David Johnston (WA, Liberal Party) Share this | Hansard source

I want to commence my speech here this morning, with respect to opposing the Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015, by setting out firstly what appears to be the two principal aims. The first is to remove the constraints on the membership of the committee by, firstly, the removal of the requirement for the committee to consist of five senators and six members of the House of Representatives, and, secondly, to introduce a requirement that the Prime Minister and the Leader of the Government in the Senate must be satisfied that members to be nominated to the committee are 'the most appropriate members available'. Secondly, enhance the powers and functions of the committee, including by, firstly, allowing the committee to conduct own-motion inquiries; secondly, requiring the Inspector-General of Intelligence and Security to provide reports of the committee within three months of those reports being provided to the Prime Minister or the responsible minister; and, thirdly, allowing the committee to conduct pre-sunset review of legislation.

The current requirements require the committee to consist of five senators and six members of the House of Representatives, pursuant to section 28(2) of the Intelligence Services Act. The bill proposes that the committee consists of at least two senators—one government senator and one opposition senator—and two members of the House of Representatives—one government member and one opposition member. The remaining seven members of the committee could be drawn from either the House or the Senate. These are very significant changes to what is—and I think was conceded by Senator Wong in her speech before me—a very successfully working oversight committee in a most important and sensitive area in Australia today.

There are significant concerns surrounding these proposed amendments. In particular, these amendments have the potential to compromise the real or perceived independence and effectiveness of operational activities, and on the independence of existing oversight bodies. I will explain that in detail in a moment. The appropriateness of parliamentary oversight of intelligence agencies was examined in 2004 in the Flood inquiry. That inquiry found:

Just as the advice that officials provide to ministers is not disclosed in Senate Legislation Committee hearings, the judgments of assessment agencies should not be subject to parliamentary scrutiny. Opening assessments to scrutiny by parliament would also weaken the instinct amongst assessors to provide forthright advice for government, which is vital for good assessment.

The current role of the Parliamentary Joint Committee on Intelligence and Security, the Inspector-General of Intelligence and Security and the Independent National Security Legislation Monitor ensure that there is effective oversight of the functioning of all aspects of Australia's security and intelligence agencies, whilst minimising duplication and overlap. In short, the system in place is not broken and requires no fixing, and nothing in this legislation suggests or provides an example of a shortfall in the capacity of the functioning of the Parliamentary Joint Committee on Intelligence and Security.

The current division also respects the appropriate divide between parliamentary and independent oversight and has until this point done so on a bipartisan basis. For example, item 3 of the bill proposes to require the Inspector-General of Intelligence and Security to provide her reports to the committee. Currently agencies provide information on a voluntary basis to the inspector-general to assist her in her investigations. In addition to the inspector-general's powers to compel information, this can include highly classified and sensitive information which is provided to the inspector-general with the assurance that it will be treated with the utmost security—that is, Top Secret. The knowledge that any information that is Top Secret Australian Eyes Only. The knowledge that any information provided might be included in a report which would be required to be passed on to the parliament may limit the voluntary provision of information by Australian intelligence community agencies to the inspector-general. This is precisely what we do not want, and we do not want to blur the independence of the agency oversight. This bill does that. Knowledge that reports must be provided to parliament may also affect the contents of reports prepared by the inspector-general and may limit the frankness and openness with which those issues are discussed and disclosed.

Similar concerns arise in relation to item 7 of the bill, which proposes to enable the Parliamentary Joint Committee on Intelligence and Security to conduct inquiries into legislation prior to a sunset date. This is an unnecessary duplication of the role of the Independent National Security Legislation Monitor, who has been granted powers that are tailored specifically to reviewing the operation, effectiveness and implications of Australia's national security legislation.

