Australian Intelligence Services Bill 2001

28 June 2001: Add remarks by the Minister for Foreign Affairs on the Intelligence Services Bill 2001 and the Intelligence Services (Consequential Provisions) Bill 2001.

27 June 2001: Add Explanatory Memorandum, thanks to JB. Add motion to appoint Joint Select Committee on the Intelligence Services.

26 June 2001. Thanks to JB.
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Title: Intelligence Services Bill 2001
Stage: First Reading
Private: No
Name: Foreign Affairs portfolio
Bill number: 01126
Date: 27 June 2001
Database: Bills
Source: House

1998-1999-2000-2001

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Intelligence Services Bill 2001

No. , 2001

(Foreign Affairs)

A Bill for an Act relating to the Australian intelligence services, and for related purposes

Contents

A Bill for an Act relating to the Australian intelligence services, and for related purposes

The Parliament of Australia enacts:

Part 1 Preliminary

1 Short title

This Act may be cited as the Intelligence Services Act 2001.

2 Commencement

This Act commences 28 days after the day on which it receives the Royal Assent.

3 Definitions

In this Act, unless the contrary intention appears:

agency means ASIS or DSD.

agency head means:

(a) in relation to ASISthe Director-General; and

(b) in relation to DSDthe Director.

ASIO means the Australian Security Intelligence Organisation.

ASIS means the Australian Secret Intelligence Service.

Australia, when used in a geographical sense, includes the external Territories.

Australian person means a person who is:

(a) an Australian citizen; or

(b) a permanent resident.

Chair means the Chair of the Committee.

Committee means the Parliamentary Joint Committee on ASIO and ASIS.

Commonwealth authority includes:

(a) an Agency within the meaning of the Public Service Act 1999; and

(b) a Department within the meaning of the Parliamentary Service Act 1999; and

(d) a body (whether incorporated or not) established, or continued in existence, for a public purpose by or under a law of the Commonwealth; and

(e) a body corporate in which the Commonwealth or a body referred to in paragraph (d) has a controlling interest.

court includes a tribunal, authority or person that has power to require the production of documents or the answering of questions.

Director means the Director of DSD.

Director-General means the Director-General of ASIS.

Director-General of Security means the Director-General of Security holding office under the Australian Security Intelligence Organisation Act 1979.

DSD means that part of the Department of Defence known as the Defence Signals Directorate.

Inspector-General of Intelligence and Security means the Inspector-General of Intelligence and Security appointed under the Inspector-General of Intelligence and Security Act 1986.

intelligence information means information obtained by ASIS under paragraph 6(1)(a), or by DSD under paragraph 7(a).

member means a member of the Committee, and includes the Chair.

operationally sensitive information means information:

(a) about sources of information, other operational assistance or operational methods available to ASIO or ASIS; or

(b) about particular operations that have been, are being or are proposed to be undertaken by ASIO or ASIS; or

(c) provided by, or by an agency of, a foreign government where that government does not consent to the public disclosure of the information.

permanent resident has the same meaning as in section 4 of the Australian Security Intelligence Organisation Act 1979.

responsible Minister means:

(a) in relation to ASIOthe Minister responsible for ASIO; and

(b) in relation to ASISthe Minister responsible for ASIS; and

staff member means:

(a) in relation to ASIOa member of the staff of ASIO (whether an officer or employee of ASIO, or a person who is made available by another Commonwealth or State authority or other person to perform services for ASIO); and

(b) in relation to ASISa member of the staff of ASIS (whether an employee of ASIS, a consultant to ASIS, or a person who is made available by another Commonwealth or State authority or other person to perform services for ASIS); and

(c) in relation to DSDa member of the staff of DSD (whether an employee of DSD, a consultant to DSD, or a person who is made available by another Commonwealth or State authority or other person to perform services for DSD).

State authority includes:

(a) a Department of State of a State or Territory or a Department of the Public Service of a State or Territory; and

(b) a body (whether incorporated or not) established, or continued in existence, for a public purpose by or under a law of a State or Territory; and

4 Extension to external Territories

This Act extends to every external Territory.

5 Application of Criminal Code

(1) Chapter 2 of the Criminal Code applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(2) Section 15.4 of the Criminal Code (extended geographical jurisdictioncategory D) applies to all offences against this Act.

Part 2 Functions of the agencies

6 Functions of ASIS

(1) The functions of ASIS are:

(a) to obtain, in accordance with the Governments requirements, intelligence about the capabilities, intentions or activities of people or organisations outside Australia; and

(b) to communicate, in accordance with the Governments requirements, such intelligence; and

(d) to liaise with intelligence or security services, or other authorities, of other countries; and

(e) to undertake such other activities as the responsible Minister directs relating to the capabilities, intentions or activities of people or organisations outside Australia.

(2) The responsible Minister may direct ASIS to undertake activities referred to in paragraph (1)(e) only if the Minister:

(a) has consulted other Ministers who have related responsibilities; and

(b) is satisfied that there are satisfactory arrangements in place to ensure that, in carrying out the direction, nothing will be done beyond what is necessary having regard to the purposes for which the direction is given; and

(c) is satisfied that there are satisfactory arrangements in place to ensure that the nature and consequences of acts done in carrying out the direction will be reasonable having regard to the purposes for which the direction is given.

(3) A direction under paragraph (1)(e) must be in writing.

(4) In performing its functions, ASIS must not plan for, or undertake, paramilitary activities or activities involving violence against the person or the use of weapons.

Note 1: For other limits on the agencys functions and activities see sections 11 and 12.

Note 2: If the Minister gives a direction under paragraph (1)(e), the Minister must give a copy of the direction to the Inspector-General of Intelligence and Security as soon as practicable after the direction is given to the head of ASIS (see section 32B of the Inspector-General of Intelligence and Security Act 1986).

7 Functions of DSD

The functions of DSD are:

(a) to obtain intelligence about the capabilities, intentions or activities of people or organisations outside Australia in the form of electromagnetic energy, whether guided or unguided or both, or in the form of electrical, magnetic or acoustic energy, for the purposes of meeting the requirements of the Government, and in particular the requirements of the Defence Force, for such intelligence; and

(b) to communicate, in accordance with the Governments requirements, such intelligence; and

(c) to provide material, advice and other assistance to Commonwealth and State authorities on matters relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means; and

(d) to provide assistance to Commonwealth and State authorities in relation to cryptography and communications technologies.

Note: For limits on the agencys functions and activities see sections 11 and 12.

8 Ministerial directions

(1) The responsible Minister in relation to ASIS, and the responsible Minister in relation to DSD, must issue a written direction under this subsection to the relevant agency head. The direction must specify the circumstances in which the agency must, before undertaking particular activities or classes of activities, obtain an authorisation under section 9 from the Minister.

(2) The responsible Minister may give written directions to be observed:

(a) in the performance by the relevant agency of its functions; or

(b) in the case of ASISin the exercise of the powers of the Director-General under section 33 or 34.

(3) Each agency head must ensure that the agency complies with any direction given by the responsible Minister under this section.

(4) Directions under paragraph (2)(b) must not relate to a specific staff member.

Note: The Inspector-General of Intelligence and Security has oversight powers in relation to Ministerial directions and authorisations given under this Act. See in particular section 32B of the Inspector-General of Intelligence and Security Act 1986 (which requires the Minister to give a copy of a direction under this section to the Inspector-General of Intelligence and Security as soon as practicable after the direction is given).

9 Ministerial authorisation

(1) Before a Minister gives an authorisation under this section, the Minister must be satisfied that:

(a) any activities which may be done in reliance on the authorisation will be necessary for the proper performance of a function of the agency concerned; and

(b) there are satisfactory arrangements in place to ensure that nothing will be done in reliance on the authorisation beyond what is necessary for the proper performance of a function of the agency; and

(c) there are satisfactory arrangements in place to ensure that the nature and consequences of acts done in reliance on the authorisation will be reasonable, having regard to the purposes for which they are carried out.

