1. The year in review

1.1
The Parliamentary Joint Committee on Intelligence and Security (the Committee) is established pursuant to section 28 of the Intelligence Services Act 2001 (Intelligence Services Act).
1.2
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.1
1.3
The Committee’s functions are set out at section 29 of the Intelligence Services Act, outlined at Appendix A.
1.4
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 2016 to 30 June 2017.
1.5
Following the dissolution of the Parliament for the July 2016 election, the Committee was re-constituted in the 45th Parliament in accordance with the Act and held its first meeting on 15 September 2016. Mr Michael Sukkar MP was elected Chair of the Committee. Following Mr Sukkar’s elevation to the Ministry, the Committee elected Mr Andrew Hastie MP as Chair on 8 February 2017.
1.6
In addition to exercising its ongoing oversight functions, the Committee reviewed several pieces of legislation during the year, received a number of private briefings and conducted site inspections. To the extent appropriate for publication, each of these activities are summarised in further detail below.

Overview of activities

1.7
During 2016–17, the Committee held 50 meetings, at a total duration of 79 hours and 14 minutes.
1.8
The Committee undertook ten inquiries and presented nine reports (including an annual report). Two inquiries were underway as at 30 June 2017. These inquiries are discussed further below.
1.9
In summary, the Committee completed:
Review No. 14 (2014–15) of the administration and expenditure of the six intelligence agencies comprising the Australian Intelligence Community,2 pursuant to section 29(1)(a) of the Intelligence Services Act,
inquiries into four bills referred by the Attorney-General, pursuant to section 29(1)(b) of the Intelligence Services Act,
reviews of the listing of three terrorist organisations and the re-listing of seven terrorist organisations pursuant to section 102.1A of the Criminal Code, and
a review of the declaration of one terrorist organisation pursuant to section 35AA of the Australian Citizenship Act 2007.
1.10
A full list of the reports presented by the Committee during 2016–17 is at Appendix B.
1.11
The Committee also commenced its Review No. 15 (2015–16) of the administration and expenditure of the Australian Intelligence Community, and its statutory review of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (ASIO’s questioning and detention powers) pursuant to section 29(1)(bb) of the Intelligence Services Act.
1.12
For the second time, the Committee received a private briefing from the Australian Federal Police (AFP) as part of its function to monitor and review the performance of the AFP’s functions under Part 5.3 of the Criminal Code, pursuant to section 29(1)(baa) of the Intelligence Services Act. The briefing covered the period from 1 June 2015 to 31 May 2016, and was reported on in the Annual Report of Committee Activities 2015–16. The Committee also commenced its third review, covering the period 1 June 2016 to 31 May 2017, which is discussed in detail below.
1.13
For the first time, the Committee also exercised its function to review the retained data activities of ASIO as set out in the relevant sections of its annual report, pursuant to section 29(1)(bd) of the Intelligence Services Act.
1.14
While the Committee’s ongoing and legislation-based review responsibilities continued to be the key areas of focus during 2016–17, the Committee also increased the number of private briefings and site inspections it undertook during the year. These activities are intended to ensure members are well informed about agency activities and key issues affecting their work, enhancing the Committee’s capacity to undertake its review functions.

Reviews of administration and expenditure

1.15
The Intelligence Services Act requires the Committee to review the administration and expenditure of the six Australian Intelligence Community agencies. In exercising this function, the Committee conducts its reviews on an annual basis.3
1.16
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.
1.17
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,
security issues,
public accountability and public relations, and
performance management.
1.18
On 12 October 2016, the Committee resumed its review of administration and expenditure for 2014–15 (Review No. 14), which had lapsed with the prorogation of the 44th Parliament on 9 May 2016. Evidence from submissions received and private hearings held in the 44th Parliament was received as evidence to the resumed inquiry. The Committee tabled its report on Review No. 14 on 1 March 2017.4
1.19
In its report, the Committee noted that agencies were overseeing their administrative functions effectively and appropriately managed their expenditure. The Committee welcomed the Government’s decision to exempt the Office of National Assessments and the Inspector-General of Intelligence and Security from the efficiency dividend in the May 2015 Budget. However, in line with the recommendations of the Department of the Prime Minister and Cabinet’s January 2015 Review of Australia’s Counter-Terrorism Machinery, the Committee recommended that the efficiency dividend also be removed from all ASIO, ASIS and AFP operations.
1.20
The Government’s response to the Committee’s recommendation was tabled in the Parliament on 16 August 2017. The response ‘noted’ the Committee’s recommendation. While the Government did not agree to remove the efficiency divided from the agencies as recommended, the response highlighted recent reductions in the size of the dividend over the forward estimates and support for ‘ongoing public sector transformation through partial re-investment of relevant savings into reforms that increase productivity and innovation in the public sector’. The response also noted that the impact of the efficiency dividend on the AFP, ASIO and ASIS over the last decade had been ‘materially outweighed by significant funding growth’.5
1.21
The Committee commenced its review of administration and expenditure for 2015–16 (Review No. 15) on 12 October 2016. The Committee received submissions and held private hearings with each of the intelligence agencies and the Inspector-General of Intelligence and Security in March 2017. The Committee presented its report on Review No. 15 on 15 August 2017, outside the reporting period.

