Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

I am pleased to commence debate on the Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015 in the Senate today. This is a bill which brings together a series of proposals designed to improve the operation of this significant joint statutory committee. The proposals are designed to make it more accountable and adaptable to the needs of the parliament and they are also designed to enable the committee to have a greater amount of discretion in the way it conducts oversight of our intelligence and security agencies.

At the outset I want to acknowledge the role of former Senator John Faulkner in initiating this bill. This bill is one legacy of Mr Faulkner's long parliamentary career and his determination to support and enhance parliamentary oversight of our intelligence and security agencies. Then Senator Faulkner first prepared this bill for introduction in 2014, presenting it to the Parliamentary Joint Committee on Intelligence and Security for consideration and comment, but retired before he was able to introduce the bill into the Senate. As his successor as Leader of the Opposition in the Senate, and as a member of the Parliamentary Joint Committee on Intelligence and Security, I am very pleased to pursue the reforms contained in this bill.

John Faulkner was someone who served in the cabinets of two Labor governments, under three prime ministers and as Minister for Defence. He understood better than most the importance of being strong on national security. But he also understood that strength on national security does not come from tough rhetoric. It does not come from chest thumping or inflammatory statements. It comes from having intelligence and security agencies of the highest calibre that can be trusted to protect the rights and liberties of the Australian people without trampling upon them. John Faulkner also understood that effective and rigorous parliamentary oversight is critical to the maintenance of public support for our national security architecture, particularly in these times. This bill serves those objectives.

Effective scrutiny and oversight strengthen public support for our agencies and they also strengthen the agencies subject to oversight. As elected representatives gathered in the national parliament, we can never outsource our duty to ensure the security of our nation and the people who entrust us with the responsibility of governing. This is as true when we are in times of relative peace as it is when emerging and serious threats to our national security are apparent. This parliament ought not deny and must not deny our intelligence and security agencies the necessary powers and resources to protect Australian citizens and Australian interests. However, it must also recognise that these powers can impinge on the values and freedoms on which our democracy is founded—values and freedoms which the Australian people, correctly, expect parliament to protect. As with so many things, this parliament must find the balance between the security imperatives of our nation and the liberties and freedoms of our people. The central plank of the intelligence and security framework is strong and effective accountability. Enhanced powers demand enhanced safeguards. Public trust and confidence in our security and intelligence agencies can only be ensured fully through strong and rigorous oversight and scrutiny.

I want to talk now about the environmental that we are confronted with. We know that, over the last 15 years in particular, this parliament has scrutinised and passed many pieces of legislation which have contributed to the development of legislative architecture relating to our security and intelligence agencies. This has been in response to developments in the security situation, which has altered in new and significant ways over this time. It also reflects changes in technology, which means our intelligence and security agencies must operate with a higher level of sophistication and specialist expertise. There has generally been a high level of cooperation in the parliament to secure bipartisan agreement on the national security legislation. Of course, bipartisanship does not mean taking an uncritical approach to proposals for additional or amended national security language or legislation.

In order to ensure rights and liberties are protected, it is essential that all parties approach legislative proposals with a discerning eye. In the current parliament, this Senate has dealt with a number of very significant pieces of national security legislation and all have been subject to scrutiny by the Parliamentary Joint Committee on Intelligence and Security. Each piece of legislation has been amended as a result of recommendations of the committee, sometimes quite extensively. This is an example of the process of parliamentary scrutiny at work. Likewise, the addition of other perspectives in the Senate debate ensures all views are ultimately considered and represented before the legislation comes to a vote.

As agencies continue to seek and are granted additional powers to meet contemporary threats, so too must scrutiny and oversight keep pace. In recent years Australia has benefited from professional and well-run intelligence and security agencies, and I acknowledge their work. They have demonstrated respect and understanding of the role of the parliament, the government of the day and our laws. But the personal integrity and quality of the leaders of our agencies, important as this is, are not reliable, effective safeguards against the abuse of security powers. It is the responsibility of parliament to prescribe safeguards that keep pace with the expansion of security powers that have been deemed necessary.

The purpose of this bill is to ensure that the adequacy and effectiveness of parliamentary oversight of intelligence and security agencies is in keeping with the development of the enhanced and additional powers we have afforded to these agencies. It amends the Intelligence Services Act 2001, the Independent National Security Legislation Monitor Act 2010 and the Inspector-General of Intelligence and Security Act 1986 to change the membership, powers and functions of the Parliamentary Joint Committee on Intelligence and Security. As legislative changes extending the powers of security agencies are implemented, the requirement for reliable and effective external oversight becomes more critical. If these changes, which extend the powers of agencies, are given effect but are not accompanied by adequate safeguards, it will be more challenging to maintain an essential level of trust in the community about agency operations. Trust is essential if our agencies are to be effective.

