Peter Khalil (Wills, Australian Labor Party) Share this | Link to this | Hansard source

The Albanese government is committed to ensuring strong and appropriate oversight of our nation's intelligence agencies. These agencies play a critical role in keeping Australians safe and in protecting Australia's national interest. Effective oversight of these agencies is critical to building and maintaining trust among Australians, something I'm very cognisant of as the chair of the Parliamentary Joint Committee on Intelligence and Security. Our committee—the PJCIS, as it's known—plays an important role in the oversight of agencies comprising our intelligence community including ASIO, ASIS, AGO, DIO, ASD and ONI. The role we play in the oversight of these agencies as parliamentarians is critical to ensuring their activity and their powers meet community expectations.

In this place we often talk about the declining trust in democratic institutions and government in an abstract way, as if it's effect is only realised in key moments of cumulative disruption. But it is critical to the everyday work of these agencies that we in the government and the dedicated public servants who dedicate their careers and lives to our national interest. Without the faith and cooperation of the broader public, their work and, as a result, our national security are by necessity weakened. This is the importance of oversight. It's not about denigrating the hardworking Australians of our national security agencies. It's not about casting them all with stereotypes from what we may see in the movies and being misinformed by that type of misinformation. It is really about empowering them to go about their work with the faith of the Australian public, who largely not only support their important work but are also immensely grateful for the contribution they make to our safety. In leading the work of the parliament's intelligence oversight committee, articulating and advancing that principle is key to its success. There is a significant amount of good faith and cooperation that goes on behind the scenes to ensure the proper oversight and trust in our agencies. And a lot of that cooperation comes from those agencies, who know this is important for the integrity of the work they do

I reflected on the bipartisan nature of the committee in the past and I would reiterate again the importance of that bipartisanship on the intelligence committee. I think it's probably true to say—this is not a comment on other committees but with the PJCIS—there has been a tradition of leaving partisan politics at the door, because all the members recognise the critical importance of the work that they do in that committee to the national interest and to our national security. That doesn't mean there's not disagreement, certainly not. In fact, there is very robust debate and very often clear differences in views on the substance of the issues, on the execution, on the outcomes and so on. But, at least in my experience on the committee, there has been a good-faith effort made by all members, regardless of their political persuasion, to work as much as possible to reach a consensus on the very important issues that we put to government because, at its heart, we recognise that the work we do is of critical importance to our national security and to our national interest. No matter what side we sit on in this place, I believe that we all share a fundamental commitment to the peace and prosperity of our nation. That's, at its core, something that we all agree upon.

That cooperation extends to our agencies themselves and the people who engage with our committee as we go about our work. I want to highlight and thank the agencies for their professionalism in engaging with our committee and other oversight bodies. The workload is already significant for the agencies. as is the workload for our committee, the PJCIS. In that light, the cooperation and assistance with the functions of the committee demonstrate the high degree of professionalism and pride that guides their work.

So I wanted to contextualise my remarks on this bill today in this way, because, having worked in the national security and foreign policy space for over two decades, I know the critical work that goes on each and every day in our security and intelligence agencies. I also know that it's often a thankless job, done behind the scenes without much fanfare and certainly with no media attention on it, or at least no big pats on the back, if you like, in a public sense. And success is often measured in prevention. It's often measured around what doesn't happen, which is always very difficult to quantify, in a sense. So, it can be and has been an easy target for criticism, sometimes misdirected, in disagreements over policy rather than matters of operational substance.

Unequivocally, I want to recognise and thank the members of all of our intelligence, security and national security agencies today. No-one really needs to tell us how important their work is. I know how important their work is. They go about their job every day, intentionally forgoing recognition or public praise to get the job done. That's really important to recognise. I also want the agencies and the some 8,000 public servants—and that's what they are: 'servants' of the nation—to know that in legislating oversight arrangements your contribution is highly regarded and appreciated in this place. Supporting the work that those intelligence agencies do—all of those 8,000 public servants—and the Australian public's faith in it are key objectives of the federal government.

The Inspector-General of Intelligence and Security, the IGIS, plays a critical role in overseeing the activities of Australian intelligence agencies through looking at the legality, the propriety and the consistency of human rights as well. This bill that we are debating amends the Inspector-General of Intelligence and Security Act 1986, the IGIS Act, and makes consequential amendments to related Commonwealth legislation to clarify and strengthen the IGIS's powers. The vast majority of the measures in this bill have been previously reviewed and unanimously supported by the Parliamentary Joint Committee on Intelligence and Security, the PJCIS—our committee. This bill will ensure that the IGIS's current legislative framework is adapted to contemporary circumstances and continues to facilitate effective oversight. As I said upon presentation of the PJCIS report on our inquiry into this bill in the House, the committee expressed its support for the measures in the bill that will enhance the oversight of Australia's intelligence agencies by the Inspector-General of Intelligence and Security.

This bill will provide IGIS officials with powers to access information that is required as part of their oversight role. It includes the power to enter and remain on any premises, to have full and free access to any information and to make copies or take extracts from documents held by those agencies. It also improves information-sharing mechanisms, ensuring that the IGIS is able to share information, subject to appropriate safeguards, with other Commonwealth integrity bodies, including the Commonwealth Ombudsman.

