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Parliamentary Joint Committee on Intelligence and Security - 13/11/2014 - Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014

BLIGHT, Mr Jake, Assistant Inspector-General of Intelligence and Security, Office of the Inspector-General of Intelligence and Security

THOM, Dr Vivienne, Inspector-General of Intelligence and Security, Office of the Inspector-General of Intelligence and Security

Committee met at 14:33 .

ACTING CHAIR ( Mr Byrne ): The chair of the committee apologises for running slightly late due to a flight delay. On his behalf, I declare open this public hearing of the Parliamentary Joint Committee on Intelligence and Security for the committee's inquiry into the Counter-Terrorism Legislation Amendment Bill (No. 1) 2014. The bill was referred to the committee on 29 October 2014 for reporting by 20 November 2014.

These are public proceedings and the committee prefers that all evidence be given in public, but witnesses have the right to request to be heard in private session. The committee may also determine that certain evidence should be heard in private session. If a witness objects to answering a question they should state the ground for that objection, and the committee will consider the matter.

Although the committee does not require you to give evidence on oath, I remind witnesses that this hearing is a legal proceeding of parliament and warrants the same respect as proceedings of the House itself. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. The evidence given today will be recorded by Hansard. Would you like to make some introductory remarks before we proceed to questions?

Dr Thom : Thank you, I would like the opportunity to provide to a few opening remarks. Firstly, thank you for the opportunity to provide evidence to this inquiry. In my role as IGIS, I review the activities of the six Australian intelligence agencies, including the agencies affected by the proposed amendments to the Intelligence Services Act—that is, the Australian Security Intelligence Organisation, the Australian Signals Directorate and the Australian Geospatial-Intelligence Organisation. I do not ordinarily oversight the activities of the AFP, so I have no comments to make on the proposed amendments to control order arrangements. The comments in my submission today are not so much directed at whether the AIC agencies should be given certain powers, but are rather focused on oversight and accountability issues and any risk to legality and propriety and are really limited to the changed authorisation arrangements. Thank you.

ACTING CHAIR: Any questions at all? So no-one has any questions?

Ms PLIBERSEK: We do; just open it up!

ACTING CHAIR: The Inspector-General was quicker than usual—and I do not mean that in a bad way. I will start then. Are there any difficulties that you see in terms of the authorisations by the agencies in light of the fact that they cannot reach the Attorney-General? There is a 48-hour window where they are required to notify the relevant minister. Do you see any difficulties in that particular arrangement at all?

Dr Thom : If you are talking about difficulties—I do not think these arrangements will be used very often. My understanding is that they will be used very rarely. As we pointed out in our submission, it is our understanding that by saying 'the minister' you are talking about any minister in a particular portfolio, so there would be quite a range of ministers who would have to be unavailable before the emergency provisions kick in. Currently there are emergency provisions in the terms of the ASIO Act and the issue of certain warrants by the Director-General in an emergency, and I understand that these are very rarely used.

ACTING CHAIR: In one of the submissions, I think in several of the submissions, there was a position put where the minister could be briefed at about the 40-hour period, or close to the end of the 48-hour period, and then have to make a rushed decision about whether or not that authorisation should be cancelled. Do you see any potential—I think a number of submitters have made that particular point.

Dr Thom : Do you have any comments on that?

Mr Blight : Urgent submissions go up to the minister now. When matters are urgent they are put to the minister and it is for the minister to decide how long they take to make a decision. I am certainly aware of authorisations that have been given quite quickly because the circumstances have warranted it, so that is not of concern to us.

Ms PLIBERSEK: Let us start with this. You have put in your submission the 'no time limit on duration of requests from defence minister for class authorisation'. You have said that even in the absence of any legal requirement to do so, the defence minister should be periodically briefed on operations conducted in reliance of such a request and that this would provide the defence minister with regular opportunity to consider the ongoing appropriateness of the requests. That is kind of a bit haphazard really, isn't it? Do you think that that should be legislated?

Dr Thom : Are you saying that it could be ad hoc as to whether it happened or not?


