15 December 2017
PDF version [770KB]
Cat Barker and Claire Petrie (Parliamentary
Joanna Dawson and Samantha Godec (House of Commons
Library, United Kingdom)
Holly Porteous (Library of Parliament, Canada)
Pleasance Purser (Parliamentary Library, New
This paper is a collaboration between parliamentary
researchers from four countries. Each is separately responsible for the content
and accuracy of the contributions. We are grateful to authors from Canada, New
Zealand and the United Kingdom for their contributions to the paper.
Glossary of acronyms
Outline and purpose
Overview of intelligence agencies
Parliamentary Joint Committee on
Intelligence and Security
Powers and performance of functions
Composition and appointment
Senate Standing Committees: Senate
Inspector-General of Intelligence and
Powers and performance of functions
Role of the courts
Immunities and prosecutions
Inadmissibility of evidence
Information sharing and cooperation
between oversight bodies
Recent developments and reform
Jurisdiction of the PJCIS
PJCIS amendment Bill
2017 Independent Intelligence Review
Overview of intelligence agencies
Security Intelligence Review
Office of the CSE Commissioner
Civilian Review and Complaints
Commission for the RCMP
Standing Senate Committee on National
Security and Defence (SECD)
House of Commons Standing Committee
on Public Safety and National Security (SECU)
Recent developments and reform
National Security and Intelligence
Committee of Parliamentarians
Overview of intelligence agencies
Intelligence and Security Committee
Inspector-General of Intelligence and
Commissioners of Intelligence
Overview of intelligence agencies
The Intelligence and Security
Powers and performance of functions
Composition and appointment
The Wilson Doctrine
Investigatory Powers Tribunal
The ‘intelligence community’
Jurisdictional scope of the key
Table 1: agencies/elements
within the jurisdiction of key oversight bodies
Table 2: ability of key
oversight bodies to examine intelligence related matters
- Australia, Canada, New Zealand, the United Kingdom and the United
States each have some combination of parliamentary/congressional, independent
and judicial oversight of their intelligence agencies, in addition to
accountability through the executive branch. However, there are differences in
the nature and scope of each of those components.
- The six agencies comprising the Australian intelligence
community are overseen by a parliamentary committee that examines their
administration and expenditure and an independent Inspector-General of
Intelligence and Security, who examines the legality and propriety of their
activities. Most of the agencies’ activities and powers are authorised by the
responsible ministers. A review completed in June 2017 recommended that
the remits of the committee and the Inspector-General be expanded to include
four additional agencies, and that the Inspector-General’s resources be
- Canada has passed legislation creating a committee of
parliamentarians to review the policy, administration, finance and operations
of Canada’s national security and intelligence community. At present, only two
agencies are subject to dedicated independent expert review for lawfulness.
Canada’s national police force, which has responsibility for investigating
security offences, is subject to independent expert review. However, this
review is limited to handling public complaints about police officer conduct
and, with the consent of the Public Safety Minister, undertaking public
interest studies of specified activities. A Bill has been introduced that would
create a single expert review body mandated to investigate complaints made in
relation to the activities of three agencies and to examine the lawfulness,
reasonableness and necessity of all national security and intelligence
activities undertaken in the federal government. The Bill also proposes the
creation of an Intelligence Commissioner to give final approval to certain
activities undertaken by Canada’s signals intelligence and security
- New Zealand’s Intelligence and Security Act 2017
replaces the four acts that previously applied to the two intelligence and
security agencies and their oversight bodies, and implements recommendations
from the first periodic review of the agencies. The agencies are overseen by a
parliamentary committee, which scrutinises their policies, administration and
expenditure, and an independent Inspector-General of Intelligence and Security
who ensures that the agencies act with propriety and operate lawfully and
effectively. Intelligence warrants may be issued by a responsible minister
either solely, or jointly with a Commissioner of Intelligence Warrants.
- In the United Kingdom, the main focus of the Intelligence
and Security Committee is to oversee the expenditure, administration, policies
and (with some limitations) operations of the three key intelligence agencies,
though it has scope to examine the work of other intelligence, security and law
enforcement agencies too. The Investigatory Powers Commissioner provides
independent oversight of the use of intrusive powers by the three key
intelligence agencies. The Commissioner, along with several judicial
commissioners, is required to keep under review the exercise by public bodies
of various statutory functions, and may be directed by the Prime Minister to
review any other functions of the three key intelligence agencies. Legislation
has been passed under which warrants, currently issued by ministers, will only
come into force after being reviewed by a judicial commissioner. The
Investigatory Powers Tribunal investigates complaints about public bodies’ use
of investigatory powers.
- The United States intelligence community comprises 17
executive branch entities. Congressional oversight of the intelligence
community is spread across several committees, including specialised committees
on intelligence in the House and the Senate. While each has some limits on what
it may examine, taken collectively the committees have the ability to inquire
into all of the intelligence-related activities of the US Government. The Executive
Office of the President houses several key mechanisms for overseeing the
intelligence community, including the President’s Intelligence Advisory Board
and the Privacy and Civil Liberties Oversight Board. These are augmented by a
network of Inspectors General and legal counsels. In addition to Inspectors
General attached to specific agencies and departments, the Inspector General of
the Intelligence Community conducts audits, inspections and investigations of
cross-cutting programs and activities. The federal judiciary examines a wide
range of intelligence activities under a number of laws, including the
Constitution. Most notably, the Foreign Intelligence Surveillance Court reviews
applications for warrants related to the collection of foreign intelligence by
the US Government.
- Despite differences in the approach taken, each of the five
countries has developed a framework that includes a system of checks and
balances that spans the various branches of government, and which aims to
ensure that agencies are accountable for both their administration and
expenditure and the legality and propriety of their activities.
- The intelligence communities have evolved to meet new challenges
as they arise, and will continue to do so. It will be important for the
oversight arrangements to keep pace with such changes.
This research paper represents a collaborative effort
between researchers in Australia, Canada, New Zealand, and the United Kingdom,
all of whom work in research organisations supporting their respective national
The project was led by Cat Barker (Parliamentary Library,
Australia). The other contributors were Claire Petrie (Parliamentary Library,
Australia), Holly Porteous (Library of Parliament, Canada), Pleasance Purser
(Parliamentary Library, New Zealand), and Joanna Dawson and Samantha Godec
(House of Commons Library, United Kingdom).
The Congressional Research Service’s (CRS, United States)
publication policies precluded it from participating at this time.
Information on US arrangements has been included in the comparative section of
this paper based on research conducted by Cat Barker and Samantha Godec.
||Administrative Appeals Tribunal (Aus)
||Australian Criminal Intelligence Commission
||Australian Federal Police
||Australian Intelligence Community
||Australian Signals Directorate
||Australian Security Intelligence
||Australian Secret Intelligence Service
||Australian Transaction Reports and Analysis
||Canada Border Services Agency
||Canadian Forces Intelligence Command
||Civilian Review and Complaints Commission
for the RCMP
||Communications Security Establishment (Can)
||Canadian Security Intelligence Service
||Department of Immigration and Border
||Defence Intelligence Organisation (Aus)
||Department of National Defence (Can)
|House of Commons Standing Committee on
Access to Information, Privacy and Ethics (Can)
||Financial Transactions and Reports Analysis
||Government Communications Headquarters (UK)
||Government Communications Security Bureau
||House Permanent Select Committee on
||Inspector-General of Intelligence and
Security (Aus; NZ)
||Independent National Security Legislation
||Investigatory Powers Act 2016 (UK)
||Investigatory Powers Commissioner (UK)
||Intelligence Services Act 1994 (UK)
||Intelligence Services Act 2001 (Aus)
||Intelligence and Security Committee (NZ;
||Investigatory Powers Tribunal (UK)
||Joint Intelligence Committee (UK)
||Justice and Security Act 2013 (UK)
||Security Service (UK)
||Secret Intelligence Service (UK)
||National Security and Intelligence Advisor
to the Prime Minister (Can)
||National Security and Intelligence
Committee of Parliamentarians (Can)
||National Security and Intelligence
Committee of Parliamentarians Act (Can)
||National Security and Intelligence Review
||New Zealand Security Intelligence Service
||Office of the Communications Security
Establishment Commissioner (OCSEC)
||Office of National Assessments (Aus)
||Privacy and Civil Liberties Oversight Board
||President’s Intelligence Advisory Board
||Parliamentary Joint Committee on
Intelligence and Security (Aus)
||Public Safety Canada
||Royal Canadian Mounted Police
||Regulation of Investigatory Powers Act
||Standing Senate Committee on National
Security and Defence (Can)
|House of Commons Standing Committee on
Public Safety and National Security (Can)
||Security Intelligence Review Committee (Can)
||Secret Intelligence Service (UK)
||Senate Select Committee on Intelligence
||US Intelligence Community
The size and powers of Western national security and
intelligence agencies have increased significantly since the 9/11 terrorist
attacks. Information revealed by Edward Snowden in 2013 and further reforms to
intelligence agency powers, including those aimed at dealing more effectively
with threats associated with the Islamic State group and ‘foreign fighters’,
have ensured that the accountability framework that applies to those agencies
is of continuing interest.
The intelligence communities and associated oversight
frameworks in Australia, Canada, New Zealand, the United Kingdom and the United
States have each evolved to meet the particular needs of those countries and
the specific contexts in which they operate. However, as Western democratic
nations facing similar challenges in balancing the imperative of accountability
with the need for intelligence agencies to operate with a degree of secrecy,
and sharing a close intelligence-sharing and co-operation relationship under
the Five Eyes arrangements, these countries serve as relevant and useful
comparators to one another.
The independent oversight bodies in the five countries agreed in
September 2016 to establish the Five Eyes Intelligence Oversight and
Review Council ‘to facilitate the sharing of experiences and best practice
in oversight and review’. It will meet annually in person and quarterly by
secure electronic communication.
This Research Paper first provides information by country on
the intelligence communities, key mechanisms for oversight of the intelligence
community and any recent changes to, or reviews of, the oversight frameworks in
Australia, Canada, New Zealand and the UK. This is followed by comparative
analysis that highlights some of the similarities and differences between those
countries (and the US) in the arrangements that exist for intelligence
In each country, there is some combination of
parliamentary/congressional, independent and judicial oversight in place, in
addition to accountability through the executive branch. However, there are
differences in the nature and scope of each of those components. Examples
include the extent to which parliamentary or congressional committees can
access classified material, and to which they may examine the operations (as
distinct from administration, expenses and policies) of the intelligence
agencies; and whether independent oversight is primarily centralised or
distributed. In all but the US, significant reviews of, or reforms to,
intelligence oversight arrangements have been undertaken in the previous five
years, and further specific reforms are currently under consideration in
Australia and Canada. It is hoped that by drawing out some of the similarities
and differences between these systems, this paper will support each country’s parliamentarians
in their consideration of current arrangements and any potential reforms.
The information on each country’s intelligence oversight framework
is focused mainly on the key mechanisms in place in the
parliamentary/congressional, independent and judicial spheres. Less detail is
included on broader systems of executive oversight and other accountability
mechanisms such as auditors-general, whose jurisdiction may include, but is not
specifically focused on, intelligence agencies.
The agencies considered ‘in-scope’ for each country are
those that are defined or considered by that country to comprise its
intelligence community at the time of publication. The oversight arrangements
described are, except where otherwise noted, those in place at the time of
publication. Reforms being considered at the time of publication are covered in
the sections on recent developments and reform proposals in each of the country
The Australian Intelligence Community (AIC) comprises the six
agencies outlined below. The AIC is part of the broader national security community
that includes law enforcement, border protection and policy agencies.
The Australian Security Intelligence Organisation
(ASIO) is Australia’s national security intelligence agency. Its role is to
identify, investigate, and provide advice on threats to security and it is
responsible to the Attorney-General.
The Australian Secret Intelligence Service (ASIS) is Australia’s
overseas secret intelligence collection agency. Its main functions are to
collect and distribute across the Australian Government foreign intelligence
that may impact on Australia’s interests, carry out counter-intelligence
activities and liaise with overseas intelligence and security agencies. ASIS is
responsible to the Minister for Foreign Affairs.
The Office of National Assessments (ONA) is
responsible for analysing and providing advice on information (including open
source) relating to international matters of political, strategic or economic
interest to Australia. It also plays a role in coordinating and evaluating Australia’s
foreign intelligence activities. ONA is responsible to the Prime Minister.
There are three intelligence agencies within the Department
of Defence, two of which have responsibilities beyond that portfolio. The Australian
Signals Directorate (ASD; formerly known as the Defence Signals
Directorate, or DSD) collects and analyses foreign signals intelligence and
provides information and communications security advice and services to the
The Australian Geospatial-Intelligence Organisation’s (AGO) main role is
to collect and analyse geospatial and imagery intelligence for the purposes of
informing the Government about the capabilities, intentions or activities of
people or organisations outside Australia, supporting Australian Defence Force
(ADF) activities and supporting the national security functions of Commonwealth
and state authorities.
The Defence Intelligence Organisation (DIO) assesses and analyses
intelligence on countries and foreign organisations to support ADF operations,
capability and policy development, as well as broader decision-making on defence
and national security issues.
Two Royal Commissions led by Justice Robert
Marsden Hope in the 1970s and 1980s, and further major reviews in the 1990s and
early 2000s have played a significant role in shaping Australia’s
framework for oversight of its intelligence agencies.
While the AIC has grown and evolved significantly in the intervening period,
the key oversight mechanisms have remained largely unchanged.
The Parliamentary Joint Committee on Intelligence and
Security (PJCIS) and the Inspector-General of Intelligence and Security (IGIS)
perform complementary roles. The Committee oversees the administration and
expenditure of the intelligence agencies, while the Inspector-General reviews
their operational activities. These standing mechanisms are supplemented by periodic
external reviews of the intelligence agencies, with the most recent completed
in June 2017.
Changes to oversight arrangements recommended by the most recent review are
outlined below in the section titled ‘Recent developments and reform proposals’.
Judicial oversight of intelligence activities is limited,
with the courts having little involvement in the issuing or monitoring of
warrants. The only specialised tribunal is the Security Division of the
Administrative Appeals Tribunal, which conducts merits review of most
categories of adverse security assessments issued by ASIO.
The budgets of ASIO, ASIS and ONA are published in annual
Portfolio Budget Statements, and the agencies can be held to account at related
hearings of Senate committees (see below under ‘Senate Standing Committees’;
ASIO is the only agency to routinely appear at those hearings).
However, additional funding for ASIO and ASIS provided in the 2017–18 Budget
was not included in the totals set out in the Portfolio Budget Statements, and
it is unclear whether other amounts might have also been excluded.
ASIO is the only agency which produces a publicly available annual
report, which is then also tabled in Parliament. A classified version of ASIO’s
annual report is provided to the Attorney-General, who must share it with the
Leader of the Opposition.
All AIC agencies are subject to financial and administrative audits by the
Australian National Audit Office.
The Independent National Security Legislation Monitor (INSLM)
does not oversee the agencies themselves, but has a related function of
reviewing the operation, effectiveness and implications of counter-terrorism
and national security legislation, including ASIO’s special powers relating to
Joint Committee on Intelligence and Security
The PJCIS was first established in 1988 as the Parliamentary
Joint Committee on the Australian Security Intelligence Organisation.
ASIS was brought under the Committee’s remit in 2002, implementing a
recommendation of the Commission of Inquiry into the Australian Secret Intelligence
Service (Samuels Inquiry) that reported in 1995.
ASD was added at the same time.
The PJCIS has overseen all six AIC agencies since 2005, when its mandate was
extended to include ONA, DIO and AGO in response to a recommendation of the
2004 Report of the Inquiry into Australian Intelligence Agencies (the
The PJCIS is established under Part 4 of the Intelligence
Services Act 2001 (IS Act), with additional detail set out in
Schedule 1 to the Act. Section 29 sets out what the PJCIS’s functions
are, and just as importantly, what they are not. With respect to oversight of
the AIC, the PJCIS’s functions are (subject to the limitations set out below)
- review the administration and expenditure of the AIC agencies,
including their annual financial statements
- review any matter in relation to an AIC agency referred to it by
the responsible minister or a House of Parliament
- review any matter in relation to ASIO’s activities relating to
the telecommunications data retention scheme that are set out in an annual
report about the scheme by ASIO and
- report its comments and recommendations to each House of
Parliament and the responsible minister.
The PJCIS is specifically precluded from reviewing:
- the intelligence gathering and assessment priorities of the AIC
- the sources of information, other operational assistance or
operational methods available to the AIC agencies
- particular operations that have been, are being, or are proposed
to be undertaken by ASIO, ASIS, AGO, DIO, or ASD
information provided by a foreign government (or one of its
agencies) where that government does not consent to the disclosure of the
- an aspect of the activities of an AIC agency that does not affect
an Australian person
- rules made about protecting the privacy of Australians
- the content of, or conclusions reached in, assessments or reports
made by DIO or ONA, or reviewing sources of information on which such assessments
or reports are based and
- the coordination and evaluation activities undertaken by ONA.
performance of functions
The PJCIS conducts annual reviews of the administration and
expenditure of the AIC agencies. These reviews are based on information
provided by the AIC agencies, the IGIS and the Auditor-General in submissions
(most of which are classified) and at closed hearings.
The reports on these reviews are tabled in each House of Parliament and
published on the PJCIS’s website. They include commentary from the PJCIS on
relevant matters, and sometimes specific recommendations to government. For
example, in its report for 2011–13, the PJCIS recommended that the Government
review the continued application of the efficiency dividend and other savings
measures to AIC agencies, and that it consider reforms necessary to equip the
AIC to meet the challenges posed by technological changes.
The PJCIS does not have the power to initiate its own inquiries
into matters relating to the activities of an AIC agency. However, it may, by
resolution, request that the responsible minister refer such a matter (though ministers
may decline such requests).
As noted above, matters may also be referred by a House of Parliament. In practice,
most previous inquiries conducted by the PJCIS or its predecessors into matters
relating to the activities of an AIC agency were initiated by a referral from
the minister, and almost all have concerned potential or proposed reforms to
A notable exception on both counts was the referral in June 2003 by the Senate to
the PJC on ASIO, ASIS and DSD of an inquiry into intelligence on Iraq’s weapons
of mass destruction—one of only three inquiries referred by a House of
Parliament to the PJCIS or a predecessor committee.
There appear to have been only two instances of a minister referring a matter
at the request of the PJCIS or a predecessor committee—the first in February
2000, on the nature, scope and appropriateness of ASIO’s public reporting, and the
second in March 2015, on the authorisation of access to telecommunications
data to identify a journalist’s source.
The IS Act grants powers to the PJCIS to support
its functions. The PJCIS may request a briefing from the head of an AIC agency
or from the IGIS.
It may also require a person to appear before it and give evidence or produce
documents if it has reasonable grounds to believe the person is capable of
giving the information or documents sought, though there are some constraints
on this power.
The PJCIS cannot use that power on the IGIS or any of the IGIS’s staff.
For AIC agencies, the power may only be used on the heads of agencies (though
an agency head may nominate a staff member).
In line with limits on its functions, the PJCIS must not require anyone to
disclose to it any information that is operationally sensitive, or that might
prejudice Australia’s national security or the conduct of its foreign
A minister responsible for an AIC agency may issue a certificate to the PJCIS
to prevent a person from disclosing operationally sensitive information where a
person is about to produce a document or is giving, or about to give, evidence.
The PJCIS has the power to take evidence on oath or
affirmation and, subject to limitations around sensitive information, to
disclose or publish evidence and the content of documents that it receives.
It may only conduct a review in public with the approval of the ministers responsible
for the AIC agencies.
The PJCIS’s reports on its reviews and inquiries are tabled
in Parliament and are publicly available online, as are the annual reports on
its own activities that it is required to make under the IS Act.
The PJCIS is required to comprise five senators and six
members of the House of Representatives. It must also have a majority of government
members and be chaired by a government member. Members of the PJCIS are appointed
by a resolution of each House of Parliament, following nomination by the Prime
Minister (for the House of Representatives) and the Leader of the Government in
the Senate (for the Senate). Nominations are to be made following consultation
with each recognised non-government party represented in each House of
Parliament, and with regard to ‘the desirability of ensuring that the
composition of the Committee reflects the representation of recognised
political parties in the Parliament’. Ministers, the President of the Senate
and the Speaker of the House of Representatives are not eligible to be
appointed to the PJCIS. The PJCIS is re-established following the commencement
of each new Parliament, and appointments are generally for the term of the
The PJCIS and its predecessors have generally comprised six government
and five Opposition members, but has not included members from the crossbench.
This has attracted criticism from crossbench parliamentarians.
The PJCIS is supported by a secretariat provided by the Department
of the House of Representatives. The secretariat has two dedicated research
staff. The research staff are responsible to a Committee Secretary and are
supported by an administrative staff member, both of whom work across the PJCIS
and another committee. Additional research staff are allocated across
committees supported by the Department of the House of Representatives
according to the needs of those committees at any given time. Under a standing
agreement reached with the Government in 2015, the PJCIS also seconds technical
advisers to its secretariat as needed from the Attorney-General’s Department
and other agencies, including ASIO. The IS Act requires all staff
supporting the PJCIS to be security-cleared to the same level and at the same
frequency as staff of ASIS (Positive Vetting, which is the highest level).
