Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I am pleased to commence debate on the Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015 in the Senate today. This is a bill which brings together a series of proposals designed to improve the operation of this significant joint statutory committee. The proposals are designed to make it more accountable and adaptable to the needs of the parliament and they are also designed to enable the committee to have a greater amount of discretion in the way it conducts oversight of our intelligence and security agencies.

At the outset I want to acknowledge the role of former Senator John Faulkner in initiating this bill. This bill is one legacy of Mr Faulkner's long parliamentary career and his determination to support and enhance parliamentary oversight of our intelligence and security agencies. Then Senator Faulkner first prepared this bill for introduction in 2014, presenting it to the Parliamentary Joint Committee on Intelligence and Security for consideration and comment, but retired before he was able to introduce the bill into the Senate. As his successor as Leader of the Opposition in the Senate, and as a member of the Parliamentary Joint Committee on Intelligence and Security, I am very pleased to pursue the reforms contained in this bill.

John Faulkner was someone who served in the cabinets of two Labor governments, under three prime ministers and as Minister for Defence. He understood better than most the importance of being strong on national security. But he also understood that strength on national security does not come from tough rhetoric. It does not come from chest thumping or inflammatory statements. It comes from having intelligence and security agencies of the highest calibre that can be trusted to protect the rights and liberties of the Australian people without trampling upon them. John Faulkner also understood that effective and rigorous parliamentary oversight is critical to the maintenance of public support for our national security architecture, particularly in these times. This bill serves those objectives.

Effective scrutiny and oversight strengthen public support for our agencies and they also strengthen the agencies subject to oversight. As elected representatives gathered in the national parliament, we can never outsource our duty to ensure the security of our nation and the people who entrust us with the responsibility of governing. This is as true when we are in times of relative peace as it is when emerging and serious threats to our national security are apparent. This parliament ought not deny and must not deny our intelligence and security agencies the necessary powers and resources to protect Australian citizens and Australian interests. However, it must also recognise that these powers can impinge on the values and freedoms on which our democracy is founded—values and freedoms which the Australian people, correctly, expect parliament to protect. As with so many things, this parliament must find the balance between the security imperatives of our nation and the liberties and freedoms of our people. The central plank of the intelligence and security framework is strong and effective accountability. Enhanced powers demand enhanced safeguards. Public trust and confidence in our security and intelligence agencies can only be ensured fully through strong and rigorous oversight and scrutiny.

I want to talk now about the environmental that we are confronted with. We know that, over the last 15 years in particular, this parliament has scrutinised and passed many pieces of legislation which have contributed to the development of legislative architecture relating to our security and intelligence agencies. This has been in response to developments in the security situation, which has altered in new and significant ways over this time. It also reflects changes in technology, which means our intelligence and security agencies must operate with a higher level of sophistication and specialist expertise. There has generally been a high level of cooperation in the parliament to secure bipartisan agreement on the national security legislation. Of course, bipartisanship does not mean taking an uncritical approach to proposals for additional or amended national security language or legislation.

In order to ensure rights and liberties are protected, it is essential that all parties approach legislative proposals with a discerning eye. In the current parliament, this Senate has dealt with a number of very significant pieces of national security legislation and all have been subject to scrutiny by the Parliamentary Joint Committee on Intelligence and Security. Each piece of legislation has been amended as a result of recommendations of the committee, sometimes quite extensively. This is an example of the process of parliamentary scrutiny at work. Likewise, the addition of other perspectives in the Senate debate ensures all views are ultimately considered and represented before the legislation comes to a vote.

As agencies continue to seek and are granted additional powers to meet contemporary threats, so too must scrutiny and oversight keep pace. In recent years Australia has benefited from professional and well-run intelligence and security agencies, and I acknowledge their work. They have demonstrated respect and understanding of the role of the parliament, the government of the day and our laws. But the personal integrity and quality of the leaders of our agencies, important as this is, are not reliable, effective safeguards against the abuse of security powers. It is the responsibility of parliament to prescribe safeguards that keep pace with the expansion of security powers that have been deemed necessary.

