Office of National Intelligence (Consequential and Transitional Provisions) Act 2018

The Office of National Intelligence (Consequential and Transitional Provisions) Act 2018 (Cth) is a facilitating statute designed to integrate the Office of National Intelligence (ONI) into the broader Australian legislative and administrative landscape. It serves as the mechanical bridge between the historical intelligence architecture governed by the Office of National Assessments Act 1977 (Cth) and the modernized framework established under the Office of National Intelligence Act 2018 (Cth). Mechanically, the Act repeals the legacy Office of National Assessments Act 1977 (Cth) in its entirety and systematically replaces references to the Office of National Assessments (ONA) and its Director-General with references to ONI and the Director-General of National Intelligence across a wide spectrum of Commonwealth laws.

Beyond simple nomenclature updates, the Act establishes the transitional arrangements required to ensure operational continuity within the Australian intelligence apparatus during the structural pivot. It preserves the employment tenure of the incumbent Director-General of ONA, automatically transitioning that individual into the newly created role of Director-General of National Intelligence for their remaining term under Schedule 4, Item 2. It also manages outstanding administrative items, transferring uncompleted requests for reports and assessments to the new statutory regime, and preserving the membership of the National Assessments Board.

The Act also amends a variety of oversight, secrecy, and operational statutes to equip ONI with its mandated leadership and coordination functions. These amendments touch upon the Inspector-General of Intelligence and Security Act 1986 (Cth), the Intelligence Services Act 2001 (Cth), the (Cth), and the (Cth), ensuring that while ONI gains expanded coordinating authorities, it remains bound by adapted transparency and compliance mechanisms. The commencement profile set out in section 2 coordinates these changes to occur in lockstep with the activation of the primary ONI legislation, preventing any regulatory gap during the transition.

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Commonwealth Coat of Arms of Australia

Office of National Intelligence (Consequential and Transitional Provisions) Act 2018

No. 156, 2018

An Act to deal with consequential and transitional matters in connection with the Office of National Intelligence Act 2018, and for related purposes

Contents

1 Short title

2 Commencement

3 Schedules

Schedule 1—Repeal of the Office of National Assessments Act 1977

Office of National Assessments Act 1977

Schedule 2—Consequential amendments

Acts Interpretation Act 1901

Age Discrimination Act 2004

Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006

Archives Act 1983

Australian Border Force Act 2015

Australian Crime Commission Act 2002

Australian Human Rights Commission Act 1986

Australian Security Intelligence Organisation Act 1979

Crimes Act 1914

Criminal Code Act 1995

Defence Act 1903

Freedom of Information Act 1982

Independent National Security Legislation Monitor Act 2010

Inspector‑General of Intelligence and Security Act 1986

Intelligence Services Act 2001

Privacy Act 1988

Public Interest Disclosure Act 2013

Remuneration and Allowances Act 1990

Schedule 3—Amendments contingent on the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018

Criminal Code Act 1995

Schedule 4—Transitional provisions

Part 1—Definitions

Part 2—Director‑General’s continued appointment

Part 3—References to, and things done by or in relation to, ONA or the Director‑General

Part 4—Miscellaneous

Commonwealth Coat of Arms of Australia

Office of National Intelligence (Consequential and Transitional Provisions) Act 2018

No. 156, 2018

An Act to deal with consequential and transitional matters in connection with the Office of National Intelligence Act 2018, and for related purposes

[Assented to 10 December 2018]

The Parliament of Australia enacts:

1 Short title

This Act is the Office of National Intelligence (Consequential and Transitional Provisions) Act 2018.

2 Commencement

(1) Each provision of this Act 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.

Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 10 December 2018
1. Schedules 1 and 2 At the same time as section 3 of the Office of National Intelligence Act 2018 commences.However, the provisions do not commence at all if that section does not commence. 20 December 2018
1. Schedule 3 The later of:(a) the commencement of section 3 of the Office of National Intelligence Act 2018; and(b) immediately after the commencement of Schedule 2 to the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018.However, the provisions do not commence at all unless both of the events mentioned in paragraphs (a) and (b) occur. 29 December 2018(paragraph (b) applies)
1. Schedule 4 Immediately after the commencement of section 3 of the Office of National Intelligence Act 2018. 20 December 2018

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Schedules

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, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Repeal of the Office of National Assessments Act 1977

Office of National Assessments Act 1977

1 The whole of the Act

Repeal the Act.

Schedule 2—Consequential amendments

Acts Interpretation Act 1901

1 After subsection 34C(7)

Insert:

(7A) This section applies to the Australian Security Intelligence Organisation, the Australian Signals Directorate and the Office of National Intelligence in the following way:

(a) subsection (3) does not apply;

(b) if an extension is granted under subsection (5), then for the purpose of subsection (6), paragraph (6)(c) is to be disregarded.

2 Subsection 34C(8)

Repeal the subsection, substitute:

(8) This section does not apply in relation to the Australian Secret Intelligence Service.

Age Discrimination Act 2004

3 Schedule 1 (table item 35)

Repeal the item.

Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006

4 Section 5 (paragraph (ge) of the definition of designated agency)

Repeal the paragraph, substitute:

(ge) ONI; or

5 Section 5

Insert:

Director‑General of National Intelligence means the Director‑General of National Intelligence holding office under the Office of National Intelligence Act 2018.

6 Section 5 (definition of ONA)

Repeal the definition.

