House of Representatives

Explanatory Memorandum

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

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

1. This Bill will implement the Government's response to some of the recommendations of the Comprehensive Review of the Legal Framework of the National Intelligence Community (the Comprehensive Review). The Comprehensive Review examined the effectiveness of the legislative framework governing the national intelligence community (NIC) and prepared findings and recommendations for reforms. This Bill addresses 12 of the outstanding recommendations of the Comprehensive Review, as well as a number of other measures identified as necessary in consultation with our national security agencies.

2. The measures in the Bill will support Australia's national security agencies by strengthening identity protections for their employees, increasing operational flexibility and sharing of information, clarifying some authorities to provide greater certainty, and supporting quicker processing of security clearance suitability assessments. The Bill will also promote increased oversight of our national security agencies by introducing additional safeguards to provide oversight of Australian Security Intelligence Organisation's (ASIO) work on security assessments and vetting, and limiting who can exercise certain powers.

3. The Bill will address the recommendations of the Comprehensive Review to:

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Refine the framework for security assessments in the Australian Security Intelligence Organisation Act 1979 (ASIO Act) (Schedule 1 to the Bill) by:

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Amending the definition of 'prescribed administrative action' in the ASIO Act to include the exercise of powers or functions in relation to parole, security guard licences and firearms licences (recommendation 193).

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Inserting a regulation-making power into the definition of 'prescribed administrative action' in the ASIO Act. Such regulations must be reviewed by the Parliamentary Joint Committee on Intelligence and Security (the PJCIS), and be subject to an extended disallowance period (recommendation 194).

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Providing that ASIO is not prevented from communicating information to States or authorities of a State in relation to the commission, or intended commission, of a serious crime or where it is required in the national interest (subsections 18(3) and 19A(4) of the ASIO Act).

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Providing that decisions made under the Foreign Acquisitions and Takeovers Act 1975 are not 'prescribed administrative actions' under the ASIO Act (recommendation 197).

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Amending the ASIO Act to allow ASIO to make a preliminary communication to a State or authority of the State, whether directly, or indirectly through a Commonwealth agency, where the requirements of security make it necessary and as a matter of urgency, to take action of a temporary nature pending the furnishing of a security assessment, including consequent to the amendments to the definition of 'prescribed administrative action' (recommendation 198).

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Amending the ASIO Act to require ASIO to notify the Inspector-General of Intelligence and Security (IGIS), in accordance with a protocol, where it has taken longer than 12 months to finalise a security assessment. However, the requirement to notify will not apply for ASIO-initiated assessments or decisions, or if ASIO is notified the security assessment is no longer required (recommendation 199).

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Clarifying the application of the definitions in section 35 in the ASIO Act.

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Enhance the protection of identities of Australian Secret Intelligence Service (ASIS), Australian Signals Directorate (ASD) and ASIO staff members and the protection of intelligence information and documents (Schedule 2 to the Bill) by:

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Amending the Intelligence Services Act 2001 (IS Act) to provide that the Director-General of ASIS and Director-General of ASD can authorise the use of a Commonwealth authority as the cover employer for staff members of ASIS and ASD, or former staff members of ASIS and ASD, including where the person became a staff member before the amendments commence or requires cover employment for a period that occurred before the amendments commence. The amendments will also provide an immunity from criminal liability for persons who facilitate, or provide support in furtherance of those cover arrangements. Section 41AC of the IS Act will provide protection from Commonwealth, State or Territory law to a person who, in the performance of the person's powers, functions or duties as a staff member, or functions attached to their professional capacity, facilitates the current or former ASIS or ASD staff member's cover arrangements for the purposes of subsection 41AA(1), in accordance with a determination under subsection 41AB(1). The protection only extends to actions that would not ordinarily be an offence if the Commonwealth authority were the current or former staff member of ASIS or ASD's employer (recommendation 70).

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Amending the ASIO Act to provide that the Director-General of Security can authorise the use of an authority of the Commonwealth as the cover employer for ASIO employees and affiliates, or former ASIO employees and affiliates, including where the person became an employee or affiliate before the amendments commence or requires cover employment for a period that occurred before the amendments commence. The amendments will also provide an immunity from criminal liability for persons who facilitate or provide support in furtherance of those cover arrangements. Section 92D of the ASIO Act will provide protection from Commonwealth, State or Territory law to a person who, in the performance of the person's powers, functions or duties as a staff member, or functions attached to their professional capacity, facilitates the current or former ASIO employee or ASIO affiliate's cover arrangements for the purposes of subsection 92B(1), in accordance with a determination under subsection 92C(1). The protection only extends to actions that would ordinarily not be an offence if the Commonwealth authority were the current or former ASIO employee or ASIO affiliate's employer.