Standing Committees: Senate Estimates
The Legislation Committee of each Senate Standing Committee
examines the estimates of proposed and additional expenditure for public
service departments and other Commonwealth agencies, generally three times per
year. The committees hold public hearings at which they have the opportunity to
question ministers (or their representatives in the Senate) and government
officials about the administration of government.
These hearings provide an additional means of imposing
financial accountability, though in practice the extent to which AIC agencies
are subject to scrutiny through the Senate Estimates process varies. ASIO is
the only AIC agency to routinely appear at Senate Estimates hearings in its own
Questions relating to the other AIC agencies tend to be addressed to the lead
The IGIS also appears at Senate Estimates.
of Intelligence and Security
The office of the IGIS was recommended by the Royal
Commission on Australia’s Security and Intelligence Agencies in 1984.
The Commissioner considered there would be merit in an independent oversight
body to provide the public with greater assurance that the activities of the
AIC agencies are proper, and ‘to clear [agencies] or bring [them] to task, as
the case may be, if allegations of improper conduct are made’.
The IGIS was established by the Inspector-General of Intelligence and
Security Act 1986 (IGIS Act) and commenced operation in
The IGIS is an independent statutory office-holder appointed
by the Governor-General. Broadly, the IGIS’s role is ‘to ensure that the
agencies act legally and with propriety, comply with ministerial guidelines and
directives and respect human rights’.
The IGIS has several main functions: AIC agency inquiry
functions, intelligence and security matter inquiry functions, AIC agency
inspection functions, and public interest disclosure functions.
The IGIS’s AIC agency inquiry functions differ somewhat
across the six AIC agencies, and are broadest in relation to ASIO.
The IGIS may inquire into the compliance by AIC agencies with Australian laws
and any guidelines or directions given by the responsible minister; the
propriety of the agencies’ activities; any act or practice of an agency that
may be inconsistent with or contrary to human rights law; and the procedures of
the agencies relating to the redress of grievances of their employees.
Whether an inquiry may be initiated at the request of the responsible minister,
of the IGIS’s own motion, and/or in response to a complaint, differs somewhat
across matters and agencies. In most instances, the IGIS may initiate an
inquiry at least at the request of the responsible minister, or of the IGIS’s
The IGIS requires ministerial approval to inquire into a matter relating to a
Commonwealth agency that occurred outside Australia or before commencement of
the IGIS Act.
The Prime Minister may request that the IGIS inquire into a
matter relating to an AIC agency, or an intelligence or security matter
relating to any Commonwealth agency, and the IGIS must generally comply with
such a request.
The IGIS may not, of its own motion, inquire into an intelligence or security
matter relating to a non-AIC agency.
The IGIS may conduct inspections of AIC agency records as the
IGIS considers appropriate, to ensure agencies are acting legally, with
propriety and in accordance with human rights.
The IGIS indicates that its inspections enable it to ‘identify issues or
concerns before they develop into systemic problems that could require major
The IGIS’s inspection activities include reviewing records relating to ASIO’s
use of special powers, including supporting materials accompanying warrant
applications; reviewing ministerial authorisations issued to ASIS, AGO and ASD;
reviewing ASIS operational files and its application of weapons guidelines; and
monitoring agency compliance with relevant legislation.
The IGIS is also responsible for overseeing AIC agency
handling of public interest disclosure matters and investigating such matters
where they relate to AIC agencies.
and performance of functions
The IGIS has significant powers, broadly comparable to a
Royal Commission, to support the performance of its inquiry functions. These
include powers to obtain information and documents, take evidence and enter
Commonwealth agency premises.
Due to the sensitive nature of the matters and activities into which the IGIS
may inquire, inquiries are required to be conducted in private.
The IGIS must produce reports on its inquiries and provide
them to the relevant agency heads (unless the matter concerns an agency head)
and the responsible ministers.
Summaries of inquiries are generally included in the IGIS’s annual reports, and
unclassified versions of inquiry reports are sometimes published on the IGIS’s
The current IGIS and former holders of the office have recognised the
importance of making public as much of the IGIS’s work as possible within
If an agency head has taken, or proposes to take, action in
response to conclusions or recommendations in an IGIS inquiry report, he or she
must provide details of any such action to the IGIS. If the IGIS does not
consider that adequate and appropriate action has been taken in a reasonable period,
the IGIS may prepare a report on the matter for the responsible minister or the
Secretary of the Department of Defence.
The IGIS has full access to information and records held by
the AIC agencies for the purpose of fulfilling its inspection functions.
The responsible minister must provide the IGIS with copies of any guidelines or
directions issued to ASIO, ASIS, AGO and ASD as soon as practicable.
AIC agencies must provide the IGIS with copies of reports given to a
responsible minister or the Secretary of the Department of Defence if requested
to do so by the IGIS.
AIC agencies must also notify the IGIS of the authorisation and use of particular
powers. For example, copies of emergency warrants or authorisations made by
agency heads (in place of a minister) must be provided, and ASIO must notify
the IGIS of any use of force against a person during the execution of a
warrant, the authorisation of a ‘special intelligence operation’, and matters
relating to its special terrorism powers.
In 2006, the IGIS noted that 60 to 70 per cent of its
resources were devoted to proactive inspection activities and 30 to 40 per cent
to inquiry work.
More recent data on the proportional distribution of resources does not appear
to have been made public.
The IGIS is appointed by the Governor-General, and may be
appointed on a full or part-time basis.
The Prime Minister is required to consult with the Leader of the Opposition
before recommending an appointee to the Governor-General.
The IGIS may be appointed for a period of up to five years, and may be
re-appointed no more than twice.
If a person was appointed to the office of IGIS as a judge and ceases to be a judge,
the Governor-General may terminate the person’s appointment.
Otherwise, the Governor-General may terminate the IGIS’s appointment by reason
of misbehaviour or physical or mental incapacity.
As at 30 June 2017, the IGIS was supported by 15
ongoing public service employees (including an Assistant IGIS), four of whom
The IGIS’s budgeted expenses for 2017–18 amount to A$3.32 million.
Unfortunately, it is not possible to determine the staffing and resources of
the IGIS as a proportion of that of the AIC agencies because such information
is not made available for the three defence intelligence agencies.
While the IGIS’s key functions have remained the same in
recent years, the powers of the AIC agencies, most notably ASIO, have expanded
in that time. So, while the nature of the IGIS’s oversight role has not
changed, the breadth of powers it now oversees (and in the current security
environment, possibly the increased use of some powers) has placed additional
resourcing pressures on the agency. However, the IGIS noted in its Annual
Report 2015–16 that it had received additional funding as part of the
package in the 2014–15 Mid-Year Economic and Fiscal Outlook, and had been
exempted from the efficiency dividend from 2015–16 onwards.
It also stated that this was allowing additional staff to be recruited ‘to
enable the office to continue to provide a comprehensive and effective
Judicial oversight of, or involvement with, the authorisation
of AIC agency powers is limited. Ministerial authorisation is required for
certain activities of ASIS, AGO and ASD, and subject to the exception noted
below, warrants for ASIO’s exercise of powers are issued by the
ASIO has access to special powers in relation to terrorism
offences, under which it may obtain a warrant either to question a person
without detention for a maximum of 24 hours (Questioning Warrants), or to
detain a person for questioning for a maximum of seven continuous days
(Questioning and Detention Warrants).
To apply for such a warrant, the Director-General of ASIO must obtain the
consent of the Attorney-General, and then apply to an ‘issuing authority’ for
the warrant’s issue.
An issuing authority is a current federal magistrate or judge of a federal, state
or territory court who has been appointed by the Attorney-General, though there
is the capacity for the Attorney-General to declare persons in a specified
class to be issuing authorities regardless of their position or expertise.
Once the warrant is granted, the person is brought before a ‘prescribed
authority’—usually a former judge of a state or territory District or Supreme
Court—who oversees and supervises the exercise of power under the warrant.
Importantly, a judge appointed as an issuing authority or
prescribed authority is acting in a personal, not judicial, capacity.
Furthermore, the role played by both is limited. To issue a warrant, an issuing
authority need only be satisfied that there are reasonable grounds for believing
it will substantially assist the collection of intelligence that is important
in relation to a terrorism offence.
He or she does not have to consider whether there may be other effective
methods for collecting the evidence, or, in the case of a Questioning and
Detention Warrant, whether detention is necessary—these are matters considered
by the Attorney-General in consenting to the warrant request.
A judge acting as a prescribed authority can supervise and steer the
questioning process, but these powers are also restricted—for example, a
prescribed authority cannot generally make a direction inconsistent with the
terms of a warrant.
Role of the courts
Decisions made in relation to special terrorism powers
warrants are not subject to merits review, and the ASIO Act expressly
excludes the jurisdiction of state and territory courts while the warrant is in
Decisions under the ASIO Act, the IS Act and other intelligence
legislation are also excluded from the statutory judicial review framework set
out in the Administrative Decisions (Judicial Review) Act 1977.
However, a person may apply to the Federal Court of Australia or High Court of
Australia for judicial review of actions by officers of the Commonwealth to
ensure these actions are carried out within their statutory and constitutional
The only specialised tribunal providing oversight in
relation to intelligence matters is the Security Division of the Administrative
Appeals Tribunal (AAT), which conducts merits review of most categories of
adverse security assessments made by ASIO.
Hearings in this division are conducted in private, and the Attorney-General
may issue a public interest certificate to require sensitive national security
information to be withheld from the applicant.
Judicial review of the process of ASIO making a security assessment is also available
through the Federal Court and High Court.
Immunities and prosecutions
Staff members and agents of ASIS, ASD and AGO have immunity
from civil and criminal liability for activities carried out by the agencies in
the proper performance of their functions, which might otherwise be prohibited
by certain Australian laws.
This immunity can only be overridden by other Commonwealth, state or territory
laws if those laws explicitly provide otherwise.
Similarly, ASIO officers participating in a ‘special intelligence operation’
(SIO) are not subject to civil or criminal liability in relation to conduct
engaged in during the course of, and for the purposes of, the SIO, and in
accordance with the SIO authority. There are exceptions to this immunity for
conduct which causes death or serious injury; constitutes torture; involves the
commission of a sexual offence; or in which the participant induces another
person to commit an offence that the other person would not have intended to
Australian courts have prosecuted intelligence officers, and
other persons who have been entrusted with intelligence information, for
unauthorised disclosures of such information.
The courts have previously ruled as inadmissible
intelligence sought to be admitted in evidence in criminal prosecutions, due to
impropriety in the process of obtaining the intelligence. An example is the
matter of R v Ul-Haque  NSWSC 1251, in which evidence of
admissions made by the defendant in a counter-terrorism prosecution to ASIO and
Australian Federal Police (AFP) officers was excluded by the NSW Supreme Court under
section 138 of the Evidence Act 1995 (which provides for the exclusion
of improperly or illegally obtained evidence) and section 84 (which excludes
evidence of admissions that were influenced by ‘violent, oppressive, inhuman or
In finding the evidence inadmissible, the trial judge was highly critical of
the conduct of ASIO officers in the case, finding them to have ‘assumed
unlawful powers of direction, control and detention’.
The proceedings were subsequently discontinued.
sharing and cooperation between oversight bodies
The functions of the PJCIS and the IGIS are complementary
rather than overlapping, and the PJCIS is prohibited from seeking
‘operationally sensitive information’, meaning the scope for cooperation
between the two is fairly limited. However, some information is shared between
them, mainly from the IGIS to the PJCIS.
As noted above, the PJCIS may request briefings from the
IGIS. The IGIS makes submissions to, and provides evidence at hearings for, the
PJCIS’s reviews of AIC agency administration and expenditure. The IGIS will often
also provide evidence to PJCIS inquiries into legislation that is being
proposed or reviewed which is relevant to the IGIS’s oversight role or the
functions of the AIC agencies more broadly, and to reviews conducted by the
The IGIS’s annual report for 2015–16 describes its cooperation with the AAT and
the Australian Information Commissioner as assisting in ‘enhancing oversight
and promoting good practice in the [AIC] agencies’.
The INSLM may consult with the IGIS when performing
functions relating to Australia’s counter-terrorism and national security
The PJCIS may refer a matter to the INSLM that it becomes aware of in the
course of performing its functions.
developments and reform proposals
of the PJCIS
The PJCIS’s functions have gradually expanded in recent
years, in response to its own recommendations.
However, those changes have largely related to functions other than AIC agency
oversight; in particular, expansion of its legislative review functions and the
inclusion of a new function to monitor and review the AFP’s counter-terrorism
Opposition senator Penny Wong introduced the Parliamentary
Joint Committee on Intelligence and Security Amendment Bill 2015 on
10 August 2015. The Bill lapsed ahead of the 2016 federal election
but was restored to the notice paper on 31 August 2016.
It would amend the composition, functions and powers of the PJCIS.
The Bill would allow the PJCIS to conduct own-motion
inquiries into matters relating to one or more of the AIC agencies, providing
it had first consulted the responsible minister. It would not affect the
existing restrictions preventing the PJCIS from inquiring into operational
As noted above, the PJCIS must currently comprise five senators
and six members of the House of Representatives, have a government majority,
and a government chair. The Bill would retain the requirement for a government
majority, but relax the Senate/House of Representatives ratio so that there
would be one senator and one member of the House of Representatives from each of
the government and the Opposition, with the remaining members able to be drawn
from either House of Parliament. The purpose of this proposed change is to
provide more flexibility to ensure the PJCIS has the most qualified membership.
However, the Bill would not require any cross-bench representation. Australian
Greens senator Nick McKim stated in the second reading debate that the Greens
would move an amendment requiring a senator who is not from the government or
the Opposition to be one of the eleven members of the PJCIS.
Amongst other changes, the Bill would also require the IGIS
to provide the PJCIS with copies of its inquiry reports within three months of
giving them to the Prime Minister or responsible minister, and to add the INSLM
and the National Security Adviser (in the Department of the Prime Minister and
Cabinet) to the list of office-holders from whom the PJCIS can request a
The most recent independent review of the AIC agencies was
completed in June 2017, with a public version of the report released in
The report recommended several changes relating to oversight of Australia’s
The reviewers assessed that ‘the intelligence enterprise
that supports Australia’s national security is no longer limited to the six AIC
agencies’ and considered that a more appropriate frame of reference would be a
‘National Intelligence Community’ comprising the six AIC agencies, the
Australian Criminal Intelligence Commission (ACIC), the Australian Transaction
Reports and Analysis Centre (AUSTRAC), and parts of the AFP and the Department
of Immigration and Border Protection (DIBP).
Accordingly, they recommended that the jurisdiction of both the PJCIS and the
IGIS be expanded to include AUSTRAC in its entirety and the intelligence
functions of the AFP, ACIC and the DIBP.
The reviewers also recommended that the:
- PJCIS be given the ability to request that the IGIS conduct an
inquiry into the legality and propriety of particular operational activities of
any of the ten above-mentioned agencies and report to the PJCIS, the Prime
Minister and the responsible minister (in line with the powers of the New
- PJCIS be given the ability to initiate its own inquiries into the
administration and expenditure of the ten above-mentioned agencies
- PJCIS be empowered to request briefings from the INSLM and refer
matters to the INSLM for report
- IGIS and the Director-General of the proposed Office of National
Intelligence be required to provide regular briefings to the PJCIS and
- IGIS’s resources should be significantly increased from 17 to
around 50 full-time staff.
While not a recommendation of the review, on the same day
the report was released, the Prime Minister also announced the creation of a
new Home Affairs portfolio (modelled broadly on the UK Home Office) that will
bring together Australia’s immigration, border protection, law enforcement and
domestic security agencies under a single portfolio.
A task force led by the Department of the Prime Minister and
Cabinet will consider the recommendations of the independent review and then manage
in tandem the implementation of those that are adopted and the establishment of
the Home Affairs portfolio.
The Government of Canada’s intelligence-related activities
and structures span many organisations, some of which are listed in two
- Schedule 3 of the Security of Canada Information Sharing Act,
which identifies 17 different federal institutions that acquire, analyse and
share information for the purpose of protecting Canada against activities that
undermine its security and
- Canada’s 2013 national counter-terrorism strategy, which lists 21
departments and agencies with counter-terrorism responsibilities.
Given that intelligence is created and consumed for
purposes other than national security, it is likely that these two lists fail
to capture the entire Canadian security and intelligence community.
Canada’s core intelligence collection agencies comprise
- Communications Security Establishment (CSE), which is Canada’s
foreign signals intelligence agency. CSE’s workforce stands at roughly 2,000
Operating as a separate agency under the Department of National Defence (DND),
CSE is mandated under subsection 273.64(1) of the National Defence Act to:
and use information from the global information infrastructure to provide
advice, guidance and services to protect electronic information and information
infrastructure of importance to the Government of Canada and
technical and operational assistance to federal law enforcement and security
agencies in the performance of their lawful duties.
To shield itself from liability under Part
VI of the Criminal Code, which prohibits unauthorised interception of
private communications, CSE seeks authorisation from the Minister of National
Defence to undertake foreign intelligence collection and cyber defence
activities where there is an unavoidable risk of such interception. These
ministerial authorisations have effect for no more than a year and come with a
set of conditions that CSE is expected to satisfy.
- Canadian Security Intelligence Service (CSIS), which provides
intelligence on threats to the security of Canada using primarily, but by no
means exclusively, human sources. With a workforce of over 3,200, CSIS is part
of the Public Safety Canada (PSC) portfolio and is mandated under section 12 of
the Canadian Security Intelligence Service Act (CSIS Act).
To use certain intrusive investigative techniques, CSIS is required under section
21 of the CSIS Act to obtain a warrant from the Federal Court, which has
designated a group of judges to examine CSIS applications in ex parte
(from one party) and in camera (closed) hearings.
In 2015, under two separate bills, the CSIS Act was amended to, among
other things, give the Federal Court jurisdiction to issue warrants enabling
the Service to use intrusive measures on overseas operations and to authorise
CSIS to engage in threat reduction activities.
- Canadian Forces Intelligence Command (CFINTCOM), which uses a
full range of collection methods to provide defence intelligence to the
Canadian Armed Forces and DND.
CFINTCOM receives its direction from the Chief of Defence Intelligence, whose
authority derives from the National Defence Act. Most, but not all, of
CFINTCOM’s intelligence collection targets are foreign and, thus, most of its
collection and information-sharing activities are conducted under Crown
CFINTCOM’s counter-intelligence activities can, however, entail collection of
information on Canadians. At present, DND relies on internal accountability
mechanisms to ensure that CFINTCOM’s counter-intelligence activities are lawful
and comply with departmental policies and regulations. However, some elements
of external accountability may be put in place under proposed legislation that
is discussed below.
- Royal Canadian Mounted Police (RCMP), which, as Canada’s
federal law enforcement agency, is responsible under the Security Offences
Act to conduct criminal investigation of security offences, such as
facilitation of or engagement in terrorism or espionage.
The RCMP—which is also contracted to provide police services in every province
and territory in Canada, save Ontario and Quebec—derives its mandate from the Royal
Canadian Mounted Police Act (RCMP Act).
Its workforce stands at around 6,500.
While the ministers of public safety and national defence
are responsible for activities that take place within their respective
portfolios, the Prime Minister is ultimately accountable to Parliament on
national security matters. The Prime Minister thus chairs the Cabinet Committee
on Intelligence and Emergency Management.
The National Security and Intelligence Advisor to the
Prime Minister (NSIA) serves as the Prime Minister’s eyes and ears on security
and intelligence issues.
The NSIA also coordinates the federal security and intelligence community but
must rely on suasion alone to do so, as he or she is an appointee with no
statutory authority. Assisted by a deputy NSIA, the NSIA oversees the Privy
Council Office’s Intelligence Assessment Secretariat and its Security and
At present, the executive branch relies on three expert
review bodies to investigate complaints and examine the lawfulness of the
activities of Canada’s intelligence and national security agencies (discussed
in greater detail below):
- the Security Intelligence Review Committee (SIRC)
- the Office of the Communications Security Establishment Commissioner
- the Civilian Review and Complaints Commission for the RCMP
Each of these review bodies has been established by
statute. Though each claims independence, all three are required by law to
submit their annual reports to responsible ministers,
and all are subject to executive branch direction or constraint.
Ministers must table unclassified versions of these annual reports in each House
of Parliament during the first 15 days on which that house is sitting after the
day they are received.
None of the intelligence and national security agencies is
required to provide an annual report to Parliament. CSIS does, nonetheless,
prepare public reports. However, the timing of these reports varies, and the
organisation’s most recent report covers a two-year time frame. The content of
these reports has shrunk in size over time and often focuses on broad
The primary parliamentary reporting obligation for federal
departments and agencies takes the form of budget documentation.
Federal organisations request parliamentary approval to spend funds through the
estimates process and outline their funding needs in main and supplementary
estimates. In order to provide parliamentarians with more detailed information
about what they intend to achieve with the resources provided to them,
departments and agencies prepare departmental plans. When the fiscal year is
complete, they explain in departmental performance reports how much was spent
and what was achieved.
