Wednesday, 9 May 2018
Home Affairs and Integrity Agencies Legislation Amendment Bill 2017; In Committee
by leave—I move Centre Alliance amendments (1) and (2), on sheet 8414 revised, together:
(1) Clause 2, page 3 (at the end of the table), add:
8. Schedule 3 The day after this Act receives the Royal Assent.
(2) Page 61 (after line 5), at the end of the Bill, add:
Schedule 3—Amendments relating to oversight of intelligence agencies
Intelligence Services Act 2001
1 Paragraph 29(1) (a)
After "to review the", insert "activities,".
2 Subsection 29(3)
Repeal the subsection, substitute:
(3) The functions of the Committee do not include:
(a) reviewing information provided by, or by an agency of, a foreign government where that government does not consent to the disclosure of the information; or
(b) conducting inquiries into individual complaints about the activities of ASIO, ASIS, AGO, DIO, ASD, ONA, AFP or the Immigration and Border Protection Department.
3 After section 29
29A Ceasing or suspending review of agency activities
Certificate received from responsible Minister
(a) the Committee undertakes a review under section 29 of an activity by ASIO, ASIS, AGO, DIO, ASD or ONA; and
(b) the relevant responsible Minister is of the opinion that:
(i) the activity is an ongoing operation; and
(ii) the review would interfere with the proper performance by the relevant body of its functions or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations;
the Minister may give to the Committee a certificate in relation to the matter stating the Minister's opinion and the reasons for it.
(2) The Minister must give a copy of a certificate under subsection (1) to the President of the Senate and to the Speaker of the House of Representatives.
(3) A decision of the Minister under subsection (1) must not be questioned in any court or tribunal.
(4) Where the Minister gives a certificate under subsection (1) in relation to a review, the Committee must cease or suspend the review.
(5) Subsection (4) has effect subject to subsection (7).
Review by Inspector -General of Intelligence and Security
(6) Where a Minister has given a certificate to the Committee under subsection (1) the Committee may refer the certificate to the Inspector-General of Intelligence and Security.
(7) Within 30 days after the Inspector-General of Intelligence and Security is referred the certificate, the Inspector-General must:
(a) review the certificate and consider:
(i) whether the activity is an ongoing operation; and
(ii) whether it is reasonable to conclude that a review by the Committee would interfere with the proper performance by the relevant body of its functions or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations; and
(b) provide written advice to the Committee setting out the Inspector-General's opinion in relation to the matters set out in subparagraphs (a) (i) and (ii).
(8) If the Inspector-General advises the Committee under subsection (7) that the activity is not an ongoing operation, or that the review would not cause interference with the proper functioning of the relevant body or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations, the Committee may proceed with the review, or commence a new review into the activity.
[oversight of intelligence agencies]
These amendments will amend the Intelligence Services Act 2001 to extend parliamentary scrutiny to the operation of Australia's national security and intelligence agencies. The bill itself proposes a number of amendments to give effect to the allocation of ministerial powers following the establishment of a Home Affairs portfolio and to make changes relating to the Attorney-General's oversight of intelligence, security and law enforcement agencies. Centre Alliance has no objection to the bill. In this regard, we note the observations in the Parliamentary Joint Committee on Intelligence and Security's report that machinery-of-government changes are a matter for the government of the day and that the contents of the bill are broadly consistent with the government's intention regarding the creation of the Home Affairs portfolio. Like the PJCIS, we also note the Prime Minister's statement that the Attorney-General, as first law officer of the Commonwealth, will take on a suite of oversight responsibilities with our intelligence community. In addition, the Attorney-General will continue to sign off on all ASIO warrants. That statutory provision should certainly be retained.
The bill before the Senate today is, of course, another in a long line of bills that have come before the parliament since 2001 and have profoundly reshaped Australia's national security and intelligence arrangements. Much of this legislation has expanded the powers of those agencies and their ability to collect information at home and abroad and to conduct their operations. More legislation relating to espionage and official secrets and issues of foreign interference in Australia is yet to be debated by the Senate. Those bills are more contentious than the one that is being considered today.
In this context, Centre Alliance considers it imperative to improve parliamentary oversight of Australia's intelligence agencies as they face greater challenges and are given more resources and powers to intrude into the lives of Australian citizens. Australia's 10 national security and intelligence agencies employ more than 7,000 people and spend well over $2 billion per annum while they accumulate massive amounts of data at home and abroad. As the intelligence agencies have expanded, the mechanisms of accountability and review have received much less attention and fewer resources. The government's commitment in the budget of additional funds to the Office of the Inspector-General of Intelligence and Security is welcomed, but that comes after more than a decade of relative neglect where the intelligence and national security community has grown like Topsy. Greater parliamentary scrutiny of our intelligence agencies is long overdue.
