Scott Ludlam (WA, Australian Greens) Share this | Hansard source

Thank you, Chair—I have been here long enough to know that!

By leave—I move amendments (22) to (24), (26) and (28) to (35) on sheet 7669 together:

(22) Schedule 1, item 1C, page 23 (line 26), omit "journalist information warrants", substitute "data authorisation warrants".

(23) Schedule 1, item 1C, page 23 (line 28), omit "journalist information warrants", substitute "data authorisation warrants".

(24) Schedule 1, item 5, page 28 (before line 32), before the definition of Defence Minister, insert:

  data authorisation warrant means a warrant issued under Division 4C of Part 4-1.

(26) Schedule 1, item 5, page 29 (lines 9 and 10), omit the definition of journalist information warrant.

(28) Schedule 1, item 6E, page 31 (lines 23 to 30), omit paragraph 176(5)(b), substitute:

(b) unless it is revoked earlier, ends at the time specified in the authorisation, which must be a time that is no later than the end of the period specified under section 180N as the period for which the warrant is to remain in force.

(29) Schedule 1, item 6F, page 32 (lines 7 to 13), omit paragraph 176(6)(b), substitute:

(b) either:

  (i) the warrant is revoked under subsection 180N(1); or

  (ii) the Director-General of Security has informed the Minister under section 180P that the Director-General is satisfied that the grounds on which the warrant was issued have ceased to exist.

(30) Schedule 1, item 6G, page 32 (lines 17 to 24), omit paragraph 180(6)(b), substitute:

(b) unless it is revoked earlier, ends at the time specified in the authorisation, which must be a time that the end of the period specified under subsection 180U(3) as the period for which the warrant is to remain in force.

(31) Schedule 1, item 6H, page 33 (lines 1 to 3), omit paragraph 180(7)(b), substitute:

(b) the warrant is revoked under subsection 180W(1).

(32) Schedule 1, item 6L, page 33 (line 23) to page 43 (line 28), omit the item, substitute:

6L After Division 4B of Part 4 -1

  Insert:

Division 4C—Data authorisation warrant

Subdivision A—The requirement for data authorisation warrant

180G The Organisation

     An eligible person (within the meaning of subsection 175(2) or 176(2), as the case requires) must not make an authorisation under Division 3 that would authorise the disclosure of information or documents relating to a particular person unless a data authorisation warrant is in force in relation to that particular person.

180H Enforcement agencies

(1) An authorised officer of an enforcement agency must not make an authorisation under section 178, 178A or 180 that would authorise the disclosure of information or documents relating to a particular person unless a data authorisation warrant is in force, in relation to that particular person, under which authorised officers of the agency may make authorisations under that section.

(2) An authorised officer of the Australian Federal Police must not make an authorisation under Division 4A that would authorise the disclosure of information or documents relating to a particular person unless a data authorisation warrant is in force, in relation to that particular person, under which authorised officers of the agency may make authorisations under that Division.

Subdivision B—Issuing data authorisation warrants to the Organisation

180J Requesting a data authorisation warrant

(1) The Director-General of Security may request the Minister to issue a data authorisation warrant in relation to a particular person.

(2) The request must specify the facts and other grounds on which the Director-General considers it necessary that the warrant be issued.

180K Further information

(1) The Minister may require the Director-General of Security to give to the Minister, within the period specified in the requirement, further information in connection with a request under this Subdivision.

(2) If the Director-General breaches the requirement, the Minister may:

  (a) refuse to consider the request; or

  (b) refuse to take any action, or any further action, in relation to the request.

180L Issuing a data authorisation warrant

(1) After considering a request under section 180J, the Minister must:

  (a) issue a data authorisation warrant that authorises the making of authorisations under Division 3 in relation to the particular person to which the request relates; or

  (b) refuse to issue a data authorisation warrant.

(2) The Minister must not issue a data authorisation warrant unless the Minister is satisfied that:

  (a) the Organisation's functions would extend to the making of authorisations under Division 3 in relation to the particular person; and

  (b) the public interest in issuing the warrant outweighs the public interest in protecting privacy, having regard to:

     (i) the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and

     (ii) the gravity of the matter in relation to which the warrant is sought; and

     (iii) the extent to which that information or those documents would be likely to assist in the performance of the Organisation's functions; and

     (iv) whether reasonable attempts have been made to obtain the information or documents by other means; and

     (v) any submissions made by a Public Interest Advocate under section 180X; and

     (vi) any other matters the Minister considers relevant.

(3) A data authorisation warrant issued under this section may specify conditions or restrictions relating to making authorisations under the authority of the warrant.