Dr Thom : I would expect it to be put in their systems and processes. I am not sure it would necessarily need to go into legislation, but I would imagine that the defence minister would raise this expectation. We would understand and the agency would comply with any such expectation, so I am not sure that it would have to be legislated.

Ms PLIBERSEK: How would you be confident that that was going to happen though?

Dr Thom : I am not sure if you are asking how I would be confident of whether the—

Ms PLIBERSEK: No, how would one be confident?

Dr Thom : It would depend upon the minister concerned as to how often they felt they needed to be briefed, yes. But once that decision was made, my office would have some oversight as to whether the agency would comply with that decision and review the matters accordingly.

Ms PLIBERSEK: So would the agency have to formally announce it in some way to put it into their systems? How could a person be confident that that regular review of whether the request was still necessary was happening?

Mr Blight : Ultimately, we have not commented on it because really it is a matter of policy for the government and a matter for the minister. But there are a number of options open to the minister. He or she could make a direction under 8(2) of the Intelligence Services Act. We would then ensure that those directions were complied with. So a direction could be given that the minister is to be briefed every six months.

Ms PLIBERSEK: If this committee were to make a recommendation to ensure that this was happening regularly, what would be the most useful recommendation to make to ensure that it was happening regularly?

Mr Blight : I think it is a matter for the committee whether you think it should be in the legislation or left to the minister.

Ms PLIBERSEK: There is some middle ground between those two, though, isn't there? You were saying that there is some middle ground.

Mr Blight : The middle ground is that the minister could make a direction under subsection 8(2), and that direction would live as long as it did, until another minister changed it.

Dr Thom : We could certainly report in our annual report as to whether there was any regular review, but in the absence of a direction there would not be some kind of standard that we could actually measure the agency against.

Ms PLIBERSEK: On the previous page of your submission, page 4, you wrote:

… the Minister must be satisfied that the class of persons is involved in one or more of the activities listed in s9(1A) of the IS Act; and, the Minister must be satisfied of the matters in s9(1) of the IS Act.

Can you just remind us—I have not gone back to the act—of what those are?

Mr Blight : Sure. These are the provisions that currently apply to individual authorisations. Subsection 9(1A)(a) lists a range of things:

(i)   activities that present a significant risk to a person's safety;

(ii)   acting for, or on behalf of, a foreign power;

(iii)   activities that are, or are likely to be, a threat to security …

And then there are some specific ones about weapons of mass destruction; contravention of UN sanctions; committing a serious crime by moving money, goods or people; committing a serious property crime; or committing a serious crime by transmitting data. The authorisation has to fit into one of those categories.

The section 9(1) requirements that the minister must be satisfied of in addition to those categories are about the proportionality and balance. So the minister must be satisfied that the authorisation is necessary for the proper performance of the function of the agency, the minister must be satisfied that there are procedures in place in the agency to ensure that nothing beyond what is necessary is done, and the minister must be satisfied that the consequences are reasonable, given the grounds.

Ms PLIBERSEK: Can you describe what serious property crime would include?

Mr Blight : 'Serious crime' has a definition. Serious crime is a crime that, if it occurred in Australia, would be punishable by more than 12 months imprisonment. So a serious property crime would be something that, if it occurred in Australia, in any state or territory, would be punishable by more than 12 months imprisonment.

Dr Thom : The way the class of persons is defined is such that there is nobody who could be in the class of persons that would not individually have had some kind of authorisation being allowed against them. That is my way of understanding it. So it is not broader than or does not lower the threshold compared to individual authorisations.

Mr Blight : At the moment, for example, if an individual is a member of a terrorist organisation, that would fall in the security one. A class of people who are members of that organisation will also fall into the security category.

Ms PLIBERSEK: Could it apply to a class of persons who have travelled to a prescribed area?

Mr Blight : If there were also activities that were or likely to be a threat to security. So there is not a specific category of going to a certain place, but there is a category of 'committing a crime by moving money, goods or people' and there is a category of 'activities that are or are likely to be a threat to security'.

