Keith Wolahan (Menzies, Liberal Party) Share this | Hansard source

I congratulate the member for Wills not only on his role as the chair of the Parliamentary Joint Committee on Intelligence and Security but also for his lifelong commitment to serving our nation in many ways. He is right to point out and recognise the 8,000 people who serve in our agencies. They don't get to march on Anzac Day. They don't have memorials. Often their friends and family don't know exactly what they do every day. There are many times that they have protected us and kept us safe, and only they know. We thank them for that. Not all of their work is nine to five. A lot of it is dangerous work outside of hours and it is difficult, so it is important that we acknowledge them.

I also congratulate the member for Wills, particularly, on your role as the chair of the PJCIS. It's an important parliamentary committee, and it's an important recognition that the parliament, as a separate branch, has a role in the oversight of the executive branch. The way that committee conducts itself is the gold standard. I, and the member for McNamara, opposite, on one of the newer committees, the Parliamentary Joint Committee on the National Anti-Corruption Commission, the PJCNAC, can learn a lot from your committee on bipartisanship and on our commitment to making sure another key institution serves this nation as well as it can. We'll certainly take that with us going forward.

The Inspector-General of Intelligence and Security and other Legislation Amendment (Modernisation) Bill 2022 amends the Inspector-General of Intelligence and Security Act 1986 to modernise the legislation that provides for the Inspector-General of Intelligence and Security. Before I go through the background, I will note that with a lot of bills there are discussions about the human rights implications. The member for Wills singled out some of the human rights implications. There is an important point to be made. Often the Australian Human Rights Commission, when it makes a submission, notes that we don't have a charter of rights. There is an implication there that the only way to protect rights is through a charter of rights and through the courts and through lawyers. I think that misses a key point, which is that the obligation to protect human rights is an obligation on everyone, including the parliamentary wing of government and the executive branch. Human rights don't disappear just because they're not able to be litigated in a court. So when we speak of a charter of rights or that submission is made, it's really talking about who decides how rights are protected. That often means balancing competing rights. How do you balance competing rights? It's not an easy thing. There is a role for the courts and there is a role for judges, but when it comes to balancing all of the other considerations that we have, I think the parliament, which is accountable to the people in elections and through the media between elections, has a very important role. We should never forget that in the debate about a charter of rights.

The IGIS is an independent statutory office, and it oversees the following agencies: ASIO, the Australian Signals Directorate, the Australian Geospatial-Intelligence Organisation and its predecessor. I remember that we would often go to them to produce maps, and they would constantly remind us: 'We do so much more than maps.' One day we walked into the operations room and there was this 3D model of a whole area we were looking at in Afghanistan. That was 10 years ago, so I wonder what they would produce now. There's also the Australian Secret Intelligence Service, the Office of National Intelligence and the Defence Intelligence Organisation.

The IGIS will have oversight jurisdiction over the use of the network activity and warrants by the Australian Criminal Intelligence Commission and the Australian Federal Police. The act will empower the IGIS to conduct inquiries into alleged misconduct. It's an important check on power, and its purpose is to protect human rights. This allows the IGIS to ensure propriety and compliance with laws, ministerial directions and guidelines and consistency with human rights. When we go back to acknowledging and thanking the 8,000 members of the agencies, all of them are human too. Humans make mistakes and errors, so this oversight function is extremely important.

You cannot have an oversight function without strong investigative powers. They are similar to those of a royal commission. They include powers to summon witnesses, to question under oath, to enter the premises of intelligence agencies and to access all relevant information and documents. When you think of the agencies that the IGIS will have oversight over they are quite extraordinary powers, and they are warranted. The IGIS will have significant resources to direct investigations and to identify issues before the need for major remedial action. That's an important point. It's not just about addressing problems after they've happened; it's about trying to pre-empt them before they do.

