1. Committee activities during the review period
   1. The Parliamentary Joint Committee on Intelligence and Security (PJCIS) is established pursuant to section 28 of the Intelligence Services Act 2001 (IS Act). The functions of the Committee are set out in section 29 of the IS Act which is reproduced at Appendix A.[1]
   2. The Committee is required by section 31 of the IS Act to provide the Parliament with a report on its activities over each financial year. This report fulfils that requirement for the period from 1 July 2023 to 30 June 2024.

The year in review

1.3The Committee continued with a busy program of work during the 2023-24 reporting year. It was largely occupied with reviewing a range of prospective and existing national security legislation, in addition to its ongoing oversight activities.

1.4As discussed throughout this report, the year also saw reforms proposed or implemented that affected the Committee’s work, including in relation to terrorist organisations and citizenship cessation, as well as changes to the Committee itself.

1.5A significant change to the Committee during the period resulted from the commencement of legislative amendments to its membership and quorum.

1.6The National Security Legislation Amendment (Comprehensive Review and Other Measures No.2) Act 2023 (NSLA No.2) commenced on 12 August 2023. The Act included amendments to the IS Act increasing the Committee’s membership from 11 to 13 members, and changing the composition requirements from 5 Senators and 6 House of Representatives members to a more flexible formula of 2 Government Senators, 2 non-government senators, 2 Government House members and 2 non-government House members; with the remaining five members not constrained by chamber or affiliation, although the requirement in the IS Act that the majority of Committee members be Government members was not changed. NSLA No.2 also amended the quorum for the Committee, from six to seven members.[2]

1.7At the commencement of the reporting period the Committee had ten serving members and one vacancy. Following the commencement of NSLA No.2, the Committee had three vacancies, until 14 September 2023 when two new members were appointed by the House of Representatives: Mr Luke Gosling OAM MP and Ms Zoe McKenzie MP.[3]

1.8The Committee then had 12 members and one vacancy for the remainder of the period. These 12 comprised five Senators and seven members of the House of Representatives. A majority of the Committee’s members (seven) were Government members, as required by the IS Act.

Overview of activities

1.9Over the review period the Committee held 50 meetings and briefings, including eight public hearings. This supported the Committee’s work across 21 inquiries during the period. The Committee presented 14 reports including its annual report for 2022-23.

1.10Notable reviews and inquires concluded during the review period included:

• review of the Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023
• review of citizenship cessation provisions under the Citizenship Act 2007, notably the amendments made by the passage of the Australian Citizenship Amendment (Citizenship Repudiation) Act 2023
• review of the Foreign Influence Transparency Scheme Act 2018.
  11. A list of all reports presented by the Committee during the review period and government responses received is at Appendix B.

Oversight responsibilities

Reviews of administration and expenditure

1.12Paragraph 29(1)(a) of the IS Act requires the Committee to review the administration and expenditure of the six intelligence agencies that comprise the (former) Australian Intelligence Community (AIC):

• Australian Geospatial-Intelligence Organisation (AGO)
• Australian Security Intelligence Organisation (ASIO)
• Australian Secret Intelligence Service (ASIS)
• Australian Signals Directorate (ASD)
• Defence Intelligence Organisation (DIO)
• Office of National Intelligence (ONI).
  13. In exercising this function, the Committee conducts annual reviews of the administration and expenditure of these agencies, largely through the receipt and examination of classified evidence.
  14. The Committee examines the financial performance and management of each agency and the budgetary framework in which each agency operates. The Committee may also consider other matters that impact on the administration of agencies, such as organisational restructuring, change management, human resources management and staffing issues, agency governance and legal compliance.

Administration and Expenditure review No. 20 (2020-2021)

1.15Following completion of the 20th review at the end of the previous reporting period, the Committee’s report was presented to Parliament on 31 July 2023.

1.16The report made four recommendations. Two were proposed measures to strengthen AIC oversight, by better facilitating intelligence agency audits by the Australian National Audit Office (ANAO), and enabling intelligence agencies to provide their classified annual reports to the Committee. The third recommendation was that ONI coordinate consistent data collection on staff movement and retention in the intelligence community; and the fourth related to enhanced communication with Australians about misinformation, disinformation and harmful propaganda that threaten national security.

Administration and Expenditure review No. 21 (2021-2022)

1.17The Committee commenced its 21st review of administration and expenditure, for the financial year 2021-22, in November 2022.