However, neither CSIS nor CSE prepare departmental plans
and performance reports. Instead, parliamentarians are provided high-level
financial information, as outlined in main and supplementary estimates. Thus,
other than what they can glean through questioning officials in public committee
hearings, parliamentarians have no information about these agencies’ plans,
activities or results, despite the significant funds being provided to them. When,
during the year through supplementary estimates, these agencies request
additional funds—which can be substantial—little or no explanation is provided.
Without additional information, it is very difficult for parliamentarians to
provide effective financial oversight of these organisations.
On 22 June 2017, Bill C-22, An Act to
establish the National Security and Intelligence Committee of Parliamentarians
and to make consequential amendments to certain Acts (hereafter, the
National Security and Intelligence Committee of Parliamentarians Act or
NSICPA), received Royal Assent.
Having come into force on 6 October 2017, the NSICPA will create
another executive review body—the National Security and Intelligence Committee
of Parliamentarians (NSICOP)—which will report to the Prime Minister. NSICOP
members will have access to classified information, including legal opinions,
but will also be permanently bound to secrecy.
Some have expressed disappointment with the NSICPA,
arguing that by creating a committee of parliamentarians rather than a
parliamentary committee, it will only bring Canada in line with where the UK
was in 2012, when that country’s Intelligence and Security Committee was still
part of the executive branch. In Canada, the notion of a parliamentary review
committee permitted to hear and view classified information has been raised in numerous
commissions of inquiry, starting with the 1969 Mackenzie Commission, which
examined the state of Canada’s security system in the aftermath of a series of
Soviet spy scandals.
Since neither the Senate nor the House of Commons has
committees whose members are authorised to access classified information,
Canada’s legislature is unable to comprehensively review national security and
intelligence activities. Instead, the legislative branch relies on a number of ‘officers
of Parliament’ who can, if necessary, gain access to certain classified
information and facilities relevant to each officer’s mandate. Appointed by
orders in council, these officers undertake statutorily assigned review work
and report their findings to Parliament.
Although officers of Parliament may work at the classified level, the reports
they submit to Parliament and any subsequent parliamentary testimony they
provide must be unclassified.
Neither the Senate nor the House of Commons has
established a standing committee whose sole remit is to examine questions of
national security. Instead, the Standing Senate Committee on National Security
and Defence and the House of Commons Standing Committee on Public Safety and
National Security treat national security issues as part of a broader menu of potential
study topics. Given their respectively broad remits, these two committees
generally address national security matters, including intelligence, in an
The provisions in the NSICPA directing the Senate and the
House of Commons to refer NSICOP annual and special reports to these two
committees for study will mean Parliament pays more routine attention to
national security. However, unless these committees’ mandates are narrowed
down, there are no guarantees that NSICOP reports will be subject to in-depth
examination and debate.
From time to time, special parliamentary committees have
been struck to dive deeper into national security policy. An example of this is
the Special Senate Committee on the Anti-terrorism Act, which was created in
2004 as part of the mandated review of anti-terrorism laws passed in 2001.
However, the committee was dissolved in 2013.
Intelligence Review Committee
SIRC was created in 1984 under the CSIS Act.
SIRC comprises a chair plus not fewer than two and not more than four members.
Committee members are all privy councillors appointed by the Governor in
Council after consultation by the Prime Minister with the leaders of the opposition
parties. SIRC meets approximately nine times a year to set priorities and
review the work of its staff. Under subsection 39(2) of the CSIS Act,
SIRC has unfettered access to all information under the control of CSIS, save
An executive director oversees the day-to-day operations
of SIRC staff. In the 2017–2018 federal budget, SIRC received just under C$1.9
million in ‘strategic funding’ (i.e. temporary funding) until 2019–2020, which
SIRC says it will use to increase to 24.5 its current complement of 13.7 full‑time‑equivalent
staff positions used for lawfulness review work and the investigation of
Since this funding is temporary, SIRC says it is being forced to rely on
short-term staffing options, such as secondments, to fill these positions and
that this is causing the organisation to experience major human resources
Until the position of Inspector General of CSIS was
eliminated in June 2012, the Minister of Public Safety and Emergency
Preparedness, CSIS’s responsible minister, relied on the incumbent to provide
annual certification that the Service’s operations and activities adhered to
the minister’s policies and directives. SIRC has now assumed the Inspector
Excluding non-permanent funds, SIRC’s total annual budget
now stands at around C$2.8 million.
By contrast, CSIS’s annual budget is approximately C$577 million.
the CSE Commissioner
OCSEC was created in June 1996 under an order in council.
Until the National Defence Act was amended in 2001 to codify CSE and
OCSEC authorities and duties, both CSE and OCSEC operated under orders in
OCSEC is headed by a supernumerary judge who is appointed
by the Governor in Council and mandated under subsection 273.63(2) of the National
Defence Act to investigate and respond to public complaints and to review
CSE activities for lawfulness. If the CSE Commissioner believes CSE has engaged
in unlawful activities, he or she must immediately inform the Minister of
National Defence and the Attorney-General of Canada. Drawing from authorities
provided under Part II of the Inquiries Act, the CSE Commissioner has
unfettered access to CSE information—with the exception of Cabinet confidences—facilities
and staff. Under subsection 273.65(8) of the National Defence Act, the
CSE Commissioner must review CSE activities carried out under ministerial
authorisation and confirm, in an annual report to the Minister of National
Defence, whether these activities were authorised.
Subsection 273.63(3) of the National Defence Act
The Commissioner shall, within 90 days after the end of each
fiscal year, submit an annual report to the Minister on the Commissioner’s
activities and findings, and the Minister shall cause a copy of the report to
be laid before each House of Parliament on any of the first 15 days on which
that House is sitting after the Minister receives the report.
The CSE Commissioner serves in a part-time basis only but
is supported by a small full-time staff of 11.5 (including the executive
director), of which 8.5 full-time equivalent positions are held by the subject
matter experts who conduct review work.
Total annual funding for OCSEC stands at C$2.1 million, of which C$1.6 million
is used for review work. In its 2017–2018 departmental plan, OCSEC indicated
that it intends to request additional permanent funding to hire one additional
review staff member and modernise its ‘technology assets’.
By contrast, CSE’s total annual budget stands at C$596 million.
Review and Complaints Commission for the RCMP
The CRCC was created in 2014 through legislation amending
the RCMP Act.
Under this Act, the CRCC is mandated to review complaints made by the public
about the on-duty conduct of RCMP members. It also has authority to initiate
public interest reviews of RCMP activities but must provide a rationale to the
Minister of Public Safety and Emergency Preparedness prior to doing so.
The CRCC has 67 full-time-equivalent employees, of which 45 are used to conduct
investigations. Its total annual budget stands at just under C$10 million, with
C$7.3 million of this total being used for review activities.
By contrast, the RCMP’s total annual budget stands at roughly C$3.4 billion.
Canada’s national security and intelligence agencies are
subject to oversight by several officers of Parliament. As a result, the
committees that consider the reports of these officers may also examine the
activities of national security and intelligence agencies. For example, the House
of Commons Standing Public Accounts Committee examines the reports of the
Auditor General of Canada who, from time to time, investigates the management
of national security programs.
Similarly, the House of Commons Standing Committee on
Access to Information, Privacy and Ethics (ETHI) examines the reports of the
Privacy Commissioner of Canada and the Information Commissioner of Canada,
whose work increasingly implicates national security and intelligence agencies,
all of which are subject to the Privacy Act and the Access to
Information Act. In connection with its recent study of the aforementioned Security
of Canada Information Sharing Act, ETHI has also taken testimony directly
from implicated departments and agencies, as well as from the three expert
While spreading parliamentary review of national security
and intelligence activities over multiple committees has the benefit of
bringing many ‘fresh eyes’ to examine issues, it also has the downside of
reducing the ability of individual parliamentarians to build subject matter
expertise. Examining the national security enterprise at an
unclassified level and through a narrow lens has challenged the ability of
parliamentarians to study its issues in a truly comprehensive fashion.
Only by formulating policy issues within a strategic
construct—for example, identifying Canada’s intelligence priorities and then
routinely addressing the question of how well national capabilities align with
this need—can these committees develop the necessary insights and expertise to
hold national security and intelligence agencies to account.
However, the Standing Senate Committee on National
Security and Defence and the House of Commons Standing Committee on Public
Safety and National Security have the potential to develop expertise because
they are specifically mandated to examine national security matters. These two
committees are considered below.
Senate Committee on National Security and Defence (SECD)
The Senate created SECD on 15 March 2001, mandating it
to examine ‘matters relating to national defence and security generally,
including veterans affairs’.
Prior to this time, the Senate had only examined national security and
intelligence issues in the context of special committees, such as the Senate
Committee on Intelligence, which convened in 1987, 1988 and then again in 1999
to examine anti-terrorism activities. The Senate Committee on Intelligence was
notable in that its chair attempted to elicit candid responses from agency
officials by taking their testimony in camera.
Though SECD’s specific orders of reference can change from
session to session, this committee has interpreted its broad mandate as
permitting examination of: DND/Canadian Armed Forces and PSC capabilities;
working relationships between various agencies involved in intelligence-gathering
and analysis; intelligence agency review mechanisms; and the security of
borders and critical infrastructure.
SECD works at the unclassified level. Under Rule 12-9-2 of
The Rules of the Senate, SECD is empowered to send for persons, papers
Commons Standing Committee on Public Safety and National Security (SECU)
Until SECU was created by the passing of a motion amending
the House of Commons Standing Orders on 5 April 2006, issues involving
public safety and national security had been referred to the then House of
Commons Standing Committee on Justice, Human Rights, Public Safety and
Emergency Preparedness, or its subcommittees. As per Standing Order 104 of the Standing
Orders of the House of Commons, SECU comprises ten members.
At present, six SECU members, including the chair, come from the governing
party—the Liberal Party of Canada—and four come from the two opposing parties
(three from the Conservative Party of Canada and one from the New Democratic
Party of Canada). SECU’s chair and two vice-chairs (one from each opposition
party) are elected by committee members.
Standing Order 108 mandates standing committees and
empowers them to examine and inquire into all matters referred to them by the
House of Commons and to report to the House.
As a standing committee, SECU is authorised to send for persons, papers and
records, and to delegate all or any of its powers to subcommittees. It may meet
while the House of Commons is in session and during adjournment periods. SECU
can also sit jointly with other standing committees.
Working at the unclassified level, SECU is mandated to
examine the policies and activities of one of the largest departmental portfolios—Public
Safety Canada (PSC)—including the close to 140 statutes this department and its
agencies administer. Specifically, SECU is mandated to examine the policies,
programs and statutes of PSC, Canada Border Services Agency, CSIS, Correctional
Service Canada, Parole Board of Canada, RCMP, SIRC, CRCC, Office of the
Correctional Investigator, and the RCMP External Review Committee.
Thus, and as alluded to above, SECU examines national
security issues, but only as part of a broader menu of items that includes
matters related to criminal law, corrections and conditional release of federal
offenders, border security, policing and law enforcement, crime prevention and
SECU recently examined and reported on the National
Security and Intelligence Committee of Parliamentarians Act (NSICPA) and on
the government’s consultation paper on national security. Under the House of
Commons Standing Orders, if a committee chair requests a response to a report,
the government is required to provide one within 120 days of the report being
developments and reform proposals
Security and Intelligence Committee of Parliamentarians
As noted above, on 22 June 2017, Canada’s Parliament passed the
NSICPA, under which a National Security and Intelligence Committee of
Parliamentarians (NSICOP) will be created to examine national security and
intelligence issues. Subsection 8(1) mandates the NSICOP to review:
a) the legislative, regulatory, policy, administrative
and financial framework for national security and intelligence;
(b) any activity carried out by a department that
relates to national security or intelligence, unless the activity is an ongoing
operation and the appropriate Minister determines that the review would be
injurious to national security; and
(c) any matter relating to national security or
intelligence that a minister of the Crown refers to the Committee.
Under the new legislation, after consultation with
specified leaders in the Senate and the House of Commons, NSICOP members will
be selected by and report to the Prime Minister. On 8 January 2016, six months
before the legislation was tabled in the House of Commons, the Prime Minister
appointed Member of Parliament David McGuinty to take a ‘leadership position’
on the committee and permitted national security and intelligence agencies to
brief Mr McGuinty on issues of concern.
As a condition of their participation in the NSICOP, all members will be
permanently bound to secrecy. Because the NSICOP will not be a parliamentary
committee, its members will not enjoy parliamentary privilege, including with
respect to any unauthorised disclosures they might make during the course of
their other work in Parliament.
The eleven-member NSICOP will comprise currently-serving
parliamentarians who are not serving ministers or parliamentary secretaries. Up
to three members of the committee could come from the Senate, with up to five
of the remaining eight members coming from the governing party in the House of
Commons. The chair will only be permitted to vote in the event of a tie.
In many respects, the scope of the NSICOP’s remit will be
determined by its ability to access required information. For example, the
original text of the legislation would have effectively eliminated the NSICOP’s
ability to examine defence intelligence activities by prohibiting access to ‘information
pertaining to ongoing defence intelligence activities supporting ongoing
military operations, including the nature and content of plans in support of
these military operations’. This language was removed from the legislation, as
was language that would have prohibited any form of direct scrutiny of the
Financial Transactions and Reports Analysis Centre (FINTRAC), Canada’s
financial intelligence agency. The Act enables the NSICOP to access FINTRAC
strategic analyses or any other information FINTRAC has not disclosed and that
does not reveal the identities of individuals or entities.
Under the NSICPA, committee members will be automatically
denied access to Cabinet confidences, information that provides the names of
current or intended confidential human sources, and information pertaining to
an ongoing law enforcement investigation that may lead to a prosecution. Significant
constraints will also be placed on the committee’s access to certain types of
information, particularly special operational information. However, if a
minister were to invoke the provision to deny the NSICOP access to information
to which it would otherwise be entitled and which is under the control of a
department (section 16), he or she will have to inform the committee of
this decision and provide reasons for it. In instances where the denied
information is controlled by CSIS, CSE or the RCMP, the appropriate minister
will also be required to inform the agency’s expert review body and provide
reasons for his or her decision. This is meant to ensure that the NSICOP cannot
circumvent the minister’s denial of access by approaching any of the expert
review bodies. The NSICPA seeks to limit ministers’ use of this authority by
requiring the NSICOP to provide in its annual reports a tally of access denial
decisions made under section 16.
Focusing primarily on questions of efficacy, the NSICOP
will examine the policies, administration and activities of the national
security and intelligence community as a whole. Generally, its reviews of
national security activities would be ex post (after the fact), but the NSICPA
holds out the possibility that a minister might permit examination of ongoing
The NSICOP will be supported by a small secretariat
staffed and run by an appointed executive director who will have deputy
Very little public information is available on the expected resourcing of the
NSICOP’s secretariat. However, based on a table included in the annex of the
federal government’s Fall 2016 Economic Statement, it appears that the
secretariat will have an annual budget of around C$3.2 million, enough to
pay the salaries of the executive director, internal services staff, and three
or four research staff.
The adoption of the NSICPA is just one in a series
of recent changes to the authorities and governance framework of the Canadian
security and intelligence community. Some of the more controversial changes
took place under Bill C-51—an omnibus anti-terrorism law passed in June 2015
that provided new ‘threat reduction’ authorities to CSIS, enhanced the Public
Safety minister’s ability to deny disclosure of national security information used
in security certificates issued under Division 9 of the Immigration and
Refugee Protection Act, and greatly expanded information-sharing among
departments and agencies with national security responsibilities.
The current government, which came to power in October 2015, campaigned on a
pledge to roll back ‘problematic’ provisions of Bill C-51, which it aims to do
through the 20 June 2017 tabling of Bill C-59, An Act respecting national
If enacted, Bill C-59 will introduce profound changes to
the bodies that currently scrutinise national security and intelligence
agencies. For example, Bill C-59 would effectively consolidate OCSEC and SIRC
into a single body, the National Security and Intelligence Review Agency
(NSIRA). The CRCC would continue to exist, but all of its national
security-related work would be transferred to the NSIRA. Beyond reviewing the
activities of CSIS and CSE, the NSIRA would be required (under clause 8)
to review ‘any matter that relates to national security or intelligence that a
minister of the Crown refers to the Agency’. This means that the scope of the
NSIRA’s remit would mirror that of the NSICOP. Finally, the NSIRA would be
mandated not only to examine the lawfulness of national security and
intelligence activities but also their reasonableness and necessity, thus
creating an additional mechanism to trigger legislative and regulatory change.
Bill C-59 would also create an Intelligence Commissioner,
a retired judge who would be mandated to examine the reasonableness of conclusions
leading to ministerial authorisations for certain types of CSE activities and ministerial
determinations regarding CSIS’s collection, retention, querying and
exploitation of datasets. Unlike the NSIRA, which would be a review body, the
Intelligence Commissioner would have an oversight role, putting a stop to or
amending planned activities before they happen.
At the same time, Bill C-59 would grant significant new
powers to Canada’s intelligence agencies. For example, the CSIS Act
would be amended to create a regime enabling CSIS to collect and use datasets
on Canadians, so long as these datasets were ‘relevant’ to the performance of
CSIS duties. These amendments to the CSIS Act appear to respond to a
2016 Federal Court decision in which CSIS was reprimanded for having failed in
its duty of candour to the Court regarding its practice of collecting and
retaining metadata on Canadians not under investigation.
CSE would also gain significant new powers. Under Bill
C-59’s proposed enabling mandate, the Communications Security Establishment
Act, CSE will be permitted to engage in ‘active cyber operations’ targeting
foreign individuals, states, organisations or terrorist groups. CSE would also
be empowered to provide technical and operational support to offensive cyber
operations conducted in the context of military missions. Heretofore, Canada’s
military has not been permitted to engage in cyber operations of this nature.
Finally, CSE would also be authorised to provide advice
and services to protect critical information infrastructure, including
infrastructure owned and operated by the private sector and systems and
networks used by parliamentarians and the federal courts.
New Zealand has two intelligence and security agencies. The
New Zealand Security Intelligence Service (NZSIS) specialises in human
intelligence activities. The Government Communications Security Bureau (GCSB)
specialises in signals intelligence and information assurance and cybersecurity
The functions of each agency are to:
- collect and analyse intelligence in accordance with the
- provide any intelligence collected and analysis of it to the minister
responsible for the agency (the responsible minister), the Chief Executive of
the Department of the Prime Minister and Cabinet and any other persons (whether
in New Zealand or overseas) authorised by the responsible minister
- provide protective security services, advice and assistance to
public authorities and other authorised persons (whether in New Zealand or
- provide, in the case of the GCSB, information assurance and
cybersecurity activities to public authorities and other authorised persons
(whether in New Zealand or overseas), and to do everything necessary or
desirable to protect the security and integrity of communications and
information infrastructures of importance to the Government
- cooperate with the other intelligence and security agency, and to
cooperate with, and provide advice and assistance to, the New Zealand Police
and the New Zealand Defence Force and
- cooperate with, and provide advice and assistance to, any entity
that is responding to an imminent threat to the life or safety of:
person in New Zealand
New Zealand citizen or permanent resident who is overseas
person in an area in respect of which New Zealand has search and rescue
responsibilities under international law or
person outside the territorial jurisdiction of any country.
The agencies must act in accordance with New Zealand law and
in a manner that facilitates democratic oversight.
In addition to the NZSIS and the GCSB, the third core agency
of the New Zealand Intelligence Community is the National Assessments Bureau
within the Department of the Prime Minister and Cabinet. The New Zealand
Defence Force also has intelligence capabilities and a range of other
government departments and agencies, notably New Zealand Police, the New
Zealand Customs Service and Immigration New Zealand, have intelligence units.
The Intelligence and Security Act 2017 received Royal
Assent on 28 March 2017. The Act, which replaces the four acts that previously
applied to the intelligence and security agencies and their oversight bodies,
implements the Government’s response to the recent independent review of intelligence
An amendment to the New Zealand Security Intelligence
Committee Act 1996 in 2013 introduced a requirement for a review of the
intelligence and security agencies to be carried out every five to seven years. The
report of the first periodic review to be undertaken was published in February
Among the review’s terms of reference was a requirement to determine whether
the current oversight arrangements provided sufficient safeguards at an
operational, judicial and political level to ensure the agencies acted lawfully
and maintained public confidence.
The review proposed that the intelligence and security
agencies, their oversight bodies and potentially also intelligence assessment
should be covered by a single piece of legislation. The legislation would
include a new comprehensive authorisation regime requiring some level of
authorisation for all of the agencies’ intelligence and security activities
that involve gathering information about individuals or organisations,
proportionate to the level of intrusion involved. It would also make some
changes to facilitate greater oversight of the agencies and accountability for
Among the review’s recommendations relating to oversight
the agencies should be integrated within the public sector; they
should be subject to the State Sector Act 1988, with any appropriate
exceptions and exemptions
- higher levels of scrutiny should apply to authorisations of
agency activities that are more intrusive or target New Zealanders
the Inspector-General of Intelligence and Security (IGIS) should
be appointed by the Governor-General on the recommendation of the House of
Representatives, rather than on the Prime Minister’s recommendation
- the Office of the IGIS should be funded through an appropriation
separate from that of the agencies
- the functions and powers of the IGIS should be enhanced:
category of people able to make a complaint should be broadened to include
review of authorisations should not just relate to procedural matters but
should include a comprehensive look behind the face of the authorisation.
restriction on inquiring into operationally sensitive matters should be removed.