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Consolidating the secrecy offences in sections 39-40M of the IS Act (recommendation 143).

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Protecting the identities of ASIO and ASIS staff members and agents from disclosure under the Archives Act 1983 (recommendation 190).

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Amending the publication offence in the ASIO Act to strengthen the protections for the identity of ASIO employees and affiliates, and more closely align those protections with the protections currently afforded to the staff members and agents of ASIS under the IS Act.

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Enhance the efficacy and efficiency of the authorisation processes for certain intelligence activities (Schedule 3 to the Bill) by:

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Amending the IS Act ministerial authorisation process to enable the Attorney-General's agreement to enable an agency to produce intelligence on, or undertake activities that will or are likely to have a direct effect on, an Australian person, to be obtained before or after the authorisation of the responsible Minister to authorise an agency. This measure will allow the Attorney-General and relevant Minister to provide agreement or authorisation in any order, providing practical flexibility. Regardless of the order in which the authorisation is sought, it will not take effect until the Attorney-General has given their agreement (recommendation 2).

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Providing that under the ASIO Act and the Telecommunications (Interception and Access) Act 1979 (TIA Act), the powers vested in the Attorney-General may only be exercised by the Attorney-General and not by a junior minister (recommendation 17).

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Providing that applications to the Attorney-General for a special intelligence operation authorisation should only be made by the Director-General of Security (recommendation 68).

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Clarify the references to 'a person' in Division 1 of Part 2 of the IS Act.

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Updating the 'serious risk' to safety threshold in section 9B of the IS Act to 'significant risk' to safety, in line with other provisions in that Act.

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Increase oversight and clarify provisions relating to security vetting and security clearance related activities in the ASIO Act (Schedule 4 to the Bill) by:

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Amending paragraph 16(1C)(b) of the ASIO Act to allow the Director-General to delegate the power or function to make non-prejudicial security clearance suitability assessments (SCSAs) to any suitable ASIO employee or affiliate.

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Clarifying the application of the definitions in section 82A in the ASIO Act.

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Amending the ASIO Act to require ASIO, to notify the IGIS, in accordance with a protocol, where it has taken longer than 12 months to finalise a security clearance suitability assessment or security clearance decision. However, the requirement to notify will not apply for ASIO initiated assessments or decisions, or if ASIO is notified the security clearance suitability assessment or security clearance decision is no longer required (recommendation 199).

Human rights implications

4. This Bill engages the following rights under the International Covenant on Civil and Political Rights (ICCPR):

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the prohibition on interference with privacy in Article 17;

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the right to a fair hearing in Article 14(1); and

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the right to freedom of expression in Article 19(2).

5. The Bill may also engage the right to work in Article 6(1) under the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The prohibition on interference with privacy

6. Article 17 of the ICCPR provides:

(1) No person shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.

(2) Everyone has the right to the protection of the law against such interference or attacks.

7. Although the United Nations Human Rights Committee has not defined privacy, it should be understood to comprise freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy.

8. This right may be subject to permissible limitations where those limitations are provided by law and are non-arbitrary. In order for limitations to not be arbitrary, they must be aimed at a legitimate objective and be reasonable, necessary and proportionate to that objective.

The right to a fair hearing

9. Article 14(1) of the ICCPR relevantly provides that all persons shall be equal before the courts and tribunals and, in the determination of their rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing before a competent, independent and impartial court or tribunal established by law.

The right to freedom of expression

10. The right to freedom of expression in Article 19(2) of the ICCPR includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. This extends to a right of access to information held by public bodies.

11. Article 19(3) relevantly states that the exercise of the right to freedom of expression carries with it special duties and responsibilities, and may therefore be subject to certain restrictions but only where these are provided by law and are necessary, for the protection of national security or public order.

