The following chapter considers stakeholders’ views regarding the provisions of the bill. The chapter also outlines the committee’s views in relation to the bill.
The committee received four submissions to its inquiry, including one provided by the Inspector-General of Intelligence and Security (IGIS) and a joint submission from the Attorney-General’s Department, the Department of Defence, the Department of Foreign Affairs and Trade, the Department of the Prime Minister and Cabinet and the Department of Home Affairs (Joint Department submission). The committee also received evidence from stakeholders during a public hearing held in Canberra on 10 November 2020.
Oversight of national intelligence agencies
In providing their views in relation to the provisions of the bill, stakeholders stressed the importance of national intelligence entities, and were in general agreement that our national intelligence entities are critical to the ongoing protection of Australia and its interests.
The Australian Institute of Professional Intelligence Officers (AIPIO), for example, highlighted the importance of national intelligence, and argued that the National Intelligence Enterprise (NIE):
… is critical to the ongoing protection of Australia and Australia’s interests, and arrangements put in place to coordinate and optimize Australia’s national intelligence effort should do just that.
It was also noted that – particularly since the events of 9/11 – Australia’s intelligence community has been vested with increased powers to ensure the maintenance of our national security and to protect the community.
Submitters to the inquiry agreed that these increased powers also need to be subject to appropriate oversight. The Joint Department submission, for example, argued that “robust and independent oversight of intelligence agencies, and agencies with intelligence functions, is imperative in maintaining public confidence in these agencies and their activities”.
Professor George Williams also argued that appropriate oversight is necessary, not only in terms of community confidence, but to ensure that the intelligence community operates within the law.
Stakeholders also provided their views in relation to amendments proposed by the bill, including: expanding the functions of the Inspector-General of Intelligence and Security (IGIS) and the Parliamentary Joint Committee on Intelligence and Security (PJCIS); the inclusion of the Department of Defence and the Australian Criminal Intelligence Commission (ACIC) in the expanded jurisdiction; and the issues associated with concurrent jurisdiction.
Expanding the functions of the IGIS and the PJCIS
As noted previously, the bill proposes to amend the Inspector-General of Intelligence and Security Act 1986 and the Intelligence Services Act 2001, in order to expand the functions of the IGIS, and the PJCIS, to apply to all ten agencies within the NIC.
Role of the PJCIS
In evidence, Mr Allan Behm of The Australia Institute made specific comments in relation to the expanded functions of the PJCIS. Noting that he had had discussions with Mr Michael L’Estrange and Mr Stephen Merchant while they were conducting the 2017 Review, Mr Behm advised that The Australia Institute supported the intention of the bill. Specifically, Mr Behm told the committee that:
…from a philosophical point of view, the direction of this bill is incredibly important because it accords to the PJCIS exactly the oversight which I think is required in terms of the recommendations of L’Estrange and Merchant, but, more particularly, the responsibilities of the Parliament itself.
Inclusion of the Department of Defence
A number of concerns were raised during the inquiry about the bill going beyond the recommendations of the 2017 Review, as it could result in the inclusion of the Department of Defence in the IGIS’s jurisdiction. The bill proposes to expand IGIS oversight to the ACIC and agencies ‘with an intelligence role or function’.
The term ‘agency with an intelligence role or function’ as included in the bill is defined by an existing definition in Section 4 of the Office of National Intelligence Act 2018.
In its submission, the IGIS noted that this definition captures the Australian Transaction Reports and Analysis Centre (AUSTRAC), the AFP, the Department of Home Affairs, and the Department of Defence (excluding the Australian Geospatial-Intelligence Organisation (AGO) and the Defence Intelligence Organisation (DIO), for which the IGIS already has oversight jurisdiction).
In its submission, the IGIS submission noted that the above definition is limited, to the extent that:
… each agency ‘collects, correlates, analyses, produces or disseminates intelligence that relates, or may relate, to national intelligence priorities, requirements or capabilities’; or to the extent that each agency maintains, or is developing, a capability to ‘materially assist’ in undertaking those intelligence-related activities.
While IGIS acknowledged that a decision to expand the IGIS’ jurisdiction to include additional agencies would be a matter of Government policy, it argued that the inclusion of the Department of Defence would go beyond Recommendation 21 of the 2017 Review.
