Legislative review

Security Legislation Review Committee (Sheller Committee)

Section 4 of the Security Legislation Amendment (Terrorism) Act 2002 required the Attorney-General to cause a public and independent review of the operation, effectiveness and implications of amendments in six Acts relating to terrorism which were passed in 2002 and 2003.

The Attorney-General established the Security Legislation Review Committee (SLRC) in October 2005. The SLRC comprised eight persons, of which I was an ex-officio member.

The SLRC was required to call for public submissions, to hold public hearings and to produce a report within six months of commencement (i.e. from 21 October 2005).

The committee was chaired by the Hon. Simon Sheller AO QC, a retired judge of the NSW Supreme Court. Mr Sheller was appointed to the committee by the Attorney-General, as was a former Deputy Commissioner of the Australian Federal Police, Mr John Davies APM OAM.

Two people were appointed by the Attorney-General on the nomination of the Law Council of Australia (Ms Gillian Braddock SC and Mr Daniel O’Gorman) and there were three ex-officio members in addition to myself (namely the Commonwealth Ombudsman, the Privacy Commissioner and the Human Rights Commissioner).

The focus of the review was the criminal offence provisions contained in Divisions 100–103 of Part 5.3 of Chapter 5 of the Criminal Code 1995.

I attended the public hearings held in Sydney, Melbourne, Canberra and Perth, and also attended separate deliberations of the SLRC spread over a number days. This was a significant commitment of my time and the resources of my office, but I was happy to participate in this process given the importance of the issues to be considered.

A final report was provided to the Attorney-General and to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) on 21 April 2006.⁸ As required by the legislation, the Attorney-General tabled the report on 15 June 2006.

The SLRC made 20 recommendations, most of which concerned legislative amendments. Other recommendations related to better dialogue with the Australian community, including members of Australian Islamic communities, on the legislation and its scope.

Administrative Review Council

I was appointed to the Administrative Review Council (ARC) with effect from 11 July 2005.

The primary purpose of the ARC is to provide advice to the Attorney-General on administrative law matters and raise the level of awareness of administrative review.

I attended four meetings of the ARC during 2005–06, and also participated in several teleconferences on matters relevant to the ARC’s work program. Details of the work of the ARC are set out in its annual report.

ASIO’s questioning and detention powers

The Commonwealth Parliament passed legislation in late June 2003 to amend the ASIO Act so as to enable the Director-General of Security to seek special powers warrants authorising the questioning, or questioning and detention, of a person where doing so would substantially assist the collection of intelligence in relation to a terrorism offence and relying on other methods would be ineffective. This was subject to a three year sunset clause.

Amendments to the provisions in the later part of 2003 included the insertion of a review, by 22 January 2006, by the then Parliamentary Joint Committee on ASIO, ASIS and DSD (PJCAAD)⁹ of the operation, effectiveness and implications of arrangements.

As indicated in the 2004-05 IGIS annual report, I lodged a written submission with the PJCAAD on 30 March 2005 (Annex 2 in the IGIS annual report 2004-05) and appeared before the Committee on 20 May 2005.

The PJCAAD tabled its report, entitled ASIO’s Questioning and Detention Powers – Review of the operation, effectiveness and implications of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979, on 30 November 2005.¹⁰

The PJCAAD made 19 recommendations. Several of these recommendations either adopted or adapted suggestions for change contained in the IGIS submission to the PJCAAD, or which were broached in my appearance before the Committee.

One key recommendation of the PJCAAD was that the special questioning and detention powers afforded to ASIO should be renewed but be subject to a new sunset date of 22 November 2011, and that the then soon to be established Parliamentary Joint Committee on Intelligence and Security (PJCIS) should be required to conduct a similar review exercise and report to the Parliament by 22 June 2011.

The Attorney-General, the Hon. Philip Ruddock MP, responded to the PJCAAD report when speaking in favour of the ASIO Legislation Amendment Bill 2006, during its Second Reading on 29 March 2006.¹¹

The government agreed to six of the PJCAAD’s recommendations and to another six in part. One significant point of departure between the committee and the government was on the duration of the sunset clause. As indicated above, the PJCAAD recommended what amounted to a five and a half year extension, while the government favoured extending this provision to 10 years.

Another significant PJCAAD recommendation not adopted by the government was a proposal that the prescribed authority be provided with a copy of the statement of facts and grounds on which the warrant was issued (so that they can better gauge the relevance of questions being asked by ASIO questioners). The prescribed authority, ordinarily a retired judge, is the person who oversees the conduct of questioning under such warrants.

After a period of debate, the ASIO Legislation Amendment Bill 2006 was passed on 13 June 2006 and received Royal Assent on 19 June 2006.

The Act extended the existing sunset provision applying to Division 3 of Part III of the ASIO Act until 22 July 2016, and requires that the PJCIS conduct a review by 22 January 2016.