1.18Focus areas agreed by the Committee for this review were:

• cyber resilience and cyber assurance processes
• financial management and efficiency, including opportunities for collaboration across the National Intelligence Community (NIC)
• strategic workforce planning activities and initiatives, including long-term recruitment planning, attracting and retaining specialised skill sets, and initiatives directed at diversity and inclusion
• governance and compliance systems.
  19. The Committee received submissions from the AIC agencies, the Australian National Audit Office (ANAO) and the Inspector-General of Intelligence and Security (IGIS).
  20. The Committee held classified hearings for this review on 7 and 8 June 2023, and presented its report to Parliament on 26 June 2024. The report made one recommendation: that ASD provide the Committee with biannual updates on the progress of its REDSPICE program,[4] until the program concludes.

Administration and Expenditure review No. 22 (2022-2023)

1.21The Committee launched its 22nd review of administration and expenditure, for the financial year 2022-23, in September 2023.

1.22The focus areas agreed by the Committee for this review were:

• artificial intelligence, machine learning and bio-intelligence
• policies, guidelines and other initiatives for staff support services
• strategic workforce planning activities and initiatives, including long-term recruitment planning, attracting and retaining specialised skill sets, and initiatives directed at diversity and inclusion
• the use of external contractors.
  23. The Committee received submissions from the six AIC agencies, ANAO and IGIS. While most submissions were classified, ONI, IGIS and ANAO provided unclassified versions of their submissions which were published by the Committee.[5] Supplementary (classified) submissions were also received from agencies during the course of the review. The Committee held classified hearings for the review on 16 and 17 April and 15 and 16 May 2024.
  24. At the end of the reporting period, the Committee’s review of administration and expenditure No. 22 was still underway.

Review of listings of terrorist organisations under the Criminal Code

1.25Under Division 102 of Schedule 1 to the Criminal Code Act 1995 (Criminal Code) it is an offence to direct the activities, be a member of, associate with or conduct a range of activities in support of a specified (‘listed’) terrorist organisation. Terrorist organisations are listed by regulations made by the Governor-General on the advice of the Minister responsible for the Australian Federal Police (AFP). Division 102 provides for review by the Committee of regulations listing terrorist organisations.

1.26The reporting period saw the Committee conduct four reviews of the listing or re-listing of terrorist organisations. In addition, changes were made to provisions governing the listing of terrorist organisations, and the Committee’s power to review them.

1.27Until February 2024, the Criminal Code provided that terrorist organisations were listed for a period of three years at a time, following which the listing instrument would cease, or ‘sunset’, unless new regulations were made re-listing the organisation. The Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023, which commenced on 5 February 2024, repealed the provisions for sunsetting of terrorist organisation regulations, meaning that from that date, organisations remained listed indefinitely unless de-listed by ministerial declaration.

1.28The Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Act 2023 made corresponding amendments to the provisions for review bythe Committee of regulations specifying an organisation as a terrorist organisation. Rather than providing for Committee review upon the listing or re-listing of each organisation, to be completed within the parliamentary disallowance period for the relevant regulation, the amended section 102.1A of Schedule 1 of the Criminal Code provided that the Committee may review a terrorist organisation instrument at any time, and report the Committee’s comments and recommendations to each House of Parliament.

1.29The effect of these changes was that the Committee’s opportunity for review of each terrorist organisation listing will no longer ‘automatically’ arise every three years, when a listing instrument is remade. The onus is instead on the Committee to determine if and when a listing may warrant review. Following the changes, the Committee requested that the Government put processes in place to keep the Committee informed about any future changes to terrorist organisation listings, and to provide periodic updates on the activities of listed groups, in order to ensure that the Committee is able to continue carrying out its review responsibilities on behalf of Parliament under the new provisions.

1.30During the reporting period (1 July 2023 to 30 June 2024), the Committee conducted the following reviews of regulations listing or relisting terrorist organisations under the Criminal Code.

Review of the relisting of three organisations as terrorist organisations under the Criminal Code

1.31On 26 July 2023, the Committee commenced a review of regulations relisting Islamic State, Islamic State West Africa Province and Boko Haram as terrorist organisations under the Criminal Code.

1.32The Committee invited public submissions. In addition to the usual submission from the Attorney-General’s Department (AGD) comprising information and documents relating to the listing, the Committee received one submission from a member of the public. Further, during its consideration of the listing the Committee wrote to the Minister for Home Affairs seeking clarification on an aspect of the listing process. A response was received from the Department of Home Affairs and published by the Committee as a third submission to the review.