The Parliamentary Joint Committee on Intelligence and Security Bill 2015 seeks to provide additional powers to the committee and its oversight of our security intelligence agencies. It has long been the position in Australia that operational oversight of intelligence, security and law enforcement agencies is conducted by independent statutory oversight agencies rather than by the parliament. This is fundamentally for the benefit of the system of security of what those agencies are dealing with. Indeed, successive independent reviews have endorsed the existing oversight framework and have not proposed fundamental structural changes of the kind that this bill would deliver. The most recent review, in 2011, conducted by Mr Robert Cornall and Dr Rufus Black, found that the legal framework 'is sound and does not need any adjustment at present.' There is no review that I am aware of that advocates changes in the nature of those proposed by this bill. Indeed, our Australian model for oversight of intelligence agencies is respected and held up worldwide as one of the best models in existence.

Under existing arrangements the Inspector-General of Intelligence and Security and the Independent National Security Legislation Monitor serve a very crucial role in overseeing and ensuring accountability for the operational activities undertaken by our security agencies and the legislation which allows for those activities both onshore and offshore. It is entirely appropriate that these functions be served by independent nonpolitical bodies. This is at the core of why our system is so successful—and nobody is saying that it is not. Again I reiterate: this is not broken, let's not fix it, let's not tinker with it. This bill has the potential to blur the existing divide between parliamentary and independent oversight. May I say that that blurring is extremely naive and fundamentally quite stupid.

Rather than providing the Parliamentary Joint Committee on Intelligence and Security with oversight powers that would duplicate and overlap those of the Inspector-General and the Independent National Security Legislation Monitor, the government is focused on ensuring that our oversight bodies have the resources and tools they need to keep pace with the essential legislative changes and increased funding provided to our security agencies that make them effective and indeed world class. For example, in the past 18 months the government has significantly enhanced the powers and resources of the independent oversight bodies that supervise our law enforcement and national security agencies. We have increased the ongoing funding for the inspector-general, a body with powers akin to a royal commission, to increase her staff by more than one-third to enable greater oversight arrangements of Australian intelligence activities, and we have enhanced the annual reporting requirements of ASIO and law enforcement agencies, ensuring that the public and the parliament are better informed about the use of exceptional powers by those agencies. We have also introduced a system of special protections for journalists and their sources, including the requirement that agencies obtain a warrant prior to accessing journalists' metadata. We have also provided additional supporting resources to the office of the Independent National Security Legislation Monitor to assist with the increased volume and complexity of national security legislation being referred for inquiry. We have also significantly enhanced the powers of the Commonwealth Ombudsman to oversight access to metadata by law enforcement agencies. These enhanced powers have been supported by an increase in funding of $6.7 million over four years.

The current Inspector-General of Intelligence and Security is the Hon. Margaret Stone, a former Federal Court justice. The current Independent National Legislation Monitor is the Hon. Roger Gyles, a former Federal Court judge. These people are of outstanding integrity, ability, skill and experience, and they are, most importantly, independent of the parliament and the politics they are under. This bill proposes to remove the current requirement that six committee members be drawn from the House of Representatives and five from the Senate. The bill also introduces a new requirement for the Prime Minister and the Leader of the Government in the Senate to be satisfied that those nominated for membership are 'the most appropriate members available to serve on the Committee'. This is a very problematic legislative requirement.

Let us deal firstly, as lawyers ultimately will, with the requirement that the membership must be 'the most appropriate members'. This is a subjective test in an area where we need to have objectivity. How is one member of this parliament more appropriate than another member or 'the most appropriate', and who adjudicates that and upon what basis? This is a political test. We then have to have, from that point, availability. Availability is a contestable quality in terms of who is available. Is someone not available because they live in Western Australia? Is someone not available because they have other committee duties? Is someone not available because the bells are ringing and they are required to vote? This is a highly problematic definition introduced into what should be clear, simple, objective legislation.

The parliamentary joint committee is a highly functioning committee and has repeatedly demonstrated its ability to conduct insightful, thorough, skilful and very enhancing investigations in an area that is extremely sensitive. It is probably one of the most responsible things that any parliamentarian will do in this place. It is done, at this point in time and to the best of my knowledge, on a very bipartisan basis. While there has been no indication that existing committee structure is inappropriate or requires amendment, the government remains committed to ensuring that the most appropriate and qualified members of parliament are able to serve on the committee. But that does not mean to say that we require a legislative definition. If we were to get into that, the essence of the problem I foresee with this legislation comes straight to the surface: a subjective judgement.

