Nick Xenophon (SA, Independent) Share this | Hansard source

At the beginning of my remarks on this important bill, I would like to pay tribute to the late Dr Des Ball, Professor at the Australian National University's Strategic and Defence Studies Centre, who passed away yesterday after a lengthy illness. Professor Ball was a towering figure in Australian strategic and defence policy and a pioneer over more than four decades in researching the activities of the Australian intelligence community, most notably exposing decades of dissembling by successive governments about the role of the United States-Australia joint defence facilities. Together with Professor Richard Tanter, Professor Ball was earlier this year still publishing immensely detailed and scholarly papers providing new insight into the role of the joint defence facility at Pine Gap, including details of its intimate involvement in supporting US military operations and the global surveillance network run by the so-called Five Eyes intelligence partners.

Des Ball was a champion for greater transparency and democratic accountability for the Australian intelligence community, so it is appropriate that the Senate today is able to debate an important and timely proposal for enhancing parliamentary scrutiny of Australia's intelligence and security agencies. I am very pleased to support this legislation—and on behalf of my colleagues as well—the Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015, which is itself the legacy of another champion of parliamentary scrutiny and accountability, former Senator John Faulkner. I remember his words on that. This was a man who was a former defence minister and served not just his political party, the Australian Labor Party, but this country with distinction—a towering figure in the Senate. He made it very clear that, with increased power of our intelligence agencies, there must be increased levels of accountability.

This bill brings together a range of proposals designed to improve the operation of the Parliamentary Joint Committee on Intelligence and Security, a joint statutory committee of the parliament that has been functioning in its present form since the passage of the Intelligence Services Act in late 2001. The bill seeks to broadly enhance the oversight of the Australian intelligence community by creating more substantive links between the joint committee and our other intelligence oversight agencies—the Inspector-General of Intelligence and Security and the Independent National Security Legislation Monitor.

The bill's measures to remove current restraints on the membership of the joint committee are particularly welcome. If the process of parliamentary oversight over our intelligence and security agencies is to command public confidence, the joint committee must be more broadly representative of the make-up of the parliament and not just confined to members of the government and the opposition. The previous membership of the member for Denison, Mr Andrew Wilkie, in the period of the Gillard government from 2010 to 2013 has already demonstrated that crossbench members of the parliament can and should make valued contributions to the work of the joint committee.

The record of the joint committee has been productive but limited by the frequent bipartisan consensus between the coalition and Labor. And with it there is an element of secrecy and a lack of transparency in the process, more so than needs to be, even allowing for the sensitivity of the matters that are dealt with. On occasion the joint committee has got things quite wrong, most recently in the case of its report dealing with the secrecy provisions surrounding the conduct of special intelligence operations by the Australian Security Intelligence Organisation—the amendments to section 35P of the ASIO Act. I voted against those provisions. They were something the joint committee said ought to be passed, but the change went to the Independent National Security Legislation Monitor, the Hon. Roger Giles AO QC, a former federal court judge and eminent lawyer and jurist. I made a submission to the inquiry. I do not think there were any other members of parliament who made a submission at that time. Professor Clinton Fernandes and I made a joint submission. Professor Clinton Fernandes is a professor at the University of New South Wales and at the ADFA campus here in Canberra.

This is what Mr Giles said after conducting the inquiry in relation to that in a summary of his report. He essentially stated that section 35P:

… creates uncertainty as to what may be published about the activities of ASIO without fear of prosecution. The so-called chilling effect of that uncertainty is exacerbated because it also applies in relation to disclosures made to editors for the purpose of discussion before publication.

He went on to say:

Journalists are prohibited from publishing anywhere at any time any information relating to an SIO—

a special intelligence operation—

regardless of whether it has any, or any continuing, operational significance and even if it discloses reprehensible conduct by ASIO insiders.

These were powerful words by the Independent National Security Legislation Monitor.

The issues identified by INSLM were that:

The basic problem with section 35P is that it does not distinguish between journalists and others (outsiders) and ASIO insiders. The application in this manner of broad secrecy prohibitions to outsiders is not satisfactorily justified, including by precedents in Australia or elsewhere.

Mr Giles also made this point:

Section 35P is arguably invalid on the basis that it infringes the constitutional protection of freedom of political communication. Section 35P is also arguably inconsistent with article 19 of the International Covenant on Civil and Political Rights and so not in accordance with Australia's international obligations.

That piece of legislation slipped by the joint committee for which this bill seeks to have a more flexible membership arrangement. So that safeguard did not work on that occasion. The law was passed. It was put in force. It then was subject to a review by INSLM. Fortunately, there have been no prosecutions under section 35P, as I understand it. Also, fortunately, that is something that will be rectified by the government.