Bill inquiries

1.22
The Committee examined and reported to the Parliament on four bills that were referred to it during the reporting period:
Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016,
Criminal Code Amendment (War Crimes) Bill 2016,
Item 28 of the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016, and
Telecommunications and Other Legislation Amendment Bill 2016.
1.23
In conducting these reviews, the Committee maintained a bipartisan approach that sought to ensure the effectiveness of the provisions while also enhancing safeguards to protect individual liberties.
1.24
The Committee made 39 recommendations across the four bill inquiries, all of which were accepted by the Government.

Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016

1.25
On 15 September 2016, the Attorney-General, Senator the Hon George Brandis QC, introduced the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 into the Senate.
1.26
The Bill introduced a framework into Part 5.3 of the Criminal Code to provide for the continued detention of high risk terrorist offenders serving custodial sentences who are considered by a court to present an unacceptable risk to the community.
1.27
On the same day, the Attorney-General wrote to the Committee to refer the provisions of the Bill for inquiry and report. He requested that the Committee, so far as possible, conduct its inquiry in public and that the Committee give particular attention to the following components of the bill:
the timing of an application for a continuing detention order,
the review period for a continuing detention order, and
oversight mechanisms.
1.28
In conducting its review, the Committee received 18 written submissions and 5 supplementary submissions. It held one public hearing and one private hearing in Canberra.
1.29
The Committee presented its advisory report on the Bill to the Parliament on 4 November 2016. The Committee made 24 recommendations, including narrowing the scope of the Bill’s application, clarifying the operation of the regime, and strengthening reporting and oversight mechanisms.6
1.30
The Government accepted all of the Committee’s recommendations. The Bill, incorporating amendments in response to the Committee’s recommendations, passed the Senate and the House of Representatives on 1 December 2016 and received Royal Assent on 7 December 2016.
1.31
In accordance with Recommendation 22 of the Committee's report, on 25 November 2016 (prior to the parliamentary debate on the Bill) the Attorney-General provided the Committee with an implementation plan for the scheme. In June 2017, in accordance with Recommendation 23 of the report, a further timetable for implementation of outstanding matters being considered by the High Risk Terrorist Offenders Implementation Working Group was provided to the Committee. This report set out work already completed by the working group following the passage of the Bill and matters to be progressed from July 2017 onwards. Both implementation reports are published on the Committee’s website.7
1.32
The Committee also received a private briefing on the implementation of the scheme in September 2017.

Criminal Code Amendment (War Crimes) Bill 2016

1.33
On 12 October 2016, the Minister for Immigration and Border Protection, the Hon Peter Dutton MP, introduced the Criminal Code Amendment (War Crimes) Bill 2016 into the House of Representatives.
1.34
The Bill was intended to amend Division 268 of the Criminal Code to align Australian domestic law with international law in relation to the treatment of members of organised armed groups in non-international armed conflict.
1.35
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 and report. He requested that the Committee, so far as possible, conduct its inquiry in public.
1.36
In conducting its review, the Committee received three written submissions, and held one public hearing and one private hearing in Canberra.
1.37
The Committee presented its report to the Parliament on 18 November 2016, recommending that the Bill be passed by the Parliament.8 The Bill passed the House of Representatives 23 November 2016 and the Senate on 1 December 2016. The Bill received Royal Assent on 7 December 2016.

