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

My question to the minister is in relation to a number of recommendations that came from the PJCIS. The first is in relation to recommendation 1. The committee recommended that the Australian government consider amendments to this bill to provide for greater information sharing between the IGIS and the PJCIS and then recommended that the government report to the PJCIS on outcomes of that consideration. Does the government support that recommendation, and is there an explanation for why it's not found in the bill?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The government tabled its response to the Parliamentary Joint Committee on Intelligence and Security on 27 July 2023. The committee recommended that the government consider amendments to provide greater information sharing between the Inspector-General of Intelligence and Security and the Parliamentary Joint Committee on Intelligence and Security. Since the committee presented its report, the Attorney-General introduced this bill. The bill proposes amendments that will establish a closer relationship between the Inspector-General of Intelligence and Security and the Parliamentary Joint Committee on Intelligence and Security, and it was referred. That is the position of the government. We did not support those changes.

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

Why is there resistance to greater information sharing between the IGIS and the parliamentary oversight committee?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

We believe that the legislation that is before the committee addresses these issues in an appropriate way.

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

Recommendation 2 of the PJCIS report was that item 86 of schedule 1 of this bill be amended to align the provisions relating to abrogation of legal professional privilege with equivalent provisions in legislation governing other integrity agencies, which would provide for fuller protection to be given to legal professional privilege than is currently available. Why is that not incorporated in this bill?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Again, the government tabled its response to the report by the PJCIS on 27 July. The government acknowledges the importance of legal professional privilege as it serves the public interest in the administration of justice. The proper administration of justice requires that clients are able to communicate freely and frankly with their lawyer without fear of disclosing any information relevant to the legal advice they are seeking. The IGIS Act currently provides for the limited abrogation of legal professional privilege that is held by the Commonwealth. The IGIS Act does not operate to abrogate the privilege held by private individuals or entities who make seek legal advice about their rights or liabilities in the dealings with the Commonwealth agency. The act currently provides that an official is not excused from giving information, providing a document or answering a question when required because doing so would disclose legal advice to a minister or Commonwealth agency. In reaching its own view on the legality of agencies' activities the IGIS can be assisted by understanding how the agency self-considered the activity was lawful; however, existing section 18(6)(b) of the IGIS Act applies only to the disclosure of legal advice itself and not the communications that are made for the dominant purpose of giving legal advice.

The amendments will ensure that the IGIS Act applies to both advice and the litigation limbs of legal professional privilege. These amendments are consistent with the equivalent provisions in the legislation governing other integrity agencies including the Ombudsman Act. These amendments were also included in the Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020 introduced by the former Attorney-General, Christian Porter.

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

Is the government aware of the concerns raised by the Law Council about the limited protection for legal professional privilege, even with this amended bill, and their call for further amendments to item 86 of schedule 1 to include after the word 'agency' the words 'or would disclose a communication between an officer of a Commonwealth agency and other person or body being in communication protected by disclosure by legal professional privilege'? Perhaps I will ask the second question that flows from the Law Council's submission. They were seeking some greater protections for derivative use of material that was obtained not withstanding a claim of legal professional privilege. What is the government's position on the concerns raised by the Law Council?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

My understanding is that the PJCIS did consider that submission and decided that the current legislation was adequate. That is also the position of the government.

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

The bill makes for very, very limited changes on the kind of revolving door going from a security agency into the position of inspector-general. Recommendation 4 of the PJCIS was that the Australian government consider amendments to 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. In the view of the government, what is such an appropriate period of time?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Again, the government tabled its response as part to the PJCIS report on 27 July. Ensuring the IGIS is, and is seen to be, independent from agencies it oversees is imperative to maintaining public confidence in office of IGIS. The bill would make it explicit in the IGIS Act that a person who is the head or deputy head of an intelligence agency within IGIS' jurisdiction is not eligible to be appointed as the inspector-general immediately after they finish their role within an intelligence agency. This amendment reflects existing practices in appointing the inspector-general and was recommended by the comprehensive review recommendation 172. The former government agreed to the recommendation of the comprehensive review in December 2020.

This measure seeks to prevent the most acute circumstances where actual or perceived conflicts of interest are likely to result in an undermining of trust in the IGIS. However, not all the prior experience within an intelligence agency would necessarily amount to actual perceived conflict of interest, but it is important government otherwise has the discretion to consider all of the circumstances and isn't arbitrarily prevented from choosing the ideal candidate. These amendments were also included in the then Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020, introduced by the previous Attorney-General, Christian Porter.