Structurally, the most obvious amendment to the ASIO Act brought about by this legislation is to clearly distinguish between questioning only warrants, and warrants which provide for both questioning and detention. This makes the procedures for the two different processes easier to understand and apply.

The Act also clarified the rights of persons questioned or detained under the ASIO warrants regime by including an explicit right for a subject to contact a lawyer, a statutory right to apply for financial assistance relating to the questioning proceedings, and better facilitation of the subject’s ability to make complaints to the IGIS, the Commonwealth Ombudsman, or a State or Territory complaints body.

The role of the prescribed authority and the ability of the subject’s lawyer to address the prescribed authority during breaks in questioning were also clarified, as was the manner in which questioning and procedural time is to be distinguished and recorded.

Anti-Terrorism Act 2005

The Anti-Terrorism Bill 2005 was introduced by the government in November 2005 and parliament was recalled to give the legislation speedy consideration.

The Bill amended specific offences in the Criminal Code Act 1995 so that they are potentially available where a person is considering a range of activities that are still in formative stages and not advanced to the point of details being decided upon.

The Bill also provided that the amendments contained in it should be subject to a review commissioned by the Council of Australian Governments (COAG) after five years, and that the report of such a review should be made public.

The Bill was passed by the House of Representatives on 2 November 2005 and by the Senate on 3 November 2005, and received Royal Assent the same day.

Anti-Terrorism Act (No.2) 2005

The Commonwealth, State and Territory Governments met at a special COAG Terrorism Summit held in Canberra on 27 September 2005, to consider Australia’s national counter-terrorism arrangements. The communiqué of this summit advised, among other things, that new counter-terrorism laws would be introduced.

The Leaders also agreed that COAG would review the new laws after five years and that they would sunset after ten years.¹²

The Attorney-General introduced the Anti-Terrorism Bill (No.2) 2005 in the House of Representatives on 3 November 2005, and it was referred to the Senate Legal and Constitutional Committee for inquiry and report by 28 November 2005.

Given that the Commonwealth Ombudsman and my office had complementary interests in this matter we decided to make a joint written submission. This joint submission was lodged with the Committee on 11 November 2005.

Professor McMillan and I appeared before the committee in Sydney on 11 November 2005. We also provided written follow up advice to the committee on 21 November 2005.

The majority report of the committee (tabled in late November 2005) made 52 specific recommendations, the last of which was that, subject to the preceding recommendations, the Senate should pass the bill.

The Bill was passed in early December 2005 and assented to on 14 December 2005.

The principal features of the Anti-Terrorism Act (No.2) 2005 as passed by the Parliament include:

an extension of the definition of a terrorist organisation to enable proscription of organisations that advocate terrorism
a new regime of ‘control orders’ that can allow for a range of obligations, prohibitions and restrictions to be placed on people who have trained with a proscribed terrorist organisation or where the order would substantially assist in preventing a terrorist act (the individual requirements and limitations of an order must also be reasonably necessary, appropriate and adapted to protect the public from a terrorist act).
a new police preventative detention regime that will allow detention of a person without charge for up to 48 hours where it is reasonably necessary to prevent an imminent terrorist act or to preserve evidence of such an act
strengthened offences of financing of terrorism
amendments to ASIO’s special powers warrant regime, and
amendments to the offence of providing false and misleading information under an ASIO questioning warrant.

States and Territories have, or will, legislate for preventative detention regimes allowing for detention of up to 14 days. As agreed by COAG, the control order and preventative detention order arrangements (as well as the Anti-Terrorism Act 2005) will be the subject of a review to commence in December 2010.

Intelligence Services Legislation Amendment Act 2005

The government, acting on a recommendation made by the PJCAAD, initiated an independent inquiry in 2004 into the performance of the agencies which comprise the AIC on 4 March 2004. The review was conducted by Mr Philip Flood AO.

Mr Flood provided his report to the government in early July 2004, and a public version of the report was published on 22 July 2004. Mr Flood made 23 recommendations, all of which were accepted by the government with the exception of a proposal for ONA to be renamed.

A number of the recommendations made by Mr Flood required amendments to various acts relating to the intelligence community. Among the more significant of the recommendations requiring statutory amendments were:

extend the size and remit of the PJCAAD to also include ONA, DIO and DIGO, and retitle this body (as the PJCIS)
incorporate the functions and ministerial accountabilities of DIGO into the ISA
amend the IGIS Act to enable the IGIS to review the statutory independence of ONA, and to provide the IGIS with own motion powers in respect of DIO and ONA, and
amend the Office of National Assessments Act 1977 to remove the reference to two assessment boards to reflect the reality that there is only one National Assessments Board and to strengthen ONA’s coordination and evaluation role within the foreign intelligence community.

