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

On behalf of the Parliamentary Joint Committee on Intelligence and Security, I present the committee's advisory report, incorporating a dissenting report, on the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023.

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—The committee's report supports the measures in National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023. The bill implements 10 recommendations of the 2020 Comprehensive Review of the Legal Framework of the National Intelligence Community—known as the Richardson review, after Dennis Richardson, the author—that relate to the Attorney-General's portfolio. The bill also proposes two amendments to the Intelligence Services Act 2001.

The recommendations of the Richardson review implemented by the bill would seek to improve or modernise various legal provisions in order to ensure the national intelligence community can continue to undertake its important work effectively and with appropriate accountability in the current environment in 2023 and into the future. The amendments include removing the ability for the Attorney-General to delegate critical powers related to the Australian Security Intelligence Organisation, ASIO, as well as restricting the ability to confer powers related to ASIO to another minister, except in exceptional circumstances: providing defences to ASIO offices to certain criminal offences under the criminal code relating to tampering or interfering with telecommunications and carrier facilities; enabling ASIO to use record and disclose spent convictions information under the Crimes Act for the purposes of performing its functions; streamlining and clarifying the oversight of intelligence agencies by the Inspector-General of Intelligence and Security and the Commonwealth Ombudsman, including the requirement for the IGIS to publish public interest disclosure and complaints information in its annual report; and other reforms to the Freedom of Information Act, Archives Act and the Administrative Appeal Tribunal for intelligence agencies and the IGIS to improve clarity and transparency. These amendments are all based on recommendations made by the Richardson review, accepted by government, and developed by the responsible agencies. The evidence provided to the committee has established that these amendments will deliver the improvements and safeguards outlined by the Attorney-General when the bill was introduced and in the bill's explanatory material.

The committee does make one recommendation in its report regarding the creation of defences under the Criminal Code for ASIO officers when utilising some of that agency's most covert and intrusive capabilities. In evidence to the committee it became clear that the application of the defences may be wider than originally envisaged, in extending to a broadly defined category of 'ASIO affiliates'. Accordingly, the committee has recommended that the explanatory memorandum for the bill be amended to acknowledge this fact, and that future review of the home affairs minister's guidelines to ASIO consider the need for appropriate safeguards over such people and the defences that may be applicable.

The bill contains two further proposed amendments. The bill would amend the intelligence services act 2001 to change the constitution and the quorum of the intelligence and security committee. It would also amend the requirements for directions from the foreign minister to the Australian Secret Intelligence Service (ASIS) regarding activities relating to the capabilities, intentions or activities of people or organisations outside Australia.

These amendments were considered and supported by the committee's report.

Classified evidence provided by ASIS and the IGIS gave the committee confidence that the proposed amendments regarding ministerial directions to ASIS were required for the proper exercise of ministerial responsibility over its most sensitive operations. The committee thanks both ASIS and the IGIS for their forthright cooperation with the committee in this review. This committee is unique in the parliament in its ability to receive highly classified and sensitive information to aid its deliberations, and the cooperation of the intelligence community in that regard helps ensure the appropriate rigour to the committee's considerations.

The proposed changes to the composition of the PJCIS, the intelligence and security committee, increase its membership by two, to 13 members, and its quorum from six to seven members, which will allow for increased flexibility and an increased membership on the committee to engage in its important work. I note that there is a dissenting report from the opposition, which is somewhat disappointing given this has been a very strongly collegiate and bipartisan committee. I would say that the collegiality has continued, although the bipartisanship on this particular report has not, and we have in good faith engaged and done our best to reach a consensus. Unfortunately, on this occasion we haven't.

I would not like to pre-empt the deputy chair's statement on the dissenting report, but I would simply like to say very clearly—and this is important for the record—that the changes that are proposed in the amendments and the recommendations in the committee's report do not change the appointment process or the key requirement that the government of the day hold a majority on the committee. In other words, the powers to appoint any member of this parliament to that committee exist currently and have nothing to do with these particular changes. These changes that are recommended are to increase the number of the committee and also change the composition of the committee, with respect to the requirement for a certain number of members of the House and Senate as a minimum threshold.

On behalf of the committee I would like to thank those who participated in the bill review by providing a high-quality level of evidence within a very short time frame to assist our deliberations. I would like to thank the Deputy Speaker—sorry; I mean the deputy chair of the committee. I would like to thank you, too, Deputy Speaker Vasta, but certainly I thank the deputy chair and other members of the committee for all the hard work that they've put in during the course of this particular review and in the short time frame we had to deliberate.

