Rex Patrick (SA, Nick Xenophon Team) Share this | Link to 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.

Marise Payne (NSW, Liberal Party, Minister for Defence) Share this | Link to this | Hansard source

I'd like to thank senators for their contribution to the debate and their support for the Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Bill 2018. I would also like to thank the Senate Foreign Affairs, Defence and Trade Legislation Committee for their consideration and recommendation in support of the bill and also acknowledge those who provided submissions to the committee expressing their support for the bill.

The Intelligence Services Amendment (Establishment of the Australian Signals Directorate) Bill 2018 implements the recommendations of the 2017 Independent Intelligence Review. That review recommended that ASD be established as an independent statutory agency within the Defence portfolio reporting directly to the Minister for Defence. This was endorsed by government. The report of the intelligence review was very clear in its views in ensuring that ASD is best structured into the future to meet its responsibilities and the requirements of government. In this context, the review noted:

… ASD will be better placed if it remains in the Defence portfolio but if it is in a position to operate with greater independence from the Department’s requirements, especially those in relation to its capacity to recruit, retain, train, develop and remunerate its specialist staff.

The review continued:

For ASD, the option of continuing to operate within the Department of Defence’s employment framework, even with some specific exemptions, is not the most effective way forward. It would increase the risk of losing additional critical talent, skills and capabilities. ASD needs to be more in control of its own destiny.

Noting those comments, it is also important that I make this point: the bill does not seek to alter the indispensable relationship that ASD has with the Department of Defence and, in particular, with the Australian Defence Force. Underpinning the closeness and the enduring nature of the relationship between ASD and the ADF—and consistent with recommendation 6(c) of the intelligence review—the agency now has for the first time a principal deputy director, who will become the principal deputy director-general with the passage of this bill, position that is filled by a three-star military officer. The creation of this position will ensure that, after 1 July 2018, ASD's primary support to the ADF continues.

The bill does not alter the primacy of ASD's foreign signals intelligence responsibilities as well as the use of its offensive cyberwar fighting capabilities and cybersecurity expertise in its critical support of military operations. Through the implementation of the recommendations of the intelligence review, ASD's functions to provide this support to military operations remain unchanged.

In relation to the employment of staff, ASD will operate outside the Public Service Act framework. This will provide ASD with greater flexibility to recognise the skills of its specialised workforce and to retain those with highly sought after skills, such as those with science, technology, engineering and maths qualifications in particular. While operating outside the Public Service Act framework, ASD will adopt the principles of the Public Service Act with regard to its employees to the extent that the Director-General of ASD considers they are consistent with the effective performance of the functions of the directorate.

I would like to briefly touch on a matter raised by the committee with regard to providing greater clarity to staff around employment conditions. I can assure the Senate and the staff of ASD that workplace agreements and staff entitlements, including mobility rights and maternity leave benefits, will not be adversely affected by the establishment of ASD as a statutory agency. In particular, the incoming Director-General of ASD will work with the Australian Public Service Commissioner to make sure that the redeployment register continues to be available to excess ASD employees. To ensure that employees will retain access to maternity leave entitlements, the government and ASD are working towards amending the regulations in the Maternity Leave (Commonwealth Employees) Act 1973, with ASD actively working towards the necessary changes occurring before it becomes an independent statutory agency on 1 July.

The bill also includes an additional function for ASD to protect the specialised technologies and capabilities acquired in the performance of its other functions. ASD can't perform its important functions without being able to protect its tools to ensure their ongoing utility, which ultimately helps to protect Australia's national interests. The bill also makes a number of transitional provisions to ensure that the good governance of ASD continues during the implementation of the new arrangements.

Importantly, the bill also strengthens the oversight and transparency arrangements for ASD. As an independent statutory agency, ASD will have new corporate reporting obligations, in particular through meeting the requirements of the Public Governance, Performance and Accountability Act 2013. In turn, ASD will have its own component of the Defence portfolio budget statements, and officers will attend Senate estimates hearings not as part of the Department of Defence but as a separate statutory entity. ASD will be required to publicly report on its performance through the release of an annual report.

The Inspector-General of Intelligence and Security is a critically important element of Australia's oversight arrangements for the intelligence community to ensure that all relevant agencies are operating legally and with propriety. Through the implementation of recommendation 22 of the Independent intelligence review, the Office of the Inspector-General of Intelligence and Security will have its resourcing significantly increased to ensure that it can continue its important work as the scale and complexity of the operations of agencies like ASD increases.

The establishment of ASD as a statutory authority puts the agency on a similar footing to the Australian Secret Intelligence Service and the Australian Security Intelligence Organisation as a national security and intelligence asset. Given the critical operational support that ASD provides to the Australian Defence Force, and its increased national responsibilities in relation to cybersecurity, ASD will now have the appropriate statutory functions to ensure it is well placed to support ADF operations as well as its responsibilities for combatting cybercrime, including the provision of advice to the private sector into the future. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.