Thursday, 28 June 2018
National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2018; In Committee
by leave—I move items (1) and (2) on sheet 8446 revised together:
(1) Clause 2, page 3 (at the end of the table), add:
(2) Page 86 (after line 10), at the end of the Bill, add:
Schedule 7—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.
As foreshadowed in my speech on second reading, this amendment seeks to amend the Intelligences Services Act to extend the oversight role of the Parliamentary Joint Committee on Intelligence and Security to cover the operations of those agencies. The PJCIS has undertaken some very valuable work. We are, indeed, today debating outcomes of its two latest advisory reports, but the joint committee is presently explicitly excluded from reviewing the operations of the agencies they are meant to oversee.
I have previously spoken about the importance of a well-resourced and capable intelligence community to protect Australia's national interests, and the importance of improving parliamentary oversight of those agencies as they are given more resources, more powers and more responsibilities.
The legislation before the Senate today is another part of the progressive expansion of the roles and responsibilities of the Australian intelligence community. Significantly, by creating new offences related to foreign interference and influence, this legislation will inevitably draw the Australian Federal Police as well as ASIO into the investigation and scrutiny of broad mainstream political activity. We live in a globalised world. Foreign connections are ubiquitous. That is the context of this legislation and the criminal offences it will create. This legislation does represent a significant shift in the relationship between these agencies and broad political activity. In that context, it is essential that we look again at the control and accountability mechanisms that relate to our national security agencies.
In my first 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 and effectiveness and, indeed, operational matters. The PJCIS is currently severely limited in the scope of its oversight role. It is prohibited from reviewing intelligence operations. It is barred from examining sources of information on other operational assistance, operational methods or any particular operations that have been, are being, or are proposed to be, undertaken by the Australian intelligence community. The committee is prohibited from reviewing particular operations or investigations that have been or are being proposed to be undertaken by the Australian Federal Police. These limitations on 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 an approach taken by 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 United States intelligence community as both necessary and appropriate. As I first 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 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 committee and parliamentary system very similar to our own. The Canadian approach would provide an enhanced framework for the PJCIS oversight of our intelligence agencies, with the added provision that any ministerial veto over review of operational matters should be referred to the Inspector-General of Intelligence and Security for review and report to both the PJCIS and the Prime Minister.
I confirmed Centre Alliance's intention to pursue amendments to the Intelligence Services Act during the course of the debate in March on the Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Bill 2018. In May, I moved amendments to the Home Affairs and Integrity Agencies Legislation Amendment Bill 2018 to extend PJCIS oversight along the lines of the Canadian practice. Although the Labor opposition have for some time expressed in principle support for expanding the role of the PJCIS, in May the opposition said that they did not have sufficient time to consider the proposal, and they declined to support it. The same amendments to the Intelligence Services Act are now before the Senate. Both the government and opposition have had plenty of time to consider them—rather more time, I might say, than the Senate has had to consider the very large number of amendments to these bills now proposed by the Senate.
The amendments now moved by Centre Alliance adapt 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 retains existing prohibitions on reviewing information provided by a foreign government 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 most appropriately dealt with by 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 that review would interfere with the proper performance of the relevant body or its function or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations. In this 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 body or its functions 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 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.
The need for the expansion of the PJCIS's role has been recognised by others in the Senate. Former senator John Faulkner urged the reform. The Leader of the Opposition in the Senate, Senator Wong, has similarly 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. If democratically elected MPs and senators cannot be trusted to deal directly with these questions, then something is wrong with the relationship that exists between the intelligence community and the parliament it is ultimately meant to serve.
Centre Alliance moved these amendments without any narrow interest. Neither I nor my colleague, Senator Griff, is a member of the PJCIS—and we don't imagine we will be members any time soon—but we do think expansion of the role and authority of the PJCIS is essential if we are to continue to have full confidence in our national security and intelligence agencies and their relationships with the parliament. I commend this amendment to the Senate.