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Chapter 1 The Parliamentary Joint Committee on Intelligence and Security

1.1                   Section 28 of the Intelligence Services Act 2001 (the IS Act) establishes the Parliamentary Joint Committee on Intelligence and Security. The Act governs its size, structure, functions, procedures and powers. This report is made in compliance with section 31 of the Act which states that:

As soon as practicable after each year ending on 30 June, the Committee must give to Parliament a report on the activities of the Committee during the year.

1.2                   This report covers the period from 1 July 2011 to 31 June 2012.

Size and Structure

1.3                   Section 28 (2) (3) of the IS Act  stipulates that the Committee is a joint Committee of Parliament comprised of eleven members, five of whom must be Senators and six of whom must be members of the House of Representatives. A majority of the Committee’s members must be government members.

1.4                   Members are appointed by resolution of the House or the Senate on the nomination of the Prime Minister or the leader of the Government in the Senate. Prior to nomination, consultation must take place with the leaders of recognised parties in each of the Houses.

Functions

1.5                   Under section 29 of the IS Act, the Committee is charged with reviewing the administration and expenditure of all six intelligence agencies: ASIO, ASIS, DSD, DIGO, DIO and ONA. Other matters may be referred by the responsible Minister or by a resolution of either House of the Parliament.

1.6                   In addition to this function, the Committee is required to review the operation, effectiveness and implications of:

1.7                   Amendments made to the Criminal Code Act 1995 (the Criminal Code), made in March 2004, further tasked the Committee with reviewing regulations which specify organisations as terrorist organisations for the purposes of section 102.1 of the Criminal Code. The Committee’s findings on its reviews of these regulations are to be tabled before the end of the disallowance period, 15 sitting days from the tabling of the regulation.

1.8                   Two reports reviewing regulations which specify organisations as terrorist organisations were tabled during the reporting period.

Procedures and powers

1.9                   The Committee is a statutory committee. Section 29 of the IS Act outlines the oversight capacity of the Committee. However unlike other statutory or standing committees of Parliament there are specific limitations in this section with regard to the Committee’s capacity to inquire into operational matters and the intelligence gathering and assessment priorities of the relevant intelligence agencies.[1] Again the Committee reiterates that, due to this limitation, balancing national security and parliamentary scrutiny remains a challenge for the Committee.[2] Despite these constraints, the Committee is ever mindful of its critical role in ensuring that Australia’s intelligence agencies remain accountable through continuous public scrutiny.

1.10               Authority to inquire into special cases and operational matters lies with the Inspector General of Intelligence and Security (IGIS) under the Inspector General of Intelligence and Security Act 1986. In conjunction with the IGIS the Committee provides essential bi-partisan oversight of the AIC.

1.11               Specific prohibitions on the Committee’s activities include the following:

1.12               The IS Act also specifies the Committee’s powers in relation to requesting witnesses and the production of documents. Clause 2 of Schedule 1 specifies that the Committee may give a person written notice requiring the person to appear before the Committee with at least 5 days notice, as well as notice of any documents required by the Committee.[4]

1.13               The Minister may prevent the appearance of a person (not an agency head) before the Committee to prevent the disclosure of operationally sensitive information either verbally or in a document. To achieve this, the Minister must provide a certificate outlining his opinion to the presiding member of the Committee, to the Speaker of the House of Representatives, the President of the Senate and the person required to give evidence or produce documents.[5] There were no cases where this power was exercised during the year in review.

1.14               The IS Act also contains a protection, under subclause 7(1) of Schedule 1, against the disclosure in Committee reports of operationally sensitive information, namely:

1.15               Unlike the reports of other parliamentary committees which are privileged documents which may not be disclosed to anyone outside the committee itself until after tabling, the Intelligence and Security Committee must obtain the advice of the responsible Minister or Ministers as to whether any part of a report of the Committee discloses a matter referred to in subclause 7(1) of Schedule 1. A report may not be tabled until this advice is received.[7]

1.16               Lastly, to protect the national security status of the Committee’s work and to maximise the Committee’s access to information, the IS Act requires that staff of the Committee must be cleared for security purposes to the same level and at the same frequency as staff members of ASIS.