180M Issuing a data authorisation warrant in an emergency

(1) The Director-General of Security may issue a data authorisation warrant in relation to a particular person if:

  (a) a request under section 180J has been made for the issue of a data authorisation warrant in relation to the particular person; and

  (b) the Minister has not, to the knowledge of the Director-General, made a decision under section 180L in relation to the request; and

  (c) within the preceding period of 3 months:

     (i) the Minister has not refused to issue a data authorisation warrant in relation to the particular person; and

     (ii) the Director-General has not issued such a data authorisation warrant; and

  (d) the Director-General is satisfied that, security will be, or is likely to be, seriously prejudiced if the access to which the request relates does not begin before a data authorisation warrant can be issued and made available by the Minister; and

  (e) either:

     (i) the issuing of the warrant is authorised under subsection (3); or

     (ii) the Director-General is satisfied that none of the Ministers specified in subsection (4) is readily available or contactable.

(2) The Director-General must not issue a data authorisation warrant unless the Director-General is satisfied as to the matters set out in paragraphs 180L(2)(a) and (b).

Authorisation to issue a warrant under this section

(3) A Minister specified in subsection (4) may, if he or she is satisfied as to the matter set out in paragraphs 180L(2)(a) and (b), orally give an authorisation under this subsection for the Director-General to issue the warrant under this section.

(4) The Ministers who may orally give an authorisation are:

  (a) the Minister; or

  (b) if the Director-General is satisfied that the Minister is not readily available or contactable—any of the following Ministers:

     (i) the Prime Minister;

     (ii) the Defence Minister;

     (iii) the Foreign Affairs Minister.

(5) The authorisation may specify conditions or restrictions relating to issuing the warrant.

(6) The Director-General must ensure that a written record of an authorisation given under subsection (3) is made as soon as practicable (but no later than 48 hours) after the authorisation is given.

Duration of a warrant under this section

(7) A data authorisation warrant under this section must specify the period (not exceeding 48 hours) for which it is to remain in force. The Minister may revoke the warrant at any time before the end of the specified period.

Copies of warrant and other documents

(8) Immediately after issuing a data authorisation warrant under this section, the Director-General must give the Minister:

  (a) a copy of the warrant; and

  (b) a statement of the grounds on which the warrant was issued; and

  (c) either:

     (i) a copy of the record made under subsection (6); or

     (ii) if the Director-General was satisfied as mentioned in subparagraph (1)(e)(ii)—a summary of the facts of the case justifying issuing the warrant.

(9) Within 3 business days after issuing a data authorisation warrant under this section, the Director-General must give the Inspector-General of Intelligence and Security:

  (a) a copy of the warrant; and

  (b) either:

     (i) a copy of the record made under subsection (6); or

     (ii) if the Director-General was satisfied as mentioned in subparagraph (1)(e)(ii)—a summary of the facts of the case justifying issuing the warrant.

(10) Subsection (9) has effect despite subsection 185D(1).

180N Duration of a data authorisation warrant

     A data authorisation warrant issued under section 180L must specify the period (not exceeding 6 months) for which it is to remain in force. The Minister may revoke the warrant at any time before the end of the specified period.

180P Discontinuance of authorisations before expiry of a data authorisation warrant

     If, before a data authorisation warrant issued under this Subdivision ceases to be in force, the Director-General of Security is satisfied that the grounds on which the warrant was issued have ceased to exist, he or she must:

  (a) forthwith inform the Minister accordingly; and

  (b) takes such steps as are necessary to ensure that the making of authorisations under the authority of the warrant is discontinued.

Subdivision C—Issuing data authorisation warrants to enforcement agencies

180Q Enforcement agency may apply for a data authorisation warrant

(1) An enforcement agency may apply to a Part 4-1 issuing authority for a data authorisation warrant in relation to a particular person.

(2) The application must be made on the agency's behalf by:

  (a) if the agency is referred to in subsection 39(2)—a person referred to in that subsection in relation to that agency; or

  (b) otherwise:

     (i) the chief officer of the agency; or

     (ii) an officer of the agency (by whatever name called) who holds, or is acting in, an office or position in the agency nominated under subsection (3).

(3) The chief officer of the agency may, in writing, nominate for the purposes of subparagraph (2)(b)(ii) an office or position in the agency that is involved in the management of the agency.

(4) A nomination under subsection (3) is not a legislative instrument.

(5) The application may be made in writing or in any other form.

Note: The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.

180R Further information

(1) The Part 4-1 issuing authority may require:

  (a) in any case—the chief officer of the agency; or

  (b) if the application is made, on the agency's behalf, by a person other than the chief officer—that other person;

to give to the Part 4-1 issuing authority, within the period and in the form specified in the requirement, further information in connection with the application.

