TRANSPORT SECURITY AMENDMENT (SERIOUS CRIME) BILL 2020 Explanatory Memorandum

Commonwealth of Australia Explanatory Memoranda

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TRANSPORT SECURITY AMENDMENT (SERIOUS CRIME) BILL 2020

2019-2020 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA SENATE TRANSPORT SECURITY AMENDMENT (SERIOUS CRIME) BILL 2020 REVISED EXPLANATORY MEMORANDUM (Circulated by authority of the Minister for Home Affairs, the Hon Peter Dutton MP) THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED

-1- Transport Security Amendment (Serious Crime) Bill 2020 OUTLINE The Transport Security Amendment (Serious Crime) Bill 2020 (the Bill) implements a number of recommendations made to the Commonwealth government in relation to serious criminal activity occurring at Australia's security controlled airports and ports. Notably it implements recommendations made by the 2015 National Ice Taskforce and the Joint Parliamentary Committee on Law Enforcement's Inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime and more recently the recommendation arising from the Senate Legal and Constitutional Affairs Legislation Committee's inquiry into the Bill. Amendments are outlined in two Schedules to the Bill. Schedule 1 to the Bill introduces an additional purpose to the Aviation Transport Security Act 2004 (the Aviation Act) and the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act) to prevent the use of aviation and maritime transport or offshore facilities in connection with serious crime. This additional purpose aims to reduce criminal influence at Australia's security controlled airports, security regulated ports, and security regulated offshore oil and gas facilities. Schedule 2 to the Bill will introduce the concept of a criminal intelligence assessment for the purposes of the aviation and maritime security identification card (ASIC and MSIC) schemes. This will be achieved by amending the Australian Crime Commission Act 2002 (the ACC Act) so that criminal intelligence assessments become a function of the Chief Executive Officer (CEO) of Australian Criminal Intelligence Commission (ACIC), and will be reviewable in the Security Division of the Administrative Appeals Tribunal (AAT). Specifically, the Bill will:  create an additional purpose for the Aviation and Maritime Acts, to prevent the use of aviation and maritime transport or offshore oil and gas facilities in connection with serious crime, and provide for the making of regulations for this additional purpose so that the ASIC and MSIC schemes can target serious criminal activity  allow for regulations made for the additional purpose to prescribe penalties for offences against the regulations of up to 200 penalty units, consistent with penalty provisions across the ASIC and MSIC schemes  clarify and align the legislative basis for undertaking background checks of individuals under the Aviation and Maritime Acts, and make other technical amendments to those Acts  establish that the ACIC has the function of conducting criminal intelligence assessments for the purpose of the ASIC and MSIC schemes in the ACC Act

-2-  incorporate criminal intelligence assessments into the ASIC and MSIC schemes by expanding the definition of 'background check' within section 5 of the AusCheck Act 2007 (the AusCheck Act),  provide for merits review of criminal intelligence assessments in the Security Division of the AAT, in a manner largely modelled after the review of security assessments conducted by the Australian Security Intelligence Organisation (ASIO) under the Australian Security Intelligence Organisation Act 1979 (the ASIO Act), and amend the Administrative Appeals Tribunal Act 1975 (the AAT Act) to provide for the disclosure of documents relating to a review of a criminal intelligence assessment by the AAT to the Federal Court, and  amend the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) to exempt decisions made by the ACIC and the AAT concerning criminal intelligence assessments from judicial review. ASIC and MSIC schemes The Aviation Transport Security Regulations 2005 (the Aviation Regulations) and the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Maritime Regulations), made under the Aviation Act and Maritime Act respectively, establish the ASIC and MSIC schemes. Under the ASIC and MSIC schemes a person who applies for, or renews, their identification card is required to undergo a background check. The elements that form the background check under the ASIC and MSIC schemes currently are:  an identity check  a criminal history search, to determine whether the person has a criminal conviction for an offence listed in the Aviation or Maritime Regulations (known as 'eligibility criteria')  a security assessment conducted by ASIO under Part IV of the ASIO Act, and  where the person is not an Australian citizen or permanent residence, a check of whether the person has a right to work in Australia. Schedule 1 to the Bill provides for amendments to be made to the Aviation and Maritime Regulations to expand the number of offences in the eligibility criteria. The additional purpose inserted into the Aviation and Maritime Acts by Schedule 1 will be limited to specific regulation-making powers in the Aviation and Maritime Acts that enable the ASIC and MSIC schemes, and would not apply generally to all provisions in those Acts. Schedule 2 to the Bill will enable a criminal intelligence assessment to be prepared and disseminated by the ACIC for purposes relating to background checks required or permitted

-3- under the Aviation and Maritime Acts. The amendments to the Aviation and Maritime Acts in Schedule 1 to the Bill will provide for the criminal intelligence assessment to be incorporated as a fifth element of a background check under the ASIC and MSIC schemes. Schedule 1--Serious crime The intention of making amendments to the Aviation and Maritime Acts outlined in Schedule 1 to the Bill is to provide for the prescription of new eligibility criteria in the ASIC and MSIC schemes to better target serious crime. The new eligibility criteria will introduce new offence categories such as offences relating to: anti-gang or criminal organisation legislation; illegal importation of goods; interfering with goods under customs control; and foreign incursion and recruitment. It is intended that Commonwealth, State and Territory offences will be captured. The amendments to the ASIC and MSIC schemes will apply to all persons required by law to hold an ASIC or MSIC. Schedule 1 also provides for regulations to prescribe penalties for offences against requirements made for the purpose of preventing the use of aviation and maritime transport or offshore facilities in connection with serious crime. These maximum penalties, which are graded for different classes of offenders, are consistent with existing maximum penalties for equivalent offences in the Aviation and Maritime Acts. Items 9 to 16 of Schedule 1 to the Bill amend the Maritime Act to clarify the legislative basis for undertaking background checks of persons who have, or require, access to secure maritime zones. This amendment is intended to reduce reliance on the general regulation- making powers within the Maritime Act and align current practice in the issuing of MSICs with the requirements in the Aviation Act. Supporting these amendments is the inclusion of an additional severability provision to provide for the continuation of the Aviation and Maritime Acts in the instance of a successful constitutional challenge to a provision of those Acts. Schedule 2--Criminal intelligence assessments Schedule 2 to the Bill introduces criminal intelligence assessments by amending the ACC Act and AusCheck Act, and making related amendments to the AAT Act and ADJR Act. The introduction of criminal intelligence assessments plays an important role in preventing the use of aviation and maritime transport or offshore facilities in connection with serious and organised crime by expanding the scrutiny that a person is afforded during the background check process. Criminal intelligence assessments will provide a new capability by which the ACIC will assess, by reference to intelligence and information available to the ACIC, whether a person may commit, or may assist another person to commit, a serious and organised crime.

-4- The introduction of criminal intelligence assessments will ensure that people who engage in, or assist others to engage in, serious and organised crime will not be able to gain access to secure zones at Australia's aviation and maritime facilities. This assessment will enable the ACIC to identify persons who are known members of organised crime groups or are known associates. These individuals may not have convictions that fall within the current (or expanded) eligibility criteria and therefore are not otherwise prevented from holding an ASIC or MSIC and having unescorted access to secure areas and zones of airports, seaports and offshore facilities. Related to the introduction of criminal intelligence assessments, Schedule 2 to the Bill also makes associated amendments to the AAT Act to provide for the disclosure of documents relating to the review of a criminal intelligence assessment by the AAT to the Federal Court. In addition, and consistent with the position in relation to security assessments performed by ASIO, decisions by the CEO of the ACIC or the AAT on review in respect of adverse criminal intelligence assessments will not be subject to judicial review under the ADJR Act. Detailed notes on each of the provisions are outlined below. FINANCIAL IMPACT STATEMENT The financial impact of Schedule 1 to the Bill is low. Any costs associated with Schedule 1 will be met from within existing resources. For the ACIC to establish and maintain the function of conducting criminal intelligence assessments under Schedule 2 to the Bill, the ACIC will receive $18.732 million over four years from 2020-21. The measure will have the following revenue implications ($ million): 2020-21 2021-22 2022-23 2023-24 -4.215 -7.196 -3.654 -3.667 STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS A Statement of Compatibility with Human Rights has been completed in relation to the Bill and assesses that the Bill is compatible with Australia's human rights obligations. A copy of the Statement of Compatibility with Human Rights is included in the Attachment.

-5- Transport Security Amendment (Serious Crime) Bill 2020 NOTES ON PROVISIONS Part 1--Preliminary Section 1 Short title 1. Section 1 of the Bill provides for the short title of the Act to be the Transport Security Amendment (Serious Crime) Act 2020. Section 2 Commencement 2. Section 2 of the Bill sets out the times at which the Act commences once passed by the Parliament. 3. Subsection (1) provides that each provision of the Bill specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. The table provides that:  Schedule 1 of the Bill will commence the day after the Bill receives the Royal Assent (item 2 of the table)  Schedule 2 of the Bill will commence on a single day to be fixed by Proclamation or, if the provisions do not commence within a 12 month period of the Bill receiving the Royal Assent, on the day after the end of the period (item 3 of the table), and  the remainder of the Bill will commence the day that the Bill receives the Royal Assent (item 1 of the table). 4. A note explains that this table relates only to the provisions of this Bill as originally enacted. It will not be amended to deal with any later amendments. 5. The delay in the commencement of Schedule 2 to the Bill for a period of up to 12 months is required to provide the Australian Criminal Intelligence Commission (ACIC) the time to establish the capabilities and procedures required to conduct and disseminate criminal intelligence assessments. The delay in commencement also provides the Department of Home Affairs the opportunity to prepare appropriate amendments to delegated legislation to incorporate criminal intelligence assessments into the aviation security identification card (ASIC) and maritime security identification card (MSIC) schemes. 6. Subsection (2) provides that any information in column 3 of the table is not part of the Bill. Information may be inserted in this column, or information in it may be edited, in any published version of this Bill.

-6- Section 3 Schedules 7. Section 3 of the Bill provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned. In addition, this clause provides that any other item in a Schedule to this Act has effect according to its terms. 8. There are two Schedules to the Bill:  Schedule 1 makes amendments to the Aviation Transport Security Act 2004 (the Aviation Act) (items 1 to 6) and the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act) (items 7 to 18), and  Schedule 2 will make amendments to the Administrative Appeals Tribunal Act 1975 (the AAT Act) (items 1-3), the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) (items 4 and 5), the AusCheck Act 2007 (the AusCheck Act) (item 6) and the Australian Crime Commission Act 2002 (the ACC Act) (items 7-9) to introduce a new criminal intelligence assessment function for the ACIC. Item 10 of Schedule 2 is an application provision for the amendments to the AusCheck Act and ACC Act so that the amendments made by the Bill will apply to applications for background checks either outstanding at, or made after, the date of the commencement of the amendments. Schedule 1--Serious Crime Aviation Transport Security Act 2004 Item 1 Subsection 3(1) (note) 9. Item 1 of Schedule 1 repeals the note to subsection 3(1) of the Aviation Act, and substitutes a new note. The new note refers to the additional purpose of preventing the use of aviation in connection with serious crime being inserted by the Bill for new Division 4A of Part 3 (see item 4 of Schedule 1) and section 44C (as amended by item 5). Item 2 Section 4 (at the end of the paragraph relating to Part 3) 10. Item 2 of Schedule 1 amends section 4 of the Aviation Act, which contains a simplified outline of that Act. The simplified overview relating to Part 3 of the Aviation Act is amended to make reference to the additional purpose of new Division 4A of Part 3, to prevent the use of aviation in connection with serious crime (see item 4 of Schedule 1). This purpose is in addition to the purpose of safeguarding against unlawful interference with aviation, which is the purpose of Divisions 1-4 and 5 of Part 3 of the Aviation Act (see subsection 3(1) of that Act).