Right to Work

12. The right to work in Article 6(1) of the ICESCR provides that States recognise the right to work, which includes the right of everyone to the opportunity to gain his or her living by work which he or she freely chooses or accepts, and will take appropriate steps to safeguard this right. The right to work does not equate to a guarantee to particular employment. As the Parliamentary Joint Committee on Human Rights (PJCHR) notes in its Guide to Human Rights, the right to work:

... is not to be understood as providing an unconditional right to obtain employment or for the state to provide everyone with employment; rather it is a right to choose an occupation and engage in work. It applies to all types of work, both in the public and private sectors, and to the formal and informal labour market.

Schedule 1 – Security assessments

13. Schedule 1 to the Bill relates to security assessments under Part IV of the ASIO Act. A security assessment is a statement in writing furnished by ASIO to a Commonwealth agency, State or authority of a State expressing any recommendation, opinion or advice on, or otherwise referring to, the question whether it would be consistent with the requirements of security for prescribed administrative action to be taken in respect of a person, or whether the requirements of security make it necessary or desirable for prescribed administrative action to be taken in respect of a person.

14. Subsection 35(1) of the ASIO Act defines the types of action that are 'prescribed administrative action' for the purpose of Part IV.

15. Part IV of the ASIO Act currently provides that, subject to certain exceptions, a Commonwealth agency, State or authority of a State cannot take, refuse to take or refrain from taking prescribed administrative action on the basis of any communication in relation to a person made by ASIO, otherwise than in the form of a security assessment.

16. Part IV also provides that if ASIO furnishes a security assessment, then unless an exception applies, ASIO must notify the affected person of the security assessment, and that person may apply to the Administrative Appeals Tribunal (AAT) to seek merits review of the decision.

17. Schedule 1 to the Bill will amend subsection 35(1) of the ASIO Act to expressly classify certain actions that are and are not prescribed administrative action. It will also create new exceptions to the rule that ASIO cannot communicate information to a Commonwealth agency, State or authority of a State in relation to a person, otherwise than in the form of a security assessment.

Article 17 – Right to Privacy

18. New paragraphs 35(1)(g) and (h) will insert as new classes of prescribed administrative action the exercise of any power or performance of any function relating to parole, or a decision whether to issue or revoke a firearms licence or a licence to work as a security guard. Currently, ASIO's functions include communicating intelligence relevant to security with Commonwealth agencies and States, which can include information that may inform a decision by the Commonwealth agency, the State or authority of the State regarding parole or whether to issue or revoke a firearms licence or a licence to work as a security guard. The introduction of paragraphs 35(1)(g) and (h) will include decisions about parole, granting or revoking a firearms licence or granting or revoking a security guard licence as 'prescribed administrative action' and bring these communications within Part IV of the ASIO Act.

19. By providing that ASIO must communicate this information by way of a security assessment for the purposes of prescribed administrative action, subject to limited exceptions, this amendment will engage the right to privacy. To the extent that the right to privacy is engaged by classifying decisions about parole, firearms licences or security guard licences as prescribed administrative action, this measure will promote the right to privacy by bringing these communications within the scope of Part IV of the ASIO Act, including the requirement to notify the affected person of an assessment and AAT review mechanisms.

20. New subsection 39(3) of the ASIO Act will allow a Territory body (being a Commonwealth agency for the purposes of the ASIO Act) to take prescribed administrative action that are decisions relating to a firearms licence or a licence to work as a security guard, on the basis of certain ASIO communications other than security assessments, where ASIO has information relevant to the possible commission of a serious crime or a matter of national interest (subsections 18(3) and 19A(4)).

21. New subsection 40(3) of the ASIO Act will enable ASIO to communicate information to a State or authority of a State, other than by way of assessment, under subsections 18(3) and 19A(4) (which allow ASIO to communicate information to authorities of the Commonwealth or State where the information relates to the commission or intended commission of a serious crime, communications in the national interest or for the purposes of co-operating with or assisting another body in the performance of that body's functions).

22. The effect of these amendments is to ensure ASIO's continued ability to communicate information relevant to subsections 18(3) and 19A(4) to an authority given the effect of the introduction of paragraph 35(1)(h) would otherwise be to remove this ability in relation to firearms licences and licences to work as a security guard.

23. Without this change, the introduction of paragraph 35(1)(h) would prevent ASIO from providing information relevant to a firearms licence or a licence to work as a security guard to an authority under subsections 18(3) and 19A(4) of the ASIO Act, where they are considering prescribed administrative action in relation to the issuance or revocation of a firearms licence or licence to work as a security guard, until it is communicated in the form of a security assessment. For example, without this amendment, ASIO would not be able to provide a State authority with information under subsection 18(3) about a planned armed robbery, for the purpose of the State authority to use that information to cancel a firearms or security guard licence until it was received in the form of a security assessment. This could create a risk to public order and the rights and freedoms of others.