The IGIS also noted the limitations the bill proposes to place on it with respect to its oversight role of these additional agencies. Specifically, the IGIS pointed to the appropriateness of its functions with respect to the additional agencies being limited to those activities which relate to ‘national intelligence priorities, requirements or capabilities’. Further, the IGIS questioned whether it was necessary for the IGIS’ oversight to:
… extend to the intelligence capabilities of these agencies (whether existing or in development), noting [the IGIS'] current role is to review the activities of intelligence agencies.
The Joint Department submission also drew attention to the bill’s proposal to expand the role of the IGIS and the PJCIS. Specifically, the Departments agreed with the view that in expanding the oversight role of both the IGIS and the PJCIS to include ‘all agencies with an intelligence role or function’ the broader Department of Defence would be included within their respective jurisdictions.
The Departments echoed the views of the IGIS, and noted that the bill’s proposal would extend beyond the 2017 Review recommendations. It was observed that the 2017 Review did not contemplate the extension of the IGIS oversight to the Department of Defence – beyond the AGO and the DIO.
The Joint Department submission argued that there are “already comprehensive oversight mechanisms for the Department of Defence”, including the Defence Force Ombudsman and the Inspector-General of the Australian Defence Force. Further, it was submitted that:
the Department of Defence also reports through both the Senate Standing Committee on Foreign Affairs, Defence and Trade and the Parliamentary Joint Committee on Foreign Affairs, Defence and Trade; and
the parts of the Department of Defence with intelligence functions are well-established in law, and are already subject to the IGIS oversight.
Professor George Williams and Dr Keiran Hardy (Williams and Hardy) responded to the Departments’ assertion that the IGIS’ oversight of additional agencies was not required due to existing oversight measures, and to the concerns regarding the Department of Defence being included within the remit of the IGIS and the PJCIS.
Williams and Hardy submitted that although the 2017 Review did not specifically include Defence as one of the 10 recommended included agencies, it ‘also did not exclude it either’. Williams and Hardy commented that the authors of 2017 Review stated that:
… there was a ‘compelling case for a consistent oversight regime to apply to all the intelligence capabilities that support national security’. They added that it was inappropriate and unnecessary to expand the remit of the IGIS or PJCIS beyond intelligence capabilities, but they did not exclude any particular agencies for other reasons, such as security concerns or existing oversight measures. Their concern was to increase oversight of intelligence functions performed by other agencies, provided that the additional oversight did not include their other, non-intelligence activities.
Williams and Hardy suggested that even though the proposed changes would include the Department of Defence in the list of additional agencies, the bill remained consistent with the recommendations of the 2017 Review. It was argued that:
Defence is clearly a department, to use the words of the Independent Review, which has ‘intelligence capabilities that support national security’. The fact that Defence was previously included in the Office of National Intelligence Act 2018 (Cth) as an ‘agency with an intelligence role or function’ provides further support for this position.
AIPIO provided an additional view on the inclusion of certain intelligence agencies to increased oversight. In reflecting on the efficacy of the bill – specifically its objective to improve oversight and accountability mechanisms for intelligence services – the Institute argued that it fails to achieve its goal, as the bill limits the agencies included in the expanded oversight arrangements, and only refers to agencies at the federal level – excluding those at the state and territory level. AIPIO submitted that:
Arguably, a national approach should incorporate the contributions of states and territories since we are referring to the protection of Australia and Australia’s interests. There is no longer any safe clear separation between federal and state/territory intelligence responsibilities in meeting Australia’s national security objectives. The NIE must truly be national.
Inclusion of the Australian Criminal Intelligence Commission (ACIC)
Concerns were also raised about the bill’s proposed inclusion of the ACIC in the expanded jurisdiction of the IGIS and the PJCIS.
For example, the Joint Department submission pointed out that the ACIC is an inter-jurisdictional body – the activities of which are directed by its Board and an Inter-Governmental Committee. It was argued that these bodies have functions which are analogous to the role played by a Minister.
The Departments went on to note that subsection 9AA(b) of the Inspector-General of Intelligence and Security Act 1986 provides that the IGIS may not inquire into the actions of Ministers (except as necessary as part of their oversight functions). It was submitted that the bill, however, ‘does not contain any such limitation on the ability of the IGIS to inquire into the Board or Inter-Governmental Committee’. Further, it was argued that it ‘would not be appropriate to allow the IGIS oversight of these bodies due to their inter-jurisdictional natures.’
