James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Hansard source

I rise to speak on the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023. Regrettably, the coalition is not in a position to support this bill as it is currently drafted. While the majority of the amendments proposed under the bill are sensible reforms, most of which flow from the Richardson review, which the previous government commissioned back in 2018, this government has unfortunately decided to play games with this legislation by adding an additional amendment to change the composition and the size of the Parliamentary Joint Committee on Intelligence and Security without consulting anyone. They are now trying to rush this change through, hoping that no-one will notice.

The bill proposes amendments to enhance the legislative framework of the national intelligence community by implementing a number of the recommendations of the Richardson review. It proposes amendments to 13 related Commonwealth acts to support these proposed enhancements. The bill also proposes to amend the Intelligence Services Act to clarify the level of detail required to describe activities issued under a ministerial direction to ASIS. This particular change to the legislation was not a recommendation of the Richardson review, but I have been briefed through the PJCIS on the need for this change, and it is an important and timely change that goes to the operation of an important and sensitive capability of the Commonwealth and its relationship with the foreign minister. We do support this change. Of course, the opposition always supports sensible changes to support the work of our intelligence agencies, which is why we agreed to all of the relevant recommendations in our government's response to the Richardson review back in December 2020.

The only point of contention between the government and the opposition is the proposal in this bill to increase the size of the Parliamentary Joint Committee on Intelligence and Security from 11 to 13 members and also to change the required composition from each chamber of parliament. Currently, the act requires that six members come from the House of Representatives and five come from the Senate. The bill proposes to allow the government of the day much more flexibility in deciding the balance between the two chambers.

We were not consulted on these changes before they were introduced, which is contrary to the bipartisan spirit in which legislation around this committee has normally been engaged with. I submitted a question on notice to the Attorney-General's Department to clarify who may have been consulted on this change and when. In response, the department disclosed:

The Attorney-General's Department did not consult with or advise non-government parliamentarians on the proposed changes to the membership and composition of the Committee.

This measure was a recommendation of Government.

Of course, it had to be a recommendation of the government, because it wasn't a recommendation of anyone else. It wasn't recommended by Dennis Richardson. It wasn't recommended by the Independent Intelligence Review of 2017. It's never been recommended by the PJCIS. I'm not even aware of a single submission to the PJCIS, in its history, which has ever recommended this change. In fact, the only place that this change has ever been recommended from, as far as I can tell, is either the Attorney-General's office or the Prime Minister's office—nowhere else.

Labor is now trying to rush through what is actually quite a significant reform to the operation of one of the most important committees of the parliament. The PJCIS was, remarkably, only given one month to consider this bill and conduct an inquiry, and, shamefully, it only opened submissions for one week. In my service on this committee in this parliament and the previous one, I'm not aware of any other occasion where submissions were open for only a week for an important bill that goes to the operation of this committee and the intelligence legislation which governs our national intelligence community.

In fact, I do remember distinctly that, in the previous parliament, when I was chair of the committee, when relatively short periods of opening for submissions were contemplated, the then shadow Attorney-General, Mr Dreyfus, was the loudest to object to rushing any legislation through the committee or to any short period of consultation or seeking submissions. As chair, I agreed with him and from time to time, when necessary, requested, sought and received from the government of the day extra time to consider these bills and provided extra time for witnesses to make submissions. To rush this through in one week is a totally unreasonable imposition on the people who seek to assist the committees of the parliament with their work and was a particularly underhanded tactic in the handling of this bill.

There has been no evidence provided to the committee, the parliament or the public as to why this change is required, and it is incumbent on the government in this debate in the chamber to explain where it came from. Does the government intend to appoint a crossbench member of the Parliamentary Joint Committee on Intelligence and Security or a member of a minor party as part of its decision to increase the size of the membership from 11 to 13? I have it on good authority and I have good reason to believe that that is exactly what they intend to do, although they have failed to be upfront with the parliament or public about that intention. In my view that would significantly and detrimentally change the character and culture of the committee, which has otherwise always been, save for one exception, a committee of the parties of government. That is a very important distinction, and I will come to why that is the case in a moment. I really do think if a crossbench or minor party member were added to the committee that would risk undermining the bipartisan consensus on critical national security issues that the committee has dealt with and has long been a feature of the PJCIS.

When I chaired the PJCIS in the previous parliament, it was one of the busiest and most intense periods in the committee's history. In fact, in roughly a 12-month period the committee handed down 23 reports and inquiries. Every single one of those reports was bipartisan. Every single one of those reports was unanimous. That's not because we started those inquiries from a place of universal agreement, that's not because there weren't genuine philosophical differences that arose during an inquiry, but it was because the committee had a spirit, a culture and a willingness to work through those difficult issues to achieve consensus in the national interest. And we were only able to do so because of the trusted culture and environment that has been fostered in that committee.

It is often widely remarked upon outside of this place, by people who deal with this committee or observe its work, that it is one of the most functional committees of the parliament, perhaps one of the last functional committees of parliament. They say that it is not like other committees, which are often defined by bipartisanship and rancour. They say that members of the committee work constructively and well together in the national interest. We should pause and reflect on why that is the case. It's also the only committee which has always been, with one exception, comprised of members of the government and the opposition only. Those are parties of government, and that is an essential feature which has allowed it to be a secure and trusted negotiating forum for those parties of government to resolve, away from sometimes the theatre of this place and away from the media, important national security matters in the national interest and get the balance right when it comes to the very important national security and civil liberty matters which we consider.