24. As this amendment is intended to enable ASIO to continue to communicate information under subsections 18(3) and 19A(4), the measure does not limit the right to privacy any further than the current ASIO Act provisions enable.

25. Currently, ASIO may communicate intelligence to States and authorities of States in relation to parole decisions, firearms licences and security guard licences, for purposes relevant to security, where it is relevant to security. ASIO is not required to provide this by way of a security assessment as decisions relating to these licences, and parole are generally, not prescribed administrative action. Consequent to new paragraph 35(1)(h), ASIO would not be permitted to communicate that intelligence otherwise than in the form of a security assessment, by operation of subsection 40(2). New subsection 40(1A) of the ASIO Act will enable ASIO to make a preliminary communication, pending the furnishing of a security assessment to a State or authority of a State (whether directly, or indirectly through a Commonwealth agency) as a matter of urgency for these purposes. New subsection 40(1B) sets out the temporary actions that a State or authority of a State may decide to take in response to a preliminary communication under new subsection 40(1A).

26. Currently, the ASIO Act prohibits ASIO from providing information to States and authorities of States other than in the form of a security assessment where it knows that information is intended or likely to be used by the State or authority of the State in considering prescribed administrative action against a person. As a result, ASIO may be faced with a situation where it is legally barred from communicating security advice to a State or authority of a State, even where it knows urgent action is required to prevent a threat to security.

27. Commonwealth and State authorities are increasingly working closely on security issues and ASIO has been called on to provide advice to State agencies more regularly. These measures will allow ASIO to communicate information to States and authorities of States in the event of an urgent threat to security where it is not possible to provide a formal security assessment in the timeframe. This will allow the State or authority to take temporary action as needed to address the threat. ASIO must follow up the preliminary communication by furnishing a formal security assessment as soon as reasonably practicable. The notification and review rights afforded under Part IV of the ASIO Act will then be available to the person the subject of the subsequent security assessment.

28. New paragraph 40(1B)(a) will enable ASIO to provide communications to States or authorities of States, or to Commonwealth agencies to transmit to States or authorities of States, as a matter of urgency to take action of a temporary nature to prevent access by a person to any information or place, access to which is controlled or limited on security grounds, or to prevent a person from performing an activity in relation to or involving a thing (other than an information or place), if the person's ability to perform that activity is controlled or limited on security grounds.

29. Enabling ASIO to provide communications for this purpose will engage and limit the right to privacy. However, the limitation is reasonable and necessary to ensure that States and authorities of States, are able to take action upon receipt of information that identifies imminent security risks to the Australian community. It is in the interests of public order, community safety and protecting the rights and freedoms of others to allow ASIO to communicate information, as a matter of urgency pending the furnishing of a security assessment, to a State or authority of a State. In particular, it enables States and authorities of States, and/or Commonwealth agencies transmitting to State and authorities of States, to take immediate action to prevent a threat to public order or national security. Further, such communication would enable ASIO to meet community expectations that, if it came into possession of relevant information, it would be provided to another agency for action as quickly as possible. Such action may only be of a temporary nature, and ASIO would be required to subsequently furnish a security assessment to give effect to that advice on a more permanent basis.

30. To the extent that new paragraph 40(1B)(b) enables States or authorities of States to take temporary action, the effect of this amendment is to ensure ASIO's continued ability to communicate information of this kind that is related to security as a matter of urgency. New paragraph 40(1B) does not further limit the right to privacy beyond existing provisions in the ASIO Act.

31. While the measure will engage the right to privacy, it will not limit the right beyond ASIO's existing powers and functions to communicate information related to security.

32. To the extent that new measures will limit the right to privacy, the limitations are reasonable and necessary to achieve the legitimate objectives of protecting national security and public order. Defining prescribed administrative action to include decisions about parole, firearms licences and security guard licences promotes the right to privacy and amendments to the ASIO Act consequent to this enable ASIO to continue to communicate advice in urgent situations does not change the existing engagement with the right to privacy.