These amendments will support integrity bodies to obtain information that is required for their oversight purposes and strengthen the IGIS's ability to coordinate with other integrity bodies. They will also make clear that the IGIS has the ability to inquire into human rights related issues in the absence of a referral from the Australian Human Rights Commission, which has been the previous practice. It required the Human Rights Commission to refer any particular case to the IGIS. As someone who has spoken out numerous times in parliament and in public about the promotion and protection of human rights, I will note how much I support this reform which makes clear our commitment to advancing the cause of human rights not only abroad but also here at home

This bill also provides important protections for whistleblowers to fully disclose information to the IGIS without fear of breaching strict secrecy provisions or committing an offence. This will facilitate continued effective oversight by ensuring IGIS officials can receive and have full access to the information they require to perform their oversight role.

I commend the Attorney-General for his role in advancing these critical reforms and I extend my thanks to those who participated in the PJCIS inquiry into this bill, many of whom also play an important role in defending our national security. I commend the Albanese government for its strong commitment to Australia's national security and to strengthening faith in our institutions with these appropriate oversight mechanisms. Again, I thank the 8,000 people who work in the intelligence and security community for their commitment, their dedication and their work, which often is not praised publicly, as I said earlier, and not even noticed or talked about publicly but which plays such an important role in advancing Australia's national interests and keeping Australians safe.

Keith Wolahan (Menzies, Liberal Party) Share this | Link to 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.

Julian Hill (Bruce, Australian Labor Party) Share this | Link to this | Hansard source

I'm particularly glad my colleague the member for Hasluck has arrived, because I don't actually have 15 minutes of contribution. I had threatened to start reading out large slabs of the submission in the committee's report if not—so there we go! I want to record a few brief comments. This is a critically important institution, as previous speakers have rightly acknowledged, albeit in varying levels of soporific tones—such is the nature of the Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022. I'm not having a go at you, actually, Keith!

It oversights Australia's intelligence and security agencies, the IGIS does—the Inspector-General of Intelligence and Security, funnily enough, if the clue wasn't in the name. But these agencies have enormous and deeply intrusive powers which, unchecked, unmonitored or misused, could genuinely threaten the foundations of our democracy and our self-conception and reality of a liberal society. I'm pleased to serve as a member of the Parliamentary Joint Committee on Intelligence and Security. Constantly—pretty much every meeting, really—through that committee's work we're reviewing government national security legislation and undertaking regular statutory reviews, scheduled reviews of existing national security legislation and the statutory obligations to oversight the intelligence and security agencies. Through all of those aspects of our work, we're constantly grappling with the tension and imperfect balance between collective security and individual liberty, which are deeply complex matters. There's often no perfect answer; it's about where you draw the balance and where you draw the line.

The PJCIS was the successor to the Parliamentary Joint Committee on ASIO, which was introduced by Prime Minister Bob Hawke in 1988, to his credit, with a degree of courage to take on then institutional resistance to the establishment of that committee because it was directly not recommended in the Hope royal commissions. Prime Minister Hawke made what I think was the right call. In the long run, strengthening democratic oversight and parliamentary oversight of the intelligence and security agencies was both the right thing to do from a democratic point of view but also, importantly, over time it is a protective factor for those agencies. Dealing with the heads of the agencies, they certainly profess that and, I think, believe it in their acknowledgement that the work of the committee strengthens their social licence to do what needs to be done. Hopefully it is a protective factor or a trust-building factor when mistakes occasionally are inevitably made and when they come to public light.

All of the agencies and all of the legislative work we do are balanced, at least in my mind, on three tests: is this necessary, is it proportionate to the risk and is it subject to effective oversight? The IGIS itself is necessarily powerful. It reports to ministers. The IGIS is not an officer of the parliament; it sits within the Prime Minister's portfolio. But the reports of the IGIS are classified and provided to the responsible ministers. They are a critical tool for ministers to be able to fulfil their responsibilities to oversight the agencies and to refer matters of concern.

The bill does two things. It seeks to strengthen the oversight arrangements for the inspector-general and ensure the enabling legislation is adapted to contemporary circumstances. This includes expressly empowering the IGIS and his staff to enter and remain on any intelligence premises, gain full and free access to any information and make copies or take extracts from documents held by the intelligence agencies. There are also amendments to clarify that whistleblowers are able to fully disclose classified information to the IGIS without breaching secrecy or unauthorised disclosure offences. The bill also implements two recommendations of the Richardson review, which was the full review, nerdy and long, of all of the intelligence and security recommendations which flowed out of the most recent review of the intelligence agencies, the Merchant and L'Estrange review from 2017.

Importantly, the implementation of those recommendations would see a preclusion on the appointment to the office of the IGIS of a person whose immediate prior role was the head or deputy head of an agency. I'd just draw the Chamber's attention to the recommendation of the committee. We had a look at this, and the committee's recommendation is that that go a little further—I'm not sure yet what the government's position on those amendments will be; hopefully we will deal with them in the Senate—and preclude the appointment of anyone who has worked in an intelligence agency for an appropriate period of time, and not just as head or deputy head. It's probably semantics, but there should be no reason to oppose that and make sure that that's an ironclad, watertight prohibition on a potential conflict. Secondly, the IGIS should be amended to give an inquiry function for employment related grievances of staff employed under the Office of National Intelligence Act, recommendation 174—yes, there were many hundreds of recommendations.

