Don Farrell (SA, Australian Labor Party, Shadow Minister for the Centenary of ANZAC) Share this | Link to this | Hansard source

I am very pleased to commence debate in the 45th Parliament on the Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015. This bill was originally introduced by Senator Wong in 2015. It lapsed at prorogation in April 2016, was restored to the Notice Paper, lapsed again at the dissolution ahead of the election and was restored to the Notice Paper again to enable it to be advanced in the new parliament. This bill 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 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 the drafting and consultation on this bill. I might interpose here that Mr Faulkner recently gave up some of his time to come and address new senators on the way in which estimates runs. The bill is one of the legacies 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. Labor is pleased to pursue the reforms contained in this bill originated by Mr Faulkner. John Faulkner served in the cabinets of two Labor governments and 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 the 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 of our national security architecture, particularly in these times.

This bill serves both those objectives. Effective scrutiny and oversight strengthen public support for our agencies and they also strengthen the agencies subject to oversight. As elected representatives gather 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 we see emerging threats to our national security. This parliament must not deny our intelligence and security agencies the necessary powers and resources to protect Australian citizens and Australian interests. However, it must be recognised that these powers can impinge upon 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 right balance between the security imperatives of our nation and the liberties and the 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 about the environment 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 a 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 time. It also reflects changes in technology, which means that our intelligence and security agencies must operate in a higher level of sophistication with specialist expertise. There has generally been a high level of cooperation in the parliament to secure bipartisan agreement on national security legislation. Of course, bipartisanship does not mean taking an uncritical approach to proposals or 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. Labor acknowledges 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 leaders of our agencies, as 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 and enhancement of 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. 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 the 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 the agency's operations. Trust is essential if our agencies are to be effective.

Not only are these safeguards important to protect the public interest but they also create an environment that protects the agencies themselves. It is to the parliament that these agencies are accountable and it is parliament's responsibility to provide oversight of their priorities and their 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 the standards that 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 the legislation governing our intelligence and security agencies must be under constant review, so too must be the legislation governing the operation of the committees. Just as we would expect amendments to be brought to the parliament to correct deficiencies and enhance the operation of our intelligence and security agencies, so too must the parliament assess the effectiveness of its own committee. Labor's submission to the Senate today is that the legislation governing the Parliamentary Joint Committee on Intelligence and Security can be improved. We 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 on 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 from the committees. Removing this current constraint will enable greater flexibility in determining PJCIS membership.

I note that 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. 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, in the past some senators on both sides have had to relinquish their places on the committee for a period in order to accommodate certain members of the other place for particular inquiries by a committee. The opposition found itself constrained by both the apportionment of membership between the Senate and House and the desire by the government to allocate its six members across the chamber in a particular way.

I reiterate: the bill does not amend the requirement for the government to hold a majority, but it does mean that 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 and in the Senate, as the case may be, and that does not form part of the government.

The bill also: provides for the committee to conduct its 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 presunset 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 powers afforded to them develops, the greater the potential for that power to infringe upon individual liberties and, in turn, the greater the need 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 oversee 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 oversight of operational activities 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 party. It meets roughly twice a week, generally in closed sessions. Most hearings involve appearances by senior intelligence community officials, who present evidence and answer senators' questions. There is also the House 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 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 it was 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 the oversight and scrutiny of the work of such agencies amongst our allies. Further, the membership of the parliamentary committees that I have outlined in general is more flexible than the situation that currently applies in Australia—something this bill is designed to address.

As a result of legislation that passed in the last parliament, from 1 March 2016 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 Act; reporting to the parliament on matters appertaining to the AFP, or connected to 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.

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.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

This is the first opportunity I have had to be in a debate that Senator Farrell has spoken in, so I take this opportunity of congratulating him on his appointment as deputy leader. I must say I look forward to his further advancement in the opposition in the years ahead.

Senator Farrell indicated in his opening remarks that this was a matter that former Senator Faulkner had an interest in. While I disagreed with then Senator Faulkner on many issues, I have always accepted his absolute commitment to parliament and to what he believed was right. So having this bill introduced by Senator Farrell with reference to the work that then Senator Faulkner had done meant I listened with a great deal of interest to what Senator Farrell said in his opening address and I tried to follow through the arguments that he was putting in support of this bill.

I want to say at the outset that in these days of heightened insecurity across the world, and Australia is no different, our intelligence and our security agencies have an even greater role to perform in protecting Australians. Regrettably, where that occurs throughout history it of necessity sometimes curtails some of the other freedoms that we would expect—some of the roles that parliament and others might have in looking at issues—because of this heightened security. We have to make sure that the agencies we entrust to look after our safety have everything going in their favour because, as I always point out, the bad guys—the terrorists, the criminals—are constrained by no-one and nothing. They are not accountable to anyone at all. They do what they like. But our agencies—our police forces, our security agencies—are always accountable to someone and so they have to act in the most appropriate manner all of the time. And sometimes that does constrain what they are able to do. I do not think this parliament should do anything that makes it harder for our security agencies and our police forces to do their jobs in protecting us. And while I accept that this bill has been introduced in good faith, it is not a bill that I could support or that the government could support for reasons that I will get onto shortly.

Just by way of background, I indicate to those who might be following the debate that the Parliamentary Joint Committee on Intelligence and Security has existed in its current form since the inquiry into the Australian intelligence agencies by Mr Philip Flood AO in 2004. Amongst his findings, Mr Flood recommended that membership of the then parliamentary joint committee on ASIO, ASIS and the Defence Security Directorate should be extended to include the Defence Imagery and Geospatial Organisation, the Defence Intelligence Organisation and the Office of National Assessments. Following the passage of the intelligence services legislation bill in 2005, which resulted from the Flood inquiry, the committee was re-established as the Parliamentary Joint Committee on Intelligence and Security.

The functions of that committee are outlined in the Intelligence Services Act, as amended. Briefly, section 29 provides that the committee's functions are:

… to review the administration and expenditure of ASIO, ASIS, AGO, DIO, ASD and ONA, including the annual financial statements …

The committee is also required:

… to review any matter in relation to ASIO, ASIS, AGO, DIO, ASD or ONA referred to the Committee by:

(i) the responsible Minister; or

(ii) a resolution of either House of the Parliament

The committee also has to:

… monitor and to review the performance by the AFP of its functions under Part 5.3 of the Criminal Code

which relates to terrorism. It is also to review the 'operation, effectiveness and implications' of: Part III of the ASIO Act, which relates to questioning and detention powers; division 3A of IAA of the Crimes Act, which relates to police powers in relation to terrorist acts and terrorism offences; divisions 104 and 105 of the Criminal Code, which relate to control orders and preventative detention orders; and sections 119.2 and 119.3 of the Criminal Code about declared area provisions.

The committee has other roles required by the act. I will not go through them all, but they are all set out in section 29 of the act. Under the Criminal Code, the committee is also able to review any regulation made for the listing or relisting of a terrorist organisation and report the committee's comments and recommendations to each house of parliament, so it has fairly wide powers. It can review and report on the declaration of any terrorist organisation under the Australian Citizenship Act. It can do all of those things that I have mentioned, and it is also required to prepare and table an annual report each year.

The committee, though, is not authorised by the act to initiate its own references, but may resolve to request the responsible minister to refer a particular matter to it for review. So if the committee thinks that there is an issue that needs to be addressed it can, by resolution, ask the relevant minister—no doubt the Attorney-General or the Minister for Justice—to make a reference on that particular matter. It is then up to the minister to either agree or disagree with that role.