Item 28 of the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016

1.38
On 17 October 2016, the Minister for Justice, the Hon Michael Keenan MP, introduced the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016 into the House of Representatives.
1.39
The Bill was introduced in response to the New South Wales Government’s abolition of the Police Integrity Commission and its replacement with the Law Enforcement Conduct Commission as the body responsible for detecting, investigating and preventing police corruption and misconduct. The Bill was intended to provide the Law Enforcement Conduct Commission with access to information obtained under the Commonwealth interception regime, similar to other state anti-corruption commissions.
1.40
Item 28 of the Bill amended the list of ‘criminal law-enforcement agencies’ at subsection 110A(1) of the Telecommunications (Interception and Access) Act 1979 (TIA Act) to replace the Police Integrity Commission with the Law Enforcement Conduct Commission. Under subsection 110A(11) of the TIA Act, when any bill amending the list of criminal law-enforcement agencies at subsection 110A(1) is introduced, the Minister must refer the amendment to the Committee for review. Subsection 110A(11) of the TIA Act was implemented in response to the recommendations of the Committee in its consideration of the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014.9
1.41
The Attorney-General, Senator the Hon George Brandis QC, wrote to the Committee on 20 October 2016 to refer item 28 of the Bill for review. This was the first time such a referral had been made.
1.42
In conducting its review, the Committee received submissions from the Attorney-General’s Department and NSW Government.
1.43
The Committee presented its report to the Parliament on 18 November 2016, recommending that the amendment at item 28 of the Bill be passed by the Parliament.10 The Bill passed the House of Representatives 21 November 2016 and the Senate on 24 November 2016. The Bill received Royal Assent on 30 November 2016.

Telecommunications and Other Legislation Amendment Bill 2016

1.44
On 9 November 2016, Senator the Hon James McGrath, Assistant Minister to the Prime Minister, introduced the Telecommunications and Other Legislation Amendment Bill 2016 into the Senate.
1.45
The Bill amended the Telecommunications Act 1997 to introduce a regulatory framework to better manage national security risks of unauthorised access to, and interference with, telecommunications networks and facilities. The Bill was the outcome of substantial cooperation and negotiation between government and industry over several years, and sought to implement the recommendations of two separate previous inquiries by the Committee.
1.46
On the same day, the Attorney-General, Senator the Hon George Brandis QC, wrote to the Committee to refer the Bill for public inquiry.
1.47
In conducting its review, the Committee received eight submissions and four supplementary submissions. It held three public hearings in Canberra. The Committee also received a private briefing from relevant agencies in Canberra and visited Telstra’s Global Operations Centre in Melbourne.
1.48
The Committee presented its report to the Parliament on 30 June 2017. The Committee made 13 recommendations, including recommendations aimed at providing greater clarity and certainty for industry, encouraging information-sharing by the Government, and enhancing the transparency of the regime’s operation.11
1.49
The Government accepted all of the Committee’s recommendations and tabled its response in the Parliament on 9 August 2017. The Bill, incorporating amendments in response to the Committee’s recommendations, passed the Senate on 14 August 2017 and the House of Representatives on 15 September 2017. The Bill received Royal Assent on 18 September 2017.

Review of listing of terrorist organisations under the Criminal Code

1.50
Under Division 102 of the Criminal Code, it is an offence to direct the activities of, be a member of, associate with or conduct a range of activities in support of a listed terrorist organisation. Section 102.1A of the Criminal Code provides that the Committee may review a regulation specifying an organisation as a terrorist organisation and report the Committee’s comments to each house of the Parliament before the end of the applicable disallowance period (15 sitting days).
1.51
Regulations re-listing the following organisations as terrorist organisations under the Criminal Code were made by the Federal Executive Council on 5 May 2016:
Abu Sayyaf Group,
al-Qa’ida,
al-Qa’ida in the Lands of the Islamic Maghreb,
Jabhat al-Nusra,
Jamiat ul-Ansar, and
Jemaah Islamiyah.
1.52
The Committee reviewed and supported each of the re-listings, finding no reason to disallow the legislative instruments. The Committee presented its report to the Parliament on 7 November 2016.12
1.53
On 31 October 2016, the Attorney-General, Senator the Hon George Brandis QC, wrote to the Committee to advise that he had decided to exercise his power under section 102.1AA of the Criminal Code to amend the listing of Jabhat al-Nusra as a terrorist organisation to include ‘Jabhat Fatah al-Sham’ as an alias of the organisation. Section 102.1A of the Criminal Code provides that the Committee could have reviewed, within the disallowance period, the legislative instrument giving effect to this amendment. However, the Committee determined not to undertake a review of the legislative instrument in this instance. In doing so, the Committee noted that it had only recently reviewed the re-listing of Jabhat al-Nusra, and that the organisation’s announcement that its name had changed to Jabhat Fatah alSham had been acknowledged during that review.
1.54
Regulations listing the following organisations as terrorist organisations were made by the Federal Executive Council on 24 November 2016:
al-Qa'ida in the Indian Subcontinent,
Islamic State in Libya, and
Islamic State Sinai Province.
1.55
Additionally, a regulation re-listing al-Qa'ida in the Arabian Peninsula as a terrorist organisation was made by the Federal Executive Council on 24 November 2016.
1.56
The Committee reviewed and supported each of the listings and the relisting, finding no reason to disallow the legislative instruments. The Committee presented its report to the Parliament on 20 March 2017.13