The only other thing I want to place on the record a few brief remarks about was that there was a bill in the previous term that lapsed. It contained the stuff that's in this bill but it also had a few other aspects, including an expansion of the jurisdiction of the parliamentary joint committee and the IGIS to cover all 10 agencies in the national intelligence community. There was a little bit of a divergence of view around some of this between the 2017 review of the intelligence agencies and the Richardson report. I'm really pleased that the Attorney-General has confirmed publicly that he is currently considering these issues. They don't form part of this bill consciously—it's not that the government has forgotten; it's a deliberate decision to not include those changes at this point, in this bill, because the Attorney is considering more broadly possible amendments to the Intelligence Services Act to deal with this and related matters.

I'll just place on the record that my preliminary view would be that the jurisdiction of the PJCIS and the IGIS does need to be extended to cover those agencies, but there's also the question of the PJCIS's relationship with the IGIS more broadly. And these are my views, not government policy. I don't see it as strictly necessary—and this contradicts the position of many senior people in the Labor Party in previous terms, but not all—that the PJCIS gain full operational oversight of the intelligence agencies. This has been a significant point of debate over the past decade or more. I've sort of shifted my view on that in recent years, having thought through it and having the experience of being on the PJCIS. I think that to do so risks Benghazi-style politicisation. That's not a final view, but I think there is a risk there.

And I think there's enormous information and resource asymmetry, frankly, between any group of busy parliamentarians and the many-thousand-strong secretive world of the intelligence agencies. I think it'd be almost impossible to set up a system unless you had a committee staffed with 40 or 50 staff who dealt with that information and resource asymmetry in a realistic and meaningful way, as well as the deeply complex and problematic secrecy issues, given what 'operational oversight' actually means and given the nature of what these agencies do and, frankly, the lives of Australians at risk if that secrecy is compromised.

I think that instead we could consider a stronger reporting line between the IGIS and the PJCIS. I just put that on the record as something I'm particularly attracted to. The parallel I'd draw in saying that is with the Auditor-General, who is an officer of the parliament and works on behalf of the parliament with a staff and a bunch of resources that the parliament gives the Auditor-General to oversight the public sector—the efficient, effective, economical and ethical use of taxpayer funds. I'd draw that parallel. The IGIS has the powers of a standing royal commission and works on behalf of the executive to interrogate and assure the legality and propriety of the intelligence and security agencies.

To close that loop, the PJCIS would be far better positioned to perform our statutory oversight role on behalf of the parliament if we had the benefit of a line of sight to more—perhaps not all, but most—of the IGIS's work. There'd need to be some appropriate redactions. But, as a committee member, I would feel far more confident in sitting there behind closed doors, sometimes for days on end, interrogating ASIO, ASD, ASIS and all the others if I knew what the IGIS was seeing in terms of breaches of law or systematic problems, be they cybersecurity, human issues or whatever, and feel far more assured that I could do the job that the parliament has appointed me and my colleagues to do on behalf of the parliament to oversight these agencies. There'd need to be appropriate redactions. We don't need to know every little spying operation and all that kind of stuff. Hence I'm sceptical about the need for full operational oversight. But it is about strengthening that line. At the moment there is no real formal reporting relationship. Indeed, worse than that, as the committee's report makes clear:

The Committee is concerned about the growing restrictions on information sharing between this Committee and the IGIS.

3.8 As discussed in Chapter 2 of the report, several provisions of the IGIS Act are prescriptive about the circumstances in which information can be shared, which, when aligned with the secrecy provisions contained in the Act, actively prevent the Inspector-General from sharing non-operational information with the Committee even when the information would be directly relevant to the functions of the Committee and the Inspector-General may be minded to share the information if not for legislative limitations.

I just want to put that on the record. I trust that the Attorney will be thinking about these issues carefully, as he does. It seems to be low-hanging fruit to remove some of those limitations. But, to the greatest extent that we can colour in that line—what I'd describe as perhaps a solid dotted line, not a faint dotted line and not necessarily a hard line, between the IGIS and the committee—I think the parliament's need for assurance over the agencies would be much better served. I commend the bill to the House.

Gavin Pearce (Braddon, Liberal Party, Shadow Assistant Minister for Health, Aged Care and Indigenous Health Services) Share this | Link to this | Hansard source

I welcome the opportunity to speak on the Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022. I do so after a couple of decades in the Defence Force in the signals intelligence community, in the Royal Australian Corps of Signals, from a tactical and operational perspective, so this is an important subject for me. The subject of classified material and intelligence security is uppermost in my mind. I reflect back to my time at the 7th Signal Regiment (Electronic Warfare) unit, based in Cabarlah in South-East Queensland. It is a role that 7 Sig has done for many decades—intercepting and prosecuting enemy transmissions in the area of operations in the defence of Australia.

Those young men and women that are up in that unit are often involved in what we call the black arts of defence, cloaked in secrecy and cloaked in security. Their stories often aren't told. But I want to make it very clear—I want to put it on the record today—that those young men and women of the 7th Signal Regiment and our signals intelligence operators are absolutely professional and force multipliers when it comes to prosecuting a target in the area of operations. They have saved lives on many, many occasions. They have been on every deployment and every operation, both disclosed and undisclosed. They use cutting edge equipment in satellite communications in tactical areas such as radio communications, broadband communications and the like. Together with the two-shop—that is, general intelligence—the formulation of that intelligence picture is then painted to the commander on the ground, which makes that commander's job that much more efficient and effective. So let me state that this is an important subject. This is important at the tactical level, but once we get above the operational level and start getting into strategic protection of intelligence, particularly signals intelligence, that is of the utmost importance for me.