The act specifically sets out what the committee is not able to do. It is important to understand these. The committee is barred from reviewing the intelligence gathering and assessment priorities of our intelligence agencies. It is prevented from reviewing the sources of information or other operational assistance or operation methods available to any of those agencies. It is not able to review particular operations that have been, are being or are proposed to be undertaken by any of our agencies. It is not entitled to review information provided by an agency of a foreign government where that government does not consent to the disclosure of the information. It is not allowed to review aspects of the activities of ASIO, ASIS, AGO, DIO, ASD or the Office of National Assessments that do not affect an Australian person. It is not allowed to review rules relating to the protection of privacy of Australians. It is not allowed to look at individual complaints about the activities of any of our agencies. It is not able to review the content of or conclusions reached in assessments or reports made by DIO or ONA, or to review sources of information on which such assessments are based.

It does not need me to go through and explain why the act that was passed several years ago made those prohibitions, because the last thing we want is individuals coming forward with a complaint which may or may not be genuine and then dragging our often secret intelligence agencies before a public parliamentary committee to respond to what may well be a frivolous complaint. I could give examples in relation to every one of those prohibitions, but I do not think it needs me to do that. Anyone who follows this area of law would understand the reasons for those prohibitions being put in place.

I will indicate—I think Senator Farrell made the same observation, but perhaps not with directly the same words—the Parliamentary Joint Committee on Intelligence Services has always been one of the most successful examples of effective bipartisanship throughout successive Australian parliaments and it has an excellent track record of conducting insightful and thorough investigations. I emphasise that it is a bipartisan committee. When it comes to the safety of Australians and our nation, politics does not enter into it. It does not matter which political party you are involved in. I would say with absolute confidence that there is no politicking and no partisan approach to the way our security agencies operate, because the job they are doing is to protect all of us. As I said earlier, it is essential that they have every power to do that.

This amending bill that we are dealing with today does a number of things. It expands the powers and the functions of the committee by allowing the committee to conduct a review into operational activities of the intelligence agencies and the Australian Federal Police. I shudder to think that any parliamentary committee would be asking our secret service people to explain their methods of operations: why they did things, the judgements they made or the secret information they get from other agencies from other nations with whom we have very close arrangements. It would just be a difficult constraint on those agencies. Remember, I said before—I was to emphasise this—the bad guys, the terrorists and the criminals have no constraints. They can do what they like and they are not answerable to anyone. Whilst our agencies act within the law, and the laws are made so that they do act appropriately and properly, having the agencies before a parliamentary committee to explain in detail every element of their operations, I think, would curtail them and would not only make their operations more difficult in the future but perhaps lessen their enthusiasm for protecting us properly in the case where they knew they would have to come and publicly explain their operations.

The bill also seeks to provide the committee with powers including operational oversight and presunset legislative review which would duplicate and overlap those of the Independent National Security Legislation Monitor and the IGIS—the Inspector-General of Intelligence and Security. These agencies are subject to oversight by these two statutory organisations. What this bill seeks to do is to give the committee its own powers to almost oversee the overseers, and that seems to be inappropriate. The bill does not provide adequate protection of operational activities, including methods and sources, to ensure that any reviews the committee conducts or any reports that either of the inspectors-general might be required to provide to the committee do not prejudice the operational activities of agencies and international relations—and that is very important as well.

If I could just perhaps elaborate a little further on some of those objections: the existing divide between the parliamentary committee and these independent agencies with oversight would compromise the independence of those two overseeing bodies by proposing that the committee receive direct reports from the IGIS on operational activities and could then commence its own inquiries. This would seem to be hugely double-guessing the existing agencies that are in place to oversee our security services.

The longstanding position in Australia is that operational oversight of the intelligence, security and law enforcement agencies is conducted by independent statutory oversight rather than by parliament. That has been around for some time. Currently, the IGIS, which serves a crucial role in overseeing and ensuring accountability for all operational activities, reports only to the minister, as I think is appropriate. I mentioned the Flood inquiry before and I will just quote from something that the inquiry found in its 2004 investigation:

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.

That is what the Flood inquiry reported and advised the parliament, following a very extensive inquiry back in 2004.

This bill, if it were passed, would enable the committee to conduct inquiries into legislation prior to a sunset date. This is an unnecessary duplication of the role of the INSLM, who has been granted powers that are tailored specifically to reviewing the operations, effectiveness and implications of Australia's national security agencies.

The amending bill also would enable the committee to conduct its own review into the activities of ASIO, ASIS, AGO, DIO, ASD and ONA, provided the PJC—the committee—has first consulted with the responsible minister. As I said, this is an unnecessary duplication of the role of the Inspector-General of Intelligence Services.

In 2014-15, under the coalition government, the Inspector-General received an increase of $840,000 in ongoing funding, allowing for the recruitment of additional staff to ensure effective oversight. So, the government has given these independent statutory officers all the resources necessary to properly oversee our security agencies—to make sure that they are doing the right thing. I think that is a system that works very well.

Of course, I do not know about—I am not privy to—the work of ASIO, or ASIS or any of the intelligence agencies, although as chair, once, of the parliamentary committee with oversight of the Australian Crime Commission I did get some limited insight into the work that is done by that agency and, indeed, others. But I have the highest regard for the professionalism and integrity of our services—particularly as they are overseen by independent statutory officers, in whom I think I can say confidently everyone in this parliament has confidence.

So, as I said, whilst I listened to the arguments and I understand the sentiments of the bill I think it is unnecessary. I think the system works well as it is at the present time and I would urge the chamber not to support the amending bill.

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

I thank the opposition for bringing this Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015 on for debate. I want to start my contribution by just reflecting on the context—the global security environment within which we are having this discussion.

It is certainly true to say that at the moment we are facing on a global scale a very complex and rapidly-evolving security environment. It is one that brings with it specific and, to date in human history, unique challenges. That is why the Greens believe it is important that there is proper scrutiny through this parliament of Australia's security agencies. But, more importantly in that context, it is why we believe that we need a more strategic approach to law-making in this country around issues like intelligence gathering, data collection and the way that our security agencies operate.

I want to make the point up-front that in fact the Australian Greens do not believe that we are taking a strategic enough approach to making laws in this area. Of course, what we have seen in recent times—particularly in the last 15 years, since 2001-2002—is an ever-changing landscape of laws that the Australian people are told is there to protect us against some of the threats that I have just spoken about. We have seen a large volume of legislative change that has been made in the name of counterterrorism and national security, and I think it is beyond argument that the majority of those legislative changes have in fact eroded some fundamental civil rights and human rights that have existed in this country for many years. In many cases, these are civil and human rights that our ancestors fought for and in some cases tragically died to protect. We are now seeing some of these rights eroded away in the name of counterterrorism and national security. I think that is an unarguable statement.

Where discussion and, potentially, contention comes into this is: are those trade-offs worth making in terms of the advances that they bring protecting the Australian people? That is a discussion we want to place front and centre in this parliament and in the public conversation in this country. We urge both the coalition, currently in government, and the Labor Party, currently in opposition, to think very carefully about whether they would be prepared to support a more strategic approach around the way we are seeing our civil liberties eroded in the name of counterterrorism and national security.

I want to be clear that the Australian Greens genuinely believe it is time for a white-paper-style assessment—call it a blue paper if you like—of whether or not the legal changes that have occurred in the name of counterterrorism and national security have in fact made Australia safer, as we are told they were designed to do and, more specifically, whether that reduction in our civil liberties in this country has been worth any advance in national security and counterterrorism. As I said up-front, we are facing a very complex and rapidly-evolving security scenario around the world. The danger with taking a white paper approach is that it is a snapshot in time and then the world moves on, rendering all the work that had been done to generate a white paper less relevant than it otherwise would have been.

We believe that it is well within the competence of our policy makers and our security agencies to design a living white paper—one that is capable of evolving in very close to real time to respond to changes in the global security environment. We do not think this is a contentious idea. We see white papers in, for example, the Defence portfolio. We would pose the question: why don't we have a white paper process in the counterterrorism space and the national security space? There is nothing wrong with a strategic approach in this environment. We have seen white paper processes for tax, agriculture and defence. We have even seen a white paper for Northern Australia. But we have not for some time seen a white paper around national security in the context of counterterrorism.