-7- Item 3 Section 27 (after the paragraph relating to Division 4) 11. Item 3 of Schedule 1 amends section 27 of the Aviation Act, which contains a simplified overview of Part 3 of the Act. This section is amended to insert a paragraph referring to new Division 4A of Part 3, after the paragraph referring to Division 4. Item 4 After Division 4 of Part 3 12. Item 4 of Schedule 1 inserts new Division 4A into Part 3 of the Aviation Act, containing new sections 38AA and 38AB. The purpose of new Division 4A is to provide the authority to make amendments to the Aviation Regulations for the purpose of preventing the use of aviation in connection with serious crime. 13. The additional purpose applies to facilitate amendments to the aviation security identification card (ASIC) scheme as established by Part 6 of the Aviation Transport Security Regulations 2005 (the Aviation Regulations). New Division 4A is intended to enable the introduction of eligibility criteria in the ASIC scheme, meaning that a person will not be eligible for an ASIC where they have been convicted of prescribed serious crimes. These eligibility criteria will be harmonised across both the ASIC and maritime security identification card (MSIC) schemes (established under Part 6 of the Maritime Transport and Offshore Facilities Security Regulations 2003 (the Maritime Regulations)). Division 4A--Serious crime Section 38AA--Purpose of this Division 14. New section 38AA of the Aviation Act provides that the purpose of Division 4A of Part 3 of the Aviation Act is to prevent the use of aviation in connection with serious crime. This is different to the general purposes of the Aviation Act, to prevent unlawful interference with aviation and to meet Australia's obligations under the Convention on International Civil Aviation, as outlined in section 3. 15. This section will enable regulations to be prescribed for the additional purpose of preventing the use of aviation in connection with serious crime under new section 38AB. Section 38AB--Requirements relating to access to areas and zones 16. New section 38AB of the Aviation Act provides for the making of regulations to prevent the use of aviation in connection with serious crime. Subsection 38AB(1) provides a general regulation-making power for this purpose. 17. Subsection 38AB(2) provides that, without limiting the generality of new subsection (1), regulations under that subsection may deal with:  access to areas and zones (including conditions of entry, the issue and use of security passes and other identification systems) (paragraph (a)), and

-8-  the security checking (including background checking) of persons who have access to areas and zones (paragraph (b)). In this paragraph, 'background checking' includes a reference to a background check conducted under the AusCheck Act 2007 (AusCheck Act) and AusCheck Regulations 2017 (AusCheck Regulations). 18. Subsection 38AB(3) provides that regulations made under section 38AB may prescribe penalties for offences against those regulations. The maximum penalties that may be prescribed depend upon the person committing the relevant offence, as follows:  for an offence committed by an airport operator or an aircraft operator--200 penalty units (paragraph (a))  for an offence committed by an aviation industry participant other than a participant covered by paragraphs (a) or (c)--100 penalty units (paragraph (b)). This means that a 100 penalty unit applies for offences committed by a known consignor, a regulated air cargo agent, a person who occupies or controls an area of an airport, a person appointed by the Secretary under the Aviation Act to provide a security function, Airservices Australia or a contractor of any of these persons, or  for an offence committed by an accredited air cargo agent or any other person--50 penalty units (paragraph (c)). 19. By prescribing maximum penalties, new subsection 38AB(3) provides for discretion to be applied in making regulations imposing penalties. It also takes into consideration the need to provide an appropriate level of deterrence for the relevant classes of offenders. The penalty limits this subsection are consistent with existing penalties that may be prescribed in relation to offences concerning access to secure aviation areas and zones that already exist in other provisions of Part 3 of the Aviation Act (see subsections 35(3), 36(3), 36A(3), 37(3), 38(3) and 38A(3)). 20. Whilst the maximum penalties of 200 and 100 penalty units are above the maximum recommended to be imposed by regulations under the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the Guide), it is considered appropriate to have these higher maximums. Such a strong deterrent is appropriate to enact in delegated legislation:  because of the security-sensitive nature of the aviation environment, which may be targeted by criminal enterprises to facilitate the movement of illicit goods, and  to align with other regulation-making provisions of the Aviation Act. 21. It is also noted that the higher maximum penalties would apply to a limited number of persons, being selected aviation industry participants, and not to the general public. This means that the enhanced deterrence is tailored specifically to an appropriate cohort of persons, and not the public at large. Nothing in the proposed provisions requires offences to be prescribed with a maximum penalty greater than 50 penalty units. The Bill only provides a

-9- discretion for greater penalties to be prescribed. Appropriate consideration will be given to the penalty thresholds for regulations made under the proposed provisions and, if required to be above the general 50 penalty unit threshold, appropriate justification would be provided in explanatory materials at the time those regulations are made. Item 5 Subsection 44C(1) 22. Item 5 of Schedule 1 amends subsection 44C(1) of the Aviation Act to provide that, in addition to the general purposes of the Act outlined in section 3, regulations may also be made under that subsection to prevent the use of aviation in connection with serious crime. 23. The intention of making amendments to subsection 44C(1) of the Aviation Act is to ensure that ASIC holders who do not have access to secure areas or zones of a security controlled airport can also be captured under the new eligibility criteria for the ASIC scheme. Item 6 At the end of section 132 24. Section 132 of the Aviation Act contains a severability clause, which would provide for the continued operation of the Aviation Act (or provisions of that Act) in the event of a successful constitutional challenge. It sets out that the constitutional heads of power upon which the Act can operate is expressly confined to acts or omissions under those constitutional powers. 25. Item 6 of Schedule 1 inserts a new subsection (8) into section 132, to indicate that the Aviation Act has effect as if its operation were expressly confined to matters incidental to the execution of any of the legislative powers of the Parliament in section 51 of the Constitution or the executive power of the Commonwealth in section 61 of the Constitution. Maritime Transport and Offshore Facilities Security Act 2003 Item 7 At the end of subsection 3(1) 26. Item 7 of Schedule 1 repeals the note to subsection 3(1) of the Maritime Act, and substitutes a new note. The new note refers to the additional purpose of preventing the use of aviation in connection with serious crime being inserted by the Bill for new Division 6 of Part 6 (see item 17). Item 8 Section 101 (after the paragraph relating to Division 5) 27. Item 8 of Schedule 1 amends section 101 of the Maritime Act, which contains a simplified overview of Part 6 of that Act. This section is amended to insert a paragraph referring to new Division 6. Item 9 Subsection 105(2) 28. Item 9 of Schedule 1 repeals the chapeau of subsection 105(2) and replaces it with the words 'without limiting the matters that may be dealt with by regulations made under

- 10 - subsection (1), the regulations may deal with the following'. This is a technical amendment to:  confirm that the regulation-making power in subsection 105(1) is not limited to the specific matters outlined in subsection 105(2),  ensure that the power in subsection 105(1) allows the MSIC scheme to be adaptable to future threat environments in the maritime sector, and  align the drafting of Part 6 of the Maritime Act with Part 3 of the Aviation Act. Item 10 After paragraph 105(2)(b) 29. Item 10 of Schedule 1 inserts new paragraph 105(2)(ba) into the Maritime Act, providing that regulations made under subsection 105(1) of that Act may be made dealing with the security checking (including background checking) of persons who have access to port security zones. 30. This amendment is intended to clarify that regulations made under subsection 105(1) of the Maritime Act may include regulations relating to the conduct of background checks, within the meaning of the AusCheck Act and AusCheck Regulations, of persons who are required to hold MSICs under the MSIC scheme. Item 11 Subsection 109(2) 31. Item 11 of Schedule 1 repeals the chapeau of subsection 109(2) and replaces it with the words 'without limiting the matters that may be dealt with by regulations made under subsection (1), the regulations may deal with the following'. This is a technical amendment to:  confirm that the regulation-making power in subsection 109(1) is not limited to the specific matters outlined in subsection 109(2),  ensure that the power in subsection 109(1) allows the MSIC scheme to be adaptable to future threat environments in the maritime sector, and  align the drafting of Part 6 of the Maritime Act with Part 3 of the Aviation Act. Item 12 After paragraph 109(2)(b) 32. Item 12 of Schedule 1 inserts new paragraph 109(2)(ba) into the Maritime Act, providing that regulations made under subsection 109(1) of that Act may be made dealing with the security checking (including background checking) of persons who have access to ship security zones. 33. This amendment is intended to clarify that regulations made under subsection 109(1) of the Maritime Act may include regulations relating to the conduct of background checks,

- 11 - within the meaning of the AusCheck Act and AusCheck Regulations, of persons who are required to hold MSICs under the MSIC scheme. Item 13 Subsection 113(2) 34. Item 13 of Schedule 1 repeals the chapeau of subsection 113(2) and replaces it with the words 'without limiting the matters that may be dealt with by regulations made under subsection (1), the regulations may deal with the following'. This is a technical amendment to:  confirm that the regulation-making power in subsection 113(1) is not limited to the specific matters outlined in subsection 113(2),  ensure that the power in subsection 113(1) allows the MSIC scheme to be adaptable to future threat environments in the maritime sector, and  align the drafting of Part 6 of the Maritime Act with Part 3 of the Aviation Act. Item 14 After paragraph 113(2)(b) 35. Item 14 of Schedule 1 inserts new paragraph 113(2)(ba) into the Maritime Act, providing that regulations made under subsection 113(1) of that Act may be made dealing with the security checking (including background checking) of persons who have access to on-board security zones. 36. This amendment is intended to clarify that regulations made under subsection 113(1) of the Maritime Act may include regulations relating to the conduct of background checks, within the meaning of the AusCheck Act and AusCheck Regulations, of persons who are required to hold MSICs under the MSIC scheme. Item 15 Subsection 113D(2) 37. Item 15 of Schedule 1 repeals the chapeau of subsection 113D(2) and replaces it with the words 'without limiting the matters that may be dealt with by regulations made under subsection (1), the regulations may deal with the following'. This is a technical amendment to:  confirm that the regulation-making power in subsection 113D(1) is not limited to the specific matters outlined in subsection 113D(2),  ensure that the power in subsection 113D(1) is adaptable to future threat environments in the maritime sector, and  align the drafting of Part 6 of the Maritime Act with Part 3 of the Aviation Act.

- 12 - Item 16 After paragraph 113D(2)(b) 38. Item 16 of Schedule 1 inserts new paragraph 113D(2)(ba) into the Maritime Act, providing that regulations made under subsection 113D(1) of that Act may be made dealing with the security checking (including background checking) of persons who have access to offshore security zones. 39. This amendment is intended to clarify that regulations made under subsection 113D(1) of the Maritime Act may include regulations relating to the conduct of background checks, within the meaning of the AusCheck Act and AusCheck Regulations, of persons who are required to hold MSICs under the MSIC scheme. Item 17 At the end of Part 6 40. Item 17 of Schedule 1 inserts new Division 6 into Part 6 of the Aviation Act, containing new sections 113E and 113F. The purpose of new Division 6 is to provide the authority to make amendments to the Maritime Regulations for the purpose of preventing the use of maritime transport or offshore facilities in connection with serious crime. 41. The additional purpose applies solely to the MSIC scheme as established by Part 6 of the Maritime Regulations. New Division 6 is intended to facilitate the introduction of eligibility criteria in the MSIC scheme, meaning that a person will not be eligible for an MSIC where they have been convicted of certain serious crimes. These eligibility criteria will be harmonised across both the MSIC and ASIC schemes. Division 6--Serious crime Section 113E--Purpose of this Division 42. New section 113E provides that the purpose of Division 6 of Part 6 of the Maritime Act is to prevent the use of maritime transport or offshore facilities in connection with serious crime. This is different to the general purpose of the Maritime Act, to prevent unlawful interference with maritime transport or offshore facilities, as outlined in subsection 3(1). 43. This section will enable regulations to be prescribed for the additional purpose of preventing the use of maritime transport or offshore facilities in connection with serious crime under new section 113F. Section 113F--Requirements relating to access to zones 44. New section 113F provides for the making of regulations to prevent the use of maritime transport or offshore facilities in connection with serious crime. 45. Subsection 113F(1) provides a general regulation-making power for this purpose.

- 13 - 46. Subsection 113F(2) provides that, without limiting the generality of new subsection 113F(1), regulations under subsection (1) may deal with:  access to areas and zones (including conditions of entry, the issue and use of security passes and other identification systems) (paragraph (a)), and  the security checking (including background checking, within the meaning of the AusCheck Act and AusCheck Regulations). 47. Subsection 113F(3) provides that regulations made under section 113F may prescribe penalties for offences against those regulations. The maximum penalties that may be prescribed depend upon the person committing the relevant offence, as follows:  for an offence committed by a port operator, ship operator, port facility operator or offshore facility operator--200 penalty units (paragraph (a))  for an offence committed by a maritime industry participant other than a participant covered by paragraph (a)--100 penalty units (paragraph (b)), or  for an offence committed by any other person--50 penalty units (paragraph (c)). 48. By prescribing maximum penalties, new subsection 113F(3) provides for discretion to be applied in making regulations imposing penalties. It also takes into consideration the need to provide an appropriate level of deterrence for the relevant classes of offenders. The penalty limits under subsection 113F(3) are consistent with existing penalties that may be prescribed in relation to offences concerning access to secure aviation areas and zones that already exist in other provisions of Part 6 of the Maritime Act. 49. Whilst the maximum penalties of 200 and 100 penalty units are above the maximum recommended to be imposed by regulations under the Guide, it is considered appropriate to have these higher maximums. Such a strong deterrent is appropriate to enact in delegated legislation:  because of the security-sensitive nature of the aviation environment, which may be targeted by criminal enterprises to facilitate the movement of illicit goods, and  to align with other regulation-making provisions of the Aviation Act. 50. It is also noted that the higher maximum penalties would apply to a limited number of persons, being selected aviation industry participants, and not to the general public. This means that the enhanced deterrence is tailored specifically to an appropriate cohort of persons, and not the public at large. Nothing in the proposed provisions requires offences to be prescribed with a maximum penalty greater than 50 penalty units. The Bill only provides a discretion for greater penalties to be prescribed. Appropriate consideration will be given to the penalty thresholds for regulations made under the proposed provisions and, if required to

- 14 - be above the general 50 penalty unit threshold, appropriate justification would be provided in explanatory materials at the time those regulations are made. Item 18 At the end of section 208 51. Section 208 of the Maritime Act contains a severability clause, which would provide for the continued operation of the Maritime Act (or provisions of that Act) in the event of a successful constitutional challenge. It sets out that the constitutional heads of power upon which the Act can operate is expressly confined to acts or omissions under those constitutional powers. 52. Item 18 of Schedule 1 inserts a new subsection (9) into section 208, to indicate that the Maritime Act has effect as if its operation were expressly confined to matters incidental to the execution of any of the legislative powers of the Parliament in section 51 of the Constitution or the executive power of the Commonwealth in section 61 of the Constitution. Schedule 2--Criminal intelligence assessments Administrative Appeals Tribunal Act 1975 53. Items 1 to 3 of Schedule 2 to the Bill make amendments to section 46 of the AAT Act to facilitate the review of adverse criminal intelligence assessments in the Security Division of the AAT under Subdivision C of new Division 2A of Part II of the ACC Act (as inserted by item 23 below). 54. Section 46 of the AAT Act generally provides for the provision of documents to, and the disclosure of documents by, the Federal Court of Australia (Federal Court) and the Federal Circuit Court of Australia (Federal Circuit Court) in conducting reviews of AAT decisions or hearing questions of law referred to that Court by the AAT. Item 1 Paragraph 46(1)(a) 55. Paragraph 46(1)(a) of the AAT Act relevantly provides that, despite subsection 39B(3) of that Act, the AAT is required to send, or cause to be sent, to the Federal Court or Federal Circuit Court all documents or information that came before the AAT during its review of an adverse or qualified security assessment in the Security Division. Under subsection 39B(2) of the AAT Act, the Minister administering the ASIO Act is able to certify that the disclosure of a document relating to an adverse or qualified security assessment is contrary to the public interest because its disclosure would prejudice national security, contain cabinet information or otherwise be the cause of a public interest immunity claim. 56. Subsection 39B(2) of the AAT Act is being replicated for the review of adverse criminal intelligence assessments in the Security Division of the AAT in new subsection 36L(2) of the ACC Act (see item 7 of Schedule 2 to the Bill). 57. Item 1 of Schedule 2 amends paragraph 46(1)(a) of the AAT Act to insert the words 'and subsection 36L(4) of the Australian Crime Commission Act 2002' into that paragraph.