Recent proposals for the further expansion of the intelligence community's access to the electronic records of Australian citizens highlight the need for parliament to maintain a careful watch over not only the administration and expenditure of our intelligence services but intelligence policy and operations as well. At present, the PJCIS is prohibited by the Intelligence Services Act 2001 from reviewing intelligence-gathering priorities and operations of the Australian intelligence agencies or the assessments and reports they produce. The committee is barred from examining sources of information, operational activities and methods or any operations that have been, are being or are proposed to be undertaken by intelligence and national security agencies. Significantly, the PJCIS is also prohibited from reviewing the privacy rules made by ministers that regulate the communication and retention by agencies of intelligence information concerning Australian persons.
The PJCIS cannot properly hold these agencies accountable if the parliament continues to ban its own committee from reviewing its operational performance. This is not the approach taken in other countries, including Australia's closest 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. The approach taken by the new Canadian National Security and Intelligence Committee of Parliamentarians provides a good model for Australia to follow. Canada is one of our Five Eyes intelligence partners and has an intelligence and national security committee not dissimilar to our own. Under Canada's National Security and Intelligence Committee of Parliamentarians Act 2017, the Canadian parliament's intelligence community can review:
(b) any activity carried out by a department that relates to national security or intelligence, unless the activity is an ongoing operation and the appropriate Minister determines that the review would be injurious to national security;
The Canadian legislation further provides:
(2) If the appropriate 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.
(3) 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 amendment moved by Centre Alliance today adapts the model provided by the Canadian parliamentary oversight legislation with an additional safeguard provided by our own Inspector-General of Intelligence and Security. The amendment removes most, though not all, of the current legislative constraints on the scope of the PJCIS's inquiries. It does retain existing prohibitions on reviewing information provided by foreign governments, where that government does not consent to the disclosure of that information. It also retains the prohibition on conducting inquiries into individual complaints about the activities of designated intelligence and national security agencies, as those complaints are appropriately dealt with by the IGIS.
There are details of intelligence operations involving sensitive and vulnerable sources that are best held by the smallest number of people with an absolute need to know. Accordingly, the relevant minister may certify that a review by the PJCIS relates to an ongoing operation and that review would interfere with the proper performance of the relevant body or its functions or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations. If this is the case, the committee will be required to cease or suspend the review. However, the committee may refer the minister's decision to the Inspector-General of Intelligence and Security, who, within 30 days, must review the matter and consider whether the activity is an ongoing operation and whether it is reasonable to conclude that a review by the committee would interfere with the proper performance by the relevant bodies of its function or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations.
If the inspector-general advises the committee that the activity is not an ongoing operation or the review would not cause interference with the proper functioning of the relevant body or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations, the committee may proceed with the review or commence a new review into the activity. The amendment thus adapts the Canadian model with the independent Inspector-General of Intelligence and Security able to act if needed as the umpire between the minister responsible for the intelligence agencies and the PJCIS.
The need for an expansion to the PJCIS's role has been recognised by others in the Senate. Former Senator John Faulkner urged this broad reform. The Leader of the Opposition in the Senate, Senator Wong, similarly, has rightly observed that parliamentarians cannot outsource their duties to ensure the security of our nation and the people who entrust us with the responsibility of governing. I agree entirely. 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 effect of these amendments is to put this proposal to the government in a form that cannot be ignored or put into a pile of private members' bills that will never see the light of day. That is the status of the Labor opposition's private member's bill that has similarly proposed an amendment on expanding the remit of the PJCIS's reviews. These amendments put the proposal to the government in a way that cannot be ignored. The government and the national security bureaucrats who've always resisted parliamentary scrutiny will have to respond, if they want the proposed changes to the Home Affairs portfolio to proceed. They will have to engage positively with the idea that greater parliamentary scrutiny is required to ensure that both national security and our individual liberties and privacies are properly protected.
Centre Alliance moves these amendments without any narrow interest. Neither I nor my colleagues Senator Griff and the member for Mayo are members of the PJCIS, and we don't imagine we will be any time soon, but we do think some amendments to the role and the authority of the PJCIS, along the lines of the Canadian legislation, are essential, if we are to continue to have the full confidence in the operations of our national security and intelligence agencies, and their relationship with this parliament.
Australia's intelligence communities are not infallible. In the future their performance will be tested in a much more demanding security environment, and the Australian parliament will need to subject our intelligence agencies to much closer scrutiny than has been the case in the past. The Senate is scheduled to debate more bills relating to Australia's intelligence agencies, espionage and secrecy laws as well as measures to deal with covert foreign interference in Australian politics. As the government seeks to further expand the powers of the intelligence community, equal consideration must be given to extending the parliamentary oversight of those agencies. This amendment will assist the government in its agenda to increase the effectiveness of the intelligence services by providing the community with a level of confidence in its operations. I commend the amendments to the Senate.