Of course, a white paper process would involve the input of our security agencies, but it would also give a range of other experts from a number of other fields the chance to have a meaningful say. It should and could include an examination of the effectiveness of the dozens of legislative and administrative changes made since 2002. I will just place on the record that since that time we have seen new crimes created at least 12 times, legal powers have been extended at least seven times, police have been granted new powers at least 16 times and intelligence powers have been increased at least 12 times. In that period such laws have only been softened twice and new oversight created just once. This erosion of fundamental civil liberties in our country is unprecedented in Australia's peacetime history. We believe we owe it to our people, including the many Australians who have fought and at times died to protect these liberties, to make sure that this erosion is actually justified by an increase in the security of the Australian people.

I come now to this legislation. The bill seeks to amend a number of acts. 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. It 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. We have heard contributions from both the government and the opposition today. I want to make the point that this committee is very much a closed shop; it is historically made up of members from the government of the day and the opposition of the day.

We are facing a context now where one-quarter of Australians did not vote for the coalition or Labor in the recent election—and that is a continuation of a declining trend in the vote of the political duopoly in this country. So the Australian Greens have a view that it is time the membership of this committee provided for an opportunity for a senator who is not from the government and not from the opposition to join in the role that this committee plays in our parliamentary system and in our scrutiny system. So I flag now that in the committee stages of this bill we will be moving an amendment which, if passed, will provide for a senator who is not a government or opposition senator to become part of the membership of this committee.

We understand the responsibilities that this would entail, the responsibilities that this would place on whichever member of the crossbench it is. I include the Australian Greens in that context, as members of the crossbench. We understand it would place a heavy responsibility on whichever non-government and non-opposition senator were appointed to fill a position on this committee, but we do believe that it is important that there be at least one voice on this committee that does not reflect the political duopoly, because what we have seen in Australia, certainly in the last decade to decade and a half, is a strong bipartisanship on national security matters.

My view is that the reason we have strong bipartisanship on national security matters actually owes more to politics than it does to a robust examination of the legislation that underpins Australia's national security. Neither party when in opposition want to appear weak on national security, so they fall into zombie lockstep with whoever is in government at the time and develop a bipartisanship that means legislation which is continually brought into this place—and we are facing more on the Notice Paper at the moment—and which erodes some of our fundamental civil and human liberties in this country is not adequately scrutinised. We believe we need more scrutiny; we believe there needs to be more justification put before the Australian people for this continued erosion of their civil liberties in the name of counterterrorism and national security; and we believe a crossbench senator, as a member of the Joint Committee on Intelligence and Security, could play that role or be part of playing that role. This is a closed shop committee open only to members of the political duopoly in this country, and frankly the Australian people deserve better.

I would like to respond briefly to some comments that were made by the previous speaker, Senator Macdonald. He spoke about the Independent National Security Legislation Monitor and the role that he plays in scrutinising national security legislation. Well, it is a crucial role that the Independent National Security Legislation Monitor plays, but I do want to be clear that the Greens remain unconvinced that in fact the Independent National Security Legislation Monitor is adequately funded, and we certainly believe the government is making more and more of a habit of ignoring the recommendations that come from the Independent National Security Legislation Monitor. In fact, the recommendations do not, as I understand it, currently even receive a response from government. That is not good enough. The government should at least do the Independent National Security Legislation Monitor the courtesy of providing a response to his recommendations. The monitor does a great job in examining a wide suite of legislation. He does report to this parliament, but it is not good enough that the government does not provide a response to his recommendations, which ought to be tabled in both houses of this parliament.

We accept absolutely the crucial nature of the work that the Parliamentary Joint Committee on Intelligence and Security does. We believe absolutely that it is an appropriate body that has been established, and we support absolutely the measures contained in this bill—with the caveat around the membership of the committee that has been proposed by the Labor Party. We particularly support the part of this bill that provides for the Parliamentary Joint Committee on Intelligence and Security to conduct own-motion inquiries. That was spoken against by Senator Macdonald in the speech that he just made, and when this bill was previously debated, in the former parliament, it was spoken strongly against. But we do not accept the arguments that have been put up against this. We believe it is reasonable for this committee to conduct own-motion inquiries within the constraints that the act has established and we believe it would improve the scrutiny of our intelligence agencies for this parliament to be able, through this committee, to conduct own-motion inquiries. Of course, it is this parliament that has actually established our security agencies; they are creatures of this parliament. And this parliament has every right within the constraints that exist within the act to, through this committee, have own-motion inquiries conducted and reported back as appropriate.

As I said at the beginning of my contribution this morning, it is a complex area. It is a complex global environment—one that moves very rapidly and changes very quickly. This committee plays a crucial role in scrutinising the intelligence agencies that have been established by this parliament to make Australia as safe as it can possibly be, and we share that goal of making Australia as safe as it can reasonably be made. But we do believe that there has not been a strategic approach to this. We believe that the erosion of some fundamental civil and human liberties in this country has been done in a politically ad hoc manner rather than as a result of a carefully conceived strategy. We believe that owes much to the zombie lockstep in which both the coalition and Labor proceed in this space and we believe that having a senator who is not a member of either the government or the opposition on this committee would allow for a greater diversity of thought on this committee and a greater diversity of input to the processes of this committee.

In broad terms, we support this legislation because we think it will go some way towards improving the operations of the committee. However, as I said, we feel strongly enough that there should be a senator who is not from government or opposition on this committee and we will be seeking to amend this bill to provide for that, should that amendment be successful.

In conclusion, this is a challenging time for freedoms around the world. It is not only a challenging time because threats are arising; it is a challenging time because freedoms are being eroded in response to the threats that are arising. Both of those matters need to be considered strategically. They ought to be the subject of a white paper—a living, breathing white paper that can be adapted in response to the rapidly evolving global environment.

Also, we need to ensure that this committee is made up of members who have the capacity to bring some thoughts and some positions to this committee that, potentially at least—depending on who the appointed senator from the crossbench would be, should our amendment be successful—bring a more strategic approach that is outside the political lock step, which we so often see in the context of discussions and conversations in this parliament and in the public debate in Australia around responding to the national security threats to Australia that exist today.

Patrick Dodson (WA, Australian Labor Party) Share this | Link to this | Hansard source

The matter of security, as we have heard, is one that we in this nation take very seriously. We obviously try to balance the liberties and freedoms that citizens would like to enjoy in our country. We take a fairly open-hearted approach to most things and most people from different cultures and different persuasions, and we generally try to abide by the laconic notion of a fair go for everyone. When that notion butts up against the heinous nature of indiscriminate assaults and murders of innocent citizens, in the most extreme consequences, by those who would want to destroy democracy and want to destroy the privileges, rights and freedoms that people enjoy, I think we find it very hard to get that balance right sometimes. I am not suggesting we have not got it right in Australia, but I do know we butt up against the tension point between our sense of freedom as a nation of people who tend not to understand, or tend not to have experienced, the atrocities we see in the Middle East and other places pretty much nightly on our televisions. We have experienced it in Bali with our citizens and in other places, and we are horrified when such things happen.

In fact, today there was a report of a couple of Syrian citizens in Germany capturing a wanted felon, a terrorist, and then reporting that person to the authorities. The appreciation of the citizens of Germany for that helps them have a different view of people who are fleeing from violence in other nation states and coming to their own countries. In fact, they have suggested that such individuals should be honoured with a medal for their services to the nation.

Here we are talking about something that is rather modest in its intent. The amending bill began with people like Senator Faulkner in his time here and way back, as Senator Macdonald said, with the recommendations in the report that came from by Mr Flood and others when we were in the beginning of the horrors of many of these atrocities. Our maturity around the necessity for incursions into the freedoms, responsibilities and rights of citizens was probably not weighed as heavily as it is today. I am not suggesting that it was not.