- 15 - This will clarify that the AAT's obligation to send all documents to the Federal Court or Federal Circuit Court still operates in circumstances where the Minister has issued a certificate under new subsection 36L(2) of the ACC Act. Item 2 Subsection 46(2) 58. Subsection 46(2) of the AAT Act relevantly provides that the Federal Court or the Federal Circuit Court shall, subject to subsection 46(3), do all things necessary to ensure that a document subject to a subsection 39B(2) certificate (as outlined above) is not disclosed to a person other than a member of the court as constituted for a relevant proceeding. 59. Item 2 of Schedule 2 inserts a reference to new subsection 36L(2) of the ACC Act into subsection 46(2) of the AAT Act. New subsection 36L(2) of the ACC Act is the equivalent of subsection 39B(2) of the AAT Act and provides that the Minister may certify that the disclosure of a document would be contrary to the public interest because it would be prejudice the security, defence or international relations of Australia, prejudice law enforcement interests, involve the disclosure of Cabinet material or otherwise be the basis for a public interest immunity claim (as outlined further below). 60. This amendment is necessary to ensure that the obligation to protect sensitive information subject to a Ministerial certificate under new subsection 36L(2) of the ACC Act applies consistently for Federal Court and Federal Circuit Court proceedings relating to ASIO security assessments and the new ACIC criminal intelligence assessments. Item 3 Paragraph 46(3)(a) 61. Subsection 46(3) of the AAT Act relevantly provides that if the certificate referred to in subsection 46(2) is not a certificate made under paragraph 39B(2)(a) of the AAT Act, then the Federal Court and the Federal Circuit Court is able to direct that all or some of that information should be disclosed to all or some of the parties to the proceeding. This means that the court cannot order the disclosure of documents for which the Minister has certified the disclosure of which would be contrary to the public interest because it would prejudice the security, defence or international relations of Australia (i.e. where a certificate has been issued under paragraph 39B(2)(a) of the AAT Act). 62. Item 3 of Schedule 2 amends paragraph 46(3)(a) of the AAT Act to provide that the court cannot order the disclosure of documents for which the Minister has issued a certificate under new paragraphs 36L(2)(a) or (b) of the ACC Act. Certificates under those provisions can be issued by the Minister where the disclosure of the document would be contrary to the public interest because it would prejudice the security, defence or international relations of Australia (under paragraph 36L(2)(a)) or it would prejudice law enforcement interests (paragraph 36L(2)(b)). 'Law enforcement interests' is defined in new section 36A of the ACC Act to include avoiding disclosures of law enforcement methods, avoiding disruption to law enforcement and criminal intelligence, and protecting the safety of informants.

- 16 - Administrative Decisions (Judicial Review) Act 1977 Item 4 Paragraph (wa) of Schedule 1 63. Under subsection 5(1) of the ADJR Act, a person who is aggrieved by a 'decision to which this Act applies' may apply to the Federal Court or Federal Circuit Court for review of the decision on the grounds enumerated in that subsection. A 'decision to which this Act applies' is defined in subsection 3(1) of the ADJR Act to relevantly be a decision of an administrative character made, proposed to be made, or required to be made under an enactment (which, as defined, includes the AAT Act and the ACC Act) other than a decision in any of the classes of decisions set out in Schedule 1 to the ADJR Act. 64. This means that a person aggrieved by a decision made under new Division 2A of Part II of the ACC Act, and under the AAT Act, in relation to criminal intelligence assessments would be able to apply for judicial review under subsection 5(1) of the ADJR Act unless those decisions are included in Schedule 1 to the ADJR Act. Items 22 and 23 of new Schedule 2 to the Bill make these amendments. 65. Item 4 of Schedule 2 amends paragraph (wa) of Schedule 1 to the ADJR Act to provide that any decisions made under Division 2A of Part II of the ACC Act are not a 'decision to which this Act applies' under the ADJR Act. This means that any decision made by the ACIC, CEO or the Minister under that Division are excluded from ADJR Act judicial review. The decisions captured by this exclusion may involve highly sensitive information that would disclose the ACIC's capabilities, as well as information from State and Territory policing and law enforcement agencies, and judgements about the use of such information are best made within the executive arm of government. For this reason, it is appropriate to exclude the operation of judicial review under the ADJR Act. 66. However, this amendment does not have the effect of entirely excluding judicial review of decisions under Division 2A of Part II of the ACC Act. A person who is the subject of a decision under Division 2A is still entitled to seek judicial review under subsection 75(v) of the Constitution or section 39B of the Judiciary Act 1903. Item 5 After paragraph (y) of Schedule 1 67. Item 5 of Schedule 2 inserts a new paragraph (yaa) into Schedule 1 of the ADJR Act, to provide that any decision of the AAT made on review that is required by the ACC Act to be conducted by the Security Division of the AAT is not a 'decision to which this Act applies'. This means that the decisions made by the AAT, upon application, in relation to an adverse criminal intelligence assessment under new Subdivision C of Division 2A of Part II of the ACC Act will also be excluded from ADJR Act judicial review. This amendment does not have the effect of entirely excluding judicial review of decisions under Division 2A of Part II of the ACC Act. A person who is the subject of a decision under Division 2A is still entitled to seek judicial review under subsection 75(v) of the Constitution or section 39B of the Judiciary Act 1903.

- 17 - AusCheck Act 2007 Item 6 After paragraph 5(b) 68. Section 5 of the AusCheck Act 2007 (the AusCheck Act) defines what a 'background check' is for the purposes of the AusCheck scheme, which is established under section 8 of the AusCheck Act and prescribed in detail in the AusCheck Regulations 2017 (the AusCheck Regulations). 69. Item 6 of Schedule 2 inserts paragraph (ba) into section 5 of the AusCheck Act, to extend the definition of a 'background check' in that section to include a 'criminal intelligence assessment' as will be defined by new section 36A of the ACC Act (see further at item 25 below). 70. As a result of this amendment to the AusCheck Act, amendments to the AusCheck Regulations will be required to include the criminal intelligence assessment as an element of a background check under the AusCheck scheme. Further amendments to the Aviation Regulations and the Maritime Regulations will also be required. It is anticipated that these amendments will be made to align with the commencement of new Schedule 2 to the Bill. Australian Crime Commission Act 2002 Item 7 After Division 2 of Part II 71. Item 7 of Schedule 2 inserts new Division 2A into Part II of the ACC Act, containing three subdivisions which deal with:  preliminary issues, namely definitions that apply in Division 2A of Part II (Subdivision A),  the conduct of criminal intelligence assessments by the ACIC (Subdivision B), and  the review of adverse criminal intelligence assessments by the Security Division of the AAT (Subdivision C). Division 2A--Criminal intelligence assessments Subdivision A--Preliminary 72. Subdivision A contains section 36A which sets out relevant definitions for the purpose of new Division 2A of Part II of the ACC Act. Section 36A--Definitions 73. Section 36A of the ACC Act contains a number of definitions relevant to the conduct of criminal intelligence assessments under new Division 2A of Part II.

- 18 - AAT Act 74. AAT Act is defined to be the Administrative Appeals Tribunal Act 1975, which is the Act under which the AAT is established to conduct merits review of administrative decisions made by Commonwealth agencies and bodies. 75. The conduct of reviews of adverse criminal intelligence assessments under proposed Subdivision C of Division 2A of Part II is modelled after provisions of the AAT Act and the ASIO Act which govern merits review of adverse and qualified security assessments conducted by the ASIO in the Security Division of the AAT. adverse criminal intelligence assessment 76. Adverse criminal intelligence assessment is defined to be a 'criminal intelligence assessment' (as outlined below) in respect of a person that contains:  any opinion or advice, or any qualification of any opinion or advice, or any information, that is or could be prejudicial to the interests of the person (paragraph (a) of the definition), and  a recommendation that 'prescribed administrative action' (as outlined below) be taken or not be taken in respect of the person, being a recommendation the implementation of which would be prejudicial to the interests of the person (paragraph (b)). 77. This definition is modelled after the definition of 'adverse security assessment' in subsection 35(1) of the ASIO Act. 78. In general terms, if the ACIC provides an adverse criminal intelligence assessment in respect of an individual it is intended that the following will result from that adverse assessment:  Home Affairs will be notified by the ACIC of the adverse assessment, who will then notify the individual (see new sections 36C and 36D of the ACC Act),  the individual has the opportunity to seek merits review of the adverse assessment in the AAT (see new section 36F), as well as any judicial review that may be available (noting that review under the ADJR Act is excluded, see items 22 and 23 of Schedule 2 above), and  if the adverse assessment remains in place after the conclusion of such reviews, or where the person does not seek any review of the decision, an ASIC or MSIC will not be able to be issued to the individual (as will be enacted via amendment to the AusCheck, Aviation and Maritime Regulations). 79. An adverse criminal intelligence assessment will be issued by the ACIC, for example, in circumstances where the ACIC is satisfied that there is intelligence information that suggests that the person may commit a 'serious and organised crime' (as defined by

- 19 - subsection 4(1) of the ACC Act), or may assist another person to commit such a crime. In these circumstances it is considered to be appropriate to wholly bar an individual from holding an ASIC or MSIC. applicant 80. Applicant is defined to be the individual who has applied to the AAT for review of an adverse criminal intelligence assessment, which will be enabled under new section 36F of the ACC Act (see further below). authorised member 81. Authorised member is defined to have the same meaning as in the AAT Act. Under the AAT Act, an 'authorised member' means a member of the AAT who has been authorised by the President of the AAT under section 59A for the purposes of the provision in which the expression occurs. 82. An authorised member will be able to dismiss an application for AAT review of an adverse criminal intelligence assessment if the applicant for review fails within a reasonable time to proceed with the application or to comply with a direction of the Tribunal in relation to the application. 83. Any future amendment to the meaning of authorised member in the AAT Act will automatically apply in the ACC Act by application of section 10 of the Acts Interpretation Act 1901 (the Acts Interpretation Act). background check 84. Background check is defined to have the same meaning as in the AusCheck Act. Under section 5 of the AusCheck Act, for current purposes, a background check is an assessment of an individual's criminal history, whether an individual has been charged with and convicted of a serious offence, a security assessment of the individual, the individual's citizenship and migration status and the identity of the individual. Under item 19 of this Schedule 2 to the Bill, a background check under the AusCheck Act will also be amended to include a criminal intelligence assessment of the individual. 85. Any further amendment to the meaning of background check in the AusCheck Act will automatically apply in the ACC Act by application of section 10 of the Acts Interpretation Act. Commonwealth agency 86. Commonwealth agency is defined to be an agency within the meaning of the Freedom of Information Act 1982 (the FOI Act) and includes an exempt agency. An 'agency' is relevantly defined in the FOI Act to be a 'Department' and a 'prescribed authority'. 'Department' is subsequently defined as a Department of the Australian Public Service that

- 20 - corresponds to a Department of State of the Commonwealth, and 'prescribed authority' is defined to include Commonwealth corporate entities and entities prescribed in regulations. 87. Any future amendment to the meaning of agency in the FOI Act will automatically apply in the ACC Act by application of section 10 of the Acts Interpretation Act. 88. This definition is being inserted for the purpose of identifying the Commonwealth agency who is responsible for performing background checks under the AusCheck Act. That Act is currently administered by the Minister for Home Affairs, who also administers the ACC Act under the current Administrative Arrangements Orders. The powers and functions of AusCheck are currently performed by the Department of Home Affairs. 89. For sake of clarity throughout this document, a reference to 'Home Affairs' means the Department of Home Affairs and a reference to 'AusCheck' means that part of Home Affairs that is responsible for performing functions under the AusCheck Act. criminal intelligence assessment or assessment 90. Criminal intelligence assessment, sometimes referred to as assessment, is defined to be a written statement prepared by the ACIC expressing any recommendation, opinion or advice on, or otherwise referring to, the question whether it is necessary or desirable for prescribed administrative action to be taken in respect of a person. 91. Where the written statement prepared by the ACIC indicates that it is necessary or desirable to take prescribed administrative action in respect of a person, this will result in an adverse criminal intelligence assessment (see definition above). This will mean that the person cannot be issued, or otherwise renew, their ASIC or MSIC. 92. In preparing a criminal intelligence assessment, by way of this definition, the ACIC will be required to have regard to whether there is intelligence or information that suggests that the person:  may commit a 'serious and organised crime' (paragraph (a)), or  may assist another person to commit a 'serious and organised crime' (paragraph (b)). 93. 'Serious and organised crime' is already defined in subsection 4(1) of the ACC Act. Under that subsection, an offence is a 'serious and organised' crime where it meets all of the following criteria:  an offence that involves two or more offenders and substantial planning and organisation (paragraph (a))  that involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques (paragraph (b))

