Julian Hill (Bruce, Australian Labor Party) Share this | Hansard source

I'm particularly glad my colleague the member for Hasluck has arrived, because I don't actually have 15 minutes of contribution. I had threatened to start reading out large slabs of the submission in the committee's report if not—so there we go! I want to record a few brief comments. This is a critically important institution, as previous speakers have rightly acknowledged, albeit in varying levels of soporific tones—such is the nature of the Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022. I'm not having a go at you, actually, Keith!

It oversights Australia's intelligence and security agencies, the IGIS does—the Inspector-General of Intelligence and Security, funnily enough, if the clue wasn't in the name. But these agencies have enormous and deeply intrusive powers which, unchecked, unmonitored or misused, could genuinely threaten the foundations of our democracy and our self-conception and reality of a liberal society. I'm pleased to serve as a member of the Parliamentary Joint Committee on Intelligence and Security. Constantly—pretty much every meeting, really—through that committee's work we're reviewing government national security legislation and undertaking regular statutory reviews, scheduled reviews of existing national security legislation and the statutory obligations to oversight the intelligence and security agencies. Through all of those aspects of our work, we're constantly grappling with the tension and imperfect balance between collective security and individual liberty, which are deeply complex matters. There's often no perfect answer; it's about where you draw the balance and where you draw the line.

The PJCIS was the successor to the Parliamentary Joint Committee on ASIO, which was introduced by Prime Minister Bob Hawke in 1988, to his credit, with a degree of courage to take on then institutional resistance to the establishment of that committee because it was directly not recommended in the Hope royal commissions. Prime Minister Hawke made what I think was the right call. In the long run, strengthening democratic oversight and parliamentary oversight of the intelligence and security agencies was both the right thing to do from a democratic point of view but also, importantly, over time it is a protective factor for those agencies. Dealing with the heads of the agencies, they certainly profess that and, I think, believe it in their acknowledgement that the work of the committee strengthens their social licence to do what needs to be done. Hopefully it is a protective factor or a trust-building factor when mistakes occasionally are inevitably made and when they come to public light.

All of the agencies and all of the legislative work we do are balanced, at least in my mind, on three tests: is this necessary, is it proportionate to the risk and is it subject to effective oversight? The IGIS itself is necessarily powerful. It reports to ministers. The IGIS is not an officer of the parliament; it sits within the Prime Minister's portfolio. But the reports of the IGIS are classified and provided to the responsible ministers. They are a critical tool for ministers to be able to fulfil their responsibilities to oversight the agencies and to refer matters of concern.

The bill does two things. It seeks to strengthen the oversight arrangements for the inspector-general and ensure the enabling legislation is adapted to contemporary circumstances. This includes expressly empowering the IGIS and his staff to enter and remain on any intelligence premises, gain full and free access to any information and make copies or take extracts from documents held by the intelligence agencies. There are also amendments to clarify that whistleblowers are able to fully disclose classified information to the IGIS without breaching secrecy or unauthorised disclosure offences. The bill also implements two recommendations of the Richardson review, which was the full review, nerdy and long, of all of the intelligence and security recommendations which flowed out of the most recent review of the intelligence agencies, the Merchant and L'Estrange review from 2017.

Importantly, the implementation of those recommendations would see a preclusion on the appointment to the office of the IGIS of a person whose immediate prior role was the head or deputy head of an agency. I'd just draw the Chamber's attention to the recommendation of the committee. We had a look at this, and the committee's recommendation is that that go a little further—I'm not sure yet what the government's position on those amendments will be; hopefully we will deal with them in the Senate—and preclude the appointment of anyone who has worked in an intelligence agency for an appropriate period of time, and not just as head or deputy head. It's probably semantics, but there should be no reason to oppose that and make sure that that's an ironclad, watertight prohibition on a potential conflict. Secondly, the IGIS should be amended to give an inquiry function for employment related grievances of staff employed under the Office of National Intelligence Act, recommendation 174—yes, there were many hundreds of recommendations.