I commend this report to the House.

Andrew Wallace (Fisher, Liberal National Party) Share this | Link to this | Hansard source

The security of the nation is the primary responsibility of any federal government. The Parliamentary Joint Committee on Intelligence and Security is widely recognised as the most important and functional committee of the parliament and has played a key role in supporting successive federal governments to protect the national security of Australia. Its members, past and present, have prided themselves on working together constructively in a bipartisan way in the national interest.

At the outset, the opposition affirms all of the 10 recommendations contained within the comprehensive review which are the subject of this inquiry. The opposition agrees with those recommendations, as it does with the changes sought by the government with respect to amending part 2 of the Intelligence Services Act, that is, in relation to clarifying the current uncertainty relating to the level of detail required in the ministerial direction issued under section 6(1)(e) of the Intelligence Services Act. The sole point of contention between the government and opposition members of the committee arises out of the government's unilateral proposal to change the member composition and quorum requirements of the committee.

It is with considerable regret that the opposition feels compelled to provide a dissenting report in this inquiry. Opposition members note that this is the first time in 17 years that the committee has not reached a consensus on its recommendations, and it is the first time that I have risen in this place to speak on a report the subject of the inquiry. I've always tried, on behalf of opposition members, to allow the Australian public to consider that when this committee speaks it speaks with the voice of both the government and the opposition. But on this occasion I have to rise.

The committee is peculiar in nature from all other committees of the parliament in that it receives classified briefings from security agencies. Classified information is shared with members of the committee up to the most classified level—namely, top secret. Just like relevant ministers who operate in this sphere, members of the committee are not required to possess any security clearances whatsoever.

In relation to the proposed amendments, schedule 1 part 3 of the bill would amend the Intelligence Services Act to provide that the committee is to consist of 13 members, comprised of at least two government senators, two government members of the House of Representatives, two non-government senators and two non-government members of the House of Representatives. The remaining five members could be drawn from either chamber. It also raises the quorum requirements from six to seven.

One of the great concerns I have, in relation to this inquiry, is the manner in which it is being conducted by the government. This inquiry has been irregular, it has been rushed and it has been contrary to the good conduct of a national security inquiry of this importance. On 29 March 2023, the Attorney-General referred the bill to the committee for inquiry and report. The committee was asked to report less than one month later. No justification was provided for this extremely short time frame. This unreasonably short time line for the inquiry meant stakeholders were given just five business days to provide submissions.

Such a short time frame is disrespectful to stakeholders and, otherwise, unacceptable when it involves the examination of important amendments to national security legislation. Such inordinate pressure regarding legislation that is not so time sensitive is inexcusable and is most certainly contrary to the Set the standard: Report on the independent review into commonwealth parliamentary workplaces. It has to be remembered that these time frames impact not just on members in this place but, importantly, on the secretariat that supports us members—as, of course, it does to stakeholders.

Stakeholders' and the committee's work is hindered by the undue haste in which this inquiry is being conducted. In fact, the Law Council, in their submission, said:

The Law Council has been unable to consider all aspects of the Bill in detail because of the limited time for consultation, nor has it had the opportunity to adequately consult with its membership on the proposed reforms.

Similar complaints were made in other submissions and correspondence received by the committee. In its written submission, the Attorney-General's Department claimed the amendment to section 28(2) of the Intelligence Services Act:

… is intended to allow for greater flexibility in determining PJCIS membership while retaining the requirement for representation of both the Senate and House of Representatives, and Government and non-Government members.

None of the other written submissions included any reference to the changes to the composition of this committee.

In oral evidence given on 11 April, when asked about the risks involved in increasing the number of people on the committee and the risk of classified information being leaked, the Director-General of Security said:

'Need to know' is a sound principle. And, yes, the more people know something, the risk increases.

In response to a question on notice, the Attorney-General's Department conceded that it did not consult with or advise any non-government parliamentarians on the proposed changes to the membership and composition of the committee. It also conceded that these measures were a recommendation of the government.

No appropriate justification has been provided to the committee by the Attorney-General as to the compression of relevant time frames in the conduct of this inquiry. The committee relies heavily upon well-researched, considered, meaningful submissions made by stakeholders in order to do its important work. If the committee is to properly perform its statutory role of oversight of intelligence agencies and relevant legislation, it must be afforded appropriate time frames in which to conduct its own work—unless exceptional circumstances apply, and that is not the case here. The government has tacked on these proposed reforms to a bill, the contents of which are not time sensitive. The former and current governments have been working their way through the comprehensive review's 203 recommendations since December 2019.