(2) The Minister may give an authorisation in relation to:

(a) an activity, or class of activities, specified in the authorisation; or

(b) acts of a staff member or agent, or a class of staff members or agents, specified (whether by name or otherwise) in the authorisation; or

(3) An authorisation is subject to any conditions specified in it.

(4) An authorisation must be in writing and must specify how long it will have effect.

(5) If a Minister gives an authorisation under this section in relation to an agency, the relevant agency head must ensure that a copy of the authorisation is kept by the agency and is available for inspection on request by the Inspector-General of Intelligence and Security.

10 Period during which authorisation has effect etc.

(1) The Minister may, at any time before the day on which an authorisation would cease to have effect, renew it for the length of time specified in the renewal. However, the authorisation must not be renewed unless the Minister is satisfied that it is necessary, for the purpose for which the authorisation was given, for the authorisation to continue to have effect.

(2) The Minister may vary or cancel an authorisation at any time.

(3) A renewal, variation or cancellation of an authorisation must be in writing.

11 Limits on agencies functions

(1) The functions of the agencies are to be performed only in the interests of Australias national security, Australias foreign relations or Australias national economic well-being and only to the extent that those matters are affected by the capabilities, intentions or activities of people or organisations outside Australia.

(2) The agencies functions do not include:

(a) the carrying out of police functions; or

(b) any other responsibility for the enforcement of the law.

However, this does not prevent the agencies from:

(c) obtaining intelligence under paragraph 6(1)(a) or 7(a) and communicating any such intelligence that is relevant to serious crime to the appropriate law enforcement authorities; or

(d) in the case of DSDperforming the function set out in paragraph 7(d).

(3) Subsection (1) does not apply to the functions described in paragraphs 7(c) and (d).

12 Limits on agencies activities

An agency must not undertake any activity unless the activity is:

(a) necessary for the proper performance of its functions; or

(b) authorised or required by or under another Act.

13 Co-operation with other authorities

(1) Subject to any arrangements made or directions given by the responsible Minister, an agency may cooperate with:

(a) Commonwealth authorities; and

(b) State authorities; and

(c) authorities of other countries approved by the Minister as being capable of assisting the agency in the performance of its functions;

so far as is necessary for the agency to perform its functions, or so far as facilitates the performance by the agency of its functions.

Note: For Commonwealth authority and State authority see section 3.

(2) An approval under paragraph (1)(c) must be in writing.

(3) Each agency head must ensure that a copy of any approval given by the relevant responsible Minister is kept by the agency and is available on request by the Inspector-General of Intelligence and Security.

14 Liability for certain acts

(1) A staff member or agent of an agency is not subject to any civil or criminal liability for any act done outside Australia if the act is done in the proper performance of a function of the agency.

(2) A person is not subject to any civil or criminal liability for any act done inside Australia if:

(a) the act is preparatory to, in support of, or otherwise directly connected with, overseas activities of the agency concerned; and

(b) the act:

(i) involves aiding, abetting, counselling, procuring or otherwise planning or attempting to carry out; or

(ii) is otherwise directly connected with;

some other act outside Australia that would amount to an offence if that other act were committed in Australia; and

(3) In this section:

act includes omission.

staff member includes the Director and the Director-General.

15 Rules to protect privacy of Australians

(1) The responsible Minister in relation to ASIS, and the responsible Minister in relation to DSD, must make written rules regulating the communication and retention by the relevant agency of intelligence information concerning Australian persons.

(2) In making the rules, the Minister must have regard to the need to ensure that the privacy of Australian persons is preserved as far as is consistent with the proper performance by the agencies of their functions.

Note: For Australian person see section 3.

(3) Before making the rules, the Minister must consult with:

(a) in the case of ASIS, the Director-General; and

(b) in the case of DSD, the Director; and

(4) For the purpose of consultations under paragraph (3)(c), the Minister must provide a copy of the rules the Minister is proposing to make to the Inspector-General of Intelligence and Security.

(5) The agencies must not communicate intelligence information concerning Australian persons, except in accordance with the rules.

Note: For intelligence information see section 3.

Part 3 Establishment of ASIS and role of Director-General

Division 1 Establishment and control of ASIS

16 Establishment of ASIS on a statutory basis

The organisation known as the Australian Secret Intelligence Service is continued in existence in accordance with this Act.

17 Appointment of Director-General

(1) There is to be a Director-General of ASIS.

(2) The Director-General is to be appointed by the Governor-General.

(3) Before a recommendation is made to the Governor-General for the appointment of a person as Director-General, the Prime Minister must consult with the Leader of the Opposition in the House of Representatives.

(4) The person who, immediately before the commencement of this Act, held office as the Director-General of ASIS continues, subject to this Act, to hold the office for the remainder of the term for which he or she was appointed.

18 Control of ASIS

(1) ASIS is under the control of the Director-General.

(2) The Director-General, under the Minister, is responsible for managing ASIS and must advise the Minister in matters relating to ASIS.

19 Briefing the Leader of the Opposition about ASIS

(1) The Director-General may, with the authorisation of the Prime Minister, brief the Leader of the Opposition in the House of Representatives about ASIS.

(2) The Leader of the Opposition may at any time request the Prime Minister to authorise the Director-General to provide a briefing about ASIS.

Division 2 Administrative provisions relating to the Director-General

20 Period of appointment

(1) The Director-General holds office for the period specified in the instrument of appointment, but is eligible for re-appointment.

(2) The period must not be longer than 5 years.

21 Remuneration etc.

(1) The remuneration and other conditions of appointment of the Director-General are as determined in writing by the responsible Minister.

(2) For each determination, the responsible Minister must seek the advice of the Remuneration Tribunal and take that advice into account.

(3) Each determination must be published in the Gazette within 14 days after the determination is made.

22 Resignation

The Director-General may resign by giving a signed notice of resignation to the Governor-General.

23 Termination of appointment

(1) The Governor-General may terminate the appointment of the Director-General for misbehaviour or physical or mental incapacity.

(2) The Governor-General must terminate the appointment of the Director-General if:

(a) the Director-General:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or

(b) the Director-General is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(c) the Director-General engages, except with the Ministers approval, in paid employment outside the duties of his or her office; or

(d) the Director-General fails, without reasonable excuse, to comply with section 26 (disclosure of interests).

(3) The Governor-General may, with the Director-Generals consent, retire the Director-General from office on the ground of incapacity if the Director-General is:

(a) an eligible employee for the purposes of the Superannuation Act 1976; or

(b) a member of the superannuation scheme established by deed under the Superannuation Act 1990.

24 Acting Director-General

(1) The Minister may appoint a person to act as the Director-General if there is a vacancy in the office of the Director-General.

(2) The Minister may appoint a person to act as the Director-General during any period, or during all periods, when the Director-General is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office.

(3) Anything done by or in relation to a person purporting to act under this section is not invalid merely because:

(a) the occasion of the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the appointment; or

(d) the occasion to act had not arisen or had ceased.

Note: See section 33A of the Acts Interpretation Act 1901 on acting appointments.

25 Outside employment

The Director-General must not engage in paid employment that, in the Ministers opinion, conflicts or may conflict with the proper performance of the Director-Generals duties.

26 Disclosure of interests by Director-General

The Director-General must give written notice to the Minister of all interests, pecuniary or otherwise, that the Director-General has or acquires and that could conflict with the proper performance of the Director-Generals functions.

27 Delegation

(1) The Director-General may delegate to a staff member (other than a consultant) all or any of the powers of the Director-General that relate to the management of the staff of ASIS or the financial management of ASIS.

Note: See sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 on delegations.

(2) The delegation must be in writing.

Part 4 Committee on ASIO and ASIS

28 Committee on ASIO and ASIS

(1) A Committee to be known as the Parliamentary Joint Committee on ASIO and ASIS is to be established as soon as practicable after the commencement of this Act and after the commencement of the first session of each Parliament.