7 Section 5

Insert:

ONI means the Office of National Intelligence.

8 Subsection 128(13C) (heading)

Repeal the heading, substitute:

ONI officials

9 Subsection 128(13C)

Omit “ONA” (wherever occurring), substitute “ONI”.

10 Subparagraph 128(19)(a)(iv)

Omit “ONA”, substitute “ONI”.

11 Section 133C (heading)

Omit “Director‑General of ONA”, substitute “Director‑General of National Intelligence”.

12 Subsection 133C(1)

Omit “Director‑General of ONA”, substitute “Director‑General of National Intelligence”.

13 Subsection 133C(2)

Repeal the subsection (not including the note), substitute:

(2) The Director‑General of National Intelligence may, in writing, authorise an official of ONI to access the AUSTRAC information and communicate it to the foreign intelligence agency on the Director‑General’s behalf.

14 Saving of authorisations

An authorisation by the AUSTRAC CEO under subsection 126(1) of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 that:

(a) relates to a:

(i) specified official of the Office of National Assessments or ONA; or

(ii) a specified class of officials of the Office of National Assessments or ONA; and

(b) is in force immediately before the day this item commences;

continues in force on and after that day as if it were an authorisation by the AUSTRAC CEO under that subsection in relation to the specified official, or specified class of officials, of the Office of National Intelligence or ONI.

Archives Act 1983

15 Paragraph 29(8)(e)

Repeal the paragraph, substitute:

(e) the Office of National Intelligence;

Australian Border Force Act 2015

16 Subsection 4(1) (paragraph (f) of the definition of intelligence agency)

Repeal the paragraph, substitute:

(f) the Office of National Intelligence; or

17 After paragraph 46(l)

Insert:

(la) a purpose relating to the performance of functions under section 7 of the Office of National Intelligence Act 2018;

Australian Crime Commission Act 2002

18 Subsection 4(1)

Insert:

ONI means the Office of National Intelligence.

19 Before subsection 59AA(3)

Insert:

ONI

(2B) The CEO may disclose ACC information to ONI if:

(a) the CEO considers it appropriate to do so; and

(b) the information is relevant to the performance of ONI’s functions under section 7 of the Office of National Intelligence Act 2018; and

(c) disclosing the ACC information would not be contrary to a law of the Commonwealth, a State or a Territory that would otherwise apply.

Australian Human Rights Commission Act 1986

20 Subsection 11(4)

Omit “Office of National Assessments”, substitute “Office of National Intelligence”.

21 Subsection 21(3)

Omit “Office of National Assessments”, substitute “Office of National Intelligence”.

Australian Security Intelligence Organisation Act 1979

22 Section 4 (paragraph (b) of the definition of intelligence or security agency)

Repeal the paragraph, substitute:

(b) the Office of National Intelligence;

23 Section 4

Insert:

ONI means the Office of National Intelligence.

24 After paragraph 19A(1)(c)

Insert:

(ca) ONI;

25 Subsection 35(1) (paragraph (c) of the definition of agency head)

Repeal the paragraph, substitute:

Crimes Act 1914

26 Section 15K (subparagraph (a)(ii) of the definition of chief officer)

Omit “and”.

27 Section 15K (at the end of paragraph (a) of the definition of chief officer)

Add:

(iii) in relation to the Office of National Intelligence—the Director‑General of National Intelligence; and

28 Section 15K (at the end of paragraph (a) of the definition of intelligence agency)

Add “or”.

29 Section 15K (at the end of the definition of intelligence agency)

Add:

; or (c) the Office of National Intelligence.

30 Section 15K (at the end of paragraph (b) of the definition of intelligence officer)

Add “and”.

31 Section 15K (after paragraph (b) of the definition of intelligence officer)

Insert:

32 After subsection 15KA(3)

Insert:

(3A) An application may only be made under subsection (3) by an intelligence officer of the Office of National Intelligence (ONI) for the purpose of ONI carrying out its function under paragraph 7(1)(g) of the Office of National Intelligence Act 2018.

33 At the end of subsection 15KB(4)

Add:

; or (h) in the case of the Office of National Intelligence—a person who holds the position, or performs the duties, of an APS Executive Officer Level 1 position, or an equivalent or higher position, in the Office of National Intelligence.

34 Paragraph 15KG(b)

After “agency”, insert “(other than the Office of National Intelligence)”.

35 Subsection 15KH(2)

After “chief officer”, insert “of a law enforcement agency or an intelligence agency (other than the Office of National Intelligence)”.

36 Subsection 15KI(2)

Omit “chief officer of a law enforcement agency or an intelligence agency who grants the authority”, substitute “person specified in subsection (2A)”.

37 After subsection 15KI(2)

Insert:

(2A) For the purposes of subsection (2), the person who may make the request is:

(a) the chief officer of a law enforcement agency who granted the authority; or

(b) the chief officer of an intelligence agency (other than the Office of National Intelligence) who granted the authority; or

(c) if the chief officer of the Office of National Intelligence granted the authority—the chief officer of another intelligence agency.

38 Subsection 15KX(2)

Omit “chief officer of a law enforcement agency or an intelligence agency who grants the authority”, substitute “person specified in subsection (2A)”.

39 Subsection 15KX(2) (note 1)

Repeal the note.

40 Subsection 15KX(2) (note 2)

Omit “Note 2”, substitute “Note”.