1.33The Committee’s report, in the form of a statement to Parliament, was presented on 13 September 2023. The Committee reported that it was satisfied with the processes followed in respect of the three organisations, and supported their relisting as terrorist organisations.

Review of the relisting of Islamic State East Asia as a terrorist organisation under the Criminal Code

1.34The Committee commenced a review on 12 September 2023 of a regulation made on 31 August 2023 relisting Islamic State East Asia as a terrorist organisation under the Criminal Code.

1.35The Committee received the usual submission from AGD and one from a member of the public.

1.36The Committee presented its report, in the form of a statement to Parliament, on 19 October 2023. The Committee reported that it was satisfied with the process and supported the re-listing of Islamic State East Asia as a terrorist organisation.

Review of the relisting of two organisations as terrorist organisations under the Criminal Code

1.37Regulations relisting Jama’at Nusrat al-Islam wal-Muslimin and Islamic State Khorasan Province as terrorist organisations were made on 27 October 2023.

1.38The Committee launched its review of these relistings on 14 November 2023 and invited public submissions. Aside from the submission from AGD, no submissions were received by the Committee.

1.39The Committee presented its report, in the form of a statement to Parliament, on 6 December 2023. The Committee reported that it was satisfied with the processes followed in respect of the two organisations and supported their relisting as terrorist organisations.

Review of the relisting of Ansar Allah as a terrorist organisation under the Criminal Code

1.40On 25 June 2024 the Committee commenced a review into a regulation made on 23 May 2024, listing Ansar Allah (frequently referred to as the Houthis or Houthi movement) as a terrorist organisation under the Criminal Code for the first time.

1.41At the end of the reporting period, the review was still underway.

Reviews under the Citizenship Act

1.42Until 7 December 2023, the Australian Citizenship Act 2007 (Citizenship Act) conferred certain functions on the Committee, including reviewing ministerial declarations of a ‘declared terrorist organisation’ under section 36C of the Act, and receiving advice and briefings about ministerial decisions relating to citizenship cessation, under section 51C of the Act.

1.43No declarations were made or notifications received by the Committee under the Citizenship Act between 1 July and 7 December 2023.

1.44On 8 December 2023 the Australian Citizenship Amendment (Repudiation) Act 2023 commenced. This Act, discussed further below, repealed and replaced the citizenship cessation regime under the Citizenship Act. This included the repeal of sections 36C and 51C conferring functions on the Committee.

Review of ‘Declared Areas’ under the Criminal Code

1.45Section 119.2 of the Criminal Code provides that it is an offence for a person to enter, or remain, in a ‘declared area’. Section 119.3 provides that the Minister for Foreign Affairs may, by legislative instrument, declare an area in a foreign country for the purposes of section 119.2 if he or she is ‘satisfied that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country’.

1.46The Criminal Code provides that the Committee may review such declarations by the Minister for Foreign Affairs and report to the Parliament within the 15 sitting days’ disallowance period for a declaration, or at any time a declaration is in effect.

1.47No such declarations were made during the reporting period, and as of 30 June 2024 there were no declared areas under the Criminal Code.

Temporary Exclusion Orders

1.48Paragraph 29(1)(cd) of the IS Act requires that the Committee monitor and review the exercise of powers under the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 (TEO Act) by the Minister administering that Act. The TEO Act empowers the Minister to issue a temporary exclusion order in respect of an Australian citizen overseas which prevents that person’s return to Australia without a return permit, and to issue a return permit placing conditions on the person’s return.

1.49The Minister responsible for the AFP is required under section 31 of the TEO Act to provide an annual report to Parliament in respect of the operation of that Act. The report for the year ending on 30 June 2024 advised that:

• one temporary exclusion order was made
• no temporary exclusion orders were revoked
• no temporary exclusion orders were taken to never have been made because of the operation of paragraph 14(7)(a) of the Act
• no temporary exclusion orders came into force immediately after being made
• no return permits were issued, varied or revoked
• nobody subject to a return permit entered Australia
• nobody was charged with an offence against the Act.[6]

Oversight of AFP counter-terrorism and stop, search and seizure activities

1.50Pursuant to paragraph 29(1)(baa) of the IS Act it is a function of the Committee to monitor and review the performance by the AFP of its functions under Part 5.3 of the Criminal Code and Part IAA of the Crimes Act 1914 (Crimes Act).

1.51Part 5.3 of the Criminal Code relates to Commonwealth terrorism offences and the control order, preventative detention order, and post-sentence order regimes. Division 3A of Part IAA of the Crimes Act provides for stop, search and seizure powers made available to the AFP in relation to terrorism offences.