Review of ‘declared terrorist organisations’ under the Citizenship Act

1.57
Under sections 33AA and 35 of the Australian Citizenship Act 2007 (Citizenship Act), a person aged 14 years or older who is a national or citizen of another country loses their Australian citizenship if they engage in certain conduct on behalf of a ‘declared terrorist organisation’, as defined in section 35AA. Subsection 35AA(4) provides that, once a declaration is made by the Minister, the Committee may review the declaration and report the Committee’s comments and recommendations to each House of the Parliament during the applicable disallowance period (15 sitting days). Subsection 35AA(4) was included in the Bill in response to a recommendation by this Committee resulting from its review of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015.14
1.58
On 4 May 2016, the Minister for Immigration and Border Protection, the Hon Peter Dutton MP, advised the Committee of his decision to declare Islamic State as a ‘declared terrorist organisation’ under section 35AA of the Australian Citizenship Act 2007 (Citizenship Act). This was the first declaration of a ‘declared terrorist organisation’ under the Citizenship Act since the provisions were enacted in 2015.
1.59
In reviewing the declaration, the Committee noted its intention to take a similar approach to its established process for reviews of the listing (and relisting) of terrorist organisations under the Criminal Code. The Committee’s reviews will inquire into both the process followed by the Government prior to making the declaration and the merits of the grounds for the declaration itself.
1.60
The Committee was satisfied that appropriate processes has been followed and found no reason to disallow the legislative instrument. The Committee presented its report to the Parliament on 7 November 2016.15

Review of ‘declared areas’ under the Criminal Code

1.61
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 AFP counter-terrorism activities

1.62
Part 5.3 of the Criminal Code contains the Commonwealth terrorism offences, control order regime and preventative detention order regime.
1.63
Under section 29(1)(baa) of the Intelligence Services Act, it is a function of the Committee to monitor and to review the performance by the Australian Federal Police (AFP) of its functions under Part 5.3 of the Criminal Code. It is also a function of the Committee to report to the Parliament, with such comments as it thinks fit, upon any matter appertaining to the AFP or connected with the performance of its functions under Part 5.3 of the Criminal Code.16
1.64
To date, the Committee has discharged these functions by holding an annual private briefing with the AFP Commissioner and other senior AFP officers, supported by written information on the AFP’s activities during the preceding year. The Committee has reported on these activities in its annual reports.17
1.65
As noted above, prorogation of the 44th Parliament meant that the Committee’s review for the period from 1 June 2015 to 31 May 2016 was delayed until 24 November 2016. That review was reported on in last year’s annual report.
1.66
On 10 May 2017, the Committee wrote to the AFP to request written responses to questions regarding the AFP’s activities under Part 5.3 during the period from 1 June 2016 to 31 May 2017, and to invite the Commissioner to brief the Committee. The AFP’s response to the Committee’s questions was received on 13 June 2017 and the Committee held a private briefing with the Commissioner and other senior AFP officers on 10 August 2017.
1.67
In response to a question from the Committee about issues that had arisen during the period that had impacted the capacity of the AFP to perform its functions under Part 5.3, the AFP commented:
The evolving terrorist threat environment requires the consistent review of the counter-terrorism legislative framework, including Part 5.3 of the Criminal Code. The AFP is engaged in an ongoing process of reviewing the efficacy of current legislative arrangements, and works closely with the Attorney-General’s Department to develop effective responses to emerging issues.
1.68
The AFP identified the following broad themes influencing its legislative review:
The evolving threat environment, including the increasing risk of domestic threats in the form of opportunistic attacks by lone actors.
Ensuring the ongoing efficacy of the powers and procedures available to police to combat the terrorist threat (including to address the challenges of encryption).
Enabling evidence gathering and information sharing activities to be conducted in a way that does not compromise sensitive capability.
1.69
The AFP elaborated on these themes in its private briefing. In discussions with the Committee, the AFP discussed its activities under Part 5.3 of the Criminal Code in the context of a recent counter-terrorism operation in Sydney. Further information on the police powers used in that operation were provided to the Committee in written correspondence.
1.70
The AFP also responded to questions from the Committee about a breach of the Telecommunications (Interception and Access) Act 1979 that was self-reported to the Commonwealth Ombudsman in April 2017. The breach involved an AFP member accessing telecommunications data pertaining to a journalist without a Journalist Information Warrant being issued.18 Commissioner Andrew Colvin outlined for the Committee that, in response to the breach, the AFP had put in place additional training, updated forms, and limited the officers authorised to approve access to this type of telecommunications data to members of the Senior Executive Service.
1.71
In response to a question at the private briefing, the AFP also provided the Committee with statistics on the number, percentage and type of operations impacted by the encryption of communications data.
1.72
The AFP reported that there were no complaints or allegations of improper conduct made against the AFP in relation to the performance of its functions under Part 5.3 during the reporting period.