41 After subsection 15KX(2)

Insert:

(2A) For the purposes of subsection (2), the person who may make the request is:

(a) the chief officer of a law enforcement agency who granted the authority; or

(b) the chief officer of an intelligence agency (other than the Office of National Intelligence) who granted the authority; or

(c) if the chief officer of the Office of National Intelligence granted the authority—the chief officer of another intelligence agency.

Note: The chief officer may delegate functions under this section—see section 15LH.

42 Paragraph 15KY(3)(a)

After “agency”, insert “(other than the Office of National Intelligence)”.

43 Subsection 15LH(3) (after paragraph (g) of the definition of senior officer)

Insert:

(ga) in relation to the Office of National Intelligence—an SES employee in the Office of National Intelligence, or a person occupying an equivalent or higher position in the Office of National Intelligence; and

44 Section 85ZL (paragraph (c) of the definition of intelligence or security agency)

Repeal the paragraph, substitute:

Criminal Code Act 1995

45 Section 473.1 of the Criminal Code (paragraph (c) of the definition of intelligence or security officer)

Repeal the paragraph, substitute:

Defence Act 1903

46 Subsection 71A(1) (paragraph (c) of the definition of intelligence or security agency)

Repeal the paragraph, substitute:

Freedom of Information Act 1982

47 Subparagraph 7(2A)(a)(iv)

Repeal the subparagraph, substitute:

(iv) the Office of National Intelligence;

48 Division 1 of Part I of Schedule 2 (table item dealing with Office of National Assessments)

Repeal the item, substitute:

Office of National Intelligence

Independent National Security Legislation Monitor Act 2010

49 Section 4 (paragraph (j) of the definition of head)

Repeal the paragraph, substitute:

(j) in relation to the Office of National Intelligence—the Director‑General of National Intelligence; or

50 Section 4 (paragraph (j) of the definition of law enforcement or security agency)

Repeal the paragraph, substitute:

(j) the Office of National Intelligence;

Inspector‑General of Intelligence and Security Act 1986

51 Subsection 3(1) (paragraph (f) of the definition of head)

Repeal the paragraph, substitute:

(f) in relation to ONI—the Director‑General of National Intelligence; or

52 Subsection 3(1) (definition of intelligence agency)

Omit “ONA”, substitute “ONI”.

53 Subsection 3(1) (definition of ONA)

Repeal the definition.

54 Subsection 3(1)

Insert:

ONI means the Office of National Intelligence.

55 Subsection 8(3)

Omit “ONA” (first occurring), substitute “ONI”.

56 After subparagraph 8(3)(a)(i)

Insert:

(ia) in the case of ONI—the compliance by ONI with directions given to ONI by the responsible Minister; or

57 Paragraph 8(3)(c)

Omit “ONA”, substitute “ONI”.

58 Subsection 8(5)

Omit “ONA”, substitute “ONI”.

59 Paragraph 8A(4)(b)

Omit “ONA”, substitute “ONI”.

60 Paragraph 15(3)(a)

Omit “ONA” (wherever occurring), substitute “ONI”.

61 Paragraph 21(1B)(a)

Omit “ONA” (wherever occurring), substitute “ONI”.

62 Paragraph 32A(1)(c)

Repeal the paragraph, substitute:

(c) in the case of ONI—a report given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013;

63 Paragraph 32A(5)(a)

Omit “ONA”, substitute “ONI”.

64 Subsection 32B(1)

Omit “or ASD”, substitute “, ASD or ONI”.

65 After subsection 35(2B)

Insert:

(2C) The Inspector‑General must include in a report referred to in subsection (2) the Inspector‑General’s comments on the extent of compliance by ONI, during the period to which the report relates, with privacy rules made under section 53 of the Office of National Intelligence Act 2018.

Note: The rules referred to in subsection (2C) regulate the communication and retention of identifiable information (within the meaning of the Office of National Intelligence Act 2018).

Intelligence Services Act 2001

66 Section 3

Insert:

Director‑General of National Intelligence means the Director‑General of National Intelligence holding office under the Office of National Intelligence Act 2018.

67 Section 3 (definition of ONA)

Repeal the definition.

68 Section 3

Insert:

ONI means the Office of National Intelligence.

69 Section 3 (paragraph (c) of the definition of responsible Minister)

Repeal the paragraph, substitute:

70 After paragraph 13A(1)(b)

Insert:

(ba) ONI;

71 Paragraphs 29(1)(a) and (b)

Omit “ONA” (wherever occurring), substitute “ONI”.

72 Subsection 29(2)

Omit “ONA”, substitute “ONI”.

73 Before paragraph 29(3)(a)

Insert:

(aa) reviewing anything done by ONI in its leadership of the national intelligence community, to the extent that it involves prioritising national intelligence priorities and requirements, and allocating resources accordingly, in relation to:

(i) an intelligence agency (as defined by subsection 4(1) of the Office of National Intelligence Act 2018); or

(ii) an agency with an intelligence role or function (as defined by subsection 4(1) of that Act); or

(ab) reviewing anything done by ONI in its leadership of the national intelligence community, to the extent that it relates to:

(i) an intelligence agency (as defined by subsection 4(1) of the Office of National Intelligence Act 2018) and a matter that would otherwise be covered by any of the following paragraphs of this subsection; or

(ii) an agency with an intelligence role or function (as defined by subsection 4(1) of that Act) and a matter that would otherwise be covered by any of the following paragraphs of this subsection if those paragraphs applied to the agency; or

74 Paragraphs 29(3)(a), (b) and (e)

Omit “ONA”, substitute “ONI”.