1.52It is the Committee’s practice to review the AFP’s exercise of these functions each year by seeking information from the AFP and from the Commonwealth Ombudsman, which exercises certain oversight functions in relation to the AFP’s Part 5.3 powers.

1.53Details of the AFP’s exercise of its Part 5.3 powers during the reporting period are outlined at Appendix C of this report.

Review of retained data activities of the AFP and ASIO

1.54Part 5-1A of the Telecommunications (Interception and Access) Act 1979 (TIA Act) provides for a mandatory data retention regime which requires telecommunication carriers, carriage service providers and internet service providers to retain a defined set of telecommunications data for two years. The regime is designed to ensure that such data remains available for law enforcement and intelligence investigations, and the TIA Act establishes a warrant system for specified agencies to seek access to this data. These are known as ‘retained data’ provisions and activities.

1.55Pursuant to paragraph 29(1)(bd) of the IS Act, it is a function of the Committee to 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 paragraph 29(1)(be) of the IS 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 under Part 5.3 of the Criminal Code. These reviews are subject to certain restrictions under subsections 29(1)(4) and 29(1)(5) of the IS Act.

1.56ASIO provided its 2023-2024 annual report, including the relevant classified annexes, to the Committee on 4 November 2024. The Committee continues to review the retained data activities of ASIO as part of its administration and expenditure reviews.

1.57The Committee receives an annual briefing from the AFP and the Commonwealth Ombudsman to identify any issues relating to the AFP’s retained data activities. No concerns were identified regarding significant or systemic non-compliance in the 2023-24 reporting period.

Notifications

1.58In addition to the above, several other Acts contain provisions requiring that the Committee be notified, or provided with a report, when certain actions are taken or certain events occur: for example, in relation to emergency authorisations of certain intelligence agency activities, telecommunications warrants, and critical infrastructure incidents. Such notifications enable the Committee to monitor sensitive national security activities and decisions, and when it deems necessary, seek further information or briefing from relevant agencies to satisfy itself about the decision made or action taken.

1.59Appendix D sets out the notifications and reports received by the Committee during the reporting period.

Bill inquires

1.60The Committee completed reviews of four bills during the reporting period:

• Counter-Terrorism and Other Legislation Amendment Bill 2023
• Counter-Terrorism Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023
• Defence Amendment (Safeguarding Australia’s Military Secrets) Bill 2023
• National Security Legislation Amendment (Comprehensive Review and Other Measures No.3) Bill 2023.
  61. At the conclusion of the reporting period, three further bills were under review by the Committee:
• Intelligence Services Legislation Amendment Bill 2023
• Counter-Terrorism Legislation Amendment (Declared Areas) Bill 2024
• Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2024.

Counter-Terrorism and Other Legislation Amendment Bill 2023

1.62On 10 August 2023 the Attorney-General introduced the Counter-Terrorism and Other Legislation Amendment Bill 2023 into Parliament and referred it to the Committee for inquiry and report.

1.63The Bill sought to amend the Crimes Act and the Criminal Code to extend the operation of AFP powers relating to terrorism for a further three years, to December 2026. The powers were otherwise scheduled to ‘sunset’ in December 2023.

1.64The Bill also sought to implement a number of changes to counter-terrorism powers in response to the recommendations of a 2021 PJCIS review of police powers, strengthening safeguards and procedures in relation to matters including prescribed security zones, stop and search powers, control orders and preventative detention orders.

1.65The Bill further included provision to extend the operation of the offence of unauthorised disclosure of information by current and former Commonwealth officers (section 122.4 of the Criminal Code), by 12 months to December 2024, pending the completion of a Government review of Commonwealth secrecy provisions.

1.66The Committee received eight submissions and held one public hearing. The Committee presented its report on 19 October 2023.

1.67In its submission to the inquiry AGD had advised the Committee that the Government intended to introduce amendments to the Bill implementing a post-entry warrant framework, and provided the Committee with a copy of the proposed amendments. The Committee recommended that the Government introduce those amendments, and following the implementation of that recommendation, that the Bill be passed by parliament.

Counter-Terrorism Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023

1.68On 14 June 2023 the Attorney-General wrote to the Committee referring the Counter-Terrorism Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 for inquiry and report. The Committee commenced its review of the Bill on 21 June 2023.

