Wednesday, 9 December 2020
Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020; Second Reading
That this bill be now read a second time.
The government is committed to strong accountability frameworks, and nowhere is this more important than with our agencies that perform intelligence functions.
These functions are critical to keeping our country safe from those that would seek to do us harm. The necessarily clandestine nature of this work demands robust oversight. Strong and effective oversight provides the parliament and the Australian community with confidence that agencies with intelligence functions are using those functions lawfully, appropriately and for their intended purpose.
The intelligence enterprise that supports Australia's national security is no longer limited to the six Australian Intelligence Community (AIC) agencies, these being the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service, the Australian Signals Directorate, the Australian Geospatial-Intelligence Organisation, the Defence Intelligence Organisation, and the Office of National Intelligence.
Increasingly, the intelligence capacities of other agencies contribute to protecting Australia's national security. In recent years, the Australian Criminal Intelligence Commission (ACIC), the Australian Transaction Reports and Analysis Centre (AUSTRAC), the Australian Federal Police, and the Department of Home Affairs (Home Affairs) have been brought together with the Australian Intelligence Community to form the National Intelligence Community (NIC).
As we make changes to how our agencies work together to keep Australians safe, we must also, necessarily, change the way in which we oversight, and the oversight arrangements, to ensure that they remain robust and fit for purpose without creating unnecessary duplication.
In this bill, the Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020 (the Integrity Measures Bill) implements the government's decision to extend the Inspector-General of Intelligence and Security's (IGIS) jurisdiction to the intelligence functions of ACIC and AUSTRAC. The bill will also extend the Parliamentary Joint Committee on Intelligence and Security's (PJCIS) jurisdiction to intelligence functions of AUSTRAC. The bill amends the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) and the Intelligence Services Act 2001 (IS Act) to implement these decisions, along with additional amendments to ensure that the legislation governing the IGIS remains fit for purpose.
The bill's expansion of IGIS's jurisdiction is consistent with the recommendations of the recent comprehensive review of intelligence legislation by Mr Dennis Richardson AC, which was released on 4 December 2020.
The review recommended that the IGIS not have oversight of the Australian Federal Police or the Department of Home Affairs. This was based on observations that, while some overlap between oversight bodies is useful to ensure full coverage, duplication should be minimised to avoid unnecessary burdens. It found that existing oversight mechanisms were sufficient for the intelligence functions of these two agencies, but that a stronger case existed for IGIS's specialised intelligence oversight to be extended to ACIC and AUSTRAC's intelligence functions, which are more central to their activities as Australia's national criminal intelligence and financial intelligence units respectively.
While the bill will not extend IGIS's oversight over the AFP's intelligence functions generally, it would ensure IGIS retains oversight of the AFP's (and ACIC's) use of network activity warrants, should the Security Legislation Amendment (Identify and Disrupt) Bill 2020, which was introduced last week, pass the parliament.
The bill also makes consequential amendments to 17 other acts, and contains contingent amendments that arise as a consequence of other bills before the parliament that are yet to be passed but make related amendments.
The bill complements steps the government has already taken to bolster the capacity of the IGIS to provide effective oversight, including providing an additional $52 million over four years to the IGIS, to allow it to better respond to the increasingly complex intelligence environment.
Extending IGIS's jurisdiction
The first objective of the bill is to extend the IGIS's jurisdiction to include the intelligence functions of the ACIC and AUSTRAC. The IGIS, as the body currently overseeing all Australian Intelligence Community agencies, has the requisite expertise, independence and investigative functions for effective intelligence oversight.
Of the NIC agencies, the intelligence functions of the ACIC and AUSTRAC are more substantial and more closely aligned with the traditional AIC agency activities. The ACIC works with state and territory, national, and international partners to collect intelligence to improve the national ability to respond to crime impacting Australia. AUSTRAC is responsible for detecting, deterring and disrupting criminal abuse of the financial system to protect the community from serious and organised crime.
Accordingly, these intelligence functions would benefit from specialised intelligence oversight. This tailored approach makes the greatest use of our oversight resources and will complement existing arrangements without duplication.
