Rex Patrick (SA, Centre Alliance) Share this | Hansard source

by leave—In respect of the Counter-Terrorism (Temporary Exclusion Orders) (Consequential Amendments) Bill 2019, I move amendments (1) and (2) on sheet 8693 together:

(1) Schedule 1, page 3 (after line 10), after the heading specifying Intelligence Services Act 2001, insert:

1B Paragraph 29(1 ) ( a)

After "to review the", insert "activities,".

(2) Schedule 1, page 3 (after line 19), at the end of the Schedule, add:

3 Subsection 29(3)

Repeal the subsection, substitute:

(3) The functions of the Committee do not include:

(a) reviewing information provided by, or by an agency of, a foreign government where that government does not consent to the disclosure of the information; or

(b) conducting inquiries into individual complaints about the activities of ASIO, ASIS, AGO, DIO, ASD, ONI, AFP or the Immigration and Border Protection Department.

4 After section 29

Insert:

29A Ceasing or suspending review of agency activities

(1) If:

(a) the Committee undertakes a review under section 29 of an activity by ASIO, ASIS, AGO, DIO, ASD or ONI; and

(b) the relevant responsible Minister is of the opinion that:

  (i) the activity is an ongoing operation; and

  (ii) the review would interfere with the proper performance by the relevant body of its functions or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations;

the Minister may give to the Committee a certificate in relation to the matter stating the Minister's opinion and the reasons for it.

(2) A decision of the Minister under subsection (1) must not be questioned in any court or tribunal.

(3) Where the Minister gives a certificate under subsection (1) in relation to a review, the Committee must cease or suspend the review.

(4) If the Minister:

(a) becomes aware that the activity is no longer ongoing; or

(b) is no longer of the opinion that the review would interfere with the proper performance by the relevant body of its functions or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations;

the Minister must, within 28 days after becoming aware of the fact or forming the view:

(c) revoke the certificate; and

(d) inform the Committee in writing.

(5) If the Minister revokes a certificate in accordance with subsection (4), the Committee may proceed with the review, or commence a new review into the activity.

As I observed in my speech on the second reading, notwithstanding its extraordinary nature the bill before the Senate is part of a well-established pattern. The measures before the Senate today are but another instalment in the steady stream of national security legislation that has come before the parliament over the last two decades. Much of it was spurred on by September 11. Much of this legislation, advanced by both coalition and Labor governments and almost always with bipartisan support, has expanded the powers of our intelligence and security agencies. I might point out that many of the powers that are used by these agencies are used in secret. The agencies themselves have also expanded greatly in size, budget and the scope of their activities. Australia's 10 national security and intelligence agencies now employ more than 7,000 people and spend well over $2 billion each year while they accumulate massive amounts of information at home and abroad.

However, while Australia's intelligence community has grown rapidly over the past two decades, the mechanisms of accountability and review, in terms of overseeing those agencies, have received much less attention, fewer resources and less authority. This is especially the case with the parliament's own scrutiny machine. That vital scrutiny role remains strictly limited. Specifically, the Parliamentary Joint Committee on Intelligence and Security, the PJCIS, is tightly restricted under the Intelligence Services Act 2001 to review only administrative and financial aspects of Australia's intelligence and security agencies. The PJCIS is explicitly prohibited from reviewing the operations of the Australian intelligence agencies. The PJCIS is further restricted in reviewing intelligence-gathering priorities and the operation of Australian intelligence agencies or the assessments and reports they produce. The committee is barred from examining operational activities and methods or any operations that have been, are being or are proposed to be undertaken by intelligence and national security services. The PJCIS is also prohibited from reviewing the privacy rules made by ministers that regulate the communication and retention by agencies of intelligence information concerning Australian persons.

These limitations on parliamentary scrutiny have reflected a historical reluctance of past governments and intelligence agencies to trust members of parliament outside the executive with the most sensitive intelligence information. However, the PJCIS can't hold these agencies properly accountable for their activities if parliament continues to ban its own committees from reviewing their operations and other activities, nor can expenditure and administration be adequately examined without consideration of operational performance. They go together.

The exclusion of intelligence operations from parliamentary scrutiny is not an approach followed by some of Australia's closest allies. Indeed, Australian practice now stands in stark contrast to parliamentary oversight arrangements in the other Five Eyes countries—the United States, the United Kingdom, New Zealand and Canada. In the United States, congressional oversight of the intelligence community is spread across several committees, including specialised committees on intelligence in the House of Representatives and the Senate. Those committees have long enjoyed the ability to inquire into all intelligence related activities of the United States government, including highly sensitive operational matters. Wide-ranging congressional inquiries are accepted by the US intelligence community as necessary and appropriate. Oversight is not something to be feared; it's something that can assist.

In the United Kingdom, the Intelligence and Security Committee of Parliament is empowered by the Justice and Security Act 2013 to oversee the expenditure, administration, policy and operations of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters. The British Intelligence and Security Committee of Parliament can consider operational matters when requested by the Prime Minister where they do not involve ongoing operations and it is in the national interest.