Ms PLIBERSEK: Given that we have the prescribed areas legislation we have recently been talking about, are you confident that it would not cover a class of people who were in a prescribed area?

Mr Blight : I think you would have to look at each authorisation on its individual merits. If the minister was reasonably satisfied that people going to that area would pose a risk to security, then the criteria in 9(1A) would also be met.

Dr Thom : My understanding, though, is it would not differ for an individual authorisation. The test would be the same whether it was an individual or class of persons. So this legislative amendment does not really change as to whether a person going to a prescribed area is or is not caught up in that test.

Ms PLIBERSEK: I am not sure I understand that.

Dr Thom : Sorry.

Mr Blight : Today, with the amendments that we are looking at set to one side, if a person went to an area in a country and that action of going to the area in the country was either a threat to security or a crime committed by moving goods or people—but security is the most likely one—and if that were covered today for that individual, with these amendments in place it would be covered for any class of people who went to that area.

Ms PLIBERSEK: And I guess I am just asking you whether our recent changes interact with this provision.

Mr Blight : There are not words in the provision that pick up the recent changes exactly, but, on the facts that are coming to mind for me, it seems likely that the same categories would meet both tests. But, theoretically, if the area prescribed were not covered by one of these, there would not be an absolute mesh.

Ms PLIBERSEK: I am sorry, that just does not give me enough. It is not that you are not explaining it well; I think that, actually, the provisions are a little difficult to look at side by side. I understand what you are explaining; I just do not yet know that that is the answer.

Senator BUSHBY: To get my head around it as well, you are saying that in the test as currently applied you might look at the activities of an individual, and those activities may currently meet the test's requirements to satisfy this. Say, for example, they went to a particular place and that was considered a security problem and so that individual would have satisfied that for these purposes. Could you then, to look at it from the perspective of a class of people, say that, inherent in the fact that going to that place created a security risk, anybody who goes to that place would then meet that security risk? Is that essentially what you are saying? If that is the precondition for that individual, it is a case where A is B and therefore B is A, in a sense.

Dr Thom : You define the class in terms of the activity that meets the test.

Senator BUSHBY: In terms of the activity which is meeting the test, okay.

Dr Thom : We do not know yet how these classes of persons are actually going to be defined in practice, so we cannot say how they will be defined, but that would be one way of defining them, yes.

Senator BUSHBY: You say that this is the test in the legislation—that is how it is set out at the moment—and this legislation does not change the test at all; it just changes the group of people who might be subject to it.

Mr Blight : It changes the way the authorisations are given. At the moment, each individual human being who is the subject of an authorisation is considered individually and the entirety of the facts of their personal case is considered by the minister. The change will mean that, in the ASIS-supporting military operation situation, it will be possible to define a class, so the minister will consider the class and be satisfied of the class, and then it is for the agency to work out who fits the class.

Senator BUSHBY: But you are confident that the class will be defined by the activity and not by some other extraneous characteristic of that group of people? It would be the activity that would otherwise currently apply to an individual.

Mr Blight : Yes, the activity test would not change.

Senator FAULKNER: I could ask a similar question this way: what limitations are there on the definition of a class? I suspect that is the question that our colleagues are driving at, and I am just asking it in perhaps a slightly different way.

Mr Blight : I think the limitation is that the class of people, because of the nature of the class, must be involved in an activity that is one of the listed things.

Senator WONG: Isn't the answer really that class is not defined?

Mr Blight : The word 'class' is not defined.

Senator FAULKNER: That is the point: there is no definition of the word 'class'.

Mr Blight : Yes.

Senator FAULKNER: That is a fair thing for us to say, isn't it?

Dr Thom : Yes, except every member in that class or every individual or potential individual in that class must satisfy those activity tests as set out in the legislation. But the word 'class' is not defined.

Senator FAULKNER: The word 'class' is not defined.

Dr Thom : No.

Senator FAULKNER: I think that is what my colleagues here are driving at. I am right, aren't I?

