Explanatory Memorandum
(Circulated by authority of the Minister for Home Affairs, the Honourable Clare O'Neil MP)SCHEDULE 3 - Authorisations for intelligence activities
Part 1 – Sequencing of ministerial authorisations and clarifying references to persons
242. This part would amend the IS Act to enable a Minister to give an authorisation to ASIS, AGO or ASD to undertake certain activities in respect of Australian persons, in circumstances where Australian persons are, or are likely to be, involved in activities that are, or are likely to be, a threat to security or, involved with a listed terrorist organisation, without first obtaining the agreement of the Attorney-General. However, the authorisation cannot take effect unless and until the agreement of the Attorney-General has been obtained. Under the existing provisions, the Attorney-General must first give their agreement to the authorisation before it is then considered by the relevant Minister. This change allows for either the Minister, or Attorney-General, to first consider the authorisation, while still ensuring both must have agreed to the authorisation before it takes effect. This would give effect to recommendation 2 of the Comprehensive Review.
243. This part would also amend the IS Act to clarify that a Minister may give an authorisation to ASIS, AGO or ASD to undertake such activities, in circumstances where Australian persons are involved in activities that present a significant risk to their own safety, or are themselves involved in activities relating to the contravention, or alleged contravention, of a UN sanction enforcement law.
Intelligence Services Act 2001
Item 1 Subsections 9(1A) and (1AAA)
244. This item would repeal and substitute subsections 9(1A) and (1AAA).
245. Currently, ASIS, AGO and ASD must obtain an authorisation under sections 9 to 9D before undertaking certain activities, for specific purposes, including of producing intelligence on an Australian person, or that will, or is likely to have a direct effect on an Australian person.
246. Subsection 9(1A) would continue to set out when a Minister may give an authorisation for an activity, or a series of activities for the purpose of producing intelligence on Australian persons, or that will or, or are likely to, have a direct effect on Australian persons. The grounds for giving an authorisation have been renumbered and would otherwise be unchanged, subject to the following paragraphs.
247. Paragraph 9(1A)(a) would enable an authorisation where the Australian person is, or is likely to be, involved in activities that present a significant risk to the safety of any person, including the Australian person or member of the class of Australian person, to whom the authorisation relates. The purpose of the amendment is to clarify that an authorisation is not limited to activities that present a risk to a person other than the Australian person. An authorisation can apply where the Australian person is involved in activities that present a significant risk to their own safety and where the Australian person is involved in activities that present a significant risk to the safety of others.
248. Paragraph 9(1A)(f) would enable an authorisation where the Australian person is, or is likely to be, involved in activities related to a contravention, or alleged contravention, of a UN sanctions enforcement law, by any person, including the Australian person or member of the class of Australian person, to whom the authorisation relates. The purpose of the amendment is to clarify that an authorisation is not limited to activities by a person other than the Australian person that relate to a contravention or an alleged contravention of a UN sanction enforcement law. An authorisation can apply where the Australian person is involved in activities related to the contravention or alleged contravention of a UN sanction enforcement law by themselves or by another person.
249. The amendments do not include in subsection 9(1A) the requirement for the Minister to obtain the agreement of the Attorney-General as this would be dealt with in subsection 9(1AAC). A new note to subsection 9(1A) references the requirement for the Minister to obtain the Attorney-General's agreement in subsection 9(1AAC).
250. Subsection 9(1AAA) would set out when a Minister may give an authorisation for an activity, or a series of activities for the purpose of producing intelligence on one or members of a class of Australian persons. The grounds for giving an authorisation would be unchanged.
251. The requirement for the Minister to obtain the agreement of the Attorney-General would be dealt with in subsection 9(1AAD) which is referenced in the note to subsection 9(1AAA).
Item 2 After the heading to subsection 9(1AA)
252. This item would insert subsections 9(1AAC) and (1AAD).
253. Subsection 9(1AAC) would provide that an authorisation under subsection 9(1A) for an activity or series of activities, in relation to Australian persons, who are, or are likely to be involved in activities that are, or are likely to be, a threat to security, cannot take effect unless and until the Minister has obtained the agreement of the Attorney-General. Subsection 9(1AAC) would provide that the agreement can be oral or written and clarifies that the agreement can be sought before or after the authorisation referred to in subsection 9(1A) is given.
254. This amendment would provide that the relevant Minister can give an authorisation under subsection 9(1A) where Australian persons are, or are likely to be, involved in activities that are, or are likely to be, a threat to security either before or after the Attorney-General provides their agreement. However, such an authorisation cannot take effect until the Attorney-General has provided agreement.
255. Subsection 9(1AAD) would provide that an authorisation under subsection 9(1AAA) for an activity or series of activities, in relation to a class of Australian persons, cannot take effect unless and until the Minister has obtained the agreement of the Attorney-General.
256. This amendment would provide that the relevant Minister can give an authorisation under subsection 9(1AAA) either before or after the Attorney-General provides their agreement. However, such an authorisation cannot take effect until the Attorney-General has provided agreement.
257. This amendment is intended to provide flexibility for agencies in seeking ministerial authorisations where the Attorney-General's agreement is required. It is anticipated that the relevant Minister would give an authorisation before the Attorney-General gives their agreement, only where it is operationally necessary.
Item 3 Subsection 9(1AA)
258. This item would omit the reference to "paragraph (1A)(b) or (1AAA)(b)" and substitute "subsections 9(1AAC) and (1AAD)". This would be a consequence of Items 1 and 2.
Item 4 Paragraph 9(5)(b)
259. This item would omit the reference to "paragraph (1A)(b) or (1AAA)(b)" and substitute "subsections 9(1AAC) and (1AAD)". This would be a consequence of Items 1 and 2.