Canada is another one of our Five Eyes intelligence partners, and has an intelligence and national security community in size and structure not dissimilar to what we have. Under section 8 of Canada's National Security and Intelligence Committee of Parliamentarians Act 2017, the Canadian parliament's intelligence committee can review:

… any activity carried out by a department that relates to national security or intelligence, unless the activity is an ongoing operation and the appropriate Minister determines that the review would be injurious to national security; …

The Canadian legislation further provides:

(2) If the appropriate Minister determines that a review would be injurious to national security, he or she must inform the Committee of his or her determination and the reasons for it.

Review no longer injurious

(3) If the appropriate Minister determines that the review would no longer be injurious to national security or if the appropriate Minister is informed that the activity is no longer ongoing, he or she must inform the Committee that the review may be conducted.

The approach taken by the new Canadian National Security and Intelligence Committee of Parliamentarians provides a good model for Australia to follow. Centre Alliance has already proposed legislation to implement the Canadian model for parliamentary scrutiny of the intelligence communities through the Intelligence Services Amendment (Enhanced Parliamentary Oversight of Intelligence Agencies) Bill 2018.

Last year, the Labor opposition observed that Centre Alliance's bill: 'Contains a number of interesting and innovative measures. Labor believes these measures merit further consideration.' Centre Alliance has now circulated an amendment to the Counter-Terrorism (Temporary Exclusion Orders) Bill 2019 that again seeks to expand the role of the PJCIS in a way most closely modelled on that of the Canadian parliament. The amendment will amend the Intelligence Services Act to remove most, although not all, the current legislative constraints on the scope of the PJCIS's inquiries, and would allow the committee to review the operational performance of our intelligence agencies—a vital aspect of any effective scrutiny regime. The proposed amendment to the role of the PJCIS does retain existing prohibitions on:

… reviewing information provided by, or by an agency of, a foreign government where that government does not consent to the disclosure of the information; …

It also retains the prohibition on conducting inquiries into individual complaints about the activities of designated intelligence and national security agencies, as those complaints are appropriately dealt with by the Inspector-General of Intelligence and Security.

There are details of intelligence operations involving sensitive and vulnerable sources that are best held by the smallest number of people with an absolute need to know. Accordingly, the amendment provides that the relevant minister may certify that a review of the PJCIS that relates to an ongoing operation, and where the review would interfere with the proper performance of the relevant body of its function or otherwise prejudice Australia's national security or the conduct of Australia's foreign relations—if this is the case—then the committee will be required to cease or suspend the review. And:

(4) If the Minister:

  (a) becomes aware that the activity is no longer ongoing; or

  (b) is no longer of the opinion that the review would interfere with the proper performance by the relevant body of its functions or otherwise prejudice Australia’s national security or the conduct of Australia’s foreign relations;

the Minister must, within 28 days after becoming aware of the fact or forming the view:

  (c) revoke the certificate; …

If the minister revokes the certificate, the committee would be free to proceed with the review or commence a new review into the activity. This is effectively the Canadian method. It allows for the PJCIS to review intelligence operations. Should the minister have a concern about a particular sensitivity, the minister can issue a certificate but then must advise the committee once that particular ongoing operation is no longer taking place.

The need for the expansion of the PJCIS's role to cover intelligence agency operations and other activities has long been recognised in the Senate. Former senator John Faulkner strongly urged this broad reform. The Leader of the Opposition in the Senate has expressed in-principle support for broadening the PJCIS's mandate. There is, indeed, a vital principle involved here: if democratically elected MPs and senators cannot be trusted to deal directly with these questions then something is wrong with the relationship between the intelligence communities and the parliament that they ultimately mean to serve.

Centre Alliance has previously moved provisions contained in this amendment to other national security and intelligence related bills. On those occasions, the coalition and Labor were not prepared to lend their support, even though the opposition has indicated in-principle support for the extension of the PJCIS oversight to include operational matters. The government for its part announced in May last year the appointment of Dennis Richardson, a former director-general of security, to review Australia's intelligence and national security legislation. This is the latest in a long series of government reviews largely conducted by former intelligence and national security bureaucrats who, at least previously, have had little enthusiasm for parliamentary scrutiny of the intelligence community. However, as Senator Wong has rightly observed, the parliament cannot outsource the question of its own responsibilities in overseeing our large and expanding intelligence and national security services. Enhanced parliamentary scrutiny is very definitely in our national interest. Australia's intelligence communities are not infallible.

In the future, their performance will be tested in much more demanding security environments, and the Australian parliament will need to subject the performance of our intelligence agencies to much closer scrutiny than has been the case previously. This amendment provides a sensible and secure framework within which to extend parliamentary scrutiny through the established mechanisms of the PJCIS. It is a very necessary counterpoint to the further expansion of ASIO powers proposed in the legislation before the Senate today, and I commend the amendment to the Senate.