Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015 - Second Reading

Senator IAN MACDONALD (Queensland) (10:07): 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.

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