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2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) AMENDMENT
(ASSISTANCE AND ACCESS AMENDMENTS REVIEW) BILL 2019
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Home Affairs,
the Hon. Peter Dutton MP)
TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) AMENDMENT
(ASSISTANCE AND ACCESS AMENDMENTS REVIEW) BILL 2019
GENERAL OUTLINE
1. The Telecommunications (Interception and Access) Amendment (Assistance and
Access Amendments Review) Bill 2019 (the Bill) amends the Intelligence Services Act 2001
(Intelligence Services Act) and the Telecommunications (Interception and Access) Act 1979
(TIA Act), to defer the legislative deadline for the Parliamentary Joint Committee on
Intelligence and Security (PJCIS) to report on its third review of the operation of the
amendments introduced by the Telecommunications and Other Legislation (Assistance and
Access) Act 2018 (Assistance and Access Act) to 30 September 2020.
FINANCIAL IMPACT STATEMENT
2. Nil.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
3. The Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
4. The Telecommunications (Interception and Access) Amendment (Assistance and
Access Amendments Review) Bill 2019 amends the TIA Act and the Intelligence Services
Act to extend the reporting date for the PJCIS's third review of the Assistance and Access
Act from 13 April 2020 to 30 September 2020.
5. On 3 April 2019, the PJCIS concluded its second review of the Assistance and Access
Act. In its report, the PJCIS recommended that legislation be passed to extend the deadline
for its third review until June 2020. The PJCIS sought this extension to allow adequate time
to consider the findings of the Independent National Security Legislation Monitor (INSLM),
following his review of the Assistance and Access Act. Subsequently, the PJCIS sought a
further extension of the reporting date, to 30 September 2020, in order to better accommodate
and consider the findings of the INSLM.
Overview of specific measures
6. The Bill amends section 187N of the Telecommunications (Interception and Access)
Act 1979 to remove references to the Assistance and Access Act.
7. The Bill inserts a new provision in section 29 of the Intelligence Services Act 2001 to
govern the PJCIS's third review of the Assistance and Access Act and sets the reporting date
as 30 September 2020.
Human rights implications
8. To the extent that the existing provisions in the TIA Act and the Intelligence Services
Act engage Australia's international human rights obligations, these amendments continue to
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strengthen and promote those rights by ensuring the oversight of national security and
counter-terrorism legislation, such as the Assistance and Access Act, is well-considered,
comprehensive and thorough.
9. By extending the review date for the PJCIS and the INSLM, the Bill promotes the
right to protection against arbitrary or unlawful interference with privacy contained in Article
17 of the International Covenant on Civil and Political Rights (ICCPR). The Bill achieves
this by ensuring there is an appropriate degree of scrutiny for the powers contained in the
Assistance and Access Act. This is important because the Assistance and Access Act limits
the right to privacy for the legitimate objective of protecting national security and public
order.
10. The legislatively mandated reviews by both the PJCIS and the INSLM represent
important safeguards for the Assistance and Access Act and ensure that the powers are used
consistently with human rights. Both reviews are considering the threshold, scope and
proportionality of powers. Extending this review period ensures that the reviews are granted
adequate time to completely review the Act. Therefore, the proposed amendments are
consistent with Australia's obligations under international law.
Conclusion
11. The Bill is compatible with human rights because it promotes the protection of human
rights by ensuring that important oversight bodies such as the PJCIS and INSLM have
adequate time to conduct their reviews of the Assistance and Access Act.
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TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) AMENDMENT
(ASSISTANCE AND ACCESS AMENDMENTS REVIEW) BILL 2019
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short title
1. Clause 1 provides for the short title of the Act to be the Telecommunications
(Interception and Access) Amendment (Assistance and Access Amendments Review) Act 2019
(the Act).
Clause 2 Commencement
2. Subclause 2(1) provides that the whole of the Act commences on the day after the Act
receives the Royal Assent.
3. Subclause 2(2) provides that any information in column 3 of the table is not part of
the Act and that information may be inserted in this column, or information may be edited, in
any published version of the Act.