The purpose of this bill is to ensure that the adequacy and effectiveness of parliamentary oversight of intelligence and security agencies is in keeping with the development of the enhanced and additional powers we have afforded to these agencies. It amends the Intelligence Services Act 2001, the Independent National Security Legislation Monitor Act 2010 and the Inspector-General of Intelligence and Security Act 1986 to change the membership, powers and functions of the Parliamentary Joint Committee on Intelligence and Security. As legislative changes extending the powers of security agencies are implemented, the requirement for reliable and effective external oversight becomes more critical. If these changes, which extend the powers of agencies, are given effect but are not accompanied by adequate safeguards, it will be more challenging to maintain an essential level of trust in the community about agency operations. Trust is essential if our agencies are to be effective.

Not only are these safeguards important to protect the public interest, they also create an environment that protects the agencies themselves, because it is to the parliament that the agencies are accountable and it is the parliament's responsibility to provide oversight of their priorities and effectiveness. It is not sufficient for the parliament to simply put in place a legislative framework for the oversight of agencies without conducting oversight itself. If the parliament is not a check and balance, it will not be possible to ensure agencies meet the requirements and standards the parliament itself has set. The parliament has no better or more authoritative forum than the Parliamentary Joint Committee on Intelligence and Security to do this job.

Just as legislation governing our intelligence and security agencies must be under constant review, so too must the legislation governing the operation of the committee. Just as we would expect amendments to be brought to the parliament to correct deficiencies and enhance the operations of our intelligence and security agencies, so too must the parliament assess the effectiveness of its own committee. My submission to the Senate today is that the legislation governing the Parliamentary Joint Committee on Intelligence and Security can be improved, and I present this bill as a means of doing so.

I want to briefly traverse the key measures in the bill. This bill removes current constraints on the membership of the committee to provide that, except for a minimum representation of one government member and senator and one opposition member and senator, the balance of the 11-member committee can be drawn from either chamber. Currently, the Intelligence Services Act 2001 mandates a composition of six House of Representatives members and five senators on the committee. Removing the current constraints will enable greater flexibility in determining PJCIS membership. I note the bill does not amend the requirement for the government to hold a majority.

In relation to this provision, there is no reason why senators should be in the minority, and I suggest to the Senate it should be left to the parties to draw members from the best available representatives. Because of the nexus that currently exists between the Senate and the other place, as well as between the parties, for example, I had to relinquish my place on the committee for a period in order to accommodate the necessity of including the shadow minister for communications on the committee's inquiry into metadata laws. The opposition found itself constrained both by the apportionment of membership between the Senate and the House and by a desire by the government to allocate its six members across the chambers in a particular way.

I reiterate: the bill does not amend the requirement for the government to hold the majority, but it does mean there are fewer constraints placed on the choice of members for the committee based on the chamber in which they sit. I presume there would not be a senator who would object if this resulted in a greater number of senators on the committee! I note the continuing requirement that, before nominating members, the Prime Minister or the Leader of the Government in the Senate, as appropriate, is obliged to consult with the leader of each recognised political party that is represented in the House or Senate, as the case may be, and does not form part of the government.

The bill also provides for the committee to conduct own motion inquiries after consultation with the responsible minister; authorises the Independent National Security Legislation Monitor to provide the committee with a copy of any report on a matter referred to it by the committee; requires the Inspector-General of Intelligence and Security to give the committee a copy of any report provided to the Prime Minister or a minister within three months; gives the committee the function of conducting pre-sunset reviews of legislation containing sunset provisions; and adds the Independent National Security Legislation Monitor and the National Security Adviser to officers able to be consulted by the committee.

As the role of agencies and the power afforded to them develops, the greater the potential for that power to infringe upon individual liberties. In turn, the greater the need becomes for accountability in the exercise of that power. I do not in any way suggest that our security and intelligence agencies are acting otherwise than in accordance with the law. That is not my view. But, if powers were to be used inappropriately, there would be an erosion of public trust. Having appropriate and effective accountability mechanisms protects both the agencies and the public. As I said previously, it is the parliament to which the agencies are accountable, not the judiciary, and it is the parliament's responsibility to oversight their priorities and effectiveness and to ensure agencies meet the requirements and standards it sets.

I want to briefly turn to an international comparison. An increasingly complex and unpredictable security landscape in Australia and around the world means the powers of intelligence and security agencies have changed dramatically in recent years. This is as true in Australia as it is in many other similar democracies. The maintenance of public security in the current security environment has led to greater powers for the agencies charged with these responsibilities. However, the protection of democratic liberties and freedoms equally demands enhanced oversight of the exercise of these powers. This is the case at home and abroad.