1.69The Bill proposed amendments to the Criminal Code to

• create offences for publicly displaying prohibited Nazi or Islamic State symbols, and trading in items bearing these symbols
• create offences for using a carriage service to deal with violent extremist material
• strengthen the offence of advocating terrorism, and
• remove the sunsetting of terrorist organisation listings, so that listings would operate until a decision is made to proactively de-list an organisation.
  70. The Committee received 162 submissions including 11 supplementary submissions. The majority of submissions came from collectors and traders concerned about the new offences for displaying and trading items bearing prohibited symbols. The Committee held a public hearing on 1 September 2023.
  71. The Committee presented its report on 15 November 2023. The Committee recommended that the Bill be passed subject to five recommendations, regarding:
• removing the specific reference to the Islamic State flag as a prohibited hate symbol, and instead considering the establishment of an offence prohibiting the public display and trade of symbols associated with proscribed terrorist organisations
• delaying the entry into force of offences for the trading of items bearing a prohibited symbol for a period of 6-12 months, so that collectors would have a window in which to dispose of part or all of their collections if they wished
• extending exemptions from the offences for participants in news and current affairs reporting
• clarifying the Committee’s responsibility to report to Parliament on its reviews of listings of terrorist organisations under the Criminal Code.

Defence Amendment (Safeguarding Australia’s Military Secrets) Bill 2023

1.72On 13 September 2023 the Deputy Prime Minister and Minister for Defence, the Hon Richard Marles MP, wrote to the Committee referring the Defence Amendment (Safeguarding Australia’s Military Secrets) Bill 2023 for inquiry and report.

1.73The Bill sought to amend the Defence Act 1903, through the insertion of a new Part IXAA which would regulate the work that certain former defence staff members—called foreign work restricted individuals—could perform for or on behalf of a military organisation or government body of a foreign country, without a foreign work authorisation. The Bill also proposed to regulate the training that Australian citizens and permanent residents may provide to foreign militaries or governments without a foreign work authorisation.

1.74The Committee commenced its inquiry on 14 September and received 12 submissions. A public hearing for the inquiry was held on 22 February 2024.

1.75In its report, presented on 14 March 2024, the Committee made the following recommendations:

• that the Government consider amending the Bill to extend exemptions from offences to members of all components of the International Red Cross and Red Crescent Movement
• that the Government assess whether existing legislation and procedures sufficiently cover former defence personnel providing work or training to paramilitary organisations and militias
• that the Government amend the offence relating to provision of training to make it less broad and more purposeful
• that the Government consider amending the Bill to provide the Minister for Defence with the ability to determine by legislative instrument classes or categories of non-former Defence members that are not required to apply for an authorisation
• that the Government assess how existing legislation and procedures covering former National Intelligence Community officers and their work for foreign governments should be strengthened, and address the need for further legislation
• that the Bill be passed.

Review of the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023

1.76The National Security Legislation Amendment (Comprehensive Review and Other Measures No. 3) Bill 2023 was introduced into Parliament, and referred to the Committee for review and report, on 30 November 2023.

1.77The Bill sought to amend the Australian Security Intelligence Organisation Act 1979 (ASIO Act), the IS Act, TIA Act and Archives Act 1983 to implement 12 recommendations of the 2020 Comprehensive Review of the Legal Framework of the National Intelligence Community led by Mr Dennis Richardson AC. The proposed amendments included:

• strengthening provisions to protect the identity of ASD, ASIO and ASIS employees
• improving ASIO’s ability to communicate certain information
• updating approval processes and clarifying provisions for certain intelligence activities
• supporting quicker processing, and increased transparency, of ASIO security assessments.
  78. The Committee commenced its inquiry on 7 December 2023 and received five public submissions and one classified submission, as well as correspondence from the Independent National Security Legislation Monitor (INSLM) regarding potential interaction between the Bill and the INSLM’s review of Commonwealth secrecy offences.
  79. The Committee’s report was presented on 21 March 2024 and made recommendations relating to strengthening reporting and notifications regarding security assessments, reporting on ASD cover arrangements, and further alignment of secrecy offences. The Committee recommended that, following implementation of these recommendations, the Bill be passed.

Review of the Intelligence Services Legislation Amendment Bill 2023

1.80The Intelligence Services Legislation Amendment Bill 2023 was introduced into Parliament by the Attorney-General on 14 June 2023 and referred to the Committee on 22 June 2023 for review and report.

