 18(3) relating to the communication of information about an offence against subsection 92A(1). Subsection 18(3) provides that the Director-General of Security or authorised person may communicate information that relates, or appears to relate, to the commission or intended commission, of a serious crime.

Item 40 Application of amendments

229. This item would provide for the application of the amendments made by the division.

230. Subitem 2(1) would provide that the offence at subsection 92(1) as substituted, applies to information made public, or caused or permitted to be made public, after the commencement of the division (whether the information was obtained before or after that commencement).

231. Subitem 2(2) would provide that subsections 92(2) and 92(3) as substituted, apply to information made public, or consents given, before or after the commencement of the division.

232. Subitem 2(3) would provide that subsection 92A(1) as inserted, applies to information disclosed after the commencement of the Division (whether the information was obtained before or after that commencement).

Division 2 – Consequential amendments

Australian Crime Commission Act 2002

Item 41 Schedule 1 (entry relating to the Australian Security Intelligence Organisation Act 1979 )

233. This item would insert a reference to section 92A of the ASIO Act into Schedule 1. The effect of this item would be that a person is not required to furnish information, or produce a document or thing, to an examiner under section 20, if the disclosure of the information could constitute an offence under section 92A of the ASIO Act. This would be a consequence of Item 39.

Business Names Registration Act 2011

Item 42 Paragraph 62N(3)(a)

234. This item would insert a reference to section 92A of the ASIO Act into paragraph 62N(3)(a). The effect of this item would be that a person would not be authorised to make a record of, or disclose protected information under subsection 62M(3), if the disclosure of the information could constitute an offence under section 92A of the ASIO Act. This would be a consequence of Item 39.

Commonwealth Registers Act 2020

Item 43 Paragraph 18(3)(a)

235. This item would insert a reference to section 92A of the ASIO Act into paragraph 18(3)(a). The effect of this item would be that a person would not be authorised to make a record of, or disclose protected information under subsection 17(3), if the disclosure of the information could constitute an offence under section 92A of the ASIO Act. This would be a consequence of Item 39.

Corporations Act 2001

Item 44 Paragraph 1270M(3)(a)

236. This item would insert a reference to section 92A of the ASIO Act into paragraph 1270M(3)(a). The effect of this item would be that a person would not be authorised to make a record of, or disclose protected information under subsection 1270L(3), if the disclosure of the information could constitute an offence under section 92A of the ASIO Act. This would be a consequence of Item 39.

Criminal Code Act 1995

Item 45 Paragraph 122.5(7)(a) of the Criminal Code

237. This item would insert a reference to section 92A of the ASIO Act into paragraph 122.5(7)(a) of the Criminal Code. The effect of this item would be to limit the defence in paragraph 122.5(6) of the Criminal Code to secrecy offences in Division 122, to exclude communications and dealings with relevant information, if the communication or dealing would be an offence under section 92A of the ASIO Act. This would be a consequence of Item 39.

Freedom of Information Act 1982

Item 46 Schedule 3 (entry relating to the Australian Security Intelligence Organisation Act 1979 )

238. This item would insert a reference to section 92A of the ASIO Act into Schedule 3. The effect of this item would be that a document would be an exempt document if it contains information, disclosure of which is prohibited by section 92A of the ASIO Act. This would mean that a person would not have a right to obtain access to the document under section 11 of the Freedom of Information Act 1982. This would be a consequence of Item 39.

National Consumer Credit Protection Act 2009

Item 47 Paragraph 212N(3)(a)

239. This item would insert a reference to section 92A of the ASIO Act into paragraph 212N(3)(a). The effect of this item would be that a person would not be authorised to make a record of, or disclose protected information under subsection 212M(3), if the disclosure of the information could constitute an offence under section 92A of the ASIO Act. This would be a consequence of Item 39.

Privacy Act 1988

Item 48 Subsection 80P(7) (paragraph (a) of the definition of designated secrecy provision )

240. This item would insert a reference to section 92A of the ASIO Act into paragraph (a) of the definition of designated secrecy provision. This would be a consequence of Items 39.

241. Section 80P of the Privacy Act provides that at any time when an emergency declaration under section 80J or 80K is in force, an APP entity may collect, use or disclose personal information, if certain conditions are met. Subsection 80P(2) of the Privacy Act provides that an entity is not liable to any proceedings for contravening a secrecy provision, unless the secrecy provision is a designated secrecy provision. Accordingly, an entity would continue to not be permitted to disclose or use personal information in breach of sections 92A of the ASIO Act, even if an emergency declaration is in force.