75 After paragraph 29(3)(f)

Insert:

(fa) reviewing the privacy rules made under section 53 of the Office of National Intelligence Act 2018; or

76 Paragraphs 29(3)(g) and (h)

Omit “ONA”, substitute “ONI”.

77 Paragraph 29(3)(i)

Repeal the paragraph, substitute:

(i) reviewing anything done by ONI in carrying out the evaluation functions mentioned in section 9 of the Office of National Intelligence Act 2018; or

78 Paragraph 30(bb)

Repeal the paragraph, substitute:

(bb) the Director‑General of National Intelligence;

79 Sections 40A, 40J and 40K

Repeal the sections.

80 Subsection 41B(3) (definition of information offence provision)

Repeal the definition, substitute:

information offence provision means subsection 39(1), 39A(1), 40(1), 40B(1), 40C(1), 40D(1), 40E(1), 40F(1), 40G(1), 40H(1), 40L(1) or 40M(1).

81 Clause 1A of Schedule 1 (definition of agency)

Omit “ONA”, substitute “ONI”.

82 Clause 1A of Schedule 1 (paragraph (d) of the definition of agency head)

Repeal the paragraph, substitute:

(d) the Director‑General of National Intelligence; or

83 Clause 1A of Schedule 1 (paragraph (a) of the definition of operationally sensitive information)

Omit “ONA”, substitute “ONI”.

84 Paragraph 20(2)(d) of Schedule 1

Omit “ONA”, substitute “ONI”.

Privacy Act 1988

85 Subsection 6(1) (paragraph (c) of the definition of intelligence agency)

Repeal the paragraph, substitute:

86 After subsection 7(1A)

Insert:

(1B) Despite subsections (1) and (2), a reference in this Act (other than section 8) to an act or to a practice does not include a reference to the act or practice by an agency with an intelligence role or function (within the meaning of the Office of National Intelligence Act 2018) so far as it involves the disclosure of personal information to the Office of National Intelligence.

87 Subsection 80P(7) (paragraph (c) of the definition of designated secrecy provision)

Omit “40A to 40M”, substitute “40B to 40H, 40L, 40M”.

88 Subsection 80P(7) (after paragraph (c) of the definition of designated secrecy provision)

Insert:

(ca) sections 42 to 44 of the Office of National Intelligence Act 2018;

Public Interest Disclosure Act 2013

89 Section 8 (paragraph (f) of the definition of intelligence agency)

Repeal the paragraph, substitute:

(f) the Office of National Intelligence.

90 Paragraph 72(1)(j)

Repeal the paragraph, substitute:

(j) the Office of National Intelligence; or

Remuneration and Allowances Act 1990

91 Part 3 of Schedule 2 (table item dealing with Director‑General, Office of National Assessments)

Omit “Director‑General, Office of National Assessments”, substitute “Director‑General of National Intelligence”.

Schedule 3—Amendments contingent on the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018

Criminal Code Act 1995

1 Subsection 121.1(1) of the Criminal Code (paragraph (f) of the definition of domestic intelligence agency)

Repeal the paragraph, substitute:

(f) the Office of National Intelligence.

Schedule 4—Transitional provisions

Part 1—Definitions

1 Definitions

(1) In this Schedule:

commencement means the day that this Schedule commences.

Director‑General of ONA means the Director‑General of ONA holding office under section 10 of the old law.

new law means the Office of National Intelligence Act 2018.

old law means the Office of National Assessments Act 1977, as in force immediately before commencement.

ONA means the Office of National Assessments established by section 4 of the old law.

(2) An expression used in this Schedule that is also used in the new law has the same meaning in this Schedule as it has in the new law.

Part 2—Director‑General’s continued appointment

2 Director‑General of ONA continues as Director‑General of National Intelligence

The person who held office as the Director‑General of ONA immediately before commencement is taken to have been appointed as the Director‑General of National Intelligence by the Governor‑General under section 24 of the new law:

(a) for the balance of the person’s term of appointment that remained immediately before commencement; and

(b) in relation to remuneration and allowances—on the same terms and conditions as applied to the person before commencement; and

(c) in relation to any other term and condition of appointment—on the terms and conditions provided for by Division 3 of Part 3 of the new law.

Part 3—References to, and things done by or in relation to, ONA or the Director‑General

3 Things done by, or in relation to, ONA

(1) If a thing was done by, or in relation to, ONA, then the thing is taken, for the purposes of the operation of any law on and after commencement, to have been done by, or in relation to, ONI.

(2) The Prime Minister may, in writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, ONA.

(3) To avoid doubt, doing a thing includes making an instrument.

(4) A determination under subitem (2) is not a legislative instrument.

4 Things done by, or in relation to, the Director‑General of ONA

(1) If a thing was done by, or in relation to, the Director‑General of ONA, then the thing is taken, for the purposes of the operation of any law on and after commencement, to have been done by, or in relation to, the Director‑General of National Intelligence.

(2) The Prime Minister may, in writing, determine that subitem (1) does not apply in relation to a specified thing done by, or in relation to, the Director‑General of ONA.

(3) To avoid doubt, doing a thing includes making an instrument.

(4) A determination under subitem (2) is not a legislative instrument.