1.81The Bill proposed to amend the Inspector-General of Intelligence and Security Act 1986 and the IS Act to make a range of changes to the functions and powers of the PJCIS and the IGIS, including to:

• expand the jurisdiction of the IGIS and the PJCIS to include all agencies now comprising the National Intelligence Community (NIC), by adding oversight of the Australian Criminal Intelligence Commission (ACIC), and the intelligence functions of the Australian Transaction Reports and Analysis Centre (AUSTRAC),AFP and Department of Home Affairs
• provide the PJCIS with a limited ‘own motion’ power to review proposed reforms to counter-terrorism and national security legislation, and all such expiring legislation
• enable the PJCIS to request that the IGIS conduct inquiries into the legality and propriety of particular operational activities of the agencies within the IGIS’s jurisdiction
• require the IGIS and the Director-General of ONI to provide annual briefings to the PJCIS.
  82. The Bill also contained various technical amendments to the provisions of the IS Act relating to the Committee, including to clarify the role of subcommittees, clarify the categories of information the Committee cannot disclose, and amend the level of security clearance that needs to be held by members of the secretariat.
  83. By the end of the reporting period, the Committee had received ten submissions and six supplementary submissions and held one public hearing, on 12 December 2023. At 30 June 2024, the review remained ongoing.

Counter-Terrorism Legislation Amendment (Declared Areas) Bill 2024

1.84The Counter-Terrorism Legislation Amendment (Declared Areas) Bill 2024 was introduced into the House of Representatives on 27 March 2024. On 3 April 2024, the Bill was referred to the Committee for review.

1.85The amendments in the Bill primarily sought to continue the declared areas offence in section 119.2 of the Criminal Code for a further three years, until 7 September 2027.

1.86The Committee received eight submissions and five supplementary submissions and held a public hearing on 20 May 2024. At the end of the reporting period the Committee’s review was ongoing.

Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2024

1.87The Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2024 was introduced into the House of Representatives on 27 March 2024.

1.88The Bill sought to amend and clarify the intended operation of provisions in various crime-related statutes, including by:

• expressly authorising police executing search warrants to seize digital assets, such as cryptocurrency, including by accessing a person’s digital wallet and transferring its contents
• extending investigative and freezing powers relating to financial institutions to cover digital currency exchanges
• increasing the value of the Commonwealth ‘penalty unit’ from $313 to $330
• creating a position of Communications Security Coordinator in the Department of Home Affairs, with responsibility for certain telecommunications security functions
• amending information-sharing provisions in the TIA Act relevant to state-based oversight bodies for integrity agencies.
  89. The Committee commenced its review on 11 April 2024 and received seven submissions and one supplementary submission. At the end of the reporting period the Committee’s review was ongoing.

Statutory reviews

1.90The Committee completed four statutory reviews during the reporting period. Two related reviews were effectively merged, and reported on in a single report:

• Review of Subdivision C of Division 3 of Part 2 of the Australian Citizenship Act 2007 (citizenship cessation determinations)
• Review of the amendments made by the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023.
  91. The other two completed reviews related to the Foreign Influence Transparency Scheme:
• Review of the Foreign Influence Transparency Scheme Act 2018
• Review of the Foreign Influence Transparency Scheme Amendment Rules 2023.
  92. At the conclusion of the reporting period, three statutory reviews remained before the Committee, relating to:
• Division 3 of Part III of the ASIO Act
• Division 105A of the Criminal Code
• the Migration Amendment (Clarifying International Obligations for Removal) Act 2021.

Review of Subdivision C of Division 3 of Part 2 of the Australian Citizenship Act 2007 (citizenship cessation determinations)

1.93The Committee was required under paragraph 29(1)(ca) of the IS Act, to commence, by the third anniversary of the commencement of the Australian Citizenship Amendment (Citizenship Cessation) Act 2020, a review of the operation, effectiveness and implications of Subdivision C of Division 3 of Part 2 of the Australian Citizenship Act 2007 (Citizenship Act) which relates to citizenship cessation; and any other provision of that Act as far as it relates to that Subdivision. The third anniversary fell on 18 September 2023.

1.94Accordingly, the Committee commenced the review and invited submissions on 12 September 2023.

1.95When the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 was introduced and passed by Parliament in late 2023, the resultant Australian Citizenship Amendment (Citizenship Repudiation) Act 2023 repealed and replaced the operative provisions of Subdivision C of Division 3 of Part 2 of the Citizenship Act. As discussed below, those amendments were separately referred to the Committee for review.

1.96Given the resulting duplication between the two matters, the Committee resolved to combine its statutory review of the Citizenship Act with the newly-referred review.

1.97The Committee conducted a single inquiry covering both reviews, and presented its report on 21 March 2024, as set out below.

Review of the amendments made by the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023

1.98The Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023 was introduced into Parliament on 29 November 2023, passed both Houses by 6 December 2023, and became law on 7 December 2023.