The only other thing I want to place on the record a few brief remarks about was that there was a bill in the previous term that lapsed. It contained the stuff that's in this bill but it also had a few other aspects, including an expansion of the jurisdiction of the parliamentary joint committee and the IGIS to cover all 10 agencies in the national intelligence community. There was a little bit of a divergence of view around some of this between the 2017 review of the intelligence agencies and the Richardson report. I'm really pleased that the Attorney-General has confirmed publicly that he is currently considering these issues. They don't form part of this bill consciously—it's not that the government has forgotten; it's a deliberate decision to not include those changes at this point, in this bill, because the Attorney is considering more broadly possible amendments to the Intelligence Services Act to deal with this and related matters.

I'll just place on the record that my preliminary view would be that the jurisdiction of the PJCIS and the IGIS does need to be extended to cover those agencies, but there's also the question of the PJCIS's relationship with the IGIS more broadly. And these are my views, not government policy. I don't see it as strictly necessary—and this contradicts the position of many senior people in the Labor Party in previous terms, but not all—that the PJCIS gain full operational oversight of the intelligence agencies. This has been a significant point of debate over the past decade or more. I've sort of shifted my view on that in recent years, having thought through it and having the experience of being on the PJCIS. I think that to do so risks Benghazi-style politicisation. That's not a final view, but I think there is a risk there.

And I think there's enormous information and resource asymmetry, frankly, between any group of busy parliamentarians and the many-thousand-strong secretive world of the intelligence agencies. I think it'd be almost impossible to set up a system unless you had a committee staffed with 40 or 50 staff who dealt with that information and resource asymmetry in a realistic and meaningful way, as well as the deeply complex and problematic secrecy issues, given what 'operational oversight' actually means and given the nature of what these agencies do and, frankly, the lives of Australians at risk if that secrecy is compromised.

I think that instead we could consider a stronger reporting line between the IGIS and the PJCIS. I just put that on the record as something I'm particularly attracted to. The parallel I'd draw in saying that is with the Auditor-General, who is an officer of the parliament and works on behalf of the parliament with a staff and a bunch of resources that the parliament gives the Auditor-General to oversight the public sector—the efficient, effective, economical and ethical use of taxpayer funds. I'd draw that parallel. The IGIS has the powers of a standing royal commission and works on behalf of the executive to interrogate and assure the legality and propriety of the intelligence and security agencies.

To close that loop, the PJCIS would be far better positioned to perform our statutory oversight role on behalf of the parliament if we had the benefit of a line of sight to more—perhaps not all, but most—of the IGIS's work. There'd need to be some appropriate redactions. But, as a committee member, I would feel far more confident in sitting there behind closed doors, sometimes for days on end, interrogating ASIO, ASD, ASIS and all the others if I knew what the IGIS was seeing in terms of breaches of law or systematic problems, be they cybersecurity, human issues or whatever, and feel far more assured that I could do the job that the parliament has appointed me and my colleagues to do on behalf of the parliament to oversight these agencies. There'd need to be appropriate redactions. We don't need to know every little spying operation and all that kind of stuff. Hence I'm sceptical about the need for full operational oversight. But it is about strengthening that line. At the moment there is no real formal reporting relationship. Indeed, worse than that, as the committee's report makes clear:

The Committee is concerned about the growing restrictions on information sharing between this Committee and the IGIS.

3.8 As discussed in Chapter 2 of the report, several provisions of the IGIS Act are prescriptive about the circumstances in which information can be shared, which, when aligned with the secrecy provisions contained in the Act, actively prevent the Inspector-General from sharing non-operational information with the Committee even when the information would be directly relevant to the functions of the Committee and the Inspector-General may be minded to share the information if not for legislative limitations.

I just want to put that on the record. I trust that the Attorney will be thinking about these issues carefully, as he does. It seems to be low-hanging fruit to remove some of those limitations. But, to the greatest extent that we can colour in that line—what I'd describe as perhaps a solid dotted line, not a faint dotted line and not necessarily a hard line, between the IGIS and the committee—I think the parliament's need for assurance over the agencies would be much better served. I commend the bill to the House.

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