The Parliamentary Joint Committee on Intelligence and Security (the Committee) is established pursuant to section 28 of the Intelligence Services Act 2001.
The Committee comprises eleven members, five of whom must be Senators and six of whom must be members of the House of Representatives. A majority of the Committee’s members must be Government members.
The Committee’s functions are set out at section 29 of the Intelligence Services Act and outlined at Appendix A.
The Committee is required by section 31 of the Intelligence Services Act to provide the Parliament with a report on its activities over each financial year. This report is made in compliance with this obligation and covers the period from 1 July 2015 to 30 June 2016.
The national focus on counter-terrorism measures continued throughout the reporting period, with further legislative reform leading to significant activity by the Committee. One of the outcomes of this changed security environment was a further expansion of the functions, oversight and scrutiny responsibilities of the Committee.
This report is the second of the new format commenced with last year’s report. As noted previously, the Committee has determined that its annual report provides an effective forum for the Committee to report on its inquiries, as well as notification and oversight activities. The Committee expects that its annual report will provide an important accountability mechanism to the Parliament and Australian public, providing confidence in the scrutiny and oversight of intelligence agencies and national security powers.
Overview of activities
During 2015–16, the Committee held 33 meetings, undertook four inquiries and tabled five reports (including an annual report). Due to prorogation of the 44th Parliament, there were no inquiries underway as at 30 June 2016.
A full list of the reports tabled by the Committee during 2015–16 is provided at Appendix B. These inquiries are discussed further below.
In summary, the Committee completed:
Review No. 13 of the administration and expenditure of the six intelligence agencies comprising the Australian Intelligence Community (AIC),
inquiries into two bills referred by the Attorney-General, and
reviews of the re-listing of five terrorist organisations pursuant to section 102.1A of the Criminal Code.
The Committee focussed in 2015–16 on examining national security legislation introduced by the Government and referred to the Committee for inquiry and report. This included changes to the Australian Citizenship Act 2007 that would allow for the revocation of the Australian citizenship of dual citizens, reforms to the control order regime in the Criminal Code and other updates to Australia’s national security legislation.
The intensive nature of the Committee’s inquiries into draft legislation continued to place significant demands on the Committee. Across the two Bills reviewed during the reporting period, the Committee made 41 recommendations.
Some of these recommendations resulted in expansion of the Committee’s oversight and review functions, building upon changes implemented in the previous year. The Committee’s expanded functions are discussed in more detail below.
Reviews of administration and expenditure
The Intelligence Services Act requires the Committee to review the administration and expenditure of the AIC agencies, which is conducted on an annual basis.
In its reviews, the Committee examines each agency’s financial performance and management for the relevant financial year, and considers the budgetary framework within which each agency operates.
The Committee also considers a number of matters that impact on the administration of agencies, including
legislative changes and litigation,
strategic direction and organisational structure,
human resource management,
public accountability and public relations, and
On 7 September 2015, the Committee tabled the report of its review of administration and expenditure for 2013–14.
In its report, the Committee noted additional funding announced in August 2014 to assist intelligence agencies in countering terrorism and meeting emerging and ongoing threats to national security, as well as measures in the 2015–16 Budget, including exemption of the Office of National Assessments from the efficiency dividend. The Committee indicated that it would examine the impact of these funding decisions as part of its reviews into agency expenditure over the coming financial years.
During 2015–16, the Committee conducted its inquiry into the administration and expenditure of AIC agencies for the 2014–15 financial year, receiving submissions and holding private hearings with each of the intelligence agencies and the Inspector-General of Intelligence and Security. This inquiry lapsed with prorogation of the 44th Parliament on 9 May 2016 and was resumed early in the 45th Parliament.
The Committee examined and reported to the Parliament on two bills during the reporting period:
Australian Citizenship Amendment (Allegiance to Australia) Bill 2015
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015.
Australian Citizenship Amendment (Allegiance to Australia) Bill 2015
On 24 June 2015, the Minister for Immigration and Border Protection, the Hon Peter Dutton MP, introduced the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 into the House of Representatives.
The Bill provided for the cessation of the Australian citizenship of dual citizens in certain circumstances:
if a person acts inconsistently with their allegiance to Australia by engaging in specified terrorist-related conduct,
if a person fights for, or is in the service of, a declared terrorist organisation, or
if a person is convicted of a specified terrorism related offence as prescribed in the Criminal Code.
On the same day, the Attorney-General, Senator the Hon George Brandis QC, wrote to the Committee to refer the provisions of the Bill for inquiry. In addition, the Attorney-General asked the Committee to consider whether proposed section 35A of the Bill, which related to a person convicted of a terrorism offence, should apply retrospectively with respect to convictions prior to commencement of the Act.