Prior to Mr Flood commencing his review my predecessor as IGIS, Mr Blick, had written to the Secretary of the Department of the Prime Minister and Cabinet, Dr Peter Shergold, proposing that the ISA should be reviewed. Dr Shergold agreed and instituted an administrative review of the ISA which was coordinated by his department and conducted between October 2004 and March 2005.

The result of this DPMC coordinated review was the recommendation of a number of technical amendments to the ISA including:

clarification of the role and functions of ASIS and DSD, particularly in respect to support to military operations
provision of authority for ASIS, DIGO and DSD to communicate certain incidentally obtained intelligence that is not “foreign intelligence” in defined circumstances
amendment of the ministerial authorisations regime for intelligence collection by ISA agencies by requiring in the ISA itself, that authorisations be obtained in respect of Australians who are outside of Australia, and
amendment of the ministerial authorisations regime to enable certain other ministers to authorise intelligence collection activities where there is a need for emergency collection and the responsible minister is not available or contactable.

Given the close coincidence in timing of the outcome of the DPMC review of the ISA and the Flood Review recommendations, a judgement was made that a single legislative vehicle should be used to progress these recommendations, rather than have amendments made in a piecemeal manner.

As a result of this decision the Intelligence Services Legislation Amendment Bill 2006 (ISLA Bill) was introduced into parliament on 16 June 2005. The Senate resolved the same day to refer the Bill to the then PJCAAD for comment and ask it to provide a report to the Minister for Defence (the sponsor of the Bill).

Affected AIC agency heads and I met with the PJCAAD, also on 16 June 2005, to provide a brief overview of the ISLA Bill and explain its likely impact on each of our agencies. I also appeared before the PJCAAD on 11 August 2005 to discuss the anticipated impact of the proposed amendments upon my office and upon the wider AIC.

The PJCAAD issued the report of its Review of the Intelligence Services Legislation Amendment Bill 2005 on 12 September 2005.¹³

In that report the PJCAAD generally endorsed the contents of the ISLA Bill but made three recommendations. These recommendations related to proposed arrangement for the filling of the Chair of the PJCIS when the nominal Chair is not present for a deliberative meeting of the committee, or is absent for a prolonged period; the progressive alignment of the ISA ministerial authorisations regime with the ASIO warrants regime; and a technical amendment to the heading of a subsection contained in the ISA. The third of these was adopted by the government.

The ISLA Bill 2005 was debated and passed in October 2005, received Royal Assent on 4 November 2005, and took effect on 2 December 2005.

Telecommunications (Interception) Legislation Amendment Act 2006

As reported in my previous annual report, the highly respected Mr AS Blunn AO was commissioned to review the regulation of access to communications under the Telecommunications (Interception) Act 1979 (the TI Act).

The government developed the Telecommunications (Interception) Amendment Bill 2006 in response to certain of the recommendations contained in Mr Blunn’s report.

Mr Blunn had reported that during the course of his review, the question of accessing data by law enforcement for intelligence purposes (rather than in relation to an identified particular crime) was raised with him. Mr Blunn suggested that the Australian Crime Commission (ACC) could perhaps play a role as a central accessing agency, forwarding product to relevant law enforcement agencies, but if this occurred:

“It would still be a necessary to identify the purpose and extent of the power and for there to be an oversighting body and it may be appropriate to consider expanding the functions of the IGIS to perform this role.”¹⁴

The Bill developed did not propose a role for the IGIS in monitoring access to stored communications by law enforcement agencies for law enforcement intelligence purposes, as the government was of the view that there should be no dilution of the IGIS’s focus on the security and intelligence agencies.

The Bill was introduced on 16 February 2006 and referred to the Senate Legal and Constitutional Committee for review on 1 March 2006.

I provided the committee with a written submission on 13 March 2006 outlining the likely impact of the Bill on ASIO and on the inspection activities of my office.

Insofar as the Bill was likely to impact upon ASIO, it would enable the Organisation to seek telecommunications interception warrants in relation to “B-Party” services in cases where all other practical methods of identifying the telecommunication services of a person of interest had been exhausted, or it is not possible to intercept the services used by the person of interest. A “B‑Party” service is a telecommunications service of another person which is being used, or is likely to be used, for communication with or by the person of interest.

It was proposed that B-Party interception warrants would only be available to ASIO for 90 days instead of the six month period ordinarily available to ASIO.

The Bill also proposed to amend the interception regime to permit equipment based warrants (eg mobile handset and/or computer terminals) as compared to warrants for interception of particular numbers or people.

The committee reported on 27 March 2006 recommending a number of changes to the Bill. The Bill was passed on 30 March 2006 and was granted Royal Assent on 3 May 2006.

One of the other changes of note brought about by the Act was that, with effect from 14 June 2006, the TI Act was retitled the Telecommunications (Interception and Access) Act 1979 (TIA Act).