Part 4—Miscellaneous

5 Requests for reports or assessments

If, before commencement:

(a) a request had been made under subsection 5(2) of the old law for a report or an assessment; and

(b) the report had not been prepared or the assessment made;

then, the request is treated as if it had been made under section 22 of the new law.

Note: The Director‑General of National Intelligence must endeavour to respond to requests under section 22 of the new law: see paragraph 16(1)(c) of the new law.

6 National Assessments Board

Membership of the Board

(1) If, immediately before commencement, a person was a member of the National Assessments Board, then the person continues to be a member of the Board on and after commencement until the person’s membership of the Board ceases due to a variation in the membership of the Board by the Director‑General of National Intelligence under section 48 of the new law.

Board’s consideration of national assessments

(2) If:

(a) an assessment was prepared before commencement; and

(b) at commencement, the National Assessments Board had not completed its consideration of the assessment;

then, despite the repeal of the Office of National Assessments Act 1977, the Board must complete its consideration of the assessment, and the Director‑General must deal with the assessment, in accordance with the old law.

7 Continuation of existing inquiries under the Inspector‑General of Intelligence and Security Act 1986

If the Inspector‑General of Intelligence and Security had begun, but not completed, an inquiry in relation to ONA under section 8 of the Inspector‑General of Intelligence and Security Act 1986 before commencement, then, for the purposes of completing that inquiry:

(a) the Inspector‑General of Intelligence and Security Act 1986, as in force on the day that the inquiry began, continues in force despite the amendments made by this Act and the enactment of the new law; and

(b) any other Act amended by this Act, as in force on the day that the inquiry began, continues in force despite the amendments made by this Act.

Note: This means, for example, that a person who was given a notice under section 18 of the Inspector‑General of Intelligence and Security Act 1986 before commencement in relation to an inquiry is still required to comply with the notice after that date if the person has not done so.

8 Transitional rules

(1) The Prime Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to:

(a) the amendments or repeals made by this Act; or

(b) the enactment of this Act or the new law.

(2) To avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

(e) directly amend the text of this Act.

(3) This Act (other than subitem (2)) does not limit the rules that may be made for the purposes of subitem (1).

[Minister’s second reading speech made in—

House of Representatives on 28 June 2018

Senate on 29 November 2018]

(132/18)

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Office of National Intelligence (Consequential and Transitional Provisions) Act 2018

No. 156, 2018

An Act to deal with consequential and transitional matters in connection with the Office of National Intelligence Act 2018, and for related purposes

Contents

1 Short title

2 Commencement

3 Schedules

Schedule 1—Repeal of the Office of National Assessments Act 1977

Office of National Assessments Act 1977

Schedule 2—Consequential amendments

Acts Interpretation Act 1901

Age Discrimination Act 2004

Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006

Archives Act 1983

Australian Border Force Act 2015

Australian Crime Commission Act 2002

Australian Human Rights Commission Act 1986

Australian Security Intelligence Organisation Act 1979

Crimes Act 1914

Criminal Code Act 1995

Defence Act 1903

Freedom of Information Act 1982

Independent National Security Legislation Monitor Act 2010

Inspector‑General of Intelligence and Security Act 1986

Intelligence Services Act 2001

Privacy Act 1988

Public Interest Disclosure Act 2013

Remuneration and Allowances Act 1990

Schedule 3—Amendments contingent on the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018

Criminal Code Act 1995

Schedule 4—Transitional provisions

Part 1—Definitions

Part 2—Director‑General’s continued appointment

Part 3—References to, and things done by or in relation to, ONA or the Director‑General

Part 4—Miscellaneous

To understand the operation of this Act, one must grasp several foundational concepts that govern the transition from the legacy assessment-focused model to an integrated national intelligence leadership model.

The New Law versus the Old Law

The Act distinguishes clearly between the "old law", defined under Schedule 4, Item 1 as the Office of National Assessments Act 1977 (Cth) as in force immediately before the commencement day, and the "new law", defined as the Office of National Intelligence Act 2018 (Cth). This distinction underpins the transitional mechanics, dictating which statutory powers govern past actions and which apply to forward-looking operations.

Statutory Substitution and the "Things Done" Principle

A core concept of the Act is the legal fiction of continuous activity established in Schedule 4, Part 3. Under Item 3 and Item 4, any "thing done" by or in relation to ONA or its Director-General before the commencement day is legally deemed to have been done by or in relation to ONI or the Director-General of National Intelligence. This includes the making of instruments, delegations, authorizations, and operational decisions. It prevents the need to re-make or re-authorize administrative instruments, ensuring that existing inter-agency arrangements and protocols remain valid on and after the transition date.

Designated Agency Status and Information Flow

Under Schedule 2, Items 4 to 13, the Act redefines ONI as a "designated agency" under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). This concept governs the lawful flow of financial intelligence. It permits ONI officials, when authorized in writing by the Director-General of National Intelligence, to access and communicate AUSTRAC information to foreign intelligence agencies.

Modified Operational and Oversight Frameworks

The Act introduces concepts of calibrated operational capacity. For instance, in amending the Crimes Act 1914 (Cth), the Act introduces ONI into the "controlled operations" and "assumed identities" regimes, but establishes a highly constrained concept of ONI's operational role compared to collection-focused agencies like ASIO. Under Schedule 2, Item 32, ONI officers may only apply for controlled operations authorizations for the specific purpose of carrying out ONI's open-source analysis functions under paragraph 7(1)(g) of the Office of National Intelligence Act 2018 (Cth).