Ms PLIBERSEK: Absolutely. If someone is a member of an organisation, it is easy to determine that they are part of a class of people. But, beyond that, it gets very, very complicated, doesn't it?

Dr Thom : I do not know how the intent is to define these classes.

Senator FAULKNER: But would you assume, Dr Thom, that it would be possible for the word 'class' in this bill to be defined?

Dr Thom : Yes, I think I could anticipate a way of defining the class. It is something that we would look at quite closely to see whether it was reasonable.

Senator FAULKNER: Would that assist the IGIS in terms of her oversight responsibilities if that were the case?

Dr Thom : The test that I would be applying is whether every member of that class of person satisfied the test for activity as set out in the legislation. There is a test that I would be applying. So the agents would have to be quite careful how they actually define the class.

Senator FAULKNER: Sorry, what was that last bit?

Dr Thom : The agents would have to be quite careful, in particular, as to how they define the class of person.

Senator FAULKNER: That is the point. I think that is the issue. Yes, I totally accept what you are saying, and I think this is what colleagues around the table are questioning.

Senator WONG: Dr Thom, you have said now a number of times—including in an answer just now to Senator Faulkner—that the test you would be applying or the test you understand to apply is that every member of a particular class, however so defined, has to meet the tests. This, I assume, is 9(1A), 9(1AA) et cetera of the amending act. Are you inferring that or is there a specific provision to which you can point me which actually says what is required in the specific will be required in every aspect of the general? Do you see my point?

Dr Thom : Yes. I think the words I am relying on—

Mr Blight : I might be item 10 of the bill.

Senator WONG: But that just says Australian person or the class of Australian persons.

Mr Blight : It says it 'must be satisfied that the Australian person or the class of Australian persons is or is likely to be involved in one or more of the following activities'.

Senator WONG: Could that mean a majority of a class?

Dr Thom : If I had those plain words, the way I would interpret them from an oversight perspective is that it would be every member of that class. If there is any ambiguity—

Senator WONG: So, just to be clear: that is how you as the oversight body would apply your oversight?

Dr Thom : In the absence of any other material to the contrary.

Senator WONG: But we are still inferring in terms of what is in the actual amending act whether or not every member of a class—question how defined—would have to meet those requirements that exist in relation to an individual currently.

Mr Blight : Yes.

Mr NIKOLIC: I might be inferring incorrectly from your responses, but do you see a reason for proscribing or limiting the parameters of a class that might be open to an agency head—whether that is membership of a group or whether that is potential linkages people within a particular network might have? Surely, irrespective of that class of people that is designated, the IGIS would be able to review and assess subsequently whether that was a reasonable judgement?

Dr Thom : Yes.

Mr Blight : Just to be clear, when we are talking about these class authorisations, there are two and usually three ministers involved. So it can only be a class if it is in response to a defence minister request for support in that class. So it is not all authorisations; it is just ones that would support the Defence Force. So that is a limiter to begin with—ones that would support the Defence Force. If it is security, it requires the Attorney's agreement as well. So that is another limiter. Then it is the minister's description. So the assistance to the Defence Force is a limiter—probably to answer your question, Senator Faulkner.

Mr NIKOLIC: So what, if anything, do we potentially benefit from in trying to provide some definitional limits around that from your perspective within your role? Do we have sufficient capacity now to determine the judgements of a class of people subsequent to their identification?

Dr Thom : In talking about definitional limits, I may have misinterpreted your previous question as to defining a particular class of persons as opposed to defining the term 'class of persons'. I am saying I would see the benefits in very carefully defining a particular class of persons rather than the definition in the legislation—if that is clear; I am not sure whether it is.

Mr NIKOLIC: Thank you.

Ms PLIBERSEK: Can I ask a follow-up question. The other word that is open to a great deal of interpretation is the word 'likely'—'likely to be engaged in'.

Mr Blight : That is the current word that is in the act, and it has been there since 2001.

Ms PLIBERSEK: With one person, it is slightly easier to determine whether it is likely that they are engaged in something. If you are talking about a class of people, you could have some people within a group more likely and some people in a group less likely to be engaged in a particular type of activity, could you not?