As senators would know, Australia forms part of the five eyes intelligence and security network of nations, including the United Kingdom, the United States, New Zealand and Canada. With the exception of Canada, each of these countries has at least one committee of the legislature that exercises oversight of that country's intelligence and security agencies.

In the United Kingdom, the Intelligence and Security Committee of Parliament consists of nine members drawn from both the House of Commons and the House of Lords. The numbers from each chamber are not specified in the governing act. Similarly to our committee, the members of the Intelligence and Security Committee of the United Kingdom are appointed by the House in which they serve, on the nomination of the Prime Minister in consultation with the opposition. Recent reforms provided that committee with greater powers and increased its remit, including to oversight of operational activity and the wider intelligence and security activities of government.

The United States Senate Select Committee on Intelligence is established by resolution of the Senate and consists of 15 senators: eight from the majority party and seven from the minority. It meets roughly twice a week, generally in closed session. Most hearings involve appearances by senior intelligence community officials, who present evidence and answer senators' questions. There is also the Permanent Select Committee on Intelligence in the United States House of Representatives.

The New Zealand Intelligence and Security Committee has a membership of five, notably including the Prime Minister and the Leader of the Opposition. Two of the remaining three members are nominated by the Prime Minister, and one by the Leader of the Opposition.

As I said at the outset, Canada does not currently have a parliamentary committee responsible for intelligence and security. However, the new government, during the election campaign, promised to establish an all-party national security oversight committee if elected. The new Prime Minister has instructed the relevant minister to assist the Leader of the Government in the House of Commons in the creation of a statutory committee of parliamentarians with special access to classified information to review government departments and agencies with national security responsibilities.

As can be generally seen, the legislative branch of government has a central role in oversight and scrutiny of the work of such agencies amongst our allies. Further, the membership of the parliamentary committees that I have outlined is generally more flexible than the situation that currently applies in Australia—something this bill is designed to address.

As a result of legislation that has recently passed the parliament, from 1 March the parliamentary joint committee has already had a number of additional functions added to its previously existing responsibilities. These include: monitoring and reviewing the performance of the AFP's counter-terrorism functions under the Criminal Code; reporting to the parliament upon matters appertaining to the AFP, or connected with those functions; reviewing matters relating to the retained data activities of the AFP and ASIO covered in annual reports on the mandatory data retention regime, including where this goes to operational matters, for the sole purpose of assessing and making recommendations on the overall operation and effectiveness of the regime; reviewing bills in relation to the mandatory data retention regime; conducting a review of a range of counter-terrorism legislation, by 7 March 2018; conducting a review of the mandatory data retention regime, to be commenced by 13 April 2019 and completed a year later; conducting a review, by 1 December 2019, of the new citizenship revocation powers contained in the Australian Citizenship Amendment (Allegiance to Australia) Act 2015.

This is in addition to powers in other areas. These include: reviewing the declaration of areas in overseas countries for the purpose of section 119.2 of the Criminal Code; reviewing the declaration of terrorist organisations for the purpose of section 35AA of the Australian Citizenship Act 2007; being provided with any reports produced by the IGIS or the Commonwealth Ombudsman in relation to data retention; being notified by the IGIS of any emergency ministerial authorisations for intelligence agencies under the Intelligence Services Act 2001, and being notified and briefed by the Department of Immigration and Border Protection in regard to all instances where citizenship is revoked under the new powers.

These are additional powers that this parliament has provided to this committee. What is demonstrates is the important role the committee plays in ensuring the expectations of the parliament are upheld.

I am pleased to have the opportunity to currently serve on the Parliamentary Joint Committee on Intelligence and Security. I do so alongside senators and members, including Senator Conroy, Senator Gallagher, Senator David Fawcett, and others, who seek to continue this committee's important role in balancing our security needs with the rights and freedoms that characterise our nation.

As I noted at the outset, John Faulkner first prepared this bill for introduction in 2014, and presented it to the Parliamentary Joint Committee on Intelligence and Security for consideration and comment. As I am now bringing forward this bill for debate, I inform the Senate that I have again provided this bill to the committee to ensure all members are fully apprised of its purpose and have the opportunity to comment, or to consider the matter further in the context of the committee, if that is what is required. In terms of the context of this bill, I extend an invitation to all senators to consider its contents. I am aware that some have already made contact with my office, ahead of this debate today.