AFP counter-terrorism activities – 1 June 2016 to 31 May 2017

1.73
The AFP provided details of activities undertaken from 1 June 2016 to 31 May 2017 in relation to Part 5.3 of the Criminal Code. These are outlined in detail in Appendix C of this report.
1.74
In summary, the AFP reported that during the period it had:
charged 13 individuals with terrorism offences under Division 101 of the Criminal Code. Six prosecutions under this Division were finalised during the period.
charged six individuals with offences relating to terrorist organisations under Division 102 of the Criminal Code. No prosecutions under this Division were finalised during the period.
charged no individuals with offences relating to financing terrorism and terrorists under Division 103 of the Criminal Code. No prosecutions under this Division were finalised during the period.
applied for no new interim control orders under Division 104 of the Criminal Code. One existing interim control order was confirmed, with variation, during the period. One prosecution that had commenced in the previous reporting period for the offence of contravening a control order was finalised. The individual was sentenced to four years imprisonment, with a non-parole period of three years.
applied for no preventative detention orders, continued preventative detention orders, or prohibited contact orders under Division 105 of the Criminal Code.

Review of retained data activities of the AFP and ASIO

1.75
In October 2015, a regime for the mandatory retention of telecommunications data by service providers commenced under Part 5-1A of the Telecommunications (Interception and Access) Act 1979. The implementation period for the regime ended in April 2017.
1.76
Under section 29(1)(bd) of the Intelligence Services Act, it is a function of the Committee to, subject to certain restrictions, review any matter that relates to the retained data activities of ASIO and is set out in the relevant sections of ASIO’s annual report. Similarly, under section 29(1)(be) of the Intelligence Services Act, it is a function of the Committee to review any matter that relates to the retained data activities of the AFP in relation to offences against Part 5.3 of the Criminal Code and is set out in the annual report for the Telecommunications (Interception and Access) Act 1979.19
1.77
During the reporting period, ASIO provided the Committee with a copy of Appendix H of its classified annual report for 2015–16, relating to ASIO’s authorisations for retained and prospective telecommunications data. The Committee reviewed the material in conjunction with its Review of Administration and Expenditure No. 15 and questioned ASIO witnesses on certain aspects at a private hearing. The Committee did not consider it necessary to conduct any more detailed inquiry in relation to ASIO’s retained data activities over the reporting period.
1.78
As at 30 June 2017, the 2015–16 annual report on the Telecommunications (Interception and Access) Act 1979 had not yet been released. As such, during the reporting period the Committee was not able to perform its function under section 29(1)(be) of the Intelligence Services Act to review any matters relating to the retained data activities of the AFP.