The subsequent report of the Independent National Security Legislation Monitor that I referred to made the weaknesses of the joint committee's review very clear, and the fact that there is further amending legislation before the Senate underlines the need for a more rigorous approach and a wider range of opinion represented on the joint committee.

The need for enhanced parliamentary scrutiny and oversight is clear. In the 15 years since the tragedies, the horrors, of the terrorist attacks of September 11, 2001, a constant legislative drumbeat has accompanied what is commonly known as the war on terrorism. Successive governments and the parliament have repeatedly added to and elaborated our national security and counterterrorism laws. I note it was just yesterday that we commemorated the anniversary of the Bali bombings, where 202 innocent people, including 88 Australians, were killed by terrorists. The parliament has passed more than 70 different bills dealing with terrorism and, more broadly, national security issues. The exact number depends a bit on questions of definition, but the overall quantum of legislation is clear. We now have a very extensive and complex set of counterterrorism laws. As I have previously pointed out to the Senate, we have more counterterrorism laws than any other country. These laws are of great significance to national security and community safety, as well as to the rights, liberties and privacy of all Australians.

Back in October 2014, when the Senate was considering one of the long line of counterterrorism bills, I expressed the view that enough was enough and that we did not need more laws in this field and certainly should not enact greater powers for our intelligence and security agencies without a major expansion and strengthening of independent oversight of those agencies. That remains my broad view, subject of course to the overarching principle of community safety.

The record of our intelligence and security agencies in countering terrorism over the past 15 years is one of considerable success, thankfully. They have exercised the considerable investigative powers available to them and, in the process, thwarted many attacks on our soil and harm to Australians. Although the terrorist threat in Australia has not been on the same scale as in some other countries, it is significant, and serious threats and plots have been detected and thwarted. Our intelligence and security agencies have demonstrated considerable professionalism, but like all government agencies they are far from infallible.

There also have been some very significant missteps. The case of Dr Muhamed Haneef involved the provision of incorrect and misleading information from British police counterterrorism investigators to the Australian Federal Police, which in turn failed to properly assess that information. A review by the Inspector-General of Intelligence and Security of the case of Mamdouh Habib found that the Australian Security Intelligence Organisation repeatedly failed to properly document key decisions, including dealings with foreign security and intelligence agencies. Senior officers subsequently claimed to have little or no recollection of key events. There have been instances where agencies have failed to provide appropriate information to the IGIS, and at least one case where an agency, the Australian Secret Intelligence Service, sought to intentionally mislead the IGIS.

I would not wish to not pre-empt the findings of the inquiry by the New South Wales Coroner into matters relating to Man Haron Monis and the Martin Place siege of December 2014 and the tragic deaths of two innocent people, other than to say some of the evidence presented to the inquiry clearly raises serious concerns about the investigative and analytical capabilities of ASIO and the AFP as well as the operational response of the New South Wales police. I still cannot fathom why that man, that monster, was on the streets when he was, given his history.

Our intelligence and security agencies have very extensive powers and resources but are not infallible, and for that reason there needs to be very rigorous oversight and scrutiny. That is why this bill is both important and timely. It is a significant step towards a more rigorous scrutiny regime, more along the lines of the United States and German models of parliamentary intelligence committees, which have much more wide-ranging powers of review. In earlier debate on this legislation, one government senator suggested that greater parliamentary scrutiny, including the provision of highly classified IGIS reports to the joint committee 'may limit the voluntary provision of information by Australian intelligence community agencies to the inspector-general'. If this were really the case—and I doubt it would be so—then the need for rigorous parliamentary scrutiny would only be greater. In any case, if the United States intelligence community can operate effectively—and clearly it does—in the environment of oversight by the US Senate Select Committee on Intelligence and the House of Representatives Permanent Select Committee on Intelligence, then so too can the Australian intelligence community.

Significantly, I would highlight the scope of the US Senate committee's responsibilities, which include access to classified intelligence assessments and access to intelligence sources and methods, programs and budgets. By law, the US President is required to ensure the committee is kept 'fully and currently informed' of intelligence activities, including covert actions and any significant intelligence failure. Australia's intelligence agencies have long been deeply entwined with their US counterparts, and that is appropriate. It is time that we looked again at the greater extent of parliamentary scrutiny and oversight that characterises the intelligence system of our ally. This bill is a modest but important step in that direction. I am very pleased to lend my support, and that of my colleagues, to this bill, and I hope that this bill is passed in this place.