There is no greater or more important focus of political activity in this country than the parliament itself. The Australian Parliament has no better or more authoritative forum than the Parliamentary Joint Committee on Intelligence and Security, to provide oversight of our intelligence and security agencies. The bill before the chamber will enable the committee to undertake its responsibilities and fulfil what I regard, and I am sure this is shared, to be a critically important role. It will enable that role to be performed with greater effectiveness.

I express my hope that the bill will receive sensible consideration and in time, I hope, support from all parties across the chamber, recognising that this is a bill that is designed to enhance the ability of the committee to protect the interests of the parliament and, through us, the Australian people. I commend the bill to the Senate.

David Johnston (WA, Liberal Party) Share this | Link to this | Hansard source

I want to commence my speech here this morning, with respect to opposing the Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015, by setting out firstly what appears to be the two principal aims. The first is to remove the constraints on the membership of the committee by, firstly, the removal of the requirement for the committee to consist of five senators and six members of the House of Representatives, and, secondly, to introduce a requirement that the Prime Minister and the Leader of the Government in the Senate must be satisfied that members to be nominated to the committee are 'the most appropriate members available'. Secondly, enhance the powers and functions of the committee, including by, firstly, allowing the committee to conduct own-motion inquiries; secondly, requiring the Inspector-General of Intelligence and Security to provide reports of the committee within three months of those reports being provided to the Prime Minister or the responsible minister; and, thirdly, allowing the committee to conduct pre-sunset review of legislation.

The current requirements require the committee to consist of five senators and six members of the House of Representatives, pursuant to section 28(2) of the Intelligence Services Act. The bill proposes that the committee consists of at least two senators—one government senator and one opposition senator—and two members of the House of Representatives—one government member and one opposition member. The remaining seven members of the committee could be drawn from either the House or the Senate. These are very significant changes to what is—and I think was conceded by Senator Wong in her speech before me—a very successfully working oversight committee in a most important and sensitive area in Australia today.

There are significant concerns surrounding these proposed amendments. In particular, these amendments have the potential to compromise the real or perceived independence and effectiveness of operational activities, and on the independence of existing oversight bodies. I will explain that in detail in a moment. The appropriateness of parliamentary oversight of intelligence agencies was examined in 2004 in the Flood inquiry. That inquiry found:

Just as the advice that officials provide to ministers is not disclosed in Senate Legislation Committee hearings, the judgments of assessment agencies should not be subject to parliamentary scrutiny. Opening assessments to scrutiny by parliament would also weaken the instinct amongst assessors to provide forthright advice for government, which is vital for good assessment.

The current role of the Parliamentary Joint Committee on Intelligence and Security, the Inspector-General of Intelligence and Security and the Independent National Security Legislation Monitor ensure that there is effective oversight of the functioning of all aspects of Australia's security and intelligence agencies, whilst minimising duplication and overlap. In short, the system in place is not broken and requires no fixing, and nothing in this legislation suggests or provides an example of a shortfall in the capacity of the functioning of the Parliamentary Joint Committee on Intelligence and Security.

The current division also respects the appropriate divide between parliamentary and independent oversight and has until this point done so on a bipartisan basis. For example, item 3 of the bill proposes to require the Inspector-General of Intelligence and Security to provide her reports to the committee. Currently agencies provide information on a voluntary basis to the inspector-general to assist her in her investigations. In addition to the inspector-general's powers to compel information, this can include highly classified and sensitive information which is provided to the inspector-general with the assurance that it will be treated with the utmost security—that is, Top Secret. The knowledge that any information that is Top Secret Australian Eyes Only. The knowledge that any information provided might be included in a report which would be required to be passed on to the parliament may limit the voluntary provision of information by Australian intelligence community agencies to the inspector-general. This is precisely what we do not want, and we do not want to blur the independence of the agency oversight. This bill does that. Knowledge that reports must be provided to parliament may also affect the contents of reports prepared by the inspector-general and may limit the frankness and openness with which those issues are discussed and disclosed.