IGIS – provision of briefings, and conduct of inquiries requested by the PJCIS
Provision of briefings
Amendments proposed by the bill to the Inspector-General of Intelligence and Security Act 1986 would require the IGIS to provide a briefing to the PJCIS once a quarter about the inquiries the Inspector-General is about to commence, has commenced, or has recently completed.
The IGIS indicated that it did not object to the proposal in principal, and noted that it does align with Recommendation 23(e) of the 2017 Review. The IGIS did, however, propose a more flexible arrangement, which would allow for occasions where it is not possible to meet the requirement – for example, when the parliament has been prorogued or dissolved.
It also suggested that, as an alternative, the provision require the IGIS to provide the PJCIS with private briefings ‘on a regular basis’, with the specific frequency to be determined by agreement between the PJCIS and the IGIS.
Conduct of inquiries
The bill’s amendments include permitting the PJCIS to request the IGIS to conduct an inquiry into a matter relating to an intelligence agency, the ACIC or an agency with an intelligence role or function. The bill would also amend Section 22 of the Inspector-General of Intelligence and Security Act 1986, to provide that the Inspector-General must also provide the PJCIS with a copy of the final report in relation to any inquiry commenced as a result of a request by the PJCIS.
However, the IGIS cautioned that such reports could contain operationally sensitive information – as defined in the Intelligence Services Act 2001 – and therefore sought some consideration around how this information would be handled.
As noted previously, the bill proposes amendments to the Inspector-General of Intelligence and Security Act 1986 which would expand the IGIS’s functions to include oversight of the intelligence functions of four additional agencies.
The IGIS noted that its oversight functions would sit ‘alongside the existing oversight functions performed by other integrity bodies – including the Commonwealth Ombudsman, the Australian Commission for Law Enforcement Integrity, the Australian Human Rights Commission and the Office of the Australian Information Commissioner’.
While the IGIS expressed confidence that any duplication of oversight could be managed administratively between these bodies (to the extent the legislation allows), it also suggested, however, that amendments may be required to the Inspector-General of Intelligence and Security Act 1986 to clarify the IGIS’s interaction with other integrity bodies.
Further, the IGIS indicated that given the strict secrecy offences (in relation to the disclosure of information) contained in Section 34 of the Inspector-General of Intelligence and Security Act 1986, further amendments to the bill could ‘provide mechanisms for the sharing of information and transfer of complaints between the IGIS and other integrity bodies.’
The IGIS also argued that the bill may require consequential amendments to other legislation, saying that:
… there may also be a number of consequential amendments required to be enabling legislation of the ACIC and ‘agencies with an intelligence role or function’ to ensure that [IGIS’s] oversight is effective. Specifically, where agencies’ enabling legislation contains an offence for the disclosure of information, it may be necessary for there to be an exception that allows information to be disclosed for the purpose of IGIS officials exercising their powers and performing their functions and duties.
The Joint Department submission also noted that by expanding the IGIS’ jurisdiction to include the Department of Home Affairs, the AFP, the ACIC and AUSTRAC, concurrent jurisdiction would be created between the IGIS and a number of other integrity bodies which currently oversee these agencies.
Similar to the point raised by the IGIS, the Departments submitted that under current arrangements oversight for the Department of Home Affairs, the AFP, ACIC and AUSTRAC includes: the Commonwealth Ombudsman, the Australian Commission for Law Enforcement Integrity, the Australian Human Rights Commission and the Auditor-General. In addition, obligations also exist under the Freedom of Information Act 1982 and the Privacy Act 1988 (which is overseen by the Privacy and Information Commissioners under those Acts).
The Departments noted that the bill does not include provisions to manage concurrent jurisdiction, such as providing for information-sharing or for complaints transfer. It was argued that this situation has the potential to create inefficiency and complexity for integrity bodies and agencies.
Support for concurrent jurisdiction
When asked for his views on the Departments’ concerns about concurrent jurisdiction, The Australia Institute’s Mr Allan Behm described overlapping responsibility as ‘quite a good thing’ and argued that it is not necessarily ‘good public administration to have clear silos which are not contiguous one upon the other’. Mr Behm also took the view that some organisational crossover was:
…. actually not a bad thing, because it makes them talk to each other. They should talk to each other and apprise the committee that they are doing so. That helps the committee in its work. In the world of public policy, in which I have spent over 40 years, the more overlap there is the more sound public policy tends to be, because you have more contestability in the formulation of public policy...