Let us not forget what has happened in recent history. Five tranches of legislation have come through this parliament to strengthen the ability of our agencies to investigate, monitor, arrest and prosecute home-grown violent extremists and returning foreign fighters. Firstly, the National Security Legislation Amendment Act (No. 1) 2014, which commenced operation on 30 October 2014, responded to the Parliamentary Joint Committee on Intelligence and Security report entitled Report of the inquiry into potential reforms of Australia's national security legislation. So the committee itself did a report that talked about reforms that would improve and modernise the legislation governing Australia's intelligence agencies. To the best of my understanding, nowhere in that report were these amendments foreshadowed.

Secondly, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 amended 22 pieces of Commonwealth legislation to respond to the threat posed by Australians engaging and returning from conflicts in foreign states. The key amendments made by that act were: to enhance Australia's control order regime, to provide additional powers for security agencies, to strengthen Australia's border security measures and to authorise the cancellation of welfare payments for persons involved in terrorism to ensure taxpayers were not funding terrorists or foreign fighters whilst they conduct those operations overseas.

Thirdly, the Counter-Terrorism Legislation Amendment Act (No 1) 2014 sort to strengthen and enhance the control order regime to allow the Australian Federal Police to seek orders in relation to a broader range of individuals of security concern, particularly the enablers of foreign fighters and terrorists—that is, those who recruit and facilitate those people who want to go away and fight overseas. It also amended the Intelligence Services Act, to facilitate ASIS providing timely support to the Australian Defence Force in military operations and cooperation with the Australian Defence Force on intelligence matters, which was logical, much appreciated and welcomed.

Fourthly, the data retention legislation, which I am sure we all recall, was enacted to ensure our security and law enforcement agencies continue to have access to information they need to do their jobs by requiring telecommunication providers to retain a defined set of data for two years. The parliamentary joint committee examined the bill at length and concluded that the bill is 'a necessary, effective and proportionate response to the serious threat to national security and public safety caused by the inconsistent and degrading availability of telecommunications data'.

Fifthly, through this chamber came the Counter-Terrorism Legislation Amendment Bill (No 1) 2015. Those measures were introduced on 12 November. They have been informed by recent counter-terrorism operations and will further strengthen Australia's robust national security laws and counter-terrorism framework. The key amendments in that bill would: reduce the minimum age for imposition of certain obligations from 16 to 14; facilitate the monitoring of all individuals subject to control orders through targeted search, telecommunications interception and surveillance device regimes; and provide greater protection to sensitive information in control order proceedings by allowing the court to consider evidence that is not disclosed to the respondent or their legal representatives. These are very important and vital measures in this space.

There are many, many other safeguards that have been put in place, as I have canvassed and mentioned. There is the Independent National Security Legislation Monitor, the Hon. Roger Gyles, whose function is to review the operation, effectiveness and implications of Australia's counter-terrorism and national security legislation on an ongoing basis. The parliamentary joint committee itself has a monitoring and oversight function, as we have already discussed. The Independent Reviewer of Adverse Security Assessments—the very able, skilled and effective Mr Robert Cornall, former Secretary of the Attorney-General's Department—provides an important safeguard and review mechanism for people who have been found to be owed protection under international law but are being held in immigration detention in Australia because of an adverse security assessment.

In closing, I make the very important point that the current provisions governing the operation of the parliamentary joint committee are specifically and properly intended to protect against the disclosure of operational matters, including the disclosure of operationally sensitive matters, to the committee. The provisions in this bill blur that, as I have said, and cause me great concern. The proposal to require the inspector-general to provide reports to the committee directly contravenes these principles. What does that mean for the bill before us? It means that the changes it proposes are not necessary.