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2022 - 2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) AMENDMENT BILL
2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus KC MP)
ABBREVIATIONS USED IN THE EXPLANATORY MEMORANDUM
ASIO Australian Security Intelligence Organisation
ASIO Act Australian Security Intelligence Organisation Act 1979
ICCPR International Covenant on Civil and Political Rights
TIA Act Telecommunications (Interception and Access) Act 1979
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TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) AMENDMENT BILL
2023
GENERAL OUTLINE
1. The Bill amends sections 65 and 137 of the Telecommunications (Interception and
Access) Act 1979 (TIA Act) to ensure information obtained under section 11A, 11B and 11C
warrants ('foreign intelligence information') can be communicated, used and recorded to
protect Australia's national security.
2. Schedule 1 of the Bill will clarify the ability of agencies to communicate foreign
intelligence information about threats to Australia in accordance with the proper
performance of their functions. Foreign intelligence information obtained under the relevant
warrants plays a critical role in enabling intelligence agencies to identify threats to
Australia's national security. The communication and use of such information is critical to
identifying and mitigating those threats. These amendments ensure that the Attorney-General
can continue to approve the communication and use of foreign intelligence information in a
manner that is appropriate to address threats to Australia's national security.
3. The Bill does not seek to alter or expand the information that may be intercepted
under foreign intelligence warrants under sections 11A, 11B or 11C. Rather, review and
consideration of the provisions has identified the need for greater certainty about the sharing
of foreign intelligence information. The amendments would replace the requirement for the
Attorney-General to approve the persons who can receive the information, as this may not be
known with sufficient certainty. Instead, the amendments will allow the Attorney-General to
limit the communication and use of such information by specifying purposes, or imposing
conditions.
4. The Bill includes a number of critical safeguards to ensure that foreign intelligence
information is used and communicated in a controlled and targeted manner. This includes
that where a person receives foreign intelligence information under subsection 65(1) or
137(1) of the TIA Act, it may only be communicated in the proper performance of functions,
duties or powers, and subject to any purposes specified, or any conditions imposed, by the
Attorney-General.
FINANCIAL IMPACT
5. The Bill has nil financial impacts.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Telecommunications (Interception and Access) Amendment Bill 2023
1. This 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
2. This Bill amends sections 65 and 137 of the Telecommunications (Interception and
Access) Act 1979 (TIA Act) to ensure information obtained under section 11A, 11B and
11C warrants ('foreign intelligence information') can be communicated, used and
recorded to support necessary information sharing practices that are critical to the
protection of Australia's national security.
3. The Bill would amend the TIA Act to:
• remove the requirement for the Attorney-General to specify the persons to whom,
and manner in which, foreign intelligence information may be communicated
under subsections 65(2) and 137(3) of the TIA Act
• enable the Attorney-General to approve the purposes for which foreign
intelligence information can be communicated and used by another person, and to
impose conditions on such communication and use
• require the person to whom foreign intelligence information is communicated
under subsections 65(1) and 137(1) to communicate, use or record that
information in the proper performance or exercise of the relevant person's
functions, duties or powers
• enable those who receive foreign intelligence information under new subsections
65(1A) and 137(1A), or from a person to whom foreign intelligence information
has been communicated under subsections 65(2) and 137(3) to communicate, use,
or make a record of that information, and
• enable the Attorney-General to approve the Director-General of Security (or
persons authorised by the Director-General) to communicate foreign intelligence
information to certain persons for the purposes (if any) approved, and subject to
the conditions (if any) specified by the Attorney-General. This excludes persons to
whom the Director-General could already communicate that information under
existing subsections 65(1), 64(2), 137(1) and 136(2) of the TIA Act.
4. These measures would clarify and strengthen the ability of agencies to communicate
foreign intelligence information about threats to Australia, and keep Australians safe.
These amendments ensure that the Attorney-General can continue to approve the
communication and use of foreign intelligence information in an appropriate manner.
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Human rights implications
5. The Bill engages the following human rights under the International Covenant on Civil
and Political Rights (ICCPR):
• protection against arbitrary or unlawful interference with privacy in Article 17
(ICCPR), and
• right to life in Article 6 (ICCPR).
Protection against arbitrary or unlawful interference with privacy in Article 17 of the
ICCPR
6. Protection against arbitrary or unlawful interference with privacy means that no person
shall be subjected to arbitrary or unlawful interference with his or her privacy, family,
home or correspondence, nor to unlawful attacks on his or her honour and reputation, and
that everyone has the right to the protection of the law against such interference or
attacks.
