David Shoebridge (NSW, Australian Greens) Share this | Hansard source

The Greens don't oppose the bill, but we will be speaking to a number of amendments if we get to the committee stage today, or when the matter returns tomorrow. The Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022 makes a number of amendments to the Inspector-General of Intelligence and Security Act 1986. It also amends a number of other related pieces of legislation. The principal amendments which will have any kind of substantive impact are as follows: they make some changes to the inspector-general's oversight powers; they support some additional information-sharing by the Office of the Inspector-General of Intelligence and Security—which, for simplicity, I will refer to as IGIS going forward; they make changes to the appointment of the inspector-general; they take into consideration some of the employment-related grievances that were picked up in recommendations 172 and 174 of the Comprehensive Review of the Legal Framework of the National Intelligence Community; and they make clear that information that is protected by existing secrecy offences under the legislation can still be disclosed to IGIS officials when they are performing their duties or functions or exercising their powers as IGIS officials.

Currently, the only provision the IGIS act states for appointing the IGIS is that there is to be consultation with the opposition leader prior to the recommendation to the Governor-General for the appointment of that statutory office. The Greens are firmly of the view that that kind of club-based process, where it is just the government of the day and the opposition leader, is not a healthy way of appointing this critical office. I'm sure many senators know that the IGIS has the capacity to review the operational activities of the intelligence agencies. The PJCIS, the parliamentary joint committee—which of course has been populated, historically, only by Labor or coalition MPs, despite the clear statutory requirement that it reflect the breadth of political parties in the parliament—even though it is populated and controlled by the club, is expressly prohibited from reviewing operational activities of the security agencies. As Senator McKim will probably tell you, oversight of some of those operational activities of the intelligence agencies, such as bugging our neighbours, like the government of Timor-Leste, or bugging their legal officers—which, of course, our security agencies have been quite happy to do—and those kinds of activities, are not the job of the PJCIS because they're expressly prohibited from looking at operational matters.

So when there are concerns raised about the misuse of security powers, the overstepping of operational activities or the illegal bugging of our neighbours, the place that we look to institutionally to review those potentially illegal, unethical or inappropriate practices by the security agencies is of course the IGIS. That's what it's meant to do; that's what it's established to do. Whether it always does that is a matter for some significant debate, and perhaps Senator McKim will give an instance of where it hasn't achieved that outcome—particularly in relation to that deeply unethical bugging operation. But that's the job of the IGIS. So we can see why it's important that the IGIS actually be independent of the security agencies that it's overseeing because it's basically the only cop on the beat. It's a deeply secretive cop, but it's the only cop on the beat to oversee the way in which security agencies operate.

One of the good measures in this bill is that it inserts a new subsection, (3A), into subsection 6 of the act. It's designed to provide:

… that the head or deputy head of an agency within the IGIS's jurisdiction is not to be appointed as the Inspector-General immediately following their service in an intelligence agency.

Obviously, that's a step forward in terms of the independence of the IGIS. It's a measure that the Greens will support. The bill also proposes amendments to subparagraph 8(1)(a)(v):

… by omitting 'being an act or practice referred to the Inspector-General by the Australian Human Rights Commission'.

That's intended to clarify:

… that the IGIS is able to inquire into any matter that relates to an act or practice of ASIO that is or may be inconsistent with or contrary to any human right, that constitutes or may constitute discrimination …

That's regardless of where that concern is raised. Again, we support that kind of clarifying measure.

But of course there are a number of additional recommendations from PJCIS that are, at best, partially implemented in this bill. When the PJCIS reviewed it, their recommendation 1, 3.11, said:

The Committee recommends that the Australian Government consider amendments to the Inspector-General of Intelligence and Security Act 1979 and the Intelligence Services Act 2001 to provide for greater information sharing between the Inspector-General of Intelligence and Security and the Parliamentary Joint Committee on Intelligence and Security.

Recommendation 1, 3.12, was:

The Committee recommends that the Government report to the Committee within twelve months of the presentation of this report on the outcomes of such consideration.

And recommendation 2 reads:

The Committee recommends that Item 86 of Schedule 1 of the Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022—

This bill—

be amended to align the provisions relating to abrogation of legal professional privilege with equivalent provisions in the legislation governing other integrity agencies.

Recommendation 3 is:

3.19 The Committee recommends that the Office of National Intelligence develop an employment framework governing staff members that may be engaged under subsection 33(1)(b) of the Office of National Intelligence Act 2018.

3.20 The Office of National Intelligence should report to the Committee in 12 months on progress towards implementing this recommendation.

Recommendation 4 is:

The Committee recommends that the Australian Government consider amendments to the Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022—

Again, this bill—

to prescribe that a person would be ineligible for appointment to the role of Inspector-General for an appropriate period of time to be determined by the Government, following employment in an intelligence agency.

And recommendation 5 is:

The Committee recommends that, following implementation of the recommendations in this report, the Bill be passed by the Parliament.

At best, the bill partially implements those recommendations coming from the PJCIS. The Greens are of the view that some further amendment should be considered in the committee process that implements the PJCIS's recommendations in full—not partially implements them but implements them in full. The Law Council of Australia also made representations on the bill, noting that they had only a limited time to provide those submissions. But they addressed a number of critical issues, the first being the process for appointment of the inspector-general, the second being the inspector-general's statutory functions, the third being the safeguards that are needed to adequately protect those who are required to provide privileged information to the inspector-general and the fourth being consistency with comparable legislative approaches—in particular, legal professional privilege.

One of the matters the Law Council thought was important—and it's one of the recommendations they made to improve the IGIS bill—was that consideration be given to whether the eligibility and selection criteria for the role of Inspector-General should be included in the act itself. Eligibility criteria that were proposed by the Law Council included whether the candidate had previously been a judge of a federal court or a superior court of record of a state or territory, had been enrolled as a legal practitioner for at least five years and, not surprisingly, also had suitable experience or knowledge of the Australian intelligence communities. These seem like sensible additional matters that should have been considered and incorporated by the government when bringing forward this bill.

The Law Council also saw merit in inspector-generals being appointed only with the approval of the joint committee. The Greens have on many occasions criticised the narrow membership of the joint committee, but at least that would provide some kind of parliamentary oversight of the appointment of the IGIS. Indeed, just pausing there, there have been calls from academia and from others engaged in this space to make the IGIS an officer of the parliament—to be reporting not to a minister, not to executive government—to make the IGIS, like the Auditor-General, an officer of the parliament who reports directly to the parliament through, probably and appropriately, a select committee. The reason that is repeatedly raised is the very narrow remit the parliamentary joint committee has when it comes to oversighting security agencies. And the scheme that's been established by the parliament places enormous trust, enormous statutory powers, in the IGIS and then has the IGIS effectively reporting to the executive government that it's meant to be oversighting. Couple that with excluding the parliamentary joint committee from scrutinising the operational activities of the security agencies. You can see the compelling argument to make the IGIS an officer that reports to and is responsible to the parliament of the day rather than the executive government. Again, it's a missed opportunity in this bill to explore some of those more fundamental structural reforms that would provide some kind of realistic democratic oversight of the security agencies.

Debate interrupted.