Inspector-General of Intelligence and Security Act 1986

As noted earlier, the Intelligence Services Legislation Amendment Act 2005 implemented a number of recommendations contained in the Flood inquiry report and which were proposed in the DPMC coordinated review of the ISA.

Schedule 2 of the ISLA Act contained several amendments to the IGIS Act flowing from the above reviews, as well as several technical amendments which I had separately proposed be effected whenever the IGIS Act was next amended.

One of the significant changes to the IGIS Act wrought by the ISLA Act was to formally incorporate DIGO within the remit of the IGIS.

Another significant change recommended by Mr Flood was that the IGIS should conduct periodic reviews of ONA’s statutory independence. More information on this is contained in the ONA chapter of this report.

A third significant amendment flowing from the Flood Review was to provide the IGIS with “own motion” powers in respect of the assessment agencies.

When it was first constructed the IGIS Act provided the IGIS with the greatest range of powers in respect of ASIO (due to its strong domestic focus), slightly lesser powers in respect of the foreign intelligence collection agencies ASIS and DSD (in recognition of their external focus), and quite restricted powers in respect of DIO and ONA (given that they are not intelligence collectors as such, and therefore unlikely to deal directly with members of the public).

For practical purposes this meant that the IGIS could not readily inspect the activities of DIO and ONA, nor directly pursue any complaints about those agencies. In considering these limitations Mr Flood observed that:

“While it is fully understood that assessment agencies do not have the capacity to infringe the liberties of individuals in the way that collection agencies do, it is still appropriate for the Inspector-General to have authority in relation to ONA and DIO … The mandate of the Inspector-General should, however, relate to the propriety and legality of ONA and DIO’s activities; and should not extend to judgements about the accuracy of their assessments.”¹⁵

In addition to these changes, I proposed three technical amendments to the IGIS Act which were also given effect.

The first of these amendments arose out of my experience in conducting an inquiry under the IGIS Act in which the then head of one of the AIC agencies was a key player, both in a personal capacity and as the head of an AIC agency.

Section 15 of the IGIS Act as it then stood required that the IGIS must, before commencing an inquiry relating to an agency, inform the responsible minister and the head of the agency of his or her intention to do so.

At the other end of the process, the then section 21 of the IGIS Act required that upon completing an inquiry under the IGIS Act, the IGIS must prepare a draft report setting out the Inspector-General’s conclusions and recommendations and must provide a copy of that draft report to the head of the agency, to enable the agency to provide comment.

Experience had suggested to me that this could be problematic, especially where an agency head’s personal and private interests could not be readily separated from their wider professional interests as the head of an agency which was the subject of an IGIS Act inquiry.

The solution which has since been adopted was to amend sections 15 and 21 of the IGIS Act so that, should similar circumstances arise in the future, if the IGIS intends to inquire into, or report on, a matter that relates directly to the head of a relevant agency, the IGIS must:

if the matter relates to the head of ASIO, ASIS or ONA – advise or report to the responsible minister in relation to ASIO, ASIS or ONA, as the case requires, or
if the matter relates to the head of DIGO, DIO or DSD – advise or report to the Secretary of the Department of Defence.

The second amendment was to section 16 of the IGIS Act to enable the IGIS to consult with the Ombudsman prior to commencing an inquiry, with a view to avoiding duplication of effort. This was part of the work on enhancing relationships between the two offices referred to in the “Year in Review” chapter.

The third amendment was to incorporate into the IGIS Act a new section to remove any doubt about the right of the Inspector-General to have access to the premises where a person who is the subject of an ASIO questioning and detention warrant is being detained.

Section 19 of the IGIS Act already provided the IGIS with a right to enter any place occupied by an AIC agency for the purposes of an IGIS Act inquiry, but it is possible that premises other than premises occupied by an AIC agency could be used for the purpose of detaining the subject of an ASIO questioning and detention warrant (e.g. a remand centre or watch house). The newly inserted 19A of the IGIS Act removes any such doubt.

Footnotes
8 Security Legislation Review Committee 2006, Report of the Security Legislation Review Committee, SLRC, Attorney-General’s
Department, Canberra.
9 The PJCAAD was retitled the Parliamentary Joint Committee on Intelligence and Security (PJCIS) with effect from
2 December 2005, when its remit was extended to also include oversight of DIGO, DIO and ONA.
10 Parliamentary Paper No: 454/2005.
11The Government’s formal response to each recommendation is contained at pages 115-121 of the Senate Hansard,
30 March 2006.
12 Council of Australian Governments’ Communiqué, Special Meeting on Counter-Terrorism, 27 September 2005, COAG,
Canberra.
13 Parliamentary Paper No: 217/2005.
14 A. S. Blunn, Report of the Review of the Regulation of Access to Communications, August 2005, p.72.
15 Flood, op. cit., p. 59.

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