This bill amends the Inspector-General of Intelligence and Security Act 1986, the IGIS Act, to ensure that legislation governing the Inspector-General of Intelligence and Security, IGIS, is adapted to reflect contemporary circumstances. Everyone in this room and everyone in Australia understands the changes in geopolitical tensions throughout the region, particularly in the Indo-Pacific region. Defence plays a big part in that, and intelligence is at the forefront of that defence. This includes technical amendments to clarify and to modernise drafting expressions and to remove redundant provisions, so it cleans the act up. The bill also provides amendments to ensure and enhance that IGIS's oversight functions and powers are maintained at all times and are commensurate to the risk. It's important to note that these measures do not seek to expand IGIS's jurisdiction—that's an important thing to have on the record—but merely to enhance IGIS's oversight of the agencies within existing jurisdiction.

Australia's dedicated oversight body, the Inspector-General of Intelligence and Security, is crucial to our nation's ongoing security and maintenance of all types of classified material and intelligence. Created in 1986, the Inspector-General of Intelligence and Security has become our independent watchdog over intelligence and security agencies more broadly. For 35 years, the inspector-general has performed a critical role in ensuring that Australia's intelligence agencies act legally and with propriety. The powers of the intelligence and security agencies have evolved significantly over this time and they continue to evolve. It's important that the inspector-general's powers and jurisdiction evolve commensurate to that. Our domestic and international threats have changed, as I said earlier, and the way in which intelligence and security manage those ever-present, ongoing threats has also changed in those 35 years, but the powers of the inspector-general have not changed to meet this evolution. It's therefore necessary and paramount that we make sense of the powers of the inspector-general and that they are adaptive and responsive to this rapidly changing environment.

To that end, I think this bill amends that and meets those challenges. It amends the Inspector-General of Intelligence and Security Act 1986, the IGIS act, and other Commonwealth legislative frameworks to enhance the oversight of the Office of National Intelligence, the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service, the Australian Signals Directorate, the Australian Geospatial-Intelligence Organisation and the Defence Intelligence Organisation.

Importantly, this bill also implements two recommendations of the Comprehensive Review of the Legal Framework of the National Intelligence Community. This was a wide-ranging review of Australia's laws governing intelligence and security, undertaken by former Australian Security Intelligence Organisation Chief Dennis Richardson. It was released in 2020.

Recommendation 172 deals with IGIS's independence and their eligibility to be appointed to IGIS. Recommendation 174 relates to inquiring into employment related grievances for staff at the Office of National Intelligence. The coalition agreed to both of these recommendations when in government, and we were pleased to see them implemented in this bill also. So, well done to the government.

In relation to PJCIS's examination of the bill, as the previous speaker has already alluded to, on 7 February PJCIS went through an extensive investigation of these matters. Government referred this bill to the PJCIS for inquiry and report. Subsequently, on 20 March, the report of the committee was tabled. The PJCIS made five recommendations, two of which are relevant to this specific bill, as far as I'm concerned. Recommendation 2 suggests amending the provisions around the aggregation of privilege so that they align with the privileges for other integrity agencies. Recommendation 4 suggests excluding people employed by any intelligence agency for an appropriate period of time. The government has indicated that it is not acting to amend the basis of these recommendations but will consider the recommendations, particularly recommendation 4, in the next tranche of IGIS legislation.

From our position, we support this legislation. We also note other matters raised by PJCIS, particularly the need for greater information sharing, as a previous speaker alluded to; greater sharing of intelligence and matters between IGIS and PJCIS; and the need for an expanded oversight of the PJCIS and IGIS to cover of the entirety of the national intelligence committee. I think it needs to have a holistic, strategic position in this big picture. That interface, between the committee and the commissioner, is absolutely paramount.

While I've learned from two decades of dealing with classified signals intelligence particularly is that the overclassification of those matters tends to lead to mistakes happening. We can be too secretive, we can be too cloaked and too compartmentalised. So I'm pushing for this particular recommendation, that the delineation of responsibility between the committee and the commissioner is highlighted, is clarified and is clear for all to see.

Finally, the government should give these matters serious consideration. I appreciate the chance to speak on this important matter and commend this bill to the House.

Tania Lawrence (Hasluck, Australian Labor Party) Share this | Link to this | Hansard source

A rather poignant quote from the Canberra Times editorial in May 1984 reads:

The watchdogs have to be constantly watched. None the less watchdogs are necessary.

  …   …   …

Liberty and security go hand in hand. Without liberty there can be no security; without security there can be no liberty.

One of the key differences between a democracy and a totalitarian regime is the lack of effective oversight of the executive in the latter. This is an issue I spoke on about a fortnight ago in the debate on the Ministers of State Amendment Bill. Likewise, on the bill for the National Anti-Corruption Commission I opined that corruption undermines trust and trust is the basis of legitimate government.