1.17               In addition to the security requirements for staff all new members of the Committee in 2010-11 were informed of the main legislation governing information regarding the AIC.

1.18               This information to members specifies that Section 92 of the ASIO Act 1979 makes it illegal to divulge the names of employees or former employees of ASIO. Section 41 of the IS Act makes it illegal to divulge the names of employees of ASIS. Sections 39, 39A and 40 of the IS Act make it illegal to divulge the names of employees or former employees of ASIS, DIGO and DSD. These sections also make it illegal to divulge information connected with functions of or information that relates to performance of functions of ASIS, DIGO and DSD. Members were also informed that this prohibition extends to information Committee members receive at briefings by these agencies.

Reports and Activities 2011-2012

Administration and Expenditure Reviews

1.19               Reviewing administration and expenditure on an annual basis is one of the primary functions of the Committee. Section 29 of the IS Act stipulates that the Committee has an obligation to review the administration and expenditure of ASIO, ASIS, DSD, DIO, DIGO and ONA including the annual financial statements.

1.20               On 18 June 2012 the Committee tabled its Review of Administration and Expenditure No. 9, 2009-2010.

Review of Administration and Expenditure No. 9 (2009 - 2010) - Australian Intelligence Agencies

1.21               This review, tabled on 18 June 2012, examined a wide range of aspects of the administration and expenditure of the six intelligence and security agencies, including the financial statements for each agency, their human resource management, training, recruitment and accommodation. In addition the review looked at issues of interoperability between members of the AIC.

1.22               Submissions were sought from each of the six intelligence and security agencies, from the Australian National Audit Office (ANAO) and from the Inspector General of Intelligence and Security (IGIS).

1.23               The submissions from ANAO and the six intelligence agencies were all classified Confidential, Restricted or Secret and were therefore not made available to the public. As has been its practice for previous reviews, ASIO provided the Committee with both a classified and an unclassified submission. The unclassified version was made available on the Committee’s website.

1.24               Each of the Defence intelligence agencies provided the Committee with a classified submission. The agencies marked each paragraph with its relevant national security classification. This enabled the Committee for its 2009-10 review to directly refer in this report to unclassified information provided in the Defence agencies submissions.

1.25               The Committee also received five submissions from members of the public or public organisations which included:

1.26               These submissions all dealt with ASIO security assessments of refugees.

1.27               On 25 March 2011 the Committee held a private hearing at which ASIO, ASIS, DSD, DIGO, ONA and DIO appeared before the Committee. On 16 June 2011 the Committee held a public hearing — its first since July 2006 — and heard from representatives of the Refugee Council of Australia, RISE (Refugees, Survivors and Ex-Detainees), the Asylum Seeker Resource Centre and ASIO in relation to visa security assessments.

1.28               The Committee noted the request by some advocacy groups for ASIO to declare its non-statutory criteria for making visa security assessments. The Committee found that making non-statutory criteria publicly available could compromise national security because applications from potentially hostile individuals could be tailored to meet these criteria. The Committee therefore did not support this suggestion.

1.29               The Committee noted that since its previous administration and expenditure inquiry, ASIO’s visa security assessment workload has increased significantly. Processes for undertaking visa security assessments have been placed under considerable strain and, in some cases, assessments have taken longer than is desirable.

1.30               The Committee took very seriously the concerns put before it by various refugee and asylum seeker advocacy groups but it also recognised that the job ASIO has is a very difficult one. Therefore, the Committee welcomed the efforts, introduced by ASIO on 1 March 2011, to streamline the process of security assessments in an attempt to clear the backlog and to process future assessments in less time.  The Committee was satisfied that the current regime for visa security assessments is the correct one and noted that the IGIS has stated that ASIO is doing its job in a “proper and legal manner”.

1.31               Overall, the Committee was satisfied that the administration and expenditure of the six intelligence and security agencies is sound.

1.32               However concerns raised in relation to the Efficiency Dividend’s impact on agencies during the Committee’s Review of Administration and Expenditure: Australian Intelligence Organisations, Number 8 were specifically raised in the evidence the Committee took for this review. This was extremely concerning to the Committee.