7. The protection against arbitrary or unlawful interference with privacy can be permissibly
limited where the limitations are lawful and not arbitrary. The term 'unlawful' indicates
that no interference can take place except as authorised under domestic law. The term
'arbitrary' means that any interference with privacy must be in accordance with the
provisions, aims and objectives of the ICCPR and should be reasonable in the particular
circumstances. The United Nations Human Rights Committee has interpreted
reasonableness to mean that any limitation must be proportionate and necessary in the
circumstances to achieve a legitimate objective.
Schedule 1--Amendments
Schedule 1 limits the right to privacy by enabling:
• the Director-General of Security to communicate foreign intelligence information
to another person to whom the Director General could not communicate the
information under subsection 65(1), or 64(2), 137(1) or 136(2) (items 1 and 7),
• a person who has received foreign intelligence information from ASIO to
communicate, use and make a record of foreign intelligence information (items 1,
3, 7 and 9), and
• a person who has received foreign intelligence information from another person
under new subsections 65(1B), 65(2), 137(1B) and 137(3) to use, communicate
and make a record of the information to another person (items 1, 4, 7 and 9).
8. Foreign intelligence information could include personal information and as such engage
an individual's right to privacy.
9. These amendments pursue the legitimate objective of national security by enabling
agencies to use or communicate foreign intelligence information to persons who are best
placed to take actions, mitigate risk and protect Australia's national security interests.
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Foreign intelligence information plays a critical role in enabling intelligence agencies to
identify threats to Australia's national security.
10. The Bill includes a number of critical safeguards to ensure that any limitations on the
right to privacy are proportionate and necessary to achieve the legitimate objective of
protecting Australia's national security. In particular:
• The amendments would permit the Attorney-General to choose to approve the
purposes for which foreign intelligence information is used by a person to whom
foreign intelligence is communicated under subsection 65(1) and 137(3) of the
TIA Act (first person) and extend this approval requirement to the communication
of this information to another person (the second person).
• The Attorney-General can choose to approve the purposes, if any, for which
foreign intelligence information can be communicated to another person other
than a person to whom the Director-General of Security could communicate the
information under subsection 65(1), 64(2), 137(1) or 136(2). In respect of persons
who receive foreign intelligence information under subsections 65(1) or 137(1) of
the TIA Act, there is a further requirement that the recording, use and
communication of foreign intelligence information be in the proper performance
or exercise of the person's functions, duties or powers.
• The Attorney-General can additionally impose conditions on the communication
and use of foreign intelligence information. Conditions could include specifying
the manner in which such information can be communicated and used, or matters
that must be considered before foreign intelligence information may be shared.
11. In addition, there are non-legislative frameworks that limit any interference with privacy.
ASIO and persons to whom information may be communicated under sections 18(3),
18(4A) and 19A(4) of the ASIO Act operate in accordance to relevant existing protective
security policies, privacy rules, guidelines and sensitive information handling practices to
protect and minimise the unauthorised disclosure of such information.
12. These measures in the Bill provide appropriate safeguards to ensure that any limitation on
the right to privacy caused by the communication of foreign intelligence information are
the least rights restrictive means of achieving the outcome of protecting national security.
To that end, while Schedule 1 limits the right to privacy, those limitations are reasonable,
necessary and proportionate.
The right to life and security of the person contained in Article 6 and 9 of the ICCPR
13. The right to security of the person in Article 9 of the ICCPR requires states to provide
reasonable and appropriate measures to protect a person's physical security. The right to
life in Article 6 of the ICCPR places a positive obligation on states to protect individuals
from unwarranted actions that threaten their right to life. The obligation to protect life
requires the state to take preventative operational measures to protect individuals whose
safety may be compromised in particular circumstances, such as by a terrorist act.
14. The Bill promotes the right to life and security by enhancing the ability of agencies to
identify and respond to national security threats.
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Schedule 1--Amendments
15. Schedule 1 promotes the right to life and security by strengthening the ability of relevant
agencies to communicate foreign intelligence information about threats to Australia.
Foreign intelligence information plays a critical role in enabling intelligence agencies to
identify threats to Australia's national security.