Dr Thom : Yes.

Mr Blight : But the question then is: which is the class as a whole likely to have a particular activity that is a threat to security?

Mr BYRNE: Do you envisage anybody being captured under a class of people?

Dr Thom : I think that is a question best directed at the agencies. It is an operational issue that we really cannot—

Mr BYRNE: Were you consulted about this legislation before it came before us?

Dr Thom : Yes, we were.

Mr BYRNE: Was there any discussion about how many people could have been captured? Did you ask about how many people could have been captured in terms of this?

Dr Thom : I cannot recall any—

Mr Blight : Not specifically about numbers, no.

Mr BYRNE: In the discussion, did the agencies intimate to you how many people might be captured under this provision?

Mr Blight : They gave some current operational examples of the types of classes that they had in mind.

Dr Thom : But they do not disclose how many authorisations.

Mr BYRNE: I understand. Did they impress upon you that, given the circumstances, there was a need to incorporate class rather than just individual—

Mr Blight : I think that is probably best directed to them, but they certainly did make an argument around that, largely directed to the need to be able to respond quickly.

Mr BYRNE: Did you find that argument persuasive?

Dr Thom : In terms of their operational requirements, it is difficult for me to judge, but because of the fact that every person in the class would require the same test as an individual would require, it did not seem to be a real decrease in threshold.

Mr BYRNE: Thank you.

CHAIR ( Mr Tehan ): With respect to having no time limit on agreement of the Attorney-General for individual or class authorisations, do you think it could be improved in any way by saying that maybe there was a need for a six-month review or something like that, which might help your oversight provisions in this area?

Dr Thom : In the provisions as currently drafted it would be up to the Attorney-General to direct the agency as to how often they expected to be given the opportunity to review the matter. That could be done by ministerial direction or in a less formal way. We could ensure that the agency complied with that. If the committee were of the view that there were a high-level requirement then it would need to be in legislation. From our point of view, we would oversight the provisions as they—

CHAIR: Would it help your oversight if there were a requirement for the minister to review every six months, or would that be an unnecessary addition because you already have the powers to oversight?

Mr Blight : I think we were just highlighting that currently authorisations are reviewed by the relevant minister every six months and currently the Attorney turns his own mind to it every six months. Under the changes, the Attorney may put a time limit on it but does not need to. I think we were highlighting it rather than saying that there had to be a particular view. Whatever the ministers direct, we will provide oversight so that that is complied with. It is not so much for us to suggest how often the ministers want to see things.

Senator FAULKNER: I would like to ask a question in relation to the 'authorisations in an emergency—ministers unavailable' section of your submission to us on page 6. You made the point that you think, in relation to these new provisions, that the exercise of the power that is proposed in section 9B is likely to be extremely rare.

Dr Thom : Yes.

Senator FAULKNER: I would acknowledge that that is the case. Nevertheless, you also make the point that you expect that any authorisation given under section 9B would be scrutinised by your office. I was interested in your use of the word 'expect'. I thought we might be able to ramp it up a little from an expectation to some level of certainty in this very unusual circumstance. I would be interested in why you would say that?

Dr Thom : I think I can say on the record now that I would review those authorisations. I do not think the word 'expect' was chosen with any great accuracy. I still expect it would be extremely rare, and I would look at—

Senator FAULKNER: I acknowledge that. But you do acknowledge that it would be greater than an expectation?

Dr Thom : Yes, I would.

Senator FAULKNER: In fact, you would see this as a—

Dr Thom : It would be a very important priority for us .

Senator FAULKNER: It would be priority for the IGIS. I am pleased to hear that.

CHAIR: I think we all are.

Dr Thom : Submissions are put together quite quickly.

Senator FAULKNER: I do not want to be too anal about the use of the language, but this is an unprecedented provision and an unprecedented power. I would like to ask you about that, if I could, Dr Thom. I think my use of the term 'unprecedented' is reasonable. We have had now, literally for decades, a situation where this responsibility lies with ministers; it does not lie with agency heads. I think it is fair to say that this, as you would appreciate, really arose from the 1970s, out of the work of the Hope royal commission. I think that you would acknowledge that that is the case.