Article 14(1) – Right to a Fair Hearing

33. Part IV of the ASIO Act provides that, subject to relevant exceptions, ASIO may only communicate information in relation to a person, to a Commonwealth agency, State or authority of a State, for the purposes of prescribed administrative action, in the form of a security assessment. Schedule 1 will amend the ASIO Act to introduce new categories of prescribed administrative action.

34. Part IV of the ASIO Act provides a mechanism for review in the AAT, where ASIO has furnished a person with an adverse or qualified security assessment.

35. Providing that decisions about parole, firearms licences and security guard licences are prescribed administrative actions will provide affected persons with access to the notification and review rights available under Part IV. Part IV provides that a person the subject of an adverse or qualified security assessment must be notified of that assessment. The person can then seek review of that assessment by the AAT. The availability of notification and review rights reduces any limitations on other rights that may be impacted by the furnishing of security assessments under Part IV.

Article 6(1) – Right to Work

36. Schedule 1 may impact a person's right to work by enabling ASIO to provide preliminary communications to a State or an authority of a State, or to a Commonwealth agency to transmit to a State or authority of a State, where the information could be used for the purposes of prescribed administrative action, in relation to matters that might impact a person's access to any information or place, or ability to perform an activity in relation to, or involving a thing, which is controlled on security grounds, in relation to their employment.

37. Subsection 40(1A) will make it a function of ASIO to make a preliminary communication directly to the State or the authority of the State, or indirectly through a Commonwealth agency for transmission to a State or authority of State, if the Director-General or an authorised person is satisfied that the requirements of security make it necessary as a matter of urgency for the State or authority to take action of a temporary nature. Following the preliminary communication, ASIO must furnish a security assessment, to support the taking of permanent action.

38. Temporary actions under paragraph 40(1B)(a) can include preventing access by a person to any information or place, or preventing a person from performing an activity in relation to, or involving, a thing on security grounds pending the furnishing of a security assessment. Such preliminary communications could result in a person's employment or employment prospects with that State in relation to particular roles or industries requiring such access or ability to carry out such activities being adversely affected. The right to work does not equate to a right to work in a particular position and this measure will not otherwise prevent a person seeking employment of their choosing that is not subject to the requirement to obtain and maintain a firearms licence or a security guard licence.

39. The amendment pursues the legitimate objectives of protecting the life and security of the Australian community, mitigating any imminent and significant risks to their safety, and addressing national security risks to Australia. To the extent that a person may be prevented from employment in a particular position as a result of a preliminary communication, any limitation on the right to work is reasonable, necessary and proportionate to achieving these objectives as it serves to protect people from a heightened risk of imminent harm. Currently, ASIO currently may face a situation where it is unable to communicate security advice to a State or authority of the State, even where it has information that urgent action is required to prevent a threat to security. These amendments intend to rectify this limitation.

40. Any limitation on the right to work is proportionate and the least rights restrictive means of achieving the above objectives, and will be implemented alongside a number of safeguards and preconditions:

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action taken in reliance on the preliminary communication by a State or authority of the State must be of a temporary nature, and must only be taken to prevent access by a person to information, places or things, access to which is controlled on security grounds

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ASIO must only communicate advice other than in the form of a security assessment where it is satisfied that the requirements of security make it necessary to provide the advice as a matter of urgency, and

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the preliminary advice must be followed by a formal security assessment which must be furnished as soon as reasonably practicable.

To the extent that a preliminary communication may limit the right to work, any limitation is reasonable, necessary and proportionate in achieving a legitimate objective.

Schedule 2 – Protecting Identities and Information

Article 17 – Right to Privacy

41. Schedule 2 to the Bill includes measures which promote the right to privacy by:

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exempting documents that identify or have the potential to identify current and future ASIO employees, ASIO affiliates, staff members of ASIS or agents of ASIS, from being accessed under the Archives Act 1983 (Archives Act); and

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updating and modernising the publication offence in the ASIO Act, relating to ASIO employees and ASIO affiliates, to take into account developments in technology and modern communications. It introduces a new offence under the ASIO Act relating to disclosure of the identity of an ASIO employee or ASIO affiliate.

42. Section 31 of the Archives Act provides that a Commonwealth record that is in the open access period as defined in subsection 3(1) of the Archives Act, that is in the care of the Archives or in the custody of a Commonwealth institution and is not an exempt record, must be made available for public access. Proposed subsections 33(4A) and (4C) of the Archives Act will provide that a Commonwealth record is an exempt record if it contains information or matter that identifies or has the potential to identify an ASIO employee, an ASIO affiliate, a staff member of ASIS or an agent of ASIS.

