Don Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | Hansard source

I am very pleased to commence debate in the 45th Parliament on the Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015. This bill was originally introduced by Senator Wong in 2015. It lapsed at prorogation in April 2016, was restored to the Notice Paper, lapsed again at the dissolution ahead of the election and was restored to the Notice Paper again to enable it to be advanced in the new parliament. This bill 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 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 the drafting and consultation on this bill. I might interpose here that Mr Faulkner recently gave up some of his time to come and address new senators on the way in which estimates runs. The bill is one of the legacies 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. Labor is pleased to pursue the reforms contained in this bill originated by Mr Faulkner. John Faulkner served in the cabinets of two Labor governments and 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 the 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 of our national security architecture, particularly in these times.

This bill serves both those objectives. Effective scrutiny and oversight strengthen public support for our agencies and they also strengthen the agencies subject to oversight. As elected representatives gather 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 we see emerging threats to our national security. This parliament must not deny our intelligence and security agencies the necessary powers and resources to protect Australian citizens and Australian interests. However, it must be recognised that these powers can impinge upon 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 right balance between the security imperatives of our nation and the liberties and the 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 about the environment 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 a 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 time. It also reflects changes in technology, which means that our intelligence and security agencies must operate in a higher level of sophistication with specialist expertise. There has generally been a high level of cooperation in the parliament to secure bipartisan agreement on national security legislation. Of course, bipartisanship does not mean taking an uncritical approach to proposals or 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. Labor acknowledges 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 leaders of our agencies, as 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 and enhancement of 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. 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 the 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 the agency's operations. Trust is essential if our agencies are to be effective.

Not only are these safeguards important to protect the public interest but they also create an environment that protects the agencies themselves. It is to the parliament that these agencies are accountable and it is parliament's responsibility to provide oversight of their priorities and their 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 the standards that 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 the legislation governing our intelligence and security agencies must be under constant review, so too must be the legislation governing the operation of the committees. Just as we would expect amendments to be brought to the parliament to correct deficiencies and enhance the operation of our intelligence and security agencies, so too must the parliament assess the effectiveness of its own committee. Labor's submission to the Senate today is that the legislation governing the Parliamentary Joint Committee on Intelligence and Security can be improved. We 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 on 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 from the committees. Removing this current constraint will enable greater flexibility in determining PJCIS membership.

I note that 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. 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, in the past some senators on both sides have had to relinquish their places on the committee for a period in order to accommodate certain members of the other place for particular inquiries by a committee. The opposition found itself constrained by both the apportionment of membership between the Senate and House and the desire by the government to allocate its six members across the chamber in a particular way.

I reiterate: the bill does not amend the requirement for the government to hold a majority, but it does mean that 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 and in the Senate, as the case may be, and that does not form part of the government.

The bill also: provides for the committee to conduct its 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 presunset 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 powers afforded to them develops, the greater the potential for that power to infringe upon individual liberties and, in turn, the greater the need 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 oversee 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 oversight of operational activities 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 party. It meets roughly twice a week, generally in closed sessions. Most hearings involve appearances by senior intelligence community officials, who present evidence and answer senators' questions. There is also the House 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 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 it was 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 the oversight and scrutiny of the work of such agencies amongst our allies. Further, the membership of the parliamentary committees that I have outlined in general is more flexible than the situation that currently applies in Australia—something this bill is designed to address.

As a result of legislation that passed in the last parliament, from 1 March 2016 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 Act; reporting to the parliament on matters appertaining to the AFP, or connected to 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.

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.