Dr Thom : Yes.

Senator FAULKNER: Is there any concern here, from the IGIS, about a proposal that takes this responsibility—this authorisation—away from a minister and places it in the hands of an agency head, understanding the point that you make that the exercise of the power is likely to be extremely rare? I want to focus here for a moment on the principle. It is not a ministerial authorisation. It is an agency authorisation, which is quite different from the way that we have done these things for a very long period of time.

Dr Thom : Currently in the ASIO act there is a provision for the issue of certain warrants by the Director-General in an emergency. That has tests that security will be, or is likely to be, seriously prejudiced. That has hardly ever been used, to my knowledge. It is very rare. Likewise, I would expect this rarely to be used. I cannot really comment on the operational imperative for this. Safeguards are in place in terms of the time limits and that fact that we would oversight it. Do I have significant concerns? I would see it being used in exceptional circumstances and I would have significant concerns if it were used more frequently than in emergency situations. I am not sure I have answered your question.

Senator FAULKNER: I think you have answered it in a guarded way, which I am not critical of. I understand why you are using the language that you are using. I have to say that I find it pretty implausible that this situation would arise in terms of unavailability of ministers. I find that—

Ms PLIBERSEK: And a number of them.

Senator FAULKNER: Yes, ministers—plural. It does sound to me that it is very unlikely. Of course, this authorisation being able to be exercised by an agency head as opposed to a minister is, I think—albeit perhaps very unlikely to be used—quite a significant change to the way our intelligence and security arrangements have operated for literally 40 years. I think that is a fair comment to make. My earlier questioning goes to whether this brings any added level of concern or need for scrutiny or need for oversight for the IGIS.

Dr Thom : It is my experience that, when circumstances occur very rarely or are very uncommon or are an emergency or are exceptional circumstances, agencies pay particular attention to do everything correctly. I would expect these would be extraordinarily rare. I would pay very close attention, but, notwithstanding that, they would in any event make sure that they satisfied all the tests correctly. As long as it were extremely rare, I would not have concerns. If it became commonplace, obviously that would be a problem.

Senator WONG: It is about how it is implemented.

Dr Thom : Yes.

Mr BYRNE: Do you think it would help—given the extraordinary nature of these powers, as Senator Faulkner quite aptly pointed out, where you have an agency head that is making decisions and then has a period of time in which to inform the minister—if there were a time limit put on the use of these particular powers?

Mr Blight : I think there is a time limit. I think it is 48 hours.

Mr BYRNE: No, not 48 hours—almost like an emergency provision. There are similar, very controversial powers. As Senator Faulkner has pointed out, it is a quite extraordinary power. Given that we are not sure how it is going to be used and how often it is going to be used, do you think it would be sensible to put something like a sunset clause on this so that we can appropriately review the use of this power, how often it has been used and how appropriately it has been used?

Dr Thom : It might be sensible to consider whether there should be public reporting as to how often this power is used. That might be one way of having some high-level scrutiny.

Senator FAULKNER: But of course there are two elements, Dr Thom, aren't there? First of all, there is the element of oral authorisation. Second, there is the element of non-ministerial authorisation. Let's be absolutely frank about this: these are two quite substantial changes. That is a fair point to make. I acknowledge what you say in your submission about the likelihood of this being extremely rare. I certainly acknowledge that is the case, but my concern is that, if it were exercised, these two elements—

Dr Thom : Just to clarify that, giving the oral authorisation is limited to the minister giving authorisation. I would need to clarify that. This is complex legislation.

Senator FAULKNER: That is new.

Dr Thom : Yes.

Senator FAULKNER: I am saying that oral authorisation is new and non-ministerial authorisation is new. I must admit I had tried to have a close look at the legislation to try and establish in my own mind whether the could be oral, non-ministerial authorisation. I have not raised that issue, because I am not certain from reading the legislation; but I could ask you as an expert.

