Jane Hume (Victoria, Liberal Party) Share this | Hansard source

I rise today to speak on the Parliamentary Joint Committee on Intelligence and Security Amendment Bill, the PJCIS Amendment Bill 2015. This is a bill that proposes significant changes to the Intelligence Services Act 2001, the ISA. Firstly, it proposes to change the composition of the PJCIS. Secondly, this bill proposes to expand the powers and functions of the PJCIS by allowing the PJCIS to conduct a review into operational activities of the Australian intelligence agencies and the Australian Federal Police. It proposes to expand the powers and functions of the PJCIS by authorising the Independent National Security Legislation Monitor, the INSLM, to provide the PJCIS with a copy of any report on a matter referred to it by the PJCIS and requiring the Inspector-General of Intelligence and Security, the IGIS, to give the PJCIS a copy of any report provided to the Prime Minister or the minister within three months. The bill proposes allowing the PJCIS to conduct its own-motion inquiries, and it also proposes allowing the PJCIS to conduct pre-sunset review of legislation.

The government's position on this bill is not one of support. The well-regarded work that the PJCIS has conducted over many years is generally viewed as one of the most successful examples of effective bipartisanship throughout successive Australian parliaments. The PJCIS also has an impressive track record of conducting both insightful and thorough investigations. In light of these facts, the government is of the opinion that there is no need to amend the PJCIS's structure or powers.

Furthermore, the government has serious concerns about the content of this bill. Specifically, expanding the powers of the PJCIS will compromise the existing and appropriate divide between parliamentary and independent oversight by enabling own-motion inquiries and receipt of reports on operational activity from the IGIS. The government has serious concerns about the bill seeking to provide the PJCIS with powers, including operational oversight and pre-sunset legislative review, which would duplicate and overlap with those of the IGIS and INSLM. The government has serious concerns that the bill does not provide adequate protection of operational activities, including methods and sources, to ensure any reviews that the PJCIS conducts, or any reports the INSLM or IGIS are required to provide to the PJCIS, do not prejudice the operational activities of the agencies and international relations.

The amendments this bill seeks to make are unnecessary, and they compromise the important distinction between the appropriate parliamentary oversight of the Australian Intelligence Community's administration, as outlined in the Intelligence Services Act 2001, and the operational oversight that is more appropriately performed by independent statutory roles such as the Inspector-General of Intelligence and Security

For those of my colleagues who are not aware of the beginnings of the PJCIS, the committee has existed in its current form since the Inquiry into Australian Intelligence Agencies by Mr Philip Flood AO, known as the Flood inquiry, in 2004. Among his findings, Flood recommended that the membership of the existing Parliamentary Joint Committee on ASIO, ASIS and DSD—the PJCAAD—should be extended to include the Defence Imagery and Geospatial Organisation, the DIGO, which has since been renamed the Australian Geospatial-Intelligence Organisation; the Defence Intelligence Organisation, the DIO; and the Office of National Assessments, the ONA. Following the passage of the Intelligence Services Legislation Amendment Bill in 2005, the committee was re-established as the Parliamentary Joint Committee on Intelligence and Security—the PJCIS.

The functions of the Parliamentary Joint Committee on Intelligence and Security are outlined in the Intelligence Services Act 2001—the IS Act. Section 29 of the Intelligence Services Act provides that the functions of the committee are to:

Under section 102.1A of the Criminal Code, the Committee may also review any regulations made for the listing (or re-listing) of a "terrorist organisation" and report the Committee's comments and recommendations to each House of the Parliament before the end of the applicable disallowance period—a period of 15 sitting days after the regulation was laid before that House.

Further, the Committee may review and report on the declaration of any terrorist organisation for the purposes of section 35AA of the Australian Citizenship Act 2007.

The Committee is otherwise not authorised to initiate its own references, but may resolve to request the responsible Minister refer a particular matter to it for review.

Section 31 of the IS Act requires the Committee to prepare and table an Annual Report as soon as practicable after each year ending 30 June.

The Parliamentary Joint Committee on Intelligence and Security has its limitations. The IS Act currently limits the inquiry powers of the PJCIS by providing that the functions of the committee do not include:

These limitations are very important. They prevent inappropriate parliamentary influence being exercised over the operations, over the methodology and over the priority setting of the intelligence agencies. Responsibility for reviewing the operational activities of agencies is more appropriately given to the independent statutory role of the Inspector-General of Intelligence and Security.