Likewise, Williams and Hardy argued that the Government’s concerns about the proposed changes creating overlap and duplication were overstated. It was noted that while the Joint Department submission is correct in pointing out that other integrity bodies – including the Inspector-General ADF (IGADF) and the Commonwealth Ombudsman – oversee the agencies to be added, these offices have different statutory functions and powers to the IGIS.
Williams and Hardy explained that the function of the Commonwealth Ombudsman is to investigate complaints relating to administration of federal agencies, and the function of the IGADF includes inquiring into matters concerning the military justice system and promoting military justice values across the Defence Force. It was argued that this contrasts to the functions of the IGIS which are:
… to investigate the propriety of intelligence activities, whether intelligence activities comply with laws and regulations, and whether intelligence activities are contrary to human rights or constitute discrimination. The IGIS also has extensive inquiry powers that are not available to other statutory offices. The Commonwealth Ombudsman can compel the production of information and documents, but the Attorney-General can issue a certificate preventing disclosure for national security reasons. By contrast, no similar process applies in IGIS inquiries, meaning the level of access to classified information granted to that office is secured to a higher degree.
In recent years, the Government has undertaken significant reforms to enhance the capabilities of the national intelligence and security agencies in an increasing complex security environment.
The 2017 Review made a number of recommendations aimed at addressing the future challenges of the intelligence community and at enhancing the functionality and operability of intelligence agencies. The Government has accepted the findings of this review, and has taken steps to implement many of the recommendations.
The bill being considered by the committee proposes to implement Recommendations 21 and 23 of the 2017 Review. The committee recognises that the bill is well-intentioned and aimed at strengthening oversight and accountability of Australia’s intelligence agencies.
The committee notes, however, that concerns were expressed throughout the inquiry that the provisions of the bill would expand the oversight role of the IGIS and the PJCIS, beyond the scope of Recommendation 21, and that there were other issues with the bill as drafted.
For example, the committee notes the concerns of the IGIS regarding the limitations the bill places on it, particularly in relation to increasing its oversight responsibilities (by four additional agencies). There were divergent views in evidence as to whether it is appropriate for the functions of the IGIS to be expanded to include these additional entities, particularly in relation to the Department of Defence.
The committee holds similar reservations to those expressed by the IGIS regarding the potential disclosure of operationally sensitive information to the PJCIS, which may occur under the bill's proposed new reporting requirements. The committee notes with concern that the bill does not address this important issue, and therefore should the bill be enacted there would be no proper legal protections or consequences around the disclosure of sensitive information.
The committee also acknowledges the concerns raised by the IGIS regarding the requirement that it provide private briefings to the PJCIS at least once every quarter. The committee agrees with the IGIS’ suggestion that a more flexible approach would be necessary to allow for occasions where it was perhaps not possible to meet the requirement.
The committee shares the Departments’ view that some of the proposed additional agencies already have adequate oversight arrangements in place. The committee notes that the recently released Comprehensive Review of the Legal Framework of the National Intelligence Community (Richardson Review) recommended against extending IGIS oversight to the Department of Home Affairs and the AFP.
The committee also acknowledges that in its response to the Richardson Review the government announced plans to extend the jurisdiction of the IGIS to include the intelligence functions of the ACIC and AUSTRAC. The committee agrees with this approach.
The committee also shares the Departments’ concern that the bill would create concurrent jurisdiction without providing adequate mechanisms for such an environment to operate. The evidence before the committee suggests that it would be necessary for additional legislative amendments to be made to the Inspector-General of Intelligence and Security Act 1986, to clarify specific interactions, and provide mechanisms by which to share information and transfer complaints, between the IGIS and other integrity bodies.
The committee shares the sentiments raised by the Departments questioning the appropriateness of the PJCIS having the power to inquire into the Board and Inter-Governmental Committee of the ACIC. The committee also notes the views expressed by other stakeholders which suggest that these concerns would need to be addressed by making consequential amendments to legislation.
Finally, the committee notes that the Government is continuing to consider and implement the recommendations of the 2017 Review and the effectiveness of the legislative framework for the NIC. The bill could therefore pre-empt any future decisions by Government, to the detriment of the agencies involved in national security.
Given the concerns which have been raised, it is the view of the committee that the bill not be passed.
The committee recommends that the Intelligence and Security Legislation Amendment (Implementing Independent Intelligence Review) Bill 2020 not be passed.
Senator James Paterson