Similar concerns arise in relation to item 7 of the bill, which proposes to enable the Parliamentary Joint Committee on Intelligence and Security to conduct inquiries into legislation prior to a sunset date. This is an unnecessary duplication of the role of the Independent National Security Legislation Monitor, who has been granted powers that are tailored specifically to reviewing the operation, effectiveness and implications of Australia's national security legislation.

The Parliamentary Joint Committee on Intelligence and Security Bill 2015 seeks to provide additional powers to the committee and its oversight of our security intelligence agencies. It has long been the position in Australia that operational oversight of intelligence, security and law enforcement agencies is conducted by independent statutory oversight agencies rather than by the parliament. This is fundamentally for the benefit of the system of security of what those agencies are dealing with. Indeed, successive independent reviews have endorsed the existing oversight framework and have not proposed fundamental structural changes of the kind that this bill would deliver. The most recent review, in 2011, conducted by Mr Robert Cornall and Dr Rufus Black, found that the legal framework 'is sound and does not need any adjustment at present.' There is no review that I am aware of that advocates changes in the nature of those proposed by this bill. Indeed, our Australian model for oversight of intelligence agencies is respected and held up worldwide as one of the best models in existence.

Under existing arrangements the Inspector-General of Intelligence and Security and the Independent National Security Legislation Monitor serve a very crucial role in overseeing and ensuring accountability for the operational activities undertaken by our security agencies and the legislation which allows for those activities both onshore and offshore. It is entirely appropriate that these functions be served by independent nonpolitical bodies. This is at the core of why our system is so successful—and nobody is saying that it is not. Again I reiterate: this is not broken, let's not fix it, let's not tinker with it. This bill has the potential to blur the existing divide between parliamentary and independent oversight. May I say that that blurring is extremely naive and fundamentally quite stupid.

Rather than providing the Parliamentary Joint Committee on Intelligence and Security with oversight powers that would duplicate and overlap those of the Inspector-General and the Independent National Security Legislation Monitor, the government is focused on ensuring that our oversight bodies have the resources and tools they need to keep pace with the essential legislative changes and increased funding provided to our security agencies that make them effective and indeed world class. For example, in the past 18 months the government has significantly enhanced the powers and resources of the independent oversight bodies that supervise our law enforcement and national security agencies. We have increased the ongoing funding for the inspector-general, a body with powers akin to a royal commission, to increase her staff by more than one-third to enable greater oversight arrangements of Australian intelligence activities, and we have enhanced the annual reporting requirements of ASIO and law enforcement agencies, ensuring that the public and the parliament are better informed about the use of exceptional powers by those agencies. We have also introduced a system of special protections for journalists and their sources, including the requirement that agencies obtain a warrant prior to accessing journalists' metadata. We have also provided additional supporting resources to the office of the Independent National Security Legislation Monitor to assist with the increased volume and complexity of national security legislation being referred for inquiry. We have also significantly enhanced the powers of the Commonwealth Ombudsman to oversight access to metadata by law enforcement agencies. These enhanced powers have been supported by an increase in funding of $6.7 million over four years.

The current Inspector-General of Intelligence and Security is the Hon. Margaret Stone, a former Federal Court justice. The current Independent National Legislation Monitor is the Hon. Roger Gyles, a former Federal Court judge. These people are of outstanding integrity, ability, skill and experience, and they are, most importantly, independent of the parliament and the politics they are under. This bill proposes to remove the current requirement that six committee members be drawn from the House of Representatives and five from the Senate. The bill also introduces a new requirement for the Prime Minister and the Leader of the Government in the Senate to be satisfied that those nominated for membership are 'the most appropriate members available to serve on the Committee'. This is a very problematic legislative requirement.

Let us deal firstly, as lawyers ultimately will, with the requirement that the membership must be 'the most appropriate members'. This is a subjective test in an area where we need to have objectivity. How is one member of this parliament more appropriate than another member or 'the most appropriate', and who adjudicates that and upon what basis? This is a political test. We then have to have, from that point, availability. Availability is a contestable quality in terms of who is available. Is someone not available because they live in Western Australia? Is someone not available because they have other committee duties? Is someone not available because the bells are ringing and they are required to vote? This is a highly problematic definition introduced into what should be clear, simple, objective legislation.