The Act directly impacts a diverse cohort of public sector agencies, oversight bodies, financial institutions, and legal practitioners who interact with the Australian National Intelligence Community (NIC).

The Office of National Intelligence and its Leadership

The most direct effect is on the leadership and staff of the newly established ONI. The Director-General of ONA is transitioned into the role of Director-General of National Intelligence under Schedule 4, Item 2, maintaining their existing remuneration, allowances, and term of appointment. The broader staff of ONA are transitioned into ONI, where they become subject to new statutory duties, secrecy obligations, and modified employment frameworks.

National Intelligence Community (NIC) Partners

The Act alters the statutory environment for other NIC agencies, including the Australian Security Intelligence Organisation (ASIO), the Australian Secret Intelligence Service (ASIS), and the Australian Signals Directorate (ASD). These agencies are affected by the amendments made to the Intelligence Services Act 2001 (Cth). Specifically, under Schedule 2, Item 73, ONI is granted statutory authority to lead the NIC, prioritize national intelligence requirements, and allocate resources accordingly. Consequently, the operational plans and resource allocations of these partner agencies are subject to ONI's overarching leadership and coordination mandate.

Oversight and Integrity Agencies

The Inspector-General of Intelligence and Security (IGIS) and the Parliamentary Joint Committee on Intelligence and Security (PJCIS) experience a significant expansion and reconfiguration of their jurisdictions. The IGIS is tasked under Schedule 2, Item 65 with monitoring ONI's compliance with the newly instituted privacy rules made under section 53 of the Office of National Intelligence Act 2018 (Cth). Concurrently, the PJCIS is empowered under Schedule 2, Item 73 to review ONI's leadership of the NIC, its resource allocation decisions, and its evaluation functions.

Financial Sector and Law Enforcement Bodies

AUSTRAC and the Australian Crime Commission (now operating as the Australian Criminal Intelligence Commission, or ACIC) are affected by streamlined information-sharing gateways. The Chief Executive Officer of the ACC is empowered under Schedule 2, Item 19 to disclose ACC information to ONI when relevant to ONI's statutory functions. Similarly, financial institutions and compliance professionals are affected indirectly by the transfer of ONA's designated agency status to ONI under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), which ensures that the flow of suspicious matter reports and financial transaction data to intelligence analysts continues without interruption.

The Act establishes a complex web of statutory duties, limitations, and corresponding rights designed to balance the expanded coordination power of ONI with robust accountability mechanisms.

The Duty to Comply with Privacy Rules

A central obligation transitioned and formalized by the Act relates to the protection of personal information. Schedule 2, Item 65 inserts subsection 35(2C) into the Inspector-General of Intelligence and Security Act 1986 (Cth), creating a statutory duty for the IGIS to monitor and comment on the extent of ONI's compliance with privacy rules made under section 53 of the Office of National Intelligence Act 2018 (Cth). These rules govern the communication and retention of identifiable information, placing a firm operational constraint on ONI's collection and analytical programs.

Modified Annual Reporting Duties

The Act alters the reporting obligations of intelligence agencies under the Acts Interpretation Act 1901 (Cth). Schedule 2, Item 1 inserts subsection 34C(7A), which modifies the application of standard periodic reporting requirements to ASIO, ASD, and ONI. Specifically, the standard rules regarding extensions of time and parliamentary tabling are modified, and paragraph 6(c) of section 34C is disregarded if an extension is granted. Conversely, under Schedule 2, Item 2, ASIS is completely excluded from the operation of section 34C, reflecting a different legislative approach to the reporting structures of foreign collection agencies versus domestic analytical and coordination bodies.

Oversights and Inquiry Rights

The Act preserves and clarifies the rights of oversight bodies to investigate past and present administrative conduct. Under Schedule 4, Item 7, if the IGIS had commenced but not completed an inquiry in relation to ONA before the transition, the IGIS retains the right to complete that inquiry. For the purposes of completing such inquiries, the Inspector-General of Intelligence and Security Act 1986 (Cth) and any other amended Acts, as in force immediately before the transition, continue to apply. This ensures that historical compliance failures cannot be shielded from scrutiny by the formal dissolution of ONA.

Information Access and Communication Rights

The Director-General of National Intelligence is granted the right under Schedule 2, Item 13 to authorize ONI officials in writing to access and communicate AUSTRAC information to foreign intelligence agencies. This right is balanced by a saving provision in Item 14, which preserves existing AUSTRAC Chief Executive Officer authorizations relating to ONA officials, translating them automatically into authorizations for ONI officials to maintain continuity of access.

The Act restructures the secrecy and enforcement frameworks governing the unauthorized disclosure of sensitive information, shifting ONA's historical regulatory model into the unified regime established under the Office of National Intelligence Act 2018 (Cth).

Repeal of Legacy Secrecy Provisions

Mechanically, the Act repeals several key secrecy provisions within the Intelligence Services Act 2001 (Cth). Schedule 2, Item 79 repeals sections 40A, 40J, and 40K of that Act. These repealed sections previously set out the specific criminal offences and penalty structures for the unauthorized communication of ONA information, the unauthorized transition of ONA records, and related security breaches. By repealing these sections, the Act shifts the enforcement of information security for ONI to the primary secrecy provisions contained in sections 42 to 44 of the Office of National Intelligence Act 2018 (Cth).