I can recall, as a young person, being detained by the police. It was not just being detained in the watch house; he actually had a whip, which he threatened to use. He had no power to do this, but he had a whip and threatened to use it. On the floor of the cell he showed us an iron circle to which people had been chained, or potentially could be chained. So the notion of deprivation of liberty is a very important matter to me personally, but, I think, for most Australians as well. But we do not like to be overencumbered by regulation and authoritarianism, or by delegations, when we have a sense that our freedoms are being infringed.

On the other hand, we know that there are people who, as Senator Macdonald said, have no regard for any of this, who have no regard for the sanctity and uniqueness and beauty of human life, and who are prepared to do whatever it takes to achieve an ideological outcome—that is, fundamentally to destroy the principles of freedom and democracy in a nation state, particularly in our country, Australia. It is sad that such things happen. As we come to the parliament of Australia each day we notice outside the parliament officers with guns. When I first started coming to the parliament to lobby in the old Parliament House that was a very rare sight. So the price of our democracy is pretty significant. I do not think we ought to be cowed by those who want to threaten it. Therefore, the necessity of a committee like the Parliamentary Joint Committee on Intelligence and Security is a critical matter. It is a critical function of the parliament, interfacing with the senior people who have the day-to-day responsibilities of guaranteeing the freedom and safety of the citizens of this nation.

Really, this bill is trying to get that right. I heard Senator McKim, from the Greens, speak of getting the balance of the membership right. I note that the bill proposes that the majority of the government will not be affected by this amendment. It does allow for 11 other members to be nominated by the houses. That is a matter for political movement, it would seem to me. People are capable of doing things in this place to ensure that the representation is there. But I take the point that is being talked about, that there is pretty much a de facto presence on this very important committee.

The responsibility that goes with that is of course paramount to how we deal with sensitive information that comes from the other amendments that are being proposed to have access to information and advice given by the national officer responsible for these matters. That access is not for the purposes of flaunting the information but so that we as representatives of the parliament can be informed about where and what it is our nation has been apprised of at the highest levels, whether it be at the ministerial level, the level of the security council or wherever it is that these matters go to for decision making—ultimately, the executive of government.

The importance of that is also to deal with the question of our responsibility as elected representatives, to try and get a balance between us as the elected representatives, who are accountable to the public and therefore have a trust placed in us to ensure that their safety is looked after in the best possible manner, and the functionaries. I have no doubt that that is what we seek to do and are doing to the best of our capacities. The bill is really about how we can improve in a minor way some of the functional aspects of this. It is not seeking to overcome and overtake the role and responsibility that the agencies have for our security, but it is trying to, I suppose, ensure that the public is aware that we parliamentarians do not leave these things entirely in the hands of very capable functionaries who account to a particular individual—a minister—and not necessarily to the parliament. That is a complex matter, I understand and fully appreciate, and I am not suggesting that we ought to be overturning that. What I am suggesting is support for the proposal that we are putting forward on our side to have the capacity to be informed by reports on these matters and also to look towards initiating inquiries that are significant in this field, to pursue a matter. I would think that you would only do that, given the practicalities of this, after a long period of discussion—interacting with the relevant agencies and the minister responsible—and that it would not be just a case of a rabbit running down a hole hoping to find something. It would actually have to be something of great significance to do that.

We should recall also that intelligence gathering is not always left to those who are the specialists in the field. Often we require and rely upon citizens to inform us about what is going on in particular places to make sure that the eyes and ears, as it were, of the custodians of democracy and freedom that are in the hands of our citizens are also utilised beyond those who are the specialists and the most efficiently trained. So the role for the public in much of this is also critical.

It is about getting the right balance between trust, freedom, efficiencies and capacity to make decisions. No-one is suggesting, through this bill, a frustration with any of that. We are talking about a capacity to be better informed through the committee on national security so that the parliament itself is not just tangential to what takes place at a higher level but is in fact integral to that in a very important way that underpins democracy. It is conditioned and governed, obviously, by the existing tenants of the legislation, so is not something that is being proposed in a vacuum here; it is being proposed in a context.

This is a very minor amendment to the existing legislation that we hope to win the support of the Senate for. It is not opening up a whole avenue for placing at risk the very important and significant matter of national security. In fact, it is trying to improve on that and lend greater support to those who have that onerous task of looking after us and ensuring our nation is safe and that the agencies are resourced. It is critical that their recommendations are taken up, but if they are not known then it is very difficult for those matters to be pursued—outside of the largesse of the minister or his or her responsibilities.

The question of global security weighs on us on a constant basis. Again, I recall some years ago going to the United States and to New York. People actually put money on the window sills of their houses so that people would not break in. There was a sense of fear that gripped the nation at the time—and it has probably only been enhanced by the terrorism acts that have taken place in America since my period there. The sense of fear is a very corrosive element to the principles of democracy and freedom. That is something we need to guard against most diligently whilst we balance the necessity for efficient and effective intelligence gathering and the capacity to orchestrate the activities necessary to undertake tasks while not being curtailed by unnecessary bureaucracy and management. It is getting both things right that is the challenge.

I think what we have tried to do on our side is suggest some minimal changes. They can be improved upon, I have no doubt, but the intent is to ensure, through the membership proposals, that there is a role for the parliament in a greater manner than there has been in the past. I think the capacity to look at sunset legislation is often important, because there may well be amendments that could be made to improve it, or there could be matters that are no longer relevant that ought to be removed as well.

The significant factor, I think, is community trust in its institutions. Primarily, citizens look to the parliament for that to be exercised on their behalf. That is why they elect us. We are elected to make decisions. I appreciate that sometimes those decisions are hard on people's senses of their own freedoms and their own sense of what and how they ought to enjoy their democracy. But we all have to balance the competing rights of each other and the diversity and differences that we bring to our wonderful democracy.

But if we do not appreciate that and if we do not bring those balances then we are simply allowing ourselves to slip more and more into some form of totalitarian state—and I am not suggesting that these amendments have any intention of doing that. We need to bring to the notice of the government and to the parliament the ways in which democracy and its significant structures can be better made to reflect the trust that citizens place in us and to ensure that agents that are brought into existence, that look after our security, are also held accountable. Senator Macdonald's view about oversighting the oversighters is a point that I do not necessarily disagree with: But that is not what we are talking about.

What we are talking about is that there has to be a balance of all the various accountabilities that are required in a rather complex scenario of national security and intelligence gathering. If we can achieve that and improve upon that without placing at risk the necessities for security, confidentiality and privacy—those sorts of issues which are fundamental to good intelligence gathering and for good execution of activities to protect the nation—then that has to be paramount. But I do not think that the amendments that we are proposing in any way hinder or impact on that particular paramount goal.

I think this is a modest set of recommendations. They seek to get the balance right and to bring in a bigger role for parliamentarians—not to usurp, in any manner, the role, function and authority of the agencies—in order to bring some comfort, I think, to the public that security is not always a matter that has to wear a gun. Security is also about: how do you cultivate friendships, freedom and trust with the others who you may not necessarily agree with? It is a bit hard when you do not know who wants to blow you up. But if you do have good intelligence and you do have good security measures, you can hopefully identify that better and you can accord to those people the kind of matters of justice that are— (Time expired)

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

At the beginning of my remarks on this important bill, I would like to pay tribute to the late Dr Des Ball, Professor at the Australian National University's Strategic and Defence Studies Centre, who passed away yesterday after a lengthy illness. Professor Ball was a towering figure in Australian strategic and defence policy and a pioneer over more than four decades in researching the activities of the Australian intelligence community, most notably exposing decades of dissembling by successive governments about the role of the United States-Australia joint defence facilities. Together with Professor Richard Tanter, Professor Ball was earlier this year still publishing immensely detailed and scholarly papers providing new insight into the role of the joint defence facility at Pine Gap, including details of its intimate involvement in supporting US military operations and the global surveillance network run by the so-called Five Eyes intelligence partners.