This legislation is also about effective oversight, and of parts of the executive government that must by necessity conduct most of their operations secretly. The Inspector-General of Intelligence and Security is a fundamental way in which trust is engendered in the workings of our security services. Integrity and respect are vital in our national institutions. Today, the Office of the Inspector-General of Intelligence and Security is headed by the Hon. Christopher Jessup KC and has broad support across the parliament, as we have heard from our previous speakers, as does the Joint Committee on Intelligence and Security, which was established at the same time. But this was not always the case.

The Hope Royal Commission on Intelligence and Security was established by the Whitlam government in 1974 and reported in 1977. In 1986 the Hawke government enacted the legislation for an Inspector-General of Intelligence and Security, which had been a recommendation of that commission. When the legislation was before the parliament in 1986 it was opposed quite vehemently by some members of the then opposition. The late Hon. Michael Mackellar, the Liberal member for Warringah, said:

I have great difficulty in accepting that the office, when it is established, will do anything but make it more difficult for ASIO to operate in a proper fashion.

The Hon. Neil Brown, a former Liberal member for Menzies said:

… the very notion of having an Inspector-General to second guess an intelligence agency is utterly absurd and it is a severe restriction on its effectiveness. The powers to be given to the Inspector-General will negate a lot of the effectiveness of ASIO and its activities.

The opposition spokesperson the late Hon. John Spender said:

… we certainly would not permit, in any legislation to be introduced into this House when we have the carriage of legislation, that there should be inquiries of the kind contemplated by the Bill, that is, inquiries into practices alleged to be contrary to human rights. It is perfectly absurd and quite obnoxious that that kind of inquiry should be directed against an intelligence organisation.

Well, those fears have not been realised in the decades since the creation of this legislation. Former Labor Attorney-General Lionel Bowen, upon introducing the bill, said he believed: 'The creation of this office is a highly beneficial addition to the machinery of government.'

Interestingly, some commentators have suggested the rise of integrity agencies constitutes a new differentiation and separation of powers within our system of government. We have all grown up with the teaching that Australian system involves three heads of power—the legislature, the executive and the judiciary. However, integrity bodies such as IGIS and the new National Anti-Corruption Commission are not easily categorised under any of these. Perhaps we need to accept that our world has changed and so change the way we describe and teach about our separation of powers. Indeed, on the introduction of this amending bill, Attorney-General Dreyfus stated quite rightly that 'strong and effective oversight mechanisms do not stand in opposition to Australia's national security interests. They are best understood as an essential part of advancing them'.

Separate from the office of the IGIS and constituted by its own act, we also have Independent National Security Legislation Monitor, which reviews the operation, effectiveness and implications of national security and counterterrorism laws. The current Independent National Security Legislation Monitor is Mr Grant Donaldson SC. I agree with the Attorney-General on the need for strong and effective oversight organs.

In 2010 I was the principal policy adviser to three consecutive West Australian premiers on security and emergency management. These were the Labor premiers Gallop and Carpenter, and Liberal Premier Barnett. In that role I advised the premiers on our state responses to terrorism. I worked on committees supporting the national counterterrorism efforts and provided input to the COAG processes and decision-making, providing draft instructions on different laws both state and federal. As part of my role was working on the National Counterterrorism Legislative committee, I was specifically involved in the drafting of the Anti-Terrorism Act and the state-equivalent versions, particularly around preventative detention. I can share with the House that, during those deliberations, questions of safeguards and human rights were front and centre and the role of IGIS in ensuring propriety and respect for human rights was appreciated and valued—although, I must say, contested. This was at the time that David Hicks was still in Guantanamo Bay. We can recall the history and record of the struggle there was to restore his human rights and dignity and to return him to Australia. The extent to which the legislation was unified around the nation and reflected in state laws completely underpins the need for these oversight bodies.

The preventive detention laws, which refer back to the antiterrorism acts, enable a person to be detained without charge and without the knowledge of their family or their employer for a given period of time. I had the responsibility of inspecting the potential places where a person could be detained. I can't speak to it today, but certainly back then in jurisdictions like Western Australia the accommodation options were limited, particularly for women and juveniles. We are talking about extreme, draconian laws that we had to work through, and the only sense of a surety that the human rights of each individual would be observed within the constraints of trying to prevent an act of terrorism or to control a person who had committed an act of terrorism, where their freedom of movement would be limited, was to have the security inspector to oversight that activity.

With any security legislation—state or federal—there is a need for vigilance not only over the operations of those powers but also against the creep of powers. I know that in those extensive meetings we held framing, forming and drafting those laws we were very concerned that they were understood to be draconian, that they were only meant to be used in the context of terrorism. But since that time, I am sad to say, I have seen the laws stretched to be considered to be appropriate to apply to bikies. I have seen attempts to apply them to protesters. That was never the intention behind those laws. It is important that our security—

A division having been called i n the House of Representatives—

Sitting suspended from 10:52 to 11:03

In a democracy we must minimise laws that can only be described as Draconian. It's all the more reason to have an oversight body to assist and provide feedback where operations fall short of the mark in any area. This amending bill helps to further empower the IGIS in reasonable and measured ways. I note that the Attorney General has flagged a number of other areas in the field of security which are under active review.