(2) If the chief officer or other person breaches the requirement, the Part 4-1 issuing authority may:

  (a) refuse to consider the application; or

  (b) refuse to take any action, or any further action, in relation to the application.

180S Oaths and affirmations

(1) Information given to the Part 4-1 issuing authority in connection with the application must be verified on oath or affirmation.

(2) For the purposes of this section, the Part 4-1 issuing authority may:

  (a) administer an oath or affirmation; or

  (b) authorise another person to administer an oath or affirmation.

The oath or affirmation may be administered in person, or by telephone, video call, video link or audio link.

180T Issuing a data authorisation warrant

(1) After considering an application under section 180Q, the Part 4-1 issuing authority must:

  (a) issue a data authorisation warrant that authorises the making of authorisations under one or more of sections 178, 178A and 180, or Division 4A, in relation to the particular person to which the application relates; or

  (b) refuse to issue a data authorisation warrant.

(2) The Part 4-1 issuing authority must not issue a data authorisation warrant unless the Part 4-1 issuing authority is satisfied that:

  (a) the warrant is reasonably necessary for whichever of the following purposes are applicable:

     (i) if the warrant would authorise the making of authorisations under section 178—for the enforcement of a serious contravention;

     (ii) if the warrant would authorise the making of authorisations under section 178A—finding a person who the Australian Federal Police, or a Police Force of a State, has been notified is missing;

     (iii) if the warrant would authorise the making of authorisations under section 180—the investigation of an offence of a kind referred to in subsection 180(4);

     (iv) if the warrant would authorise the making of authorisations under Division 4A—the investigation of a serious foreign contravention; and

  (b) the public interest in issuing the warrant outweighs the public interest in protecting privacy, having regard to:

     (i) the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and

     (ii) the gravity of the matter in relation to which the warrant is sought; and

     (iii) the extent to which that information or those documents would be likely to assist in relation to that matter; and

     (iv) whether reasonable attempts have been made to obtain the information or documents by other means; and

     (v) any submissions made by a Public Interest Advocate under section 180X; and

     (vi) any other matters the Part 4-1 issuing authority considers relevant.

180U Form and content of a data authorisation warrant

(1) A data authorisation warrant issued under this Subdivision must be in accordance with the prescribed form and must be signed by the Part 4-1 issuing authority who issues it.

(2) A data authorisation warrant issued under this Subdivision may specify conditions or restrictions relating to making authorisations under the authority of the warrant.

(3) A data authorisation warrant issued under this Subdivision must specify, as the period for which it is to be in force, a period of up to 90 days.

(4) A Part 4-1 issuing authority must not vary a data authorisation warrant issued under this Subdivision by extending the period for which it is to be in force.

(5) Neither of subsections (3) and (4) prevents the issue of a further warrant under this Act in relation to a person, in relation to which a warrant under this Act has, or warrants under this Act have, previously been issued.

180V Entry into force of a data authorisation warrant

     A data authorisation warrant issued under this Subdivision comes into force when it is issued.

180W Revocation of a data authorisation warrant by chief officer

(1) The chief officer of an enforcement agency:

  (a) may, at any time, by signed writing, revoke a data authorisation warrant issued under this Subdivision to the agency; and

  (b) must do so, if he or she is satisfied that the grounds on which the warrant was issued to the agency have ceased to exist.

(2) The chief officer of an enforcement agency may delegate his or her power under paragraph (1)(a) to a certifying officer of the agency.

Subdivision D—Miscellaneous

180X Public Interest Advocates

(1) The Prime Minister shall declare, in writing, one or more persons to be Public Interest Advocates.

(2) A Public Interest Advocate may make submissions:

  (a) to the Minister about matters relevant to:

     (i) a decision to issue, or refuse to issue, a data authorisation warrant under section 180L; or

     (ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant; or

  (b) to a Part 4-1 issuing authority about matters relevant to:

     (i) a decision to issue, or refuse to issue, the warrant under section 180T; or

     (ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant; or

(3) The regulations may prescribe matters relating to the performance of the role of a Public Interest Advocate.

(4) A declaration under subsection (1) is not a legislative instrument.

(33) Schedule 1, item 6V, page 46 (line 11) to page 47 (line 29), omit the item, substitute:

6V At the end of Division 6 of Part 4 -1

  Add:

182A Disclosure/use offences: data authorisation warrants

(1) A person commits an offence if:

  (a) the person discloses or uses information; and

  (b) the information is about any of the following:

     (i) whether a data authorisation warrant (other than such a warrant that relates only to section 178A) has been, or is being, requested or applied for;

     (ii) the making of such a warrant;

     (iii) the existence or non-existence of such a warrant;

     (iv) the revocation of such a warrant.