1.99On 4 December 2023, while the Bill was still before the Senate, the Senate resolved:

That, following the passage of the Bill, the following matter be referred to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report by 14 March 2024: The operation, effectiveness and implications of the amendments made by the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023.[7]

1.100On 7 December 2023 the Senate further resolved:

That the Parliamentary Joint Committee on Intelligence and Security, in undertaking any inquiry into the amendments made by the Australian Citizenship Amendment (Citizenship Repudiation) Bill 2023, also consider any amendments to the Bill which have been circulated in the Senate.[8]

1.101The referral of this review was unusual in a number of ways. It was the first instance in the Committee’s recent history in which an inquiry was referred to it by the Senate, in accordance with paragraph 29(1)(b)(ii) of the IS Act. The terms of the first reference from the Senate were unorthodox in requiring the Committee to inquire into and report on amendments made by a bill, but only after that bill had passed. The second Senate resolution added further complexity in requiring the Committee to consider amendments that had been proposed, but not agreed, during the Senate’s consideration of the Bill.

1.102Moreover, as noted above, the Committee had already commenced its review of the operation, effectiveness and implications of Subdivision C of Division 3 of Part 2 of the Citizenship Act. The two inquiries being substantively identical, the Committee decided to combine the two reviews and report on them together.

1.103The Committee commenced its (combined) inquiry on 7 December 2023. It received 13 submissions and two supplementary submissions. The Committee held a public hearing on 19 February 2024 with academics, legal experts and relevant Government agencies.

1.104The Committee presented its report on 21 March 2024, making two recommendations:

• that the Government consider any potential amendments to the new cessation regime in the Citizenship Actafter a reasonable period of 18-24 months so that its operation and effectiveness can be assessed; and
• that in any such review the Government:

• further consider the safeguards against rendering a person stateless within the Citizenship Act, to ensure that the provisions prevent the possibility of a person being left legally or effectively stateless; and
• reconsider the inclusion of children aged 14-17 in the citizenship cessation regime and, if application of the regime to children is considered absolutely necessary, limit it to exceptional circumstances.

Review of the Foreign Influence Transparency Scheme Act 2018

1.105The Foreign Influence Transparency Scheme (FITS) was introduced in 2018 with the purpose of bringing transparency to activities undertaken by Australians on behalf of foreign principals, particularly where those activities are intended to influence Australian political and governmental systems or processes.

1.106Section 70 of the Foreign Influence Transparency Scheme Act 2018 (FITS Act) required the PJCIS to initiate a review of the operation, effectiveness and implications of the FITS, by its third anniversary in December 2021.

1.107The former Committee, in the 46thParliament, commenced its review of the FITS on 6 August 2021. The Committee received a number of submissions, but the inquiry lapsed with the dissolution of the House of Representatives in April 2022. The new Committee in the 47th Parliament relaunched the review on 7 September 2022, accepting the evidence already received as well as new submissions.

1.108The review received 20 submissions and five supplementary submissions in total, and held one public hearing on 21 February 2023. The Committee also received three private briefings with relevant Government agencies during the life of the review.

1.109The Committee presented its report on 27 March 2024. The report concluded that there were ‘significant flaws’ in the FITS, which required ‘substantial reform’ to meet its original intent and justify the resource and compliance burdens generated by it. The Committee made 14 recommendations which mostly focused on amending the FITS Act to address the concerns identified by the Committee. The Committee also recommended work to ease the regulatory burden of compliance with the FITS, adequate resourcing for its management, and ongoing monitoring and oversight of its operation and reform.

Review of the Foreign Influence Transparency Scheme Amendment Rules2023

1.110While the Committee was undertaking its review of the FITS Act, a legislative instrument was made amending the rules about what, and to whom, information obtained by AGD under the FITS may be shared with others. The Foreign Influence Transparency Scheme Amendment Rules 2023 (FITS amendment rules) were made on 30 June 2023 and took effect on 1 July 2023.

1.111Subsection 53(3) of the FITS Act requires the Committee to review such rules as soon as possible after they are made, and report its comments and recommendations to each House of Parliament within the 15 sitting day disallowance period for the instrument.

1.112The FITS amendment rules provided for the Secretary of AGD to communicate FITS information to the Minister for Foreign Affairs and the Department of Foreign Affairs and Trade, for the purposes of their administration of the Foreign Arrangements Scheme; a separate but related transparency scheme established in 2020.