- 21 -  that is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind (paragraph (c))  that is an offence specifically listed in paragraph (d) of the definition including drugs and firearms offences, and  that is punishable by imprisonment for a period of 3 years or more (paragraph (da)). 94. Offences committed in the course of a genuine industrial relations dispute between employee and employer by a party to that dispute, subject to limited exceptions, are excluded from the definition of 'serious and organised crime'. 95. A criminal intelligence assessment may also include a qualification or comment from the ACIC expressed in connection with the recommendation, opinion or advice in the assessment, being a qualification or comment that relates, or could relate, to the question as to whether the taking of prescribed administrative action is necessary or desirable. 96. This definition is modelled after the definition of 'security assessment' in subsection 35(1) of the ASIO Act. exempt agency 97. Exempt agency is defined to mean a body specified, or the person holding an office specified, in Part I of Schedule 2 to the FOI Act. The bodies listed in that Part include the Australian Secret Intelligence Service, ASIO and the Office of National Intelligence. This definition is included to make clear that these agencies can be a 'Commonwealth agency' as outlined above and, as a result, receive criminal intelligence assessments from the ACIC if the definition of 'prescribed administrative action' provides for the conduct of assessments. The current definition of 'prescribed administrative action' does not provide for this, but it may be amended in the future to do so. law enforcement interests 98. Law enforcement interests is defined in a non-exhaustive manner to include interests in the following:  avoiding disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation, foreign intelligence and security intelligence (paragraph (a) of the definition)  protecting the technologies and methods used to collect, analyse, secure or otherwise deal with, criminal intelligence, foreign intelligence or security intelligence (paragraph (b))  the protection and safety of informants and those connected with informants (paragraph (c))

- 22 -  ensuring that intelligence and law enforcement agencies are not discouraged from giving information to a nation's government and government agencies (paragraph (d)),  avoiding disclosure of lawful methods or procedures used to prevent, detect, investigate or otherwise deal with breaches of law, if that disclosure would compromise the effectiveness of those methods or procedures (paragraph (e)). 99. This definition is included for the purpose of various provisions that restrict the disclosure of documents and information used by the ACIC to prepare criminal intelligence assessments, based upon the accepted grounds for which a public interest immunity claim may be made. 100. The definition of 'law enforcement interests' is modelled after the definition of that term in section 11 of the National Security Information (Criminal and Civil Proceedings) Act 2004 and is intended to capture the same types of interests as are captured by that Act. member 101. Member is defined to have the same meaning as in the AAT Act. Under subsection 3(1) of the AAT Act, a 'member' is defined to be the President, a Deputy President, a senior member or any other member appointed by the Governor-General under section 6 of that Act. In general terms, a member of the AAT is a person who has authority to hear an application for review, consider arguments and documents, and make orders and decisions. 102. Any future amendment to the meaning of member in the AAT Act will automatically apply in the ACC Act by application of section 10 of the Acts Interpretation Act. officer of the Tribunal 103. Officer of the Tribunal is defined to have the same meaning as in the AAT Act. Under subsection 3(1) of the AAT Act, an 'officer of the Tribunal' means the Registrar of the AAT and any person appointed under section 24PA of that Act. 104. Any future amendment to the meaning of officer of the Tribunal in the AAT Act will automatically apply in the ACC Act by application of section 10 of the Acts Interpretation Act. prescribed administrative action 105. Prescribed administrative action is defined to mean an action that relates to or affects:  access by a person to any information or place, access to which is controlled or limited under the Aviation Act or Aviation Regulations, or the Maritime Act or Maritime Regulations (paragraph (a) of the definition), or

- 23 -  the person's ability to perform an activity in relation to, or involving, a thing (other than information or a place), if that ability is controlled or limited under the Aviation Act or Aviation Regulations, or Maritime Act or Maritime Regulations (paragraph (b)). 106. This definition is intended to cover the administrative action to refuse to issue an ASIC or MSIC to a person in circumstances where an adverse criminal intelligence assessment is issued. This administrative action will be prescribed in the Aviation and Maritime Regulations upon commencement of Schedule 2 to the Bill. 107. Paragraphs (a) and (b) of the definition cover different categories of ASICs and MSICs. Paragraph (a) of the definition is intended to capture red and grey ASICs as well as blue and grey MSICs that, once issued, permit the person to have unescorted access to secure areas of security controlled airports and maritime security zones. 108. Paragraph (b) of the definition is intended to capture white ASICs and MSICs, which do not permit the card holder to have unescorted access to secure areas and zones. For example, white ASICs and MSICs are issued to individuals who are directly involved in the issuing of identification cards to other individuals (see paragraphs (c), (d) and (h) of the definition of 'operational need' in subregulation 6.01(1) of the Aviation Regulations and subregulation 6.07F(2) of the Maritime Regulations). President 109. President has the same meaning as in the AAT Act. Under the AAT Act, the President of the AAT is a Judge of the Federal Court of Australia who is appointed by the Governor- General to be the President (see sections 4, 6 and 7 of the AAT Act). 110. Any future amendment to the meaning of President in the AAT Act will automatically apply in the ACC Act by application of section 10 of the Acts Interpretation Act. presidential member 111. Presidential member has the same meaning as in the AAT Act. Under the AAT Act, a presidential member is the President (as outlined above) and any person appointed as a Deputy President under section 6 of that Act. 112. Any future amendment to the meaning of presidential member in the AAT Act will automatically apply in the ACC Act by application of section 10 of the Acts Interpretation Act. Registrar 113. Registrar has the same meaning as in the AAT Act. Under the AAT Act, the Registrar of the AAT is the person appointed by the Governor-General under section 24C of that Act.

- 24 - 114. Any future amendment to the meaning of Registrar in the AAT Act will automatically apply in the ACC Act by application of section 10 of the Acts Interpretation Act. security 115. Security has the same meaning as in the ASIO Act. Under section 4 of the ASIO Act, 'security' is currently defined as:  the protection of, and of the people of, the Commonwealth and the several States and Territories from espionage, sabotage, politically motivated violence, promotion of communal violence, attacks on Australia's defence system or acts of foreign interference, whether directed from, or committed within, Australia or not  the protection of Australia's territorial and border integrity from serious threats, and  the carrying out of Australia's responsibilities to any foreign country in relation to any of the abovementioned matters. 116. Any future amendment to the meaning of 'security' in the ASIO Act will automatically apply in the ACC Act by application of section 10 of the Acts Interpretation Act. Tribunal 117. Tribunal is defined to be the 'Administrative Appeals Tribunal' (referred to in this document as the AAT), as established under section 5 of the AAT Act. Subdivision B--Criminal intelligence assessments 118. New Subdivision B of Division 2A of Part II of the ACC Act will provide for the conduct of criminal intelligence assessments by the ACIC (section 36B). If the criminal intelligence assessment conducted by the ACIC is adverse (defined in section 36A above), the ACIC will be required to provide information about the assessment to Home Affairs (section 36C), who will then be required to notify the person who is the subject of the assessment (section 36D). Section 36B--Conduct of criminal intelligence assessments 119. New section 36B of the ACC Act provides for the conduct of criminal intelligence assessments by the ACIC. Although the provision refers to the 'ACC' this is taken to be a reference to the agency that is currently named the ACIC (see subsection 7(1A) of the ACC Act and section 8 of the Australian Crime Commission Regulations 2018). 120. Subsection (1) provides that the ACIC has the function of conducting criminal intelligence assessments for purposes relating to background checks required or permitted by the Aviation Act, Aviation Regulations, Maritime Act or Maritime Regulations. This means that the ACIC may conduct a criminal intelligence assessment as part of the background

- 25 - check process in the ASIC and MSIC schemes, established under the Aviation and Maritime Regulations respectively. 121. Currently, a background check under the ASIC and MSIC schemes involves four elements: an identity check, a criminal history check, a security assessment (conducted by ASIO under Part IV of the ASIO Act) and, if the person is not an Australian citizen or permanent resident, a migration status check. A criminal intelligence assessment conducted by the ACIC under subsection (1) will be incorporated as a fifth element of a background check, in the same manner as ASIO security assessments. This means that a person who receives an adverse criminal intelligence assessment will not be eligible to be issued, or renew, an ASIC or MSIC. 122. To support this provision, item 26 of new Schedule 2 to the Bill amends section 46A of the ACC Act to provide that conducting criminal intelligence assessments under subsection (1) is a function of the CEO (see further below). 123. Note 1 to subsection (1) indicates that the CEO is responsible for conducting criminal intelligence assessments under new subsection 46A(8), as will be inserted under item 26 of Schedule 2 to the Bill. Note 2 clarifies that conducting criminal intelligence assessments does not affect the ability of the ACIC to provide 'strategic criminal intelligence assessments' to the Board, or the Board's ability to disseminate those assessments. 124. Subsection (2) provides that the CEO may, by legislative instrument, determine:  the matters that are taken into account when making a criminal intelligence assessment (paragraph (2)(a))  the manner in which those matters are taken into account (paragraph (2)(b)), and  the matters that are not to be taken into account (paragraph (2)(c)). 125. This subsection does not require any determination to be made by the CEO before a criminal intelligence assessment can be conducted by the ACIC under subsection (1). 126. Subsection (3) provides that the CEO must consult with the Minister prior to making any determination under subsection (2). 127. Subsection (4) provides the ACIC with a discretion to choose to not to make an adverse criminal intelligence assessment if doing so would prejudice law enforcement interests. This could occur, for example, where criminal intelligence on an applicant for an ASIC or MSIC is held by the ACIC relating to a current investigation and making an adverse criminal intelligence assessment would be likely to alert the applicant to the possibility of active law enforcement interest. Alerting the applicant in this way may undermine the validity of such interests, so the ACIC would not make the assessment until the interest would not be compromised.

- 26 - Clause 36C--Giving of adverse criminal intelligence assessment to certain Commonwealth agencies 128. New section 36C of the ACC Act provides for the giving of adverse criminal intelligence assessments by the ACIC to Commonwealth agencies, what must accompany such assessments, and details the circumstances in which the ACIC may not give the assessment, or information relating to the assessment, to a Commonwealth agency. 129. Subsection (1) provides that the ACIC may give an adverse criminal intelligence assessment to a Commonwealth agency for purposes related to a background check of a person that is required or permitted by the Aviation Act, Maritime Act or regulations made under those Acts. This means that the ACIC will be enabled to provide an adverse criminal intelligence assessment to AusCheck, a part of Home Affairs that is responsible for the coordination of background checks under the ASIC and MSIC schemes. 130. Subsection (2) provides that, if the ACIC considers that giving a Commonwealth agency an adverse criminal intelligence assessment in respect of a person would prejudice law enforcement interests, the ACIC may decide not to give the assessment to the agency. This provision means that, for example, if the CEO (or his or her delegate) considers that the giving of an adverse criminal intelligence assessment in respect of an applicant for an ASIC or MSIC to AusCheck would risk the safety of a criminal informant (as captured in paragraph (c) of the definition of 'law enforcement interests'), then the ACIC is not required to give that assessment. 131. Subsection (3) outlines what must be provided by the ACIC when giving an adverse criminal intelligence assessment to a Commonwealth agency. Under this provision the ACIC is required to provide:  a statement of grounds for the assessment that meets the requirements of subsection (4), which is taken to be part of the assessment (under paragraph (3)(a)), and  a copy of a certificate, if any, made by the CEO in relation to the information contained under the assessment under subsection 36C(5) (paragraph (3)(b)). 132. Subclause (4) provides that a statement of the grounds for an adverse criminal intelligence assessment must include all of the information relied upon in making the assessment, other than information in relation to which the CEO has made a certificate under subsection 36C(5) (paragraph (4)(a)) and information the disclosure of which would be contrary to a law of the Commonwealth, a State or a Territory (paragraph (4)(b)). 133. Paragraph (4)(b) ensures that, if any information relied upon by the ACIC is subject to secrecy provisions under Commonwealth, State or Territory law, the ACIC is not required to disclose that information to AusCheck when giving an adverse criminal intelligence assessment to Home Affairs.