- the maximum size of the Intelligence and Security Committee
should be increased to allow for greater flexibility in representation
- the Committee should be able to elect its own chairperson, who
would not necessarily be the Prime Minister and
- the Committee should be able to request, but not require, the
IGIS to carry out an inquiry, including into operationally sensitive matters.
The Intelligence and Security Act 2017 adopted most,
but not all, of the review’s recommendations.
Some sections of the Act came into force on 1 April 2017. The
remainder of the Act came into force on 28 September 2017.
The intelligence and security agencies operate within a
framework of executive, parliamentary, independent and judicial oversight. The
Prime Minister, as Minister for National Security and Intelligence, is responsible
for leading the national security system. The responsible minister for each
agency exercises ministerial oversight within the framework set by the Prime
A responsible minister has sole responsibility for issuing some intelligence
warrants and joint responsibility with a Commissioner of Intelligence Warrants,
who is a former judge, for issuing others. Parliamentary scrutiny of the
agencies’ policies, administration and expenditure is undertaken by the
Intelligence and Security Committee (ISC). The IGIS provides independent
oversight of the agencies to ensure that they act with propriety and operate
lawfully and effectively.
The NZSIS and the GCSB are departments of State. Their
Directors-General are appointed, have their performance reviewed, and may be
dismissed by the State Services Commissioner in accordance with the State
Sector Act 1988.
Each agency must present to its responsible minister an annual report
containing the information required of departments by the Public Finance Act
1989 and the additional information on its activities required by the Intelligence
and Security Act 2017. The minister must give a copy of the report to the
ISC, and also present a copy, from which some information may be excluded, to
Parliament. The report presented to Parliament must be published on the
agency’s internet site.
and Security Committee
The Intelligence and Security Committee was established by
the Intelligence and Security Committee Act 1996. Previously,
parliamentary scrutiny of the intelligence and security agencies had been
undertaken by the Government Administration select committee. The intention in
establishing a statutory committee was to increase parliamentary oversight of
the agencies while remaining sensitive to considerations of national security. Parliament
has retained its power to inquire into the agencies, but it is the House’s
practice to make a sessional order for each Parliament that no select committee
can examine an intelligence and security agency.
The Intelligence and Security Act 2017 increases the
interaction between the ISC and the IGIS. The ISC is now able to request the
IGIS to conduct an inquiry into the agencies’ compliance with the law or the
propriety of their activities. It also now considers and discusses with the
IGIS his or her annual report.
The functions of the ISC are to:
- examine the intelligence and security agencies’ policies,
administration and expenditure
- receive and consider the agencies’ annual reports
- conduct, following receipt of each agency’s annual report, an
annual review of the agency for the immediately preceding financial year
- consider any Bill, petition or other matter in relation to an
agency, referred to it by the House
- request the IGIS to conduct an inquiry into:
matter relating to an agency’s compliance with New Zealand law, including human
rights law and
propriety of particular activities of an agency.
- consider any matter, which is not directly related to an agency’s
activities, that is referred to it by the Prime Minister because of the
matter’s intelligence or security implications and
- consider and discuss with the IGIS his or her annual report.
The ISC’s functions do not include:
- inquiring into any matter within the jurisdiction of the IGIS
- inquiring into any matter that is operationally sensitive,
including any matter that relates to intelligence collection and production
methods, or sources of information or
inquiring into complaints by individuals concerning the
activities of an agency that are capable of being resolved under any other
A review of the intelligence and security agencies must be
conducted every five to seven years. Before the Prime Minister appoints the
reviewers or specifies the terms of reference, he or she must consult the ISC. On
completion of their report the reviewers must provide it to the ISC which,
having considered the report and excluded any information that cannot be
disclosed, will present it to the House.
Powers and performance of functions
The Director-General of an intelligence and security agency
must appear before the ISC if requested by it to do so. The ISC may request any
other person to attend and give evidence before it, or to produce any document
or other information that is relevant to its proceedings.
Anyone asked by the ISC to disclose to it any document or
other information in his or her possession must either do so, or inform the ISC
that the document or information cannot be disclosed because the Director-General
of the relevant agency considers it to be sensitive information, as defined by
the Intelligence and Security Act 2017. The disclosure of sensitive
information is not precluded in cases where the Director-General of the
relevant agency considers disclosure to be safe. Sensitive documents or
information must be disclosed to the ISC if the Prime Minister considers that
disclosure is desirable in the public interest.
The ISC’s proceedings are proceedings in Parliament for the
purposes of Article 9 of the Bill of Rights 1688 and the Parliamentary
Privilege Act 2014. The ISC’s meetings must be convened by the chairperson.
Proceedings must be conducted in accordance with the rules and practice of the
House of Representatives. The ISC meets in private unless it is conducting an
annual financial review, or unless it unanimously resolves otherwise.
The ISC must, having regard generally to security
requirements, present an annual report on its activities to Parliament. The
House may require the ISC to provide it with a copy of any or all records,
including reports, evidence and advice to the ISC, that are held by the ISC in
relation to the performance of the first four of its functions as set out
above. Before providing a copy of any record to the House, the ISC must remove
any information that it is restricted from disclosing to the House.
The ISC must not disclose in a report to Parliament:
- any information that, if publicly disclosed, would be likely to
prejudice the entrusting of information to the Government of New Zealand on a basis
the government of any other country or any agency of such a government or
an international organisation.
- any information that, if publicly disclosed, would be likely to
endanger the safety of any person or
- any sensitive information disclosed to the ISC.
Unless it considers that there are compelling reasons in the
public interest to do so, the ISC must not disclose in a report to Parliament:
- the identity of any person who is or has been an officer,
employee or agent of an intelligence and security agency, other than the
Director-General, or any information from which the identity of such a person
could reasonably be inferred or
- any information that, if publicly disclosed, would be likely to:
an agency’s continued performance of its functions or
the security or defence of New Zealand or the international relations of the
Government of New Zealand.
Composition and appointment
The ISC must comprise between five and seven members—the
number is determined by the Prime Minister in consultation with the Leader of
the Opposition. The membership of the ISC must comprise:
- the Prime Minister
- the Leader of the Opposition
- members of Parliament nominated by the Leader of the Opposition,
with the agreement of the Prime Minister, after consultation with the leader of
each party that is not in government or in coalition with a Government party
- members of Parliament nominated by the Prime Minister after
consultation with the leader of each party in government.
If the ISC has five members, one member must be nominated by
the Leader of the Opposition and two by the Prime Minister. If it has six or
seven members, two members must be nominated by the Leader of the Opposition
and the balance by the Prime Minister. In making their nominations the Leader
of the Opposition and the Prime Minister must have regard to security
requirements and the proportional representation of political parties in
Parliament. When performing the ISC’s functions, a member of the ISC acts in
his or her official capacity as a member of Parliament.
The names of nominees must be presented by the Prime
Minister to the House for its endorsement. If the House declines to endorse a
nomination, the Prime Minister must present the name of another member,
nominated by the Leader of the Opposition or the Prime Minister as the case
requires, for endorsement.
The ISC is chaired by the Prime Minister, or another member
of the ISC from time to time appointed by the Prime Minister.
The ISC is assisted in the conduct of its business by
officers appointed by the Chief Executive of the Department of the Prime
Minister and Cabinet with the ISC’s concurrence.
of Intelligence and Security
The Inspector-General of Intelligence and Security is an
independent statutory office. It is not subject to general direction from a minister
responsible for an intelligence and security agency, the Prime Minister or
other ministers on how its responsibilities should be carried out. The IGIS
oversees the NZSIS and the GCSB. The exercise by other agencies (e.g. the
National Assessments Bureau, the intelligence services of the New Zealand
Defence Force, and the intelligence units of Immigration New Zealand, the New
Zealand Customs Service and the New Zealand Police) of their intelligence and
security functions does not fall within the IGIS’s jurisdiction.
The office of Inspector-General of Intelligence and Security
was established by the Inspector-General of Intelligence and Security
Act 1996. The new office replaced the office of Commissioner of Security
Appeals, whose function had been to inquire into complaints regarding the
NZSIS. The jurisdiction of the new office was extended to cover the GCSB and
the conduct of inquiries and reviews became part of its functions. Until 2013
the office was required to be held by a former High Court judge, who carried
out the role on a part-time basis.
Changes were made in 2013 to strengthen the IGIS’s role. Provision
was made for the appointment of a Deputy Inspector-General of Intelligence and
Security and staffing was increased. An advisory panel was established to
provide advice to the IGIS, who no longer had to be a former judge. The Intelligence
and Security Act 2017 removes the restriction on inquiries by the IGIS into
operationally sensitive matters and clarifies that he or she may review
warrants on substantive as well as procedural grounds.
The functions of the IGIS are to:
- conduct, at the request of the responsible minister, or the ISC,
or on the IGIS’s own initiative, an inquiry into:
matter relating to an intelligence and security agency’s compliance with New
Zealand law, including human rights law or
matter where it appears that a New Zealand person has been or may be adversely
affected by an act, omission, practice, policy or procedure of an agency.
- conduct, at the request of the Prime Minister, the responsible minister,
or the ISC, or on the IGIS’s own initiative, an inquiry into the propriety of
particular activities of an agency
- deal with complaints about an agency made by:
New Zealand person
employee, or former employee, of an agency, if all established internal
remedies have been exhausted or the Director-General of the relevant agency
agrees in writing or
Speaker of the House of Representatives on behalf of one or more members of
- conduct reviews, at least annually, and unscheduled audits of the
effectiveness and appropriateness of:
agency’s procedures for ensuring compliance with the Intelligence and
Security Act 2017 in relation to the issue and execution of an
agency’s compliance systems for operational activities.
- conduct, on the IGIS’s own initiative, a review of any activity
carried out by an agency in performance of its function to cooperate with an
entity that is responding to an imminent threat to life or safety
- conduct a review in relation to either or both the issue of an
authorisation and the carrying out of an authorised activity
- conduct reviews in relation to permissions granted to permit
access to restricted information, and in relation to approvals to obtain
business records from telecommunications network operators and financial
service providers and
- prepare, publish, and undertake an annual work program.
Powers and performance of functions
In undertaking an inquiry, the IGIS has the power to:
- summon and examine on oath any person whom the IGIS considers is
able to give relevant information
- require any person to provide any information, and any documents
or things in the possession of or under the control of that person, that the
IGIS considers may be relevant and
- enter, at any reasonable time and after giving prior notice to
the agency’s Director-General, any premises or place occupied or used by an
intelligence and security agency.
In conducting any inquiry or review, the IGIS must take into
account any relevant ministerial policy statement providing guidance to the
agency, and the extent to which the agency has had regard to that statement.
On completion of an inquiry, the IGIS prepares a report
containing his or her conclusions and recommendations. If the inquiry concerned
a complaint, the report may include recommendations for redressing the
complaint, including the payment of compensation.
The IGIS must send the report to both the responsible minister
and the Director-General of the agency to which the inquiry relates. The report
must also be sent to the Prime Minister if the inquiry was conducted at the
Prime Minister’s request, or to the ISC if the inquiry was conducted at its
The IGIS may also send a report of an inquiry to the ISC if:
- the inquiry was conducted on the IGIS’s own initiative, or at the
request of the responsible minister, and the responsible minister agrees or
- the inquiry was conducted at the request of the Prime Minister,
and the Prime Minister agrees.
The responsible minister must provide his or her response to
the report to the IGIS and the Director-General of the agency concerned. If the
inquiry was conducted at the request of the ISC, the minister must also provide
the response to the ISC, and may do so if the inquiry was not conducted at the
In the case of an inquiry conducted in relation to a
complaint, the IGIS must advise the complainant of his or her conclusions in
terms that will not prejudice New Zealand’s security or defence, or the
international relations of the Government.
A report of an inquiry must also be published on the IGIS’s
internet site. Restrictions apply to the disclosure of certain information.
The IGIS must report annually to each responsible minister
and to the Prime Minister on his or her operations. The Prime Minister must
present the report to Parliament, together with a statement as to whether any
matter has been excluded from it. The Prime Minister must also present the
Leader of the Opposition with a copy of the report as it was received from the
IGIS. The IGIS must publish the report, as presented to Parliament, on the
internet. The IGIS may at any time, with the agreement of the Prime Minister,
report either generally or in respect of any particular matter to the ISC.
The IGIS is appointed by the Governor-General on the
recommendation of the House of Representatives. Before a recommendation may be
made, the Prime Minister must consult the ISC about the proposed appointment
and advise the House on the outcome of the consultation. The IGIS is appointed
for a term of up to five years, and may be reappointed for a further term of up
to three years.
The IGIS may be removed or suspended from office by the
Governor-General, on an address from the House of Representatives, for
incapacity, bankruptcy, neglect of duty, misconduct, or failure to hold the
appropriate security clearance.
As at June 2016, the Office of the IGIS comprised the
Inspector-General, the Deputy Inspector-General and six staff, including four
The total budgeted expenditure for 2015–16 was NZ$1.5m, approximately
one per cent of the budgeted estimates for the NZSIS and the GCSB.
of Intelligence Warrants
Applications for the issue of an intelligence warrant must
be made by the Director-General of the agency concerned to the authorising minister,
who is the agency’s responsible minister, in the case of a Type 2 warrant, and
to the authorising minister and a Commissioner of Intelligence Warrants in the
case of a Type 1 warrant.
A Type 1 warrant authorises an agency to carry out an
otherwise unlawful activity for the purpose of collecting information about, or
to do any other thing directly in relation to, a New Zealand citizen or
permanent resident. A Type 2 warrant authorises an agency to carry out an
otherwise unlawful activity for the purpose of collecting information, or to do
any other thing, in circumstances where a Type 1 warrant is not required.
Up to three Commissioners of Intelligence Warrants, one of
whom is the Chief Commissioner, are appointed by the Governor-General on the
recommendation of the Prime Minister. Before making a recommendation, the Prime
Minister must have consulted the Leader of the Opposition about the proposed
appointment. A Commissioner of Intelligence Warrants must have previously held
office as a judge of the High Court.
The Commissioners’ functions are to:
- advise, and to consider and deliberate with, the responsible minister
on applications for Type 1 intelligence warrants
- issue Type 1 warrants jointly with the minister
- consider with the minister applications for permission to access
restricted information, i.e. driver’s licence photographs and information
relating to tax, an adoption and tertiary students’ national student numbers
- consider with the minister applications for approval to obtain
business records from telecommunications network operators and financial
- conduct a review when notified by the Director-General of the
GCSB that a significant network security risk relating to public
telecommunications networks exists or may arise and
- conduct reviews of ministerial decisions to refuse to issue, or
to cancel or retain possession of, a New Zealand passport or travel document.
An authorising minister may, if satisfied that a situation
is urgent and it is necessary to do so, issue a Type 1 warrant without a
Commissioner’s involvement. Such a warrant will expire after 48 hours unless an
application has been made for a warrant via the normal procedures and the
authorising minister and a Commissioner confirm the urgent intelligence
warrant. On issuing an urgent intelligence warrant, the authorising minister
must immediately notify the Chief Commissioner of Intelligence Warrants, who
may revoke the warrant at any time up to the end of the 48-hour expiry period.
Overview of intelligence
The United Kingdom has three intelligence and security
services, collectively known as ‘the Agencies’:
- the Secret Intelligence
Service (SIS, often called MI6), which collects secret
- the Security Service (often called MI5), which is responsible for protecting the UK
against covertly organised threats to national security and
- Government Communications Headquarters (GCHQ), which gathers intelligence through the interception of
In addition to the dedicated intelligence agencies, other
elements of the UK’s national intelligence machinery are contained within
specific government departments:
- Defence Intelligence, an integral part of the Ministry of Defence,
provides intelligence products, assessments and advice to guide decisions on
policy and the commitment of the armed forces; to inform defence research and
equipment; and to support military operations.
- The National Security Secretariat, based at the Cabinet Office, supports
the National Security Council (NSC), providing coordination on security and
intelligence issues of strategic importance across government. The NSC is the
main forum for the collective discussion of the Government’s objectives for
national security. The Prime Minister is advised by the head of the NSC
secretariat, the National Security Adviser.
- The Joint Intelligence Committee (JIC), which is supported by the
Joint Intelligence Organisation, is also part of the Cabinet Office. The JIC
assesses raw intelligence gathered by the agencies and presents it to ministers
to enable policymaking.
- The Office of Security and Counter-Terrorism is a unit within the
- The Joint Terrorism Analysis Centre (JTAC) is an organisation
comprised of representatives from 16 government departments and agencies,
housed at MI5’s headquarters. JTAC analyses and assesses all intelligence
relating to international terrorism. It sets threat levels and issues warnings
of threats and other terrorist-related subjects, as well as producing in-depth
reports on trends, terrorist networks and capabilities. It brings together
information from the police and government departments and agencies so that it
is analysed and processed on a shared basis.
Within government, the Prime Minister has overall responsibility
for security matters. The Home Secretary has specific responsibility for the
Security Service; the Foreign and Commonwealth Secretary for SIS and GCHQ; and
the Defence Secretary for the Defence Intelligence staff. To the extent that
the ministers responsible for the various intelligence services are accountable
to Parliament, there has always been some degree of parliamentary oversight of
The day-to-day operations of the Agencies are overseen by
their respective Heads, each of whom has a statutory duty to provide annual
reports to the Prime Minister and respective Secretary of State.
The Agencies’ accounts are subject to audit by the National
Audit Office. They are also shown to the Chair of the Public Accounts Committee.
The accounts are not published, for reasons of national security. However, an
annual Financial Statement is published covering the Single Intelligence
Account, the funding vehicle for the Agencies.
Services Act 1994 (ISA) put the SIS and GCHQ on a
statutory footing and established the Intelligence and
Security Committee (ISC). The members of the ISC
are nominated by the Prime Minister and appointed by Parliament, to which the
ISC reports. The ISC’s function is to examine the expenditure, administration,
policy and operations of the UK’s three main intelligence and security
agencies. To this end its members take evidence from Cabinet ministers and
senior officials which is used to formulate committee reports. ISC members are
subject to paragraph 1(1)(b) of the Official Secrets
Act 1989 and have access to highly classified
material in carrying out their duties.
The Justice and
Security Act 2013 reformed the ISC, making it a
Committee of Parliament.
It gave the ISC greater powers and widened its remit. Originally set up to
cover MI5, MI6 and GCHQ, the ISC now also takes an interest in the work of
Defence Intelligence and the JIC, as well as law enforcement agencies (police
and Customs & Excise).
In addition to general ministerial responsibility for the
Agencies, the executive plays a specific role in the grant of warrants for
activities such as interception and equipment interference.
It is argued that this is necessary because ministers are accountable for their
decisions, both to Parliament and the public, and because the grant of warrants
involves the exercise of political judgement in sensitive matters of national
security and foreign policy.
The Investigatory Powers Commissioner (IPC) provides
independent oversight of the use of intrusive powers by the Agencies. The
Commissioner makes an annual report to the Prime Minister, which is then
published and laid before Parliament, subject to necessary redactions.
Finally, complaints about unlawful use of covert techniques
by public authorities are investigated and determined by the Investigatory
Powers Tribunal (IPT). The tribunal was established in October 2000 under the Regulation
of Investigatory Powers Act 2000 (RIPA). It provides a right of redress for
anyone who believes they have been a victim of unlawful action under RIPA or
wider human rights infringements in breach of the Human Rights Act 1998.
The Investigatory Powers Act 2016 consolidated,
rationalised, and in certain respects, extended the use of investigatory powers
by the Agencies, the police, and other law enforcement bodies.
When fully in force, it will make a number of significant changes to oversight
- introducing judicial scrutiny of the grant of warrants
- overhauling the independent oversight regime, to that of a single
Investigatory Powers Commissioner responsible for the use of investigatory
powers by the agencies and
- creating a right of appeal from the Investigatory Powers Tribunal.
The Intelligence and Security
The ISC is tasked with overseeing the expenditure,
administration, policy and operations of the three intelligence agencies. It
may also examine or oversee other intelligence and security matters, as set out
in memoranda of understanding agreed between the Prime Minister and the ISC.
The ISC is only able to
consider operational matters where:
- they do not relate to ongoing operations and it is in the
- requested to do so by the Prime Minister or
- consideration is limited to information voluntarily provided by
the Agencies or a government department.
performance of functions
Schedule 1 of the JSA sets out details of the ISC’s powers
with respect to matters such as access to information. The ISC may ask the
heads of any of the three Agencies to disclose information, and they must make
it available, or inform the ISC that it cannot be disclosed because the
Secretary of State has vetoed disclosure. The same applies to requests for
information from government departments.
