Explanatory Memorandum
(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)GENERAL OUTLINE
1. The Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 (the Bill) contains a package of amendments to the Criminal Code Act 1995 (Criminal Code) and the Intelligence Services Act 2001 (IS Act). The measures in the Bill have been included as a result of instances of operational need identified by relevant agencies and have been brought forward together to ensure that the Parliamentary Joint Committee on Intelligence and Security (the Committee) has an opportunity to conduct a review of them, and report to the Parliament on its findings.
2. The Bill was the subject of an inquiry by the Parliamentary Joint Committee on Intelligence and Security (the Committee). The Committee tabled its Advisory Report on the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014 (the Parliamentary Joint Committee on Intelligence and Security Report on the Bill) on 20 November 2014. The Government accepted, or accepted-in-principle, all of the Committee's recommendations and, on 25 November 2014, the Senate agreed to amendments implementing those recommendations that recommended changes to the Bill.
Criminal Code
3. Australia faces a serious and ongoing terrorist threat which has recently been raised by the return of Australians who have participated in foreign conflicts or undertaken training with extremist groups overseas ('foreign fighters'). This heightened threat environment has seen an increased operational tempo from Australia's law enforcement agencies to protect the public from terrorist acts, including some widely noted counter-terrorism operations conducted by Joint Counter-Terrorism Teams comprising the Australian Federal Police and state police.
4. The amendments in this Bill to further strengthen and enhance the operation of the control order regime in Part 5.3 of the Criminal Code have been developed in response to operational issues identified following these counter-terrorism raids.
5. The Bill will also amend the Criminal Code in response to the Committee's Advisory Report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014. Recommendation 8 of the Committee's report proposed that the Attorney-General advise the Committee before amending a regulation that lists a terrorist organisation by adding an alias or removing a former name and to allow the Committee to review any proposed change during the disallowable period. This recommendation was not included in the government amendments to the Counter Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 introduced on 28 October 2014 as it required further consultation with states and territories in accordance with the Intergovernmental Agreement on Counter-Terrorism Laws 2004.
6. On 25 November, the Senate agreed to amendments to the Bill to fully implement two outstanding recommendations made by the Committee in its Advisory Report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 (the Parliamentary Joint Committee on Intelligence and Security Report on the Foreign Fighters Bill).
7. In addition, the Senate agreed four amendments to the Criminal Code Act 1995 (Criminal Code) to correct minor oversights that occurred in the drafting of the Bill and the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (the Foreign Fighters Act).
Intelligence Services Act
8. In the context of the Government's decision to authorise the Australian Defence Force (ADF) to undertake operations against the Islamic State terrorist organisation in Iraq, there is an urgent need to make amendments to the IS Act.
9. The amendments are directed to two key areas. First, the primary purpose of the amendments is to better facilitate the Australian Secret Intelligence Service (ASIS) providing timely assistance to the ADF in support of military operations, and its cooperation with the ADF on intelligence matters.
10. Secondly, the amendments also address practical limitations identified in the arrangements for emergency ministerial authorisations which apply to all three IS Act agencies, ASIS, the Australian Signals Directorate (ASD) and the Australian Geospatial-Intelligence Organisation (AGO).
Support to the ADF
11. The requirement for these amendments arises out of the different circumstances of Iraq to Afghanistan.
12. ASIS provided essential support to the ADF in Afghanistan. The support ranged from force protection reporting at the tactical level, through to strategic level reporting on the Taliban leadership. ASIS reporting was instrumental in saving the lives of Australian soldiers and civilians (including victims of kidnapping incidents), and in enabling operations conducted by Australian Special Forces. However, differences in the circumstances in Iraq mean that reliance on existing provisions of the IS Act in relation to the functions of ASIS (which are not specific to the provision of assistance to the ADF) is likely to severely limit ASIS's ability to provide such assistance in a timely way.
13. The amendments will remedy this by making explicit that it is a statutory function of ASIS to provide assistance to the ADF in support of military operations, and to cooperate with the ADF on intelligence matters.
14. In addition, there are a small number of amendments to facilitate the timely performance by ASIS of the new function. These address the provision of Ministerial authorisation (by the Minister responsible for ASIS) for relevant activities and the requirement for the agreement of the Attorney-General as the Minister responsible for to that authorisation in specified circumstances. All of the existing safeguards in the IS Act will apply to the performance of the new function, including the thresholds for granting authorisations in subsection 9(1), Ministerial reporting requirements on the relevant activities undertaken in accordance with an authorisation, and the independent oversight of the Inspector-General of Intelligence and Security (IGIS).
Emergency Ministerial authorisations
15. Experience in responding to urgent requirements for ministerial authorisations has identified that the existing emergency authorisation arrangements under section 9A of the IS Act do not sufficiently address the need for ASIS, ASD and AGO to be able to obtain a Ministerial authorisation in an extreme emergency. The proposed amendments will address limitations identified in this provision.
16. Currently, section 9A requires an emergency Ministerial authorisation to be provided by one of the Prime Minister, the Defence Minister, the Foreign Minister or the Attorney-General. Section 9A does not provide for the contingency that none of these Ministers may be available to issue an emergency authorisation.
17. Further, section 9A does not make provision for the contingency that the Attorney-General may not be readily available or contactable to provide his or her agreement to the making of an authorisation, in the circumstances in which such agreement is required. (Namely, if the activity or activities in respect of which an authorisation is sought relate to an Australian person who is, or is likely to be, involved in activities that are, or are likely to be, a threat to security.)
18. In addition, section 9A requires emergency authorisations to be issued in writing, and does not accommodate the necessity for such authorisations to be issued orally, and documented in a written record. This stands in contrast to a number of other emergency authorisation or warrant based provisions that permit oral authorisations, including those applicable to law enforcement warrants authorising the searching of premises, the interception of telecommunications and the use of surveillance devices; and the authorisation by the Attorney-General of special intelligence operations conducted by ASIO.
19. Such limitations mean that, in practice, the arrangements for the issuing of emergency authorisations are not as streamlined as they need to be, and are incompatible with the circumstances of extreme urgency in which emergency authorisations are intended to operate. These limitations may mean that time critical opportunities to collect vital intelligence are lost or compromised if requirements in relation to matters of form cannot be met, or particular individuals are not available, and legislative provision is not made for contingency arrangements in such cases.
20. Accordingly, the proposed amendments make provision for the following contingency arrangements:
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- one of the relevant Ministers may issue an emergency authorisation orally, to be followed with a written record of the authorisation;
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- if none of the relevant Ministers are readily available and contactable, the head of an IS Act agency may issue a limited emergency authorisation; and
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- where the Attorney-General's agreement is required to the issuing of an emergency authorisation, and the Attorney-General is not readily available or contactable, the agreement to the issuing of an emergency authorisation must be sought from the Director-General of Security (if readily available or contactable).
21. The improvements to the emergency authorisation requirements are subject to rigorous safeguards. These include a maximum duration of 48 hours (without any ability to renew), and notification and reporting requirements to the responsible Minister and IGIS.
FINANCIAL IMPACT STATEMENT
1. The measures in the Bill do not have a financial impact.