43. The measures to exempt documents which identify ASIO and ASIS agents and affiliates from access under the Archives Act aims to protect personal information that identifies, or has the potential to identify, officers and agents who undertake action to support the proper performance of ASIO and ASIS. Given the sensitive nature of the work they perform, it is necessary that their identity be, and remain, protected even after their employment ceases. In furtherance of this objective, this measure promotes the right to protection against arbitrary interference with privacy by providing that identifying documents are exempt records under the Archives Act.

44. New section 92 modernises the publication offence so that any form of publication which identifies an ASIO employee or affiliate will be an offence, regardless of the mode by which the publication is made. The amendments will repeal and replace section 92 to remove the method of publication, namely in a newspaper or other publication, or by radio broadcast or television, or otherwise make public from the offence of making public the identity of ASIO employees and ASIO affiliates. The removal of particular types of publication methods takes into account developments in technology and modern methods of communication including social media, and ensures that the offences apply to making information public by any means. The existing designation of specific methods of publication rather than a blanket inclusion of all methods resulted in a potential gap in the legislation whereby methods of publication not specifically mentioned may not be considered as an offence. An exception to the offence provides that a former ASIO employee or affiliate can consent to their identity being made public.

45. This measure promotes the right to privacy of ASIO employees and affiliates by ensuring that offences relating to disclosure of identifying documents are not limited to particular modes of communication.

46. New section 92A introduces a new offence that will also promote the right to privacy of existing ASIO employees and affiliates, by prohibiting the disclosure of information that results in their identification where the person intended or knew that the disclosure would endanger the health or safety of a person, or where they intend to prejudice the effective performance of ASIO's functions. This offence promotes the right to privacy of current ASIO employees and affiliates by providing a penalty for the disclosure of identifying information about those persons.

Article 19(2) – Right to Freedom of Expression

47. Schedule 2 to the Bill includes measures which may engage the right to freedom of expression by:

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exempting records that identify an ASIO or ASIS employees, affiliates and agents from the requirements of the Archives Act; and

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updating and modernising the publication offence in the ASIO Act to take into account developments in technology and modern communications.

48. The effect of the amendments to the Archives Act is such that a document that includes information that identifies, or has the potential to identify, an ASIO employee, an ASIO affiliate, or a staff member or agent of ASIS cannot be made public. This restriction on access to documents limits the right to freedom of expression as it could curtail public reporting on matters relating to ASIO and ASIS. The measure is required to protect the lives and safety of ASIO employees, ASIO affiliates, or staff members or agents of ASIS as they may be targeted due to the nature of their work if their identity was published. To the extent that the measure limits the right to freedom of expression, any limitation is reasonable, necessary and proportionate in achieving the legitimate objective of protecting national security and the rights and freedoms of others.

49. To the extent that new section 92 extends the scope of the offence for making public the identity of ASIO employees and affiliates to additional medium types, the measure may engage the right to freedom of expression. This engagement is limited to means of expression not already an offence under current section 92 of the ASIO Act. It is necessary to protect the identity of certain classes of persons who provide services to ASIO in the performance of their statutory functions. ASIO employees and affiliates often perform their roles, at great personal risk, in the interests of Australia's national security. Identification of such persons, whether published broadly or in limited circumstances, has the potential to result in grave harm to these individuals, including risk to life, if their connections to ASIO were exposed. If such protections were not afforded to these individuals this might impact their willingness to provide assistance. It is reasonable and proportionate that the current offence be updated to remove limitations on the methods of publication, so that the offence will apply regardless of the means by which the information is made public.

50. New subsection 92(2) provides an exception to the offence in subsection 92(1) where the responsible Minister or Director-General of Security has consented in writing to the information being made public, which is currently allowed for under the replaced subsection 92(1). New subsection 92(2A) allows for a third party to rely on consent from a former ASIO employee or affiliate to make information public where it would otherwise be an offence under subsection 92(1). It will also be an exception under subsection 92(3) where the former ASIO employee or affiliate causes or authorises the information to be made public. The offence is proportionate to the legitimate objectives of seeking to protect the identities of former ASIO employees and affiliates, and protecting national security, as prosecution for the offence can only be instituted by or with the consent of the Attorney-General.

