Revised Explanatory Memorandum
(Circulated by authority of the Minister for Foreign Affairs, the Honourable Alexander Downer MP)General outline and financial impact statement
General outline
The Intelligence Services (Consequential Provisions) Bill 2001 is accompanying legislation for the Intelligence Services Bill 2001. It provides for a number of amendments to current legislation that are required as a result of the Australian Secret Intelligence Service (ASIS) being placed on a statutory basis.
The Bill also addresses consequential amendments resulting from the establishment of a Parliamentary Joint Committee to oversee the expenditure and administration of ASIS, the Australian Security Intelligence Organisation (ASIO), and the Defence Signals Directorate (DSD). A number of amendments in respect of the legislation governing the activities of the Inspector-General of Intelligence and Security (IGIS) are also made.
Financial impact statement
It is not expected that the Bill will have a direct financial impact.
Notes on clauses
Part 1 - Preliminary
Clause 1 is a formal item which provides for the short title of the Bill.
The Bill commences at the same time as the Intelligence Services Bill.
This clause specifies that each Act referred to in a Schedule is to be amended or repealed as set out in the Schedule concerned.
This clause allows for the Governor-General to make regulations for any transitional matters stemming from the Intelligence Services Bill or this Bill.
Schedule 1 - Provisions relating to the Establishment of the Parliamentary Joint Committee on ASIO, ASIS and DSD
Part 1 - Amendments
Australian Security Intelligence Organisation Act 1979
Item 1 specifies the amendment required in Section 4 of the Australian Security Intelligence Organisation Act 1979 to make reference to the Committee on ASIO, ASIS and DSD.
Item 2 indicates the omission and substitution required in subsection 8A(6) of the Australian Security Intelligence Organisation Act 1979 to change the reference to the Parliamentary Joint Committee on the Australian Security Intelligence Organisation to the Committee on ASIO, ASIS and DSD.
Item 3 specifies the omission and substitution required in subsection 92(1) to reflect the establishment of the Committee on ASIO, ASIS and DSD.
Item 4 repeals Part VA of the Australian Security Intelligence Organisation Act 1979 as a result of the establishment of the Committee on ASIO, ASIS and DSD.
Remuneration and Allowances Act 1990
Item 5 specifies the need to repeal the table row in the Remuneration and Allowances Act 1990 relating to the Chair of the Parliamentary Joint Committee on ASIO as a result of the establishment of the Committee on ASIO, ASIS and DSD.
Item 6 refers to the need to insert a table row relating to the Chair of the Parliamentary Joint Committee on ASIO, ASIS and DSD.
Part 2 - Transitionals
This item defines a number of terms used in this part of the Bill. The defined terms are expressed as having the meaning set out in this clause unless the contrary intention appears.
Item 8: Continuation of Old Committee
This item specifies that the Parliamentary Joint Committee on ASIO will continue in existence until immediately before the time at which the Parliamentary Joint Committee on ASIO, ASIS and DSD is first established. This is to apply in relation to both the Australian Security Intelligence Organisation Act 1979 and the Remuneration and Allowances Act 1990.
This item provides for the transfer of any records in the custody, or under the control, of the Parliamentary Joint Committee on ASIO to the Parliamentary Joint Committee on ASIO, ASIS and DSD when the latter committee is first established.
Schedule 2 - Inspector-General of Intelligence and Security Act 1986
Item 1 proposes that subsection 17(9) of the Inspector-General of Intelligence and Security Act 1986 be amended to recognise that the Inspector-General needs to complete an inquiry before deciding whether the resultant report should contain criticism of an agency. It retains the right of ministers to be consulted before reports are finalised.
Item 2 proposes that subsection 19(2) of the Inspector-General of Intelligence and Security Act 1986 be repealed. This amendment will provide the Inspector-General with a right of access to specific prohibited places and restricted areas, without first seeking approval from the responsible Minister. This is to establish consistency with section 9A of the Inspector-General of Intelligence and Security Act 1986, which sets out the inspection functions of the Inspector-General.
Item 3 proposes extending the Inspector-General's maximum term of office from three to five years. This amendment would place the term of the Inspector-General on a par with most other statutory appointments. The amendment will not preclude appointments shorter than five years.
Item 4 requires the Inspector-General to report on the extent to which ASIS and the Defence Signals Directorate (DSD) comply with rules made under Clause 15 of the Intelligence Services Bill. This amendment enhances accountability by removing the discretion of the Inspector-General to report or not report such matters.
Schedule 3 - Miscellaneous Amendments
Acts Interpretation Act 1901
Item 1 amends the Acts Interpretation Act 1901 to exclude the application of section 34C of that Act to the Australian Secret Intelligence Service. Section 34C, which deals with the timing of periodic reports made by agencies to Ministers including the tabling of statements or reasons why extensions of time for lodgement may have been sought, already excludes ASIO and ONA.
Administrative Decisions (Judicial Review) Act 1977
Item 2 states that reference to the Intelligence Services Act 2001 should be included in Paragraph (d) Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977. Schedule 1 sets out decisions which are exempt from the Administrative Decisions (Judicial Review) Act 1977. Decisions already exempt under paragraph (d) of Schedule 1 include those under the Australian Security Intelligence Organisation Act 1979 and the Inspector-General of Intelligence and Security Act 1986.
Freedom of Information Act 1982
Item 3 inserts in Schedule 3 of the Freedom of Information Act 1982 (the FOI Act) a reference to the proposed subsection 41(1) of the Intelligence Services Bill 2001.
Where such secrecy provisions are listed in Schedule 3 of the Freedom of Information Act 1982, a document is exempt from disclosure to the extent that it contains information of which the secrecy provisions prohibit disclosure.
This amendment will bring ASIS into line with existing provisions for ASIO.