Tuesday, 14 August 2018
Intelligence Services Amendment (Enhanced Parliamentary Oversight of Intelligence Agencies) Bill 2018; Second Reading
That this bill be now read a second time.
I seek leave to table an explanatory memorandum relating to the bill.
I table an explanatory memorandum and I seek leave to have the second reading speech incorporated in Hansard.
The speech read as follows—
This Bill will amend the Intelligence Services Act 2001 to extend parliamentary scrutiny to the operations of Australia's national security and intelligence agencies.
The Bill is presented against the backdrop of the steady stream of national security legislation that has come before the parliament over the past two decades. That constant legislative activity has come in response to the threat of terrorism after the September 11, 2001, attacks in the United States, and as a response to broader changes in Australia's national security environment including increased threats of espionage, foreign interference and cyber warfare.
Much of this legislation, advanced by both Coalition and Labor Governments and almost always with bipartisan support, has expanded the powers of those intelligence agencies very significantly. There has also been an absolute revolution in global communications and data processing and storage which has transformed the scope of intelligence collection, turning it into a global enterprise with vastly deeper reach into people's lives.
Australia's ten national security and intelligence agencies employ more than 7,000 people and spend well over $2 billion each year while they accumulate massive amounts of information at home and abroad.
While Australia's intelligence community has grown rapidly over the past two decades, the mechanisms of accountability and review overseeing those agencies have received much less attention, resources and authority.
In particular the Parliamentary Joint Committee on Intelligence and Security (PJCIS) has been tightly restricted under the Intelligence Services Act 2001 to review the administration and expenditure of Australia's intelligence agencies: Australian Security Intelligence Organisation (ASIO), Australian Secret Intelligence Service (ASIS), Australian Geospatial Intelligence Organisation (AGO), Defence Intelligence Organisation (DIO), Australian Signals Directorate (ASD) and the Office of National Assessments (ONA).
The PJCIS is explicitly prohibited from reviewing the operations of Australian intelligence agencies. The PJCIS is prohibited by the Intelligence Services Act 2001 from reviewing intelligence-gathering priorities and operations of Australian intelligence agencies, or the assessments and reports they produce. The committee is further 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.
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.
These limitations on parliamentary scrutiny have reflected a historical reluctance of past governments and intelligence agency officials to trust Members of Parliament outside the executive with the most sensitive intelligence information.
However the PJCIS can't hold these agencies properly accountable for their activities if the parliament continues to ban its own committee from reviewing their operations and other activities. Nor can expenditure and administration be adequately examined without consideration of operational performance.
Three decades have passed since the establishment of the Parliamentary Joint Committee on the Australian Security Intelligence Organisation in 1988. Over some thirty years the Parliamentary Joint Committee, supported by its secretariat, has demonstrated its capacity to handle highly sensitive information with absolute confidentiality and security. It is not credible to suggest that senior Members of Parliament, often including former ministers with direct experience overseeing intelligence agencies, serving as members of the Joint Committee, cannot be trusted to inquire into and review the most sensitive intelligence matters, including information relating to intelligence agency operations.
The complete exclusion of intelligence operations from parliamentary committee scrutiny is not an approach followed by some of Australia's closest intelligence partners.
In the United States, Congressional oversight of the intelligence community is spread across several committees, including specialised committees on intelligence in the House of Representatives and the Senate. While each Congressional committee has some limits on what it may examine, taken collectively committees have long enjoyed the ability to inquire into all of the intelligence-related activities of the US Government, including highly sensitive operational matters. Wide ranging Congressional inquiries are accepted by the US intelligence community as necessary and appropriate.
In the United Kingdom, the Intelligence and Security Committee of the British Parliament is empowered by the Justice and Security Act 2013 to oversee the expenditure, administration, policy and operations of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters. The Intelligence and Security Committee can consider operational matters when requested by the Prime Minister and where they do not involve ongoing operations and it is in the national interest.
Canada is another of our "5-eyes" intelligence partners and has an intelligence and national security community in size and structure not dissimilar to our own.
Under section 8 of Canada's National Security and Intelligence Committee of Parliamentarians Act 2017, the Canadian parliament's intelligence committee can review:
"any activity carried out by a department 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"
The Canadian legislation further provides that:
"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."
"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."
This Bill broadly 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 Bill removes most, though not all, the current legislative constraints on the scope of PJCIS inquiries.
It does retain existing prohibitions on reviewing information provided by a foreign government where that government does not consent to the disclosure of the 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 Bill provides that the relevant minister may certify that a review by the PJCIS relates to an ongoing operation and 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. 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 body of 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 Bill thus adapts the Canadian model with the independent Inspector-General of Intelligence and Security able to act, if needed, as an umpire between the Minister responsible for intelligence agencies and the PJCIS.
The need for an expansion of the PJCIS's role to cover intelligence agency operations and other activities has been recognised by others in the Senate. Former Senator John Faulkner strongly urged this broad reform.
The Leader of the Opposition in the Senate, Senator Penny Wong, has also rightly observed that parliamentarians cannot outsource their duty to ensure the security of our nation and the people who entrust us with the responsibility of governing.
This is absolutely true.
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.
Centre Alliance has previously moved the provisions contained in this Bill as amendments to other national security and intelligence related bills.
On those occasions the Coalition Government and the Labor Opposition were not prepared to lend their support, even though the Opposition has indicated in principle support for extension of PJCIS oversight to include operational matters.
The Government for its part announced in May this year the appointment Dennis Richardson, former Director-General of Security and former Secretary of the Departments of Foreign Affairs and Trade and Defence, to undertake a wide-ranging review of Australia's intelligence and national security legislation.
This is the latest in a long series of reviews, largely conducted by former intelligence and national security bureaucrats who, at least previously, have had little enthusiasm for parliamentary scrutiny of the intelligence community.
According to the Attorney-General, Mr Richardson's review will consider options for "harmonising and modernising the legislative framework that governs the activities of our intelligence agencies to ensure they operate with clear, coherent and consistent powers, protections and oversight."
Against this background, the Government may well be tempted to say that it will await the outcome of Mr Richardson's review before giving any further consideration to these issues.
As Senator Wong has rightly observed, however, the Parliament cannot outsource the question of its own responsibilities in overseeing of our large and expanding intelligence and national security agencies.
Consequently, in introducing this Bill, I also foreshadow that Centre Alliance will in due course seek the Senate's approval to refer the Bill, by means of a resolution in accordance with Section 29(1) (b) of the Intelligence Services Act 2001, to the Parliamentary Joint Committee on Intelligence Services for inquiry and report.
The PJCIS regularly reviews and produces advisory reports on national security legislation proposed by Government. It would be timely, in this thirtieth anniversary year of the establishment of the Parliamentary Joint Committee on ASIO, for the PJCIS to examine this and report to the Parliament about its own role and functions. It can do so in parallel with the broader inquiry being undertaken for the Government by Mr Richardson.
The Government, and the national security bureaucrats who have long resisted parliamentary scrutiny, will also have to engage positively with the idea that greater parliamentary scrutiny is required to ensure that both national security and our individual liberty and privacy are properly protected.
Australia's intelligence community agencies 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 of our intelligence agencies to much closer scrutiny than has been the case previously.
This Bill provides a sensible and secure framework within which to extend parliamentary scrutiny to the operations of Australia's national security and intelligence agencies.
I commend the Bill to the Senate.
I seek leave to continue my remarks.
Leave granted; debate adjourned.