- 27 - 134. Subsection (5) provides that the CEO may certify, in writing, that the CEO is satisfied that disclosing particular information contained in an adverse criminal intelligence assessment to the person in respect of whom the assessment was made would be prejudicial to law enforcement interests or security. 135. Subsection (6) provides that, if the CEO makes a certificate under subsection (5), the ACIC can choose to not to provide the information about which the certificate was made to the Commonwealth agency. If the ACIC chooses not to provide such information, this subsection also provides that the Minister, after consulting with the CEO, may direct the ACIC to provide the information. The Minister is not required to make this direction in writing. 136. Subsection (7) is a statement of law in respect of subsection (5), and clarifies that a certificate made by the CEO under that subsection is not a legislative instrument. This is because any certificate issued by the CEO under subsection (5) amounts to the application of the law in a particular instance to a particular adverse criminal intelligence assessment, and is not otherwise captured by subsection 8(1) of the Legislation Act. 137. Subclause (8) is a statement of law in respect of subsection (6) reflecting that a direction of the Minister, if in writing, under subsection (6) does not alter the content of the law but applies it in a particular instance in relation to a particular adverse criminal intelligence assessment, and is not otherwise captured by subsection 8(1) of the Legislation Act. Section 36D--Person to be notified of adverse criminal intelligence assessment 138. New section 36D of the ACC Act provides for the giving of written notice of an adverse criminal intelligence assessment to a person who is the subject of the assessment. Subsection (1) requires that the Commonwealth agency that has been given an adverse criminal intelligence assessment by the ACIC under subsection 36C(1) must, unless the Minister has made a certificate under subsection (4), provide written notice of the assessment to the person. In effect, this means that Home Affairs is required to provide written notice of an adverse criminal intelligence assessment to the person who is an applicant for, or holder of, an ASIC or MSIC and undergoing a background check for the purpose of the ASIC or MSIC schemes. 139. Under subsection (2), the written notice given by the Commonwealth agency under subsection (1) to the person who is subject to an adverse criminal intelligence assessment must:  be given to the person within 14 days, starting the day after the assessment is given by the ACIC to the Commonwealth agency under subsection 36C(1) or, if a certificate under subsection (4) that was in force in relation to the assessment is subsequently revoked, the date the certificate is revoked (paragraph (2)(a))

- 28 -  inform the person that an adverse criminal intelligence assessment has been made about them (paragraph (2)(b))  include the statement of grounds for the assessment that was given by the ACIC to the Commonwealth agency under subsection 36C(3), excluding any information subject to a certificate made under subsection 36C(5) (paragraph (2)(c)), and  contain information concerning the person's right to apply to the AAT for a review of the assessment (paragraph (2)(d)). 140. Subsection (3) provides that the written notice that a Commonwealth agency must provide to a person under subsection (1) may be given by delivering it in person or by sending it by registered post to the person's last known address. 141. Subsection (4) provides that the Minister may certify, in writing, that the Minister is satisfied that the withholding of notice to the person of the making of an adverse criminal intelligence assessment in respect of the person is essential to the protection of law enforcement interests or the security of the nation. When a certificate is issued under this provision, the Commonwealth agency (i.e. Home Affairs) is not able to provide a written notice of the assessment to the person under subsection (1). This means that AusCheck, as part of Home Affairs, will not be able to provide advice that an ASIC or MSIC may be issued to the subject of the criminal intelligence assessment. 142. Subsection (5) provides that, if a certificate is made by the Minister under subclause (4), the Minister must:  provide a copy of the certificate to the Commonwealth agency to which the criminal intelligence assessment was given under subsection 36C(1) (paragraph (5)(a)), and  consider whether to revoke the certificate within 12 months beginning on the day the certificate is issued, and every subsequent 12 months (paragraph (5)(b)). 143. Subsections (4) and (5) are modelled after subsections 38(2), (3) and (7) of the ASIO Act. Subsection 38(2) of the ASIO Act provides the Minister with an ability to certify that that they are satisfied that the withholding of notice to the subject of a security assessment is essential to the security of the nation, or would be prejudicial to the interests of security. The Minister is required to provide a copy of the certificate to the relevant Commonwealth agency under subsection 38(3) of the ASIO Act, and is required to consider the revocation of that certificate every 12 months under subsection 38(7). These subsections are required to be included so as to provide protection where it is necessary or desirable to issue an adverse criminal intelligence assessment, but notifying the applicant of such an assessment would prejudice law enforcement interests. This may occur for example if notifying an applicant that they were the subject of an investigation would compromise the safety of a confidential human source, or cause disruption to an ongoing investigation.

- 29 - 144. Subsection (6) is a statement of law, outlining that a certificate under subsection (4) is not a legislative instrument. This reflects that a certificate under subsection (4) does not alter the state or content of the law but applies the law to a particular adverse criminal intelligence assessment, and is not otherwise captured by subsection 8(1) of the Legislation Act. Section 36E--Effect of preliminary advice by the ACC 145. New section 36E of the ACC Act governs how any preliminary advice or other communication provided by the ACIC to the Commonwealth agency about the person who is the subject of a criminal intelligence assessment should be treated by the Commonwealth agency. 146. This section provides that a Commonwealth agency must not take, refuse to take or refrain from taking prescribed administrative action on the basis of any communication in relation to a person made by the ACIC not amounting to a criminal intelligence assessment. The effect of this provision is that any information provided by the ACIC to a Commonwealth agency in relation to a person who is subject to a criminal intelligence assessment, before that assessment has been finalised and formally issued to AusCheck, cannot be relied upon to take prescribed administrative action. 147. Section 36E importantly provides for the protection of any sensitive information the ACIC holds and may choose to share with a Commonwealth agency for purposes other than a criminal intelligence assessment. A final criminal intelligence assessment will be given by the ACIC to the Commonwealth agency after consideration of:  whether the CEO should certify under subsection 36C(5) of the ACC Act that disclosing particular information within the statement of grounds for the assessment would prejudice law enforcement interests or security, and should not be provided to the subject of the assessment, and  whether the statement of grounds for the assessment should be withheld from the subject by the Minister under subsection 36D(4). 148. These are important protections of the potentially sensitive information the ACIC will consider in making a criminal intelligence assessment, protection of which should be given proper consideration prior to being acted upon. In addition, preventing a Commonwealth agency from taking prescribed administrative action on information other than a criminal intelligence assessment will ensure that a person in respect of whom the administrative action is taken will be able to access the review mechanisms under Subdivision C of Division 2A of the ACC Act in relation to that ACIC information. It is for this reason that Commonwealth agencies are being prohibited from acting upon ACIC information prior to receiving the statement of grounds for a criminal intelligence assessment from the ACIC under section 36C. 149. Section 36E of the ACC Act is modelled after subsection 39(1) of the ASIO Act.

- 30 - Subdivision C--Review of adverse criminal intelligence assessments 150. New Subdivision C of Division 2A of Part II of the ACC Act will provide for the review of adverse criminal intelligence assessments in the Security Division of the AAT. The form and procedures for this review are modelled after the review of adverse security assessments in the Security Division as outlined in the ASIO and AAT Acts. Section 36F--Applications to Tribunal 151. New section 36F of the ACC Act provides for the making of applications to the AAT for the review of an adverse criminal intelligence assessment. 152. Subsection (1) provides that a person can apply to the AAT for a review of the decision of the ACIC to give an adverse criminal intelligence assessment in relation to that person under section 36B. The note to this subsection outlines that, under paragraph 29(1)(d) of the AAT Act, an application for review by the AAT of a decision should generally be made within 28 days of the applicant receiving a copy of the decision. Nothing in subsection (1) is intended to limit the AAT's discretion to extend time in respect of an application for review under subsection 29(7) of the AAT Act. 153. Subsection (2) provides that an application for review of an adverse criminal intelligence assessment must be made by the person who was the subject of the assessment and who has been given notice of the assessment under section 36D. 154. This means that the only entity who can apply for AAT review of an adverse criminal intelligence assessment is the person who is the subject of the background check for the purposes of the ASIC and MSIC schemes, and only after that person has received notice of the assessment from a Commonwealth agency under subsection 36D(1). 155. In relation to people to whom subsection 36D(4) applies because the Minister has certified that the withholding of notice under subsection 36D(1) is essential to the protection of law enforcement interests and/or the security of the nation, they will not be able to apply to the AAT for review of the adverse criminal intelligence assessment unless and until the Minister has made a decision pursuant to paragraph 36D(5)(b) to revoke the subjection 36D(4) certificate. That is because, unless and until the certificate is revoked, the person will not have been given notice of the assessment under section 36D, such that subsection 36F(2) will not be capable of being satisfied. This preserves an applicant's right to seek review because notice of the decision will not have been given until the certificate has been lifted such that the 28-day period for seeking review of the decision will not have commenced. 156. The temporary exclusion of the applicant's right to seek merits review is necessitated to protect and limit the disclosure of the sensitive information that led the Minister to issue the certificate under subsection 36D(4). 157. Subsection (3) provides that, after the AAT has completed a review of an adverse criminal intelligence assessment, applications may be made to the AAT for review of the

- 31 - AAT's findings on the ground that the applicant has fresh evidence of material significance that was not available at the time of the previous review. Subsection (4) provides that an application under subsection (3) can only be made by the person who originally applied for AAT review under subsection (1). 158. Subsection (5) provides that, if the AAT is satisfied that an application under subsection (3) is justified, the AAT may review its previous findings. If the AAT makes a decision to review its previous findings, this subsection provides that the ACC Act and the AAT Act apply in relation to such a review, and the findings of that review, as if it were a first-instance review of an adverse criminal intelligence assessment applied for under subsection 36F(1). 159. Subsection (6) provides that subsections (2) and (4) of this section have effect despite subsection 27(1) of the AAT Act, which provides that any person whose interests are affected by a decision may apply for AAT review of the decision. This accords with the position in relation to the review of security assessments under section 54 of the ASIO Act, as outlined in section 27AA of the AAT Act. Section 36G--Requirements for applications 160. New section 36G of the ACC Act outlines requirements for making an application to the AAT for the review of an adverse criminal intelligence assessment. These requirements also apply in relation to making an application for the review of previous findings of the AAT in relation to an adverse criminal intelligence assessment, by operation of subsection 36F(5). 161. Subsection (1) provides that an application to the AAT for a review of an adverse criminal intelligence assessment under subsection 36F(1) must be accompanied by a copy of the assessment that was given to the applicant under subsection 36D(1) (paragraph (1)(a)) and a statement from the applicant that details the part or parts of the assessment that they disagree with and the grounds on which the application is made (paragraph (1)(b)). The note to subsection (1) indicates that there are additional requirements to make an application to the AAT for review, which are outlined in subsection 29(1) of the AAT Act. 162. Subsection (2) provides that an application for review of AAT findings under subsection 36F(3) must be accompanied by a statement setting out the grounds on which the application is made. 163. Subsection (3) provides that section 36G has effect despite paragraph 29(1)(c) of the AAT Act, which only requires that a statement of the reasons for the application is required to apply for AAT review. This accords with the position for the review of security assessments, set out in paragraphs 29(1)(ca) and (cb) of the AAT Act.

- 32 - Section 36H--Notice of application 164. New section 36H of the ACC Act provides for the AAT to notify the ACIC of an application for review of an adverse criminal intelligence assessment under section 36F, and for the lodgement of additional documents by the CEO with the AAT. 165. Subsection (1) provides that when an application is made to the AAT for a review of a decision regarding an adverse criminal intelligence assessment:  the Registrar must give the applicant written notice of receipt of the application (under paragraph (1)(a)), and  the AAT must give the CEO and the Commonwealth agency that received a copy of the assessment under subsection 36C(1) a copy of the application and the statement that was lodged with the application in accordance with section 36G (paragraph (1)(b)). 166. Paragraph (1)(b) importantly gives the ACIC and the Commonwealth agency that received the adverse assessment notice of the fact that an application for review of an adverse criminal intelligence assessment has been made as both agencies will be entitled to adduce evidence and make submissions in the course of the AAT review under subsection 36K(2). 167. The AAT will also be required, under paragraph (1)(b) and pursuant to subsection 36F(5), to give a copy of an application for review of previous AAT findings under subsection 36F(3). 168. Subsection (2) applies where the application to the AAT relates to an adverse criminal intelligence assessment that contains information for which the CEO has made a certificate under subsection 36C(5), that the disclosure of particular information contained in an adverse criminal intelligence assessment to the person in respect of whom the assessment was made would prejudice law enforcement interests or security. The subject of the assessment or the Commonwealth agency that received the assessment may not be aware of any of this information. Under this subsection, the CEO is required to lodge a relevant subsection 36C(5) certificate with the AAT (under paragraph (2)(a)) and a copy of the whole assessment including the information subject to that certificate (paragraph (2)(b)). 169. Subsection (3) requires the CEO to meet their obligation under subsection (2) within 30 days from the day that they are given a copy of the application for AAT review under subsection (1). 170. The AAT is required, under subsection (4), not to tell the applicant for AAT review of the existence of, or permit the applicant to have access to any copy, or particulars of, a certificate issued by the CEO under subsection 36C(5) or any matter to which the certificate relates. This is an important restriction to ensure that the purpose of the CEO's subsection 36C(5) certificate is not undermined in the course of the review.