Clause 3 Schedules
4. This clause provides that legislation that is specified in a Schedule to the Act is
amended or repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to the Act has effect according to its terms.
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SCHEDULE 1 - AMENDMENTS
Intelligence Services Act 2001
Item 1 After paragraph 29(1)(bc)
5. Item 1 inserts new paragraph (bca) into subsection 29(1) of the Intelligence Services
Act, which deals with the functions of the PJCIS. The effect of this amendment is that the
PJCIS must review, by 30 September 2020, the operation of the amendments made by the
Assistance and Access Act, and provide a written report of the review to the relevant
Minister, in this case, the Minister for Home Affairs, who is responsible for administering the
TIA Act.
6. On 3 April 2019, in its report on its second review of amendments made by the
Assistance and Access Act, the PJCIS made three recommendations. The first
recommendation was that section 187N of the TIA Act be amended to defer the reporting
date of the PJCIS's third review of the operation of the Assistance and Access Act from
13 April 2020 to June 2020.
7. On 27 March 2019, the PJCIS under section 7A of the Independent National Security
Legislation Monitor Act 2010 referred aspects of the Assistance and Access Act to the
INSLM for review. The PJCIS recommended that the INSLM report by March 2020.
8. Following the PJCIS's referral, the INSLM requested an extension to his reporting
timeframe to June 2020. Subsequently, on 9 August 2019, the Chair of the PJCIS wrote to the
Prime Minister seeking an extension of its own reporting deadline to 30 September 2020.
9. By amending the date of the PJCIS reporting deadline to 30 September 2020, the Bill
allows the PJCIS adequate time to consider the findings of the INSLM, for the purposes of
their own report.
10. Items 2 and 3 of this Bill amend section 187N of the TIA Act, as requested by the first
recommendation of the PJCIS. However, to give full effect this recommendation, Item 1 of
this Bill amends Part 4 of the Intelligence Services Act which establishes and governs the
functions of the PJCIS including its legislatively mandated reviews.
11. This amendment is necessary because paragraph 29(1)(bc) of the Intelligence Services
Act currently requires the PJCIS conduct the review mandated by section 187N of the TIA
Act. However, section 187N also governs the reporting date for the PJCIS's review of the
mandatory data retention regime prescribed by Part 5-1A of the TIA Act.
12. This Bill amends section 187N and limits this section to the separate review of the
mandatory data retention regime. The new paragraph 29(1)(bca) of the Intelligence Services
Act accommodates the PJCIS's third review of the Assistance and Access Act.
Telecommunications (Interception and Access) Act 1979
Item 2 Section 187N (heading)
13. Item 2 amends the heading to section 187N of the TIA Act by deleting the words,
'and the amendments made by the Telecommunications and Other Legislation Amendment
(Assistance and Access) Act 2018', from the heading of that section.
14. This item is consequential to the amendments made by Item 1.
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Item 3 Subsection 187N(1)
15. Item 3 amends the text of subsection 187N(1) of the TIA Act by deleting the words,
'and the amendments made by the Telecommunications and Other Legislation Amendment
(Assistance and Access) Act 2018' from that subsection.
16. This item is consequential to the amendments made by Item 1.
Item 4 Transitional - Review
17. Item 4 provides that any review of the operation of the amendments made by the
Assistance and Access Act that was started under section 187N of the TIA Act, as in force
before the commencement of this item, must be continued after this item commences, and
that the review must be concluded in accordance with paragraph 29(1)(bca) of the
Intelligence Services Act, as inserted by this Schedule.
18. This item recognises that the amendments required to give effect to the PJCIS's first
recommendation have been made under the Intelligence Services Act, rather than under the
TIA Act. Therefore, the purpose of this Item is to clarify that, although a review of the
operation of the amendments made by the Assistance and Access Act may have been started
under section 187N of the TIA Act, as in force before the commencement of this item, that
review must be continued after this item commences, and must be concluded in accordance
with paragraph 29(1)(bca) of the Intelligence Services Act, as inserted by this Schedule.
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