16. The amendments promote the right to life by improving agencies' ability to communicate
foreign intelligence information that is essential in, mitigating and combating risks to
national security and threats to life.
Conclusion
17. The Bill is compatible with human rights because it promotes the protection of human
rights. To the extent that it may limit human rights, those limitations are reasonable,
necessary and proportionate.
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NOTES ON CLAUSES
Preliminary
Clause 1 - Short title
1. This clause provides for the short title of the Act to be the Telecommunications
(Interception and Access) Amendment Act 2023.
Clause 2 - Commencement
2. This clause provides for the commencement of each provision in the Bill, as set out in
the table.
3. Item 1 of the table provides that the whole Act commences the day the Bill receives
the Royal Assent.
Clause 3 - Schedules
4. Clause 3 provides that amendments to, or repeal of, legislation contained in the Bill
are set out in the Schedules to the Bill and any other item in a Schedule to the Bill has effect
according to its terms.
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SCHEDULE 1: Amendments
Telecommunications (Interception and Access) Act 1979
Item 1: After subsection 65(1)
This item would insert new subsections 65(1A) and (1B) after subsection 65(1).
New subsection 65(1A)
New subsection 65(1A) permits the Director-General of Security to personally, or by
a person authorised by the Director-General, communicate foreign intelligence
information to another person (the second person), other than a person to whom the
Director-General could communicate the information under subsection (1) or 64(2).
Foreign intelligence information is defined in subsection 5(1) as information
obtained (whether before or after the commencement of that definition) under a
warrant issued under section 11A, 11B or 11C of the Act.
The information may only be communicated under new subsection 65(1A) for the
purposes (if any) that are approved, and on the conditions (if any) specified, by the
Attorney-General. The ability for the Attorney-General to determine the purposes
for which foreign intelligence information may be communicated includes the ability
to limit the purposes for which such information may be communicated.
The Attorney-General will have a discretion as to whether to approve purposes, or
specify conditions for the purpose of this subsection. If the Attorney-General decides
not to approve any purposes, or specify any conditions foreign intelligence
information may be communicated pursuant to this subsection.
This item would ensure that the Director-General of Security (or a person authorised
by the Director-General of Security) may communicate foreign intelligence
information to persons other than those to whom the Director-General could
communicate that information under subsection (1) or 64(2).
At present, the Attorney-General may approve persons under subsection 65(2) to
whom foreign intelligence information may be communicated. Currently, the
Director-General of Security (or a person authorised by the Director-General of
Security), or an ASIO employee or affiliate, could be the subject of an approval
under subsection 65(2), which would allow the Director-General of Security to
communicate information to persons to whom the information could not otherwise
be communicated under subsections 65(1) and 64(2).
Subsection 65(2) is being amended by items 2 - 4 of this Bill to replace the
requirement to specify 'such persons'. This item ensures that the Director-General of
Security (or a person authorised by the Director-General of Security) is expressly
permitted to communicate information to persons, other than a person to whom the
Director-General could communicate the information under subsection 65(1) and
64(2) for such purposes (if any) as are approved in writing by the Attorney-General
and subject to the conditions (if any) specified in writing by the Attorney-General.
The scope of purposes (if any) could include the Director-General's or authorised
persons' performance of ASIO's functions or powers.
Conditions imposed by the Attorney-General (if any), could include specifying
restrictions on the communication and use of foreign intelligence information,
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including persons who can communicate and use such information and the manner
in which such information can be communicated and used.
New subsection 65(1B)
New subsection 65(1B) would provide that the second person to whom the foreign
intelligence information is communicated under subsection 65(1A), and any other
person to whom that information is communicated under subsection 65(1B), may
communicate it to another person, and use and make a record of it.
This new subsection will ensure that where a person (the second person) receives
foreign intelligence information, the second person is permitted to communicate that
information to another person (for example, another government agency). The
recipient (and any future recipients) will likewise be permitted to communicate that
information. The second person and any other recipients will be permitted to use and
make a record of the information.
Item 2: Subsection 65(2)
This item would amend subsection 65(2) of the TIA Act to omit 'in accordance with
subsection (1), or in accordance with an approval given under this subsection, may'
and substitute it with 'under subsection (1) may, in the proper performance or
exercise of the person's functions, duties or powers'.
The replacement of the phrase 'in accordance with' and insertion of 'under' is a
stylistic amendment intended to improve the consistency of language in this section.
