As we head towards a khaki election the Australian Parliamentary Joint Committee on Intelligence and Security (PJCIS) has released its 'Advisory Report on the National Security Legislation Amendment Bill (No. 1) 2014', with the following recommendations
R1
that the Explanatory Memorandum to the National Security Legislation Amendment Bill (No. 1) 2014 (Cth) be amended to clarify that the term ‘ASIO affiliate’ is intended to be restricted to natural persons.
R2
that the intent of proposed sections 86 and 87 contained in the National Security Legislation Amendment Bill (No. 1) 2014 be clarified to make explicit that a person on secondment shall be required to work wholly on behalf of the host organisation, and under the host organisation’s legal framework.
R3
that consideration be given to amending the Explanatory Memorandum or the Attorney-General’s Guidelines issued under section 8A of the Australian Security Intelligence Organisation Act 1979 to clarify that a computer access warrant may only authorise access to a computer (which would include a network) to the extent that is necessary for the collection of intelligence in respect of a specified security matter.
R4
that the Government initiate a review of the Attorney-General’s Guidelines issued under section 8A of the Australian Security Intelligence Organisation Act 1979, 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.
R5
that the Director-General of Security be required to include details of any instances of material disruption of a computer, or non-routine access to third party computers or premises, in the reports on the execution of each warrant provided to the Attorney-General under section 34 of the Australian Security Intelligence Organisation Act 1979.
R6
that the Australian Security Intelligence Organisation be required to notify the Attorney-General and the Inspector-General of Intelligence and Security within 24 hours of any incident in which force is used against a person by an ASIO officer, and for a written report on the incident to be provided within 7 days.
The Committee further recommends that the Director-General of Security be required to include details of any use of force against a person by ASIO officers in the reports on the execution of each warrant provided to the Attorney-General under section 34 of the Australian Security Intelligence Organisation Act 1979.
R7
that the IGIS provide close oversight of the design and execution of training for ASIO officers who may be required to use force during the execution of warrants issued under the Australian Security Intelligence Organisation Act 1979.
R8
that the IGIS provide close oversight of any application of the proposed powers to authorise the use of force against persons by ASIO officers to ensure those powers are used only in exceptional circumstances, and to the extent reasonable and necessary to carry out a warrant.
R9
that Schedule 3 to the National Security Legislation Amendment Bill (No. 1) 2014 be amended to require that approval must be obtained from the Attorney-General before a special intelligence operation is commenced, varied or extended beyond six months by the Australian Security Intelligence Organisation.
R10
that additional requirements be introduced into the National Security Legislation Amendment Bill (No. 1) 2014 to enhance the Inspector-General for Intelligence and Security (IGIS)’s oversight of the proposed Special Intelligence Operations scheme, including:
- a requirement for the Australian Security Intelligence Organisation (ASIO) to notify the IGIS when a special intelligence operation is approved
- a requirement for ASIO to advise the IGIS of any special intelligence operation that is intended to continue beyond six months
- a requirement for ASIO to notify the Attorney-General and the IGIS, as part of the six-monthly reports proposed in clause 35Q of the Bill, of any injury, loss or damage caused to a person or property in the course of a special intelligence operation, and
- a requirement for the IGIS to periodically, and at least annually, inspect ASIO’s records relating to current special intelligence operations.
R11
that additional exemptions be included in the offence provisions relating to disclosure of information on special intelligence operations in proposed section 35P of the National Security Legislation Amendment Bill (No. 1) 2014 to explicitly enable
- disclosure of information for the purpose of obtaining legal advice
- disclosure of information by any person in the course of inspections by the Inspector-General of Intelligence and Security (IGIS), or as part of a complaint to the IGIS or other pro-active disclosure made to the IGIS
- communication of information by IGIS staff to the IGIS or other staff within the Office of the IGIS in the course of their duties.
R12
that the National Security Legislation Amendment Bill (No. 1) 2014 be amended or, if not possible, the Explanatory Memorandum of the Bill be clarified, to confirm that the Commonwealth Director of Public Prosecution must take into account the public interest, including the public interest in publication, before
initiating a prosecution for the disclosure of a special intelligence operation.
R13
that, to make clear the limits on potential prosecution for disclosing information about special intelligence operations, Section 35P of the National Security Legislation Amendment Bill (No. 1) 2014 be amended to confirm that the mental element (or intent) of the offence is ‘recklessness’, as defined in the Criminal Code, by describing the application of that mental element to the specific offence created by section 35P.
R14 that the National Security Legislation Amendment Bill (No. 1) 2014 be amended to confirm that the offence provisions in Schedule 6 to the Bill do not apply to
- information disclosed to the Inspector-General of Intelligence and Security (IGIS) in the course of inspections, or in support of a complaint or other pro-active disclosure, or
- communication of information by IGIS staff to the IGIS or other staff within the Office of the IGIS in the course of their duties.
R15
that the Office of the Inspector-General of Intelligence and Security’s annual budget be supplemented to the extent required to provide for the new oversight requirements associated with the National Security Legislation Amendment Bill (No. 1) 2014, including periodic reviews of special intelligence operations and oversight of the use of force during the execution of warrants.
Supplementation of the Office of the Inspector-General of Intelligence and Security’s budget should also take other proposed measures to expand the powers of intelligence agencies into account.
R16
that the Government appoint an Independent National Security Legislation Monitor as soon as practicable.
R17
that, following consideration of the recommendations in this report, the National Security Legislation Amendment Bill (No. 1) 2014 be passed by the Parliament.