The IGIS is responsible for overseeing and review of the Australian intelligence community in relation to its compliance with the law, compliance with ministerial directions and guidelines, proprietary and a respect for human rights. When exercising her inquiry function, the IGIS has significant powers, comparable to those of a royal commission—including obtaining information and requiring persons to answer questions and produce documents. The IGIS reports annually to parliament.

The Parliamentary Joint Committee on Intelligence and Security proposes two main changes to the Intelligence Services Act 2001 regime. Firstly, the bill proposes changes to the composition of the PJCIS by removing the constraints on the membership of the PJCIS to provide that the balance of members can come from either chamber. Current requirements are that six come from the House of Representatives and five from the Senate. The bill also proposes introducing 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 PJCIS are the most appropriate members available.

Secondly, the bill proposes to expand the powers and functions of the Parliamentary Joint Committee on Intelligence and Security by allowing the PJCIS to conduct a review into operational activities of ASIO, ASIS, AGO, DIO, ASD, ONA and the Australian Federal Police. It would also authorise the Independent National Security Legislation Monitor, the INSLM, to provide the PJCIS with a copy of any report on a matter referred to it by the PJCIS and require the Inspector-General of Intelligence and Security to give the PJCIS a copy of any report provided to the Prime Minister or the minister within three months. The bill would also allow the committee to conduct its own motion inquiries and allow the PJCIS to conduct pre-sunset review of legislation.

The amendments to this bill would blur the existing and appropriate divide between parliamentary and independent oversight and compromise the independence of existing overseeing bodies by proposing that the PJCIS receive direct reports from the IGIS on operational activities and that it could commence its own inquiries. The longstanding position in Australia is that operational overseeing of intelligence, security and law enforcement agencies is conducted by the overseeing independent statutory agencies, rather than by the parliament.

Currently the IGIS, which serves a crucial role in overseeing and ensuring accountability for the operational activities undertaken by our security agencies, only reports to ministers. It is important to note that the appropriateness of the overseeing of intelligence agencies by parliament was examined in the 2004 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 proposals duplicate and overlap with the roles of the IGIS and INSLM.

The bill would enable the PJCIS to conduct inquiries into legislation prior to a sunset date. This is an unnecessary duplication of the role of the INSLM, who has been granted powers that are tailored specifically to reviewing the operation, effectiveness and implications of Australia's national security legislation.

The bill would enable the committee to conduct its own review into the activities of intelligence agencies, provided the PJCIS has first consulted the responsible minister. This is an unnecessary duplication of the role of the IGIS. In 2014-15 the IGIS received an $840,000 increase in ongoing funding, allowing for the recruitment of additional staff to ensure effective oversight.

The current roles of the PJCIS, IGIS and INSLM ensure there is effective overseeing of the functioning of all aspects of Australia's security and intelligence agencies whilst minimising duplication and overlap. The current division also respects the appropriate divide between overseeing by parliament and independent agencies. The committee examines the administration and expenditure of all Australian intelligence community agencies, and the committee has only a very limited ability to inquire into operational activities.

The IGIS is responsible for oversight and review of the Australian intelligence community in relation to compliance with the law, compliance with ministerial directions and guidelines, propriety and respect for human rights. When exercising her inquiry function the IGIS has significant powers, comparable to those of a royal commission. The INSLM's role is to review the operation, effectiveness and implications of Australia's counterterrorism and national security legislation. This includes considering whether the laws contain appropriate safeguards for protecting the rights of individuals, that they remain proportionate to any threat of terrorism or threat to national security and remain necessary.

Should the committee be empowered to conduct its own reviews into the operational activities of the intelligence and security agencies, the bill does not provide adequate protection for operational activities, including methods and sources, to ensure reviews that the committee conducts, or any reports the INSLM or IGIS are required to provide to the committee, do not prejudice the operational activities of the agencies and international relations.

There is no demonstrated need for change. The PJCIS works well and has repeatedly demonstrated its ability to conduct insightful and thorough investigations. There is no demonstrated need to amend the PJCIS structure or powers. The government has referred each tranche of national-security-related legislation to the bipartisan PJCIS for review following its introduction into parliament, and has accepted every recommendation made by the committee. This consultative and collaborative approach has strengthened the transparency and accountability of our law enforcement and national security agencies.

This bill would only impose, at best, unnecessary changes. But at worst it would compromise the existing and appropriate divide between parliamentary and independent oversight. The risks that this bill poses have led to the government not supporting this bill and, similarly, I urge honourable senators not to support this bill in the chamber today.