Des Ball was a champion for greater transparency and democratic accountability for the Australian intelligence community, so it is appropriate that the Senate today is able to debate an important and timely proposal for enhancing parliamentary scrutiny of Australia's intelligence and security agencies. I am very pleased to support this legislation—and on behalf of my colleagues as well—the Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015, which is itself the legacy of another champion of parliamentary scrutiny and accountability, former Senator John Faulkner. I remember his words on that. This was a man who was a former defence minister and served not just his political party, the Australian Labor Party, but this country with distinction—a towering figure in the Senate. He made it very clear that, with increased power of our intelligence agencies, there must be increased levels of accountability.

This bill brings together a range of proposals designed to improve the operation of the Parliamentary Joint Committee on Intelligence and Security, a joint statutory committee of the parliament that has been functioning in its present form since the passage of the Intelligence Services Act in late 2001. The bill seeks to broadly enhance the oversight of the Australian intelligence community by creating more substantive links between the joint committee and our other intelligence oversight agencies—the Inspector-General of Intelligence and Security and the Independent National Security Legislation Monitor.

The bill's measures to remove current restraints on the membership of the joint committee are particularly welcome. If the process of parliamentary oversight over our intelligence and security agencies is to command public confidence, the joint committee must be more broadly representative of the make-up of the parliament and not just confined to members of the government and the opposition. The previous membership of the member for Denison, Mr Andrew Wilkie, in the period of the Gillard government from 2010 to 2013 has already demonstrated that crossbench members of the parliament can and should make valued contributions to the work of the joint committee.

The record of the joint committee has been productive but limited by the frequent bipartisan consensus between the coalition and Labor. And with it there is an element of secrecy and a lack of transparency in the process, more so than needs to be, even allowing for the sensitivity of the matters that are dealt with. On occasion the joint committee has got things quite wrong, most recently in the case of its report dealing with the secrecy provisions surrounding the conduct of special intelligence operations by the Australian Security Intelligence Organisation—the amendments to section 35P of the ASIO Act. I voted against those provisions. They were something the joint committee said ought to be passed, but the change went to the Independent National Security Legislation Monitor, the Hon. Roger Giles AO QC, a former federal court judge and eminent lawyer and jurist. I made a submission to the inquiry. I do not think there were any other members of parliament who made a submission at that time. Professor Clinton Fernandes and I made a joint submission. Professor Clinton Fernandes is a professor at the University of New South Wales and at the ADFA campus here in Canberra.

This is what Mr Giles said after conducting the inquiry in relation to that in a summary of his report. He essentially stated that section 35P:

… creates uncertainty as to what may be published about the activities of ASIO without fear of prosecution. The so-called chilling effect of that uncertainty is exacerbated because it also applies in relation to disclosures made to editors for the purpose of discussion before publication.

He went on to say:

Journalists are prohibited from publishing anywhere at any time any information relating to an SIO—

a special intelligence operation—

regardless of whether it has any, or any continuing, operational significance and even if it discloses reprehensible conduct by ASIO insiders.

These were powerful words by the Independent National Security Legislation Monitor.

The issues identified by INSLM were that:

The basic problem with section 35P is that it does not distinguish between journalists and others (outsiders) and ASIO insiders. The application in this manner of broad secrecy prohibitions to outsiders is not satisfactorily justified, including by precedents in Australia or elsewhere.

Mr Giles also made this point:

Section 35P is arguably invalid on the basis that it infringes the constitutional protection of freedom of political communication. Section 35P is also arguably inconsistent with article 19 of the International Covenant on Civil and Political Rights and so not in accordance with Australia's international obligations.

That piece of legislation slipped by the joint committee for which this bill seeks to have a more flexible membership arrangement. So that safeguard did not work on that occasion. The law was passed. It was put in force. It then was subject to a review by INSLM. Fortunately, there have been no prosecutions under section 35P, as I understand it. Also, fortunately, that is something that will be rectified by the government.

The subsequent report of the Independent National Security Legislation Monitor that I referred to made the weaknesses of the joint committee's review very clear, and the fact that there is further amending legislation before the Senate underlines the need for a more rigorous approach and a wider range of opinion represented on the joint committee.

The need for enhanced parliamentary scrutiny and oversight is clear. In the 15 years since the tragedies, the horrors, of the terrorist attacks of September 11, 2001, a constant legislative drumbeat has accompanied what is commonly known as the war on terrorism. Successive governments and the parliament have repeatedly added to and elaborated our national security and counterterrorism laws. I note it was just yesterday that we commemorated the anniversary of the Bali bombings, where 202 innocent people, including 88 Australians, were killed by terrorists. The parliament has passed more than 70 different bills dealing with terrorism and, more broadly, national security issues. The exact number depends a bit on questions of definition, but the overall quantum of legislation is clear. We now have a very extensive and complex set of counterterrorism laws. As I have previously pointed out to the Senate, we have more counterterrorism laws than any other country. These laws are of great significance to national security and community safety, as well as to the rights, liberties and privacy of all Australians.

Back in October 2014, when the Senate was considering one of the long line of counterterrorism bills, I expressed the view that enough was enough and that we did not need more laws in this field and certainly should not enact greater powers for our intelligence and security agencies without a major expansion and strengthening of independent oversight of those agencies. That remains my broad view, subject of course to the overarching principle of community safety.

The record of our intelligence and security agencies in countering terrorism over the past 15 years is one of considerable success, thankfully. They have exercised the considerable investigative powers available to them and, in the process, thwarted many attacks on our soil and harm to Australians. Although the terrorist threat in Australia has not been on the same scale as in some other countries, it is significant, and serious threats and plots have been detected and thwarted. Our intelligence and security agencies have demonstrated considerable professionalism, but like all government agencies they are far from infallible.

There also have been some very significant missteps. The case of Dr Muhamed Haneef involved the provision of incorrect and misleading information from British police counterterrorism investigators to the Australian Federal Police, which in turn failed to properly assess that information. A review by the Inspector-General of Intelligence and Security of the case of Mamdouh Habib found that the Australian Security Intelligence Organisation repeatedly failed to properly document key decisions, including dealings with foreign security and intelligence agencies. Senior officers subsequently claimed to have little or no recollection of key events. There have been instances where agencies have failed to provide appropriate information to the IGIS, and at least one case where an agency, the Australian Secret Intelligence Service, sought to intentionally mislead the IGIS.

I would not wish to not pre-empt the findings of the inquiry by the New South Wales Coroner into matters relating to Man Haron Monis and the Martin Place siege of December 2014 and the tragic deaths of two innocent people, other than to say some of the evidence presented to the inquiry clearly raises serious concerns about the investigative and analytical capabilities of ASIO and the AFP as well as the operational response of the New South Wales police. I still cannot fathom why that man, that monster, was on the streets when he was, given his history.

Our intelligence and security agencies have very extensive powers and resources but are not infallible, and for that reason there needs to be very rigorous oversight and scrutiny. That is why this bill is both important and timely. It is a significant step towards a more rigorous scrutiny regime, more along the lines of the United States and German models of parliamentary intelligence committees, which have much more wide-ranging powers of review. In earlier debate on this legislation, one government senator suggested that greater parliamentary scrutiny, including the provision of highly classified IGIS reports to the joint committee 'may limit the voluntary provision of information by Australian intelligence community agencies to the inspector-general'. If this were really the case—and I doubt it would be so—then the need for rigorous parliamentary scrutiny would only be greater. In any case, if the United States intelligence community can operate effectively—and clearly it does—in the environment of oversight by the US Senate Select Committee on Intelligence and the House of Representatives Permanent Select Committee on Intelligence, then so too can the Australian intelligence community.