The parliamentary joint committee is a highly functioning committee and has repeatedly demonstrated its ability to conduct insightful, thorough, skilful and very enhancing investigations in an area that is extremely sensitive. It is probably one of the most responsible things that any parliamentarian will do in this place. It is done, at this point in time and to the best of my knowledge, on a very bipartisan basis. While there has been no indication that existing committee structure is inappropriate or requires amendment, the government remains committed to ensuring that the most appropriate and qualified members of parliament are able to serve on the committee. But that does not mean to say that we require a legislative definition. If we were to get into that, the essence of the problem I foresee with this legislation comes straight to the surface: a subjective judgement.

Let us not forget what has happened in recent history. Five tranches of legislation have come through this parliament to strengthen the ability of our agencies to investigate, monitor, arrest and prosecute home-grown violent extremists and returning foreign fighters. Firstly, the National Security Legislation Amendment Act (No. 1) 2014, which commenced operation on 30 October 2014, responded to the Parliamentary Joint Committee on Intelligence and Security report entitled Report of the inquiry into potential reforms of Australia's national security legislation. So the committee itself did a report that talked about reforms that would improve and modernise the legislation governing Australia's intelligence agencies. To the best of my understanding, nowhere in that report were these amendments foreshadowed.

Secondly, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 amended 22 pieces of Commonwealth legislation to respond to the threat posed by Australians engaging and returning from conflicts in foreign states. The key amendments made by that act were: to enhance Australia's control order regime, to provide additional powers for security agencies, to strengthen Australia's border security measures and to authorise the cancellation of welfare payments for persons involved in terrorism to ensure taxpayers were not funding terrorists or foreign fighters whilst they conduct those operations overseas.

Thirdly, the Counter-Terrorism Legislation Amendment Act (No 1) 2014 sort to strengthen and enhance the control order regime to allow the Australian Federal Police to seek orders in relation to a broader range of individuals of security concern, particularly the enablers of foreign fighters and terrorists—that is, those who recruit and facilitate those people who want to go away and fight overseas. It also amended the Intelligence Services Act, to facilitate ASIS providing timely support to the Australian Defence Force in military operations and cooperation with the Australian Defence Force on intelligence matters, which was logical, much appreciated and welcomed.

Fourthly, the data retention legislation, which I am sure we all recall, was enacted to ensure our security and law enforcement agencies continue to have access to information they need to do their jobs by requiring telecommunication providers to retain a defined set of data for two years. The parliamentary joint committee examined the bill at length and concluded that the bill is 'a necessary, effective and proportionate response to the serious threat to national security and public safety caused by the inconsistent and degrading availability of telecommunications data'.

Fifthly, through this chamber came the Counter-Terrorism Legislation Amendment Bill (No 1) 2015. Those measures were introduced on 12 November. They have been informed by recent counter-terrorism operations and will further strengthen Australia's robust national security laws and counter-terrorism framework. The key amendments in that bill would: reduce the minimum age for imposition of certain obligations from 16 to 14; facilitate the monitoring of all individuals subject to control orders through targeted search, telecommunications interception and surveillance device regimes; and provide greater protection to sensitive information in control order proceedings by allowing the court to consider evidence that is not disclosed to the respondent or their legal representatives. These are very important and vital measures in this space.

There are many, many other safeguards that have been put in place, as I have canvassed and mentioned. There is the Independent National Security Legislation Monitor, the Hon. Roger Gyles, whose function is to review the operation, effectiveness and implications of Australia's counter-terrorism and national security legislation on an ongoing basis. The parliamentary joint committee itself has a monitoring and oversight function, as we have already discussed. The Independent Reviewer of Adverse Security Assessments—the very able, skilled and effective Mr Robert Cornall, former Secretary of the Attorney-General's Department—provides an important safeguard and review mechanism for people who have been found to be owed protection under international law but are being held in immigration detention in Australia because of an adverse security assessment.

In closing, I make the very important point that the current provisions governing the operation of the parliamentary joint committee are specifically and properly intended to protect against the disclosure of operational matters, including the disclosure of operationally sensitive matters, to the committee. The provisions in this bill blur that, as I have said, and cause me great concern. The proposal to require the inspector-general to provide reports to the committee directly contravenes these principles. What does that mean for the bill before us? It means that the changes it proposes are not necessary.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I rise with pleasure to speak on the Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015 and express the Greens' appreciation to Senator Wong for introducing the bill into the Senate and bringing it on for debate today. The Parliamentary Joint Committee on Intelligence and Security has been in its current form since 2005, following the passage of the Intelligence Services Act 2001. The current committee was preceded by the Parliamentary Joint Committee on ASIO, ASIS and DSD, and the joint committee on ASIO.

