Rex Patrick (SA, Nick Xenophon Team) Share this | Hansard source

I am pleased to speak briefly in relation to this bill, the Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Bill 2018. As senators are aware, the bill follows the 2017Independent intelligence review that was commissioned by the government to examine the roles of the Office of National Assessments, the Australian Secret Intelligence Service, the Australian Security Intelligence Organisation, the Australian Signals Directorate, the Defence Intelligence Organisation and the Australian Geospatial-Intelligence Organisation. The review further examined the relationship and engagement between those agencies and other members of the broader national intelligence community, including the Australian Federal Police and the Department of Immigration and Border Protection.

The review made a number of recommendations, including that the Australian Signals Directorate, ASD, become a statutory authority within the Defence portfolio, that ASD's priority role of supporting the Australian Defence Force capabilities be clearly reaffirmed, that ASD's legislative mandate be amended to explicitly recognise its national responsibilities for cybersecurity, including the provision of advice to the private sector, and that ASD take formal responsibility for the Australian Cyber Security Centre.

The bill broadly serves to implement these recommendations. It will establish ASD as an independent statutory authority within the Defence portfolio, reporting directly to the Minister for Defence. ASD will continue to play a vital role in supporting both the ADF capabilities and the national intelligence collection requirements. ASD's functions will be expanded to include the Australian Cyber Security Centre and allow the ACSC to cooperate with persons and bodies listed in the Intelligence Services Act 2001 and, significantly, to advise and assist businesses and the community directly.

The bill will also enable the transfer of the Computer Emergency Response Team and its functions relating to cyber policy and security from the Attorney-General's Department to ASD. Significantly, the bill establishes new functions for the ASD, including to prevent and disrupt, by electronic or similar means, cybercrimes by people or organisations outside of Australia and to protect the specialised technologies and capabilities acquired in the performance of its other functions.

The bill has been examined by the Senate Foreign Affairs, Defence and Trade Legislation Committee, which has recommended that the bill be passed. I and my NXT colleague Senator Griff are pleased to support the bill as a necessary and desirable measure to strengthen a vital national intelligence collection agency. However, dealing as it does with amendments to the Intelligence Services Act 2001, this bill also provides an opportunity for me to foreshadow a major issue that we intend to pursue when the Senate debates further elements of the government's latest tranche of national security reforms.

I've spoken previously about the importance of a well-resourced and capable intelligence community to protect Australia's national interests and the importance of improving parliamentary oversight. As those agencies are given more resources, more power and more responsibility the mechanisms of oversight should be similarly reinforced. In a speech to the Senate last December I highlighted the need for parliamentary scrutiny of our intelligence community to extend beyond questions of administration and finance to matters of policy, effectiveness and, as necessary from time to time, operational matters.

The Parliamentary Joint Committee on Intelligence and Security is currently severely limited in the scope of its oversight role, which is largely limited to questions of administration and finance, as I've suggested. Specifically, the committee is prohibited from reviewing intelligence-gathering and assessment priorities of the Australian intelligence community. It is barred from examining sources of information, other operational assistance, operational methods or any operations that have been, are being or are proposed to be undertaken by the Australian intelligence community.

The PJCIS may not review the content of or conclusions reached in assessments or reports made by the Defence Intelligence Organisation or the Office of National Assessments, nor may it review the coordination and evaluation activities undertaken by the ONA. The committee is prohibited from reviewing particular operations or investigations that have been or are proposed to be undertaken by the Australian Federal Police. Significantly, the PJCIS is also prohibited from reviewing the privacy rules made by the minister under section 15 of the Intelligence Services Act, which are the written rules regulating the communication and retention by agencies of intelligence information concerning Australian persons.

These limitations of the extent of parliamentary oversight are very extensive and reflect an underlying bureaucratic mindset that MPs and senators, elected representatives of the people, cannot be trusted with our nation's most sensitive national security information. This is not the approach taken in other countries, including Australia's intelligence partners. In the United States, high-powered congressional committees have the authority to reach far into operational matters. Those inquiries are accepted by the US intelligence community as necessary and appropriate.

No doubt there are details of intelligence operations, especially human intelligence operations, involving sensitive and vulnerable sources that are best held by the smallest number of people with an absolute need to know. There may well be cases for a ministerial veto on the PJCIS's access to some specific operational information. As I pointed out to the Senate in December, in Canada, the new National Security and Intelligence Committee of Parliamentarians is able to review any activity carried out by a department or intelligence agency that relates to national security or intelligence unless that activity is an ongoing operation and the appropriate minister determines that the review would be injurious to national security. If the appropriate Canadian minister determines that a review would be injurious to national security, he or she must inform the committee of his or her determination and the reasons for it. If the appropriate minister determines that the review would no longer be injurious to national security, or if the appropriate minister is informed that the activity is no longer ongoing, he or she must inform the committee that the review may be conducted.

The Canadian parliamentary intelligence oversight arrangements have considerable merit. They have been adopted by a so-called Five Eyes partner with an intelligence community and parliamentary system very similar to our own. The Canadian approach could provide an enhanced framework for the PJCIS's oversight of our intelligence agencies, with the added provision that any ministerial veto over review of an operational matter should be referred to the IJIS for review and a report to both the PJCIS and the Prime Minister. If democratically elected MPs and senators cannot be trusted to deal directly with these questions, then something is wrong with the relationship between the intelligence community and the parliament that it ultimately means to serve.

The Senate will in due course debate further legislation to give effect to the government's further responses to the intelligence review's recommendations and to strengthen our laws to protect Australia against espionage and covert foreign interference. The government will be seeking the support of the opposition and the crossbenchers. That legislation should be subject to rigorous scrutiny and debate by the Senate. NXT will consider that legislation on its merits, but we will push hard for operational oversight of the intelligence services by the parliament because the time for such scrutiny is both necessary and long overdue. We will take the opportunity to press for amendments to the Intelligence Services Act to provide for an expanded PJCIS oversight of all intelligence activities including operational matters. If the government want to increase the powers and the responsibilities of our intelligence agencies, which, again, I and my colleagues broadly support, then they must be prepared to strengthen the role of the parliament in overseeing those agencies to ensure they are truly defenders of our national interest and, indeed, the Australian people.