The Committee made 27 recommendations, which focussed on improving the clarity of provisions in the Bill and ensuring that powers would be used appropriately and be subject to proper review. The Committee also endorsed the retrospective application of proposed section 35A.
The Government supported all of the Committee’s recommendations.
Counter-Terrorism Legislation Amendment Bill (No. 1) 2015
On 12 November 2015, the Attorney-General introduced the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015 into the Senate. The Attorney-General stated that the measures introduced in the Bill ‘reflect lessons learned from recent counter-terrorism investigations and operational activity.’ The Bill also gave effect to a number of recommendations from the Council of Australian Governments Review of Counter-Terrorism Legislation.
On the same day, the Attorney-General, Senator the Hon George Brandis QC, wrote to the Committee to refer the provisions of the Bill for inquiry.
The Bill amended the control order regime in Division 104 of the Criminal Code and made a range of amendments to other legislation, including introducing an offence of ‘advocating genocide’.
In its report, the Committee made 21 recommendations including that, subject to implementation of these recommendations, the Bill be passed.
As at prorogation of the 44th Parliament, the Government had not responded to the Committee’s report. However on 25 July 2016, the Prime Minister and Attorney-General issued a joint media release stating that following consultation with the States and Territories, the Government accepted the Committee’s recommendations, which would be reflected in the Counter-Terrorism Legislation Amendment Bill (No. 1) 2016 to be introduced early in the 45th Parliament.
The Counter-Terrorism Legislation Amendment Bill (No. 1) 2016 was introduced into the Senate on 15 September 2016. Following passage through the Parliament, it received Royal Assent on 29 November 2016.
Review of listing of terrorist organisations
In the reporting period, the Committee reviewed the re-listing of five terrorist organisations pursuant to section 102.1A of the Criminal Code:
Hamas’ Izz al-Din Qassam Brigades
Kurdistan Workers Party (PKK)
Palestinian Islamic Jihad.
The Committee supported the re-listing of each of these organisations, recommending that the regulations not be disallowed.
In addition to its usual private hearings with relevant government agencies, the Committee received submissions and conducted a public hearing in Canberra with the Kurdish Association of Victoria, the Australian Kurdish Association and the Kurdish Lobby Australia to assist its review of the re-listing of the PKK.
Review of ‘declared areas’
No declarations under section 119.3 of the Criminal Code were made by the Minister for Foreign Affairs during the reporting period. Accordingly, no reviews were conducted by the Committee.
Oversight of Australian Federal Police counter-terrorism activities
In its advisory report on the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, the Committee recommended that its functions be extended to encompass the counter-terrorism activities of the Australian Federal Police (AFP), including, but not limited to, anything involving classified material.
The Intelligence Services Act was subsequently amended to include monitoring and reviewing the AFP’s performance of its functions under Part 5.3 of the Criminal Code in the list of Committee functions at section 29. Part 5.3 contains the Commonwealth terrorism offences, control order regime and preventative detention order regime.
The Committee first reported on its review of the AFP’s activities in last year’s annual report.
Prorogation of the 44th Parliament meant that the Committee’s next review was delayed. On 24 November 2016, the AFP provided a briefing to the Committee, which was supported by information for the period from 1 June 2015 to 31 May 2016.
The AFP commented that the evolving terrorist threat environment continues to test the limits of the counter-terrorism legislative framework, including Part 5.3 of the Criminal Code. Two of the challenges faced by the AFP are the protection of sensitive information in court proceedings and ensuring the efficacy of the control order regime.
Other challenges include:
the impact of emerging technology,
the threat posed by foreign fighters returning from Syria and Iraq,
the speed at which domestic terrorist plots can develop,
rapid radicalisation and the use of the internet to radicalise individuals, and
the increasingly younger age of those involved in terrorist activities.
In discussions with the Committee, the AFP commented on its ongoing cooperation with other law enforcement and intelligence agencies, and its engagement with the community. The AFP also provided an update on its use of telecommunications data to assist with investigations following passage of the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015.
Activities undertaken – 1 June 2015 to 31 May 2016
The AFP provided details of activities undertaken from 1 June 2015 to 31 May 2016 in relation to Part 5.3 of the Criminal Code. These are outlined in detail in Appendix C of this report.
In summary, the AFP reported that as at 31 May 2016, it had:
supported commencement of prosecutions against 19 individuals under terrorism offences (Division 101 of the Criminal Code),
supported commencement of prosecutions against three individuals for offences relating to terrorist organisations (Division 102),
supported nil prosecutions for offences relating to financing terrorism and terrorists (Division 103),
applied for one interim control order, which was issued by the Federal Circuit Court on 10 September 2015 (Division 104),
supported one prosecution under the offence of contravening a control order (section 104.27 of the Criminal Code), with sentencing to occur in December 2016, and
applied for no preventative detention orders, continued preventative detention orders, or prohibited contact orders (Division 105).