1.33               The Committee was pleased with the level of information given to it in relation to interoperability and will continue to monitor this area to ensure that interoperability management and budgetary structures are in place across the AIC.

Reviews of terrorist listings

Review of the Listing of Al-Qa’ida in the Arabian Peninsula (AQAP) and the re-listing of 6 Terrorist Organisations

1.34               This report, tabled on 22 August 2011, reviewed the initial listing of the terrorist organisation known as Al Qa’ida in the Arabian Peninsula and the re-listing of six previously listed terrorist organisations, namely:

1.35               Due to the dissolution of the 42nd Parliament and the 2010 Federal election, advice to the Committee from the Attorney-General’s Department of the new listing and the re-listings was unavoidably delayed and the Committee was therefore unable to review these organisations and report to Parliament within the disallowance period.  However, the Committee resolved to review the new listing of Al Qa’ida in the Arabian Peninsula and the re-listing of six other terrorist organisations and report to Parliament, albeit outside the disallowance period. 

1.36               The Committee would not have recommended disallowance of the regulations for any of these seven organisations had the Committee been able to complete its review within the disallowance period. 

1.37               As with previous Committee reports on listings and re-listings of terrorist organisations, this report identifies issues relating to the current nature and reach of each of the organisations, with particular emphasis, in the case of the six re-listings, on developments since the Committee last reviewed these organisations.

1.38               As mentioned above, this was the first listing of Al Qa’ida in the Arabian Peninsula – also known as AQAP.  The Committee took evidence that AQAP has been involved in a number of terrorist attacks in the Arabian Peninsula, both within and outside Yemen.

1.39               Terrorist attacks which AQAP has recently claimed responsibility for include:

1.40               This was the fourth re-listing of Al-Qa’ida, Jemaah Islamiyah, Al-Qa’ida in the Lands of the Islamic Maghreb, Jamiat ul-Ansar and the Abu Sayyaf Group; and it is the third re-listing of Al-Qa’ida in Iraq.  In each case the Committee was satisfied that each of these groups continued to engage in terrorist activities which could be a threat to Australians or Australian interests either here in Australia or overseas. 

Review of the re-listing of Ansar al-Islam (AAI), Islamic Movement of Uzbekistan(IMU), Jaish-e-Mohammad (JeM) and Lashkar-e-Jhangvi (LeJ) as terrorist organisations

1.41               This review was tabled on 28 May 2012

1.42               Ansar al-Islam (AAI) plans and conducts attacks against foreign forces, Shia, Kurdish and Iraqi government interests. AAI’s attacks most commonly target US and Iraqi security forces in Iraq using Improvised Explosive Devices (IEDs) and Indirect Fire (IDF) attacks.

1.43               The Statement of Reasons listed over fifty attacks for which AAI has indicated responsibility, by posting a video or media statement, in the period since the last review. Their methods have included assassinations, the use of small arms, thermal grenades, and IED and mortar attacks against Iraqi police and military personnel and against US military patrols, bases and vehicles.

1.44               The Committee recommended that the regulation in relation to Ansar al-Islam not be disallowed.

1.45               The Islamic Movement of Uzbekistan (IMU) is a militant Islamist group based and operating in Central and South Asia. The group established relations with the Taliban and Al-Qaeda, and allegedly became extensively involved in narcotics trafficking. One of its founders, Namangani, was killed during the US-led invasion of Afghanistan in 2001, and the remnants of the IMU fled across the border to the Federally Administered Tribal Areas (FATA) of Pakistan.

1.46               Although its capabilities were severely degraded, the following years saw the IMU regroup in the South Waziristan area of the FATA, where it established close links to a number of Pakistani Taliban groups and reportedly participated in cross-border attacks on the International Security Assistance Force (ISAF) in Afghanistan.

1.47               Notwithstanding increasing pressure from ISAF and Pakistani security forces, reports throughout 2010 indicated that the IMU had re-established an operational presence in northern Afghanistan, and the group also claimed responsibility for a series of attacks in Tajikistan.