Interaction with the Secrecy Framework of the Privacy Act

To align these changes with the broader protection of personal privacy, Schedule 2, Item 87 amends the definition of a "designated secrecy provision" in subsection 80P(7) of the Privacy Act 1988 (Cth). The Act deletes the reference to the repealed sections 40A to 40M of the Intelligence Services Act 2001 (Cth) and replaces it with references to sections 42 to 44 of the Office of National Intelligence Act 2018 (Cth). This ensures that the disclosure of information in breach of ONI's primary secrecy provisions remains recognized as an offence under the designated secrecy provision framework of the Privacy Act, preserving the severe legal consequences for breaches of personal data security within the intelligence environment.

Enforcement Powers of Oversight Bodies

Enforcement under this Act is largely channeled through administrative, parliamentary, and ministerial oversight rather than traditional criminal prosecutions in the courts. The IGIS is the primary enforcement agent for compliance. Under Schedule 2, Item 56, the IGIS's inquiry powers are expanded to investigate ONI's compliance with directions given by the responsible Minister. If ONI fails to comply with ministerial directions or its internal privacy rules, the IGIS has the statutory power to compel evidence, enter premises, and issue formal reports to the Minister and Parliament, driving institutional compliance through executive and public accountability.

This Act does not operate in isolation; it is a piece of consequential machinery designed specifically to interface with a wide range of primary Commonwealth legislation. Its primary interaction is with the Office of National Intelligence Act 2018 (Cth), providing the transitional runway for the latter's full operational effect.

The Crimes Act 1914 (Cth)

The Act significantly alters Part IAB of the Crimes Act 1914 (Cth), which governs controlled operations and assumed identities. It inserts the Director-General of National Intelligence into the definition of "chief officer" and includes ONI staff members within the definition of "intelligence officer" under section 15K. However, it imposes strict statutory boundaries on this interaction. Under Schedule 2, Item 32, ONI officers are prohibited from applying for controlled operations unless the operation is directly linked to ONI's open-source analysis functions under paragraph 7(1)(g) of the Office of National Intelligence Act 2018 (Cth). Furthermore, under Items 37 and 41, if the chief officer of ONI grants an assumed identity authority, any subsequent request to vary or cancel that authority must be made by the chief officer of another intelligence agency, establishing a unique system of peer-agency oversight designed to prevent operational self-authorization by ONI.

The Privacy Act 1988 (Cth)

The interaction with the Privacy Act 1988 (Cth) is carefully calibrated to facilitate the flow of information into ONI while maintaining external boundaries. Schedule 2, Item 86 inserts subsection 7(1B) into the Privacy Act. This subsection states that a reference to an "act" or a "practice" does not include a reference to an act or practice by an agency with an intelligence role or function so far as it involves the disclosure of personal information to ONI. This is a crucial statutory gateway; it exempts transferring agencies from standard Privacy Act liabilities when they hand over personal information to ONI, thereby facilitating the rapid aggregation of intelligence data.

The Freedom of Information Act 1982 (Cth)

The Act maintains the traditional absolute exemption from public disclosure for intelligence assessments and operational records. Schedule 2, Item 47 and Item 48 amend the Freedom of Information Act 1982 (Cth) by repealing the exemption for ONA and substituting an absolute exemption for ONI. Consequently, any document in the possession of ONI, or any document originating from ONI that is held by another agency, remains entirely exempt from the operation of the Freedom of Information regime, preserving the strict confidentiality of the analytical and coordination processes.

The Office of National Intelligence (Consequential and Transitional Provisions) Act 2018 (Cth) was introduced into the House of Representatives on 28 June 2018. It was passed by both houses of Parliament and received the Royal Assent on 10 December 2018, entering the statute books as Act No. 156 of 2018.

The 2017 Independent Intelligence Review Context

The Act's drafting and passage were directly driven by the recommendations of the 2017 Independent Intelligence Review conducted by Michael L'Estrange and Stephen Merchant. The Review recommended the creation of an Office of National Intelligence to lead and coordinate the national intelligence community, which necessitated the total repeal of the Office of National Assessments Act 1977 (Cth). The amendment history of this Act is therefore structurally bound to this historical policy shift, representing the legislative execution of a major structural realignment of Australia's national security agencies.

Schedule 3 Contingent Amendments

A notable aspect of the Act's amendment history is the inclusion of Schedule 3, which contained amendments to the Criminal Code Act 1995 (Cth) that were strictly contingent upon the passage of the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth). Schedule 3, Item 1 was designed to substitute ONI for ONA in the definition of a "domestic intelligence agency" under subsection 121.1(1) of the Criminal Code. Because both the primary espionage reform and the ONI establishment legislation successfully passed the Parliament, this contingent amendment was activated on 29 December 2018, as detailed in the commencement table in section 2. This represents a highly coordinated legislative drafting technique designed to prevent conflicts between concurrent, fast-moving national security reform packages.

As of the current date, there is no substantive body of reported judicial decisions or litigation directly interpreting the provisions of the Office of National Intelligence (Consequential and Transitional Provisions) Act 2018 (Cth). This absence of formal litigation is not accidental; it is a direct consequence of the statutory architecture governing Australian intelligence agencies and the deliberate exclusion of these frameworks from ordinary administrative and judicial review pathways.

