NSWCCL has made a submission to the Parliamentary Joint Committee on Intelligence and Security Review of the National Security Legislation Amendment (Comprehensive Review and Other measures No. 1) Bill 2021. 

The Bill would amend several acts and would increase the powers of Australian intelligence agencies.

These changes raise a number of questions about what this entails for Australians and, in particular, the work of journalists and media organisations. CCL is concerned that the proposed amendments will carry undesirable consequences.

Our concerns include:

• The breadth of circumstances in which heads of intelligence services can act without Ministerial approval, as well as their capacity to then delegate powers to junior staff members.
• Could baking for a lamington drive or turning chipolatas at a sausage sizzle held by a local community group constitute ‘support’ for a listed organisation? Such support could be relied upon by the Minister to authorise activities to enable intelligence to be produced - despite having been provided innocently by someone unaware that the group is listed. 
• The proposed amendments have the potential to limit the freedom of journalists and media organisations and inhibit the provision of information to the public. They could be misused and  weaponised against media organisations to hinder journalists’ abilities to freely report on legitimate news.
• Is it appropriate for staff immunities to extinguish the rights of affected Australians to obtain a legal remedy in respect of any loss or damage they may suffer if their computer or device is affected during intelligence activities?

We fear that the proposed amendments have the potential to add to an incremental erosion of the civil rights and freedoms of Australians.

Our recommendations

Schedule 1 – Emergency Authorisations under the Intelligence Services Act 2001:

• That proposed amendments to section 9D(1) Intelligence Services Act 2001 (IS Act) include a requirement for an agency head to be satisfied that there is a serious or significant risk to safety of an Australian person, as a precondition to issuing an emergency authorisation (in addition to that risk being ‘imminent’).
• That an authorisation should only be given and the powers should only be exercised if the primary purpose for the production of intelligence on the person is to protect the person from serious or significant risk or ameliorate such risk to their life or safety.
• If the power of delegation to a staff member is to be retained, it should be constrained. At the very least, the staff member should be required to hold a senior position within the intelligence agency, potentially in line with a ‘senior position holder’ as defined in s4 of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act).
• The authorisation given by an agency head should be limited in time and should last only for so long as is reasonably required for the relevant minister to consider the authorisation and make his or her own decision. The primacy of ministerial authority over such an intrusive power ought be preserved.
  5. Before an emergency authorisation is granted, all reasonable efforts should be made to contact the relatives of the affected Australian person to seek their consent on behalf of the Australian person if it is not possible to obtain the consent of the person themself.

Schedule 2 – Class authorisations relating to counter-terrorism:

• The conduct sought to be captured ought to be defined more precisely so that it covers only support or advocacy that materially assists or is intended to materially assist the terrorist-related activities of the listed organisation.

Schedule 3 – Authorisations for activities in support of the Australian Defence Force

• The written request of the Defence Minister should have a ‘sunset’ so that it cannot be used in perpetuity by the IS Agencies despite changes over time in government, in minister, or the circumstances of the overseas conflict for which the authorisation was originally sought.

Schedule 4 – Authorisations for producing intelligence on Australians

• To ensure accountable oversight and control as a means to ensure the ethical surveillance of citizens, surveillance and intelligence productions relating to Australians should require ministerial authorisation where there is the potential for interference with a person’s civil rights or liberties.
• More detailed statutory guidance on relevant factors in determining whether an activity is ‘covert and intrusive’ ought to be provided and circumstances where ministerial authorisation is required should be expanded at the very least to include covert human surveillance and intelligence collection, accessing metadata from telecommunications sources and the collection and use of satellite imagery with respect to an individual.
• The interrogation and combination of numerous, large datasets has the potential to reveal highly personal and private information with respect to an individual. For that reason, such activity should also require ministerial approval.

Schedule 5 – ASIS cooperating with ASIO

• Insufficient justification has been provided to establish the necessity of the proposed Schedule 5 amendment to allow ASIS to undertake intelligence activities within Australia where ASIO 11 requests assistance. Robust justification for its necessity is required given that the Richardson Review recommended against such an amendment.
• If this amendment is to proceed, ASIS should be required to obtain ministerial authorisation to undertake domestic collection activities in support of ASIO. Internal, agency level approval alone is not sufficient.

Schedule 8 – Timeframe for suspension of travel documents

• Justification is required for doubling of the maximum period of interim suspension of Australian or foreign travel documents given the impact on hindering freedom of movement.

Schedule 9 – Expanded immunities for computer-related acts

• Consideration should be given to whether a defence of a mistake of fact or ignorance of fact is a more suitable mechanism to address potential accidental acts affecting devices or computers within Australia rather than providing a blanket immunity that would deny a civil remedy to affected Australians.

More info: read the full submission