The Secretary of State may only veto disclosure of
information on two grounds:
- that it is sensitive and should not be disclosed to the ISC in
the interests of national security or
- that it is information of such a nature that if the Secretary of
State were requested to produce it before a Departmental Select Committee of
the House of Commons, the Secretary of State would consider (on grounds not
limited to national security) it proper not to do so. In making this decision,
the minister must have regard to government guidance concerning the provision
of evidence by civil servants to Select Committees.
This represented a change from the previous position, under
which the heads of the Agencies were able to decline to disclose information
because it was deemed to be sensitive.
Information is defined as sensitive under paragraph 5 of
Schedule 1 of the JSA if it:
- might identify or provide details of a source of information,
other assistance, or operational methods of the Agencies or other parts of the
- includes information about current or future operations
includes information provided by another country, where the government
of that country does not consent to disclosure.
Evidence provided by witnesses to the ISC may not be used in
civil, disciplinary or criminal proceedings, unless it was provided in bad
The ISC is required to make an annual report to Parliament
on the discharge of its functions. It is also able to make any other reports
that it considers appropriate.
The Agencies are able to request that sensitive material is
redacted from reports if publication would damage their work, for example by
revealing targets, methods, sources or operational capabilities.
Members of the ISC are appointed by their respective Houses
of Parliament (the House of Commons or the House of Lords), following
nomination by the Prime Minister, as set out in section 1 of the JSA.
The current members of the ISC are listed on the website.
The Committee Chair is elected by the members. The current
chair, Dominic Grieve QC, is a former Attorney-General.
Members hold their position on the ISC for the duration of
the Parliament during which they were appointed. They can be removed by a
resolution of the House by which they were appointed, or if they cease to be an
MP, or they become a minister. A member may also resign.
Since the JSA made the ISC a ‘Committee of Parliament’, primary
responsibility for resourcing rests with Parliament. However, an amendment to
the JSA made provision for supplementary funding to be met by the Government.
Paragraph 3 of Schedule 1 provides that a Minister of the Crown may:
- make payments to either House of Parliament relating to any
expenditure incurred by the ISC or
- provide staff, accommodation or other resources, either directly
to the ISC or via Parliament.
The 2015–16 annual report explained that the ISC is
currently supported by four core staff, six staff working on a particular
inquiry, and a part-time investigator.
The ISC’s core budget is agreed with the Foreign Secretary on behalf of the
National Security Council and is set at £1.3m. This excludes security, IT,
telecoms, report publication, accommodation, utilities and centrally-provided
corporate services. These are currently provided by the National Security
Secretariat and the Cabinet Office.
The Investigatory Powers Act 2016 (IPA) created the
new role of Investigatory Powers Commissioner (IPC) to replace the previous
independent oversight regime, comprised of the Intelligence Services
Commissioner, the Interception of Communications Commissioner, and the
Surveillance Commissioner. Lord Justice Fulford was recently appointed as the
first IPC for a three-year term.
The IPC, along with a number of judicial commissioners, is appointed
by the Prime Minister following recommendation by the Lord Chancellor; the Lord
Chief Justice of England and Wales; the Lord President of the Court of Session;
and the Lord Chief Justice of Northern Ireland. The Prime Minister must also
consult the Scottish ministers.
They will be required to keep under review, by way of audit,
inspection and investigation, the exercise by public authorities of various
statutory functions, including those relating to:
- interception of communications
- the acquisition or retention of communications data
- equipment interference and
- the acquisition, retention and use of bulk personal datasets.
Under section 230, the IPC may also be directed by the
Prime Minister to review any other functions of the Agencies.
The IPC will be required to report annually to the Prime
Minister. The IPA sets out further detail of what the report must cover,
- statistics on the use of investigatory powers
- information about the results or impact of such use
- information about the operation of safeguards contained in the
Act in relation to items subject to legal privilege, confidential journalistic
material and sources of journalistic material and
- information about the use of specific categories of warrant.
Section 235 provides that any ‘relevant person’ must
provide a judicial commissioner with documents, information and assistance, as
required for carrying out any investigation, inspection or audit. A ‘relevant
person’ includes any employee of a public authority and a telecommunications
operator or postal operator who is subject to a requirement imposed by the Act.
Funding, staff and facilities for the IPC are provided for
by section 238. Funding is determined by the Secretary of State in consultation
with the IPC. The Treasury must approve the number of staff. The judicial
commissioners’ salaries and expenses will be determined by the Treasury.
Ministers are responsible for determining applications to
carry out certain activities by the agencies. These include:
- warrants under section 5 of the ISA, which provides that the
relevant Secretary of State may issue a warrant for ‘interference with property
or with wireless telegraphy’ following an application from one of the
intelligence agencies. The action specified in the warrant must be necessary
and proportionate to what the warrant seeks to achieve
- authorisations under section 7 of the ISA, which provides that
the Secretary of State may give authorisation for action on the part of MI6 and
GCHQ for any act outside of the British Isles which would otherwise attract
(criminal or civil) liability within the jurisdiction and
- interception warrants under section 5 of RIPA, which provides
that the Secretary of State may issue a warrant on certain specific grounds
where it is necessary and proportionate.
The Wilson Doctrine
Under a convention known as the ‘Wilson Doctrine’,
intelligence agencies will not normally intercept the communications of an MP.
In 2015 the Investigatory Powers Tribunal gave judgment in a
case brought by Caroline Lucas MP and Baroness Jones of Moulsecoombe, arising
from the Snowden leaks, on the status, meaning and effect of the Wilson
The Tribunal concluded that the Agencies must comply with
their own Guidance on the doctrine, which was disclosed for the first time
during the proceedings. This makes clear that particular care must be taken to
consider whether the interception is necessary and proportionate, and requires
that the advice be sought of a legal adviser, the head of the warrantry section
and a senior policy officer. The Director-General of the agency concerned must
also be informed. Before deciding whether to issue a warrant, the Secretary of
State must consult the Prime Minister, via the Cabinet Secretary.
The Guidance also states that the Wilson Doctrine does not
apply to the interception of the communications of a member of a devolved
Section 26 of the IPA would place the requirement for the
Prime Minister’s approval on a statutory footing. It would also make clear that
it applies in relation to members of the Scottish Parliament, the National
Assembly for Wales, the Northern Ireland Assembly and UK members of the
When the relevant provisions come into force, the IPA will
introduce a new layer of judicial scrutiny to the process of granting warrants
to the Agencies.
At present, the relevant Secretary of State is solely
responsible for granting warrants, as described above. Under the new procedure,
the warrant will not come into force until it has been reviewed by a judicial
The new procedure will apply in relation to:
- interception warrants, including:
interception warrants, authorising the targeted interception of communications
examination warrants, authorising the targeted examination of the content of
communications obtained in bulk and
assistance warrants, authorising requests for, or the provision of, mutual
assistance in the execution of a warrant involving the authorities of another
- equipment interference warrants, including:
equipment interference warrants and
examination warrants, which operate in the same way as targeted examination
warrants for interception.
- bulk interception warrants, authorising the interception of
overseas-related communications in bulk (on a non-targeted basis)
- bulk acquisition warrants, authorising access to communications
data in bulk
- bulk equipment interference warrants, authorising interference
with equipment in bulk for the purpose of obtaining overseas-related
communications, data or information and
- bulk personal dataset warrants, authorising the retention and
examination of bulk personal datasets.
Judicial commissioners are also required to approve
decisions to renew or modify these types of warrant.
Judicial commissioners will be appointed as members of the
office of the IPC. They will have to hold or have held high judicial office and
will subject the Secretary of State’s decision to a review, on the same
principles as would be applied in an application for judicial review.
These changes provoked
considerable controversy during the Bill’s passage through Parliament. In
particular, the following issues arose during debate:
- whether political or judicial authorisation is most appropriate
in this context. Some of those engaged in the debate felt that the task of
issuing warrants is one best suited to independent judges, who are accustomed
to weighing up the kind of factors relevant to such decisions, and would ensure
that the process is seen to be impartial. It was acknowledged that ministers
should have a role in issuing warrants in cases with a significant foreign
policy dimension, involving more overtly political considerations. Others
argued that judges are ill-suited to weighing up considerations of national
security when reaching decisions on such matters, and that it was important to
maintain political accountability to Parliament through the involvement of
- the appropriate degree of scrutiny by judicial commissioners. The
IPA requires that judicial commissioners review the minister’s decision,
applying the same standards as would apply in a judicial review. There was much
debate as to what this would require in practice. Some argued that judicial
review would only require consideration of the formal process which led to the
decision, and that this degree of scrutiny was insufficient. Others argued that
judicial review standards would permit consideration of the ‘full merits’ of
the decision, and that the test was thus sufficient. Amendments were made to
the Bill to ensure that it was clear that, in reviewing a minister’s decision,
a judicial commissioner would review the necessity and proportionality of the
warrant with sufficient care to comply with the duties imposed by section 2 of
the Act to protect individuals’ privacy.
- the impartiality of the judicial commissioners. Questions were
raised concerning the role of the Prime Minister in appointing and removing
judicial commissioners, and whether this might impact on their actual or perceived
independence. Another potential conflict of interest was identified in the
duality of the judicial commissioners’ role in directly approving warrants, and
in providing a general oversight and auditing function with respect to the
exercise of the powers subject to the warranty procedure.
Investigatory Powers Tribunal
The Investigatory Powers Tribunal (IPT) was created by RIPA
and given the power to investigate complaints against public bodies’ use of
The IPT’s procedures mean that much of its work is conducted
in secret, and it is argued that this is necessary in order to ensure the trust
and cooperation of the agencies.
However, it has been criticised for being excessively
secretive, and procedurally unfair.
In an attempt to address some of these criticisms, the IPA
created a right of appeal on a point of law from the IPT, either to the Court
of Appeal in England and Wales or the Court of Session in Scotland.
Leave to appeal must be granted, either by the IPT or the
appellate court, on the basis that it would raise an important point of
principle or practice, or there is some other compelling reason.
This provision is yet to come into force and at present
there is no domestic route of appeal from a decision of the IPT. As a result,
claimants must pursue appeals to the European Court of Human Rights.
At present there are a number of mechanisms for cooperation
between the different oversight bodies. For example, the Investigatory Powers
Commissioner’s Office has a duty to give the IPT any assistance that it
requires in connection with the investigation, consideration or determination
of any matter. This may include the Commissioner‘s opinion on anything the IPT
has to decide, meaning that it can take advantage of the Commissioner’s
expertise when reaching a decision.
The IPA introduced provisions
aimed at further facilitating cooperation:
- Section 230 provides that the ISC can request that the Prime
Minister make a direction to the IPC to oversee a new area of activity.
- Under section 231, the IPC is required to inform individuals of
serious errors concerning them in the use of investigatory powers, provided it
is in the public interest. The individual concerned must also be informed of
their right to bring a claim in the IPT, and be provided with the details
necessary to bring such a claim.
- Section 232 replicates the existing requirements placed on
Commissioners to provide assistance, including documents and information, to
the IPT as required. This may include the Commissioner‘s opinion on anything
the IPT has to decide, meaning that it can take advantage of the Commissioner’s
expertise when reaching a decision.
- Section 236 concerns a situation in which the ISC uncovers an
issue that merits further investigation but which is outside its remit, and
therefore refers it to the IPC. The IPC is required to subsequently inform the
ISC as to whether any further action is to be taken.
Except where otherwise specified, this section of the
paper is based on the information provided about the Australian, Canadian, New
Zealand and UK arrangements in the preceding sections.
As noted previously, the Congressional Research Service
was unable to participate in the preparation of this paper. Accordingly, the
paper does not include a specific section on the US, but information on US
arrangements has been included in this section based on research conducted by Cat
Barker and Samantha Godec.
There are some notable similarities between the
intelligence communities of the Five Eyes countries in terms of jurisdiction,
function, and discipline:
- All five countries have signals intelligence agencies.
- Each has an agency (or agencies) mandated to collect security
- Each has some form of dedicated military intelligence component.
- All countries have specialised agencies or capabilities devoted
to geospatial intelligence.
- Each country has an office or agency responsible for all-source
analysis drawing on intelligence from across the whole government.
Nevertheless, there are differences as to which agencies
are considered to comprise the intelligence community:
- The Australian Intelligence Community currently comprises
six specific agencies spanning defence, signals, foreign, geospatial and
security intelligence, and a broader national assessments agency.
- Canada does not identify an intelligence community
distinct from a broader national security community, of which key elements are
security, signals and defence intelligence, as well as a national law
enforcement agency. Canada does not have a dedicated agency to collect foreign
intelligence abroad using human sources (HUMINT).
- In New Zealand, three agencies form the core of the intelligence
community (security, signals intelligence, and national assessments). As with Canada,
New Zealand does not have a dedicated HUMINT foreign intelligence service.
- In the UK, there are three core agencies responsible for
security intelligence, foreign intelligence, and signals intelligence that form
part of the broader ‘national intelligence machinery’, which also includes
Defence Intelligence and the Joint Intelligence Committee.
- The US Intelligence Community is comprised of 17 military
and civilian intelligence-related entities, including defence, signals, security
and foreign intelligence, as well as energy, drugs, diplomatic and financial
Some of the differences between intelligence communities
simply reflect differences in the nature or scope of intelligence collection
and analysis. Others reflect the way different nations have chosen to define or
characterise their intelligence communities.
Although development has been staggered, the oversight
mechanisms of the intelligence agencies in each of the Five Eyes countries have
converged in a number of ways.
Firstly, the jurisdiction and mandate of almost all the
intelligence agencies are now largely governed by statute, which has paved the
way for the establishment of oversight mechanisms.
Secondly, while intelligence
agencies were initially overseen predominantly by the Executive, each country
has gradually developed non-Executive oversight mechanisms. Broadly speaking,
the majority have developed at least some, if not all, of the following
mechanisms in addition to Executive oversight:
- specialised parliamentary or congressional committees
- inspectors-general or independent commissioners
- judicial oversight and
- independent reviewers of national security legislation.
scope of the key oversight mechanisms
Differences between countries in relation to which
agencies are taken to be part of the intelligence community have implications
for oversight. By way of example:
- Entities that, in the US, would be treated as part of the
intelligence community and therefore come within the intelligence oversight
framework, fall outside that framework in other countries by virtue of a more
narrowly defined intelligence community.
- The parliamentary and independent oversight mechanisms for
intelligence agencies in Australia and NZ are very similar, but because
Australia defines its intelligence community more broadly than does NZ, those
mechanisms apply across a greater portion of the national security apparatus in
Australia than they do in NZ.
The key parliamentary/congressional committees and
independent oversight bodies also differ in whether their mandate is based
around specific agencies or specific activities. There are potential benefits
and risks associated with each approach. Basing a mandate around specific
activities means that it automatically keeps pace if additional agencies become
involved in those activities, but might mean that the oversight body cannot
look deeply at the way an agency operates more broadly. Basing a mandate around
specific agencies allows the oversight body to scrutinise the full range of
those agencies’ operations, but can also mean that jurisdiction to examine an
issue which extends beyond those agencies is limited. Table 1 below
compares the jurisdiction of the key bodies.
agencies/elements within the jurisdiction of key oversight bodies
||PJCIS: all AIC agencies (and AFP terrorism functions)
||IGIS: all AIC agencies
||NSICOP: will cover activities relating to national
security or intelligence.
||CSIS, CSE and RCMP
||ISC: NZSIS and GCSB
||IGIS: NZSIS and GCSB
||ISC: main focus is MI5, MI6 and GCHQ; other government
activities relating to intelligence and security as agreed in an MOU with the
||IPC: particular statutory functions; may be directed by
the Prime Minister to review other functions of the Agencies.
||Congress oversees all USIC agencies.
||Inspectors-General, PCLOB and PIAB: all USIC agencies
A related issue is whether the key
bodies overseeing the intelligence agencies have the jurisdiction to look more
broadly at intelligence-related matters that extend beyond those core agencies.
This is a key issue given the increasing cooperation between the intelligence
agencies and the broader national security community, and increased sharing and
use of intelligence across governments. Can these bodies examine, for example,
the use of security intelligence by an agency outside the ‘intelligence
community’, such as one involved in border protection functions?
Table 2 below compares the
extent to which the key bodies in each country are able to examine intelligence-related
matters across their respective national governments. There is some scope for
at least one of the key intelligence oversight mechanisms in each country to
examine broader intelligence and security matters, but in most instances there
are also clear limits to that power. Further, the parliamentary/congressional
committees and independent bodies typically perform different types of
oversight, so if only one of them has jurisdiction to look at matters beyond
the core intelligence community, the ability to properly examine all such
issues remains constrained.
ability of key oversight bodies to examine intelligence related matters
||PJCIS: limited to matters relating to AIC agencies (and certain
||IGIS: may only inquire into an intelligence or security matter
relating to another agency or department at the request of the Prime Minister.
||NSICOP: jurisdiction based on activities relating to
national security or intelligence instead of specific agencies; will mean broader
issues may be examined.
||SIRC, OCSEC, CRCC: each mandated to perform an
agency-specific review function. At the time of publication, a Bill that
would consolidate SIRC and OCSEC into a single review agency (NSIRA) that
would also handle CRCC national security-related complaints, was before Parliament.
||ISC: may inquire into an intelligence or security matter
not directly related to the activities of NZSIS or GCSB on referral from the
||IGIS: limited to matters relating to the NZSIS or GCSB.
||ISC: may examine other government activities relating to
intelligence and security as agreed in an MOU with the Prime Minister.
||IPC: jurisdiction is based on specific statutory functions
of agencies; while the functions include those of intelligence and some other
agencies, the IPC’s functions do not include examining broader issues.
||Congress has broad jurisdiction to examine matters
relating to intelligence.
||PIAB and the IG of the Intelligence Community have broad
jurisdiction; PCLOB focuses on privacy and civil liberties.
Oversight of intelligence agencies traditionally sits within
the executive branch of government, with responsibility falling to the relevant
ministers and ultimately the Prime Minister or President. This is the case for
all five countries. In all jurisdictions there are various executive review
bodies with ‘before the event’ and ‘after the event’ oversight
responsibilities. In addition to executive review bodies, in Australia, New
Zealand and the UK, the responsible ministers exercise executive oversight in
respect of certain types of warrants and authorisations.
In Australia, responsibility for the intelligence
agencies rests with the Attorney-General, ministers for Foreign Affairs and
Defence, and ultimately the Prime Minister. Ministers are responsible for
authorising the use of certain powers, including searching premises; intercepting
communications; installing surveillance devices; accessing data on computers;
and collecting intelligence on Australian citizens (by ASIS, AGO or ASD).
In Canada, the ministers for Public Safety and
National Defence, and ultimately the Prime Minister, are responsible for
national security issues. The Prime Minister chairs the Cabinet Committee on
Intelligence and Emergency Management. Beyond ministerial responsibility, oversight
of intelligence agencies is largely implemented by two main executive review
bodies, which are restricted to making findings and recommendations.
SIRC reviews the activities of CSIS ex post. SIRC is composed of members
of different political parties but is tasked by, and reports to, ministers. CSE
is reviewed by the CSE Commissioner, a retired or part-time judge, who can also
be tasked by and reports to ministers. In order to collect foreign intelligence
and engage in cyber defence activities, CSE operates under ministerial authorisations.
In New Zealand, the Prime Minister, as Minister for
National Security and Intelligence, is responsible for leading the national
security system. The minister responsible for each intelligence and security
agency exercises ministerial oversight within the framework set by the Prime
Minister. The ministers have sole responsibility for issuing some warrants and
joint responsibility, with the Commissioner of Intelligence Warrants, for
In the UK, the Prime Minister has overall
responsibility for national security matters. The Home Secretary is responsible
for MI5, the Foreign and Commonwealth Secretary is responsible for MI6, and the
Defence Secretary is responsible for the Defence Intelligence staff. The
relevant ministers also have responsibility for approving warrants or
authorisations for various activities including: property or equipment
interference; actions of MI6 or GCHQ outside of the British Isles which would
otherwise attract criminal or civil liability; and interception warrants. The
interception of the communications of Members of Parliament requires the
approval of the Prime Minister.
In the US, the President has overall responsibility
for national security matters, though responsibility for specific components of
the USIC is spread across several members of Cabinet (including the Secretaries
of State, Defense and Homeland Security), and two Cabinet-level officials (the
Directors of National Intelligence and the Central Intelligence Agency).
There are several key executive branch mechanisms for overseeing the intelligence
community within the Executive Office of the President (EOP), augmented by a
large network of agency Inspectors-General and legal counsels. Within the EOP,
the President’s Intelligence Advisory Board (PIAB) and the President’s Privacy
and Civil Liberties Oversight Board (PCLOB) serve the president in an advisory
Independent commissions, whether appointed by the President (e.g. Weapons of
Mass Destruction Commission) or mandated by Congress (e.g. 9/11 Commission) may
also play an important role in oversight of the intelligence community.
