Claire Chandler (Tasmania, Liberal Party, Shadow Assistant Minister for Foreign Affairs) Share this | Link to this | Hansard source

I rise on behalf of the coalition this evening to make a contribution on the Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022. This bill amends the Inspector General of Intelligence and Security Act 1986 and implements outstanding recommendations from the Comprehensive Review of the Legal Framework of the National Intelligence Community, known as the Richardson review, undertaken by Mr Dennis Richardson. We in the opposition acknowledge the work of Mr Richardson and his review. The Richardson review was initiated by the coalition when we were in government. It provided important guidance about the way in which the oversight framework of our intelligence community could be strengthened.

At the heart of liberal democracies is the concept of accountability. Built into our public life are mechanisms that allow for that accountability through the media, through civil society and, of course, through the parliament. Questions can be asked of those who hold positions of authority and who exercise responsibilities on the behalf of others. The capacity for the public to inquire into and scrutinise the activities of those who hold power is part of what makes a democratic institution so strong. But, by necessity, when it comes to our intelligence community, those mechanisms must be slightly different.

The ability to operate under some element of secrecy is part of what enables our intelligence agencies to do their very important work, and that must not be undermined. To misunderstand or undervalue secrecy for those agencies is to put lives at risk and compromise the capacity of agencies to continue keeping Australians safe into the future. When secrets or information that should be classified are divulged or shared, the entire architecture of our intelligence community is undermined and weakened.

In those circumstances, the Inspector-General of Intelligence and Security and other bodies that provide oversight of our intelligence agencies are extraordinarily important. These oversight bodies hold our agencies to account. They enable the public to have confidence in our agencies. Oversight must be robust, credible, effective and thorough. This is not to undermine the work of intelligence agencies but to give them the credibility they need to maintain the trust of the broader public.

The Richardson review gave Australians many reasons to be encouraged about the state of Australia's intelligence community and the legal frameworks under which it operates. While the review provided a number of recommendations to strengthen the legal architecture existing around our intelligence agencies, it also reaffirmed that the fundamental principles that underpin Australia's intelligence legislation remain fit for purpose.

It is worth spending a little time this evening talking about the role of the IGIS, the Inspector-General of Intelligence and Security, as envisaged under the changes of this bill. Among the changes recommended by the Richardson review was an adjustment to the remit of the inspector-general to reflect the changed architecture of Australia's intelligence community. In this respect, the bill follows the course charted by the coalition's bill in the last parliament, the Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020. The bill will enact some of the changes included in the earlier coalition government's bill, which also sought to implement recommendations of the Richardson review.

Relevantly for both the Defence Intelligence Organisation and the Office of National Intelligence, ONI, the bill will bring oversight arrangements for those two agencies in line with the treatment of other intelligence agencies when it comes to the initiation of an investigation. The Inspector-General of Intelligence and Security will be able to inquire into the Defence Intelligence Organisation and ONI in response to a complaint, not just on its own motion or in response to the direction of the minister. This is consistent with the treatment of other agencies within the remit of the inspector-general.

The bill also aims to reduce duplication between the inspector-general and other oversight bodies, such as the Inspector-General of the Australian Defence Force and the Commonwealth Ombudsman. It contains information-sharing provisions that are intended to avoid the double handling of complaints and inquiries. The bill also gives the Inspector-General of Intelligence and Security a clearer capacity to receive information from a broad range of sources while ensuring that that information is protected to the largest extent possible. This strengthens the capacity for the inspector-general to carry out its work.

The bill seeks to ensure that, when an inspector-general of intelligence and security is appointed, they have some appropriate distance from the agencies that they will be overseeing. This is the implementation of recommendation 172 of the Richardson review. It means that a person cannot be appointed to the role of Inspector-General of Intelligence and Security if their immediate prior role was as a head or deputy head of an agency within the inspector-general's remit.

The bill also sets out other changes, including vesting the inspector-general with the jurisdiction to investigate employment related grievances at the ONI. This is because staff at the ONI may be employed under the Office of National Intelligence Act and not the Public Service Act, so they may have limited statutory recourse to raise employment related grievances. This bill aligns the handling of employment-related grievances for staff employed under the ONI act with arrangements for ASIO, ASIS and ASD employees. The bill also contains a number of measures that update the Inspector-General of Intelligence and Security Act and allow the inspector-general to adopt more modern operating procedures. For example, it allows the inspector-general to engage consultants and contract service providers rather than employing solely staff.

The Parliamentary Joint Committee on Intelligence and Security was referred this bill by the Attorney-General, and on behalf of the opposition I thank the Attorney-General for making that reference and the Parliamentary Joint Committee on Intelligence and Security for their very hard work in reviewing this bill. Any time that legislation affecting our national security architecture is introduced, it should be subject to very careful scrutiny from a parliamentary committee like the Parliamentary Joint Committee on Intelligence and Security. Parliamentary committees, as we all know in this place, have the unique advantage of being able to receive submissions and examine witnesses so that they can determine how proposed changes within legislation will work in practice. In the examination of this bill the PJCIS have made some important recommendations which are worth noting. In particular, the PJCIS noted that numerous inquiries have recommended an expanded oversight for the Inspector-General of Intelligence and Security, and for the PJCIS to cover the entirety of our national intelligence community. I understand the Attorney-General has given his assurance that the government is giving this matter due consideration, and we look forward to seeing the government progress this matter. The PJCIS also recommended the need for greater information-sharing between the inspector-general and the Parliamentary Joint Committee on Intelligence and Security, and we wait to see the government's response to those matters also.

As I said at the start of my remarks, many of the measures contained within this bill are measures that the coalition introduced back in 2020 in the Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill, and we continue to support those measures in their current incarnation as they appear in this bill. To that end, the coalition will be supporting this bill.

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

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

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

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

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

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

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

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

That's intended to clarify:

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

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

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

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

Recommendation 1, 3.12, was:

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

And recommendation 2 reads:

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

This bill—

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

Recommendation 3 is:

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

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

Recommendation 4 is:

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

Again, this bill—

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

And recommendation 5 is:

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

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

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

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

Debate interrupted.