Review of the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 1) Bill 2021
The submission to the Parliamentary Joint Committee on Intelligence and Security in response to the review of the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 1) Bill 2020 (Bill) was prepared by the Law Council of Australia.
The Bill comprises an assortment of discrete and technically complex amendments to the legislation governing six agencies in the National Intelligence Community (NIC).1 The most significant measures are contained in Schedules 1-5. They propose amendments to certain authorisation and governance requirements in the Intelligence Services Act 2001 (Cth) (ISA) with respect to the intelligence collection and related activities of ASIS, ASD and AGO (collectively, the ‘ISA agencies’).
Most proposals in the Bill implement selected recommendations of two major reviews of the NIC and its governing legislation—the 2018-19 Comprehensive Review of the Legal Framework of the National Intelligence Community (Richardson Review), 2 and the 2017 Independent Intelligence Review (IIR).3
However, the measures in Schedule 5 contradict a recommendation of the Richardson Review that they should not proceed. The Richardson Review disagreed with a prior recommendation of the IIR, which supported them.4
In late 2020, the Government announced its rejection of the relevant Richardson Review recommendation, giving preference to that of the IIR.5 Further, the Bill contains a small number of measures, most significantly in Schedule 8, which are additional to the matters addressed in the Richardson Review and IIR recommendations.
1 Namely, the: Australian Secret Intelligence Service (ASIS); Australian Signals Directorate (ASD); Australian Geospatial-Intelligence Organisation (AGO); Defence Intelligence Organisation (DIO); Office of National Intelligence (ONI); and Australian Security Intelligence Organisation (ASIO). The measures in the Bill affect the functions of DIO, ONI and ASIO to a more limited extent than those of ASIS, ASD and AGO.
2 Dennis Richardson AO, Unclassified Report of the Comprehensive Review of the Legal Framework of the National Intelligence Community (December 2019), Vols 1-4. In particular, recs 12, 41, 45, 46, 52, 74 & 189.
3 Michael L’Estrange AO and Stephen Merchant PSM, Unclassified Report of the 2017 Independent Intelligence Review (July 2017) (IIR Report). In particular, recommendation 16.
4 Richardson Review, Vol 2, recommendation 57 and 163-164 at [22.64]-[22.65]. Cf IIR Report, recommendation 18(b) and 106-107 at [6.54]-[6.61], especially [5.59] and [6.61].
5 Australian Government, Response to the Richardson Review, (December 2020), 19 (rec 57 response).