In each jurisdiction, the distribution of responsibilities
across different portfolios means that while the head of government has overall
responsibility for national security matters, no one minister is responsible
for all of the agencies and components of the intelligence apparatus.
or congressional oversight
Each of the Five Eyes countries, with the notable exception
of Canada, has established one or more parliamentary or congressional committees
specifically to scrutinise the intelligence agencies. The first of the countries
to establish separate committees focused solely on intelligence-related
activities was the US, with the establishment of the Senate Select
Committee on Intelligence (SSCI) and House Permanent Select Committee on
Intelligence (HPSCI) in 1976 and 1977 respectively, by way of resolution.
The SSCI and HPSCI were established to better integrate (not replace) the
interests, responsibilities, and depth of intelligence-related expertise of all
the intelligence-related standing committees and to respond to the perceptions
of widespread abuse by certain intelligence agencies.
Following the Iran-Contra scandal of the 1980s, congressional oversight was
strengthened under the Intelligence Authorization Act of 1991 to ensure
that Congress be kept ‘fully and currently informed’ of intelligence
Australia, New Zealand and the UK all established similar
committees by way of statute. Australia established the Parliamentary
Joint Committee on ASIO in 1988. The Committee’s formation followed legislative
reforms in 1986 to establish the Committee and the IGIS.
When he first announced the establishment of the Committee, the then Prime
Minister noted the ‘relevant overseas experience of parliamentary scrutiny of
intelligence and security agencies’ as evidence that such committees could
The remit of the Committee was expanded in 2002 and 2005, and since 2005 it has
overseen all six agencies comprising the intelligence community.
The US experience also influenced Canada, but it
repeatedly rejected the idea of strengthening the role of parliamentarians in
scrutinising intelligence activities. Instead, Canada subsumed intelligence
oversight within the broader remits of Standing Committees. Bill C-22, when it
enters into force, will establish the first committee of parliamentarians to review
intelligence issues, but this committee will be an executive rather than
In the UK, oversight by parliamentarians was
established under the Intelligence Services Act 1994 in the form of the
Intelligence and Security Committee. The powers and remit of
the ISC were later expanded under the Justice and Security Act 2013. Scholars
have pointed to the potential influence of the European Court of Human Rights,
and the impetus to avoid adverse judgments, as well as the influence of
parliamentary oversight bodies which had already been established in the US and
New Zealand established the Intelligence and Security
Committee in 1996. An important consideration in the establishment of both the
Committee and the IGIS was the desirability of closer conformity with
accountability practice and procedure in the UK, Australia and Canada in
relation to their intelligence and security agencies.
Although each country, with the exception of Canada, has
established a parliamentary or congressional committee, the mandates of these
In the US, while each of the relevant committees has
some limits on what they may examine (for example, there is a distinction drawn
between military and other forms of intelligence), there are no official limits
on what these committees, taken collectively, may inquire into in terms of the
intelligence-related activities of the US Government.
The mandate of the UK’s ISC, while not as
far-reaching as the US committees, permits the review of policies,
administration and expenditure of the intelligence agencies as well as operational
activities in certain circumstances. The ISC may only consider operational activities
when requested to do so by the Prime Minister; where the operations are no longer
ongoing; or where information is disclosed voluntarily.
Neither the New Zealand ISC nor the Australian
PJCIS is permitted to review operational matters. They are charged with
examining the administration and expenditure of the agencies (and in the case
of the ISC, also their policies), and other matters referred by a House of
Parliament or minister (in New Zealand, the Prime Minister; in Australia, a
minister responsible for an intelligence agency). The Australian PJCIS may not
inquire into individual complaints about the activities of an intelligence
agency. The New Zealand ISC may only inquire into complaints by individuals
concerning the activities of an agency where they are not capable of being
resolved under any other enactment.
In Canada, the NSICOP will have powers of review in
relation to policy, administration and expenditure of the intelligence agencies,
emulating the powers of the ISC in New Zealand. Similar to the UK, the NSICOP will
also have the power to review operations as long as the operations are not
ongoing, or where the appropriate minister determines that the operational review
would not be injurious to national security. However, the NSICOP will be a
committee of parliamentarians (as opposed to a parliamentary committee) and will
therefore remain part of the Executive.
The parliamentary and congressional committees may initiate
their own inquiries or investigations as follows:
- in the US and UK, into any matter within the
- in New Zealand, into the policies, administration and
expenditure of the intelligence and security agencies
- in Australia, into the administration and expenditure of
the intelligence agencies and
- in Canada, the NSICOP will be able to initiate its own
inquiries into any matter within its mandate (subject to the limitation
relating to ongoing operations noted above).
The matters that the Australian and New Zealand committees
may examine upon referral from a minister or the Prime Minister respectively,
or from a House of Parliament, are broader than the matters they may inquire
into of their own accord. The limitations on examination of operational matters
apply in either circumstance.
While it may not undertake such an inquiry itself, the New
Zealand ISC may request that the NZ IGIS conduct an inquiry into any matter
relating to an agency’s compliance with the law, or the propriety of its
activities. A similar power has been recommended for the Australian PJCIS.
While the mandates of the committees differ, the powers the
committees have to examine matters within their mandate are broadly equivalent.
The US President must ensure that the congressional committees
are ‘fully and currently informed’ of intelligence activities and ‘promptly’
notified of collection and covert action programs, and any illegal intelligence
The committees may call officials to testify at hearings and require that
information be provided.
In Australia, New Zealand and the UK,
the committees have similar powers to request briefings or appearances from the
heads of the intelligence agencies, as well as any other person required to
give evidence or produce documents. However, as further outlined below, in all
jurisdictions there are limits to the information that may be requested or
compelled under these powers in order to protect sensitive operational
There are limitations placed on the committees’ access to
sensitive information. In Australia, the PJCIS must not require a person
or body to disclose to the committee operationally sensitive information or
information that would or might prejudice Australia’s national security or the
conduct of Australia’s foreign relations. Ministers may also issue certificates
preventing the disclosure of operationally sensitive information to the PJCIS.
In New Zealand, the heads of the agencies can refuse to disclose sensitive
information. However, the Prime Minister can override the refusal of an agency
head to disclose information if it is in the public interest to do so. In the UK,
the position is slightly different: heads of agencies can only avoid disclosure
to the ISC if a request for disclosure is vetoed by the Secretary of State.
This veto power can only be exercised if the information is sensitive and
should not be disclosed in the interests of national security, or if it is not
proper to do so in accordance with the relevant guidance. In the US,
disclosure depends on a number of factors, such as the sensitivity of the issue
and operational necessities. For example, ‘Gang of Eight’ notifications refer
to issues so sensitive that only eight Members of Congress are notified.
Each jurisdiction has some form of independent oversight. In
Australia and New Zealand, this function is carried out by an
Inspector-General of Intelligence and Security (IGIS). In the UK, this
function will be carried out by the newly-appointed Investigatory Powers
Commissioner (IPC). In Canada, the executive relies upon three expert review
bodies: SIRC, CRCC and OCSEC. If Bill C-59 is passed, this would effectively
consolidate the OCSEC and SIRC into a single body, the NSIRA.
The US has a government-wide system of
inspectors-general (IGs), which includes IGs that oversee specific intelligence
agencies and an IG of the Intelligence Community with cross-agency
It also has two boards that serve the President in an advisory capacity: the
President’s Intelligence Advisory Board (PIAB) and the Privacy and Civil
Liberties Oversight Board (PCLOB).
The Australian and New Zealand IGISs are
appointed by the Governor-General.
In contrast, the UK’s IPC is appointed by the Prime Minister, and the US’s
PCLOB and PIAB members are appointed by the President. There are several
methods by which IGs are appointed in the US. The IG of the Intelligence
Community is appointed by the President with the advice and consent of the
Senate, as are many of the IGs overseeing individual agencies or components.
The Canadian SIRC, CRCC and Communications Security
Establishment Commissioner are each appointed by the Governor in Council.
The IGISs in Australia and New Zealand share
a similar mandate, which differs from that of the IPC in the UK. The IGISs are
responsible for reviewing the operational activities of the intelligence
agencies to ensure legal compliance and propriety. In order to carry out their
mandates, they are empowered to conduct inquiries into certain matters and to
carry out inspections. Inquiries may be conducted at the request of the
responsible minister, the Prime Minister, or of their own accord. In New
Zealand, the ISC can also request inquiries. The IGISs have the powers to
summon and examine persons, compel documents, and enter agency premises. Given
the relatively strict limitations on parliamentary oversight in Australia and New
Zealand, the IGISs play an important role in holding the agencies to account.
The UK IPC is mandated to keep under review certain
statutory functions, as opposed to a broad power to review the general activities
of intelligence agencies (with the exception of review of other functions of
the Agencies if directed by the Prime Minister). Specifically, the IPC may
audit, inspect and investigate the interception of communications; the acquisition
and retention of communications data; equipment interference; and the
acquisition, retention and use of bulk personal datasets. These powers of
review are in addition to the IPC’s powers to authorise certain types of
warrants, resulting in a hybrid body which both approves warrants before the
event and reviews certain types of activity after the fact.
In Canada, the expert review bodies are mandated to
investigate complaints and examine the lawfulness of the activities of Canada’s
intelligence and national security agencies.
In the US, IGs for specific agencies and the
Inspector General of the Intelligence Community may conduct audits of, and
investigations into, the programs and operations of agencies they oversee. The
PIAB oversees the US intelligence community’s compliance with applicable laws,
Executive Orders and Presidential Directives, while the PCLOB is tasked with
ensuring ‘that the federal government’s efforts to prevent terrorism are
balanced with the need to protect privacy and civil liberties’.
Both Boards sit within the executive branch but employ external experts to
ensure a degree of independence.
In addition, both Australia and the UK have
established independent legislation monitors—the Independent National Security
Legislation Monitor and the Independent Reviewer of Terrorism Legislation,
respectively. In both jurisdictions, the independent monitors are empowered to
review the operation and effectiveness of national security legislation, as
opposed to the agencies themselves. However, in performing their roles, they
examine the way agencies apply those laws and may recommend changes to laws,
processes and oversight arrangements.
Traditionally, the judiciary has exercised deference on
national security issues. Judicial oversight of intelligence agencies remains
limited and divergent amongst the five nations.
In Australia, the judiciary has little involvement
in the authorisation of the exercise of powers, most of which rests with ministers.
Decisions made under laws governing the intelligence agencies are excluded from
the statutory framework for judicial review of executive decisions, but
individuals have some scope to apply for judicial review of the legality of
actions taken by intelligence officers. The Security Division of the
Administrative Appeals Tribunal can undertake merits reviews in closed session of
most types of adverse security assessments issued by ASIO (which are relied on
in a range of administrative decisions, such as passport cancellation).
In Canada, specially designated judges in the
Federal Court approve warrants requested by CSIS to conduct electronic and
other forms of surveillance. For the limited purposes of threat disruption,
judges may also approve warrants where CSIS wishes to violate Canadian laws or limit
Charter rights within Canada or abroad. There is no judicial oversight of CSE, Canada’s
signals intelligence agency, which does not require warrants to conduct its
activities. However, if Bill C-59 is passed, certain proposed CSE ministerial
authorisations will be subject to the approval of a newly-created Intelligence
Commissioner who must be a retired judge of a superior court.
In New Zealand, a Commissioner of Intelligence
Warrants, who must be a former High Court judge, has joint responsibility with
the authorising minister to issue Type 1 warrants, which authorise an agency to
carry out otherwise unlawful activity in relation to a New Zealand citizen or
permanent resident. Responsibility for the issue of Type 2 warrants, which
authorise otherwise unlawful activity that does not relate to New Zealand
citizens or permanent residents, lies solely with the authorising minister and
does not require the involvement of a Commissioner.
In the UK and the US, specific courts have been
established to deal with intelligence-related matters, although their mandates
are distinct. In the UK, the Investigatory Powers Tribunal (IPT) hears
complaints of unlawful use of covert techniques by public authorities and
provides a right of redress for victims of unlawful action, with a right of appeal
on a point of law (although this right of appeal was not in force at the date
of publication). The US Foreign Intelligence Surveillance Court not only
approves warrants for intelligence-gathering, but oversees entire intelligence
programs and grants court orders for conducting foreign intelligence
investigations, including electronic surveillance and physical searches.
Despite the limited judicial oversight of intelligence
agencies, there have been some recent court cases holding intelligence agencies
to account, particularly in relation to intelligence-sharing. Since 2013, the
Canadian Federal Court has twice held that CSIS failed in its duty of candour
when it did not inform the Court that it would rely upon assistance from its
Five Eyes partners in executing surveillance orders, and when it failed to
inform the Court for a decade that it was retaining metadata collected on
individuals who were not the target of a warrant.
Similarly, in the UK, the IPT held that intelligence-sharing between the UK and
the US contravened the European Convention on Human Rights due to the
lack of public clarity regarding the legal framework for such
Further, the Court of Justice of the European Union (CJEU) has found that, under
the Safe Harbour Agreement between the EU and the US, US agencies were accessing
data beyond that which is permitted by the EU data privacy rules.
The sharing of intelligence is therefore a matter which is subject to judicial
Data retention powers have also been subject to recent
judicial scrutiny. In the UK, the High Court recently held that the UK’s
emergency data retention legislation, the Data Retention and Investigatory
Powers Act 2014, violated EU data privacy rules in large part due to
inadequacies in the oversight regime created by the legislation.
Each of the countries examined makes some information
available about the budget allocations to intelligence agencies, but none makes
public the separate allocations for all agencies.
Australia’s national budget papers include
agency-specific allocations for ASIO, ASIS and ONA (though it appears that not
all funding is included, at least for ASIO and ASIS). The allocations for the
three agencies in the Defence portfolio are included in the broader budget for
the Department of Defence.
Canada and New Zealand are similar to
Australia in that budgets are made public for the CSIS, CSE and RCMP (in the
case of Canada) and NZSIS and GCSB (in the case of New Zealand), with other
intelligence-related funding included in budgets for broader portfolios, but
The UK Government releases a Single Intelligence
Account that outlines the total funding across MI5, MI6 and GCHQ (though GCHQ
also receives funding under the National Cyber Security Programme).
Other intelligence-related funding is included in the broader budget for the
Ministry of Defence.
The US Government publishes the total budgets
allocated to the two major components of its intelligence budget—the National
Intelligence Program and the Military Intelligence Program. However, some
intelligence funding falls outside those programs.
There will always be a tension in democratic societies
between the need for intelligence agencies to operate largely in secret, and
the need for those agencies to be held accountable for their actions. The
frameworks developed by the five countries considered in this paper represent
the compromises reached between these two imperatives.
This research paper highlights the differences in the way
that each country has chosen to conduct oversight of the intelligence community.
What might work well in one country may not necessarily be consistent with the
institutions and norms of another. Instead, the oversight frameworks reflect
each nation’s political structure, history, and culture, and therefore differ
in some of the particulars. However, each country has developed a framework
that includes a system of checks and balances that spans the various branches
of government, and which aims to ensure that agencies are accountable for both
their administration and expenditure, and the legality and propriety of their
The intelligence communities have evolved to meet new
challenges as they arise, and will continue to do so. It will be important for
the oversight arrangements to keep pace with such changes, and there may well
be lessons that the countries considered in this paper can learn from one
another as they each continue to review and strengthen their oversight
. The CRS
does not publish the reports it provides to parliamentarians and committees;
however, recipients of the reports have historically been free to publish them
on their own websites, and some third parties collect the reports on publicly
accessible websites. A Bill that would require the Government Publishing Office
to make CRS reports accessible online was re-introduced in May 2017: H.R.2335—Equal
Access to Congressional Research Service Reports Act of 2017; J Haggarty, ‘Congressmen
reintroduce bill to make CRS reports public’, Congressional Data Coalition
blog, 9 May 2017.
Cooperation between the UK and US on foreign signals intelligence was
formalised with the signing of the BRUSA (now known as UKUSA) Agreement in
1946. In 1955, the Agreement was revised to explicitly cover Australia, Canada
and NZ. It was the basis for what is informally referred to as the ‘Five Eyes’
alliance, recently referred to as ‘the most comprehensive and closest
intelligence sharing and co-operation arrangement’ in the world: M Cullen and P
and security in a free society: report of the First Independent Review of
Intelligence and Security in New Zealand, 29 February 2016,
p. 46; National Security Agency Central Security Service, ‘UKUSA
Agreement release 1940–1956’, National Security Agency website. In
April 2017, Canada released a redacted version of the 1949 CANUSA
agreement: B Robinson, ‘CANUSA
Agreement declassified’, Lux Ex Umbra blog, 23 April 2017.
of Intelligence and Security (IGIS) (Australia), Annual
report 2016–17, IGIS, 2017, p. v.
recently completed review assessed that looking ahead, a more realistic frame
of reference for the intelligence community would also include the Australian
Criminal Intelligence Commission, the Australian Transaction Reports and
Analysis Centre and parts of the Australian Federal Police and the Department
of Immigration and Border Protection: Department of the Prime Minister and
Cabinet (PM&C), 2017 Independent
Intelligence Review, Commonwealth of Australia, Canberra,
June 2017, pp. 46–48.
. Australian Security
Intelligence Organisation Act 1979 (ASIO Act),
see in particular sections 17 (functions) and 4 (definition of security);
Australian Security Intelligence Organisation (ASIO), ‘What we do’, ASIO website.
Services Act 2001 (IS Act), Part 3
(establishment) and sections 6 and 11 (functions); Australian Secret
Intelligence Service (ASIS), ‘About us’ and ‘Governance’, ASIS
. Office of National
Assessments Act 1977, particularly section 5 (functions); Office of
National Assessments (ONA), ‘Overview’
. IS Act,
sections 7 and 11; Australian Signals Directorate (ASD), ‘About ASD’ and ‘Accountability’,
. IS Act,
sections 6B and 11; Australian Geospatial-Intelligence Organisation (AGO),
‘About AGO, ‘GEOINT support to
Government and Defence’, ‘GEOINT support to
national security’ and ‘GEOINT support to
military operations’, AGO website.
Intelligence Organisation (DIO), ‘About us’, ‘What we do’, ‘General
intelligence’, ‘Scientific intelligence
analysts’ and ‘Technical
intelligence’, DIO website. DIO’s functions are not set out in legislation.
Commission on Intelligence and Security, Report, Australian Government
Printing Service, Canberra, 1977 (note there are several volumes); Royal
Commission on Australia’s Security and Intelligence Agencies; General
report, Australian Government Printing Service, Canberra, December 1984
(this Royal Commission also presented several reports on specific agencies and
issues); Commission of Inquiry into the Australian Secret Intelligence Service,
on the Australian Secret Intelligence Service: public edition (Samuels
Inquiry), Commonwealth of Australia, 1995; P Flood, Report
of the Inquiry into Australian intelligence agencies (Flood Review), Commonwealth
of Australia, 2004.
. The 2004
Flood Review recommended that in addition to standing review mechanisms, the
AIC should be subject to ‘periodic external review every five to seven years’:
Flood Review, op. cit., p. 63. R Cornall and R Black, 2011
Independent Review of the Intelligence Community report, Commonwealth
of Australia, 2011; PM&C, 2017 Independent Intelligence Review,
. ASIO Act,
Division 4 of Part 4.
Budget Statements are tabled in Parliament on the night the Federal Budget is
handed down. See Australian Government, ‘Portfolio budget statements’,
Budget 2016–17 website.
. C Barker, ‘National
security overview’, Budget review 2017–18,
Research paper series, 2016–17, Parliamentary Library, Canberra, May 2017;
P Maley, ‘Budget
2017: ISIS threat sparks funding boost’, The
Australian, 10 May 2017, p. 11.
. ASIO Act,
Act 1997, section 56; Crimes
Act 1914, section 85ZL; Australian
National Audit Office website.
National Security Legislation Monitor Act 2010 (INSLM Act),
sections 3, 4 and 6; Independent
National Security Legislation Monitor website.
Joint Committee on Intelligence and Security (PJCIS), ‘History
of the Intelligence and Security Committee’, Australian Parliament website.
Security Intelligence Organization Amendment Act 1986 inserted
Part VA into the Australian
Security Intelligence Organisation Act 1979 (since repealed and replaced by
provisions in the IS Act).
. PJCIS, ‘History
of the Intelligence and Security Committee’, op. cit.; Samuels Inquiry,
op. cit., Chapter 5 (pp. 40–63). The PJC on ASIO, ASIS and DSD was
established by Part 4 of the IS Act.
. The initial
version of the originating Bill would have established a committee to oversee
ASIO and ASIS. The Bill was amended to include DSD in the committee’s mandate
to accord with a recommendation made by the Joint Select Committee on
Intelligence and Security in its report on the Bill and two others: Parliament
of Australia, ‘Intelligence
Services Bill 2001 homepage’, Australian Parliament website; Joint Select
Committee on Intelligence and Security, An
advisory report on the Intelligence Services Bill 2001, the Intelligence
Services (Consequential Provisions) Bill 2001 and certain parts of the
Cybercrime Bill 2001, Parliament of Australia, Canberra, August 2001.
‘History of the Intelligence and Security Committee’, op. cit.; Flood
Review, op. cit., pp. 57–59. The Intelligence
Services Legislation Amendment Act 2005 amended Part 4 and
Schedule 1 of the IS Act.