- 33 - 171. Subsection (5) provides that the specific notice requirements in section 36G of the ACC Act apply despite section 29AC of the AAT Act, and in particular subsection 29AC(2), which provides that the AAT may notify other persons whose interests may be affected by a decision of the application for AAT review of that decision and that party's right to apply to be a party. Given that new subsection 36K(2) of the ACC Act limits the parties to the review of an adverse criminal intelligence assessment to the person who is the subject of the assessment and the ACIC, with the Commonwealth agency that received the adverse assessment being entitled to make submissions and adduce evidence, it is appropriate to prevent the AAT from notifying other persons whose interests may be affected by that decision. This position is consistent with the review of ASIO security assessments (as outlined in section 29AB of the AAT Act). Section 36J--Reviews to be conducted by Security Division of Tribunal 172. New section 36J of the ACC Act provides that a review of an adverse criminal intelligence assessment must be conducted in the Security Division of the AAT, and that the Security Division may be constituted of one or more members, at least one of whom must be a presidential member. This will also apply to applications for the review of the findings of the Tribunal on review of an adverse criminal intelligence assessment under new subsection 36F(3). 173. Subsection 17B(1) of the AAT Act provides that the AAT's powers in relation to a proceeding before the AAT are to be exercised in the Division prescribed for such a proceeding or, if no Division is prescribed, in the Division that the President directs. Despite this, subsection 17B(2) of the AAT Act provides that proceedings relating to the conduct of a security assessment by ASIO under the ASIO Act, or to access ASIO records from the National Archives, can only be exercised in the Security Division of the AAT. 174. Similar to the operation of subsection 17B(2) of the AAT Act, new subsection 36J(1) provides that any review of an adverse criminal intelligence assessment must be conducted in the Security Division of the AAT. This is necessary to ensure that the additional security measures that apply to reviews in the Security Division apply to reviews of criminal intelligence assessments, which may contain information of a sensitive nature such as the identities of criminal informants as well as undercover and covert operations conducted by the ACIC or other police agencies. 175. Subsection 19E(2) of the AAT Act requires that the Security Division of the AAT be constituted by a presidential member and two other members. New subsection 36J(2) of the ACC Act provides that, despite that provision, the hearing in the Security Division of a review of an adverse criminal intelligence assessment may be constituted by one or more members as long as one of the members constituting the Security Division is a presidential member. This will provide for the efficient operation of the Security Division in hearing these types of reviews.

- 34 - Section 36K--Procedure for review 176. New section 36K of the ACC Act outlines procedural matters relating to the conduct of a review of an adverse criminal intelligence assessment in the Security Division of the AAT. Subsection (1) provides that this section applies to such reviews. 177. New section 36K of the ACC Act is generally modelled after section 39A of the AAT Act which outlines procedural matters in relation to the conduct of reviews of security assessments in the Security Division. Subsection 36K(2)--Parties 178. Subsection (2) provides that, despite section 30 of the AAT Act which provides that any person who is affected by a decision may apply to become party to an AAT review, the parties in a proceeding that is a review of an adverse criminal intelligence assessment are limited to the applicant (i.e. the person who is the subject of the assessment) and the CEO. The Commonwealth agency that received the assessment, e.g. Home Affairs, is entitled to adduce evidence and make submissions for the proceedings but is not a party. 179. This provision is modelled after subsection 39A(2) of the AAT Act, which limits the parties to a review of an adverse or qualified security assessment to the applicant and the Director-General of ASIO, and provides for the agency to which the security assessment relates to adduce evidence and make submissions. Subsection 36K(3)--CEO must present all relevant information 180. Subsection (3) provides that the CEO must, in adducing evidence or making submissions, present to the AAT all relevant information (whether favourable or unfavourable to the applicant) that was used to make the criminal intelligence assessment of the applicant and is available to the CEO. 181. This obligation is not intended to require the CEO to provide to the AAT all evidence that the ACIC holds, or has access to, in relation to the applicant for AAT review. The obligation only applies to information that was used to make the criminal intelligence assessment. This limitation is intended to prevent the disclosure of information which would otherwise be contrary to a law of the Commonwealth, a State or Territory, and to protect information which the ACIC has chosen not to include in an assessment. This included, for example, information which may tend to disclose the identity of a confidential human source, or information which is subject to legislative restrictions that would prevent the information from being used in making an administrative decisions (i.e. criminal intelligence assessments) such as intercepted information under the Telecommunications (Interception and Access) Act 1979. Subsection 36K(4)--Member may require parties to attend etc. 182. Subsection (4) provides that a member of the AAT who is to participate, or is participating, in the hearing can require either or both of the parties to the hearing to attend or

- 35 - be represented at a directions hearing before the member concerning the conduct of the review with a view to identifying the matters in issue or otherwise facilitating the conduct of proceedings. Subsection 36K(5)--Proceedings to be in private 183. Subsection (5) provides that, despite section 35 of the AAT Act, the proceedings will remain private and the AAT is, subject to section 36K, to determine who may be present. Section 35 of the AAT Act generally provides that hearings default to being public. This accords with the position regarding reviews of security assessments (see subsection 39A(5) of the AAT Act). 184. The AAT Act creates a presumption that hearings will take place in public (see subsection 35(1) of the AAT Act). However, as subsections 35(2)(a) and 39A(5) of the AAT Act make clear, that presumption is limited and may be displaced. It is necessary and appropriate to ensure that hearings by the Security Division of the AAT of applications for review of adverse criminal intelligence assessments be conducted in private so that the conduct of the review does not lead to the disclosure of information or evidence that is likely to prejudice law enforcement interests or Australia's security. The disclosure of this information could damage the national interest or put individuals at risk of harm. Subsections 36K(6) and (7)--Rights of parties etc. to be present 185. Subsection (6) provides that, subject to subsection (9), the applicant and the person representing them may be present while the AAT is hearing submissions given or evidence adduced by the CEO or by the Commonwealth agency to which the criminal intelligence assessment was given under subclause 36C(1). 186. Subsection (7) mirrors subsection (6) in that it provides that the CEO or a person representing the CEO, and a person representing the Commonwealth agency to which the criminal intelligence assessment was given under subsection 36C(1), may be present when the AAT is hearing submissions given or evidence adduced by the applicant. Subsections 36K(8) to (11)--Certificate regarding prejudice to law enforcement interests or security 187. Subsections (8) to (11) detail how certain information, the disclosure of which would be prejudicial to law enforcement interests or security as certified by the Minister, must be dealt with when being heard by the AAT. These procedures are modelled after subsections 39A(8)-(10) of the AAT Act. 188. Subsection (8) provides that the Minister may certify that evidence proposed to be adduced or a submission proposed to be made is of such a nature that the disclosure of the evidence or submission would be contrary to the public interest because it would prejudice 'law enforcement interests' (as newly defined in section 36A) or security. A certificate under subsection (8) can apply to proposed evidence or submissions from either the CEO or the

- 36 - Commonwealth agency who received the criminal intelligence assessment under subsection 36C(1). 189. Subsection (9) provides that, where the Minister makes a certificate under subsection (8), then:  the applicant must not be present when the evidence is adduced or the submissions made that are subject to the certificate (paragraph (9)(a)), and  a person representing the applicant must not be present, unless the Minister provides consent (paragraph (9)(b)). 190. The AAT Act generally reflects the common law principle that a party to a proceeding before the AAT will be able to hear, and respond to, the evidence relied on against them. Subsections (8) and (9) provide an exception to that general principle that applies in limited circumstances. In particular, these provisions will apply only where the Minister certifies that the evidence or submissions in the proceedings are of a type that their disclosure would be contrary to the public interest. This imposes a high bar, which reflects the seriousness with which the Government views the use of these provisions. However, the individual's interest in hearing the evidence against them must be balanced against the protection of the Australian community. Subsections (8) and (9) reflect the need for the Minister to prioritise the safety of the nation and protect sensitive information (including, for example, the identity and safety of human sources), and are equivalent to the relevantly similar provisions in subsections 39A(8)-(9) of the AAT Act relating to reviews of security assessments conducted by ASIO. Notably, paragraph 36K(9)(b) provides that a person representing an applicant can be present when evidence or submissions covered by a certificate issued under subsection 36K(8) is given to the Tribunal, where the Minister consents. 191. Subsection (10) provides that the person representing the applicant commits an offence if:  the Minister makes a certificate under subsection (8) in relation to evidence or a submission (paragraph (10)(a))  the person is present when the evidence is adduced or the submission is made (including where the Minister provides consent for the person to be present under paragraph (9)(a)) (paragraph (10)(b)), and  the person discloses the evidence or submission, or information contained in the evidence or submission, to the applicant or to any other person (paragraph (10)(c)). 192. The maximum penalty for the offence in subsection (10) is two years imprisonment. This significant penalty reflects the potentially serious outcomes from the disclosure of the information captured by a subsection (8) Ministerial certificate.

- 37 - 193. Subsection (11) is a statement of law, reflecting that the certificate under subclause (8) does not alter the state of the law, but is the application of the law in a particular instance in the context of a particular adverse criminal intelligence assessment (and is not otherwise captured by subsection 8(1) of the Legislation Act). Subsection 36K(12)--Protection of identity of persons giving evidence 194. Subsection (12) provides that, if requested by the CEO, the AAT must take all necessary steps to protect the identity of persons that give evidence on behalf of the CEO. This is an important measure by which the identity of officers of the ACIC, including officers engaged in covert operations, will be protected. Subsections 36K(13) to (18)--Evidence and submissions 195. Subsections 36K(13) to (18) outline the manner in which evidence and submissions will be presented to the Security Division of the AAT when hearing a review of an adverse criminal intelligence assessment. These provisions are generally analogous to the provisions governing evidence and submissions in relation to a review of an adverse or qualified security assessment in subsections 39A(12) to (17) of the AAT Act. 196. Subsection (13) requires the AAT to first hear submissions and evidence from the CEO and the Commonwealth agency to which the adverse criminal intelligence assessment was given under subsection 36C(1). 197. Subsection (14) provides that the AAT must next allow the applicant, if the applicant wants, to give evidence or make submissions. 198. Subsection (15) provides that the AAT may, on its own initiative and at any point in the proceedings, invite a person to give evidence or have someone summoned to give evidence. Where the person invited or summoned to give evidence under subsection (15) is a person specified in paragraphs (16)(a) to (d), including ACIC officers, Board members, examiners and officers from the Commonwealth agency given the adverse criminal intelligence assessment under subsection 36C(1), subsection (16) provides that the Minister may make a certificate under subsection (8) in respect of any evidence to be given by the person. 199. Subsection (16) ensures that the protections that flow from a Ministerial certificate under subsection (8), including that the applicant must not be present (paragraph (9)(a)), that a person representing the applicant can only be present with the consent of the Minister (paragraph (9)(b)), and that representative commits an offence if they disclose evidence that is the subject of the certificate (subsection (10)), apply to any evidence provided by the ACIC and officials from Commonwealth agencies that receive criminal intelligence assessments. 200. Subsection (17) provides that the AAT must hear further evidence from a party if, after that party has given evidence and the other party has subsequently given evidence, the AAT thinks that the first-mentioned party should be further heard. If the party to be further

- 38 - heard is the applicant, the AAT must not give that party any particulars of any evidence to which a Ministerial certificate under subsection (8) relates. 201. Subsection (18) provides that a member of the AAT can ask questions of witnesses, and that a presiding member can require the witness to answer them. Nothing, however, in this subsection is intended to allow a presiding member to require that a witness answer a question which would tend to, or be reasonably likely to, disclose information which is subject to a certificate issued under either section 36C(5), 36K(8) or 36L(2) of the ACC Act. Subsection 36K(19)--Dismissal of application 202. Subclause (19) provides that if the applicant does not proceed with the application, or does not comply with a direction of the AAT, within a reasonable time then the President of the AAT or an authorised member can dismiss the application without proceeding to review the adverse criminal intelligence assessment. Section 36L--Certain documents and information not to be disclosed in review 203. Section 36L provides the Minister with authority to issue a certificate stating that the disclosure of information or the contents of a document would be contrary to the public interest, on certain grounds specified in paragraphs (2)(a) to (d), and how documents subject to a Ministerial certificate must be handled by the AAT. This provision is modelled after section 39B of the AAT Act, which makes provision for the issue of certificates and treatment of information and documents under that certificate in relation to reviews of ASIO security assessments. Subsection 36L(1)--Scope 204. Subsection (1) provides that this section applies to a proceeding to which section 36K applies, namely a proceeding for review of an adverse criminal intelligence assessment in the Security Division or a proceeding to review previous AAT findings about an adverse criminal intelligence assessment (as applies by way of subsection 36F(5)). Subsections 36L(2) and (3)--Minister may issue public interest certificate 205. Subsection (2) provides that the Minister may certify, in writing, that the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document, would be contrary to the public interest:  because disclosure would prejudice security or the defence of international relations of Australia (paragraph (2)(a)),  because disclosure would prejudice law enforcement interests (paragraph (2)(b)),  because it would involve the disclosure of deliberations or decisions of the Cabinet, a Committee of the Cabinet or of the Executive Council (paragraph (2)(c)),

- 39 -  for any other reason stated in the certificate that could form the basis for a claim by the Commonwealth in a judicial proceeding that the information should not be disclosed (paragraph (2)(d)). This provision is intended to include, but not be limited to, the grounds outlined in section 130 of the Evidence Act 1995 not otherwise captured in paragraphs (2)(a) to (c). 206. Subsection (3) is a statement of law, reflecting that the certificate under subsection (2) does not alter the state of the law but applies the law in a particular circumstance to a particular adverse criminal intelligence assessment (and is not otherwise captured by subsection 8(1) of the Legislation Act). Subsections 36L(4) and (5)--Protection of information etc. 207. Subsection (4) makes clear that a person is not excused from disclosing information or producing documents to the AAT where the Minister has made a certificate under subsection (2). Under this subsection the AAT must do all things necessary to ensure, subject to subsections (5), (6) and (8) and section 46 of the AAT Act, that:  the information or contents of the document subject to the certificate are not disclosed to anyone other than a member of the AAT as constituted for the proceeding (paragraph (4)(a)), and  if a document is produced to the AAT, it must be returned to the person that produced it (paragraph (4)(b)). 208. The requirement of the AAT to limit disclosure of information or documents subject to a certificate under subsection 36L(2) is to ensure that information which would be contrary to the public interest if it were disclosed, is protected. This may include, for example, information which may reveal, or assist in revealing, or be reasonably likely to reveal or assist in revealing, information regarding the identity of a confidential human source, information which reveals lawful methods or procedures used to prevent, detect, investigate or otherwise deal with breaches of law, or information which would reveal that a person was subject of an investigation by the ACIC or another agency. 209. The Government recognises that this is a limitation on the common law principle that an individual will generally have the right to hear, and respond to, the evidence relied on against the individual. However, this right must be balanced against the Minister's role in protecting the Australian community. Subsection 36L(2) provides a limited exception to the common law principle where the disclosure of information or the contents of a document would be contrary to the public interest because of the matters specified in paragraphs 36L(2)(a)-(d). This imposes a high bar, which reflects the seriousness with which the Government views the use of this provision. This measure reflects the need of the Minister to, in very limited circumstances, prioritise the protection of the wider community over the rights of an individual. This provision is relevantly similar to subsection 39B(2) of the AAT Act, which applies in relation to proceedings in the Security Division of the AAT.