Dr Thom : My understanding of the legislation is that the oral authorisation is for the minister.

Senator FAULKNER: Yes. That is an understanding that I have, but I am not certain that that is the case. Regardless, that can be established. The point I am making is two separate elements: oral authorisation by ministers and non-ministerial authorisation.

Dr Thom : Yes.

Senator FAULKNER: I would hope that in this circumstance—and I think this is a fair thing for me to say to you as the IGIS—this would receive the highest priority and the closest of scrutiny from the IGIS because it is unprecedented.

Dr Thom : Yes, I agree.

CHAIR: You have attached the amendments, do you think it is necessary, given the number of ministers who could potentially be available, for agency heads to be given this?

Dr Thom : As I say, it is difficult for me to comment on the operational imperatives and requirements of the agencies, because that is not really my role, but I would find it surprising if a lot of these people were unavailable at the same time, except on an extremely rare occasion.

Mr Blight : More than a dozen ministers would suddenly have to be uncontactable. Those would be quite serious circumstances.

CHAIR: So your reading of the act would be that more than a dozen would have to be—

Mr Blight : It is not really for us to give legal advice, but our reading of the act is that the Acts Interpretation Act would apply, which means that when you read the term 'foreign minister' you read it to mean 'any minister appointed to the foreign minister portfolio', which of course includes the Minister for Trade and any other ministers, parliamentary secretaries.

Senator WONG: Anyone sworn to administrative portfolio.

Mr Blight : So when you add the Prime Minister's portfolio, the foreign affairs portfolio, the defence portfolio, the Attorney-General's portfolio you end up with quite a long list of potential ministers that have to be gone through.

Senator FAULKNER: Does that include non-cabinet ministers?

Dr Thom : Yes.

CHAIR: Under that reading it does, doesn't it.

Dr Thom : Yes.

Senator FAULKNER: Does it include parliamentary secretaries?

Mr Blight : If you read it with the Ministers of State Act, I think it would.

Senator FAULKNER: I think it does.

CHAIR: Following up on that, do you think there is an argument to say that if you were having difficulty contacting a minister—you had to get them on the phone, given the emergency situation; let us say it is three o'clock in the morning—and you were able to get the director-general, that that would be the sort of rare and completely unusual circumstance which might warrant—

Mr Blight : The agency head must be satisfied that none of the ministers are readily available or contactable.

Senator BUSHBY: Would that obligate the agency head actually to make an attempt to contact all of them?

Dr Thom : I would look to see that they had satisfied that requirement. I would look for records to see that they had satisfied that requirement.

Mr Blight : It might be worth mentioning that the equivalent provision which has been in the ASIO act for many years that allows the director-general to give a warrant in an emergency when just the Attorney is not there—or the ministers appointed to that portfolio—has been used an extremely small number of times.

Senator FAULKNER: I am afraid that, just going on your interpretation of the Acts Interpretation Act and the Ministers of State Act, I would seriously question the appropriateness of a non-cabinet minister or parliamentary secretary exercising such powers.

Dr Thom : Of course, we are not commenting on the policy.

Senator FAULKNER: I know you are not: I am. I am not sure it is intended, by the way.

Mr Blight : I guess our point on the Acts Interpretation Act is the committee should be satisfied it is clear what the parliament's intention is.

Senator BUSHBY: What is your interpretation? You try to get hold of the Minister for Defence and he is not available, the junior minister is not available and you ended up with a parliamentary secretary and the parliamentary secretary was asked by the agency head and said, 'Look, I don't feel I am qualified to answer this,' would that then enable you to move down the—

Mr Blight : The words are 'not readily available or contactable'. If the minister declines to give it, the minister declines to give it. They are contactable. A ministerial decision has been made then.

Senator BUSHBY: So it would be no in that case.