This bill seeks to amend a number of pieces of legislation. Specifically, it seeks to amend the Intelligence Services Act 2001 by removing some of the current constraints on the membership of the Parliamentary Joint Committee on Intelligence and Security which would change it from the current six members from the House of Representatives and five senators, to one government member and one government senator, and one opposition member and one opposition senator, with the balance of the committee drawn from either chamber.

I would like to flag right up-front in my contribution that we note that the proposed amendments around the membership of the parliamentary joint committee that are contained in this legislation do not specifically provide for a member of the Senate crossbench to serve on the committee, and I include Australian Greens senators in that definition of the crossbench. I flag on the record today that the Greens will be introducing an amendment to this legislation to provide for that to occur. It is important to understand that we are not asking for crossbench control of the committee or for a crossbencher to chair the committee necessarily but simply for a voice from the crossbench, including the Australian Greens, on what is a very important parliamentary committee—one that plays a crucial role in the oversight of Australia's intelligence and security agencies and also has a crucial role in scrutinising proposed legislation. But I think we can all agree that in recent years—and in that definition I go right back to 2001-2002—legislative changes have continually eroded and encroached on some of the fundamental human and civil rights that are quite rightly and quite understandably held so dear by so many Australian people.

We are very pleased to see that this legislation also provides for the Parliamentary Joint Committee on Intelligence and Security to conduct own-motion inquiries.

I listened to the contributions from Senators Wong and Johnston, and I go firstly to the contribution from the senator who just resumed his seat, Senator Johnston. It is fair to say that one of the major planks of his argument against this legislation is that it blurs the lines between parliamentary oversight and independent oversight in the context of Australia's security agencies. We will take on board Senator Johnston's comments on that and have a closer look at that issue.

But I do wish to point out to the chamber that Senator Johnston quite rightly pointed to the role that the Independent National Security Legislation Monitor plays in terms of independent oversight of our legislative frameworks around national security. I draw the attention of senators to a report tabled yesterday in this place, from the Australian Law Reform Commission, entitled Traditional rights and freedoms—encroachment by Commonwealth laws. That report said:

Counter-terrorism and national security laws that encroach on rights and freedoms should … be justified, to ensure the laws are suitable, necessary and represent a proper balance between the public interest and individual rights.

Of course, we in the Australian Greens agree with that sentiment. But I want to make it very clear that the Australian Greens remain unconvinced that the Independent National Security Legislation Monitor is adequately funded by government. We also note, as was made clear in the Law Reform Commission report, that Independent National Security Legislation Monitor recommendations do not currently receive a government response. That is unacceptable in the view of the Australian Greens. The Independent National Security Legislation Monitor does a great job across a wide suite of legislation. It provides reports to this parliament, and it is simply not good enough that the government does not provide a response to the recommendations of the Independent National Security Legislation Monitor to this parliament.

It is crucial that the work that the Parliamentary Joint Committee on Intelligence and Security does in scrutinising legislation that relates to counter-terrorism and national security is robust to ensure that new laws do not unnecessarily encroach on rights and freedoms in this country. I have to agree with many of the sentiments expressed by Senator Wong in her second reading contribution on this legislation. Unfortunately, I have to point out that those sentiments are not always backed up in this place by Labor's position on changes to our legal framework that create more or enhanced powers for our police services, intelligence agencies and security agencies.

We seem to have a very strong bipartisanship in this area that the Australian Greens suspect is driven more by political considerations than anything else. Neither Labor nor the coalition while in opposition want to appear weak on national security issues, because they can then be attacked by either Labor or the coalition when in government. Unfortunately, it seems that both the coalition and Labor have decided that, for political purposes, they are not going to have a breadth of distance between them on national security issues. So it has fallen to the Australian Greens, in the main, to point out that, while there have been many changes that create new, or enhance existing, powers for security, intelligence and police agencies in this country, on many of those occasions the case has simply not been made that those changes make Australia any safer.

Stephen Parry (President) Share this | Link to this | Hansard source

Order! The time for this debate has now expired.