The inspector-general works in two main ways. Firstly, the office is empowered to conduct inquiries. The amending bill seeks to enhance the ability of the inspector to commence an inquiry. Secondly, the inspector conducts proactive inspection activities. Through both of these roles, the IGIS supports the creation of a culture of compliance within the intelligence organisations. There is also regular formal correspondence between the IGIS and each of the agencies. These points of contact and the ability of IGIS to make recommendations to the agency heads contribute to a more reflective intelligence service. Recommendations by the IGIS appear to be taken very seriously. It is important to note that the IGIS has the powers of a royal commission and can report his or her dissatisfaction to a minister and, albeit in a careful manner, in the annual report tabled to parliament. The IGIS is also able to provide feedback to the Joint Committee on Intelligence and Security.

The powers of the IGIS are a significant consideration which intelligence agencies must take into account when conducting their important work. In order to conduct their oversight role, IGIS officers are cleared and empowered to enter any Australian security agency and inspect the work being done, including emails, files, correspondence and other documentation. In relation to this task, I understand that IGIS is now building its own IT department, whereas it has in the past been reliant on the IT services of each agency.

Last year's annual report by IGIS disclosed that the organisation received hundreds of pieces of correspondence, 80 of which were ascertained to be complaints under the act. In relation to their oversight of each organisation, the reports on ASIO are demonstrative, with 21 inspections completed and 30 compliance incidents reported.

When we create security legislation and when we create legislation to provide oversight of our security apparatus, we are engaged in a balancing exercise. In a democratic society there must be ways to assure ourselves that our security agencies are acting with proprietary while at the same time allowing them to carry out their activities without the publicity that would render them less effective. In this balancing exercise there are a number of rights and interests that need to be considered, including the principles of the separation of powers, which I spoke to earlier, between the different branches of government, as well as the divisions of powers between levels of government within the federation, the accountability of government agencies' work practices within those agencies, civic and human rights and, of course, the right to protest.

The Independent National Security Legislation Monitor, which commenced in 2010, was carried into being by the Attorney-General and the previous Labor government. The Attorney-General referred in his second reading speech on that bill to 'the balance between the liberties that Australians enjoy—indeed, the liberties that Australians have fought wars for—and the need for authorities to be armed'. We have separated the roles of overseeing the legislative framework by the Independent National Security Legislation Monitor and overseeing the operations of agencies by the IGIS. This separation is a good thing.

The modern role played by our security agencies is not easier than in the past. Researcher Ben Scott recently remarked:

The blurring of old distinctions between security, economics, development and technology is a recurring theme of the new geopolitics.

Globalisation, economic interdependencies and an increase in cyber-interference and cyberattacks—sometimes state-sponsored—mean that it is more difficult terrain for our services to navigate. It is, in short, a more difficult world within which to write a credible spy thriller and a more difficult world in which to operate a security agency. I am satisfied that the system that we have here is working and that the amendments to this act will assist IGIS in its important work. I commend the bill to the House.

Aaron Violi (Casey, Liberal Party) Share this | Link to this | Hansard source

Before I start, I want to commend the member for Braddon, who spoke earlier and shared his experience in the Signals Directorate, for the words he spoke in thanking those men and women who do the service that they do and for the lives and safety that they provide for the Australian public. I want to echo his words and also thank him for sharing a bit of an insight into their work because, by its very nature, many Australians—myself included—don't know or understand the work they do. As with many great agencies, we don't know what they do and we hear about them only when things go wrong, so I want to echo the words of the member for Braddon.

When it comes to the intelligence and security of our nation, it is vital that our legislation remains modern so that our security and intelligence agencies can continue to operate with our nation's best interests in mind. It is crucial that the Australian public have trust in our security and intelligence agencies. The work of the Australian Security Intelligence Organisation, the Australian Signals Directorate, the Australian Geospatial-Intelligence Organisation, the Australian Secret Intelligence Service, the Office of National Intelligence and the Defence Intelligence Organisation is often carried out in secret, and for good reason. But this means that many of the usual forms of democratic accountability—whether it be questioning in parliament, in the media or in reporting—are often not appropriate. That's where our dedicated intelligence oversight body, the Inspector-General of Intelligence and Security, comes in.

Oversight mechanisms such as the Inspector-General exist to strike the right balance between national security and individual rights. It's a balance that can be hard to strike but it's important that we get that balance right. Our role as parliamentarians is to ensure that the Inspector-General of Intelligence and Security is empowered to carry out its oversight functions, and the way we do that is through ensuring that our legislation is up to date. And just as the powers of intelligence and security agencies need to be updated as new challenges arise, particularly with the rapid rise of digital technology, we must ensure that the powers of the Inspector-General of Intelligence and Security are also updated to allow it to respond to new threats. The Inspector-General of Intelligence and Security has significant investigative powers similar to those of a royal commission, including powers to summon witnesses, question under oath, enter intelligence agencies and access all relevant information and documents. This bill seeks to modernise the legislative framework to allow the Inspector-General of Intelligence and Security to continue its important and great work.

The bill implements two recommendations of the Richardson review, the Comprehensive Review of the Legal Framework of the National Intelligence Community. The first of these recommendations will prevent the head or deputy head of an agency within the jurisdiction of the Inspector-General of Intelligence and Security from being appointed as the Inspector-General of Intelligence and Security immediately after serving in that position. We are of the view that it would not be appropriate to appoint a person to the Inspector-General of Intelligence and Security who was previously the head of one of the agencies that it oversees. And it is necessary that there is a distance between the head of the oversight body and the agencies within the remit. That was the position taken by the Richardson review and it's the position of the coalition. It's a sensible change to remove any perception of conflict of interest. This bill implements that change, and we welcome it.