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

Minister, it's true, isn't it, that someone can go from being a Director-General of ASIO on 1 January, take a month off and go to be the IGIS inspector a month later? Or they can move from being in charge of ASIS on 1 July and then go to be the Inspector-General on 2 July? They can literally walk out, have a fortnight off, and then go straight into being the independent inspector of the agency they've just walked out of. Is that how it works?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

It's generally not good in this chamber, Senator Shoebridge, to answer hypotheticals. But I would say that you cannot go from being the director-general or the deputy director-general of an agency to then be appointed to this position.

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

The legislation says that you can't do that immediately; you can't just walk from A to B, but you can go from A to B via a fortnight off in Bali, can't you?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

My understanding is that time off doesn't count for a previous position.

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

To be clear: is it the government's position that somebody has to have another substantive appointment or employment between the two before they can step out of a senior role in one of the intelligence agencies to take the inspector-general role? There's no temporal limit but there's some kind of other restriction? Minister, literally, I'm just trying to understand what the government's view of its own legislation is.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I'd refer you to my previous answer on that one, Senator Shoebridge.

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

Minister, this is one of the key integrity changes proposed to ensure that there's genuine distance between the independent inspector and the agencies which it oversees. So what is the situation? In what circumstances can someone cease being in charge of an intelligence agency and then go to being the independent inspector? What's the restraint proposed in this bill?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

In trying to assist Senator Shoebridge, I will refer to my previous answer, but I'll be explicit in what I was talking about there. Again, I reference answering hypotheticals, which I find are not helpful in these debates. However, not all experience within an intelligence agency would necessarily amount to actual or perceived conflict of interest. It is important that government otherwise has the discretion to consider all of the circumstances and that it isn't prevented arbitrarily from choosing the ideal candidate.

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

Is it really arbitrary when somebody goes from being in charge of an intelligence agency one day and then a month later finds themselves as the independent inspector appointed by the government? That's not arbitrary. That's a genuine conflict of interest where, potentially, they're marking their own homework. What is the actual constraint? What's the extent of the constraint? Or is the government comfortable with somebody being appointed to the role of IGIS and then literally marking their own homework, the work that they did as a former head of an intelligence agency? Are you comfortable with that?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I have provided the answer, Senator Shoebridge.

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

by leave—At the request of Senator Thorpe, I move amendments (1) to (7) on sheet 2089 together:

(1) Schedule 1, page 5 (after line 26), after item 8, insert:

8A At the end of subsection 6(3)

Add "and the Australian Human Rights Commissioner".

(2) Schedule 1, item 9, page 6 (lines 1 to 4), omit subsection 6(3A), substitute:

Limitations on appointment of Inspector-General

(3A) A person must not be appointed as Inspector-General if the person is, or the person's most recent position was:

(a) the head or a deputy head (however described) of an intelligence agency; or

(b) the Chief of the Defence Force; or

(c) a Minister; or

(d) a member of the House of Representatives or a Senator; or

(e) the head of a Commonwealth agency not mentioned in any of the preceding paragraphs.

(3B) A person must not be appointed as Inspector-General unless the person has appropriate qualifications, knowledge, skills or experience to perform the role.

(3) Schedule 1, page 18 (after line 15), after item 91, insert:

91A At the end of section 18

Add:

Requirement to consider certain matters before requiring information, documents or attendance to answer questions

(10) Before requiring a person to give information or produce documents under subsection (1), or to attend before the Inspector-General to answer questions under subsection (3), in relation to a matter under inquiry, the Inspector-General must consider whether the requirement is reasonable, proportionate and necessary having regard to the following:

(a) the nature and gravity of the matter under inquiry;

(b) the likely substance and importance of the information, documents or answers in relation to the matter under inquiry;

(c) the likely weight that would be attributed to the information, documents or answers in relation to the matter under inquiry;

(d) whether any other information, documents or answers are available to the Inspector-General from any other source in relation to the matter under inquiry.

(4) Schedule 1, page 22 (after line 19), after item 118, insert:

118A At the end of section 26

Add:

Limitation on certain paid work after holding office as Inspector-General

(5) A person who ceases on or after the commencement of this subsection to hold office as Inspector-General must not, during the period of 5 years starting on the day after the day the person so ceases, engage in paid work (other than paid work for, or on behalf of, the Commonwealth or as an officer of the Commonwealth) in relation to:

(a) the production of weapons; or

(b) the exploration or extraction of fossil fuels; or

(c) national security.

(6) To avoid doubt, subsection (5) does not apply in relation to ceasing to act as the Inspector-General.

(5) Schedule 1, item 131, page 26 (line 24), after "Commonwealth", insert ", or law of a State or Territory,".

