Amendments to intelligence agency powers and oversight requirements were made through a number of pieces of legislation enacted during the reporting period.
National Security Legislation Amendment Act (No. 1) 2014
The National Security Legislation Amendment Act (No. 1) 2014 commenced in October 2014. It made a range of changes to the Australian Security Intelligence Organisation Act 1979 and the Intelligence Services Act 2001. Some of the key measures include:
- changes to ASIO's employment framework to bring it more into line with that of the Australian Public Service, and creation of a category of people termed 'ASIO affiliates' who can exercise certain powers under the ASIO Act
- expanding ASIO's warrant-based intelligence collection powers (including expanding the definition of 'computer', and introducing a new single surveillance device warrant and an identified person warrant)
- authorising people executing ASIO warrants to use force against persons
- establishing a regime for authorising Special Intelligence Operations (SIOs)
- allowing ASIS to collect intelligence on Australian persons involved in activities in relation to its operational security, and to cooperate with ASIO without ministerial authorisation when undertaking certain intelligence collection activities
- allowing ASIS to train certain additional individuals in the use of weapons and self-defence techniques
- introducing new offences, and updating existing ones, related to the protection of sensitive intelligence-related information, and amending secrecy provisions to make it clear there is no legal barrier to concerned staff or members of the public raising matters with the IGIS.
The changes are accompanied by increased reporting and notification requirements to assist the IGIS in conducting effective oversight. These legislative requirements include:
- ASIO notifying the IGIS if force is used against a person in the execution of a warrant
- ASIO reporting to the Attorney-General on whether anything done in the execution of a warrant materially interfered with, interrupted or obstructed the lawful use by other persons of a computer or device
- ASIO notifying the IGIS if a SIO is authorised
- ASIO providing the Attorney-General and IGIS with a written report on any authorised SIO which must include information on the extent to which the SIO has assisted ASIO in the performance of relevant functions, and whether any conduct of a participant in the SIO caused or involved death, injury, a sexual offence or loss of or damage to property
- ASIS notifying the IGIS when it undertakes certain activity in support of ASIO's functions, and ASIS retaining a copy of any notice about ASIO requiring production of intelligence on an Australian person or class of Australian persons for inspection on request by the IGIS.
We have liaised closely with agencies in the development of notification and reporting practices, guidance and training material, and inspection programs to ensure strong oversight of the new powers, and will continue to pay close attention to these matters in the period ahead.
Review of the Attorney-General's Guidelines issued under the ASIO Act
As part of its review of the National Security Legislation Amendment Bill (No. 1) 2014, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) recommended that the Government initiate a review of the Attorney-General's Guidelines issued under section 8A of the ASIO Act, including examining requirements to govern ASIO's management and destruction of information obtained on persons who are not relevant, or no longer relevant to security matters. In its public response to the PJCIS's report on the Bill, the Government agreed to this recommendation stating that it would request ASIO and the Attorney-General's Department to undertake the review.
The IGIS has a strong interest in this review and anticipates providing input as it progresses.
Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014
The Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 was enacted on 3 November 2014. It makes amendments to a range of national security and counter-terrorism related legislation focusing primarily on measures to address the threat of 'foreign fighters'. The matters of key relevance to IGIS oversight include:
- changes to ASIO's questioning and detention legislative regime including extension of the sunset date to 7 September 2018, lowering the threshold for questioning warrants, and amending the provision relating to use of force by police in the execution of a questioning warrant
- the amendment of the definition of 'security' in the ASIO Act that occurred through changes to various offences, particularly those relating to foreign incursions
- ASIO's role under new powers relating to cancellation of welfare payments, cancellation of visas on security grounds and suspension of passports.
The OIGIS is overseeing ASIO's role in these matters as part of our ongoing inspection and review activities.
Counter-Terrorism Legislation Amendment Act (No. 1) 2014
The Counter-Terrorism Legislation Amendment Act (No. 1) 2014 was enacted in December 2014. Schedule 2 of the Act, which commenced on 13 December 2014, amends the Intelligence Services Act 2001 in two areas:
- to increase ASIS's ability to provide assistance to the Australian Defence Force (ADF) in support of military operations and its cooperation with the ADF on intelligence matters (by making it clear this is a specific statutory function of ASIS and enabling class agreements and class authorisations in relation to that function)
- to address practical limitations in the arrangements for emergency ministerial authorisations which apply to ASIS, ASD and AGO, including through enabling oral authorisations by Ministers, authorisations by the agency head where a relevant minister is unavailable, and agreement by the Director-General of Security where the Attorney-General is unavailable.
In order to address concerns raised by the PJCIS in its review of the Bill, the legislation includes detailed notification and reporting requirements for both the relevant agencies and the IGIS, including requirements for:
- the agency head to retain records of relevant documentation relating to ASIS support for the ADF (ministerial authorisation, Defence Minister request and Attorney-General agreement)
- the agency head to give the IGIS a written record of any oral emergency ministerial authorisation
- the agency head to give the IGIS notification and copies of documentation when emergency authorisations are given when the Attorney-General is unavailable, or when an agency head makes an emergency authorisation in the absence of relevant Ministers
- the IGIS to provide a report to the relevant Minister on agency heads' compliance with the legislative requirements in giving emergency authorisations, and to advise the PJCIS of the conclusions in any such report.
The IGIS is paying close attention to these matters in the course of ongoing inspection and review activities.
Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015
The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 was enacted in April 2015, with the substantive provisions commencing on 13 October 2015.
In addition to ongoing oversight of ASIO's access to and retention of information, the IGIS will have a specific role under this legislation. The legislation includes particular measures relating to identification of journalists' sources. Under this regime, ASIO is prohibited from authorising disclosure of a journalist's or their employer's telecommunications data for the purpose of identifying a source of the journalist without a warrant issued by the AttorneyGeneral.
In line with recommendations of the PJCIS, the Act includes oversight and reporting obligations relating to the journalist source provisions, including for:
- the Director-General of ASIO to give a copy of the warrant and any authorisation under the warrant to the IGIS
- the Attorney-General to provide to the PJCIS a copy of any IGIS report on an inquiry or inspection under the IGIS Act relating to a journalist information warrant or authorisation, and for the PJCIS to request a briefing from the IGIS on those matters.
Our office will ensure appropriate procedures are in place for the IGIS's role under these provisions prior to their commencement.