(2) The Committee is to consist of 7 members, 3 of whom must be Senators and 4 of whom must be members of the House of Representatives.

(3) A majority of the Committees members must be Government members.

Note: For more detailed provisions on the appointment of members see Part 3 of Schedule 1.

29 Functions of the Committee

(1) The functions of the Committee are:

(a) to review the administration and expenditure of ASIO and ASIS, including the annual financial statements of ASIO and ASIS; and

(b) to review any matter in relation to ASIO or ASIS referred to the Committee by:

(i) the responsible Minister; or

(ii) a resolution of either House of the Parliament; and

(c) to report the Committees comments and recommendations to each House of the Parliament and to the responsible Minister.

(2) The Committee may, by resolution, request the responsible Minister to refer a particular aspect of the activities of ASIO or ASIS (as the case may be) to the Committee, and the Minister may, under paragraph (1)(b), refer that aspect to the Committee for review.

(3) The functions of the Committee do not include:

(a) reviewing the intelligence gathering priorities of ASIO or ASIS; or

(b) reviewing the sources of information, other operational assistance or operational methods available to ASIO or ASIS; or

(d) reviewing information provided by, or by an agency of, a foreign government where that government does not consent to the disclosure of the information; or

(e) reviewing an aspect of the activities of ASIO or ASIS that does not affect an Australian person; or

(f) reviewing the rules made under section 15 of this Act; or

(g) conducting inquiries into individual complaints about the activities of ASIO or ASIS.

Note: For Australian person see section 3.

30 Directors-General and Inspector-General of Intelligence and Security to brief the Committee

For the purpose of performing its functions, the Committee may request the following people to brief the Committee:

(a) the Director-General of Security;

(b) the Director-General of ASIS;

Note: The Committee cannot require anyone briefing the Committee to disclose operationally sensitive information (see clause 1 of Schedule 1).

31 Annual report

As soon as practicable after each year ending on 30 June, the Committee must give to the Parliament a report on the activities of the Committee during the year.

32 Schedule 1

Schedule 1 contains further provisions about the Committee.

Part 5 Staff of ASIS

33 Employment of staff

(1) The Director-General may, on behalf of the Commonwealth, employ by written agreement such employees of ASIS as the Director-General thinks necessary for the purposes of this Act.

(2) The Director-General, on behalf of the Commonwealth, has all the rights, duties and powers of an employer in respect of the engagement, and employment, of employees of ASIS.

(3) The Director-General may determine the terms and conditions on which employees are to be employed. Before making a determination the Director-General must consult with the employees who are to be subject to the terms and conditions of the determination.

34 Engagement of consultants

(1) The Director-General may, on behalf of the Commonwealth, engage as consultants persons having suitable qualifications and experience.

(2) The engagement of a consultant must be by written agreement.

(3) The terms and conditions of engagement are those determined by the Director-General from time to time.

35 Applicability of principles of Public Service Act 1999

Although employees of ASIS are not employed under the Public Service Act 1999, the Director-General must adopt the principles of that Act in relation to employees of ASIS to the extent to which the Director-General considers they are consistent with the effective performance of the functions of ASIS.

36 Special provisions relating to existing staff

A person who, immediately before the commencement of this Act, was employed in ASIS under a written agreement continues to be employed on the terms and conditions specified in that agreement, unless he or she agrees to accept other terms and conditions.

37 Staff grievances

(1) The Director-General must:

(a) establish procedures relating to the consideration of grievances of employees and former employees of ASIS; and

(b) determine the classes of ASIS actions that are to be subject to the grievance procedures.

(2) In establishing the procedures and determining the classes of action, the Director-General must:

(a) adopt the principles of the Public Service Act 1999 to the extent to which the Director-General considers they are consistent with the effective performance of the functions of ASIS; and

(b) consult with the employees of ASIS.

(3) The procedures must include the following matters:

(a) initial consideration of grievances by the Director-General or a person authorised in writing by the Director-General;

(b) establishment of Grievance Review Panels chaired by independent Chairs to make determinations reviewing initial considerations of grievances.

(4) The Director-General must implement a determination of a Grievance Review Panel to the extent that it is within his or her power to do so.

(5) In this section:

action includes a refusal or failure to act.

ASIS action means action taken after the commencement of this Act by the Director-General or an employee of ASIS that relates to an ASIS employees employment.

38 Application of Crimes Act

The Director-General and staff members of ASIS are Commonwealth officers for the purposes of the Crimes Act 1914.

Part 6 Miscellaneous

39 Communication of certain information ASIS

(1) A person is guilty of an offence if:

(a) the person communicates any information or matter that was prepared by or on behalf of ASIS in connection with its functions or relates to the performance by ASIS of its functions; and

(b) the information or matter has come to the knowledge or into the possession of the person by reason of:

(i) his or her being, or having been, a staff member or agent of ASIS; or

(ii) his or her having entered into any contract, agreement or arrangement with ASIS; or

(iii) his or her having been an employee or agent of a person who has entered into a contract, agreement or arrangement with ASIS; and

(i) to the Director-General or a staff member by the person in the course of the persons duties as a staff member; or

(ii) to the Director-General or a staff member by the person in accordance with a contract, agreement or arrangement; or

(iii) by the person in the course of the persons duties as a staff member or agent, within the limits of authority conferred on the person by the Director-General; or

(iv) with the approval of the Director-General or of a staff member having the authority of the Director-General to give such an approval.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

(2) A prosecution for an offence against subsection (1) may be instituted only by the Attorney-General or with the Attorney-Generals consent.

40 Communication of certain informationDSD

(1) A person is guilty of an offence if:

(a) the person communicates any information or matter that was prepared by or on behalf of DSD in connection with its functions or relates to the performance by DSD of its functions; and

(b) the information or matter has come to the knowledge or into the possession of the person by reason of:

(i) his or her being, or having been, a staff member of DSD; or

(ii) his or her having entered into any contract, agreement or arrangement with DSD; or

(iii) his or her having been an employee or agent of a person who has entered into a contract, agreement or arrangement with DSD; and

(i) to the Director or a staff member by the person in the course of the persons duties as a staff member; or

(ii) to the Director or a staff member by the person in accordance with a contract, agreement or arrangement; or

(iii) by the person in the course of the persons duties as a staff member, within the limits of authority conferred on the person by the Director; or

(iv) with the approval of the Director or of a staff member having the authority of the Director to give such an approval.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

(2) A prosecution for an offence against subsection (1) may be instituted only by the Attorney-General or with the Attorney-Generals consent.

41 Publication of identity of staff

(1) A person is guilty of an offence:

(a) if:

(i) the person identifies a person as being, or having been, an agent or staff member of ASIS; and

(ii) the identification is not of the Director-General or such other persons as the Director-General determines; or

(b) if:

(i) the person makes public any information from which the identity of such a person could reasonably be inferred, or any information that could reasonably lead to the identity of such a person being established; and

(ii) the Minister or Director-General has not consented in writing to the information being made public; and

(iii) the information has not been made public by means of broadcasting or reporting proceedings of the Parliament (other than proceedings of the Committee) as authorised by the Parliament.

Penalty: Imprisonment for 1 year or 60 penalty units, or both.

Note: For agent and staff member see section 3.

(2) A prosecution for an offence against subsection (1) may be instituted only by the Attorney-General or with the Attorney-Generals consent.

42 Annual report

As soon as practicable after each year ending on 30 June, the Director-General must give to the Minister a report on the activities of ASIS during the year.

43 Regulations

The Governor-General may make regulations prescribing matters:

(a) required or permitted to be prescribed by this Act; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Schedule 1 Committee on ASIO and ASIS

Note: See section 32.

Part 1 Procedure

1 Committee must not require certain information to be disclosed

The Committee must not require a person or body to disclose to the Committee operationally sensitive information or information that would or might prejudice Australias national security or the conduct of Australias foreign relations.

Note: For operationally sensitive information see section 3.