. The PJCIS
also has a role in overseeing particular functions of the Australian Federal
Police, specifically its counter-terrorism functions (added in 2014: Counter‑Terrorism Legislation Amendment
(Foreign Fighters) Act 2014) and activities relating to Australia’s
telecommunications data retention scheme (since 2015: Telecommunications
(Interception and Access) Amendment (Data Retention) Act 2015): IS Act,
paragraphs 29(1)(baa), (bab), (bac), and (be) and subsection 29(5). That
role and other functions of the PJCIS provided for under the IS Act
and other laws fall outside the scope of this paper. For a brief summary, see
of the Committee’, Australian Parliament website.
. IS Act,
. Except to
the very limited extent allowed under subsections 29(4) and (5), that is, ‘for
the sole purpose of assessing, and making recommendations on, the overall
effectiveness of Part 5–1A of the Telecommunications
(Interception and Access) Act 1979’ (telecommunications data
. IS Act,
subsection 29(3). The PJCIS’s functions also do not include dealing with
individual complaints about AIC agencies (paragraph 29(3)(g)).
. Generally, the
IGIS’s submission is unclassified, and ASIO and ONA provide unclassified
submissions or unclassified summaries of classified submissions. The PJCIS’s
reports include appendices listing submissions and their classification.
Unclassified submissions and summaries can be accessed from the relevant
inquiry homepages: PJCIS, ‘Completed
inquiries and reports’, Australian Parliament website.
. PJCIS, Review
of administration and expenditure: no. 11 and no. 12–Australian
intelligence agencies, Australian Parliament, September 2014,
pp. 10, 61. The efficiency dividend is an annual funding reduction that
applies to the operational budget of Australian Government departments and
agencies. Some agencies are exempt: N Horne, The
Commonwealth efficiency dividend: an overview, Background note,
Parliamentary Library, Canberra, 13 December 2012.
. IS Act,
paragraph 29(1)(b) and subsection 29(2).
. Details of
inquiries completed by the PJCIS and its predecessor committees can be accessed
from PJCIS, ‘Completed inquiries and reports’, op. cit.
ASIS and DSD—Joint Statutory Committee—Reference’, Journals, 80,
18 June 2003. The other two were referrals for consideration of Bills
initiated by motions moved by government ministers: Australia, House of
to committee’, Votes and proceedings, HVP 14,
21 March 2002 (Australian Security Intelligence Organisation
Legislation Amendment (Terrorism) Bill); Australia, House of Representatives, ‘Bill—Reference
to committee’, Votes and proceedings, HVP 128,
15 October 2003 (Intelligence Services Amendment Bill 2003).
. PJC on
watching brief: the nature, scope and appropriateness of ASIO’s public
reporting activities, Australian Parliament, September 2000;
into the authorisation of access to telecommunications data to identify a
journalist’s source, Australian Parliament, 8 April 2015.
Both referrals were in response to recommendations of the relevant committee in
earlier reports: PJC on ASIO, An
advisory report on the Australian Security Intelligence Organisation
Legislation Amendment Bill 1999, Australian Parliament, May 1999,
p. 44; PJCIS, Advisory
report on the Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014, Australian Parliament,
27 February 2015, p. 258. It is possible that other ministerial
references resulted from suggestions or requests from the committee; such
matters may not always be explicitly mentioned in inquiry reports.
. IS Act,
section 30. This section also applies to the Commissioner of the
Australian Federal Police and the Secretary of the Department of Immigration
and Border Protection.
clauses 2 and 3 of Schedule 1.
clause 2 of Schedule 1.
clause 3 of Schedule 1.
clause 1 of Schedule 1. ‘Operationally sensitive information’ is
defined in clause 1A of Schedule 1.
clause 4 of Schedule 1. Subclause 4(4) states that the decision
to issue a certificate preventing or restricting the giving of such evidence ‘must
not be questioned by any court or tribunal’.
clauses 5, 6 and 7 of Schedule 1.
clause 20 of Schedule 1.
‘Completed inquiries and reports’, op. cit. Annual reports on PJCIS
activities are required under section 31 of the IS Act. Note
restrictions on disclosure to Parliament of certain information: IS Act,
clause 7 of Schedule 1.
. IS Act,
section 28 and clauses 14–16A of Schedule 1.
MP, Andrew Wilkie, is a notable exception: Parliament of Australia, ‘Mr
Andrew Wilkie MP’, Australian Parliament website. He served on the
PJCIS in the 43rd Parliament (2010–2013), during which the Labor Party relied
on the support of independent MPs Andrew Wilkie, Tony Windsor and Rob
Oakeshott, and that of the Australian Greens, to form a minority government.
. See, for
example, N McKim, ‘Second
reading speech: Parliamentary Joint Committee on Intelligence and Security
Amendment Bill 2015’, Senate, Debates, 13 October 2016,
pp. 1722–26; N Xenophon, ‘Second
reading speech: Parliamentary Joint Committee on Intelligence and Security
Amendment Bill 2015’, Senate, Debates, 13 October 2016,
Secretariat, personal communication, 8 March 2017; IC Harris, ed., House
of Representatives practice, 5th edn, Department of the House of
Representatives, Canberra, 2005, pp. 642–643; IS Act,
. The Senate,
of estimates by the Senate’s Legislation Committees, Senate brief, 5,
Australian Parliament, n.d.; The Senate, Standing orders, Chapter 5:
Standing and select committees (see in particular orders 25 and 26),
Australian Parliament, n.d.
appears before the Senate
Legal and Constitutional Affairs Legislation Committee, which covers the
Attorney-General’s and Immigration and Border Protection portfolios.
relevant committees are the Senate
Foreign Affairs, Defence and Trade Legislation Committee and the Senate
Finance and Public Administration Legislation Committee.
. The IGIS
appears before the Senate Finance and Public Administration Legislation
Commission on Australia’s Security and Intelligence Agencies; General report,
op. cit., pp. 23–25.
of Intelligence and Security Act 1986 (IGIS Act); IGIS, Annual
report 1986–87, IGIS, 1987.
. IGIS, ‘About IGIS’, IGIS website. The
description summarises the objects of the IGIS Act (section 4) and
aspects of the IGIS’s inquiry functions under section 8.
. IGIS Act,
section 8 and subsections 9(1) and (2) (intelligence agency
inquiries), subsections 9(3) and (4) (intelligence and security matter
inquiries), section 9A (inspections) and section 8A (public interest
differences reflect the differences in functions across the AIC, particularly
between the collection and assessment of intelligence, and foreign and domestic
. IGIS Act,
section 8. For ASIO, the IGIS also has inquiry functions under that
section relating to the effectiveness and appropriateness of procedures ASIO
has in place relating to the propriety of its activities (subparagraph
8(1)(a)(iv)), certain matters relating to ASIO’s security assessment function
(paragraph 8(1)(c)) and the justification for the collection and communication
of certain intelligence (paragraph 8(1)(d)). Note that section 9AA places
restrictions on the IGIS’s functions, including in relation to matters that
occurred outside Australia.
section 8. An inquiry under paragraph 8(1)(c) (relating to a security
assessment) may only be undertaken at the minister’s request.
paragraph 9AA(a). Paragraphs 9AA(b) and (c) prohibit the IGIS from
inquiring into action taken by a minister and matters that are, or could be, the
subject of a review by the Security Division of the Administrative Appeals
Tribunal, except in very limited circumstances.
sections 4 (objects of the Act), 9A (inspections).
. IGIS, ‘Frequently
asked questions’ (under ‘How does the IGIS ensure that Australian
intelligence agencies act legally and with propriety?’), IGIS website.
. Ibid. The
IGIS’s annual reports detail inspections carried out each year. See, for
example, IGIS, Annual report 2016–17, op. cit., pp. 13–34.
. IGIS Act,
section 8A; Public
Interest Disclosure Act 2013.
. IGIS Act,
Division 3 of Part II.
sections 21 and 22.
. IGIS, ‘Annual
reports’, and ‘Public
reports’, IGIS website.
. IGIS, Corporate
plan 2016–20, IGIS, 2016, p. 4; V Thom, ‘Reflections
of a former Inspector-General of Intelligence and Security’, AIAL Forum,
83, April 2016, pp. 11–17.
. IGIS Act,
section 24. 24A makes equivalent provision for reports given to the
responsible minister or the Secretary of the Department of Defence.
section 32B; ASIO Act, section 5A and subsections 8(6)
. IGIS Act,
. IS Act,
section 9B and ASIO Act, section 29; ASIO Act,
sections 31A (use of force), 35PA (special intelligence operations; see
also section 35Q), and 34ZI and 34ZJ (special powers relating to terrorism
. I Carnell
and N Bryan, ‘Watching the
watchers: how the Inspector-General of Intelligence and Security helps
safeguard the rule of law’ Administrative Review Council, 2006.
. IGIS Act,
sections 6 and 63. Section 6A allows the Prime Minister to appoint a
person to act as IGIS during a vacancy or absence.
. IGIS Act,
Constitution provides a mechanism for a judge to be removed ‘on the ground of
proved misbehaviour or incapacity’: Australian
Constitution, section 72.
. IGIS, Annual
report 2016–17, op. cit., p. 53.
budget statements 2017–18: budget related paper no. 1.14: Prime Minister
and Cabinet Portfolio, p. 255.
. ASIO is
the only one of the operational intelligence agencies that produces a public
annual report, and that report is only required to contain details on the
number of warrants/authorisations for selected powers (ASIO Act,
. IGIS, Annual
report 2015–16, IGIS, 2016, p. v. For information on the
budget changes, see C Barker, ‘Countering
terrorism and violent extremism’, Budget review 2015–16, Research
paper series, 2014–15, Parliamentary Library, Canberra, May 2015.
. Ibid While
additional resourcing has been provided, the IGIS has experienced delays to
recruitment due to lengthy security clearance processes, leading to salary
underspends in 2015–16 and 2016–17: Ibid., p. 10; IGIS, Annual
report 2016–17, op. cit., p. 60.
. IS Act,
sections 9 and 9A (sections 9B and 9C allow agency heads to make
emergency authorisations that remain in force for a shorter period if ministers
are unavailable); ASIO Act, sections 25, 25A, 26, 27, 27AA,
27A, 27C and 35C (section 29 allows the head of ASIO to issue an emergency
warrant for most warrant types that remains in force for a shorter period in
certain circumstances); Telecommunications
(Interception and Access) Act 1979, Part 2–2 (including
emergency warrants by head of ASIO under section 10).
Questioning Warrants: ASIO Act, sections 34D, 34E and subsection
34R(6). The maximum time limit is extended from 24 to 48 hours if a person is
being questioned with an interpreter present: subsection 34R(11). For
Questioning and Detention Warrants: ASIO Act, sections 34F, 34G and 34S.
. As at
October 2016, ASIO had never applied for a Questioning and Detention
Warrant: R Gyles, Certain
questioning and detention powers in relation to terrorism, Independent
National Security Legislation Monitor, October 2016, p. 40.
. ASIO Act,
. ASIO Act,
section 34B. Where the minister is of the view there are insufficient people to
act as a prescribed authority, he or she may appoint a currently serving judge,
or a President or Deputy President of the Administrative Appeals Tribunal:
subsections 34B(2) and (3).
. ASIO Act,
subsection 34ZM(2); L Burton and G Williams, ‘The
integrity function and ASIO’s extraordinary questioning and detention powers’,
Monash University Law Review, 38(3), 2012, p. 4; Australian Human Rights
Commission (AHRC), ‘A
human rights guide to Australia’s counter-terrorism laws’, AHRC website,
. ASIO Act,
sections 34E and 34G.
Attorney-General must be satisfied that relying on other methods of collecting
the intelligence would be ineffective, and in the case of a Questioning and
Detention Warrant, that if not detained, the person may alert a person involved
in a terrorism offence that the offence is being investigated, may not appear
for questioning, or may destroy, damage or alter a record or thing (subsections
34D(4) and 34F(4)): Burton and Williams, ‘The integrity function and ASIO’s
extraordinary questioning and detention powers’, op. cit., pp. 4–5.
. Ibid., p.
. ASIO Act,
Decisions (Judicial Review) Act 1977, Schedule 1.
. Access to
the original jurisdiction of the High Court of Australia is provided for under paragraph
75(v) of the Australian
Constitution, and the Federal Court of Australia under subsection
39B(1) of the Judiciary
Act 1903. For more information, see: Administrative Review Council, The
scope of judicial review—report to the Attorney-General, report no. 47,
April 2006, pp. 5–7.
. ASIO Act,
Division 4 of Part 4; ASIO, ‘ASIO’s security assessment function’,
op. cit.; G Downes, ‘The
Security Appeals Division of the Administrative Appeals Tribunal—functions,
powers and procedures’, address to the National Security Law Course,
University of Sydney, 13 September 2006.
. IS Act,
. Ibid., subsection
. ASIO Act,
section 35K. Subsection 35K(2) allows the minister to issue further
requirements/conditions on this immunity by legislative instrument; to date,
this has not been done.
include: R v Scerba (No 2)  ACTSC
359, in which a Department of Defence graduate employee was convicted of downloading
a classified sensitive document from the Defence Secret Network (DSN) and
posting it to an image-sharing website; Sievers v R  ACTA 9, in
which an ASIO officer was convicted of communicating information in his
possession which had been prepared or acquired on behalf of ASIO in connection
with its functions or performance; R v Lappas (2003) 152 ACTR 7, in which an employee
of the Defence Intelligence Organisation was convicted of giving classified
documents to an unauthorised person to sell to a foreign country.
. Evidence Act 1995;
R v Ul-Haque  NSWSC 1251.
. R v
Ul-Haque at 95.
charges against student dropped’, SBS News website, 12 November 2007.
. See, for
example, IGIS, Submission
to PJCIS, Review of administration and expenditure no. 15 (2015–16),
8 December 2016; IGIS, Submission
to PJCIS, Inquiry into the Counter-Terrorism Legislation Amendment Bill
(No. 1) 2014, 10 November 2014; IGIS, Submission
to INSLM, Review of certain questioning and detention powers in relation to
terrorism, July 2016.
. IGIS, Annual
report 2015–16, op. cit., p. 8.
. INSLM Act,
. See the
PJCIS’s advisory reports on the Counter-Terrorism
Legislation Amendment (Foreign Fighters) Bill 2014, the Australian
Citizenship Amendment (Allegiance to Australia) Bill 2015, the Telecommunications
(Interception and Access) Amendment (Data Retention) Bill 2014 and the Criminal
Code Amendment (High Risk Terrorist Offenders) Bill 2016.
. These changes
are reflected in the IS Act, paragraphs 29(1)(baa), (bab), (bac)
and (be) (AFP function); and 29(1)(bc) and (ca) (legislative reviews); Criminal Code Act
1995, subsection 119.3(7) (review of areas declared by Foreign
Citizenship Act 2007, section 35AA (declaration of a terrorist
organisation for the purposes of that Act).
. Parliament of
Joint Committee on Intelligence and Security Amendment Bill 2015 homepage’,
Australian Parliament website. The Bill draws on work completed by former
senator, John Faulkner. See: J Faulkner, Surveillance,
intelligence and accountability: an Australian story, 23 October
. McKim, ‘Second
reading speech: Parliamentary Joint Committee on Intelligence and Security
Amendment Bill 2015’, op. cit.
. PM&C, 2017 Independent Intelligence Review,
op. cit.; M Turnbull (Prime Minister), Press
conference with the Attorney-General, Senator the Hon. George Brandis QC,
Minister for Immigration and Border Protection, The Hon. Peter Dutton MP and
Minister for Justice, The Hon. Michael Keenan MP Parliament House, Canberra, media release, 18 July 2017.
2017 Independent Intelligence Review, op. cit.,
pp. 46–48, 115.
pp. 111–125. The reviewers also recommended changes to: the architecture
of Australia’s intelligence arrangements (including expanding the ONA into an
Office of National Intelligence and making ASD a separate statutory agency
reporting to the Minister for Defence); capability and funding; and the
legislation that governs the agencies.
Press conference, op. cit.; M Turnbull (Prime Minister),
G Brandis (Attorney-General), P Dutton (Minister for Immigration and
Border Protection), and M Keenan (Minister for Justice), A
strong and secure Australia, media release, 18 July 2017. On
the Home Affairs portfolio, see further C Barker and S Fallon, What
we know so far about the new Home Affairs portfolio: a quick guide,
Research paper series, 2017–18, Parliamentary Library, Canberra, 2017.
. Security of Canada Information Sharing Act,
Schedule 3; Public Safety Canada, ‘Annex A: roles and responsibilities relating to counter-terrorism’, Building
resilience against terrorism: Canada’s counter-terrorism strategy, 2013.
. Canada’s Financial Transactions Analysis and Reporting Centre
(FINTRAC) has not been included in this list because although it is a financial
intelligence agency, it does not have capabilities or authority to actively
target and collect the data it receives. Rather, Canada’s Proceeds of Crime
(Money Laundering) and Terrorism Financing Act imposes reporting
requirements on financial institutions and other affected sectors.
. This figure represents an average employee population. See
Government of Canada, ‘Inventory of government organizations’. To access
CSE ‘People Management Data’, scroll down to ‘National Defence’ and click on ‘Communications
Defence Act, subsection 273.64(1); Communications Security
Establishment (CSE), ‘About
us’, CSE website. Prior to the issuing of an order in
council making CSE a stand-alone agency in December 2011, CSE reported to the
Minister of National Defence through the Deputy Minister of National Defence on
financial and administrative matters and through the National Security Advisor
on operational and policy matters. CSE now reports directly to the Minister of
Security Intelligence Service (CSIS), ‘Role of CSIS’, CSIS website;
CSIS, ‘A Unique Workplace’, Public report 2014–2016; Canadian
Security Intelligence Service Act (CSIS Act), section 12.
. CSIS Act,
. Bill C-44, An Act to amend the Canadian Security Intelligence
Service Act and other Acts, received Royal Assent
on 23 April 2015, and Bill C-51, An Act to enact the Security of Canada Information
Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the
Canadian Security Intelligence Service Act and the Immigration and Refugee
Protection Act and to make related and consequential amendments to other Acts, received Royal Assent on 18 June 2015. See H Porteous, D Valiquet
and J Béchard, Legislative summary of Bill C-44: An Act to amend the Canadian
Security Intelligence Service Act and other Acts, Publication no. 41-2-C44-E, Parliamentary Information and Research
Service, Library of Parliament, Ottawa, 28 November 2014. See also
J Béchard, T Dupuis, C Morris, D Valiquet and H Porteous, Legislative Summary of Bill C-51: An Act to enact the Security
of Canada Information Sharing Act and the Secure Air Travel Act, to amend the
Criminal Code, the Canadian Security Intelligence Service Act and the
Immigration and Refugee Protection Act and to make related and consequential
amendments to other Acts, Publication no.
41-2-C51-E, Parliamentary Information and Research Service, Library of
Parliament, Ottawa, 19 June 2015.
Defense and the Canadian Armed Forces, ‘Canadian
Forces Intelligence Command’, National Defense and the Canadian Armed
. Department of National Defence, ‘Executive Summary’, Defence
Intelligence Review: report to the CDS, Ottawa, 20 May 2004, p. iv.
Released under Access to Information and Privacy request number A0280236.
Canadian Mounted Police (RCMP), ‘About the RCMP’,
RCMP website; Security
Offences Act, sections 2 and 6.
. Royal Canadian Mounted
Police Act (RCMP Act).
. Government of Canada, ‘Inventory of government
organizations’, op. cit. To access the RCMP’s ‘People
Management Data’, scroll down to ‘Public Safety and Emergency Preparedness’ and
click on ‘Royal Canadian Mounted Police’.
. ‘Cabinet committee mandates and membership’, Justin Trudeau, Prime Minister of Canada website. The Minister of
Public Safety and Emergency Preparedness chairs another
important Cabinet committee, the Cabinet Committee on Canada in the
World and Public Security, which is responsible for issues related to domestic
and global security.
. On 28 April 2017, the title of the National Security Advisor to
the Prime Minister was changed to National Security and Intelligence
Advisor to the Prime Minister [emphasis added]. See Privy Council Office, PC Number: 2017-0411, 28 April 2017.
. The Privy Council Office is part of the Public Service and
provides non-partisan support to the Prime Minister as well as Cabinet and its
. The CSE Commissioner reports to the Minister of National Defence,
while the chairs of SIRC and the CRCC report to the Minister of Public Safety and
Emergency Preparedness. Since all of Canada’s provinces and
territories, save Ontario and Quebec, contract the RCMP for policing services,
the chair of the CRCC is also required to provide annual reports to provincial
ministers who have primary responsibility for policing and have entered into
such arrangements. Each annual report, copied to the Minister of Public Safety and
Emergency Preparedness and the RCMP Commissioner, sets out
the number and nature of complaints relating to RCMP conduct that occurred in
the province in question, describes how those complaints were disposed of, and
identifies any trends.
