Revised Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Michelle Rowland MP)GENERAL OUTLINE
1. Australia confronts emerging and serious threats to its national security. To meet these threats, intelligence and security agencies must have the necessary powers and resources to protect Australian citizens and Australian interests. In matters of national security, the Parliament must strike a balance between the protection of Australia's essential security interests and the preservation of essential rights and freedoms. The key to achieving this balance is the existence of strong and effective safeguards and oversight.
2. Public trust and confidence in our security and intelligence agencies can only be assured through rigorous and effective oversight and—to the extent possible—public accountability. The greater the potential for the powers of agencies to infringe on individual liberties, the greater the need for accountability in the exercise of that power.
3. The National Intelligence Community (NIC) comprises ten agencies: the Australian Criminal Intelligence Commission (ACIC), the Australian Geospatial-Intelligence Organisation (AGO), the Australian Secret Intelligence Service (ASIS), the Australian Security Intelligence Organisation (ASIO), the Australian Signals Directorate (ASD), the Defence Intelligence Organisation (DIO), the Office of National Intelligence (ONI), the Australian Federal Police (AFP), the Australian Transaction Reports and Analysis Centre (AUSTRAC), and the Department of Home Affairs (Home Affairs).
4. The Bill would amend the Intelligence Services Act 2001 (IS Act) and the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) to ensure holistic and robust oversight of all ten NIC agencies. The Bill would expand the jurisdictions of the IGIS and PJCIS to include four additional agencies: the ACIC, AFP, AUSTRAC and Home Affairs. It would also strengthen the relationship between the PJCIS, the IGIS and the Independent National Security Legislation Monitor (INSLM), and provide the PJCIS with a power to request the IGIS conduct an inquiry, complementing the Committee's existing ability to request that the INSLM undertake a review. The Bill would also provide an own-motion power to the PJCIS to review certain legislation and a requirement that the IGIS and the Director-General of National Intelligence provide briefings to the Committee.
5. Schedule 1 of the Bill would:
- Part 1 of Schedule 1:
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- Expand the jurisdictions of the IGIS and the PJCIS to oversee the ACIC, and the intelligence functions of AUSTRAC, AFP and Home Affairs.
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- Provide that the PJCIS may, at its own initiative or on referral of a responsible Minister, the Attorney-General or either House of Parliament, review proposed reforms to counter-terrorism and national security legislation, and all such expiring legislation.
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- Enable the PJCIS to request the IGIS conduct an inquiry into the legality and propriety of particular operational activities of the agencies within the IGIS's jurisdiction, and if the IGIS undertakes an inquiry at the request of the PJCIS, require the IGIS to provide a report to the PJCIS or notify the reasons if a report is not provided.
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- Clarify the legislation which enables the PJCIS to request a briefing from the INSLM.
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- Require the Inspector-General and the Director-General of the Office of National Intelligence (ONI) to provide annual briefings to the PJCIS.
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- Make a number of technical amendments to the IS Act to modernise and clarify the provisions to ensure the PJCIS's enabling legislation is adapted to contemporary circumstances.
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- Remove the ACIC from the oversight jurisdiction of the Parliamentary Joint Committee on Law Enforcement (PJCLE).
- Part 2 of Schedule 1:
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- Make consequential amendments to ensure that information that is protected by secrecy offences under relevant legislation can be disclosed to IGIS officials performing duties or functions, or exercising powers, as IGIS officials. These amendments would allow for the transfer of complaints regarding AUSTRAC and Home Affairs between the IGIS and other integrity bodies to facilitate effective consideration of those complaints by the appropriate body.
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- Make consequential amendments to address overlapping jurisdiction between the IGIS and relevant oversight bodies.
6. Schedule 2 of the Bill would:
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- Amend the review and access of ACIC criminal intelligence assessment records under the archives law.
7. Schedule 3 of the Bill would:
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- Amend the Criminal Code to introduce an exemption from civil and criminal liability for defence officials and others, for certain computer related conduct connected to an effect outside Australia.
8. Schedule 4 of the Bill would:
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- Amend the meaning of 'counter-terrorism and national security legislation' for the purpose of the Independent National Security Legislation Monitor Act 2010 (INSLM Act), to ensure the Independent National Security Legislation Monitor (INSLM) is able to review any Commonwealth legislation relating to counter-terrorism or national security.
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- Make a number of minor amendments to streamline and modernise provisions in the INSLM Act, to ensure the INSLM's enabling legislation is adapted to contemporary circumstances.
9. Schedule 5 of the Bill contains application and transitional provisions.
FINANCIAL IMPACT
10. The Government has committed $12.2 million over three years from 2024-25, and $4.9 million ongoing, to support the expanded jurisdiction of the IGIS, and $1.3 million over four years from 2023-24, and $0.3 million ongoing, to support the expanded jurisdiction of the PJCIS, contained in the 2023-24 Budget.