2 Power to obtain information and documents

(1) The Chair or another member authorised by the Committee may give a person written notice requiring the person to appear before the Committee to give evidence or to produce documents to the Committee.

(2) The notice must specify the day on which, and the time and place at which, the person is required to appear or to produce documents. The day must not be less than 14 days after the day on which the notice is given to the person.

(3) The notice must also specify the nature of the evidence or documents to be provided to the Committee, and in the case of documents, the form in which they are to be provided.

(4) A requirement under this clause must not be made of:

(a) the Director-General of Security or the Director-General of ASIS; or

(b) a staff member or agent of ASIO or a staff member or agent of ASIS; or

(d) a member of the staff of the Inspector-General of Intelligence and Security.

(5) A requirement under this clause may only be made of a person if the Committee has reasonable grounds for believing that the person is capable of giving evidence or producing documents relevant to a matter that the Committee is reviewing or that has been referred to the Committee.

(6) If a member gives a notice to a person, the member must as soon as practicable give a copy of the notice to the Minister responsible for ASIO or the Minister responsible for ASIS, as the case requires.

(7) The Commonwealth must pay a person who has been given a notice requiring the person to appear before the Committee such allowances for the persons travelling and other expenses as are prescribed.

3 Provision of information to Committee by ASIO and ASIS

(1) The Chair or another member authorised by the Committee may give a written notice to the Director-General of Security or the Director-General of ASIS requiring him or her to appear before the Committee to give evidence or to produce documents to the Committee.

(2) The notice must specify the day on which, and the time and place at which, the Director-General is required to appear or to produce documents. The day must not be less than 14 days after the day on which the notice is given to the Director-General.

(3) The notice must also specify the nature of the evidence or documents to be provided to the Committee, and in the case of documents, the form in which they are to be provided.

(4) A requirement under this clause may only be made of the Director-General if the Committee has reasonable grounds for believing that the Director-General is capable of giving evidence or producing documents relevant to a matter that has been referred to the Committee.

(5) The evidence is to be given by:

(a) if the Director-General nominates a staff member to give the evidencethe staff member or both the staff member and the Director-General; or

(b) in any other casethe Director-General.

(6) If a member gives a notice to the Director-General, the member must as soon as practicable give a copy of the notice to the responsible Minister.

4 Certificates by Minister

(1) If:

(a) a person is about to give or is giving evidence to the Committee or is about to produce a document to the Committee (whether or not required to do so under clause 2 or 3); and

(b) either the Minister responsible for ASIO or the Minister responsible for ASIS is of the opinion that, to prevent the disclosure of operationally sensitive information:

(i) the person (not being the Director-General of Security or the Director-General of ASIS) should not give evidence before the Committee; or

(ii) the person should not give evidence before the Committee relating to a particular matter; or

(iii) in a case where a person has commenced to give evidence before the Committee:

(A) the person should not continue to give evidence before the Committee; or

(B) the person should not give, or continue to give, evidence relating to a particular matter before the Committee; or

(iv) the person should not produce documents to the Committee; or

(v) the person should not produce documents of a particular kind to the Committee;

the Minister may give to the presiding member of the Committee a certificate in relation to the matter stating the Ministers opinion.

(2) The Ministers certificate must also specify:

(a) in a case to which subparagraph (1)(b)(ii) or (v) appliesthe matter in relation to which the Minister is satisfied that the person should not give, or continue to give, evidence, or specifying the kind of documents that the Minister is satisfied the person should not produce, as the case requires; and

(b) in a case to which sub-subparagraph (1)(b)(iii)(B) appliesthe matter in relation to which the Minister is satisfied that the person should not give, or continue to give, evidence.

(3) The Minister must give a copy of a certificate under subclause (1) to the President of the Senate, to the Speaker of the House of Representatives and to the person required to give evidence or produce documents.

(4) A decision of the Minister under subclause (1) must not be questioned in any court or tribunal.

(5) Where the Minister gives a certificate under subclause (1) in relation to a person:

(a) if the certificate states that the person should not give, or continue to give, evidence before the Committeethe Committee must not receive, or continue to receive, as the case may be, evidence from the person; or

(b) if the certificate states that the person should not give, or continue to give, evidence before the Committee relating to a particular matterthe Committee must not receive, or continue to receive, as the case may be, evidence from the person relating to that matter; or

(c) if the certificate states that the person should not produce documents, or documents of a particular kind, to the Committeethe Committee must not receive documents, or documents of that kind, as the case may be, from the person.

5 Evidence

(1) The Committee may take evidence on oath or affirmation.

(2) The member presiding may administer an oath or affirmation to a witness appearing before the Committee.

(3) The oath or affirmation is an oath or affirmation that the evidence the person will give will be true.

(4) To avoid doubt, the Committee is not to be taken to be an Australian court for the purposes of the Evidence Act 1995.

6 Publication of evidence or contents of documents

(1) Subject to this clause, the Committee may disclose or publish, or authorise the disclosure or publication of:

(a) any evidence taken by the Committee; or

(b) the contents of any document produced to the Committee.

(2) The Committee must not disclose or publish, or authorise the disclosure or publication of, the evidence or the contents of the document without the written authority of:

(a) if the person who gave the evidence or produced the document is a staff member of ASIO or ASISthe relevant Director-General; or

(b) in any other casethe person who gave the evidence or produced the document.

(3) The Committee must obtain the advice of the responsible Minister as to whether the disclosure or publication would or might disclose:

(a) the identity of a person who is or has been a staff member or agent of ASIO or a staff member or agent of ASIS (as the case requires); or

(b) any information from which the identity of such a person could reasonably be inferred; or

(i) Australias national security or the conduct of Australias foreign relations; or

(ii) the performance by either ASIO or ASIS of its functions.

Note: For operationally sensitive information see section 3.

(4) The Director-General of Security and the Director-General of ASIS may determine that paragraphs (3)(a) and (b) do not apply to the identification of specified staff members or agents of their respective agencies, and the determination has effect accordingly.

(5) The Committee must not disclose or publish, or authorise the disclosure or publication of, the evidence or the contents of the document if the responsible Minister has advised the Committee that the disclosure or publication would or might disclose a matter referred to in subclause (3).

(6) This clause has effect despite section 2 of the Parliamentary Papers Act 1908.

(7) If the evidence, or the contents of the document, are disclosed or published under this clause, section 4 of the Parliamentary Papers Act 1908 applies to the disclosure or publication as if it were a publication under an authority given under section 2 of that Act.

7 Restrictions on disclosure to Parliament

(1) The Committee must not disclose in a report to a House of the Parliament:

(a) the identity of a person who is or has been a staff member or agent of ASIO or ASIS; or

(b) any information from which the identity of such a person could reasonably be inferred; or

(i) Australias national security or the conduct of Australias foreign relations; or

(ii) the performance by either ASIO or ASIS of its functions.

Note: For operationally sensitive information see section 3.

(2) The Director-General of Security and the Director-General of ASIS may determine that paragraphs (1)(a) and (b) do not apply to the identification of specified staff members or agents of their respective agencies, and the determination has effect accordingly.

(3) The Committee must obtain the advice of the responsible Minister as to whether the disclosure of any part of the report would or might disclose a matter referred to in subclause (1).

(4) The Committee must not present a report of the Committee to a House of the Parliament if the responsible Minister has advised that the report or a part of the report would or might disclose such a matter.

8 Continuance of evidence

(1) If:

(a) any evidence or document about a matter has been taken by or produced to the Committee as constituted at a time; and

(b) the Committee as so constituted has ceased to exist before reporting on the matter;

the Committee as constituted at a later time, whether during the same or another Parliament, may consider the evidence or document as if the evidence or document had been taken by or produced to it.

(2) Clause 9 applies to each member of the later Committee as if the evidence or document had been taken or produced to that Committee.