Not only are these safeguards important to protect the public interest, they also create an environment that protects the agencies themselves, because it is to the parliament that the agencies are accountable and it is the parliament's responsibility to provide oversight of their priorities and effectiveness. It is not sufficient for the parliament to simply put in place a legislative framework for the oversight of agencies without conducting oversight itself. If the parliament is not a check and balance, it will not be possible to ensure agencies meet the requirements and standards the parliament itself has set. The parliament has no better or more authoritative forum than the Parliamentary Joint Committee on Intelligence and Security to do this job.

Just as legislation governing our intelligence and security agencies must be under constant review, so too must the legislation governing the operation of the committee. Just as we would expect amendments to be brought to the parliament to correct deficiencies and enhance the operations of our intelligence and security agencies, so too must the parliament assess the effectiveness of its own committee. My submission to the Senate today is that the legislation governing the Parliamentary Joint Committee on Intelligence and Security can be improved, and I present this bill as a means of doing so.

I want to briefly traverse the key measures in the bill. This bill removes current constraints on the membership of the committee to provide that, except for a minimum representation of one government member and senator and one opposition member and senator, the balance of the 11-member committee can be drawn from either chamber. Currently, the Intelligence Services Act 2001 mandates a composition of six House of Representatives members and five senators on the committee. Removing the current constraints will enable greater flexibility in determining PJCIS membership. I note the bill does not amend the requirement for the government to hold a majority.

In relation to this provision, there is no reason why senators should be in the minority, and I suggest to the Senate it should be left to the parties to draw members from the best available representatives. Because of the nexus that currently exists between the Senate and the other place, as well as between the parties, for example, I had to relinquish my place on the committee for a period in order to accommodate the necessity of including the shadow minister for communications on the committee's inquiry into metadata laws. The opposition found itself constrained both by the apportionment of membership between the Senate and the House and by a desire by the government to allocate its six members across the chambers in a particular way.

I reiterate: the bill does not amend the requirement for the government to hold the majority, but it does mean there are fewer constraints placed on the choice of members for the committee based on the chamber in which they sit. I presume there would not be a senator who would object if this resulted in a greater number of senators on the committee! I note the continuing requirement that, before nominating members, the Prime Minister or the Leader of the Government in the Senate, as appropriate, is obliged to consult with the leader of each recognised political party that is represented in the House or Senate, as the case may be, and does not form part of the government.

The bill also provides for the committee to conduct own motion inquiries after consultation with the responsible minister; authorises the Independent National Security Legislation Monitor to provide the committee with a copy of any report on a matter referred to it by the committee; requires the Inspector-General of Intelligence and Security to give the committee a copy of any report provided to the Prime Minister or a minister within three months; gives the committee the function of conducting pre-sunset reviews of legislation containing sunset provisions; and adds the Independent National Security Legislation Monitor and the National Security Adviser to officers able to be consulted by the committee.

As the role of agencies and the power afforded to them develops, the greater the potential for that power to infringe upon individual liberties. In turn, the greater the need becomes for accountability in the exercise of that power. I do not in any way suggest that our security and intelligence agencies are acting otherwise than in accordance with the law. That is not my view. But, if powers were to be used inappropriately, there would be an erosion of public trust. Having appropriate and effective accountability mechanisms protects both the agencies and the public. As I said previously, it is the parliament to which the agencies are accountable, not the judiciary, and it is the parliament's responsibility to oversight their priorities and effectiveness and to ensure agencies meet the requirements and standards it sets.

I want to briefly turn to an international comparison. An increasingly complex and unpredictable security landscape in Australia and around the world means the powers of intelligence and security agencies have changed dramatically in recent years. This is as true in Australia as it is in many other similar democracies. The maintenance of public security in the current security environment has led to greater powers for the agencies charged with these responsibilities. However, the protection of democratic liberties and freedoms equally demands enhanced oversight of the exercise of these powers. This is the case at home and abroad.

As senators would know, Australia forms part of the five eyes intelligence and security network of nations, including the United Kingdom, the United States, New Zealand and Canada. With the exception of Canada, each of these countries has at least one committee of the legislature that exercises oversight of that country's intelligence and security agencies.

