John Faulkner (NSW, Australian Labor Party) Share this | Hansard source

I am delighted that there are so many senators in the chamber to listen to my contribution on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, which of course contains a broad range of measures designed to enhance the capability of Australia's law enforcement, intelligence and broader protection agencies to protect the Australian community from the threat posed by returning foreign fighters and individuals in Australia supporting foreign conflicts.

This bill was introduced into the Senate on 24 September. It was referred to the Parliamentary Joint Committee on Intelligence and Security and the Senate Legal and Constitutional Affairs Legislation Committee, both of which reported on the 17th of this month. Even with the short and, I believe, inadequate time available to it, I must say that the PJCIS has worked very hard to examine and scrutinise the bill, and it has done so effectively and closely. The committee made 36 recommendations—many of them calling for quite substantial changes or clarifications. I understand that the government has now agreed to all the recommendations made by the PJCIS. As a result, the federal parliamentary Labor Party determined at its meeting this morning that it will support this bill—but it will, however, propose a number of amendments in the committee stage.

With more and more legislative changes boosting the powers of security agencies, the requirement for effective external oversight is now critical to maintaining an essential level of trust in the community about agency operations. Today I want to use the opportunity of this speech in the second reading debate on the bill to speak about this issue and to state very clearly the importance of this issue of oversight of our intelligence and security agencies. I believe that the time is right for a comprehensive review of the oversight of Australian intelligence agencies as further security measures are brought into the parliament for consideration.

I think that there are a number of steps that not only are worthy of debate, both inside and outside this chamber, but also could be readily adopted to enhance our current system. Last Friday, in fact, I posted a paper on my website, which was also posted by the Lowy Institute and published by the Australian Financial Review. That paper recommended eight measures to improve the oversight and scrutiny of our intelligence and security agencies. I do commend these proposals to the Senate and, as I said, I intend to take the opportunity of this second reading debate to outline some of these proposals to the Senate.

It is the parliament to which the intelligence agencies are accountable, and it is the parliament's responsibility to oversight their priorities and effectiveness. The Australian parliament has no better or more authoritative forum than the Parliamentary Joint Committee on Intelligence and Joint Security, the PJCIS, to do this job. The PJCIS is established under part 4 of the Intelligence Services Act—the ISA. Schedule 1 of the act contains detailed provisions about the committee's operations and appointment processes. But the provision of the ISA regarding a prescribed balance of PJCIS members between the Houses has, I think, been an unnecessary impediment to ensuring that the best-qualified eligible parliamentarians serve on this committee. I believe this should change to ensure that the PJCIS has the capacity to draw on those parliamentarians with the greatest expertise and experience in this area.

I also want to talk about the role of the Australian Federal Police, which now of course is absolutely central in Australia's counter-terrorism framework. In its report on this legislation the PJCIS, in recommendation 14, proposed that the committee's functions be extended to encompass the counter-terrorism activities of the Australian Federal Police, including, but not necessarily limited to, anything involving classified material. I have been arguing the merits of this proposition for a number of years, and I am pleased that the committee has again proposed that the government move in this direction—as it did in its report in 2010 on the review, administration and expenditure of intelligence agencies.

To ensure comprehensive and consistent oversight arrangements, it is critical that the AFP's counterterrorism elements be added to the list of organisations reviewable by the PJCIS and to achieve this section 29(1) of the Intelligence Services Act 2001 should be amended accordingly. Also, currently the Intelligence Services Act stipulates the functions of the committee as review of the administration and expenditure of agencies, including their annual financial statements and in addition, of course, any other matter referred by a minister or resolved by either house of the parliament. I argue that the powers and the access of the PJCIS should be enhanced to include access to more classified information and material, including reports and the classified annual reviews of intelligence agencies so that it can do its job more effectively. Of course, in considering the provision of such additional material, the critical issue arises of where to draw the line. It is clear that some types of information are so sensitive that they should not be provided to the PJCIS, even if the committee were given a broader remit.

I have outlined in my paper some examples of such sensitive information such as revealing the identity of a confidential human source or a human intelligence source; current or planned operations but not necessarily past operations; revealing the identities of agency staff past and present, unless that requirement was waived by the agency head; technical details of nonhuman intelligence sources including cryptology; data or information provided by another country, unless that other country consents; current vulnerabilities of ICT systems, installations or infrastructures relating to national security; and, technical capabilities which are subject to protection beyond the top-secret level.

The PJCIS in that report of 2007 proposed that a small working group drawn from relevant departments, agencies and the committee be set up to recommend the types of material which the PJCIS could access, material which should remain off limits and amendments to the ISA enabling any proposed changes for consideration by government. I think this proposal has real merit and I hope to see it implemented.

In addition, currently the PJCIS can only request a matter be referred to it by a responsible minister. In the United States and the United Kingdom, the equivalent parliamentary committees set their own agenda and work programs. It is time for the PJCIS in Australia to be given the power to generate its own inquiries if it believes, following consultation with relevant agencies, that such action is necessary and appropriate. Also, the Inspector-General of Intelligence and Security, who provides detailed scrutiny of the legality and propriety of intelligence agencies' operations, must have her office adequately resourced. The government and the parliament must ensure that the resources and level of staffing provided to the IGIS continue to meet the growing demands and responsibilities placed on them by the expansion of the Australian intelligence community and its powers.

It is critical that the government and the PJCIS regularly review or audit these resources, including the level of staffing and their expertise, within the office of the IGIS. There has been an enhancement recently. That is a good thing but I would argue that the IGIS's annual report should be required to provide a detailed assessment of the adequacy of resources provided to that office and the consequences of any shortfalls if they occur. The government and the PJCIS should provide a response to any such annual assessment. In addition to that, there should be more formalised liaison between the PJCIS and other oversight bodies, of course including the Inspector-General of Intelligence and Security but also the Independent National Security Legislation Monitor. For example, each IGIS formal inquiry report should be provided to the PJCIS no more than three months after it is presented to the Prime Minister or relevant ministers. It would also be good practice for the committee to receive regular briefings from the IGIS and the security monitor and, where appropriate, from the National Security Adviser, who is based in the Department of Prime Minister and Cabinet.

In addition to these proposals, I believe there should be strong support for mandatory sunset clauses for controversial legislation. In recent years, in some instances the parliament has used sunset clauses when intelligence agencies have been granted unprecedented powers. These unprecedented powers include AFP detention orders, AFP control orders and ASIO questioning and detention powers. The lifespan of too many such sunset clauses has been far too long and it is simply not possible to predict the nature and extent of terrorist threats over such a long period.