Thursday, 25 July 2019
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019, Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019; In Committee
Minister, we were talking about reviews just prior to question time. It's clear that the review authority has all of those restrictions that you mentioned in your answer to me. Section 14 sets out the things that the review authority can consider. They are restrictive in some nature, and I understand your logic; you say that that process is to be quick. Leaving that alone, and noting the Administrative Decisions (Judicial Review) Act is carved out as a pathway, that leaves two methods by which to bring an action to the Federal Court. One is through section 39 of the Judiciary Act, and the other is through section 75 of the Constitution. If it were to go to a judicial review—so not the review authority—is it a matter considered to be in the original jurisdiction of the court as opposed to the appeals jurisdiction?
If it's in the original jurisdiction, Minister, of any court, you can bring in new evidence before the court. I listened to you, prior to the break, telling the chamber that you can't review on a question of fact. The whole point of the original jurisdiction is that you appeal and you have all facts laid out by way of affidavit and other methods to bring information before the court. Only in an appellant jurisdiction do you restrict the appeal to a point of law. So there's something not quite right here. Can you perhaps clear the air, please?
Senator Patrick, I would refer you to my previous extended answers on your very laborious questions going round and round on the same issue. But I can confirm again that there are no changes to the Evidence Act.
Minister, we can stay here all night; there is no restriction on what's going to happen tonight. It's a simple question. I'm not asking about the Evidence Act; if you say that it is in the original jurisdiction, by definition that means you can introduce evidence to a court—which basically is a way of introducing facts to the court. So there's a difference in what you've told the Senate this morning, or previously, and what you're telling it now. There's an inconsistency in that. I'm just asking you to clarify that, please.
Senator Patrick, you can keep asking the same question over and over again in many creative ways, but the Evidence Act still applies, and if people have evidence they want to put that supports their case, of course they can do so.
So that implies you can bring new facts to the table; that's the fundamental point of my question. You might recall I gave an example of a situation where perhaps a mistake had been made by ASIO. In order to initiate a TEO, we have got to have some sort of brief before the minister. My concern is that, at the next stage, the brief is not tested. You can shrug your shoulders, Minister, but there might be someone innocent caught up in this, and we need to be very respectful of the manner in which we treat citizens who may well have been subject to false intelligence. I don't mind if we take someone who is a terrorist and we deal with them as suggested by the act. My only concern here is that when ASIO presents information that is flawed in some way, it needs to be tested at some stage along the way. In the original jurisdiction of a court, that can be tested. You said that it's in the original jurisdiction but then you said it can't be appealed on a question of fact. So there's an inconsistency in your answer and I'm trying to get to that inconsistency. Can you please help me out, Minister?
I will move to section 30 of the bill. Section 30 does raise issues of constitutionality because it states:
If section 14 is not a valid law of the Commonwealth—
So there is some doubt as to whether it is constitutional, then—
(a) it is Parliament’s intention that this Act operate as if that 26 section had never been enacted; …
In effect, what that does is remove the review authority's role in this process. Is that the correct understanding of how that provision works?
Minister, I also have a question on matters relating to the review authority. I'm not talking about the judicial review here; I'm asking about the review authority. Can you confirm that the only decision that will be reviewed by the reviewing authority will be the making of a TEO? And can you confirm that that means that if the minister varies a TEO, that will not go to the reviewing authority?
I can confirm that the reviewing authority will provide independent oversight of the minister's decision to make a TEO against a person in that initial decision, and, immediately after making a TEO, the minister must refer the decision to that reviewing authority. If the reviewing authority finds that the minister's decision is unlawful, the TEO is taken to never have been made.
Thank you; that's answered the first part of my question. I'll just put the second part again: can you confirm that if the minister varies an existing TEO, that will not go to the reviewing authority? Is that correct?
Senator McKim, if you can indulge me, I'm just getting advice on that particular point and I will come back to you shortly—I've just had some clarification from the officials. The Minister cannot vary the TEO once it's been issued.
If I may, perhaps to assist Senator McKim, perhaps this question does also go to return permits and the conditions that can be put on a return permit. Those can be varied—correct?
To follow on from that—I think this is what Senator McKim may be trying to get to—the making or issuing of a return permit and the conditions upon it are not reviewed by the reviewing authority—is that correct?
by leave—I move amendments (1) and (2) on sheet 8693 together:
(1) Schedule 1, page 3 (after line 10), after the heading specifying Intelligence Services Act 2001, insert:
1B Paragraph 29(1 ) ( a)
After "to review the", insert "activities,".
[oversight of intelligence agencies]
(2) Schedule 1, page 3 (after line 19), at the end of the Schedule, add:
3 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
4 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.
[oversight of intelligence agencies]
As I observed in my speech on the second reading, notwithstanding its extraordinary nature the bill before the Senate is part of a well-established pattern. The measures before the Senate today are but another instalment in the steady stream of national security legislation that has come before the parliament over the last two decades. Much of it was spurred on by September 11. Much of this legislation, advanced by both coalition and Labor governments and almost always with bipartisan support, has expanded the powers of our intelligence and security agencies. I might point out that many of the powers that are used by these agencies are used in secret. The agencies themselves have also expanded greatly in size, budget and the scope of their activities. Australia's 10 national security and intelligence agencies now 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.