Part 2 Offences

9 Offences relating to publishing or disclosing evidence or documents

(1) A person (including a member) is guilty of an offence if:

(a) the person discloses or publishes any evidence taken by the Committee or the contents of any document produced to the Committee; and

(b) the disclosure or publication is not authorised in writing by:

(i) if the person who gave the evidence or produced the document is a staff memberthe Director-General; or

(ii) in any other casethe person who gave the evidence or produced the document; and

(c) the disclosure or publication is of evidence, or is of the contents of a document, that has not already been lawfully disclosed or published.

(2) Subclause (1) does not apply to the disclosure or publication by a person of a matter of which the person has become aware otherwise than because of the giving of any evidence before, or the production of any document to, the Committee.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

(3) Subclause (1) has effect despite section 2 of the Parliamentary Papers Act 1908.

(4) In this clause:

Committee includes the Parliamentary Joint Committee on the Australian Security Intelligence Organisation.

Note: The Parliamentary Joint Committee on the Australian Security Intelligence Organisation (established under the Australian Security Intelligence Organisation Act 1979) ceased to exist when the Parliamentary Joint Committee on ASIS and ASIO was established. However, the records of the earlier Committee were transferred to the Parliamentary Joint Committee on ASIS and ASIO.

10 Offences relating to giving evidence or producing documents

(1) A person who has been given a notice requiring the person to appear before the Committee is guilty of an offence if the person:

(a) fails to attend as required by the notice; or

(b) having not been excused or released by the Committee, fails to attend and report from day to day; or

(d) refuses or fails to answer a question, not being a question about a matter in respect of which a certificate has been issued under clause 4, that the Committee requires the person to answer.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

(2) Subclause (1) applies to a staff member who is nominated by the Director-General under subclause 3(5) to appear before the Committee to give evidence.

(3) Paragraph (1)(d) does not apply if the answer to the question would tend to incriminate the person.

(4) A person who has been given a notice requiring the person to produce a document, not being a document in respect of which a certificate has been issued under clause 4, to the Committee is guilty of an offence if the person refuses or fails to produce the document.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

(5) Subclause (4) does not apply if the producing of the document would tend to incriminate the person.

(6) A person is guilty of an offence if the person:

(a) gives evidence to the Committee; and

(b) does so knowing that the evidence is false or misleading in a material particular.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

11 Protection of witnesses

(1) A person who causes or threatens to cause any detriment to another person with the intention that the other person or a third person will:

(a) not attend as a witness before the Committee; or

(b) give false evidence or a falsified document to the Committee; or

is guilty of an offence.

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

(2) A person who otherwise improperly influences another person with the intention that the other person or a third person will:

(a) not attend as a witness before the Committee; or

(b) give false evidence or a falsified document to the Committee; or

is guilty of an offence.

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

(3) A person who causes or threatens to cause any detriment to another person because that other person or a third person appeared before the Committee or produced a document to the Committee is guilty of an offence.

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

12 Secrecy

(1) A person who is or has been a member, or a member of the staff, of the Committee is guilty of an offence if the person, directly or indirectly:

(a) makes a record of, or discloses or communicates to a person, any information acquired because of holding the office or employment; or

(b) produces to a person a document provided to the Committee for the purposes of enabling the Committee to perform its functions;

and the action of the person is not carried out for the purposes of enabling the Committee to perform its functions.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

(2) A person who is or has been a member, or a member of the staff, of the Committee must not be required to:

(a) produce in a court a document of which he or she has custody, or to which he or she has access, because of his or her position as a member, or a member of the staff, of the Committee; or

(b) disclose or to communicate to a court any information obtained by him or her because of such a position.

(3) In this clause:

produce includes permit access to.

13 Prosecution of offences

A prosecution for an offence against this Part can be instituted only by the Attorney-General or with the Attorney-Generals consent.

Part 3 Administration

14 Appointment of members

(1) The members who are members of the House of Representatives must be appointed by resolution of the House on the nomination of the Prime Minister.

(2) Before nominating the members, the Prime Minister must consult with the Leader of each recognised political party that is represented in the House and does not form part of the Government.

(3) The members who are Senators must be appointed by resolution of the Senate on the nomination of the Leader of the Government in the Senate.

(4) Before nominating the members, the Leader of the Government in the Senate must consult with the Leader of each recognised political party that is represented in the Senate and does not form part of the Government.

(5) In nominating the members, the Prime Minister and the Leader of the Government in the Senate must have regard to the desirability of ensuring that the composition of the Committee reflects the representation of recognised political parties in the Parliament.

(6) A person is not eligible for appointment as a member if the person is:

(a) a Minister; or

(b) the President of the Senate; or

15 Term of office

(1) A member holds office during the pleasure of the House of the Parliament by which the member was appointed.

(2) A member ceases to hold office as a member:

(a) when the House of Representatives expires by the passing of time or is dissolved; or

(b) if the person becomes the holder of an office specified in any of the paragraphs of subclause 14(6); or

(d) if the person resigns the office.

(3) A member who is a Senator may resign his or her office by giving a signed notice of resignation to the President of the Senate.

(4) A member who is a member of the House of Representatives may resign his or her office by giving a signed notice of resignation to the Speaker of the House of Representatives.

(5) Either House of the Parliament may appoint one of its members to fill a vacancy among the members of the Committee appointed by that House.

16 Chair

(1) There must be a Chair of the Committee who must be a Government member elected by the members from time to time.

(2) The Chair holds office during the pleasure of the Committee.

(3) A person holding office as Chair ceases to hold the office if:

(a) the person ceases to be a member; or

(b) the person resigns the office.

(4) A person holding office as Chair may resign the office by giving a signed notice of resignation to a meeting of the Committee.

17 Meetings

(1) The Committee may meet at such times and, subject to subclause (3), at such places in Australia as the Committee decides by resolution or, subject to a resolution of the Committee, as the Chair decides.

(2) The Committee may meet and transact business even though the Parliament has been prorogued.

(3) Before the Committee or the Chair decides a place of meeting, the Chair must obtain advice from the Director-General of Security and the Director-General of ASIS as to the suitability of the place.

(4) The Chair must preside at all meetings of the Committee at which he or she is present.

(5) If the Chair is not present at a meeting of the Committee, the members present are to appoint a member to preside, and the member so appointed may exercise, in relation to the meeting and any matter arising out of the meeting, any of the powers of the Chair.

(6) The Committee must keep minutes of its proceedings.

18 Quorum

(1) At a meeting of the Committee, a quorum is constituted if:

(a) at least 4 members are present; and

(b) subject to subclause (2), a majority of the members present are Government members.

(2) There may be an equal number of Government members and non-Government members if the presiding member is a Government member.

19 Voting at meetings

(1) A question arising at a meeting is to be decided by a majority of the votes of the members present and voting.

(2) The member presiding at the meeting has a deliberative vote.

(3) The member presiding at the meeting has a casting vote if votes are equal.

20 Proceedings

(1) The proceedings of the Committee are to be conducted in the manner determined by the Committee.

(2) The Committee must not, without the approval of the Minister responsible for ASIO and the Minister responsible for ASIS, conduct a review in public.

(3) At a review conducted in private, the Committee may give directions as to the persons who may be present. In giving such directions, the Committee must have regard to the requirements of security and any other matters the Committee thinks fit.

21 Staff of the Committee must be cleared for security purposes

Each member of the staff of the Committee must be cleared for security purposes to the same level and at the same frequency as staff members of ASIS.

22 Protection of information and documents

(1) The Committee must make arrangements acceptable to the Director-General of Security and the Director-General of ASIS for the security of any information held and any records made by the Committee.

(2) The Committee must ensure that any documents having a national security classification provided to the Committee are returned as soon as possible after the members have examined them.

Mr DOWNER (Mayo--Minister for Foreign Affairs) (9.31 a.m.) --I move:

That the bill be now read a second time.