In the United Kingdom, the Intelligence and Security Committee of Parliament consists of nine members drawn from both the House of Commons and the House of Lords. The numbers from each chamber are not specified in the governing act. Similarly to our committee, the members of the Intelligence and Security Committee of the United Kingdom are appointed by the House in which they serve, on the nomination of the Prime Minister in consultation with the opposition. Recent reforms provided that committee with greater powers and increased its remit, including to oversight of operational activity and the wider intelligence and security activities of government.

The United States Senate Select Committee on Intelligence is established by resolution of the Senate and consists of 15 senators: eight from the majority party and seven from the minority. It meets roughly twice a week, generally in closed session. Most hearings involve appearances by senior intelligence community officials, who present evidence and answer senators' questions. There is also the Permanent Select Committee on Intelligence in the United States House of Representatives.

The New Zealand Intelligence and Security Committee has a membership of five, notably including the Prime Minister and the Leader of the Opposition. Two of the remaining three members are nominated by the Prime Minister, and one by the Leader of the Opposition.

As I said at the outset, Canada does not currently have a parliamentary committee responsible for intelligence and security. However, the new government, during the election campaign, promised to establish an all-party national security oversight committee if elected. The new Prime Minister has instructed the relevant minister to assist the Leader of the Government in the House of Commons in the creation of a statutory committee of parliamentarians with special access to classified information to review government departments and agencies with national security responsibilities.

As can be generally seen, the legislative branch of government has a central role in oversight and scrutiny of the work of such agencies amongst our allies. Further, the membership of the parliamentary committees that I have outlined is generally more flexible than the situation that currently applies in Australia—something this bill is designed to address.

As a result of legislation that has recently passed the parliament, from 1 March the parliamentary joint committee has already had a number of additional functions added to its previously existing responsibilities. These include: monitoring and reviewing the performance of the AFP's counter-terrorism functions under the Criminal Code; reporting to the parliament upon matters appertaining to the AFP, or connected with those functions; reviewing matters relating to the retained data activities of the AFP and ASIO covered in annual reports on the mandatory data retention regime, including where this goes to operational matters, for the sole purpose of assessing and making recommendations on the overall operation and effectiveness of the regime; reviewing bills in relation to the mandatory data retention regime; conducting a review of a range of counter-terrorism legislation, by 7 March 2018; conducting a review of the mandatory data retention regime, to be commenced by 13 April 2019 and completed a year later; conducting a review, by 1 December 2019, of the new citizenship revocation powers contained in the Australian Citizenship Amendment (Allegiance to Australia) Act 2015.

This is in addition to powers in other areas. These include: reviewing the declaration of areas in overseas countries for the purpose of section 119.2 of the Criminal Code; reviewing the declaration of terrorist organisations for the purpose of section 35AA of the Australian Citizenship Act 2007; being provided with any reports produced by the IGIS or the Commonwealth Ombudsman in relation to data retention; being notified by the IGIS of any emergency ministerial authorisations for intelligence agencies under the Intelligence Services Act 2001, and being notified and briefed by the Department of Immigration and Border Protection in regard to all instances where citizenship is revoked under the new powers.

These are additional powers that this parliament has provided to this committee. What is demonstrates is the important role the committee plays in ensuring the expectations of the parliament are upheld.

I am pleased to have the opportunity to currently serve on the Parliamentary Joint Committee on Intelligence and Security. I do so alongside senators and members, including Senator Conroy, Senator Gallagher, Senator David Fawcett, and others, who seek to continue this committee's important role in balancing our security needs with the rights and freedoms that characterise our nation.

As I noted at the outset, John Faulkner first prepared this bill for introduction in 2014, and presented it to the Parliamentary Joint Committee on Intelligence and Security for consideration and comment. As I am now bringing forward this bill for debate, I inform the Senate that I have again provided this bill to the committee to ensure all members are fully apprised of its purpose and have the opportunity to comment, or to consider the matter further in the context of the committee, if that is what is required. In terms of the context of this bill, I extend an invitation to all senators to consider its contents. I am aware that some have already made contact with my office, ahead of this debate today.

There is no greater or more important focus of political activity in this country than the parliament itself. The Australian Parliament has no better or more authoritative forum than the Parliamentary Joint Committee on Intelligence and Security, to provide oversight of our intelligence and security agencies. The bill before the chamber will enable the committee to undertake its responsibilities and fulfil what I regard, and I am sure this is shared, to be a critically important role. It will enable that role to be performed with greater effectiveness.

I express my hope that the bill will receive sensible consideration and in time, I hope, support from all parties across the chamber, recognising that this is a bill that is designed to enhance the ability of the committee to protect the interests of the parliament and, through us, the Australian people. I commend the bill to the Senate.