Item 5 Subsection 9(6)
260. This item would omit the reference to "paragraph (1A)(b) or (1AAA)(b)" and substitute "subsections 9(1AAC) and (1AAD)". This would be a consequence of Items 1 and 2.
Item 6 Subsection 9A(2) (note)
261. This item would omit the note to subsection 9A(2). This would be a consequence of Item 1.
Item 7 Subparagraph 9B(2)(c)(ii)
262. This item would omit "serious risk to a person's safety" and substitute "significant risk to the safety of any person". The purpose of this item is to align the threshold at subparagraph 9B(2)(c)(ii) for emergency authorisations with the ministerial authorisation ground at proposed paragraph 9(1A)(a).
Item 8 Subsection 9B(2) (note)
263. This item would repeal the note at subsection 9B(2). This would be a consequence of Items 1 and 2.
Item 9 Subparagraph 9C(1)(c)(i)
264. This item would repeal and substitute subparagraph 9C(1)(c)(i). The effect of the subparagraph would remain unchanged, but would be a consequence of Items 1 and 2.
Item 10 Subsections 9C(2) and (3)
265. This item would repeal and substitute subsections 9C(2) and (3).
266. Subsection 9C(2) would provide that when section 9C applies, an emergency authorisation may be given and take effect without obtaining the agreement of the Attorney-General. This provision is consequential to Items 1 and 2.
267. Subsection 9C(3) similarly makes consequential amendments as to the effect of the Director-General of Security giving agreement for the purposes of section 9C. It does not, however, alter the sequencing in which agreement must be sought from the Director-General of Security.
Item 11 Subsection 9D(2)
268. This item would omit the words "apart from paragraph 9(1A)(b)". This item, and Item 12 are a consequence of Items 1 and 2.
Item 12 Subsection 9D(3)
269. This item would insert subsection 9D(3A) to provide that an authorisation, when section 9D applies, may take effect without obtaining the agreement of the Attorney-General. This item, and Item 11 are a consequence of Items 1 and 2.
Item 13 Paragraph 10AA(3)(a)
270. This item would omit the reference to "paragraph (1A)(b) or (1AAA)(b)" and substitute "subsections 9(1AAC) and (1AAD)". This would be a consequence of Items 1 and 2.
Item 14 Paragraph 11(2AA)(a)
271. This item would omit the reference to "a person's safety" and substitute "the safety of that person or any other person".
Item 15 Subsection 13B(6)
272. This item would omit the reference to "paragraph 9(1A)(a)" and substitute "subsection 9(1A)". This would be a consequence of Item 1.
Item 16 Application of amendments
273. This item would provide that the amendments made by this Part apply only in relation to authorisations given under Division 1 of Part 2, after the commencement of this Part.
Part 2 – References to Attorney-General not to include junior Minister
274. This part would amend the ASIO Act and the TIA Act to provide that the powers vested in the Attorney-General may only be exercised by the Attorney-General and not a junior Minister within the Portfolio. For the avoidance of doubt, these amendments are not intended to prevent a person who is acting as the Attorney-General to exercise those powers that are vested in the Attorney-General. This part would implement recommendation 17 of the Comprehensive Review.
Australian Security Intelligence Organisation Act 1979
Item 17 After section 4
275. This item would insert section 4AA, which provides that despite subsection 19(1) of the Acts Interpretation Act 1901, a reference to the Attorney-General is a reference only to the Minister with that title. It would also insert a note clarifying subsection 19(4) of the Acts Interpretation Act 1901 means that a reference to the Attorney-General may include a reference to a person acting as the Attorney-General.
Telecommunications (Interception and Access) Act 1979
Item 18 After subsection 5(3)
276. This item would insert subsection 5(3A), which provides that despite subsection 19(1) of the Acts Interpretation Act 1901, a reference to the Attorney-General is a reference only to the Minister with that title. It would also insert a note clarifying subsection 19(4) of the Acts Interpretation Act 1901 means that a reference to the Attorney-General may include a reference to a person acting as the Attorney-General.
Item 19 Section 5(4)
277. This item would insert the word "However" before subsection 5(4). This would be a consequence of item 18.
Part 3 – Applicant for special intelligence operation authority
278. This part would amend the ASIO Act to provide that only the Director-General of Security may apply to the Attorney-General for an authority to conduct a special intelligence operation. This part would implement recommendation 68 of the Comprehensive Review.
Australian Security Intelligence Organisation Act 1979
Item 20 Subsection 35B(1)
279. This item would omit references to "a senior position-holder or an ASIO employee". This would ensure that only the Director-General of Security could apply for an authority to conduct a special intelligence operation.
Item 21 Paragraphs 35B(2)(a) and (b)
280. This item would omit references to "the applicant" and substitute "the Director-General". This would be a consequence of Item 20.
Item 22 Subsection 35B(4)
281. This item would omit references to "the applicant" and substitute "the Director-General". This would be a consequence of Item 20.
Item 23 Subsection 35F(1)
282. This item would omit references to "a senior position-holder or an ASIO employee". This would ensure that only the Director-General of Security could apply for a variation to an authority to conduct a special intelligence operation.
Item 24 Paragraphs 35F(2)(a) and (b)
283. This item would omit references to "the applicant" and substitute "the Director-General". This would be a consequence of Item 23.
Item 25 Subsection 35F(3)
284. This item would omit references to "the applicant" and substitute "the Director-General". This would be a consequence of Item 23.
Item 26 Application of amendments
285. This item would provide that the amendments made by this part apply only in relation to applications made under subsections 35B(1) and 35F(1), on or after the commencement of this part.