Introduction

The Intelligence Services Bill 2001 represents an historic step forward in enhancing the accountability of particular agencies dealing with intelligence and security matters. As its title suggests, this bill relates to three agencies within the Australian Intelligence Community (AIC)--the Australian Secret Intelligence Service (ASIS), the Defence Signals Directorate (DSD) and the Australian Security Intelligence Organisation (ASIO). It deals with ASIS in the greatest detail responding to key recommendations of the commission of inquiry, conducted by the Hon. Gordon J. Samuels AC and Mr Michael H. Codd AC, which reported to government on 31 March 1995. The bill seeks to place ASIS on a statutory footing and details its functions, lines of authority and accountability, including under an expanded oversight mechanism through the establishment of a parliamentary committee.

The bill deals with DSD to a lesser degree, as is appropriate given its position within the Department of Defence. Nevertheless the bill also details the focus and activities of the agency, its functions, lines of authority and accountability mechanisms. ASIO, which members will be aware already has its own legislation, is included only in so far as it is to be subject to expanded oversight by the parliamentary committee which is also to oversee aspects of ASIS. This new parliamentary committee will replace the Parliamentary Joint Committee for ASIO and will have expanded functions. Flowing from these measures, this bill should provide increased assurance to the public in regard to the control and conduct of these agencies. The Office of National Assessments (ONA) is not covered by the bill as it has separate arrangements under the Office of National Assessments Act 1977.

The value of intelligence

Intelligence information is of critical importance to the Australian government, as to most other national governments. Good information is essential to sound policy making. To ensure national security, the appropriate development of foreign relationships and national economic wellbeing in fast changing environments, countries must seek to make informed decisions. Information on which these decisions are based is drawn from many quarters, some of it freely available, some less so. As a result, many countries in the world have established intelligence agencies to gather information. As far as Australia is concerned, the intelligence agencies play a vital role in enabling certain critical decisions to be made with the best possible knowledge base. The information they provide, to use the words of the commission of inquiry that reported on ASIS in 1995, represents `a valuable element in the advancement of Australia's policies and in the protection of its security'. In so doing the agencies provide a highly cost-effective service. Australia needs quality intelligence to enable it to compete and protect its position in an ever changing and complex world. It is appropriate that Australia has competent and effective intelligence agencies.

In over five years as foreign minister I have found the information provided by our intelligence agencies to be invaluable. The service that the agencies provide is essential in the development of our approach to key foreign relations and defence issues. Intelligence information goes to the heart of the protection of Australia's security and is of vital importance in both supporting our Defence Force and developing defence capability. ASIS and DSD are tightly focused organisations, attuned and responsive to Australia's needs.

Elements of the Intelligence Services Bill

I will now address specific elements of the bill. The Australian Secret Intelligence Service was established by executive direction on 13 May 1952 and has provided an important service to government since that time. Its existence was officially acknowledged by the government on 25 October 1977 in conjunction with commentary on the reports of the Hon. Justice Hope, who had conducted the royal commission on intelligence and security. In his report on ASIS, Justice Hope commented that the service was `right in concept for Australian circumstances' and recommended that ASIS be retained. Subsequent reviews of ASIS echoed those judgments. In 1995 the commission of inquiry noted that `ASIS is highly focused on its core function and on achieving success'. From my own experience I would endorse firmly those statements.

DSD had its origins in two World War Two organisations, Central Bureau and the Fleet Radio Unit, Melbourne (FRUMEL). It was constituted as the Defence Signals Bureau in 1947, and was renamed the Defence Signals Directorate in 1978. DSD is Australia's national authority for signals intelligence and communications and computer security, and in that capacity provides an important support service to the government and the Defence Force. The activities of DSD have been reviewed by a number of royal commissions, whose findings have all been favourable.

In line with one of the key recommendations made by the commission of inquiry, which reported to government in 1995, the government determined that ASIS should be placed on a statutory footing. The commission of inquiry had maintained that legislation to affirm ASIS's existence and provide authority for its activities was both desirable in principle and would be of benefit in practice. The commission's report stated that in a parliamentary democracy, the existence of an agency such as ASIS should be endorsed by the parliament and the scope and the limits of its functions defined by legislation. The Howard government followed through with the previous decision to put ASIS on a statutory footing and has advanced the process of developing legislation appropriate for ASIS.

In placing ASIS on a statutory footing, we are bringing the service in line with the intelligence services in most other Western democracies. Members will be aware, for instance, that the intelligence and security services of the United Kingdom, the United States, Canada and New Zealand all have a legislative basis. Similarly, placing ASIS on a statutory footing will bring the service more into the open and, in line with the 1995 commission of inquiry's viewpoint, see parliament formally acknowledge its role and value.

The commission of inquiry maintained that, in placing ASIS on a statutory footing, ASIS should obtain from parliament the maximum authority and control consistent with the essential need for secrecy. This bill seeks to achieve that objective by establishing the framework within which ASIS must operate, detailing arrangements for ministerial control and expanding accountability and oversight mechanisms. Concurrently, the bill sets out in legislation the existing control and accountability framework for DSD, creating a balance between greater openness and the need for continued secrecy. The functions of ASIS and the Defence Signals Directorate are listed in legislation for the first time.

With regard to accountability, the bill also details the mechanisms associated with each of the agencies. It is worth noting that the activities of these agencies are already subject to extensive oversight through the Office of the Inspector-General of Intelligence and Security under the Inspector-General of Intelligence and Security Act 1986. In this regard, the commission of inquiry stated in its report on ASIS in 1995 that the accountability and oversight arrangements in place were already comprehensive and effective. Nevertheless, under this bill, the role of the Inspector-General of Intelligence and Security, or IGIS, is further emphasised to enable the IGIS to ensure agency compliance with appropriate ministerial authorisations.

As to the functions of ASIS and DSD, both have an external focus in the furtherance of Australia's national security, foreign relations and national economic wellbeing. Therefore, both agencies are empowered, under close government oversight and control, to collect intelligence information in accordance with national priorities and longstanding intelligence tasking mechanisms and to distribute that intelligence. ASIS may also undertake counterintelligence activities to maintain its own security and that of Australia in conjunction with other relevant Australian agencies. Additionally, it is also able to liaise with other intelligence services. DSD may provide assistance in various forms to Commonwealth and state authorities concerning the security and integrity of information and in relation to cryptography and communications technologies. Both agencies are empowered to cooperate with Commonwealth, state and other authorities in order to perform their functions or to facilitate the performance of their functions.

The bill also provides the government of the day with the option of directing ASIS to perform other strictly defined tasks. This is prudent public policy, giving the government of the day flexibility in dealing with contingencies which may arise. These activities or tasks would still have to be strictly related to the capabilities, intentions or activities of people or organisations outside Australia. The responsible minister must consult other ministers with related responsibilities before directing ASIS to perform activities under this provision. Furthermore, any directions issued under this part of the bill would be subject to close inspection by the IGIS and copies provided to him.

It is important to emphasise that ASIS is not a police or law enforcement agency; nor does ASIS have paramilitary responsibilities. Additionally, ASIS does not, in its planning or conduct of activities, allow for personal violence or the use of weapons. Such activities are not relevant to the role and functions of ASIS. These limitations are made explicit in the bill.

Levels of accountability

In respect of the agencies' functions and their oversight, this bill shows the various levels of accountability to which ASIS and DSD are subject. The bill itself establishes the first level of accountability, providing a legislative basis for ASIS and listing the functions of both ASIS and DSD. The second level of accountability, as detailed in the bill, concerns the greater definition of the agencies' roles through written directions. Accordingly, the bill states that the responsible minister must provide a written direction to the relevant agency head. This classified direction will detail each agency head's responsibilities and also specify the circumstances under which the agency head must seek formal authorisation for the agency to undertake particular activities. The third level of accountability in terms of each agency's functions concerns requests to the responsible minister for authorisations to undertake particular activities. The bill details the circumstances under which this may occur and the arrangements that must be in place before such authorisations may be provided. Through these levels of accountability, all of which are subject to oversight and monitoring by the Inspector-General of Intelligence and Security, and the establishment of a parliamentary committee for ASIO and ASIS, the bill provides the Australian public with further confidence about the accountability of the intelligence agencies to government.