(6) Schedule 3, item 1, page 51 (line 3), after "1986", insert "(other than the amendment to insert subsection 18(10) of that Act)".

(7) Schedule 3, item 1, page 51 (after line 7), after subitem (4), insert:

(4A) Subsection 18(10) of the Inspector-General of Intelligence and Security Act 1986, as inserted by Schedule 1, applies in relation to a notice given by the Inspector-General on or after the commencement of that Schedule under subsection 18(1) or (3) of that Act.

These amendments together propose a number of changes which largely are intended to implement the recommendations which came from the PJCIS. We're often told how important the PJCIS is, that it's got a lot of kumbaya, that it comes up with a unanimous recommendations after considering material closely. We then find that, even with all that kumbaya, it doesn't extend to this chamber, because their recommendations are not actually adopted or reflected in the legislation. These amendments largely try to move from kumbaya to legislation, which is probably a step forward.

The first amendment seeks to include the Australian Human Rights Commissioner at the end of subsection 6(3) of the act, which would include the Australian Human Rights Commissioner in the list of persons who will be consulted on the appointment of the inspector-general. Given the very clear human rights concerns that are often considered by the IGIS, ensuring that that human rights lens is applied on the appointment, the Greens believe, is a positive outcome.

Amendments (2) and (4) really work together on putting further limitations on the appointment of the inspector-general. They provide that a person must not be appointed as inspector-general if the person's most recent position was the head or deputy head of an intelligence agency, the Chief of the Defence Force, a minister, a member of this house or the other, or the head of a Commonwealth agency that's not already included in the very limited list of limitations, as well as requiring the person to have appropriate qualifications, knowledge, skills and experience.

Proposed amendment (4) puts additional limitations on paid work for the inspector-general after leaving the office. It is a five-year prohibition on that person engaging in work in relation to the production of weapons in the arms industry, the exploration or extraction of fossil fuels or going back into the national security field. This is so there is a guaranteed period, after engagement in this highly sensitive office, with regard to industries that often come under the remit of the IGIS's statutory work. Those amendments seem sensible. They do, I accept, go beyond the bare recommendations of the PJCIS. They extend them and take them further, but they would promote the integrity of the office.

Amendments (3), (6) and (7) are to deal with the issue of self-incrimination and coercive powers, really in large part picking up the concerns that have been raised by the Law Council on the abrogation of important privileges. One of the concerns raised by the Law Council was that the immunity from self-incrimination only applies in relation to the prosecution of Commonwealth laws. Of course, in this space there are a raft of state and territory laws that cut across the Commonwealth laws and security. The Law Council proposed that the prosecution immunity for those who voluntarily provide information and documents to the inspector-general should not be limited to offences under Commonwealth law and should apply, for completeness, to offences under federal, state and territory laws. These amendments seek to do that.

Taken together, they are an advancement on the bill. They support the independence of the IGIS. They protect and promote important, longstanding common-law rights and immunities in a balanced way. I commend them to the Senate.

James McGrath (Queensland, Liberal National Party, Shadow Assistant Minister to the Leader of the Opposition) Share this | Link to this | Hansard source

I will speak first of all to the proposed Greens amendments on sheet 2096. The coalition will not be supporting those amendments. These amendments would place new administrative hurdles in the path of the IGIS. Specifically, before engaging consultants or service providers, the IGIS must clear jurisdictional hurdles that would require them to satisfy a requirement that is not reasonably practical to engage persons who have suitable qualifications and experience from the Public Service. It is unclear whether these new provisions would open up new grounds for administrative law challenges or what the operational impact more generally might be. Indeed, it is possible that these provisions may impede the IGIS in the conduct of its oversight functions. For those reasons, the coalition considers the amendments unnecessary.

In relation to the amendments from Senator Thorpe on sheet 2089, the coalition will not support these. We do not consider these amendments are necessary. In relation to items (1) and (2), the proposed changes are unnecessary. In particular, limitations on the person who may be appointed as inspector-general go much further than was recommended by the Richardson review. In relation to item (3), the proposed restrictions on the IGIS's powers is not necessary given its important oversight role. It would create unnecessary delay and administrative burdens, broaden avenues for legal challenge, and impede important oversight function. In relation to item (4), this goes far beyond a transparency or integrity measure. It is an inappropriate restriction on the freedom of the individual to engage in paid work and can only disincentivise individuals from taking on the IGIS role. In relation to item (5), the case for significant changes to this important immunity has not been made out. It is unclear what problem this change seeks to address and whether the solution is appropriate in the circumstances, and we are not aware of any reputable body calling for this change. In relation to items (6) and (7), these are consequential changes that are contingent on the passage of item (3). Given we do not support item (3), we do not support these measures.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The government will also be opposing the amendments moved by Senator Shoebridge on behalf of Senator Thorpe.