Significantly, I would highlight the scope of the US Senate committee's responsibilities, which include access to classified intelligence assessments and access to intelligence sources and methods, programs and budgets. By law, the US President is required to ensure the committee is kept 'fully and currently informed' of intelligence activities, including covert actions and any significant intelligence failure. Australia's intelligence agencies have long been deeply entwined with their US counterparts, and that is appropriate. It is time that we looked again at the greater extent of parliamentary scrutiny and oversight that characterises the intelligence system of our ally. This bill is a modest but important step in that direction. I am very pleased to lend my support, and that of my colleagues, to this bill, and I hope that this bill is passed in this place.

Murray Watt (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015. I note that this is not the first time that this bill has been debated in this place. It was restored to the Notice Paper after being introduced and debated in 2015. I want to acknowledge the contribution that other senators made to the debate of this bill in the last parliament. I also want to acknowledge the work of former senator John Faulkner in initiating the drafting of and consultation on this bill. Mr Faulkner's expertise and pursuit of the noble aims of this bill are well known. It is a pleasure and a privilege to speak on this bill, and in doing so I hope to help bring to fruition the task that former senator Faulkner set himself in bringing about these important reforms to the monitoring of the Australian intelligence community.

This bill seeks to give this parliament a stronger mechanism of oversight over Australia's intelligence and security agencies to ensure that, while their powers are necessarily increased to keep up with the demands of current security threats, their accountability to this parliament is not diminished. As former Senator Faulkner explained:

Parliament must strike a balance between our security imperatives and our liberties and freedoms. (The) Key to achieving this balance is strong and effective accountability. Enhanced powers demand enhanced safeguards. Public trust and confidence in our security and intelligence agencies can only be assured through strong and rigorous oversight and scrutiny.

Since the terror attacks that occurred on American soil on 11 September, 2001 our modern world has unfortunately lived in an age where terror attacks not only are real and possible but seem to becoming more frequent. I well remember 11 September 2001. As a young lawyer, I was working in Townsville in North Queensland at the time, working on an unfair dismissal case. We managed in the afternoon of 11 September to secure our client a very good result, and so I went to the pub and celebrated with some friends of mine who lived in Townsville at the time. The night got quite late, and I remember the TV screens at Molly Malones, where we were celebrating, had all of sudden flicked across to what seemed to be pretty crazy events of planes crashing into buildings in New York. It brought a very sober end to the night. I remember on the way home from that, talking to one of my friends and saying, 'That was pretty serious, wasn't it?' And we agreed it was. Of course, the world has gone on to see how serious these kinds of events have become ever since.

Since that time, countries like Australia, which value democracy and human rights, have watched in horror as terrorist incidents have unfolded around the world. These incidents have caused us to fear attacks on us, whether it be when we are travelling overseas or even potentially at home. One of the most unfortunate aspects of this, apart from the terrible loss of human life that occurs in these attacks, is that terrorist attacks have been leapt upon by some politicians both in Australia and overseas as reasons to become suspicious of particular communities and to attempt to divide us. That is extremely sad to see.

These terrorist threats are not far off foreign problems that stop beyond Australia's borders. Just this week, as other speakers have noted, we paused to remember the anniversary of the Bali bombings, where terrorists attacked crowded nightspots in Kuta Beach and 88 Australians lost their lives. Unfortunately, since 2001, as I say, these attacks have become more frequent, yet they are no less shocking or ruthless in their execution. Just this year we witnessed horrific attacks take place in Nice, in France, in Brussels, in Istanbul and among many other places around the world. Australians, when overseas in these sorts of places, do face real threats and, unfortunately, there have been similar incidents on Australian soil, albeit nowhere near as destructive as what we have seen overseas. So these threats are real, and it is the responsibility of this parliament to protect our country and to protect our people. Parliament is therefore tasked with enacting strong laws and ensuring that our intelligence and security organisations are given the necessary powers and resources that they need to ensure the security and safety of our citizens.

There really is no greater responsibility for our parliament to uphold and there really is nothing more precious to protect than our democracy and our human rights. But protecting our country and protecting our citizens to the utmost degree does create an uneasy balance between keeping our country secure and valuing the human rights and freedoms that our democracy guarantees. There is nothing more counter-productive that we could do in attempting to prevent terrorists who are trying to send a message about our way of life and there is nothing more destructive and nothing more counter-productive that we could do than to overreach in our response to those incidents in the powers that we give our intelligence agencies to monitor our people and any other restrictions that we place on Australian citizens in order to secure our safety. If all we do is overreach and introduce draconian measures that restrict our population's freedoms and human rights then, in a sense, we have achieved what the terrorists themselves are seeking to achieve. So we do need to be extremely careful whenever we are considering increasing security precautions. This is because, as well as protecting our lives, this parliament's task is to provide protection to citizens which allow them to exercise their civil rights and liberties. In doing so, this parliament must act as a check and balance against the state itself. Parliament must also ensure that the public have full trust and confidence in our intelligence and security organisations and, as a result, that they have full trust and confidence in each Australian's ability to participate fully in an open and free democracy. So we must find a way to strike that balance—the right balance between creating laws that provide protection to Australians from terrorist threats but do not stifle core freedoms to the point where people have no protection from the state or its intelligence agencies.

Today there are six intelligence agencies in the Australian intelligence community. These agencies are the keepers of strong powers, which include intelligence gathering and analysis. Four of these agencies undertake collection: ASIO, the Australian Security Intelligence Organisation, which is responsible to the Attorney-General; ASIS, the Australian Secret Intelligence Service, which collects foreign intelligence from human sources and is responsible to the Minister for Foreign Affairs; the ASD, the Australian Signals Directorate, formerly the DSD, which collects foreign signals intelligence, largely outside Australia. The ASD was given a legislative footing in 2001 and is responsible to the Minister for Defence. The AGO, the Australian Geospatial Organisation, collects geospatial intelligence from satellite imagery and other sources and is responsible to the Minister for Defence.

The other two agencies in the Australian intelligence community are analytical agencies. Firstly, the DIO, or the Defence Intelligence Organisation, which analyses the intelligence obtained by the Defence collection agencies and its overseas partners. And, secondly, the ONA, or the Office of National Assessments, which is established under its own act of parliament and is statutorily independent.

Australia is very fortunate to have agencies like these that work incredibly hard to meet their responsibilities professionally, thoroughly and with the utmost respect for our laws and security. I acknowledge the work and commitment of those agencies and note that this bill does not seek to diminish the powers or ability of those agencies to perform the important work they do.

In recent times the parliament has enacted laws that increase powers granted to these agencies, and this bill does not seek to curtail those powers. However, as former Senator Faulkner said: 'Enhanced powers demand enhanced safeguards.' Currently, a range of mechanisms are available to scrutinise the Australian intelligence community. At the heart of these arrangements are the three pillars of oversight: ministerial responsibility, the Parliamentary Joint Committee on Intelligence and Security and the Inspector-General of Intelligence and Security.

The Parliamentary Joint Committee on Intelligence and Security is enshrined in the Intelligence Services Act 2001. That committee has a very important role. Its functions include: (a) to review the administration and expenditure of ASIO, ASIS, AGO, DIO, ASD and ONA, including the annual financial statements of those agencies; (b) to review any matter in relation to those agencies referred to the committee by the responsible minister or a resolution of either house of the parliament—and also their functions; and (c) to report the committee's comments and recommendations to each house of the parliament and to the responsible minister.

There are a number of restrictions on the committee's ability to review the actual intelligence gathered and/or assessments made by the agencies. As my colleagues in this chamber have mentioned today, this committee has been incredibly successful and is a very good example of bipartisanship, because we know that the protection of national security is a job for all parliamentarians.

What does this bill seek to do? At a time when the community is looking to the government and to the parliament to ensure that intelligence and security agencies have the powers they need, it is very important that the membership and functions of that parliamentary joint committee enable it to provide effective oversight.

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 these agencies. The bill seeks to amend 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.