Immunities and limitations on functions

The services provided by ASIS and DSD are vital to the interests of the country. Necessarily, the agencies focus on intelligence and their activities must remain secret if they are to be conducted effectively. This bill does not shy away from that fact. Occasionally, these agencies are inhibited in the conduct of their activities outside Australia by the unintended consequences of Australian laws. It will be apparent that the original intention of the legislators who drafted these laws was not to inhibit Commonwealth agencies from fulfilling their charter at the behest of the Commonwealth. Accordingly, this bill seeks to provide limited immunities for both ASIS and DSD in respect of the proper conduct of their functions. Immunity will only be provided in respect of activities carried out in accordance with the directions issued by ministers. Importantly too, as with other aspects of both ASIS's and DSD's activities, the Inspector-General of Intelligence and Security, as an independent watchdog, will oversee the propriety of the activities of the agencies in this regard.

This bill finds the appropriate balance between the ability of ASIS and DSD to conduct their functions and the limits that should be placed on both agencies. The bill clearly details the limits that are to be placed on ASIS and DSD. They may only perform their functions in the national interest as determined by government--in particular, in the interests of Australia's national security, Australia's foreign relations or Australia's national economic wellbeing--and only to the extent that those matters are affected by people or organisations outside Australia.

Privacy

The privacy of Australians is another matter that is a focus for protection under this bill. The responsible minister for both ASIS and DSD must make written rules regulating the communication within government and retention of intelligence information concerning Australians and Australian corporations. This is done to preserve the privacy of Australians and corporations. These rules, extending from arrangements already subject to close examination by the Inspector-General of Intelligence and Security, are to be prepared in consultation with the IGIS, and ASIS and DSD's compliance with them inspected by the IGIS on a regular basis.

Other provisions

Beyond dealing with the functions of ASIS and DSD, the bill also caters for the continued existence and control of ASIS. ASIS is under the control of the Director-General, who is responsible to the Minister for Foreign Affairs. The administrative provisions for the Director-General and the employment of ASIS staff are also addressed.

The bill also provides for the Leader of the Opposition in the House of Representatives to be briefed about ASIS. This is in line with another recommendation of the commission of inquiry and, indeed, practice as it currently exists.

Parliamentary joint committee for ASIS and ASIO

This bill, beyond emphasising the role for the Inspector-General of Intelligence and Security, also enhances other aspects of the accountability regime for two of the intelligence and security agencies by establishing a complementary oversight mechanism that deals with the expenditure and administration of both ASIS and ASIO. This oversight mechanism will take the form of a parliamentary committee for ASIS and ASIO. In its report, the commission of inquiry had proposed that a single parliamentary committee oversee both agencies. The committee envisaged under the Intelligence Services Bill an expanded focus in comparison to the current parliamentary Joint Committee on the Australian Security Intelligence Organisation, and this latter committee will be disbanded once the new committee is established. The commission of inquiry maintained that the parliamentary joint committee not review operationally sensitive matters. The government agrees. The parliamentary joint committee will be authorised to examine the expenditure and administration of ASIO and ASIS. This is in addition to the role of the Australian National Audit Office, which examines all of ASIS's financial activities. The parliamentary joint committee's role is a significant development in terms of openness and enhanced accountability. The Inspector-General of Intelligence and Security will address matters associated with operational areas of activity, and the parliamentary committee will address the areas of agency expenditure and administration. Their roles will be complementary but distinct.

The parliamentary committee will comprise seven members, four from the House of Representatives and three from the Senate. These members will be appointed by resolution of the relevant chamber on the nomination of the leader of the government in that chamber. This will follow consultation with the leader of each recognised political party in the relevant chamber. The desirability of ensuring the composition of the parliamentary committee reflects the representation of the recognised parties will also be taken into consideration. The 1995 commission of inquiry recommended that the parliamentary committee exercise its functions principally through the medium of hearings in camera and be subject to rules capable of preventing the release of information without authority. The bill also addresses these recommendations.

The establishment of the parliamentary committee to oversee aspects of ASIS and ASIO brings together a broad, balanced accountability regime. This is underpinned by the responsibility which ministers for the agencies have to parliament, and the role of the Inspector-General of Intelligence and Security in reporting to the Prime Minister and the parliament on the propriety and legality of the agencies' operational functions. As a consequence, members of the public should gain particular reassurance that the agencies are operating responsibly and are under appropriate control and scrutiny.

Members will note that DSD is not one of the agencies to be overseen by the new parliamentary committee. This is because, unlike ASIS and ASIO, DSD will not be a separate statutory organisation but remain a part of the Defence organisation. DSD is one of three Defence intelligence agencies and is closely integrated with specialist units of the Defence Force. The expenditure and administration of DSD, as part of the Defence organisation, is already subject to parliamentary oversight through the Senate Foreign Affairs, Defence and Trade Legislation Committee and the Joint Standing Committee on Foreign Affairs, Defence and Trade. To move DSD from this existing structure would take it out of context with the other Defence intelligence elements. It is therefore appropriate that oversight of DSD should remain with the Minister for Defence.

Protection of ASIS and its staff

Having earlier noted the special nature of ASIS and DSD in respect of their functions externally, this bill, quite appropriately, seeks to protect ASIS staff, the intelligence it produces and its sources and methods. As was noted by the commission of inquiry in its report to the government, it would be important to dispel any public impression that the introduction of legislation would imply any complete opening up of ASIS to public view. The commission of inquiry report also commented that the collection of intelligence information `depends on people who often put their lives and liberties at considerable risk'. It is for that reason that secrecy about ASIS's activities and the people engaged in them is necessary in the national interest. To lay ASIS bare would be to irreparably damage its capabilities and assets. The men and women of ASIS perform difficult and, at times, dangerous tasks in distant locations. Information about their work and, indeed, their identities needs to be closely held. Accordingly, the government, in line with recommendations from the commission of inquiry, has sought to provide ASIS and its officers with appropriate legislative protection. This bill generally prohibits the identification of a staff member or agent of ASIS, other than the Director-General of ASIS, and provides protection for information produced by or on behalf of ASIS in connection with its functions.

Conclusion

In conclusion, I seek to remind the House of the importance of intelligence and, therefore, the intelligence agencies to government. Australian governments need the best possible information our intelligence community can provide. The functions performed by the agencies are essential and highly valued.

This bill, beyond implementing key recommendations of the commission of inquiry concerning ASIS, finds a balance between the proper performance by ASIS and DSD of their functions and the agencies' accountability to government. The accountability regime for ASIS and ASIO has also been expanded through the establishment of a new parliamentary committee.

I present the explanatory memorandum to this bill and commend the bill to the House.

Debate (on motion by Mr Horne) adjourned.

1998-1999-2000-2001

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Intelligence Services (Consequential Provisions) Bill 2001

No. , 2001

(Foreign Affairs)

A Bill for an Act to deal with matters consequential on the enactment of the Intelligence Services Act 2001, and for related purposes

Contents

A Bill for an Act to deal with matters consequential on the enactment of the Intelligence Services Act 2001, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Intelligence Services (Consequential Provisions) Act 2001.

2 Commencement

This Act commences at the same time as the Intelligence Services Act 2001.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

4 Regulations

The Governor-General may make regulations providing for matters of a transitional nature (including any saving or application provision) arising out of the enactment of the Intelligence Services Act 2001, or the amendments made by this Act.

Schedule 1 Provisions relating to the establishment of the Parliamentary Joint Committee on ASIO and ASIS

Part 1Amendments

Australian Security Intelligence Organisation Act 1979

1 Section 4

Insert:

Committee on ASIO and ASIS means the Parliamentary Joint Committee on ASIO and ASIS established under the Intelligence Services Act 2001.

2 Subsection 8A(6)

Omit Parliamentary Joint Committee on the Australian Security Intelligence Organisation, substitute Committee on ASIO and ASIS.