However, while Australia's intelligence community has grown rapidly over the past two decades, the mechanisms of accountability and review, in terms of overseeing those agencies, have received much less attention, fewer resources and less authority. This is especially the case with the parliament's own scrutiny machine. That vital scrutiny role remains strictly limited. Specifically, the Parliamentary Joint Committee on Intelligence and Security, the PJCIS, is tightly restricted under the Intelligence Services Act 2001 to review only administrative and financial aspects of Australia's intelligence and security agencies. The PJCIS is explicitly prohibited from reviewing the operations of the Australian intelligence agencies. The PJCIS is further restricted in reviewing intelligence-gathering priorities and the operation of Australian intelligence agencies or the assessments and reports they produce. The committee is barred from examining operational activities and methods or any operations that have been, are being or are proposed to be undertaken by intelligence and national security services. 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 agencies 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 parliament continues to ban its own committees from reviewing their operations and other activities, nor can expenditure and administration be adequately examined without consideration of operational performance. They go together.
The exclusion of intelligence operations from parliamentary scrutiny is not an approach followed by some of Australia's closest allies. Indeed, Australian practice now stands in stark contrast to parliamentary oversight arrangements in the other Five Eyes countries—the United States, the United Kingdom, New Zealand and Canada. 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. Those committees have long enjoyed the ability to inquire into all intelligence related activities of the United States government, including highly sensitive operational matters. Wide-ranging congressional inquiries are accepted by the US intelligence community as necessary and appropriate. Oversight is not something to be feared; it's something that can assist.
In the United Kingdom, the Intelligence and Security Committee of 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 British Intelligence and Security Committee of Parliament can consider operational matters when requested by the Prime Minister where they do not involve ongoing operations and it is in the national interest.
Canada is another one of our Five Eyes intelligence partners, and has an intelligence and national security community in size and structure not dissimilar to what we have. 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 the activity is an ongoing operation and the appropriate Minister determines that the review would be injurious to national security; …
The Canadian legislation further provides:
(2) 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.
Review no longer injurious
(3) 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 approach taken by the new Canadian National Security and Intelligence Committee of Parliamentarians provides a good model for Australia to follow. Centre Alliance has already proposed legislation to implement the Canadian model for parliamentary scrutiny of the intelligence communities through the Intelligence Services Amendment (Enhanced Parliamentary Oversight of Intelligence Agencies) Bill 2018.
Last year, the Labor opposition observed that Centre Alliance's bill: 'Contains a number of interesting and innovative measures. Labor believes these measures merit further consideration.' Centre Alliance has now circulated an amendment to the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 that again seeks to expand the role of the PJCIS in a way most closely modelled on that of the Canadian parliament. The amendment will amend the Intelligence Services Act to remove most, although not all, the current legislative constraints on the scope of the PJCIS's inquiries, and would allow the committee to review the operational performance of our intelligence agencies—a vital aspect of any effective scrutiny regime. The proposed amendment to the role of the PJCIS does retain existing prohibitions on:
… reviewing information provided by, or by an agency of, 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 Inspector-General of Intelligence and Security.
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 amendment provides that the relevant minister may certify that a review of the PJCIS that relates to an ongoing operation, and where the review would interfere with the proper performance of the relevant body of its function or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations—if this is the case—then the committee will be required to cease or suspend the review. And:
(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; …
If the minister revokes the certificate, the committee would be free to proceed with the review or commence a new review into the activity. This is effectively the Canadian method. It allows for the PJCIS to review intelligence operations. Should the minister have a concern about a particular sensitivity, the minister can issue a certificate but then must advise the committee once that particular ongoing operation is no longer taking place.
The need for the expansion of the PJCIS's role to cover intelligence agency operations and other activities has long been recognised in the Senate. Former senator John Faulkner strongly urged this broad reform. The Leader of the Opposition in the Senate has expressed in-principle support for broadening the PJCIS's mandate. There is, indeed, a vital principle involved here: 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 communities and the parliament that they ultimately mean to serve.
Centre Alliance has previously moved provisions contained in this amendment to other national security and intelligence related bills. On those occasions, the coalition and Labor were not prepared to lend their support, even though the opposition has indicated in-principle support for the extension of the PJCIS oversight to include operational matters. The government for its part announced in May last year the appointment of Dennis Richardson, a former director-general of security, to review Australia's intelligence and national security legislation. This is the latest in a long series of government 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. However, as Senator Wong has rightly observed, the parliament cannot outsource the question of its own responsibilities in overseeing our large and expanding intelligence and national security services. Enhanced parliamentary scrutiny is very definitely in our national interest. Australia's intelligence communities are not infallible.