- 40 - 210. Subsection (5) provides that subsection (4) does not apply in relation to disclosure to the CEO or the CEO's representative if the reason stated in the certificate is the reason stated in paragraph (2)(a) or (b). This means that, where the disclosure of information or the contents of a document would be contrary to the public interest because it would prejudice the security, defence or international relations of Australia (paragraph 2(a)), or would prejudice law enforcement interests (paragraph 2(b)), that disclosure is permitted to the CEO or the CEO's representative. The exception in subsection (5) reflects the role that the CEO has and that disclosure to the CEO will not prejudice any of the matters referred to in paragraphs (2)(a) or (b). Subsection 36L(6)--Disclosure of information etc. 211. Subsection (6) works in conjunction with subsection (2). It provides that if a certificate is made by the Minister under subclause (2), and that certificate does not state the reasons listed in paragraphs (2)(a)-(c), then the presiding member of the AAT may authorise the disclosure of the information, or the contents of the document, to the applicant if they are satisfied that the interests of justice outweigh the reasons stated in the certificate. Subsection 36L(7)--What presiding member must consider 212. Subsection (7) lists matters that the presiding member of the AAT must consider before authorising the disclosure of information or documents under subsection (6). Under this subsection, the presiding member is required:  to take as a basis of the presiding member's consideration that it is desirable, in the interest of ensuring that the Tribunal performs its functions effectively, that the parties should be made aware of all relevant matters (paragraph (6)(a)), and  to pay due regard to any reason stated by the Minister in the certificate as the reason why the disclosure of the information or document would be contrary to the public interest (paragraph (6)(b)). Subsection 36L(8)--Disclosure of information etc. to staff of Tribunal 213. Subsection (8) provides that section 36L does not prevent the disclosure of information or documents to AAT staff in the course of performing their duties as members of the AAT's staff. Subsection 36L(9)--Public interest 214. Subsection (9) excludes the operation of any rules of law relating to the public interest that would otherwise apply in relation to the disclosure of information or documents in an AAT review of an adverse criminal intelligence assessment.

- 41 - Subsection 36L(10)--Copy of document 215. Subsection (10) provides that a certificate made under subsection (2) applies to any copies of a document in the same manner as it applies to an original document. Subsection 36L(11)--Certificate lodged under subsection 36H(2) 216. Subsection (11) is a deeming provision. It provides that, if the CEO has already lodged with the Tribunal a certificate made by the CEO under subsection 36C(5) as required by subsection 36H(2), the Minister is taken to have certified that the disclosure of the information is contrary to the public interest for the reasons referred to in paragraph (2)(a) or (b) of this section. 217. This means that, where the CEO is satisfied that disclosing particular information in an adverse criminal intelligence assessment to the person to whom the assessment relates would prejudice law enforcement interests or security under subsection 36C(5), that information will automatically be quarantined from disclosure to the applicant in the course of an AAT review of that assessment. This will provide for the continued protection of this sensitive information, including potential human source and criminal informant information, from the applicant to which that information relates whilst providing the AAT with an ability to review all of the information relevant to the assessment. Subsection 36L(12)--Duty of Tribunal 218. Subsection (12) imposes a duty on the AAT to ensure that, so far as it is able to do so and even in the absence of a subsection (2) Ministerial certificate, information is not communicated or made available to a person contrary to law enforcement interests or the requirements of security. Given the inherently sensitive qualities of this information, it is an appropriate obligation to include. This provision is analogous to the position in relation to ASIO security assessments, under subsection 39B(11) of the AAT Act. Section 36M--Orders for non-publication and non-disclosure 219. New section 36M of the ACC Act provides the AAT with the authority to make non- publication and non-disclosure orders about information obtained by the AAT in the course of conducting a review of an adverse criminal intelligence assessment, being proceedings to which section 36K applies (see subsection (1)). 220. Subsection (2) provides that the AAT may make directions that either restrict or prohibit disclosure or publication of the following:  information tending to reveal the identity of a party or witness to the proceeding (subparagraph (2)(a)(i))  information tending to reveal the identity of any person related to or otherwise associated with a party or witness to the proceeding (subparagraph (2)(a)(ii))

- 42 -  information otherwise concerning a person referred to in paragraph (2)(a) (paragraph (2)(b))  information that relates to the proceeding that comprises evidence or information about evidence (subparagraph (2)(c)(i))  information that relates to the proceeding that is lodged with or otherwise given to the AAT (subparagraph (2)(c)(ii)), and  the whole or any part of the AAT's findings on the review (paragraph (2)(d)). 221. This provision is modelled after subsection 35AA(2) of the AAT Act, which provides that the AAT may make similar non-publication and non-disclosure orders in relation to information relating to, or findings on, a review of an adverse or qualified security assessment. 222. The ability of the AAT to make orders under subsection (2) is an important corollary to the public interest-based protections that apply in relation to the release of information relating to an adverse criminal intelligence assessment by the ACIC (by CEO certificate under subsection 36C(5)), or the provision of information and documents, or the making of submissions or adducing of evidence to the AAT in the course of conducting a review of such an assessment (by Ministerial certificate under subsections 36L(2) and 36K(8) respectively). This means the protections for sensitive information afforded by these subsections continue to apply but enable the AAT to make decisions based on that information, without compromising the public interest in keeping documents and information from being disclosed publically. The AAT's power to give directions under subsection (2) allows it to protect the identity of individuals, whether or not they are themselves party to the proceeding, and to otherwise prevent the dissemination of information from a proceeding under section 36K. 223. Subsection (3) makes it an offence for a person to engage in conduct that contravenes an order made under subsection (2). This offence carries a maximum penalty of 60 penalty units or 12 month imprisonment, or both. This significant penalty reflects the potentially serious outcomes from the disclosure of the information captured by a direction given under subsection 36M(2). Subsection (3) is modelled after section 62C of the AAT Act, which applies to make it an offence for a person to engage in conduct that contravenes an order under subsection 35AA(2) of that Act. Section 36N--Findings of Tribunal 224. New section 36N of the ACC Act outlines how the AAT's findings at the conclusion of a review of an adverse criminal intelligence assessment are dealt with. This section is modelled after section 43AAA of the AAT Act, which outlines matters relating to AAT findings for ASIO security assessments. 225. Subsection (1) provides that at the end of the review of an adverse criminal intelligence assessment the AAT must make and record its findings. Those findings may state

- 43 - the opinion of the AAT on the correctness of, or justification for, any opinion, advice or information contained in the criminal intelligence assessment that is the subject of the review. 226. Subsection (2) provides that the AAT must not make findings that would, by way of subsection (9), have the effect of superseding any information in the original assessment unless the AAT is of the opinion that:  the information is incorrect (paragraph (2)(a))  the information was incorrectly represented (paragraph (2)(b)), or  the information could not reasonably be relevant for the purposes of having regard to whether there is intelligence or information that suggests the person may commit a serious and organised crime or that they may assist someone to do so (paragraph (2)(c)). 227. The AAT's obligation under subsection (2) applies to any information that is taken to be part of the adverse criminal intelligence assessment under subsection 36C(3), being any information contained in the statement of grounds for the assessment provided by the ACIC to the relevant Commonwealth agency. Subsections 36N(3) and (4)--Copies of findings to be given to parties etc. 228. Subsection (3) provides that, subject to subsection (4), the AAT must give a copy of its findings to the applicant, the CEO, the Commonwealth agency to which the assessment was provided under subsection 36C(1), and the Minister. 229. Subclause (4) provides that the AAT may direct that a particular part of its findings, if that information has not already been disclosed to the applicant, not be disclosed to the applicant or the Commonwealth agency to which the findings were given under subsection 36C(1). This provision enables the AAT to limit the disclosure of its findings to the CEO and the Minister, which allows the AAT to prevent the disclosure of those aspects of its findings that may contain sensitive information or otherwise not be suitable for disclosure to the applicant or the Commonwealth agency to which the assessment was given under subsection 36C(1). Subsection 36N(5)--Applicant may publish findings 230. Subclause (5) provides that, subject to any direction of the AAT under subsection 36M(2) or otherwise, the applicant is entitled to publish the findings in any manner they see fit. Subsections 36N(6) and (7)--Tribunal may attach comments to findings 231. Subsection (6) provides that the AAT may attach to a copy of findings to be given to the CEO any comments the AAT wishes to make on matters relating to the procedures or

- 44 - practices of the ACIC that have come to the AAT's attention as a result of the review. This extends to any direction made by the CEO under subsection 36B(3). 232. If the AAT elects to make any comments to the ACIC under subsection (6), under subsection (7) the AAT is required to give a copy of those comments to the Minister. Subsection 36N(8)--Treatment of findings 233. Subsection (8) provides for the application of the AAT's findings if they do not confirm the ACIC's original criminal intelligence assessment. The AAT's findings are taken to have superseded the ACIC's assessment by:  any Commonwealth agency concerned with 'prescribed administrative action' to which the assessment is relevant (paragraph (8)(a)), and  any tribunal, person or authority having power to hear appeals from, or to review, a decision with respect to any prescribed administrative action to which the assessment is relevant (paragraph (8)(b)). 234. In effect this means that, if the AAT finds that an adverse criminal intelligence assessment for a person should not have been made in relation to an individual, Home Affairs including AusCheck are required to treat the subject of the assessment accordingly and, subject to the other elements of the background check being satisfied, provide notice that the subject of the criminal intelligence assessment can obtain or maintain an ASIC or MSIC. Subsection 36N(9)--Interaction with AAT Act 235. Subsection (9) provides that section 43 of the AAT Act applies to the AAT's findings on review, subject to this section, and that the section has effect despite section 43AAA of the AAT Act. Section 43AAA of the AAT Act governs how findings in the Security Division of the AAT, including reviews of ASIO security assessments, are treated. Section 36P--Restriction on further assessments after review 236. New section 36P of the ACC Act provides that, if the AAT has made findings upon the review of an adverse criminal intelligence assessment, the ACIC must not make another criminal intelligence assessment in respect of the person, that is not in accordance with those findings. Exceptions to this general obligation apply where either matters occurring after the review provide a basis for conducting a further assessment, or new evidence is available that was not available in the course of the AAT review. Section 36Q--Secrecy--criminal intelligence assessment information 237. New section 36Q of the ACC Act contains a secrecy provision to prevent any inappropriate disclosure of information contained in or relating to a criminal intelligence assessment, which is analogous to subsection 81(1) of the ASIO Act which applies in relation to information contained in or relating to security assessments.