The addition of two member to the PJCIS, in my view but not just my view, also increases the risk of classified material being leaked, either intentionally or inadvertently. In fact, a no lesser authority on this issue than the Director-General of ASIO stated this in his evidence to the PJCIS. He noted that, all else being equal, a greater number of people having access to sensitive classified information increases the risk of material being leaked. This in turn could undermine the trust that the committee has earnt with the intelligence community, who would then be obviously far more reticent to disclose sensitive information that is critical for the robust consideration of issues by this committee.

The truth and the art of the PJCIS are that the intelligence agencies, in my observations particularly while I've been a member, have often disclosed more and shared more with the committee and members of the committee than they are required to share under the letter of the law. The reason they do that is that they want us to be informed about the decisions we have to make in the national interest. But they are not required to do so. If ever they are concerned about the ability of the committee to keep its deliberations confidential and the classified material that we receive confidential, they can retreat back to the letter of the law and seriously curtail the amount of information provided to the committee, which would fundamentally undermine the committee's operation.

I was recently read an interview for a profile of a former colleague in this place, former senator Keneally. She was reflecting on her time in the parliament, and I was struck by her observation that one of the most enjoyable things she did in the parliament was serve on the PJCIS. She described how bipartisan it was, how constructive it was and how well the committee members worked together. I think she is right, and it is an observation that many other former members of the committee have made. Former deputy chair of the committee Anthony Byrne has spoken about this. Another former deputy chair, Senator McAllister, has also spoken about this, and I enjoyed working with both of them. I even, I must confess—and I'm hoping not to damage my reputation or his—occasionally enjoyed working with the former shadow Attorney-General, and now Attorney-General, on this committee. In fact, we spent many, many hours negotiating in a painstaking way to achieve consensus on these issues. I did my best as chair to give the Labor Party when in opposition the space and the time they needed to arrive at a position that allowed the committee to achieve consensus, and I pushed back on the government and ministers whose party I shared when it was necessary to achieve that.

One of the reports that we handed down in the previous parliament that was unanimous and bipartisan, like all others, was the annual report on committee activities in 2021. One of the recommendations of that report was that after the election—that is, in this new parliament, the 47th Parliament—at the commencement of the parliament whoever was in government should refer to the committee an inquiry into the provisions of the Intelligence Services Act that govern the operation of the committee so that the committee could inquire into, receive submissions on and consider the scope and activities of the committee in its remit. That was a unanimous recommendation of the committee. It was signed by the then shadow Attorney-General, Mr Dreyfus, now the Attorney-General. He has broken with that recommendation of the committee which he himself helped author in the way in which he has handled this issue. These changes have been proposed in a unilateral way. No inquiry has been referred to the committee to consider these issues. No consultation occurred on this. That is a gravely disappointing thing.

I also note that the government has some other bills that propose changes to the operation of the committee which have been introduced to the parliament—in particular, the Intelligence Services Legislation Amendment Bill 2023. It was introduced in the House of Representatives on 22 June and is now before the PJCIS for an inquiry. Among other things, this bill proposes to expand the powers of the PJCIS and broaden its oversight of the national intelligence community. In isolation, I think there is some merit to some of the proposals in that bill. I think the opposition would be willing to negotiate with the government on some of those provisions to try to achieve consensus. In fact, some of those areas of broader and deeper oversight that the bill proposes I have previously recommended as chair of the PJCIS. However, I made that recommendation, and the committee agreed to that recommendation, only in the belief that the committee would continue to be a committee of the parties of government, not that it would be a committee in the future that had members of the crossbench or minor parties on it. Our support for that expanded or deepened oversight is conditional, and must be conditional, on the composition of the committee remaining the same as it is today. It would be a great regret for me if we are not able to have those negotiations in a good-faith way with the government. The now shadow Attorney-General, Senator Cash, and I have written to the Minister for Home Affairs and the Attorney-General to indicate our willingness to negotiate on those matters. We remain willing to do so. I hope before this chamber concludes consideration of this bill we are able to do so because, if we are not, it is going to be very difficult for the opposition to support either this bill or the other.

I am concerned that the primary motivation and driver for the changes proposed to this committee is in fact internal politics within the government. We know that the last committee established in this parliament was the PJCIS, arguably the most important committee in the parliament. The media has reported that the reason why that was the case is that the government had great difficulty determining the membership of the committee. They had great difficulty balancing competing factional demands and competing demands between the houses of parliament, between the House and the Senate. So they are increasing the membership to compensate a member of their caucus who missed out on membership of the committee after the last election and to give them more flexibility in the future about who they can appoint from their own caucus to the committee but also, notably, give them the opportunity, if they choose to take it, to appoint someone from the crossbench or the minor parties. That is not the way that a committee like this should be treated. This is not just any other committee of the parliament and shouldn't be treated that way.

Finally, I will just foreshadow that, if we are not able to reach agreement with the government on this bill and the other, the opposition will be moving amendments to this bill that seek to remove the changes to the PJCIS membership from this bill so that the other important provisions of this bill can pass, can be enacted and can be changed.

I have one final appeal to the crossbench. I know it will be intuitively appealing to you to support this bill because you will think, 'Great, this is our opportunity to get on the PJCIS,' but my warning to you is that, if you have not already had a call from the Prime Minister telling you that you or one of your party members is going to be on the committee, it's not going to be you because the person who is going to be joining the committee already knows that they are joining the committee. So please don't vote for this bill in the expectation that it will be to your benefit. I assure you that it will not.