Monday, 11 September 2006
Intelligence and Security Committee; Report
On behalf of the Parliamentary Joint Committee on Intelligence and Security, I present the annual report of the committee’s activities for 2005-06. I seek leave to move a motion in relation to the report.
That the Senate take note of the report.
Section 31 of the Intelligence Services Act 2001 requires the Joint Parliamentary Committee on Intelligence and Security to report to the parliament annually on the committee’s activities during the previous year. I present the following report as a fulfilment of that requirement. This process is an opportunity for the committee to inform the parliament of the committee’s work in a consolidated form. It is also an opportunity for the committee to review its own work and to review the act as it affects the committee’s operations.
The Intelligence Services Act is relatively new, having been passed in 2001. The committee has been in place since March 2002. Over that time, the work of the committee has evolved and grown because of the nature of the times, something that does not need elaboration for the Senate. Each year the committee has found itself with a steady stream of legislative review, reviews of proscriptions as well as its core requirement of scrutinising the administration and expenditure of the intelligence agencies. The breadth of the oversight task has also grown because of the inclusion in this last year of three additional agencies into the responsibilities of the committee. The committee is still in the process of establishing its procedures and practices as far as the oversight of administration and expenditure is concerned. This report canvasses some of the complexities that the committee faces in managing its responsibilities. However, this is a work in progress and future annual reports will no doubt continue to examine the challenges faced by a committee such as this one.
Last year saw amendments to the Intelligence Services Act which changed the committee’s name from the ASIO, ASIS and DSD committee to the Intelligence and Security Committee. This reflected the fact that, on the recommendation of the Flood inquiry in 2004, the committee’s responsibilities for oversight had increased to include all six intelligence agencies: ASIO, ASIS, DSD, DIO, DIGO and ONA. The size of the committee was increased from seven to nine members with the addition of a new opposition senator and a new government member of the House. A position of deputy chair has been created. The committee now has the capacity to form subcommittees should the pressure of work dictate the need for them.
In the last year, the committee tabled six reports: four reviews of terrorist listings and two reviews of legislation—one a major review of the ASIO questioning and detention powers. In addition, the committee has conducted a review of the recruitment and training procedures of all six intelligence agencies, although this report was tabled outside the reporting period for this report. The committee also has a program of regular private briefings involving the directors of the agencies, the Inspector-General of Intelligence and Security, and visitors—overseas counterpart committees or specialists. Details of all of these activities are listed in the report. The committee has chosen to highlight three issues of procedural and practical interest in this report.
The first affected the conduct of the inquiry into ASIO’s questioning and detention powers. The committee sought clarification of its powers in relation to the calling of witnesses who might have been associated with the operation of the powers under division 3 part III of the ASIO Act. Such people are subject to strict secrecy provisions under the ASIO Act. Nevertheless, the committee had a statutory obligation under the Intelligence Services Act to review the operations of the provisions. The committee sought to conduct as thorough a review as possible while not exposing individuals wishing to give evidence to any serious legal ramifications. Advice received from Mr Bret Walker SC affirmed the rights and protection of witnesses to give evidence to the inquiry so long as the provisions of the Intelligence Services Act for the taking of sensitive evidence were observed. The second issue related to the preservation of archive copies of classified documents within the committee’s own records, a matter that would require amendment of the Intelligence Services Act.
Finally, the committee remains concerned about the application of the non-disclosure provisions of sections 6 and 7 of the Intelligence Services Act. These blanket provisions, which require a series of permissions for both the taking of evidence and the clearances for reports, have been brought to prominence by the increasing role of the committee in legislative review. This is a process which does not necessarily involve national security information and more closely approximates normal parliamentary processes. The committee believes there may be scope for a refinement of sections 6 and 7 to accommodate what are unforeseen circumstances in the work of the committee. This is a report which covers the work of this committee for the past 12 months. I commend the report to the Senate.
The issue raised by Senator Ferguson is a most interesting one—that is, this parliament passed an intelligence act that required secrecy in division 3 part III but also required the parliamentary committee to inquire into its operations. At first view of this issue, I would have thought that parliamentary privilege would have overcome the existing statutory provisions of this act, but it was most fortunate that we did not have to try to reconcile those two issues. The very fact that the act had a requirement for parliamentary review of the act implied that those secrecy provisions would not be necessary. The committee itself treated these areas sensitively. I do not think any information was disclosed at all that would have been of any embarrassment or in breach of the act.
I am most grateful to Mr Bret Walker SC for the very incisive advice that he gave us at a very reasonable price, and he has always done that for parliamentary committees. Too often, you do not see senior counsel giving us a good discount rate out of public service and public duty.