1.113The Committee opened its review of the FITS amendment rules on 26 July 2023. The Committee invited public submissions to the review but did not receive any. The Committee held a private briefing on 10 August 2023 to discuss the rules with representatives of AGD and the Department of Foreign Affairs and Trade.

1.114The Committee presented its report, in the form of a statement to Parliament, on 11 September 2023. The Committee concluded that the FITS amendment rules were reasonable and justified, making no recommendations for their amendment or disallowance.

Review of Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979 (compulsory questioning powers)

1.115On 7 September 2023, the Committee commenced a Review of Division 3 of Part III of the ASIO Act, in accordance with paragraph 29(1)(ce) of the IS Act.

1.116Division 3 of Part III of the Act provides for the Attorney-General to issue, at ASIO’s request, a warrant requiring a person to appear before a prescribed authority to give information, or produce a record or other thing, that is, or may be, relevant to intelligence that is important in relation to a matter of espionage, politically motivated violence or foreign interference.

1.117The Committee received eight submissions and four supplementary submissions, and held a public hearing on 23 May 2024. At the end of the reporting period the Committee’s review was ongoing.

Review of Division 105A of the Criminal Code Act 1995

1.118Under paragraph 29(1)(bbaaa) of the IS Act, the Committee was required to commence a review of the operation, effectiveness and implications of Division 105A of the Criminal Code, and any other provision of the Criminal Code as it relates to that Division, within 12 months of the INSLM completing a review into that Division.

1.119Division 105A provides for court orders for the continued detention or extended supervision of individuals who have served a sentence for a serious terrorism offence, and are considered to pose an unacceptable risk to the community if they are released without restriction.

1.120On 30 March 2023, the Attorney-General presented the INSLM’s review of Division 105A to Parliament. Consequently, the Committee launched its review of Division 105A of the Criminal Code on 11 May 2023.

1.121The Committee received 15 submissions from government, advocacy groups and legal experts and held a public hearing on 15 March 2024.

1.122At the end of the reporting period the Committee’s review was ongoing.

Review of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021

1.123On 15 May 2023, the Committee commenced a review required by paragraph 29(1)(cf) of the IS Act into amendments made to the Migration Act 1958 (Migration Act) by Schedule 1 of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (CIOR Act).

1.124Schedule 1 of the CIOR Act amended provisions of the Migration Actrelating to protection visas, to clarify that the Migration Act does not authorise the removal of a person who is found to attract Australia’s protection obligations under international law, and to require that Australia’s protection obligations be considered before a decision is made to grant or refuse a protection visa.

1.125The Committee received 10 submissions. At the end of the reporting period, the Committee’s review was ongoing.

Other activities of the Committee

Private briefings

1.126The Committee received a range of private briefings from relevant Commonwealth departments and agencies throughout the reporting period. These briefings variously related to specific inquiries, followed correspondence or notifications received by the Committee, supported broader Committee oversight of the intelligence community and assisted with its monitoring of national security matters.

1.127The Committee thanks those who provided briefings and engaged in frank and informative discussions with the Committee.

Senator Raff Ciccone

Chair

18 November 2024

Footnotes

[1]In addition to the Intelligence Services Act 2001, other legislation also imposes specific functions on the Committee, including (but not limited to) the Criminal Code Act 1995 and the Telecommunications (Interception and Access) Act 1979.

[2]National Security Legislation Amendment (Comprehensive Review and Other Measures No.2) Act 2023, Schedule 1, Part 3.

[3]House of Representatives, Votes and Proceedings, No.84—14 September 2023, p. 1012 (Item 13).

[4]The Resilience – Effects – Defence – SPace – Intelligence – Cyber – Enablers (REDSPICE) initiative was launched in March 2022 and described as ‘the most significant single investment in the Australian Signals Directorate’s 75 years’. See https://www.asd.gov.au/about/what-we-do/redspice.

[5]PJCIS Review of Administration and Expenditure No. 22 (2022-2023)—Australian intelligence agencies: Inspector-General of Intelligence and Security, Submission 6; Australian National Audit Office, Submission 7; Office of National Intelligence, Submission 8.

[6]Department of Home Affairs, ‘Report made under section 31 of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019, 1 July 2023 to 30 June 2024, https://www.homeaffairs.gov.au/reports-and-pubs/files/reports-to-parliament/temporary-exclusion-order-report-2023-2024.pdf.

[7]Journals of the Senate, No.91—4 December 2023, pp. 2554-2555 (Item 21).

[8]Journals of the Senate, No.94—7 December 2023, p. 2779 (Item 16).