There's no evidence that supports the assertion by the Attorney-General's Department that the proposed changes to the composition of the committee would lead to greater oversight and accountability of Australia's intelligence and security agencies. Simply adding a further two members to the committee would not lead to any greater parliamentary oversight—indeed, the opposite may be the case. To allow more members on the committee could result in a perverse outcome. Sharing the responsibility between more members could result in a reduction in the knowledge base of individual members.

In addition, it's important to note that the proposed amendments to section 28(2) of the Intelligence Services Act could result in the government enjoying an overwhelming majority of nine positions on the committee, with the non-government numbers being limited to just four positions. It is entirely possible, under this strict wording of the legislation, that the opposition could be cut out altogether and those four non-government positions could be handed to the crossbench. This is unacceptable to the opposition. Such an outcome would not only significantly weaken the utility of the committee's oversight responsibilities; it would almost certainly impact upon the bipartisan nature and good standing of this committee. It could also create a corporate knowledge gap for relevant members of the opposition who may be called to serve on the committee after a change of government. Politics goes in cycles, and those opposite should always remember that.

The opposition accepts the government of the day should retain a majority on the committee, as currently required by section 28(3). We have no quibble with that. The opposition considers that the only members who should sit on the committee should be parties of government. That has been the case since this committee was established in 1988, with one exception. That is by convention. Yes, the legislation enables, effectively, the Prime Minister of the day to appoint crossbenchers, but by convention that has not been the case, with only one exception. The addition of two more members to the committee increases the risk of classified material being leaked either intentionally or inadvertently, as the Director-General of Security stated in his oral evidence. Axiomatically, the fewer people who know a secret, the less chance that secret has of falling into the wrong hands.

The opposition is greatly concerned that the government's decision to increase the number of members of the committee is as a result of some deal done between the government and the crossbench, and the Prime Minister intends to appoint at least one member of the crossbench as one of the two additional members of the committee. The success of the committee over the years is in part as a result of it being comprised of members of the parties of government, which have a stake in ensuring that national security legislation is effective, workable, consistent and appropriate to the risks faced, no matter what party is in government. This is important because with only one exception, as I've said, at all times members on this committee have been members of parties of government. The addition of a member of the crossbench risks undermining the trust and confidence built up on the committee over successive parliaments and rendering it simply like any other committee of the parliament.

Given the history of bipartisanship on the committee, if government believed these changes were necessary and urgent, they could have approached this inquiry very differently, including by consulting with and seeking the support of the opposition. Instead, by unilaterally proposing changes to the committee as part of a rushed inquiry, the government has given the impression that a political deal has been done with the crossbench to fundamentally alter the composition and therefore the culture of this committee. The proof will be in the pudding as to what happens over the next couple of months.

The opposition also opposes the proposed changes to the committee composition, which could see a significant underrepresentation of one chamber or the other. The opposition is concerned that the proposed changes to the composition of the committee are a result of internal politics within the government. Membership on the committee is a sought-after prize for many members of parliament. After the May 2022 election, the government was not able to resolve who its members of the committee would be for at least three months. Despite the committee being widely recognised as the most important committee of the parliament, it was not capable of being reconvened until 6 September 2022. The committee's important work should never be held hostage to any party's internal machinations.

The proposed amendments to section 28(2) of the Intelligence Services Act were not recommended by Mr Richardson in the comprehensive review. If these amendments were considered necessary or appropriate, one wonders why they were not included in the most detailed examination of the intelligence and security framework since the Hope royal commissions of the seventies and eighties. Indeed, on the evidence of the Attorney-General's Department, the proposed amendments to the composition of the committee were not recommended by any stakeholder. The proposed changes to section 28(2) of the Intelligence Services Act emanate from the government itself, entirely devoid of any consultation with the parliament or stakeholders outside of the executive.

The opposition has not sought to block the proposed amendments to section 28(2) of the Intelligence Services Act for opposition's sake. Rather, it has always sought to be constructive in its approach to the reform of important national security legislation, which is why the opposition provided various alternatives for the government to consider other than the one it landed on. The fact that the government handed down its response to this recommendation on the same day that the report was provided suggests that, on the government's response, it had well and truly made its mind up. This government knew where it was going. The same day the report was handed down, the government provided its response. This was a fait accompli, decided and determined lock, stock and barrel by the Attorney-General before this matter even went to the committee. It is a disgrace. I use those terms very carefully, because it is with no joy that I rise in this place for the first time in 17 years that the PJCIS has not handed down a bipartisan report.