Marielle Smith (SA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that Senator Thorpe's amendments on sheet 2089 be agreed to.

Question negatived.

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

I seek leave—

Raff Ciccone (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Achoo!

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

I had not even moved it! Gesundheit!

The TEMPORARY CHAIR: Senator Shoebridge, please continue.

by leave—I move Greens amendments (1) and (2) on sheet 2096 together:

(1) Schedule 1, item 128, page 24 (after line 5), after subsection 32AAA(1), insert:

(1A) However, subsection (1) only applies if it is not reasonably practicable for persons who:

(a) have suitable qualifications and experience; and

(b) are engaged under the Public Service Act 1999;

to assist in the performance of the Inspector-General's functions.

(2) Schedule 1, item 128, page 24 (after line 12), after subsection 32AAB(1), insert:

(1A) However, subsection (1) only applies if it is not reasonably practicable for persons who:

(a) have suitable qualifications and experience; and

(b) are engaged under the Public Service Act 1999;

to assist in the performance of the Inspector-General's functions.

These amendments are not to be sneezed at. These amendments, taken together, would provide important—and we say important for security reasons and for public administration reasons—restrictions on when IGIS can engage consulting services. We have seen one of the most unwholesome displays of avarice, conflict of interest and sheer greed from the consulting industry exposed in this parliament in the last six months. We have seen the scandalous behaviour of PwC breaching conflicts of interest. We've seen the gouging of KPMG, particularly in the defence sector, taking literally hundreds and hundreds of millions—the better part of $1.7 billion—of public defence funds and keeping it within its consulting business. I would suggest they were unscrupulously stripping funds out of the public sector wherever they can. Consultants can not only take the money in the first place—and we're talking billions of dollars—but consultant after consultant has used the information they're given in confidence, within the public sector, to squeeze other profits. In the case of PwC they shared it with their corporate clients to help them dodge tax. And we've seen it in relation to Deloitte, one of the favoured consultants used in the broader security apparatus by the Commonwealth government, to squeeze money—former Deloitte partners squeezing money for their business ventures. In particular we saw those leaked emails from Canberra consultant David Milo, sharing documents that he had obtained while working for Deloitte with the Australian military. He shared those with his clients, including sharing highly secure correspondence from the Vice Chief of the Defence Force about the ForceNet project in gross breach of security requirements and confidentiality requirements. This was potentially putting at peril the national security of Australia purely for narrow private profit, to get his next consultancy firm the contracts and the millions and millions of dollars of private and public money they thought they could squeeze by grossly abusing documents they'd obtained in confidence.

When it comes to the IGIS, it's hard to picture a body, the independent inspector of security services, which has a greater need to retain the integrity of its information—to retain the integrity of the documents it obtains from ASIO, AISIS or Defence—to retain the integrity of those documents in its systems and investigations. This bill and the act just provide for the standard consultancy provisions. The bill just says that whenever IGIS thinks they want to, they can just consult it out—to contract out and engage with consultants whenever they want to, with no limitations.

We're told by the opposition that they don't want to put limitations on what IGIS can do. Maybe they're comfortable with the behaviour of David Milo and Deloitte. Maybe they're comfortable with that. I will be surprised if they are but, if so, tell us! Maybe the government is comfortable with what PwC and Deloitte have done. But the Greens aren't. So we're proposing there be specific limitations on the appointment and use of consultants by IGIS. This is hardly radical. This simply says that IGIS can't engage consultants unless it's not reasonably practical for persons who have suitable qualifications and experience, and who are engaged in other public service actions, to do the work as public servants. Keep it in-house; keep it in the public service. Don't contract it out unless you bloody well need to! Surely we can agree on that?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Minister. Thank you, Senator Shoebridge for the contribution. We will be opposing this amendment. The bill should not be amended to restrict the use of contractors. Such amendments would be unique in the Australian Public Service and are unnecessary. The government has commenced its APS reform agenda and is committed to ensuring that the Australian Public Service embodies integrity; puts people and business at the centre of policy and services; is a model employer; and has the capability to do its job well.

Marielle Smith (SA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the amendments on sheet 2096 be agreed to.

Question negatived.

Bill agreed to.

Bill reported without amendments.

The ACTING DEPUTY PRESIDENT (Senator Marielle Smith): It being 1.30 pm, we are moving to senators' statements.