New subsection 65(2) (incorporating the amendments in items 3 and 4) will require
that the communication, use and recording of the foreign intelligence information be
in the proper performance or exercise of the functions, duties or powers of the
person who has received the information under subsection 65(1).
Item 3: Paragraphs 65(2)(a) and (b)
This item would repeal and replace paragraphs 65(2)(a) and (b) of the TIA Act.
Existing paragraph 65(2)(a) requires the Attorney-General to approve in writing the
persons to, and manner in which, foreign intelligence information can be
communicated. It is not always appropriate or practical for the Attorney-General to
be required to specify the persons to whom such information may be communicated,
given the range of persons who may need to receive foreign intelligence
information.
New paragraph 65(2)(a) would provide that the Attorney-General can choose to
approve the purposes (if any) in writing for which foreign intelligence information
can be communicated to another person and for which the information can be used.
The communication and use of the information will also be subject to conditions (if
any) specified by the Attorney-General in writing.
The ability for the Attorney-General to determine the purposes for which foreign
intelligence information may be communicated and used includes the ability to limit
the purposes for which such information may be communicated and used.
The Attorney-General will have a discretion as to whether to approve purposes, or
specify conditions for the purpose of this subsection. If the Attorney-General decides
not to approve any purposes, or specify any conditions, foreign intelligence
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information may be communicated, used or recorded in the proper performance or
exercise of the person's functions, duties or powers pursuant to this subsection.
Item 4: At the end of subsection 65(2)
This item would insert '; and the second person, and any other person to whom that
information is communicated under this subsection may communicate it to another
person, and use and make a record of it.' at the end of subsection 65(2) of the
TIA Act.
This item will ensure that where a person (the second person) who receives foreign
intelligence information needs to communicate that information to another person
(for example, another government agency), the second person is permitted to do so.
The recipient (and any future recipients) will likewise be permitted to communicate
that information. The second person and any other recipients will also be permitted
to use and make a record of the information.
Item 5: Subsection 65(3)
This item would insert references to new subsections 65(1A) and (1B) into existing
subsection 65(3).
This item would have the effect that new subsections 65(1A) and (1B) do not apply
per subsection 65(3), that is, to information:
• obtained by a person referred to in paragraph 55(3)(c) or (d) by intercepting
a communication when exercising authority under a warrant issued to an
agency; or
• communicated, in accordance with section 66, to a person referred to in
paragraph 55(3)(c); or
• that is interception warrant information in relation to a warrant issued to an
agency;
unless the information has been communicated to the Director-General of Security
under section 68.
Item 6: Subsection 65(6A)
This item would insert reference to an approval or conditions under new subsections
65(1A) and 65(2) into existing subsection 65(6A). Subsection 65(6A) currently
provides that an approval under subsection 65(2) is not a legislative instrument. The
insertion of references to an approval or conditions made under new subsections
65(1A) and 65(2) is required for certainty.
Item 7: After subsection 137(1)
This item would insert new subsections 137(1A) and (1B) after subsection 137(1).
New subsection 137(1A)
New subsection 137(1A) would permit the Director-General of Security to
personally, or by a person authorised by the Director General, communicate foreign
intelligence information to another person (the second person), other than a person
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to whom the Director General could communicate the information under subsection
(1) or 136(2).
The information may only be communicated under new subsection 137(1A) for the
purposes (if any) that are approved, and on the conditions (if any) specified, by the
Attorney-General. The ability for the Attorney-General to determine the purposes
for which foreign intelligence information may be communicated includes the ability
to limit the purposes for which such information may be communicated.
The Attorney-General will have a discretion as to whether to approve purposes, or
specify conditions for the purpose of this subsection. If the Attorney-General decides
not to approve any purposes, or specify any conditions, foreign intelligence
information may be communicated pursuant to this subsection.
This item would ensure that the Director-General of Security (or a person authorised
by the Director-General of Security) may communicate foreign intelligence
information to persons other than those to whom the Director-General could
communicate that information under subsection (1) or 136(2).
At present, the Attorney-General may approve persons under subsection 137(3) to
whom foreign intelligence information may be communicated. Currently, the
Director-General of Security (or a person authorised by the Director-General of
Security), or an ASIO employee or affiliate, could be the subject of an approval
under subsection 137(3), which would allow the Director-General of Security to
communicate information to persons to whom subsections 137(1) and 136(2) do not
apply.