Appendix D outlines notifications required to be made to the Committee under the Intelligence Services Act 2001, Telecommunications (Interception and Access) Act 1979 and Australian Citizenship Act 2007.
Delegation to the United Kingdom, France and United States
In association with its inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015, a delegation of the Committee travelled to the United Kingdom, France and the United States from 18 July to 1 August 2015.
Approval was granted for the Chair, the Deputy Chair and a Government member to participate in the delegation. As the Deputy Chair was unable to attend, the Committee agreed to the participation of Mr Dan Tehan MP, the Hon Philip Ruddock MP and Senator David Fawcett.
During the delegation, Committee members had the opportunity to discuss policy and operational challenges to combatting terrorism, and to investigate actions other governments are taking both domestically and abroad to counter terrorist activity. This included discussions on the United Kingdom’s citizenship revocation provisions, strategies within the three countries to combat radicalisation, and systems for the protection of classified intelligence information in warrants, affidavits and other court proceedings. The delegation also met with other intelligence oversight bodies to discuss their roles and the interaction of oversight powers.
Expansion of Committee functions
As outlined in the Committee’s previous annual report, the Committee’s functions expanded considerably in 2014–15. This expansion continued in 2015–16 following the Government’s acceptance of the recommendations in the Committee’s advisory report on the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015.
Amendments to the Intelligence Services Act 2001 require the Committee to review, by 1 December 2019, the operation, effectiveness and implications of sections 33AA, 35, 35AA and 35A of the Australian Citizenship Act 2007 and any other provision of that Act as far as it relates to those sections [provisions for the loss of Australian citizenship for certain terrorism-related acts].
Section 35 of the Australian Citizenship Act 2007 provides that dual citizens aged over 14 years lose their Australian citizenship if they fight for, or are in the service of, a ‘declared terrorist organisation’ overseas. The Committee may review a declaration made by the Immigration Minister under subsection 35(1) of the Australian Citizenship Act 2007 in relation to a ‘declared terrorist organisation’ and report the Committee’s comment and recommendations to each House before the end of the disallowance period.
The Immigration Minister is required to inform the Committee in writing as soon as practicable if:
the Minister attempts, or unsuccessfully attempts, to give a notice under paragraph 33AA(10)(a), 35(4)(a) or 35A(5)(a) of the Australian Citizenship Act 2007 that a person’s Australian citizenship has ceased, or
the Minister makes a determination under subsection 33AA(12), 35(7) or 35A(7) of the Australian Citizenship Act 2007 that such a notice should not be given to a person as it could prejudice the security, defence or international relations of Australia.
The Committee may request a briefing on this event, which must be provided by the Minister before the end of 20 sittings days of the House and Senate after the occurrence of the event.
The Committee’s activities in 2015–16 built upon the significant work undertaken in the preceding year. The security threat to Australia and our interests overseas did not abate during this period. Similarly, there remained an ongoing need to address the threat posed by foreign fighters.
The Committee maintained its bipartisan approach to reviewing proposed changes to Australia’s national security legislation, and in 2015-16 conducted inquiries into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 and the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015. In its recommendations, the Committee sought to strengthen the provisions of each of these Bills and ensure that each included appropriate safeguards and oversight mechanisms.
In executing its scrutiny functions, the Committee takes evidence from witnesses and agencies. It may at times receive advice from the Attorney-General. Some Opposition members of the Committee expressed concern regarding the fullness of advice provided.
The Committee recognises that legislation, such as the Counter-Terrorism Legislation Amendment Bill (No. 1) 2015, responds to recent operational experience that has shown the need for measures to enhance the ability of security and law enforcement agencies to respond to threats and protect the Australian community from terrorism. Balanced with this is the ongoing need to ensure that individual privacy and other fundamental freedoms and rights are protected for Australians.
The Committee continued its statutory oversight of the AIC agencies. In examining the administration and expenditure of these agencies, the Committee continued to focus upon whether the agencies are appropriately administered and adequately equipped with the resources necessary to meet current and emerging national security challenges.
Looking to the forthcoming year, the Committee is soon to commence its mandated reviews of several legislative frameworks, including control orders, preventative detention orders, and ASIO’s questioning and detention powers. The Committee expects that expansion of its workload will continue as it fulfils its additional oversight and review functions. The Committee will report on the exercise of these new functions in future annual reports.
The Committee notes that an independent review of the intelligence community is underway and this may change future oversight and operational arrangements.
During the year, the Committee benefitted from the assistance of four technical advisors from the relevant government organisations, who provided specialist expertise to assist the Committee’s inquiries into citizenship and counter-terrorism legislation. The Committee thanks these officers for their valuable contribution to these inquiries.
Finally, the Committee thanks all stakeholders who contributed to the Committee’s work throughout the year.
Mr Andrew Hastie MP