In the future, their performance will be tested in much more demanding security environments, and the Australian parliament will need to subject the performance of our intelligence agencies to much closer scrutiny than has been the case previously. This amendment provides a sensible and secure framework within which to extend parliamentary scrutiny through the established mechanisms of the PJCIS. It is a very necessary counterpoint to the further expansion of ASIO powers proposed in the legislation before the Senate today, and I commend the amendment to the Senate.
I rise to speak on the amendment circulated by Senator Patrick. The Labor Party will not be supporting this amendment, but I would like to make a couple of comments regarding the intent of the amendment and the measures put forward by Senator Patrick. He makes the point, of course, that the Parliamentary Joint Committee on Intelligence and Security is the primary mechanism for parliamentary oversight of the intelligence committee but that the committee is currently constrained by its enabling legislation. As Senator Patrick rightly points out, it cannot review a range of issues, including intelligence gathering and assessment priorities, sources and methods, particular operations and investigations, information provided by a foreign government, individual complaints about the activities of intelligence services, anything that does not affect an Australian person, or assessments or reports made by intelligence agencies. Of course, we also know from the way this bill has passed through the parliament today that it will not be able to receive the Independent National Security Legislation Monitor's reports at the same time they're provided to the minister or to be briefed by the National Security Legislation Monitor on those reports.
Senator Patrick is seeking to adapt the model of the Canadian parliamentary oversight legislation to extend the function of the PJCIS. I won't go through the various ways that his amendment seeks to do that. I do say that the opposition thinks there is some merit in the proposals that Senator Patrick is putting forward. The work and the structure of the intelligence community have changed considerably in recent years, and yet our oversight structures here in Australia have not changed with them.
Passing this amendment here today would not be a complete reform approach. There are things that should be considered, such as how expanding the remit of the PJCIS would have effects on its resourcing and also its membership. We think an inquiry would allow these matters to be determined. And thus, whilst I can't say here today that we would support all of the aspects of the amendments, we think there are many that deserve consideration. We would prefer that these matters be dealt with in a private member's bill and that that private member's bill be able to go to a committee.
The chamber would be well aware that this amendment moved by Senator Patrick today has some similarities to the well-known Faulkner bill—I think it has been the Faulkner bill, the Wong bill, and is currently the McAllister bill—I intend to leave it with Senator McAllister—
Yes, I would like that. We could call it the 'McAllister Act', Senator Patrick, if you like, or perhaps the 'McAllister-Patrick Act'. However, I do note that many of those Faulkner reforms have since been picked up in recommendations of the independent review of the Australian intelligence community commissioned by Malcolm Turnbull in 2016. Whilst this amendment moved by Senator Patrick is not the Faulkner bill, it is complementary to it; they approach different aspects of the need to rethink and reform the PJCIS statutory framework.
I just wanted to put that on record: we're not supporting this, because we think this would be more properly dealt with by a private member's bill. We think there are aspects we would support, aspects we might seek to change. We would look forward to working with Senator Patrick and other members of this chamber in order to bring that forward as a bill, and then potentially referral to committee, where these things could be considered.
I will just make a short response to that. I do note that we now have the Labor Party, which doesn't agree with the main bill but will vote for it, agreeing with our amendment, but it won't vote for that. But, thank you very much. I note the remarks that you've put on record, and I will hold you to them, Senator Keneally. Thank you.
I'm glad that Senator Patrick has finally understood the modern Labor Party! But to Senator Keneally: like Senator Patrick, I do thank her for that constructive contribution. It didn't escape my notice that you included membership of the committee in the things that the ALP may be willing to consider. Of course that's the matter that our amendment, which we'll shortly debate, deals with.
But with regard to Senator Patrick's amendment, I'm pretty bored of saying this but I'll say it again: in the last 20 years, there have been more than 200 pieces of legislation in this country that have overridden fundamental rights, freedoms and liberties. We remain the only liberal democracy in the world that does not have a charter of rights or a bill of rights to protect our citizens' rights. This legislation, brought in by the government, supported by the Labor Party, sets up a minister as judge and jury. It undermines the rule of law. It sidelines our judicial system. On that basis, I think it's highly likely to be found to be unconstitutional, so I do predict that this bill will go down in the High Court at some stage. But, for the reasons that we are seeing this ongoing erosion of rights and freedoms and the slow march down the very dark and dangerous road to a police state in this country, we need to make sure oversight provisions are strengthened. Senator Patrick's amendments do that, and on that basis they will be supported by the Greens.
I move amendment (1) on sheet 8719 standing in my name:
(1) Schedule 1, page 3 (before line 11), before item 2, insert:
2A Subsection 28(2)
Repeal the subsection, substitute:
(2) The Committee is to consist of 11 members, 5 of whom must be the following:
(a) a Government member of the House of Representatives;
(b) an Opposition member of the House of Representatives;
(c) a Government Senator;
(d) an Opposition Senator;
(e) a Senator who is not a Government or Opposition Senator.
(2A) The other Committee members may be either Senators or members of the House of Representatives.
These amendments, importantly, would provide for crossbench membership on the Parliamentary Joint Committee on Intelligence and Security and help that committee to do its job, to scrutinise the ongoing march of this country down the road to a police state.