1.48               The Committee recommended that the regulation in relation to the IMU not be disallowed.

1.49               The statement of reasons indicated that Jaish-e- Mohammed (JeM) is based in Pakistan and operates primarily in Indian Administered Kashmir (IAK). JeM operatives have been involved in attacks against civilian and military targets in Afghanistan, India and Pakistan. JeM attacks have included suicide bombings in 2001 and 2003 with most attacks since that time involving grenades and firearms.

1.50               JeM continued to concentrate its efforst against Indian security forces (military and police), government installations and civilians in the disputed territory of IAK.  In addition, JeM has broadened its operational focus to join the Afghan Taliban in attacks against government and Coalition forces in Afghanistan.

1.51               The Committee recommended that the regulation in relation to JeM not be disallowed.

1.52               Jane’s Terrorism and Insurgency Centre states that Lashkar-e Jhangvi (LeJ) activities have been curbed following the arrest of key leaders and the particular focus of the military and police authorities on the group, resulting in the arrest of hundreds of activists.

1.53               Following the killing of Al-Qaeda leader Osama bin Laden in May 2011, the LeJ vowed to conduct a series of retaliatory attacks. To this end, a spokesman for the LeJ, identifying himself as Ali Sher Haidri, released a statement in mid-May 2011 threatening to avenge Bin Laden's death by targeting not only government ministers and security force personnel but also Shia Muslims from the ethnic Hazara community in Pakistan.

1.54               The LeJ followed through with these threats with a series of significant attacks in and around Quetta between May and July 2011.

1.55               The statement of reasons listed twelve acts of terrorism attributed to or suspected of being perpetrated by the LeJ.

1.56               The Committee recommended that the regulation in relation to LeJ not be disallowed.

Private briefings

1.57               On 15 September 2011 the Committee received a private briefing on Parliament’s IT Security.

1.58               On 21 November 2011 the Committee received a private briefing from Mr Brett Walker SC, the Independent National Security Legislation Monitor.

1.59               On  19 March 2012 the Committee received a private briefing from the AFP Commissioner Tony Negus and AFP Deputy Commissioner, National Security, Peter Drennan.

1.60               On 22 March 2012 the Committee received a private briefing on the Independent Review of the Intelligence Community from Dr Margot McCarthy, National Security Adviser and Mr Richard Sadleir, First Assistant Secretary, Defence and Intelligence Division of the Department of Prime Minister and Cabinet.

1.61               On 28 June 2012 the Committee received a private briefing from the Attorney-General, the Hon Nicola Roxon MP in relation to the proposed terms of reference for an inquiry into potential reforms of national security legislation. As the inquiry had not commenced within this reporting period the Committee’s conclusions will be reported in the Annual Report of Committee Activities 2012-2013.

The International Intelligence Review Agencies Conference 2012

1.62               Since 2002, the Committee has sent representatives to the biennial conference of oversight agencies.  In 2002 the conference was held in London, in 2004, in Washington, in 2006, in South Africa, in 2008, in New Zealand and, in 2010, the conference was hosted by the PJCIS and the IGIS in Sydney.

1.63               The 2012 conference was held in Ottawa, Canada between Sunday May 27 and Wednesday May 30.

1.64               Attending on behalf of the PJCIS were:

1.65               The program was as follows:

Sunday May 27 2012

Monday May 28 2012

Tuesday May 29 2012

Wednesday May 30 2012

1.66               The delegation found the IIRAC Conference invaluable and meetings with like Committees of other jurisdictions in the host country were worthwhile. These should continue to be organised around subsequent IIRAC Conferences.

Issues arising during the year

1.67               No issues of particular concern arose during 2010-11.

Support for the Committee

1.68               To fulfil its statutory and other obligations the Committee is reliant on secretariat staff. In the reporting period the Committee was supported by four full time parliamentary officers. This consisted of a secretary, an inquiry secretary, a senior research officer and an office manager.

1.69               All staff are required under the Intelligence Services Act 2001 (Schedule 1 Part 3 section 21) to be cleared to the ‘level of staff members of ASIS’ or a top secret positive security clearance (TSPV). Two staff were cleared to this level. These staffing and clearance levels were sufficient for the work of the Committee.

1.70               Other staff of the House of Representatives have been cleared to the required level.

The Hon Anthony Byrne, MP

Chairman

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