51. New section 92A of the ASIO Act will make it an offence for a person to disclose information that identifies, or is likely to result in the identification of an ASIO employee or ASIO affiliate or a former ASIO employee or affiliate, where the person intends or knows that the disclosure will endanger the health or safety of a person or where they intend to prejudice the effective exercise of ASIO's powers. Identification of such persons, whether published broadly or in limited circumstances, has the potential to result in grave harm to these individuals, including risk to life, if their connections to ASIO were exposed. This measure addresses this risk by providing that it is an offence to publicly identify former or current ASIO employees or affiliates where the health or safety of a person would be at risk, or where the intent is to prejudice ASIO's operations.

52. This restriction on disclosure of information regarding the identities of ASIO personnel may limit the right to freedom of expression.

53. The purpose of these amendments is to protect the identity of certain classes of persons who provide services to ASIO in the performance of their statutory functions. ASIO employees and ASIO affiliates often perform these roles, at great personal risk, in the interests of Australia's national security. If such protections were not afforded to these individuals this might impact their willingness to provide assistance. This could also have national security and public order implications. As such, it is reasonable that publication of such information be treated as a serious offence. Article 19(3) states that the exercise of the right to freedom of expression carries with it special duties and responsibilities, and may therefore be subject to certain restrictions but only where these are provided by law and are necessary, for the protection of national security or public order. It is reasonable, necessary and proportionate to provide a strong disincentive to publishing the identities of former and current ASIO employees and affiliates to protect those employees and affiliates and the operations of ASIO.

Article 14(2) – Right to a Fair Hearing

54. The right to a fair hearing and a fair trial includes the right in article 14(2) to the presumption of innocence until guilt is proven. Offences which place an evidence burden on a defendant limit the right to be presumed innocent.

55. Notes to subsections 92(2) and 92(3) provide that the defendant bears the evidential burden of proving that they have the written consent or have received authorisation to make public the information. This will limit the right to be presumed innocent in Article 14(2). However this limitation is reasonable, necessary and proportionate due to the deteriorating security environment making those working in the intelligence community 'high value targets'. Publication of the identity of a former ASIO employee or ASIO affiliate has the potential to cause grave harm to security. Release of the identity of former 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. In these circumstances, it is appropriate that a person seeking to rely on consent or authorisation to make public the identity of a former ASIO employee or affiliate bear the burden of providing evidence that they had the relevant consent or authorisation to do so. In most circumstances, it will be evidence that will be held by the person seeking to rely on the exception. To the extent that the reverse onus of proof limits the right to be presumed innocent, the limitation is reasonable, necessary and proportionate.

Schedule 3 – Authorisations for intelligence activities

Article 17 – Right to Privacy

56. Schedule 3 to the Bill includes amendments to the ministerial authorisation framework in the IS Act.

57. Section 8 of the IS Act provides that the responsible Minister in relation to ASIS, the Australian Geospatial-Intelligence Organisation (AGO) and ASD must issue a written direction, that amongst other things, must require ASIS, AGO and ASD to obtain an authorisation before undertaking activities for the specific purpose of producing intelligence on, or that will, or are likely to, have a direct effect on, an Australian person.

58. Section 9 of the IS Act provides that, before the responsible Minister may give an authorisation, the Minister must be satisfied of a number of matters, including the matters specified in subsection 9(1A): that the Australian person is, or is likely to be involved in different categories of activities including, among other things, activities that present a serious risk to a person's safety and activities that are, or are likely to be, a threat to security. Pursuant to existing paragraph 9(1A)(b), before the Minister may give an authorisation in relation to a person who is, or is likely to be involved in activities that are, or are likely to be, a threat to security, they must first obtain the agreement of the Attorney-General.

59. The amendments proposed to be introduced by Schedule 3 do not substantially alter the privacy impact of the ministerial authorisation framework. New subsections 9(1A), (1AAA), (1AAC) and (1AAD) will amend the IS Act to provide that the agreement of the Attorney-General can be provided before or after the authorisation of the Minister. The effect remains the same, in that both the responsible Minister's authorisation and the Attorney-General's agreement is required before ASIS, AGO or ASD may undertake the activity to produce intelligence, or that is likely to have a direct effect on the person.

Conclusion

60. The Bill is compatible with human rights because it promotes human rights and, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.