The second recommendation from the Richardson review that this bill implements is to allow the Inspector-General of Intelligence and Security to consider employment-related grievances for staff of the Office of National Intelligence. This will resolve an oversight gap to ensure that staff employed under the Office of National Intelligence Act 2018 can access an independent review for employment grievances. As it stands, there is no pathway of redress for these workers. This bill will change that by filling the gap and ensuring that all workers have grievance mechanisms available to them. This is important work.

This bill will also allow the Inspector-General of Intelligence and Security to manage jurisdictional double-ups. There are a number of other integrity bodies that also have jurisdiction over some agencies within the remit of the Inspector-General of Intelligence and Security. The Richardson review noted, for example, that the Commonwealth Ombudsman and Inspector-General had oversight of the same agencies. This creates the potential for duplication of oversight. The bill will reduce this duplication by allowing the Inspector-General of Intelligence and Security to streamline information sharing between the bodies.

In short, many of the measures proposed by this bill are sensible changes that were previously considered by the Parliamentary Joint Committee on Intelligence and Security. Many of these measures were also previously contained in the coalition's Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020. However, this bill is not the same as our bill. Labor's version does not bring AUSTRAC or the Australian Criminal Intelligence Commission within the remit of the Inspector-General of Intelligence and Security, and we believe that it must.

This bill also admits the significant oversight function of inquiring into a decision in relation to an Australian government security clearance of the highest level. 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 a key difference: that a referral from the Australian Human Rights Commission would be required. That filter is not applied by this bill. The operational impact of these changes and the implication for Australia's national security architecture have not been scrutinised. Australia's national security architecture is too important to simply change without carefully considering the consequences. The risk of unintended consequences is too high. On 7 February, at the urging of the opposition, the government referred this bill to the Joint Committee on Intelligence and Security for inquiry and report, and the report of the committee was tabled on 20 March.

The PJCIS report made five recommendations, two of which are relevant to the bill: recommendation 2, which suggests amending the provisions around the abrogation of privilege so that they align with provisions for other integrity agencies, and recommendation 4, which suggests excluding people employed in any intelligence agency for an appropriate period of time. The government is not acting to amend on the basis of these recommendations but have indicated that they will consider recommendation 4 in the next stage of the IGIS legislation. We support this legislation. We also note other matters raised by the PJCIS, particularly the need for greater information sharing between the IGIS and the PJCIS and the need for expanded oversight of the PJCIS and the IGIS to cover the entirety of the national intelligence community. The government should give these matters serious consideration to strengthen the important framework that ensures that the Australian public has trust in its intelligence and security agencies.

Jenny Ware (Hughes, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022. Broadly, this legislation relates to the way our intelligence and security agents operate. I take this opportunity to endorse the words spoken by the member for Braddon today in this place and thank all those who serve our country through working in our intelligence and security agencies. Most of this work is necessarily done in secrecy, and it is therefore very important that the Australian public have trust and faith in our intelligence and security agencies.

I turn to the bill itself. The stated purpose of the bill is to amend the 1986 act and a number of other related acts. This will involve tidying up some administrative matters, including enhancing the Inspector-General's oversight powers, supporting appropriate information sharing by the Office of the Inspector-General and implementing two recommendations that came out of the Comprehensive Review of the Legal Framework of the National Intelligence Community. Particularly, those two recommendations related to the appointment of the IGIS Inspector-General and consideration of employment related grievances. The bill will also make consequential amendments to a range of legislation to ensure that information that is protected by existing secrecy offences under that legislation can be disclosed to IGIS officials who are performing duties or functions or exercising those powers as IGIS officials. For all the reasons that I'm now going to highlight, I support this bill.

Just broadly, the structure of the bill is divided into three schedules. Part 1 contains primary amendments to the IGIS Act, which the government states is aimed at improving and streamlining IGIS reporting and information-sharing procedures. It also seeks to modernise and clarify drafting expressions and removes some redundant provisions. Part 2 then contains consequential amendments to a wide range of related legislation, including the Australian Human Rights Commission Act, the ASIO Act, the Intelligence Services Act and the Office of National Intelligence Act. Schedule 2 includes amendments that, it's stated, are in line with the National Anti-Corruption Commission Act 2022.

By way of background, the Inspector-General of Intelligence and Security, which I have referred to as the IGIS, is an independent statutory holder in Australia established under the IGIS Act. It reviews the activities of Australia's intelligence and security agencies to ensure that they are acting with legality and propriety and consistent with human rights. The IGIS has the power to investigate complaints, conduct own-motion inquiries and conduct inquiries as directed by the minister and also has the power to access information held by intelligence agencies. This is obviously very important, and when accessing that information the IGIS has two main aims. These are, firstly, to ensure that the public interest in the proper functioning of the security and intelligence agencies is met and, secondly, to promote public confidence in the national intelligence community, known as the NIC. There are many acronyms within this legislation that I'm going to refer to.