- 45 - 238. Subclause (1) provides that a person commits an offence if:  the person is, or has been, either a member or officer of the AAT or an officer or employee of the Commonwealth agency to which an adverse criminal intelligence assessment has been given under subsection 36C(1) (e.g. Home Affairs) (paragraph (1)(a))  the person described in paragraph (1)(a) makes a record of, discloses or otherwise uses information (paragraph (1)(b))  the information was obtained by the person by reason of, or in the course of, the person's functions, duties or powers as a member or officer of the AAT or an officer or employee of the Commonwealth agency (paragraph (1)(c), and  the information that is recorded, disclosed or otherwise used is, is contained in, or relates to, a criminal intelligence assessment (paragraph (1)(d)). 239. Paragraph (1)(c) is intended to capture circumstances where a person obtains information in the course of the person's employment as well as where the person inappropriately accesses that information. Paragraph (1)(d) is intended to capture all information contained in a criminal intelligence assessment, including information subject to a CEO certificate under subsection 36C(5), as well as all information used by the ACIC to conduct the assessment and prepared by the AAT in reviewing an assessment. 240. The maximum penalty that may be imposed for an offence against subsection (1) is two years' imprisonment, or 120 penalty units, or both. This significant penalty reflects the potentially serious outcomes from the disclosure of the information contained in, or otherwise relating to, a criminal intelligence assessment. 241. Subsection (2) provides exceptions to the offence in subsection (1), which apply where the making of the record, disclosure or use of information contained in, or relating to, a criminal intelligence assessment:  is for the purposes of new Division 2A of Part II of the ACC Act (paragraph (2)(a)), meaning that the making of the record, or disclosure or use of information is for the purpose of conducting a criminal intelligence assessment and providing that assessment to a Commonwealth agency (under Subdivision B) or for the purpose of conducting a review of an adverse assessment in the Security Division of the AAT (under Subdivision C), or  is for the purposes of, or in connection with, the performance or exercise of the person's functions, duties or powers as a member or an officer of the Tribunal, or as an officer or employee of the agency (paragraph (2)(b)). This means, for example, that officers in Home Affairs are able to disclose the fact that an adverse assessment has been made, in accordance with subsection 36D(1), or make records about the person who has applied for review of their adverse criminal intelligence assessment,

- 46 - including in preparation for giving submissions and adducing evidence for proceedings in the AAT. 242. Note 1 to subsection (2) outlines that, under subsection 13.3(3) of the Criminal Code, a defendant who wishes to rely upon an exception provided by the law creating the offence (i.e. under this section of the ACC Act) bears an evidential burden in relation to the matter. This means that a defendant to an offence under subsection (1) is required to meet an evidential burden that either paragraph (2)(a) or (b) applies. 243. Note 2 to subsection (2) indicates that section 66 of the AAT Act also applies in relation to the disclosure of certain information and documents by members and officers of the AAT. Note 3 outlines that section 51 of the ACC Act deals with secrecy requirements for the CEO, members of the Board, staff members, and ACIC Examiners, which is why those officials are not captured by this provision. Section 36R--Costs 244. New section 36R of the ACC Act provides that the AAT may make orders that an applicant's costs be paid by the Commonwealth. This provision is modelled after section 39B of the AAT Act, which provides the AAT with the ability to order the payment of costs by the Commonwealth in relation to reviews of adverse or qualified security assessments. 245. Under subsection (1), the AAT may order that the costs reasonably incurred by the applicant in connection with their application, or a part of such costs, be paid by the Commonwealth where:  a person makes an application for a review of an adverse criminal intelligence assessment under section 36E (paragraph (1)(a)),  the applicant was, in the opinion of the AAT, successful, or substantially successful, in the application for review (paragraph (1)(b)), and  the AAT is satisfied that it is appropriate to order the payment of costs by the Commonwealth in all the circumstances of the case (paragraph (1)(c)). 246. Subsection (2) clarifies that, for the purposes of section 69A of the AAT Act, the Commonwealth is taken to be a party to the proceedings referred to in subsection (1). Section 36S--Interaction with AAT Act 247. New section 36S of the ACC Act provides that the following provisions of the AAT Act do not apply in relation to a proceeding in the Security Division of the AAT to review an adverse criminal intelligence assessment under section 36K:  sections 30A and 31 (paragraph (a)), which provide for the intervention by the Attorney-General and for the determination of persons affected by a decision respectively,

- 47 -  Division 3 of Part IV (paragraph (b)), which outlines alternative dispute resolution processes, and  sections 36, 36A, 36B, 36C, 36D, 37, 38 and 39 (paragraph (c)), which generally provide for the provision of evidence and the conduct of hearings. 248. These sections are excluded from operating because those provisions do not operate in relation to the conduct of AAT reviews in the Security Division (under section 39A of the AAT Act). 249. A note to this section outlines that other provisions of the AAT Act do not apply to a proceeding to which section 36K applies because of the operation of other provisions of this Division. This includes, for example, subsection 36K(2) which provides that the parties to a proceeding are the CEO and the applicant, notwithstanding section 30 of the AAT Act. Item 8 At the end of section 46A 250. Item 8 of Schedule 2 to the Bill inserts new subsection (8) into section 46A of the ACC Act, which expands the responsibilities of the CEO of the ACIC to include the conduct of criminal intelligence assessments, as set out in new Division 2A of Part II of the ACC Act to be inserted by this Bill. Item 9 Section 59A 251. Item 9 of Schedule 2 to the Bill makes amendments to section 59A of the ACC Act by deleting the words "or functions under this Act (other than a power or function under section 47A)" and substituting ", functions or duties under this Act (other than a power, function or duty under subsection 36B(2) or section 47A)". 252. Section 59A currently provides that the CEO of the ACIC may delegate any of the CEO's powers or functions under the ACC Act, excluding the power or function under section 47A. 253. This item amends section 59A of the ACC Act to include new subsection 36B(2) as an exclusion from the CEO's power to delegate. The effect of this amendment is that the power to make a legislative instrument so as to determine matters relevant the making of a criminal intelligence assessment (subsection 36B(2)), cannot be delegated. Those powers must be exercised personally by the CEO. 254. This item also amends section 59A to include references to the duties of the CEO of the ACIC. This is appropriate to include because section 47A contains obligations that the CEO must comply with in certain circumstances (see subsections 47A(6) and (7) in particular).

- 48 - Item 10 Application provision 255. Item 10 of proposed Schedule 2 to the Bill deals with the application of the amendments to the ACC Act. The amendments made by Schedule 2 to the ACC Act apply in relation to a background check conducted on or after the commencement of item 10, if:  the application for the background check under the ASIC or MSIC schemes is made on or after the commencement of item 10 (paragraph (a)), or  immediately before the commencement of item 10, the application for the background check is pending (paragraph (b)). 256. In effect, this item provides that a background check for an applicant for an ASIC or MSIC will only include a criminal intelligence assessment where the person applies for the card after the commencement of Schedule 2 or where the application for a background check is still being processed.

-1- ATTACHMENT Statement of Compatibility with Human Rights Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Transport Security Amendment (Serious Crime) Bill 2020 The Transport Security Amendment (Serious Crime) Bill 2020 (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 1. The Bill implements a number of recommendations made to the Commonwealth government in relation to serious criminal activity occurring at Australia's security controlled airports and ports. Notably it implements recommendations made by the 2015 National Ice Taskforce and the Joint Parliamentary Committee on Law Enforcement's Inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime and more recently the recommendation arising from the Senate Legal and Constitutional Affairs Legislation Committee's inquiry into the Bill. Amendments are outlined in two Schedules to the Bill. 2. Schedule 1 to the Bill introduces an additional purpose to the Aviation Transport Security Act 2004 (the Aviation Act) and the Maritime Transport and Offshore Facilities Security Act 2003 (the Maritime Act) to prevent the use of aviation and maritime transport or offshore facilities in connection with serious crime. This additional purpose aims to reduce criminal influence at Australia's security controlled airports, security regulated ports, and security regulated offshore oil and gas facilities. 3. Schedule 2 to the Bill will introduce the concept of a criminal intelligence assessment for the purposes of the aviation and maritime security identification card (ASIC and MSIC) schemes. This will be achieved by amending the Australian Crime Commission Act 2002 (the ACC Act) so that criminal intelligence assessments become a function of the Chief Executive Officer (CEO) of Australian Criminal Intelligence Commission (ACIC), and will be reviewable in the Security Division of the Administrative Appeals Tribunal (AAT). 4. Specifically, the Bill will:  create an additional purpose for the Aviation and Maritime Acts, to prevent the use of aviation and maritime transport or offshore oil and gas facilities in connection with serious crime, and provide for the making of regulations for this additional purpose so the ASIC and MSIC schemes can target serious criminal activity

-2-  allow for regulations made for the additional purpose to prescribe penalties for offences against the regulations of up to 200 penalty units, consistent with penalty provisions across the ASIC and MSIC schemes  clarify and align the legislative basis for undertaking background checks of individuals under the Aviation and Maritime Acts, and make other technical amendments to those Acts  establish that the CEO of the ACIC has the function of conducting criminal intelligence assessments for the purpose of the ASIC and MSIC schemes in the ACC Act  incorporate criminal intelligence assessments into the ASIC and MSIC schemes by expanding the definition of 'background check' within section 5 of the AusCheck Act 2007 (the AusCheck Act),  provide for merits review of criminal intelligence assessments in the Security Division of the AAT, in a manner largely modelled after the review of security assessments conducted by the Australian Security Intelligence Organisation (ASIO) under the Australian Security Intelligence Organisation Act 1979 (the ASIO Act), and amend the Administrative Appeals Tribunal Act 1975 (the AAT Act) to provide for the disclosure of documents relating to a review of a criminal intelligence assessment by the AAT to the Federal Court, and  amend the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) to exempt decisions made by the ACIC and the AAT concerning criminal intelligence assessments from judicial review. Human rights implications 5. Schedule 1 to the Bill makes technical amendments to include regulation making powers in the Aviation and Maritime Act in relation to a new specific purpose of preventing the use of aviation and maritime transport or offshore oil and gas facilities in connection with serious crime. As such, it does not engage with any of the applicable human rights and freedoms. 6. Schedule 2 to the Bill engages the following rights:  the right to work in Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and  the right to a fair trial and due process in Article 14 of the International Covenant on Civil and Political Rights (ICCPR).

-3- Right to work 7. Article 6 of the ICESCR provides that everyone has the right to the opportunity to gain work of their choosing. The United Nations Committee on Economic Social and Cultural Rights has stated that this protection includes the right to not be unfairly deprived of work. Under Article 4 of the ICESCR, the rights in Article 6 can be limited for the purposes of promoting general welfare in a democratic society. Any limitations need to be reasonable, necessary and proportionate to the legitimate objective sought to be achieved. 8. The amendments to the Bill engage the right to work, as a consequence of an adverse criminal intelligence assessment is that an applicant is denied an ASIC or MSIC and may therefore be denied certain jobs that require a person to hold an ASIC or MSIC. Given, however, the significant impact that serious crime (in particular the sale of illicit drugs) has on the Australian community the limitation on the right to work is considered to be a reasonable, necessary and proportionate measure to prevent Australia's security controlled airports, security regulated seaports, and security regulated offshore oil and gas facilities from being used in connection with serious crime. 9. Serious crime poses a significant risk to Australia's national security as well as the health and safety of Australian citizens. The security sensitive areas where an ASIC or MSIC are required, mentioned above, are particularly vulnerable to being used for serious crime. For example ports are a necessary component of the supply chain for importing illicit drugs into Australia, and therefore require additional security measures. Persons that are denied an ASIC or MSIC on the basis of an adverse criminal intelligence assessment pose a genuine risk to Australia's security and it is reasonable that they be denied access to certain security controlled airports, security regulated seaports, and security regulated offshore oil and gas facilities. To the extent that the measure limits the opportunity for an individual to gain employment of their choosing, the measure is proportionate and least rights restrictive, as it only limits their ability to gain employment in locations that require an ASIC or MSIC. It would not prevent the individual from gaining employment of their choosing in a location that does not require an ASIC or MSIC. Right to justice and a fair trial 10. Article 14 of the ICCPR provides a number of protections relating to justice and ensuring a fair hearing (Article 14(1)). These protections include the right to be presumed innocent (Article 14(2)). This Bill engages both of those rights. 11. The Bill engages the right to a fair hearing in Article 14(1) of the ICCPR. Individuals who receive an adverse criminal intelligence assessment from the ACIC are able to appeal that decision in the AAT. Where an applicant for an ASIC or MSIC is appealing a decision of an adverse criminal intelligence assessment, the provisions in the Bill may have the effect of denying them access to evidence relevant to them arguing their case (see, in particular, the new subsection 36J(8) of the ACC Act). This engages the right to equality before courts and tribunals and the principle that all parties should have a reasonable opportunity to present their case. However this limitation is necessary to protect national security and public safety,

-4- for example non-disclosure of information by the ACIC (as provided for in the new subsection 36C(5) of the ACC Act) may be necessary to protect the identity and safety of a human source. A mitigation measure for this limitation is that the Minister may approve that the person representing the applicant can be present when the evidence is adduced. 12. This Bill also engages the right to be presumed innocent in Article 14(2) of the ICCPR as it facilitates the imposition of a 'penalty', the denial of an ASIC or MSIC, on the basis of an adverse criminal intelligence assessment which considers whether or not a person may commit, or assist another person to commit, a serious and organised crime or rather than after criminal conviction. The denial of an ASIC or MSIC following an adverse criminal intelligence assessment, however, has the legitimate purpose of preventing the use of security controlled airports, security regulated seaports, and security regulated offshore oil and gas facilities in connection with serious crime. 13. As mentioned previously Australia's security controlled airports, security regulated seaports, and security regulated offshore oil and gas facilities are particularly vulnerable to being used for the purpose of serious crime. It is therefore necessary to have additional scrutiny of those that wish to work in those locations. 14. The amendments to the Bill have the legitimate aim of preventing aviation, maritime or offshore facilities from being used in connection with serious crime. Without passage of these amendments, there is no capacity to conduct a criminal intelligence assessment for the purposes of an ASIC or MSIC, leaving security controlled areas vulnerable to being used in connection with serious crime such as drugs and firearms smuggling. 15. Conducting criminal intelligence assessments assists the Australian Government in preventing aviation, maritime and offshore facilities from being used in organised crime. 16. The Bill also provides an avenue of appeal through section 36H of the ACC Act, where a person who has been given an adverse criminal intelligence assessment can apply to the Administrative Appeals Tribunal for a review of the decision. 17. As all international cargo and passengers, and a large proportion of domestic cargo and passengers, move through these environments they are of particular significance. These amendments are important to limit the influence of serious criminal activity in the aviation and maritime or offshore facilities environments, consistent with recommendations made by the 2015 National Ice Taskforce and the Joint Parliamentary Committee on Law Enforcement's Inquiry into the adequacy of aviation and maritime security measures to combat serious and organised crime.

-5- Conclusion 18. The Bill is compatible with human rights. This is because the provisions in Schedule 1 to the Bill do not raise any human rights issues. Further, to the extent that provisions in Schedule 2 engage with human rights, any limitations on those rights are reasonable, necessary and proportionate. Minister for Home Affairs, the Hon Peter Dutton MP

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