Exclusion from Administrative Review Pathways

The decisions made under this Act, and the primary Office of National Intelligence Act 2018 (Cth), are largely shielded from standard public law litigation. The absolute exemptions maintained under the Freedom of Information Act 1982 (Cth) and the statutory exemptions under the Privacy Act 1988 (Cth) effectively prevent private litigants from obtaining the operational or administrative records necessary to mount a judicial review challenge in the Federal Court or the Federal Circuit and Family Court of Australia.

Alternative Dispute and Compliance Resolution

Instead of traditional litigation, compliance disputes and statutory interpretation questions arising under this Act are channeled into specialized, non-judicial forums. The IGIS possesses expansive investigatory powers under the Inspector-General of Intelligence and Security Act 1986 (Cth) to resolve complaints regarding agency conduct, compliance with ministerial directions, and adherence to privacy rules. Similarly, the PJCIS operates as the primary parliamentary forum for assessing the statutory boundaries of ONI's leadership and resource coordination roles. Consequently, any operational friction or legal ambiguity is resolved through executive oversight, ministerial intervention, or parliamentary committee inquiries, rather than public adversarial litigation.

For legal practitioners, intelligence personnel, and compliance officers, this Act contains several subtle traps and asymmetrical provisions that require careful navigation.

The Crimes Act Dual-Key Authorization Trap

One of the most significant operational gotchas lies in the modified assumed identities regime under the Crimes Act 1914 (Cth). While the Director-General of National Intelligence is defined as a "chief officer" who can grant assumed identity authorities under section 15K, ONI is subject to a strict dual-key restriction. Under section 15KI(2A) and section 15KX(2A), if the chief officer of ONI grants an assumed identity authority, any subsequent request to vary or cancel that authority cannot be made by the chief officer of ONI. Instead, the request must be made by the chief officer of another intelligence agency. This means that ONI cannot unilaterally manage the lifecycle of its own assumed identities; it must rely on an external agency head to execute variations or cancellations, creating a potential administrative bottleneck and an absolute requirement for inter-agency coordination.

The Prime Minister's Exclusionary Power

Under Schedule 4, Items 3(2) and 4(2), the Prime Minister retains a broad, highly discretionary power to determine, in writing, that the automatic transition of "things done" by ONA or its Director-General to ONI does not apply to a specified matter. Crucially, subitems 3(4) and 4(4) state that such a determination is not a legislative instrument. This means these determinations are not subject to parliamentary disallowance or public registration requirements, creating a pathway for the executive to quietly exempt specific historical arrangements, agreements, or instruments from the automatic transition provisions without public scrutiny.

Bifurcated Handling of Uncompleted ONA Business

Schedule 4 establishes an asymmetrical approach to uncompleted ONA business. Under Item 5, any outstanding request for an assessment or report made under the old law is automatically treated as if it were a request under section 22 of the new law. However, under Item 6(2), if the National Assessments Board had commenced but not completed its formal consideration of an assessment before the transition, the Board must complete its consideration and the Director-General must deal with that assessment in accordance with the old law (the repealed Office of National Assessments Act 1977). This creates a parallel administrative track where ONI staff must simultaneously operate under the procedural requirements of both the repealed and the active legislation depending on the precise stage of the assessment's development at the time of commencement.

Achieving compliance with the Office of National Intelligence (Consequential and Transitional Provisions) Act 2018 (Cth) requires systematic administrative updates and a clear understanding of the shifted statutory boundaries.

Action Items for Intelligence and Law Enforcement Compliance Officers

Compliance personnel within ONI, ASIO, ASIS, ASD, and law enforcement agencies such as the AFP and ACIC must implement the following measures:

Update Inter-Agency Agreements: Review and formally update all active Memoranda of Understanding (MoUs), service-level agreements, and information-sharing protocols to replace references to ONA with ONI and to align the operational purposes of these agreements with the leadership functions under section 7 of the Office of National Intelligence Act 2018 (Cth).
Implement Crimes Act Restrictions: Ensure that any internal applications for assumed identities or controlled operations within ONI are strictly limited to open-source analysis functions under paragraph 7(1)(g) of the primary Act, and establish formal channels with peer agencies to facilitate the external variation and cancellation requests required by subsections 15KI(2A) and 15KX(2A) of the Crimes Act 1914 (Cth).
Align Privacy Rules: Establish robust internal auditing systems to monitor compliance with the privacy rules made under section 53 of the primary Act, preparing detailed compliance logs for regular inspection by the IGIS as mandated by subsection 35(2C) of the Inspector-General of Intelligence and Security Act 1986 (Cth).

Action Items for Financial Sector Compliance and AUSTRAC

Update Authorisations: AUSTRAC compliance officers must verify that all delegations and authorizations under section 126 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) have been transitioned from ONA to ONI. While Item 14 of Schedule 4 saves existing authorizations, any new authorizations issued on or after the commencement date must explicitly reference the Director-General of National Intelligence and the Office of National Intelligence.
Review Information Gateways: Ensure that reporting pathways for suspicious matters and international transaction data are directed to ONI's secure analytical platforms, reflecting its updated status as a designated agency under section 5 of the AML/CTF Act.

Action Items for Records Management and Archives Officers

Incorporate Archives Act Exemption: Update internal FOI and archives policies to reflect the absolute exemption of ONI records under Schedule 2, Item 48, ensuring that any legacy ONA files transferred to ONI are managed in accordance with the heightened security classifications and are protected from unauthorized public access under the amended Archives Act 1983 (Cth) provisions.

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