In regard to the purposes and functions of the IGIS generally, the stated purposes of the IGIS include assisting ministers in oversight and review of a range of matters. These include things such as the legal compliance and the propriety of intelligence agencies, the effectiveness and appropriateness of the procedures of intelligence agencies and various other aspects that are incidental to the legal compliance issues. Another purpose of the IGIS is to ensure that the activities of intelligence agencies are in alignment with human rights. The IGIS also has the function of investigating Commonwealth agency intelligence or security matters, which can include agencies that are not intelligence agencies. The last stated purpose is to assist the government in assuring parliament and the public that there is scrutiny of intelligence and security matters associated with Commonwealth agencies, with a focus on intelligence agencies.

As you can see, Mr Acting Deputy Speaker Stevens, the IGIS has very important purposes and functions. Generally, the IGIS reviews various intelligence agencies under its jurisdiction. These include ASIO; ASIS; the Australian Signals Directorate, ASD; the Australian Geospatial-Intelligence Organisation, which is known as AGO; the Defence Intelligence Organisation, or DIO; and the Office of National Intelligence, ONI. Therefore, IGIS has oversight of network activity warrants by the Australian Criminal Intelligence Commission and the AFP.

In fulfilling the purposes and powers to which I've just referred, the IGIS has the power to formally inquire into the activities of Australian intelligence agencies in instances of a complaint or of referrals from a minister. The Inspector-General can also initiate inquiries, conduct inspections, monitor agencies and, in some instances, investigate complaints. When conducting inquiries, the Inspector-General has the power, among others, to require the attendance of a witness, take sworn evidence, copy and retain documents, and enter the premises of Australian intelligence agencies, so it has very broad powers of investigation.

I am just going to speak now to the review of the legal framework of the national intelligence community. This is work that was commissioned by the then Attorney-General in May 2018 and was undertaken by Mr Dennis Richardson, AC. The terms of reference of the review provided that the review would comprehensively examine the effectiveness of the legislative framework for the NIC and prepare findings and recommendations for any reforms. The outcomes of the review were delivered in a report released by the then Attorney-General on 4 December 2020. With respect to the amendments contained in the bill on which I speak today, relevant recommendations included what I will call recommendation 172 and recommendation 174.

In detail, recommendation 172 provided:

The Inspector-General of Intelligence and Security Act should be amended to preclude the appointment to the Office of the IGIS of a person whose immediate prior role was as head or deputy head of an agency within the IGIS' oversight remit.

Recommendation 174 provided:

The Inspector-General of Intelligence and Security Act should be amended to give the IGIS an inquiry function for employment related grievances of staff employed under the Office of National Intelligence Act.

The government response to the report was released on the same day as the report itself. With respect to recommendations 172, the government at the time noted:

Agreed. The IGIS has a unique role as the primary body with responsibility for intelligence oversight. Accordingly, this additional safeguard on IGIS's independence (and perceived independence) is appropriate.

Recommendation 174 was also agreed to by the government. The purpose of these recommendations is to allow the IGIS to ensure propriety and compliance with laws, ministerial directions and guidelines, and consistency with human rights.

The IGIS can make inquiries firstly of its own motion, secondly in response to complaints and thirdly in response to disclosures from members of the public, including current and former agency staff, under the PID Act 2013 or at the request of a responsible minister or the Prime Minister. The IGIS has strong investigative powers similar to those of a royal commission. As such, we have to ensure that there is integrity in the process and that we have confidence that the investigative powers of the IGIS are being carried out appropriately. Significant resources are directed towards ongoing investigation to identify issues before the need for major remedial action.

To conclude, this bill updates the IGIS Act to bring it into line with modern drafting standards. Importantly, it also implements two recommendations, recommendations 172 and 174, of the Comprehensive Review of the Legal Framework of the National Intelligence Community, also known as the Richardson review. I note this was work done under the former coalition government. The two recommendations were agreed by the previous coalition government, and the provisions are to ensure that the IGIS is able to continue to act independently. For all of the reasons I've already stated, I commend this bill to the House.

Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Link to this | Hansard source

I thank my parliamentary colleagues for their contributions to the debate on the Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022. Just as the powers of intelligence and security agencies need to be adapted from time to time to address new security challenges, the powers of the Inspector-General of Intelligence and Security must also adapt in response to the changing nature and activities of intelligence and security agencies.

The Inspector-General of Intelligence and Security Act was enacted in 1986 and was designed for a smaller agency and a different Commonwealth integrity framework. This bill will enhance the inspector-general's oversight of the agencies within its existing jurisdiction—

A division having been called in the House of Representatives—

Sitting suspended from 11:27 to 11: 38

As I was saying, this bill will enhance the inspector-general's oversight of the agencies within its existing jurisdiction, ensuring that Australian oversight functions are commensurate with the functions and powers of the intelligence agencies. Strong and effective oversight mechanisms do not stand in opposition to Australia's national security interests. They are best understood as an essential part of advancing them. To that end, this bill will bolster the ability of the Inspector-General of Intelligence and Security to provide effective oversight of intelligence agencies within its jurisdiction.

I note that the Parliamentary Joint Committee on Intelligence and Security presented its advisory report on this bill to the House on Monday. The government will consider the committee's report and table a government response in due course. I commend the bill to the House.

Question agreed to.

Bill read a second time.

Ordered that this bill be reported to the House without amendment.