. For example, arguing that the existing law enables cooperation
between his organisation and SIRC, the CSE Commissioner noted the following in
his 2011–2012 Annual Report:
‘Paragraph 273.63(6) of the National Defence Act allows the
Governor in Council to authorize me to engage in any related activity. Article
54 of the Canadian Security Intelligence Service Act allows the Minister
of Public Safety and Emergency Preparedness to request from SIRC a “special
report concerning any matter that relates to the performance of its duties and
functions”. I am of the opinion that my office and SIRC could, by virtue
of these provisions, be asked to conduct a joint review or complementary
reviews of certain activities involving both CSEC and CSIS’.
See Office of the
Communications Security Establishment Commissioner, ‘Commissioner’s message’, 2011–2012 annual report,
June 2012. At present, section 45.34 of the Royal Canadian Mounted Police Act stipulates that, prior to undertaking a self-initiated review, the
Commissioner of the CRCC must provide a rationale to the Minister of Public
Safety and Emergency Preparedness for his or her belief
that the Commission is sufficiently resourced to undertake the review and why
the review does not duplicate the work of any other review or inquiry.
. To read further on the financial cycle of Canada’s Parliament, see
A Smith, The parliamentary financial cycle,
Publication no. 2015-41-E, Parliamentary Information and Research Service,
Library of Parliament, Ottawa, 27 January 2016.
. For a summary of the original text of Bill C-22, see H Porteous
and D Valiquet, Legislative summary of Bill C-22: An Act to establish the National
Security and Intelligence Committee of Parliamentarians and to make
consequential amendments to certain Acts,
Publication no. 42-1-C22-E, Parliamentary Information and Research Service,
Library of Parliament, Ottawa, 22 August 2016.
. Order fixing the day on which this order is made as the day on which
the Act comes into force, SI/2017-63, Canada
Gazette, Part II, Vol. 151, No. 21, 18 October 2017, p. 2902.
Commission on Security, Report
of the Royal Commission on Security (abridged), Canadian Government,
Ottawa, June 1969.
. Library of Parliament, ‘Officers and officials of Parliament’,
Canadian Parliament website. An order in council is a legal instrument made by
the Governor in Council pursuant to a statutory authority or, less frequently,
the royal prerogative. All orders in council are made on the recommendation of
the responsible minister of the Crown and take legal effect only when signed by
the Governor-General. See Library and Archives Canada, ‘Orders-in-Council’.
. ‘Standing Senate Committee
on National Security and Defence’ and ‘Standing Committee on Public
Safety and National Security’, Canadian Parliament website.
. Some members of the Committee were unhappy about the dissolution
of the Special Senate Committee on the Anti‑terrorism Act. Senator Serge
Joyal argued against dissolving it, saying he feared it would eliminate the
only Senate committee that was examining national security issues on an ongoing
basis. Though the Committee’s chair, Senator Hugh Segal, supported dissolution,
his support was contingent on the hope that it would be replaced by a new
standing committee fashioned along the lines of the UK’s Intelligence and
Security Committee. See Senate of Canada, Debates, 1st Session,
41st Parliament, 29 May 2013 (Hon. Serge Joyal); Senate of Canada, Debates, 1st Session,
41st Parliament, 6 June 2013 (Hon. Hugh Segal).
. Security Intelligence Review Committee (SIRC), ‘Origins
of the SIRC’, SIRC website. CSIS and its
review body, SIRC, were created in the aftermath of revelations about
questionable disruption operations conducted by the RCMP Security Service in
the early 1970s. These RCMP disruption operations were the subject of the 1981 Commission
of inquiry concerning certain activities of the Royal Canadian Mounted Police
(the McDonald Commission), which recommended that a separate civilian security
intelligence agency be created and made accountable through an independent
review body, as well as a joint parliamentary committee. Only the former
recommendation was implemented.
. Security Intelligence Review Committee, ‘Spending and Human Resources’, Security Intelligence Review
Committee: 2017–18 departmental plan.
. The University of Ottawa maintains an online archive of CSIS
Inspector-General reports dating from 2000 to 2010. See University of Ottawa,
Centre for International Policy Studies, ‘CSIS Inspector General Certificate Reports’.
. SIRC, ‘Spending and Human Resources’, op.
. CSIS’s total budget for 2015–16 was C$537 million, and the
2017–18 Main Estimates indicated that this budget would increase to C$577 million.
See Canadian Security Intelligence Service, ‘Financial Resources’, Public report: 2014–2016;
Treasury Board Secretariat of Canada, ‘2017–18 expenditures by program or purpose: Canadian Security
Intelligence Service’, Government expenditure plan and Main Estimates (Parts I and II),
23 February 2017.
. Office of the
Communications Security Establishment Commissioner (OCSEC), ‘OCSEC history’,
. In CSE’s
case, these orders in council were classified.
. Inquiries Act,
. For reference to the number of subject matter experts on OCSEC
staff, see Office of the Communications Security Establishment Commissioner, ‘Program 1.1: Commissioner’s review program’, 2016–2017
report on plans and priorities.
. Office of the Communications Security Establishment Commissioner, ‘Spending and Human Resources’, 2017–2018 departmental plan.
See also A Boutillier, ‘Review agency for Canada’s spies says it needs more funding’, The Toronto
Star, 14 March 2017.
. Treasury Board Secretariat of Canada, ‘Main Estimates: 2017–18 Estimates: Communications Security
Establishment’, Government expenditure plan and Main Estimates (Parts I and II).
. See L Casavant and D Valiquet, Legislative summary of Bill C-42: An Act to amend the Royal Canadian
Mounted Police Act and to make related and consequential amendments to other
Acts, Publication no. 41-1-C42-E, Parliamentary
Information and Research Service, Library of Parliament, Ottawa, 7 November
. See footnote 137 above.
. See Civilian Review and Complaints Commission for the RCMP, ‘Spending and Human Resources’, Departmental plan 2017–2018.
. See RCMP, ‘Spending and human resources’, Royal Canadian Mounted Police
2017–18 departmental plan.
. See Senate of Canada, ‘Chapter 12: Committees’, Rules of the Senate, Rule
. Standing Senate Committee on National Security and Defence, Introduction to the Standing Senate Committee on National Security
. Rules of
the Senate, Senate of Canada, updated November 2017.
Orders of the House of Commons, House of Commons Canada,
18 September 2017.
. The RCMP External Review Committee is an administrative tribunal
that reviews cases and issues findings and recommendations for appeal decisions
in certain RCMP labour relations matters.
. Most have taken this to mean that Mr McGuinty will chair the new
committee of parliamentarians. See Prime Minister of Canada, ‘Prime
Minister of Canada announces new leadership role for MP McGuinty’, media release, 8 January 2016. To obtain a
redacted copy of the briefing materials presented to MP McGuinty, which were
released under an Access to Information and Privacy request, please contact the
Library of Parliament in Canada.
. Paragraph 8(1)(b) of the legislation prohibits the NSICOP from
reviewing ongoing operations if a minister determined such an examination to be
injurious to national security. Subsections 8(2) and 8(3), respectively,
require the minister to explain why the review would be injurious to national
security and to notify the NSICOP when its review would no longer be injurious.
. Appointing the NSICOP secretariat executive director at this level
raises some interesting questions. Not only would he or she out-rank all
current executive branch watchdogs, but also the current National Security and
Intelligence Advisor to the Prime Minister, who operates without a statutory
basis. However, if Bill C-59, An Act respecting national security matters—which
was introduced in the House of Commons on 20 June 2017—is enacted, SIRC
and OCSEC would be replaced with a new expert review body, the National
Security and Intelligence Review Agency. This new expert review agency would be
led by a deputy minister who would therefore be equal in rank to the NSICOP
secretariat’s executive director.
. See Government of Canada, ‘Policy actions taken since Budget 2016: Table A1.4’, in ‘Annex
1—details of economic and fiscal projections’, Fall 2016 economic statement,
1 November 2016.
. Immigration and
Refugee Protection Act, Division 9.
. Liberal Party of Canada, ‘Keeping
Canadians safe: Bill C-51’, Real change: a new plan for a strong middle class, October 2015, p. 53; Bill C-59, An Act respecting national security matters, 1st Session, 42nd Parliament.
. See Federal Court, 2016 FC 1105.
and Security Act 2017, sections 7 and 8.
. Ibid., sections 10–14.
. Ibid., section 17.
. New Zealand
Intelligence Community, ‘About us’.
Zealand Intelligence and Security Bill 2016. The four Acts are: New
Zealand Security Intelligence Service Act 1969; Government
Communications Security Bureau Act 2003; Inspector-General
of Intelligence and Security Act 1996; Intelligence
and Security Committee Act 1996.
and Security Committee Amendment Act 2013, section 9.
. M Cullen and
P Reddy, Intelligence
and security in a free society: report of the first independent review of
intelligence and security in New Zealand, 2016.
. Ibid., p. 1.
. Ibid., p. 3.
. Ibid., pp. 5–11.
. New Zealand
Intelligence and Security Bill 2016.
and Security Act 2017, section 2.
. J Key (Prime
Security and Intelligence role created, media release, 6 October 2014.
and Security Act 2017, sections 7 and 8.
Sector Act 1988, sections 35, 39 and 43.
and Security Act 2017, section 221; Public
Finance Act 1989, section 45.
Orders of the House of Representatives, 1992, S.O.345.
and Security Agencies Bill, as reported from the Committee on the
Intelligence and Security Agencies Bill, p. ii, 1996.
of Representatives, Sessional and other
orders of continuing effect, Fifty-first Parliament (as at 21 October 2015); D
practice in New Zealand, 4th edn, edited by M Harris and D
Wilson, Oratia Books, 2017, p. 505.
. Sections 192–205,
section 223 and Schedule 3, clauses 17–26, in particular, of the Intelligence
and Security Act 2017 apply to the Intelligence and Security Committee.
. Office of the
Inspector-General of Intelligence and Security, Annual
report for the year ended 30 June 2016, pp. 3, 4.
. Ibid., pp. 1,
3, 4; Inspector-General of Intelligence and Security (IGIS), Annual
report 1997, p. 2.
of the Inspector-General of Intelligence and Security, Annual report for
the year ended 30 June 2014, p. 9.
. Sections 157–191,
section 222 and Schedule 3, clauses 6–12, in particular, of the Intelligence
and Security Act 2017 apply to the Inspector-General of Intelligence and
. IGIS, Annual
report 2016, p. 4.
. Ibid., p. 32.
. Sections 52–84,
in particular, of the Intelligence and Security Act 2017 apply to
. Sections 112–117
and Schedule 3, clauses 1–5, in particular, of the Intelligence and Security
Act 2017 apply to Commissioners of Intelligence Warrants.
. These three
agencies are referred to as the ‘intelligence agencies’ in legislation—for
example, s263 of the Investigatory
Powers Act 2016.
Services Act 1994, sections 1 and 3; Security Service
Act 1989, section 1; Secret
Intelligence Service website; Security
Service website; Government
Communications Headquarters website.
information is available at Gov.uk and Mi5.gov.uk.
Intelligence’, UK Government website.
security and intelligence’, ‘National
Security Council’ and ‘Sir Mark Lyall
Grant’, UK Government website.
. UK Government,
Intelligence Committee’ and ‘Joint
Intelligence Organisation’, UK Government website.
Terrorism Analysis Centre’, Security Service website.
. See Security
and intelligence agencies: financial statement 2015–16, HC 363, July
. Intelligence and Security Committee of
Secrets Act 1989; paragraph 1(1)(b) makes unauthorised
disclosure of classified information an offence.
. Justice and Security Act 2013.
. This is
currently provided for by the Regulation of
Investigatory Powers Act 2000 (RIPA) and the Intelligence Services
Act 1994. The recently enacted Investigatory Powers Act 2016 (IPA) will
reform the procedure, introducing a so-called ‘double lock’ whereby the
relevant Secretary of State will approve the warrant, but this will be subject
to review by a Judicial Commissioner before the warrant comes into effect.
information is available from the website of the
Investigatory Powers Commissioner’s Office.
. For further
information on the background to the IPA, see the following House of Commons
Library Briefing Papers: CBP 7371 Draft
Investigatory Powers Bill, 19 November 2015; CBP 7518 Investigatory
Powers Bill, 11 March 2016; CBP 7578 Investigatory
Powers Bill: committee stage report, 2 June 2016; CBP 7746 Investigatory
Powers Bill: Lords amendments, 28 October 2016.
evidence to select committees: guidance for civil servants, October
and Security Committee of Parliament, ‘Committee members’, Intelligence
and Security Committee of Parliament website.
. The Detainee
Inquiry, looking at the role of the Agencies in relation to detainee treatment
and rendition. It was agreed when this inquiry was established that it would be
funded by the Government.
and Security Committee of Parliament, Annual
report 2015–2016, HC 444, July 2016.
Minister’s Office, Investigatory
Powers Commissioner appointed: Lord Justice Fulford, media release,
3 March 2017.
. IPA, Section
.  UKIPTrib
. Para 11 of
sections 15 (interception warrants); 99 (equipment interference warrants;
these permit interference with equipment for the purposes of obtaining
communications or certain data), 136 (bulk interception warrants); 158 (bulk
acquisition warrants); 176 (bulk equipment interference warrants); 204 and 205
(bulk personal dataset warrants; bulk personal datasets are defined as sets of
information including personal data relating to multiple individuals, the
majority of whom are not of interest to the intelligence services).
background information on the passage of the Bill through Parliament, see the
following House of Commons Library Briefing Papers: CBP 7371 Draft
Investigatory Powers Bill, 19 November 2015; CBP 7518 Investigatory
Powers Bill, 11 March 2016; CBP 7578 Investigatory
Powers Bill: Committee stage report, 2 June 2016; CBP 7746 Investigatory
Powers Bill: Lords amendments, 28 October 2016.
. Section 65 of
of Investigatory Powers Act 2000 sets out the Tribunal’s jurisdiction.
. RIPA, section
. As noted
earlier in this paper, a 2017 review concluded that a more appropriate frame of
reference would be a ‘National Intelligence Community’ comprising the six AIC
agencies, ACIC, AUSTRAC, and parts of the AFP and the DIBP.
. ‘Members of
the IC’, Office of the Director of National Intelligence
website. See also A Daugherty Miles, Defense primer: national
and defense intelligence, CRS in Focus, IF10525, Congressional Research Service (CRS),
5 December 2016.
. A glossary is
provided at pages 7–8 of this paper.
. LE Halchin
and FM Kaiser, Congressional
oversight of intelligence: current structure and alternatives, CRS
Report for Congress, RL32525, CRS, 14 May 2012; ZK Goldman, ‘The
emergence of intelligence governance’, in ZK Goldman and SJ Rascoff, eds, Global
intelligence oversight: governing security in the twenty-first century,
Oxford University Press, New York, 2016, pp. 207–234.
. W Ginsberg
and M Greene, Federal
Inspectors General: history, characteristics and recent Congressional actions,
CRS Report, R43814, CRS, 8 December 2014; US Government
Accountability Office (GAO), Inspectors
General: reporting on independence, effectiveness, and expertise, GAO,
September 2011; Goldman, ‘The emergence of intelligence governance’,
. A glossary is
provided at pages 7–8 of this paper.
. Halchin and
Kaiser, Congressional oversight of intelligence: current structure and
alternatives, op. cit.; Goldman, ‘The emergence of intelligence
governance’, op. cit.
. Goldman, ‘The
emergence of intelligence governance’, op. cit.; Privacy and Civil
Liberties Oversight Board (PCLOB), ‘History
and mission’, PCLOB website; Office of the Inspector General of the
Intelligence Community, ‘What
we do’, Office of the Director of National Intelligence website.
. K Roach,
‘Review and oversight of intelligence in Canada: expanding accountability gaps’,
in Goldman and Rascoff, eds, Global intelligence oversight, op. cit., p.
. J Baker, ‘Intelligence oversight’, Harvard Journal on
Legislation, 45, 2008, pp. 202–203. See also BG Sciaroni, ‘Theory
and practice of executive branch intelligence oversight’, Harvard Journal of
Law and Public Policy, 12, 1989, p. 397.
. M Lowenthal, Intelligence:
from secrets to policy, 6th edn, Sage (CQ Press), Washington DC, 2015, p.
279. See also Executive Order 13462, President’s Intelligence
Advisory Board and Intelligence Oversight Board, signed by President
George HW Bush, 29 February 2008.
. Baker, ‘Intelligence oversight’, op. cit., p. 205.
. The SSCI was
created first by Senate Resolution 400: A resolution to establish a Standing
Committee of the Senate on Intelligence Activities, 94th Cong., 2nd sess., S.Res.
400, 19 May 1976. The following year, House Resolution 658 (H. Res. 658)
created the HPSCI: A resolution to amend the Rules of the House of
Representatives and establish a Permanent Select Committee on Intelligence, 95th
Cong., 1st sess., 14 July 1977.
. F Smist, Congress
oversees the intelligence community, 2nd edn, University of Tennessee Press,
. R Morgan,
‘Oversight through Five Eyes: institutional convergence and the structure and oversight
of intelligence activities’, in Goldman and Rascoff, eds, Global
intelligence oversight, op. cit., p. 63.
. The Bills
establishing the Committee and the IGIS were introduced together in
. R Hawke,
and ministerial statement: Royal Commission on Australia’s Security and
Intelligence Agencies’, House of Representatives, Debates,
22 May 1986, pp. 2885–92.
. J Moran and C
Walker, ‘Intelligence powers and accountability in the UK’, in Goldman and
Rascoff, eds, Global intelligence oversight, op. cit.; Morgan,
‘Oversight through Five Eyes’, op. cit., p. 61.
and Security Agencies Bill, as reported from the Committee on the Intelligence
and Security Agencies Bill, p. ii, 1996.
. 50 U.S.C. §§
3091–93. Section 3092 governs oversight of intelligence activities that are not
covert actions and section 3093 governs oversight of covert actions.
. Lowenthal, Intelligence:
from secrets to policy, op. cit., p. 298. The Gang of Eight consists
of the leaders of each of the two political parties from both the Senate and
the House of Representatives (Speaker of the House and the House Minority
Leader and the Senate Majority and Minority Leaders) along with the chairs
(majority) and ranking members (minority) of the HPSCI and the SSCI.
. Ginsberg and
Greene, Federal Inspectors General: history, characteristics and recent
Congressional actions, op. cit.; GAO, Inspectors General: reporting
on independence, effectiveness, and expertise, op. cit.
. Goldman, ‘The
emergence of intelligence governance’, op. cit.
. In Australia,
the Prime Minister recommends an appointee after consulting the Leader of the
Opposition. In New Zealand, Parliament recommends an appointee.
. Ginsberg and
Greene, Federal Inspectors General: history, characteristics and recent
Congressional actions, op. cit., pp. 3–5; GAO, Inspectors
General: reporting on independence, effectiveness, and expertise,
op. cit., pp. 21–24.
. In Canada,
the heads of the SIRC, OCSEC and CRCC are all Cabinet appointees. The Canadian
Prime Minister consults Parliament only with respect to the SIRC appointment.
. PCLOB, ‘About
the Board’, op. cit.
. Goldman, ‘The
emergence of intelligence governance’, op. cit., p. 226.
. The Independent National Security Legislation
Monitor is even given a specific function of assessing ‘whether Australia’s
counter‑terrorism or national security legislation is being used for
matters unrelated to terrorism and national security’: INSLM Act, paragraph 6(1)(d).
The UK Independent Reviewer of Terrorism Legislation has a statutory power to
review the operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006 (section 36 of the
2006 Act); to review the operation of
the Terrorism Prevention and
Investigation Measures Act 2011
(section 20 of that Act); to review the Terrorist Asset-Freezing etc. Act 2010 (Part 1) (section 31 of that Act); to report on the operation
of three other statutes, in whole or in part: the Anti-Terrorism Crime and
Security Act 2001, the Counter-Terrorism Act 2008 and the Counter-Terrorism
and Security Act 2015 (section 44 of the Counter-Terrorism
and Security Act 2015). The
Independent Reviewer may, at the request of ministers or on his own initiative,
conduct reviews and produce reports on specific issues.
‘Review and oversight of intelligence in Canada’, op. cit., p. 193.
. F Manget, ‘Intelligence
and the rise of judicial intervention: another system of oversight’, Studies
in Intelligence, 39(5), Center for the Study of Intelligence (CIA), 1996,
. See X (Re),
FC 1275 and 2016
FC 1105, respectively.
. Liberty and
Others v Secretary of State for the FCO and Others, 
. Schrems v
Data Protection Commissioner, 6 October 2015, Case C-362/14.
. Davis and
Others v Secretary of State for the Home Department, EWHC 2092 (Admin)
2015. Upon appeal to the Court of Appeal, referral was made to the CJEU, which
held that the data retention power exceeds the
limit of what is strictly necessary and cannot be considered to be justified
within a democratic society. The matter was referred back to the Court of
Appeal and judgment is pending.
and intelligence agencies financial statement 2015 to 2016’, UK Government
funding and financial controls’, GCHQ website.
. ‘U.S. intelligence community budget’, Office of
the Director of National Intelligence website. See also A Daugherty Miles, CRS
Community spending: trends and issues, 8 November 2016, and A
Daugherty Miles, CRS Report R44681, Intelligence Community
programs, management, and enduring issues, 8
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