Notifications and reports

1.79
The Intelligence Services Act, the Telecommunications (Interception and Access) Act 1979 and the Australian Citizenship Act 2007 each require the Committee to be notified of certain matters or provided with certain reports. Appendix D outlines notifications and reports received during the reporting period.
1.80
As noted above, in November 2016 and June 2017 the Attorney-General provided reports on the implementation of the post-sentence preventative detention scheme provided for under the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016. These reports are available from the Committee’s website.
1.81
In June 2017, the Attorney-General also provided the Committee with a report, conducted by the Attorney-General’s Department, on the adequacy of destruction requirements for telecommunications data. The review was conducted in response to Recommendation 28 of the Committee’s Advisory report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014.20 The Committee expects that the report will be tabled in the Parliament in the near future.

Other activities

Private briefings

1.82
The Committee received a range of private briefings from relevant Commonwealth departments and agencies, as well as visiting dignitaries, during the reporting period. Some briefings were in connection to specific inquiries before the Committee, while others concerned the Committee’s broader oversight remit.

Site visits

1.83
The Committee conducted several site visits during the reporting period. These included visits to:
Telstra Global Operations Centre, Clayton, Victoria (April 2017),
Joint Defence Facility Pine Gap, Northern Territory (April 2017),
ASIO headquarters, Ben Chifley Building, Parkes, ACT (May 2017), and
a classified location in Victoria (May 2017).
1.84
During each site visit, the Committee inspected the relevant facilities and received private briefings on a range of topics.

Delegation to the United States of America

1.85
A delegation of the Committee travelled to the United States of America from 28 January to 5 February 2017. The delegation was led by Mr Hastie, with Senator McAllister and Senator Wong also participating.
1.86
The purpose of the delegation was to discuss security issues impacting both nations and cooperative responses to these threats. Topics included:
cybersecurity risks,
terrorist radicalisation processes, particularly amongst youth populations,
current and evolving areas of international security threats, and
oversight arrangements for intelligence and security agencies.
1.87
The delegation held informative meetings with the following Congressional committees:
House Permanent Select Committee on Intelligence,
House Committee on Homeland Security,
Senate Committee on Intelligence, and
Senate Homeland Security and Government Affairs Committee.
1.88
Meetings were also held with the following agencies:
Central Intelligence Agency (CIA),
Federal Bureau of Investigation (FBI),
US Department of Defence,
Office of the Director of National Intelligence and the National Counter Terrorism Centre,
Homeland Security CVE Multiagency taskforce, and
US Department of State.
1.89
In addition, the delegation met with a range of national security commentators and strategic think-tanks, such as:
Former Congressman Mike Rogers,
Professor John McLaughlin (former Director for Intelligence CIA),
The Heritage Foundation, and
The Center for Strategic and International Studies.
1.90
The Committee thanks Australian Embassy staff in Washington for assisting to facilitate the program, and thanks all those who made the time to meet with the delegation.

Expansion of Committee functions

Statutory review of the continuing detention order regime

1.91
As noted above, the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 received Royal Assent on 7 December 2016. In line with a Committee recommendation,21 the Bill amended section 29(1) of the Intelligence Services Act to add the following new paragraph as a function of the Committee:
(cb) without limiting paragraphs (baa) to (bac), to review, before the end of 6 years after the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent, the operation, effectiveness and implications of Division 105A of the Criminal Code and any other provision of that Code as far as it relates to that Division.

Statutory review of the telecommunications sector security reforms

1.92
As noted above, the Telecommunications and Other Legislation Amendment Bill 2016 received Royal Assent on 18 September 2017. Following implementation of a recommendation by the Committee, the Bill inserts new section 315K into the Telecommunications Act 1997 to provide for the Committee to review the telecommunications sector security reforms:
(1) The Parliamentary Joint Committee on Intelligence and Security must review the operation of this Part, to the extent that this Part was amended by the Telecommunications and Other Legislation Amendment Act 2017.
(2) The review:
(a) must start on or before the second anniversary of the commencement of this section; and
(b) must be concluded on or before the third anniversary of the commencement of this section.
(3) The Committee must give the Attorney-General a written report of the review.
1.93
As the new section commences one year after the Act received Royal Assent, the Committee will be required to commence its review by 18 September 2020 and conclude it by 18 September 2021. The scope of the Committee’s review is not specified in the Act, however, in its report the Committee recommended that the review be of the operation, effectiveness and implications of the reforms, and include
the security of critical and sensitive data,
the adequacy of information-sharing arrangements between government and industry, and
the adequacy and effectiveness of the administrative guidelines in providing clarity to industry on how it can demonstrate compliance with the requirements set out in the Bill.22
1.94
The Government also accepted the Committee’s recommendation that, at the time of the separate review required to be undertaken by the Committee under section 187N of the Telecommunications (Interception and Access) Act 1979, the scope of the review be expanded to include consideration of the security of off-shored telecommunications data that is retained by a service provider for the purpose of the data retention regime.23