The second issue that has come up is the handling and retention of documents. We are obviously given documents and submissions that have various classifications. It is quite clear that, under the act, we are required to return certain documents. This creates a dilemma for the committee: how do we continue to exist with incomplete records? For the most part, the agencies have been fairly liberal in their interpretation, and we have been able to retain for committee records some of these documents. In the last year, however, ASIO has required that two complete sets of documents be returned to the agency. That, in turn, could have created a problem inasmuch as committee members may have made internal notes on these documents which would have revealed the internal deliberations of the committee and therefore would have been disclosed to ASIO officers receiving it. A compromise was drawn up and those documents are now returned to ASIO, accompanied by a committee member and destroyed within their sight—a rather sensible arrangement, I thought.
The only time that I have expressed any disappointment at the government’s response to our deliberations goes back to the sunset clause on the questioning and detention regime. We as a committee recommended a 5½-year sunset clause. We calibrated it to fit the political cycle, we agonised over it and, in the end, it was not so much a compromise as a complete agreement by the committee that that was the appropriate date for a sunset clause.
Initially, the Attorney-General’s Department, ASIO and the government opposed any sunset clause. Eventually, they compromised and gave us a 10-year sunset clause. Not many of us really regard 10 years as a sunset clause. I raise this issue again just to say that I think governments have to be sensitive to the fact that the more powers that they seek for intelligence agencies, the more they have to be balanced by more scrutiny. Scrutiny is always enhanced when a piece of legislation disappears after 5½ years and you need a proactive decision to resurrect that piece of legislation. As such, I am disappointed. But you do not win everything in politics; you do not win everything as a committee. I accept that. On the whole, the government have been quite reasonable in giving proper consideration to the views. We are, by the way, not the font of all wisdom. We are not always right, and some of our recommendations will be wrong. We just have to accept that some will be rejected. But, in the case of the sunset clause, I still maintain that we are right.
Although this committee was set up in 2002, it had a predecessor in a committee that went back 20 years before that. In the time I have been on this committee, every report bar one has been unanimous. That is not because committee members are great compromisers. They generally approach things, as much as possible, in a bipartisan way. It is never possible to discard your prejudices or your political position. That would be asking too much. If you could find a senator here who would do that then, frankly, I would think they were worthless. If they could so discard their prejudices and their political position, I would not want them here.
The committee has worked hard at consensus. We did disagree over the government listing PKK as a terrorist organisation, although I have to say that no-one on the committee recommended disallowance. Two members recommended reassessment; seven members put in some cautions but recommended that it be continued with. I do not think it is necessarily a bad thing that we do not always produce unanimous reports; I think it is a good idea always to aim at it.
Senator Ferguson mentioned that the committee have been subject to many high-level briefings over the last year just to keep ourselves informed. That is especially valuable when new members of the committee are joining us. We have also seen delegations from the United States, the United Kingdom and, in my absence, they saw a delegation from Vietnam. Later this year, there are at least one or two more delegations coming by.
A development that I also want to commend is the attendance by committee members at the biannual oversight conference. This is a conference of inspectors-general and parliamentary intelligence scrutiny committees that meets every two years to exchange ideas. The next such meeting is in October in Cape Town and the government, I think, very kindly has consented to committee members attending that so that they can better inform themselves. I think that is an excellent development.
Historically, I think one problem we have had, but which is no longer plaguing us, is the fact that staff members of each committee member of this committee have to be positively vetted. This can be a very intrusive process and probably has put off a couple of potential staffers from wanting to go through that very tough process. However, currently, the committee secretariat is doing an excellent job, including the secretary, Ms Swieringa; the inquiry secretary, Ms Hearn; the research officer, Dr Ollif; and also the executive assistant, Mrs Quintus-Bosz. Those four people make a terrific team. It is one of the best staffed committees I have seen for a long while. All the inquiries have proper preparation and the briefing is always excellent. I would like to commend them on the work they put in for this annual report.
Almost lastly, I would like to say that I am very pleased that the issue of a deputy chair was resolved. Initially, it was the intention of the government to have a government deputy chair. They were concerned that if the chairman was absent for long lengths of time this would leave the opposition in charge of the committee. The easy compromise was to say, ‘If that circumstance happens, you have our word that a government person will be able to chair the committee but, in the meantime, let’s have an opposition deputy chair. That means that the chair and deputy chair, when necessary, can get together, agree, conspire or do whatever else they like to be able to move issues forward without having to call a complete committee meeting.’
I am very pleased to say that Mr Anthony Byrne from the Labor Party is now deputy chair of the committee. I suppose his main qualification is that he was the only one of the four Labor members to have a political career in front of him rather than behind him. So we think he will get full value out of the deputy chair’s position.
The last thing I wanted to mention was that we lost a committee member during this period of report. That was Senator Sandy Macdonald, who twice served on this committee. The electors put him on the interchange bench for a few months, so he had to go off the committee while he made his own way in life, but then he came back to the chamber. Senator Sandy Macdonald always was engaged in the issues before the committee. He was always a contributor and always had an intense interest in the issues before us. I do hope that, after the next election, he is qualified to come back and join us—maybe even as the deputy chair. That would be a most appropriate position.
Question agreed to.