This bill updates the IGIS Act to bring it in line with modern drafting standards. Importantly, it also implements two recommendations of the Richardson review, which I'll briefly summarise. Recommendation 172 deals with the IGIS's independence and eligibility to be appointed. The IGIS is appointed by the Governor-General on the recommendation of the Prime Minister, who must first consult with the opposition leader. That is a very important part of this process. I look to the member for Macnamara and say that perhaps that's something that should be occurring for the NACC commissioner, but that's not what has happened. The IGIS Act guarantees the tenure of the IGIS for a fixed term of appointment, with limited grounds for termination. From the judicial branch of government we know that tenure is a key part of independence, and that is important here too. The act confers broad powers on the IGIS to obtain information as discussed and also allows the IGIS to investigate matters and conduct inquiries on their own-motion powers. That is important. It can't just be that you rely upon a whistleblower or on something coming to your attention.

These provisions ensure that the IGIS is able to act independently. In reality we know that much of the actual and perceived independence of an officeholder depends not upon the act and not upon the institution but on the individual's character. Are they a good person? The people we put in these positions are human, with all of the biases and flaws that humans have. We must acknowledge that. The person who occupies this position is just as important as the institution. It is appropriate for there to be some distance between the head of the oversight body and the agencies within that person's remit. It would not be appropriate to appoint a person as the IGIS if their immediate prior role was as a head or deputy head of an agency within their jurisdiction. That's just common sense. That would be an obvious bias, or at least a perception of bias. That was the position taken in the Richardson review, and it is the coalition's position.

I'll conclude with the other Richardson review recommendation, which is recommendation 174. This recommendation relates to inquiring into employment related grievances for staff of the ONI, the Office of National Intelligence. Employment related grievances mean things like complaints about promotion, termination, discipline, remuneration and other similar matters that affect work. It might be that Joey has left his lunch in the fridge for too long and everyone is getting a little bit upset with that. You never know what a grievance matter constitutes. For most employees in the Public Service there is a process, and that's under the Public Service Act. But staff at the ONI are not necessarily employed under that act; they are employed under the Office of National Intelligence Act, so there's no path of redress for them. This recommendation bridges that gap.

Finally, there are a number of duplications that are addressed here. There are many other integrity bodies which have jurisdiction, and that has been addressed too. The Richardson review noted, for example, that the Commonwealth Ombudsman and the IGIS had oversight of the same agencies. This creates the potential for duplication. Where there is a potential for duplication there is a potential for conflict, miscommunication, misunderstanding and waste. There is an onus on all of us to reduce waste in government, and this is an example of that. That duplication will be addressed and there will then be consistency in terms of the treatment of the agencies within the jurisdiction. It will be able to inquire into DIO, the Defence Intelligence Organisation, and the Office of National Intelligence, ONI, and that brings the treatment of the agencies into line with the treatment of others within IGIS's remit.

When it comes to due diligence in national security measures, in principle many of these measures are sensible and were previously considered by the PJCIS. The PJCIS supported the Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020, and many of the measures now before the House are therefore uncontroversial. Unlike the coalition's integrity measures bill, this bill does not bring AUSTRAC or the Australian Criminal Intelligence Commission within the remit of IGIS. We do submit that this is an oversight. It's a significant one because that function of enquiring into a decision in relation to an Australian government security clearance of the highest level is an important one. The bill confers jurisdiction to inquire into acts and practices that may be inconsistent with or contrary to a human right. The coalition had previously proposed a similar function, with the key difference being that a referral from the Australian Human Rights Commission would be required, and that filter is not applied in this bill.

We submit that it's appropriate for a parliamentary committee to give the bill scrutiny, and it will allow all of us in this place to understand the effect of the changes. It is a matter of good practice for due diligence. Australia's national security architecture is too important to simply change without carefully considering the consequences. The risk of unintended consequences is high. That is why we say this bill should be considered by a committee, and, subject to that committee inquiry, the coalition will support the measures of this bill.

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