I wish to briefly go over the measures this bill seeks to introduce. The bill removes current constraints on the membership of the parliamentary joint committee to provide that, except for a minimum representation of one government member and a senator and one opposition member and senator, the balance of the 11-member parliamentary joint committee can be drawn from either chamber. Currently, the Intelligence Services Act 2001 mandates a composition of six members and five senators on a parliamentary joint committee. Removing the current constraints will provide parliament with greater flexibility in determining its membership of the joint committee, but the bill does not amend the requirement for the government to hold a majority.

This provision is important because it means that senators can be equally represented on this committee. There is no reason why the House of Representatives needs to be disproportionally represented on this committee. As I have said previously, national security is a job for all parliamentarians, not just members of the House of Representatives. Again, to clarify, 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.

There are a number of other amendments that this bill provides, and, in the interest of time, I will only very briefly refer to them. The bill also provides for the parliamentary joint committee to conduct own-motion inquiries after consultation with the responsible minister. It may be that matters come to the attention of the joint committee that equally require examination that the minister may not have necessarily considered such a priority, so I think it is a good move to give the committee the power to conduct inquiries on its own motion.

The bill authorises the Independent National Security Legislation Monitor to provide the joint committee with a copy of any report on a matter referred to it by the committee. That is an important step to make sure that the joint committee stays informed of all developments on these matters. The bill requires the Inspector-General of Intelligence and Security to give the joint committee a copy of any report provided to the Prime Minister or a minister within three months.

The bill gives the joint 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 that are able to be consulted by the parliamentary joint committee. Again those two roles, the Independent National Security Legislation Monitor and the National Security Adviser, are obviously key to our intelligence community's response to developments, and it is important that the joint committee has the ability to consult those particular officers and inform its deliberations. These amendments are quite modest and process based, but they are very important.

In wrapping up, I just want to go back to some of the points that I made earlier in my speech. There is not one person in this parliament who disputes that one of our most important roles is to protect the safety of our people, but equally—and perhaps this reflects my background as a lawyer—I would place a very high premium on protecting the human rights and civil liberties of Australian citizens. Fortunately, in recent years we have not seen many examples of the abuse of these kinds of powers by our intelligence agencies, but it is important to make sure that our parliament does retain a bit of a check and balance on the actions of agencies that have such far-reaching and intrusive powers into our community. Perhaps it is a function of growing up as a child in Queensland in the Bjelke-Petersen era, when the Queensland government of the day had the Special Branch of the police force, which was essentially operating as a secret police service, spying on Queensland citizens, preparing files on them and conducting extremely intrusive investigations into Queensland citizens for no reason other than their political beliefs.

So it is vital that, if we are going to enhance the powers of our intelligence agencies in order to protect our safety, in parallel we have a responsibility to the Australian people to also enhance the powers of this parliament to oversight the actions of those intelligence communities. Australians—not just me but Australians generally, I think—place a very high premium on their freedoms and their human rights. They expect them to be protected, and it is incumbent upon us as members of parliament to make sure that those protections remain in place and are strengthened as the legislation which provides powers to our intelligence communities also expands. I think it is through that combination—the combination of providing our intelligence agencies with the powers that they need and also providing Australians with protections from the abuse of those kinds of powers—that we strike the right balance to protect Australians well into the future and make sure that all Australians remain safe from these terrible terrorist attacks that are becoming all too common right across the world.

Jane Hume (Victoria, Liberal Party) Share this | Link to this | Hansard source

I rise today to speak on the Parliamentary Joint Committee on Intelligence and Security Amendment Bill, the PJCIS Amendment Bill 2015. This is a bill that proposes significant changes to the Intelligence Services Act 2001, the ISA. Firstly, it proposes to change the composition of the PJCIS. Secondly, this bill proposes to expand the powers and functions of the PJCIS by allowing the PJCIS to conduct a review into operational activities of the Australian intelligence agencies and the Australian Federal Police. It proposes to expand the powers and functions of the PJCIS by authorising the Independent National Security Legislation Monitor, the INSLM, to provide the PJCIS with a copy of any report on a matter referred to it by the PJCIS and requiring the Inspector-General of Intelligence and Security, the IGIS, to give the PJCIS a copy of any report provided to the Prime Minister or the minister within three months. The bill proposes allowing the PJCIS to conduct its own-motion inquiries, and it also proposes allowing the PJCIS to conduct pre-sunset review of legislation.

The government's position on this bill is not one of support. The well-regarded work that the PJCIS has conducted over many years is generally viewed as one of the most successful examples of effective bipartisanship throughout successive Australian parliaments. The PJCIS also has an impressive track record of conducting both insightful and thorough investigations. In light of these facts, the government is of the opinion that there is no need to amend the PJCIS's structure or powers.

Furthermore, the government has serious concerns about the content of this bill. Specifically, expanding the powers of the PJCIS will compromise the existing and appropriate divide between parliamentary and independent oversight by enabling own-motion inquiries and receipt of reports on operational activity from the IGIS. The government has serious concerns about the bill seeking to provide the PJCIS with powers, including operational oversight and pre-sunset legislative review, which would duplicate and overlap with those of the IGIS and INSLM. The government has serious concerns that the bill does not provide adequate protection of operational activities, including methods and sources, to ensure any reviews that the PJCIS conducts, or any reports the INSLM or IGIS are required to provide to the PJCIS, do not prejudice the operational activities of the agencies and international relations.

The amendments this bill seeks to make are unnecessary, and they compromise the important distinction between the appropriate parliamentary oversight of the Australian Intelligence Community's administration, as outlined in the Intelligence Services Act 2001, and the operational oversight that is more appropriately performed by independent statutory roles such as the Inspector-General of Intelligence and Security

For those of my colleagues who are not aware of the beginnings of the PJCIS, the committee has existed in its current form since the Inquiry into Australian Intelligence Agencies by Mr Philip Flood AO, known as the Flood inquiry, in 2004. Among his findings, Flood recommended that the membership of the existing Parliamentary Joint Committee on ASIO, ASIS and DSD—the PJCAAD—should be extended to include the Defence Imagery and Geospatial Organisation, the DIGO, which has since been renamed the Australian Geospatial-Intelligence Organisation; the Defence Intelligence Organisation, the DIO; and the Office of National Assessments, the ONA. Following the passage of the Intelligence Services Legislation Amendment Bill in 2005, the committee was re-established as the Parliamentary Joint Committee on Intelligence and Security—the PJCIS.

The functions of the Parliamentary Joint Committee on Intelligence and Security are outlined in the Intelligence Services Act 2001—the IS Act. Section 29 of the Intelligence Services Act provides that the functions of the committee are to:

Under section 102.1A of the Criminal Code, the Committee may also review any regulations made for the listing (or re-listing) of a "terrorist organisation" and report the Committee's comments and recommendations to each House of the Parliament before the end of the applicable disallowance period—a period of 15 sitting days after the regulation was laid before that House.

Further, the Committee may review and report on the declaration of any terrorist organisation for the purposes of section 35AA of the Australian Citizenship Act 2007.

The Committee is otherwise not authorised to initiate its own references, but may resolve to request the responsible Minister refer a particular matter to it for review.

Section 31 of the IS Act requires the Committee to prepare and table an Annual Report as soon as practicable after each year ending 30 June.

The Parliamentary Joint Committee on Intelligence and Security has its limitations. The IS Act currently limits the inquiry powers of the PJCIS by providing that the functions of the committee do not include:

These limitations are very important. They prevent inappropriate parliamentary influence being exercised over the operations, over the methodology and over the priority setting of the intelligence agencies. Responsibility for reviewing the operational activities of agencies is more appropriately given to the independent statutory role of the Inspector-General of Intelligence and Security.

The IGIS is responsible for overseeing and review of the Australian intelligence community in relation to its compliance with the law, compliance with ministerial directions and guidelines, proprietary and a respect for human rights. When exercising her inquiry function, the IGIS has significant powers, comparable to those of a royal commission—including obtaining information and requiring persons to answer questions and produce documents. The IGIS reports annually to parliament.