Subsection 137(3) is being amended by item 9 of this Bill to replace the requirement
to specify 'such persons'. This item ensures that the Director-General of Security (or
a person authorised by the Director-General of Security) is expressly permitted to
communicate information to persons, other than a person to whom subsection (1) or
136(2) for such purposes (if any) as are approved in writing by the Attorney-General
and subject to the conditions (if any) specified in writing by the Attorney-General.
The scope of purposes (if any) could include the Director-General's or authorised
persons' performance of ASIO's functions or powers.
Conditions imposed by the Attorney-General (if any), could include specifying
restrictions on the communication and use of foreign intelligence information,
including persons who can communicate and use such information and the manner
in which such information can be communicated and used.
New subsection 137(1B)
New subsection 137(1B) would provide that the second person to whom the foreign
intelligence information is communicated under subsection 137(1A), and any other
person to whom that information is communicated under subsection 137(1B), may
communicate it to another person, and use and make a record of it.
This new subsection will ensure that where a person (the second person) who
receives foreign intelligence information needs to communicate that information to
another person (for example, another government agency), the second person is
permitted to do so. The recipient (and any future recipients) will likewise be
permitted to communicate that information. The second person and any other
recipients will be permitted to use and make a record of the information.
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Item 8: Subsection 137(2)
This item will insert 'under subsection (1) or (1A)' after 'communication' in
subsection 137(2).
Subsection 137(2) currently clarifies that the communication under
subsection 137(1) may be made by the Director-General of Security personally or by
a person authorised by the Director-General.
This item would have the effect that subsection 137(2) also applies to
communication that occurs under new subsection 137(1A). That is, communication
under subsection 137(1) or 137(1A) may be made by the Director-General of
Security personally or by a person authorised by the Director-General.
Item 9: Subsection 137(3)
This item would repeal and replace subsection 137(3) of the TIA Act.
Existing subsection 137(3) currently provides that a person to whom foreign
intelligence information has been communicated in accordance with subsection (1)
or in accordance with an approval given under this subsection, may:
• communicate that information to such persons, and in such manner, as are
approved in writing by the Attorney-General; and
• use that information for such purposes as are approved in writing by the
Attorney-General; and
• make a record of that information.
New subsection 137(3) would replace the requirement to specify such persons with a
requirement for the Attorney-General to instead approve in writing the purposes (if
any) for which the foreign intelligence information can be communicated to another
person and for which the information can be used. The communication and use of
the information will also be subject to conditions (if any) specified in writing by the
Attorney-General.
New subsection 137(3) will also require that the communication, use and recording
of the foreign intelligence information by a person to whom the information has
been communicated under subsection (1) to be in the proper performance or exercise
of the person's (who communicates, uses or records the information) functions,
duties or powers.
The ability for the Attorney-General to determine the purposes for which foreign
intelligence information may be communicated and used includes the ability to limit
the purposes for which such information may be communicated and used.
The Attorney-General will have a discretion as to whether to approve purposes, or
specify conditions for the purpose of this subsection. If the Attorney-General decides
not to approve any purposes, or specify any conditions, foreign intelligence
information may be communicated, used or recorded in the proper performance or
exercise of the person's functions, duties or powers pursuant to this subsection.
Conditions imposed by the Attorney-General (if any) could include specifying
restrictions on the communication and use of foreign intelligence information,
including persons who can communicate and use such information and the manner
in which such information can be communicated and used.
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New subsection 137(3) will also ensure that where a person (the second person) who
receives foreign intelligence information under subsection 137(3) needs to
communicate that information to another person (for example, another government
agency), the second person is permitted to do so. The recipient (and any future
recipients) will likewise be permitted to communicate that information. The second
person and any other recipients will also be permitted to use and make a record of
the information.
Item 10: Subsection 137(4)
This item would insert reference to an approval or conditions under new subsections
137(1A) and 137(3) in to existing subsection 137(4). Subsection 137(4) currently
provides that an approval under subsection 137(3) is not a legislative instrument.
The insertion of references to an approval or conditions made under new subsections
137(1A) and 137(3) is required for certainty.
Item 11: Application of amendments and savings
This item provides that the amendments made by this Schedule apply in relation to
the communication, use or making of records of foreign intelligence information that
occurs after the commencement of this Schedule, whether the foreign intelligence
information was obtained from interceptions made before or after that
commencement.
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