3 Subsection 92(1)

Omit Parliamentary Joint Committee on the Australian Security Intelligence Organisation, substitute Committee on ASIO and ASIS.

4 Part VA

Repeal the Part.

Remuneration and Allowances Act 1990

5 Schedule 4 (table row relating to the Chair, Parliamentary Joint Committee on the Australian Security Intelligence Organisation)

Repeal the row.

6 Schedule 4 (after the table row relating to the Chair, Parliamentary Joint Committee on the National Crime Authority)

Insert:

Chair, Parliamentary Joint Committee on ASIO and ASIS 6,310

Part 2 Transitionals

7 Definitions

In this Part, unless the contrary intention appears:

commencement day means the day on which Part 1 commences.

new committee means the Parliamentary Joint Committee on ASIO and ASIS established under the Intelligence Services Act 2001.

old committee means the Parliamentary Joint Committee on the Australian Security Intelligence Organisation constituted under Part VA.

Part VA means Part VA of the Australian Security Intelligence Organisation Act 1979, as in force immediately before the commencement day.

transfer time means the time at which the new committee is first established.

8 Continuation of old committee

Despite the repeal of Part VA:

(a) the old Committee continues in existence until the transfer time, under the name it had immediately before the commencement day, as if the amendments made by Part 1 had not been made; and

(b) the Australian Security Intelligence Organisation Act 1979 and the Remuneration and Allowances Act 1990 continue to operate in respect of the old committee until the transfer time as if the amendments made by Part 1 had not been made.

9 Records etc.

At the transfer time, any records that were in the custody, or under the control, of the old committee immediately before the transfer time are transferred to the new committee by force of this item.

Schedule 2 Inspector-General of Intelligence and Security Act 1986

1 Subsection 17(9)

Omit , before completing the inquiry,.

2 Subsection 19(2)

Repeal the subsection.

3 Subsection 26(1)

Omit 3, substitute 5.

4 After subsection 35(2A)

Insert:

(2B) The Inspector-General must include in a report prepared under subsection (1) the Inspector-Generals comments on the extent of compliance by ASIS and DSD, during the year to which the report relates, with rules made under section 15 of the Intelligence Services Act 2001.

Note: The rules referred to in subsection (2B) regulate the communication and retention of intelligence information.

Schedule 3 Miscellaneous amendments

Acts Interpretation Act 1901

1 Subsection 34C(8)

After Organisation, insert , the Australian Secret Intelligence Service.

Administrative Decisions (Judicial Review) Act 1977

2 Paragraph (d) of Schedule 1

Before Australian Security Intelligence Organisation Act 1956, insert:

Intelligence Services Act 2001

Freedom of Information Act 1982

3 Schedule 3

Insert in its appropriate alphabetical position, determined on a letter-by-letter basis:

Intelligence Services Act 2001, subsection 41(1)

Title: Intelligence Services (Consequential Provisions) Bill 2001
EM type: EM
Bill number: 01128
Date: 27 June 2001
Database: Explanatory memoranda
Source: House

_____________________________________

1998-1999-2000-2001

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

INTELLIGENCE SERVICES (CONSEQUENTIAL PROVISIONS) BILL 2001

EXPLANATORY MEMORANDUM

(Circulated by authority of the Honourable Alexander Downer MP)

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 and the Australian Security Intelligence Organisation (ASIO). 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.

Part 1 - Preliminary

Clause 1: Short Title

Clause 1 is a formal item which provides for the short title of the Bill.

Clause 2: Commencement

The Bill commences at the same time as the Intelligence Services Bill.

Clause 3: Schedules

This clause specifies that each Act referred to in a Schedule is to be amended or repealed as set out in the Schedule concerned.

Clause 4: Regulations

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 and ASIS

Part 1 - Amendments

Australian Security Intelligence Organisation Act 1979

Item 1 specifies the amendment required in Section 4 of the ASIO Act to make reference to the Committee on ASIO and ASIS.

Item 2 indicates the omission and substitution required in subsection 8A(6) of the ASIO Act to change the reference to the Parliamentary Joint Committee on the Australian Security Intelligence Organisation to the Committee on ASIO and ASIS.

Item 3 specifies the omission and substitution required in subsection 92(1) to reflect the establishment of the Committee on ASIO and ASIS.

Item 4 repeals Part VA of the ASIO Act as a result of the establishment of the Committee on ASIO and ASIS.

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 and ASIS.

Item 6 refers to the need to insert a table row relating to the Chair of the Parliamentary Joint Committee on ASIO and ASIS.

Part 2 - Transitionals

Item 7: Definitions

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 and ASIS is first established. This is to apply in relation to both the ASIO Act 1979 and the Remuneration and Allowances Act 1990.

Item 9: Records etc.

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 and ASIS 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 IGIS Act 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 IGIS Act, 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. 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 FOI Act, 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.

Title: HVP No. 196 17 INTELLIGENCE SERVICES--PROPOSED JOINT SELECT COMMITTEE
Date: 27 June 2001
Page: 2067
Proof: Yes
Database: Votes & Proceedings
Source: House
Main Committee: No

---------------

17 INTELLIGENCE SERVICES--PROPOSED JOINT SELECT COMMITTEE

Mr Reith (Leader of the House), by leave, moved that--

(1) a Joint Select Committee to be known as the Joint Select Committee on the Intelligence Services be appointed to inquire into and report on the proposed legislative reforms in:

(a) the Intelligence Services Bill 2001 and the Intelligence Services (Consequential Provisions) Bill 2001: and
(b) the provision in the Cybercrime Bill 2001 relating to the Australian Secret Intelligence Service (ASIS) and the Defence Signals Directorate (DSD) - Liability for Certain Acts.

(2) the committee consist of 15 members: 5 members of the House of Representatives to be nominated by the Government Whip or Whips, 4 members of the House of Representatives to be nominated by the Opposition Whip or Whips, 3 senators to be nominated by the Leader of the Government in the Senate, 2 senators to be nominated by the Leader of the Opposition in the Senate and 1 senator to be nominated by any minority party.

(3) every nomination of a member of the committee be forthwith notified in writing to the President of the Senate and the Speaker of the House of Representatives.

(4) the members of the committee hold office as a joint select committee until presentation of the committee's report or until the House of Representatives is dissolved, whichever is the earlier.

(5) the committee report no later than 20 August 2001.

(6) the committee elect a Government member as its chair.

(7) the committee elect a deputy chair who shall act as chair of the committee at any time when the chair is not present at a meeting of the committee.

(8) at any time when the chair and deputy chair are not present at a meeting of the committee, the members present shall elect another member to act as chair at that meeting.

(9) the chair, or the deputy chair when acting as chair, shall have a deliberative vote and, in the event of an equality of voting, a casting vote.

(10) 5 members of the committee constitute a quorum of the committee, provided that in a deliberative meeting the quorum shall include 3 members of either House of the Government parties and 2 members of either House of the non-government parties.

(11) the committee have power to:

(a) send for persons, papers and records;
(b) move from place to place;
(c) adjourn from time to time and to sit during any adjournment of the Senate and the House of Representatives.

(12) the committee may determine the manner of conduct of its proceedings and in so doing shall consider whether the procedures prescribed in s.92F(2) and (3) of the Australian Security Intelligence Organisation Act 1979(`the ASIO Act') should be followed.

(13) the committee shall ensure that any documents having a national security classification provided to the committee are, while in the custody of the committee, kept at a place under such terms and conditions as are agreed between the committee and the Director-General of ASIS, the Director of DSD, or the Inspector-General of Intelligence and Security, as appropriate.

(14) the committee shall ensure that the identity of staff of ASIS is appropriately protected in accordance with the provisions of the Intelligence Services Bill 2001.

(15) the committee has leave to report from time to time its proceedings and the evidence taken and any recommendations as it may deem fit.

(16) a message be sent to the Senate acquainting it with this resolution and requesting that it concur and take action accordingly.

Question--put and passed.