The Parliamentary Joint Committee on Intelligence and Security proposes two main changes to the Intelligence Services Act 2001 regime. Firstly, the bill proposes changes to the composition of the PJCIS by removing the constraints on the membership of the PJCIS to provide that the balance of members can come from either chamber. Current requirements are that six come from the House of Representatives and five from the Senate. The bill also proposes introducing 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 PJCIS are the most appropriate members available.

Secondly, the bill proposes to expand the powers and functions of the Parliamentary Joint Committee on Intelligence and Security by allowing the PJCIS to conduct a review into operational activities of ASIO, ASIS, AGO, DIO, ASD, ONA and the Australian Federal Police. It would also authorise the Independent National Security Legislation Monitor, the INSLM, to provide the PJCIS with a copy of any report on a matter referred to it by the PJCIS and require the Inspector-General of Intelligence and Security to give the PJCIS a copy of any report provided to the Prime Minister or the minister within three months. The bill would also allow the committee to conduct its own motion inquiries and allow the PJCIS to conduct pre-sunset review of legislation.

The amendments to this bill would blur the existing and appropriate divide between parliamentary and independent oversight and compromise the independence of existing overseeing bodies by proposing that the PJCIS receive direct reports from the IGIS on operational activities and that it could commence its own inquiries. The longstanding position in Australia is that operational overseeing of intelligence, security and law enforcement agencies is conducted by the overseeing independent statutory agencies, rather than by the parliament.

Currently the IGIS, which serves a crucial role in overseeing and ensuring accountability for the operational activities undertaken by our security agencies, only reports to ministers. It is important to note that the appropriateness of the overseeing of intelligence agencies by parliament was examined in the 2004 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 proposals duplicate and overlap with the roles of the IGIS and INSLM.

The bill would enable the PJCIS to conduct inquiries into legislation prior to a sunset date. This is an unnecessary duplication of the role of the INSLM, who has been granted powers that are tailored specifically to reviewing the operation, effectiveness and implications of Australia's national security legislation.

The bill would enable the committee to conduct its own review into the activities of intelligence agencies, provided the PJCIS has first consulted the responsible minister. This is an unnecessary duplication of the role of the IGIS. In 2014-15 the IGIS received an $840,000 increase in ongoing funding, allowing for the recruitment of additional staff to ensure effective oversight.

The current roles of the PJCIS, IGIS and INSLM ensure there is effective overseeing of the functioning of all aspects of Australia's security and intelligence agencies whilst minimising duplication and overlap. The current division also respects the appropriate divide between overseeing by parliament and independent agencies. The committee examines the administration and expenditure of all Australian intelligence community agencies, and the committee has only a very limited ability to inquire into operational activities.

The IGIS is responsible for oversight and review of the Australian intelligence community in relation to compliance with the law, compliance with ministerial directions and guidelines, propriety and respect for human rights. When exercising her inquiry function the IGIS has significant powers, comparable to those of a royal commission. The INSLM's role is to review the operation, effectiveness and implications of Australia's counterterrorism and national security legislation. This includes considering whether the laws contain appropriate safeguards for protecting the rights of individuals, that they remain proportionate to any threat of terrorism or threat to national security and remain necessary.

Should the committee be empowered to conduct its own reviews into the operational activities of the intelligence and security agencies, the bill does not provide adequate protection for operational activities, including methods and sources, to ensure reviews that the committee conducts, or any reports the INSLM or IGIS are required to provide to the committee, do not prejudice the operational activities of the agencies and international relations.

There is no demonstrated need for change. The PJCIS works well and has repeatedly demonstrated its ability to conduct insightful and thorough investigations. There is no demonstrated need to amend the PJCIS structure or powers. The government has referred each tranche of national-security-related legislation to the bipartisan PJCIS for review following its introduction into parliament, and has accepted every recommendation made by the committee. This consultative and collaborative approach has strengthened the transparency and accountability of our law enforcement and national security agencies.

This bill would only impose, at best, unnecessary changes. But at worst it would compromise the existing and appropriate divide between parliamentary and independent oversight. The risks that this bill poses have led to the government not supporting this bill and, similarly, I urge honourable senators not to support this bill in the chamber today.

Louise Pratt (WA, Australian Labor Party, Shadow Parliamentary Secretary for the Environment, Climate Change and Water) Share this | Link to this | Hansard source

I rise today to speak on the Parliamentary Joint Committee on Intelligence and Security Amendment Bill. This gives me cause to reflect on a few issues that were very present in my mind when I first entered this place back in 2008. In moving from the state legislature to the federal Senate, I was very self-aware about the fact that as a member of the government, a government backbencher, I would become part of and complicit with some significant decisions on things like sending troops to war, the surveillance of citizens, our civil liberties and the arbitrary detention of people. These were issues that weighed very heavily on my mind then and they are issues I take very seriously today. So when my colleagues put it to me that there is something not quite right and not yet quite good enough about how our parliamentary oversight of these matters is conducted and managed, I take that very seriously.

I know that these amendments are just adjustments in the way we currently operate; but they are important adjustments and they were put forward by no less than former Senator John Faulkner, who himself has reflected very carefully on these issues. What is proposed is the removal of the 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 members of the committee can be drawn from either chamber. The current rules on who is eligible to be a member are fairly arbitrary in terms of saying we have this many from this chamber and that many from that chamber. That does not give the Labor Party, which takes this matter very seriously—or, for that matter, other parties—the capacity to appoint the people who are best placed to scrutinise these issues.

When you have six members and five senators, that is a very arbitrary thing to do. So it is important that this parliament has more flexibility in determining the membership of this joint committee. It will allow for the joint committee to be made up of members who are more expert in this field, without the constraint of whether they are a member or a senator. For example, I remember discussing with my new colleague Anne Aly MP, the member for Cowan, the fact that, while she has considerable expertise in this area, it is very difficult for her to get a position on the committee—because, by the time you put the shadow defence minister on the committee, or the Leader of the Opposition or others who are also a priority, there is no room left for her to be on the committee. So perhaps someone in the Labor Party might like to make a decision that a Labor senator might be able to give up their place for someone like Anne Aly. These constraints also mean that our shadow Attorney-General, the Honourable Mark Dreyfus, has been unable to serve on the committee because of the limited number of positions available to opposition members of the House of Representatives. So having more flexible membership provisions, without affecting the political balance of the committee, would enable the committee to benefit from this experience and expertise.

As previous senators have noted, this bill does not amend the requirement for the government to hold a majority on the committee. As a senator who has been a member of a number of committees and a chair of a committee, I think I am in a good position to reflect on the operation of committees. We are constantly faced with leading to deliberate on and renew our sense of how we balance our decision-making and deal with important national issues. We need to ensure that we connect in this place good decision-making to proper processes that scrutinise all avenues and outcomes of legislation.

The bill provides the Parliamentary Joint Committee on Intelligence and Security capacity to conduct its own motions and inquiries after consultation with the responsible minister. I certainly think this is an important provision. When there is public debate about issues such as arbitrary intention or the quality of the intelligence that the parliament and the committee are receiving, there may not always be alignment between the views of the committee and the views of the minister. That means if a committee wants to interrogate those issues further they really need to be able to say to the minister: 'There is an important national security issue at stake here. It is time for us to be able to look more deeply into these issues.' This is an important extension but an essential one to enhance the oversight role of this committee.

This would bring the parliamentary joint committee in line with equivalent parliamentary committees in the US and the UK, which already have this power. But here in the Australian parliament our legislatures have, comparatively speaking, handed more power to government and more power to the agencies, while our parliamentary committees have been relatively more constrained in their capacity for scrutiny. In 2013 the UK's Intelligence and Security Committee of Parliament was reformed by the passage of the Justice and Security Act 2013. So we now need to be able to keep up with these international movements.

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

The time for the debate has expired, so we will now move on to other items on the agenda. Are there any notices of motion to be given for another day? Senator Kakoschke-Moore.