David Jull (Fadden, Liberal Party) Share this | Link to this | Hansard source

On behalf of the Parliamentary Joint Committee on Intelligence and Security, I present the annual report of committee activities 2005-06.

Ordered that the report be made a parliamentary paper.

Section 31 of the Intelligence Services Act 2001 requires the Joint Parliamentary Committee on Intelligence and Security to report to the parliament annually on the committee’s activities during the previous year. I present the following report as a fulfilment of that requirement. This process is an opportunity for the committee to inform the parliament of the committee’s work in a consolidated form. It is also an opportunity for the committee to review its own work and to review the act as it affects the committee’s operations. The Intelligence Services Act is a relatively new one, having been passed in 2001. The committee has been in place since March 2002.

Over that time, the work of the committee has evolved and grown because of the nature of the times. Each year the committee has found itself with a steady stream of legislative review and reviews of proscriptions, as well as its core requirement of scrutinising the administration and expenditure of the intelligence agencies. The breadth of the oversight task has also grown because of the inclusion in the last year of three additional agencies to the responsibility of the committee. The committee is still in the process of establishing its procedures and practices as far as the oversight of administration and expenditure is concerned. This report canvasses some of the complexities that the committee faces in managing its responsibilities. However, this is a work in progress, and future annual reports will no doubt continue to examine the challenges faced by a committee such as this one.

This last year saw amendments to the Intelligence Services Act which changed the committee’s name from the Joint Committee on ASIO, ASIS and DSD to the Joint Committee on Intelligence and Security. This reflected the fact that, on the recommendation of the Flood inquiry in 2004, the committee’s responsibilities for oversight had increased to include all six intelligence agencies—ASIO, ASIS, DSD, DIO, DIGO and ONA. The size of the committee was increased from seven to nine members, with the addition of a new opposition senator and a new government member of the House. A position of deputy chair was also created, and the committee now has the capacity to form subcommittees, should the pressure of work dictate the need for them.

In the last year, the committee tabled six reports: four reviews of terrorist listings and two reviews of legislation, one being a major review of ASIO’s questioning and detention powers. In addition, the committee has conducted a review of the recruitment and training procedures of all six of the intelligence agencies, although this report was tabled outside the reporting period for this report. The committee also has a program of regular private briefings involving the directors of the agencies, the Inspector-General of Intelligence and Security, and visitors—overseas counterpart committees or specialists. Details of all these activities are listed in this report.

The committee has chosen to highlight three issues of procedural and practical interest in this report. The first affected the conduct of the inquiry into ASIO’s questioning and detention powers. The committee sought clarification of its powers in relation to the calling of witnesses who might have been associated with the operation of the powers under division 3 of part III of the act. Such people are subject to strict secrecy provisions under the ASIO Act. Nevertheless, the committee has a statutory obligation under the Intelligence Services Act to review the operations of the provisions. The committee sought to conduct as thorough a review as possible while not exposing individuals wishing to give evidence to any serious legal ramifications. Advice received from Mr Bret Walker SC affirmed the rights and protections of witnesses to give evidence to the inquiry so long as the provisions of the Intelligence Services Act for the taking of sensitive evidence were observed.

The second issue related to the preservation of archival copies of classified documents within the committee’s own records—a matter that would require amendment to the Intelligence Services Act. Finally, the committee remains concerned about the application of the non-disclosure provisions of sections 6 and 7 of the Intelligence Services Act. These blanket provisions which require a series of permissions for both the taking of evidence and clearances for reports have been brought into prominence by the increasing role of the committee in legislative review. This is a process which does not necessarily involve national security information and more approximates normal parliamentary processes. The committee believes there may be scope for a refinement of sections 6 and 7 to accommodate what are unforeseen circumstances in the work of the committee. I commend the report to the House.

