Review of the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023
3 May 2023
On 6 April 2023, the Law Council provided a submission in response to the Parliamentary Joint Committee on Intelligence and Security’s (the Committee) Review of the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023 (the Bill).
The Bill proposes amendments to the legislative framework governing the National Intelligence Community (NIC) by implementing some recommendations by the far-reaching Comprehensive Review of the Legal Framework of the National Intelligence Community (known as the Richardson Review).
In principle, the Law Council recognises that NIC agencies must be well-equipped to face national security threats and that the Australian Government has a primary responsibility to protect the life and security of the person. However, in order to preserve the values that underpin our democratic society, Australia’s laws must be reasonable, necessary and proportionate to achieve a legitimate objective.
The Law Council, which was hampered by a truncated time period for consultation, focussed on three aspects of the Bill that deserve further scrutiny.
First, in relation to proposed extensions of defences for certain national infrastructure related offences for ASIO Officers, the Law Council questioned the broad definition of an ASIO Officer to include an ‘ASIO affiliate.’ The proposed defences for ASIO Officers extend existing immunities from criminal liability for interfering with telecommunications facilities and modifications of telecommunications devices to break into a target’s computer, track the geolocation of mobile devices and intercept messages and phone calls without a warrant.
Second, the Law Council also called for the Minister’s 2020 Guidelines to ASIO (the Guidelines) to be revised and re-issued, tabled in Parliament, and reviewed by the Committee to ensure the Guidelines provide clear guidance to ASIO Officers dealing with sensitive information and bulk personal data.
Third, in relation to proposed changes to the scheme for Ministerial authorisation provided for in the Intelligence Services Act 2001 (Cth), the Law Council reiterated its position that Ministerial responsibility and accountability must be given primacy in the design of authorisation mechanisms.
The Law Council notes that the supplementary evidence of the Attorney-General’s Department and Australian Secret Intelligence Service have partially addressed some of the concerns held by the Law Council by providing further detail on the intended usage of these immunities and powers.
As a general point, the Law Council maintains its view that precision in the framing of statutory language is preferable to reliance on the exercise of beneficial discretion by agencies.
The Law Council is also pleased to note media interest in its submission because public scrutiny of these intrusive powers is essential to maintaining public trust and accountability.