The IGIS's oversight of the intelligence functions of AUSTRAC and the ACIC would be limited to 'the collection, correlation, analysis, production and dissemination of intelligence' for the purposes of performing particular functions. This definition draws, in turn, upon the definition of 'agency with an intelligence role or function' from the Office of National Intelligence Act, which created the National Intelligence Community. Using this definition ensures a clear connection between what constitutes a modern intelligence agency, and the oversight that is appropriate for those same agencies. The definition reflects that the ACIC and AUSTRAC have both intelligence and non-intelligence functions, and that it is not necessary for the IGIS to oversee all aspects of these agencies, particularly where other forms of oversight and review are effective.
The bill does not change the oversight jurisdiction of any oversight body outside of the IGIS and the PJCIS. Functions of the ACIC and AUSTRAC that are not intelligence functions will continue to be subject to existing forms of oversight and review.
To ensure that this does not result in inefficient duplication, the bill will introduce amendments to ensure that the IGIS is able to share information and transfer complaints, subject to appropriate safeguards, with other Commonwealth integrity bodies including the Australian Human Rights Commission, the Information Commissioner, and the Commonwealth Ombudsman. The ability to share information and transfer complaints will strengthen the oversight framework and better support complainants.
Information obtained by IGIS officials in their roles is protected to a very high degree, recognising the sensitivity of this information. The bill will amend the IGIS Act, as well as the Crimes Act 1914 and Australian Crime Commission Act 2002, to support this protection, by ensuring that information that would otherwise be subject to secrecy offences may be disclosed to IGIS officials performing duties or functions, or exercising powers, as IGIS officials. This supports the IGIS's oversight functions by ensuring the IGIS has full access to information.
The bill would also make a range of additional amendments to the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) to ensure that the legislation governing the IGIS remains fit for purpose. This includes technical amendments to improve clarity, modernise drafting expressions and remove redundant provisions, as well as amendments to address certain limitations in the IGIS's oversight functions and powers in order to improve flexibility and strengthen the integrity of inquiry processes.
Expanding PJCIS's jurisdiction
The second objective of the bill is to extend the PJCIS's oversight to the intelligence functions of AUSTRAC by amending the Intelligence Services Act 2001 (IS Act).
The PJCIS is currently empowered by the IS Act to review the administration and expenditure of the AIC agencies as well as review matters referred to the committee by the responsible minister or by a resolution of either house of the parliament. The IS Act limits the inquiry powers of the committee by providing that the intelligence gathering and assessment priorities and operational information of the AIC agencies are excluded from the review process.
The bill proposes to extend the PJCIS's oversight powers to AUSTRAC. Following commencement of the bill, the PJCIS will be able to apply the same review functions it currently possesses to this additional agency, including monitoring and reporting to parliament on any matter relating to the agencies' performance of their intelligence functions.
Similar to the IGIS, the PJCIS's additional oversight functions should not duplicate existing oversight mechanisms, and therefore the bill does not propose to include the AFP, ACIC and the Department of Home Affairs in the PJCIS's expanded oversight powers. This approach is appropriate because the AFP and ACIC are already subject to oversight by the Parliamentary Joint Committee on Law Enforcement, and the Department of Home Affairs regularly appears before the PJCIS and the legal and constitutional affairs committee.
In conclusion, the bill will expand the jurisdiction of the IGIS to incorporate the intelligence functions of the ACIC and AUSTRAC, and the jurisdiction of the PJCIS to incorporate the intelligence functions of AUSTRAC.
The bill represents a measured and appropriate approach to strengthening oversight over the National Intelligence Community. Intelligence functions require a specialised form of oversight, to ensure that the agencies performing them are acting appropriately and in accordance with the legislative frameworks governing their use. Robust oversight gives parliament and the Australian people assurance that intelligence functions are being used for their intended purpose—keeping the community safe.
These measures underscore the government's commitment to effective, efficient and robust oversight.
To ensure the parliament is fully informed about this important bill, the government will immediately write to the Parliamentary Joint Committee on Intelligence and Security to ask that it examine and provide a report on this bill. I commend the bill to the House.