Anthony Byrne (Holt, Australian Labor Party) Share this | Link to this | Hansard source

I would also like to speak on the annual report of committee activities of the Joint Parliamentary Committee on Intelligence and Security. As outlined by the chair of the committee, the Intelligence Services Act 2001 requires that the Joint Parliamentary Committee on Intelligence and Security report to this parliament annually on the committee’s activities the previous year. It is worth bearing in mind when considering this report that this committee is relatively new, having commenced in about March 2002, and that it has dealt with continued referrals of security legislation review and review of proscriptions, in addition to the scrutiny of the administration and expenditure of intelligence agencies.

It is also important to note that this committee operates on a bipartisan basis. It is my observation, and that of the committee, as reflected in this report, that this committee has been dealing with the dilemmas of all committees which oversee intelligence agencies—that is, the tension between proper scrutiny that would be required in a functioning, vibrant democracy like Australia and the protection of national security information. As stated in the report, the committee has always sought to provide the maximum reporting to the parliament and to preserve the optimum powers and privileges of parliament consistent with its national security obligations.

In particular, last year saw amendments to the Intelligence Services Act which changed the committee’s name from the Joint Committee on ASIO, ASIS, and DSD to the Joint Committee on Intelligence and Security. This change, implementing one of the key recommendations of the Flood inquiry, increased the committee’s oversight to include all six intelligence agencies—ASIO, ASIS, DSD, DIO, DIGO and ONA. As the chair has stated, the committee has increased in size from seven to nine members, with the addition of a new opposition member and a new government member of the House. A position of deputy chair has been created, to which I have had the honour of being appointed, and the committee now has the capacity to form subcommittees, should they be required due to workload constraints.

As also detailed, the committee tabled six reports: four reviews of terrorist listings and two reviews of legislation, one being a review of ASIO’s questioning and detention powers. I will comment on this particular review of the committee. It made a series of 19 recommendations relating to the clarity of the legal framework, the transparency of procedures, particularly some limitations on the secrecy provisions, and improved process—rights to legal representation and the supervision of the process by the prescribed authority. The committee noted that, whilst the regime established by division 3 of part III of the ASIO Act had been administered in a professional way, there could be improvements given the extraordinary nature of the powers conferred to the security agencies by this particular provision.

One issue in particular was the committee’s view that a sunset clause for these powers must remain, although the period recommended was 5½ years. It is interesting to note that the government disagreed with nine of the 19 recommendations arrived at by this bipartisan committee, particularly the recommendation relating to the sunset clause. The government inserted a 10-year sunset clause instead of the committee’s recommendation, so the next review of this very controversial legislation will occur in 2016.

It is my view, given that this committee does operate on a bipartisan basis, that the rejection of this particular recommendation was short-sighted and ignored the experience of this committee, which has a proven track record of improving security legislation that it has been asked to review and in providing the right balance between effective legislation and appropriate legislative protections to the Australian community.

In addition, the committee has conducted a review of the recruitment and training procedures of all six intelligence agencies. The procedural issues highlighted in the annual report are also worth mentioning. The first, relating to the conduct of the inquiry into ASIO’s questioning and detention powers, has just been dealt with by the chair. The other issues, relating to the preservation of archived documents and classified documents with which committee members were working, are of some concern and may require an amendment to the Intelligence Services Act in order for the committee to appropriately discharge its duties. Additionally, as mentioned by the chair of the committee, concerns remain about the application of the non-disclosure provisions of sections 6 and 7 of the Intelligence Services Act.

I would comment on the application of section 7, where in some cases the government or government agencies have the capacity to veto the committee reporting of any matter that they determine as relating to national security or prejudicial to Australia’s foreign relations. In my view this section is very broad and it could be argued that, if inappropriately applied, it could operate as an impingement on this committee’s capacity to appropriately report on mandated matters to the Australian parliament. The committee has sought modification to this clause with the government without success to date.

In closing, I would like to thank the hardworking staff of the committee secretariat, including the secretary, Ms Margaret Swieringa, the inquiry secretary, Ms Jane Hearn, research officer Dr Cathryn Ollif and executive assistant Mrs Donna Quintus-Bosz. I certainly recommend this report to the House.