Jordon Steele-John (WA, Australian Greens) Share this | Hansard source

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 and a number of related acts. The primary amendments' substantive impacts will be to make changes to the inspector-general's oversight powers; to support appropriate information sharing by the Office of the Inspector-General of Intelligence and Security, the IGIS; and to make changes to the appointment of the inspector-general and consideration of employment related grievances, as per recommendations 172 and 174 of the Comprehensive Review of the Legal Framework of the National Intelligence Community. The bill also will have the effect of making clear that information that is protected by the existing secrecy offences under that legislation can be disclosed to the IGIS officials performing duties or functions or exercising powers as IGIS officials.

Currently, all the IGIS Act imposes in relation to appointment of the IGIS is consultation with the opposition leader prior to the recommendation of the appointment to the Governor-General. In that way, it is quite similar to the, let's just say, cosy arrangement for membership of the PJCIS. I'm joined in the chamber during this debate by Senator Shoebridge, who knows all too well just how cosy that relationship is. The major parties band together to ensure that nobody but the members of their special club is granted the opportunity to play any oversight role over our intelligence services. Well, hasn't that led to some fantastic decisions? We could go back to the Iraq War or the invasion of Afghanistan—such clear examples of a need to have folks who are maybe a little bit separate from the groupthink that seems to dominate the major parties involved in the oversight processes of intelligence services.

This bill inserts a new subsection (3A) into section 6 of the IGIS Act. The new subsection will, to quote the explanatory memorandum:

… 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.

This bill also amends paragraph 8 by omitting the words 'being an act or practice referred to the Inspector-General by the Australian Human Rights Commission'. This is intended to clarify that the IGIS can 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 or that constitutes discrimination, regardless of it.

The bill was reviewed by the PJCIS, for all the good that that is worth, and the committee's inquiry got only four submissions—not unusual for a review by such a committee. We will be moving amendments to reflect some of the recommendations from the PJCIS and, indeed, to reflect the feedback of the Law Council of Australia. I will step the committee's recommendations out clearly for the Senate. Recommendation 1 was:

3.11 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.

3.12 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.

Recommendation 2 was:

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

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.

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

Recommendation 4—I think it's important to underline this particularly—was:

The Committee recommends that the Australian Government consider amendments to the Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022 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 then, of course, recommendation 5 was:

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

These are some pretty basic recommendations that have been stepped out here, and they are recommendations that I'm sure will go some way to improving the regime.

I'd also take you to the Law Council of Australia's comments on the appointment process and why it is so important that there be consideration given to whether the eligibility and selection criteria for the role of inspector-general should indeed be included within the IGIS Act. The Law Council is really clear here. They believe that the eligibility criteria could include, for instance, having 'previously been a judge of a federal court or a court of a state or territory, or been enrolled as a legal practitioner for at least five years; and suitable experience or knowledge of the Australian intelligence community'. This is a really key point. I can absolutely see why the Law Council has made this point. You have to have had some background experience in actually understanding in depth how the Australian intelligence community functions to be able to play this particular role.

On the question of appointment, the Law Council go on to say:

A model for a more transparent mechanism for the appointment of the Inspector-General is provided by the recently enacted process for the nomination of National Anti-Corruption Commissioners (NACCs).

NACCs are appointed by the Governor-General on the basis of a ministerial recommendation that has either been approved by, or deemed to have been approved by, the Parliamentary Joint Committee on the National Anti-Corruption Commission.

In the Law Council's view, accountability for, and transparency of, the Inspector-General's appointment would be enhanced if the Joint Committee were to be required to approve nominees for the office.

Based on those views, they recommended:

Consideration should be given to Inspectors-General being appointed by the Governor-General based on ministerial recommendations that have been approved by the Joint Committee.

These are some basic oversight and accountability mechanisms that have been replicated very successfully in other parts of our legislative and appointment system.

I'll also quote from a submission and a piece of information provided to us from the Australian Muslim Advocacy Network. They have said, first of all—it's quite nice of them, really, to do this at all—'We thank you for the opportunity to comment on this bill.' They then explicitly ask the committee to work 'to ensure Australian Muslims' physical and psychological safety from the harms of racism and Islamophobia'. They go on to observe:

The Committee may be aware of our push to amend the definition of a terrorist act, to remove the reference to religious cause. Consistent with that amendment, we—

that is, 'they' in this context—

seek for ISIS, and al-Qaida to be categorised as ideologically motivated terrorism.

We hope to guide the Committee on steps the Australian Government can take to strengthen inclusiveness.

Particularly in relation to this bill, they state:

We note that the existing section 8 of the IGIS Act 1986 … empowers the Inspector General to inquire into

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, or that is or may be unlawful under the Age Discrimination Act 2004, the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 or the Sex Discrimination Act 1984, being an act or practice referred to the Inspector-General by the Australian Human Rights Commission.

They have also drawn the government's attention to the process of making complaints to IGIS. They drew the committee's attention to the fact that on 7 December 2021 they complained to IGIS concerning ASIO and the Director-General of Security. On 16 August 2022 they received a reply, which stated:

As you may be aware, the Inspector-General's statutory role is to review the conduct of Australian intelligence agencies to ensure that they act legally and properly, and consistently with human rights where an act or practice is referred to the Inspector-General by the Australian Human Rights Commission.

In this case, I can confirm that the Acting Inspector-General has carefully considered the matters you raised that are within the Inspector-General's jurisdiction; and after examining a range of materials relating to your complaint, the Acting Inspector-General did not find errors of legality or propriety in relation to the actions of either the Director-General of Security or ASIO.

While the Australian Muslim Advocacy Network appreciated receiving a response, it found the IGIS response was altogether uninformative. It did not clarify what laws or standards were used to judge the director-general's conduct. It noted that the ASIO director-general exercised more caution in relation to various incidents, particularly police shootings in December 2022. The network welcomed that caution.

It went on to recommend for the committee's consideration:

Recommendation 1: We would welcome clarification in the Act that IGIS will consider breaches of human rights and discrimination law in a complaint, regardless of whether the AHRC has referred the complaint to them.

It's pretty basic stuff. It's pretty basic—the idea that this office would consider breaches of human rights and discrimination in law in a complaint regardless of whether the Human Rights Commission had referred the complaint to them. It's a perfectly reasonable recommendation. Recommendation 2 states:

We request the Attorney Generals' Department …

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