Penalty:   Imprisonment for 2 years.

(2) A person commits an offence if:

  (a) the person discloses or uses a document; and

  (b) the document consists (wholly or partly) of any of the following:

     (i) a data authorisation warrant (other than such a warrant that relates only to section 178A);

     (ii) the revocation of such a warrant.

Penalty:   Imprisonment for 2 years.

182B Permitted disclosure or use: data authorisation warrants

     Paragraphs 182A(1)(a) and (2)(a) do not apply to a disclosure or use of information or a document if:

  (a) the disclosure or use is for the purposes of the warrant, revocation or notification concerned; or

  (b) the disclosure or use is reasonably necessary:

     (i) to enable the making of submissions under section 180X; or

     (ii) to enable a person to comply with his or her obligations under section 185D or 185E; or

     (iii) to enable the Organisation to perform its functions; or

     (iv) to enforce the criminal law; or

     (v) to enforce a law imposing a pecuniary penalty; or

     (vi) to protect the public revenue; or

  (c) in the case of a disclosure—the disclosure is:

     (i) to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986; or

     (ii) by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act; or

  (d) in the case of a use—the use is by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986.

Note: A defendant bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code).

(34) Schedule 1, item 6X, page 48 (line 1) to page 49 (line 36), omit section 185D, substitute:

185D Notification etc. of authorisations

The Organisation

(1) If:

  (a) a data authorisation warrant is issued under Subdivision B of Division 4C of Part 4-1; and

  (b) the warrant relates to a person who:

     (i) is a journalist; or

     (ii) is an employer of a journalist;

then:

  (b) the Director-General of Security must, as soon as practicable, give a copy of the warrant to the Inspector-General of Intelligence and Security; and

  (c) the Minister must, as soon as practicable, cause the Parliamentary Joint Committee on Intelligence and Security to be notified of the issuing of the warrant.

(2) If an authorisation under Division 3 of Part 4-1 is made under the authority of the warrant, the Director-General of Security must, as soon as practicable after the expiry of the warrant, give a copy of the authorisation to the Inspector-General of Intelligence and Security.

(3) If:

  (a) the Inspector-General gives to the Minister a report under section 22 or 25A of the Inspector-General of Intelligence and Security Act 1986; and

  (b) the report relates (wholly or partly) to one or both of the following:

     (i) a data authorisation warrant issued to the Organisation in relation to a person who is a journalist, or an employer of a journalist;

     (ii) one or more authorisations referred to in subsection (2) of this section;

the Minister must, as soon as practicable, cause a copy of the report to be given to the Parliamentary Joint Committee on Intelligence and Security.

(4) The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Inspector-General on:

  (a) a data authorisation warrant; or

  (b) an authorisation or authorisations;

to which a report referred to in paragraph (3)(b) of this section relates.

Enforcement agencies

(5) If:

  (a) a data authorisation warrant is issued to an enforcement agency; and

  (b) the warrant relates to a person who:

     (i) is a journalist; or

     (ii) is an employer of a journalist;

then:

  (a) if the agency was the Australian Federal Police:

     (i) the Commissioner of Police must, as soon as practicable, give copies of the warrant to the Minister and the Ombudsman; and

     (ii) the Minister must, as soon as practicable after receiving a copy, cause the Parliamentary Joint Committee on Intelligence and Security to be notified of the issuing of the warrant; and

(b) otherwise—the chief officer of the agency must, as soon as practicable, give a copy of the warrant to the Ombudsman.

(6) If an authorisation under Division 4 of Part 4-1 is made under the authority of the warrant, the chief officer of the agency must, as soon as practicable after the expiry of the warrant, give a copy of the authorisation to the Ombudsman.

(7) If:

  (a) the Ombudsman gives to the Minister a report under section 186J of this Act; and

  (b) the report relates (wholly or partly) to one or both of the following:

     (i) a data authorisation warrant issued to the Australian Federal Police in relation to a person who is a journalist, or an employer of a journalist;

     (ii) one or more authorisations, referred to in subsection (6) of this section, that were made by one or more authorised officers of the Australian Federal Police;

the Minister must, as soon as practicable, cause a copy of the report to be given to the Parliamentary Joint Committee on Intelligence and Security.

(8) The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Ombudsman on:

  (a) a data authorisation warrant; or

  (b) an authorisation or authorisations;

to which a report referred to in paragraph (7)(b) of this section relates.

(35) Schedule 1, item 6Y, page 51 (lines 16 to 21), omit paragraphs 186(1)(i) and (j), substitute: