Thursday, 10 December 2020
Australian Security Intelligence Organisation Amendment Bill 2020; In Committee
by leave—I move Independent amendments (1) and (2) on sheet 1044 together:
(1) Clause 2, page 2 (at the end of the table), add:
(2) Page 116 (after line 7), 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 Subsections 29(3) and (4)
Repeal the subsections, 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, ONI, AFP or the Immigration and Border Protection Department.
3 After section 29
29A Ceasing or suspending review of agency activities
(a) the Committee undertakes a review under section 29 of an activity by ASIO, ASIS, AGO, DIO, ASD or ONI; 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) A decision of the Minister under subsection (1) must not be questioned in any court or tribunal.
(3) Where the Minister gives a certificate under subsection (1) in relation to a review, the Committee must cease or suspend the review.
(4) If the Minister:
(a) becomes aware that the activity is no longer ongoing; or
(b) is no longer of the opinion that 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 must, within 28 days after becoming aware of the fact or forming the view:
(c) revoke the certificate; and
(d) inform the Committee in writing.
(5) If the Minister revokes a certificate in accordance with subsection (4), the Committee may proceed with the review, or commence a new review into the activity.
With this bill we are dealing with yet another instalment of counterterrorism legislation, part of the steady drumbeat of national security measures presented to this parliament over the last couple of decades. In due course we will be dealing with more national security legislation that will flow from the government's response to the review undertaken by former ASIO director-general Mr Dennis Richardson. This process of constant review and consequent expansion of intelligence and security powers appears to have no end. Over two decades, our intelligence community has grown greatly in size, employing many thousands of staff and spending billions of dollars annually on highly secret operations. The parliament has repeatedly extended the responsibilities and powers of those agencies. They have a vastly expanded mandate to protect the Australian people and to gather information and make decisions that may profoundly affect individual citizens.
In the case of this legislation, which deals with detention powers, the advice of our intelligence agencies may indeed result in persons being deprived of their liberty and fundamental rights. These are very significant powers that must always be exercised with caution, restraint and only on the basis of highly accurate and verified information. I must say, our intelligence agencies are highly professional. But they are not infallible. They do make mistakes. The case of Dr Mohamed Haneef is just one case in which our intelligence agencies got things horribly wrong.
Intelligence is often an opaque and ambiguous business. Consequently, as I have observed previously, I have long been of the view that the parliament's preparedness to increase the powers and authorities of our intelligence agencies and the powers and authorities of the ministers who exercise control over those agencies must be matched with an equal preparedness to improve scrutiny of the intelligence community by the parliament. In this regard, there is a major deficiency unique to Australia among the so-called Five Eyes countries that our Parliamentary Joint Committee on Intelligence and Security is explicitly excluded from being able to review the operational activities of the intelligence communities.
Just so everyone is clear about this, our Constitution grants this parliament the ability to pretty much have a scrutiny role over every action, every operation and every bit of expenditure by the federal government, and those powers, as we know, extend beyond that. There is a restriction on the PJCIS asking questions on operational matters, but that's because the parliament decided to do that. That may have been an appropriate decision back when the Intelligence Services Act was given royal assent and when the PJCIS was established. However, as it currently stands, we have a major deficiency in democratic accountability, and I have on several occasions introduced amendments to the Intelligence Services Act to extend the mandate of the PJCIS to cover operational matters. There should be nothing controversial about such a measure. My amendments are closely modelled on the provisions governing the role of the Canadian parliament's intelligence oversight committee.
So far, both the coalition government and the Labor opposition have declined to support these measures. Although Labor have expressed in-principle support, they haven't been able to bring themselves to vote for them, and I'm hoping that they may do that today. The government will stand up and say that Mr Richardson's review has recommended against an expansion of the PJCIS's oversight to cover intelligence agency operations. But that's to be entirely expected. After all, Mr Richardson, a very long-serving national security bureaucrat, had no interest in enhancing parliamentary scrutiny. That's one of the reasons the government chose him, and not some eminent legal figure, to carry out the review. The fix was in from the very beginning. The Richardson review could have provided an opportunity to bring Australian parliamentary scrutiny of intelligence into line with our allies and up to an appropriate standard of democratic accountability. But that was an opportunity the government was determined to miss. So today I once again am moving amendments to legislation to propose that the parliament expand the mandate of the PJCIS to include review of intelligence agency operations and not be limited to scrutiny of just administrative and financial matters.
The argument for this measure is very clear. Intelligence operations can have highly significant diplomatic, military and human rights aspects. Within the bounds of appropriate security and secrecy, the parliament should be able to scrutinise intelligence operations, the success or failure of which may be of vital importance to our nation. Proper parliamentary scrutiny should not stop at the edge of the intelligence community. On the contrary, the special and highly secretive nature of those agencies demands proper democratic accountability, and that accountability cannot be achieved without non-executive members of this parliament being fully admitted into that secret world. The measure I propose is not radical. Again, it is very closely modelled on the mandate of Canada's National Security and Intelligence Committee of Parliamentarians. However, I do not expect the government to support this change.