2017 Independent Intelligence Review

1.95
On 18 July 2017, the Prime Minister publicly released the unclassified version of the 2017 Independent Intelligence Review. The review was conducted by Mr Michael L’Estrange AO and Mr Stephen Merchant PSM, with advice from Sir Iain Lobban. The report on the review contained a range of recommendations concerning the structure, resourcing, legislation and oversight of the National Intelligence Community (NIC).24 Of particular relevance to the Committee were the following two recommendations:
Recommendation 21
The oversight role of the Parliamentary Joint Committee on Intelligence and Security and the Inspector-General of Intelligence and Security be expanded to apply to all ten agencies within the National Intelligence Community, with oversight of the Australian Federal Police, the Department of Immigration and Border Protection, and the Australian Criminal Intelligence Commission limited to their intelligence functions, and with current oversight arrangements in relation to the Office of National Assessments applied to the Office of National Intelligence.
Recommendation 23
The role of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) be expanded by amending relevant legislation to include:
a.
a provision enabling the PJCIS to request the Inspector-General of Intelligence and Security (IGIS) conduct an inquiry into the legality and propriety of particular operational activities of the National Intelligence Community (NIC) agencies, and to provide a report to the PJCIS, Prime Minister and the responsible Minister;
b.
a provision enabling the PJCIS to review proposed reforms to counter-terrorism and national security legislation, and to review all such expiring legislation;
c.
provisions allowing the PJCIS to initiate its own inquiries into the administration and expenditure of the ten intelligence agencies of the NIC as well as proposed or existing provisions in counter-terrorism and national security law, and to review all such expiring legislation;
d.
provisions enabling the PJCIS to request a briefing from the Independent National Security Legislation Monitor (the Monitor), to ask the Monitor to provide the PJCIS with a report on matters referred by the PJCIS, and for the Monitor to provide the PJCIS with the outcome of the Monitor’s inquiries into existing legislation at the same time as the Monitor provides such reports to the responsible Minister; and
e.
a requirement for the PJCIS to be regularly briefed by the Director-General of the Office of National Intelligence, and separately by the IGIS.25
1.96
A detailed Government response to the review’s recommendations had not been released at the time of writing. However, at a press conference, the Prime Minister stated that ‘the Government accepts the principles of the reviewers’ recommendations as providing a sound basis to ensure Australia remains ahead of the threats’. The Prime Minister said that a taskforce would be established in the Department of the Prime Minister and Cabinet to ‘manage implementation of the changes and to consider them in detail’, and that he anticipated the reforms would be ‘implemented progressively’ and ‘completed through the course of 2018’.26

Concluding comments

1.97
The Committee continued to operate at a high tempo during 2015–16. The ongoing review of administration and expenditure, and the reviews of proposed and existing pieces of legislation, placed significant demands on the Committee. In the context of a dynamic security and technological environment, the Committee also made efforts throughout the year to ensure it was well-informed about current and emerging issues.
1.98
The Committee recognises that the intensity of its work will extend further in the current financial year, with several statutory reviews to be completed in addition to the Committee’s other responsibilities.
1.99
The Committee also recognises that the recommendations of the 2017 Independent Intelligence Review, if implemented, will have significant implications for the way the Committee conducts its business in the future. This will include an expansion of the Committee’s oversight remit to additional agencies and a strengthening of the Committee’s relationships with the Inspector-General of Intelligence and Security, the Independent National Security Legislation Monitor and the Director-General of the (to be established) Office of National Intelligence. The Committee will closely monitor the development of these arrangements and work to ensure they are as effective as possible.
1.100
During the year, the Committee again benefitted from the assistance of technical advisors from the relevant government organisations who provided specialist expertise to assist the Committee’s inquiries into the post-sentence preventative detention regime for high risk terrorist offenders, telecommunications sector security reforms and ASIO’s questioning and detention powers. The Committee thanks these officers for their valuable contribution to these inquiries.
1.101
The Committee also thanks the stakeholders, including submitters, witnesses and government officials, who contributed to the Committee’s work throughout the year.
Mr Andrew Hastie MP
Chair
November 2017


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