Senator WONG: Can I just following through the non-ministerial authorisation route which is proposed. Precisely how low a level can that occur? If we go to 9C you have got the provision that Senator Bushby was just talking about. This section applies if agency head considers it is desirable et cetera, authorisation is sought—all of the following apply: you have to have a minister, agreement is not obtained, the agency head is satisfied that the ASIO minister is not readily available. So it is only one—correct?—rather than expanding?

Mr Blight : You have to apply the Acts Interpretation Act.

Senator WONG: I do not know that you are right there, because it actually specifies ASIO minister. So an alternative amendment would be to expand the ASIO minister authorisation, if required, to other ministers. Can we park that? Can we just keep going. Then you get subsection 3, the Director-General of Security can agree. But the way it is worded it says:

(3)   Before an authorisation is given under section 9A or 9B, unless the agency head is satisfied that the Director General of Security is not readily available or contactable, the agency head must obtain the agreement of the Director General to the authorisation …

In other words, the agency head themselves can actually authorise, without the agreement of the minister, without the agreement of the director-general? Have a read of subsection 3. Just read through it.

Mr Blight : The first step is the agency head—lets us say the agency head of ASIS—must be satisfied that ASIO minister is not readily available.

Senator WONG: Okay. Agreed. So we are in the DG world, subsection 3.

Mr Blight : Unless they are satisfied the DG is not available, they must obtain his or her agreement. In other words, it actually contemplates them not at obtaining it if they are not available. So this regime contemplates any agency head authorising something that currently a minister has to authorise without even the Director-General of Security providing authorisation.

Mr Blight : We might be using the word 'authorisation' and 'agreement' interchangeably here.

Senator WONG: I am sorry.

Mr Blight : The Attorney gives 'agreement; the Attorney does not 'authorise' it; the defence or foreign minister 'authorises' it.

Senator WONG: Sorry, 'agreement' to 'authorisation'. Shall I repeat what I just put to you with 'agreement' instead of 'authorisation'? Step one, you are supposed to get the ASIO minister. This provision says that if you cannot get ASIO minister to agree under the act you get the DG unless he or she is not available, thereby contemplating the agency head not getting agreement of either the director-general or the minister.

Mr Blight : Yes.

Senator WONG: Is there any precedent for that?

Mr Blight : This is a new provision.

Senator WONG: My point is we have gone from ministerial agreement to this activity to agency head.

Senator FAULKNER: This is outlined in detail in paragraph 17 in the explanatory memorandum. If you go there it says:

17. Accordingly, the proposed amendments make provision for the following contingency arrangements:

one of the relevant Ministers may issue an emergency authorisation orally, to be followed with a written record of the authorisation;

if none of the relevant Ministers are readily available and contactable, the head of an ISA agency may issue a limited emergency authorisation; and

where the Attorney-General’s agreement is required to the issuing of an emergency authorisation, and the Attorney-General is not readily available or contactable, the agreement to the issuing of an emergency authorisation must be sought from the Director-General of Security (if readily available or contactable).

I think that rather says it all.

Senator WONG: 'Readily' available or contactable.

Senator FAULKNER: What does 'readily' mean? By the way, I accept that this is not a matter for interpretation by the IGIS—you are dealing ex post facto with these issues—but these, I suppose, are the matters that this committee has to grapple with as we look at the bill that has been introduced. I do understand what the IGIS's responsibility here is in terms of oversight of the actual use of these provisions once they have been legislated, of course. I think we totally accept that.

CHAIR: Could I just pick up on a point that Senator Faulkner made about parliamentary secretaries being able to authorise. Would you as the IGIS see that as an appropriate level for—

Dr Thom : That is really a question that I cannot answer.

Mr BRUCE SCOTT: Can you give us any examples in the past where there has been an inability for a minister to sign an authorisation? Is the country ever in a situation where it is left without authority?

Dr Thom : I think that is a question more for the agencies or for the Attorney-General's Department in terms of operations than for us, because I do not generally oversight the decisions of ministers. I am not aware of those facts, so you would have to speak to them.

CHAIR: Thanks very much, Dr Thom and Mr Blight, for giving evidence at the hearing today. You will be sent a copy of the transcript of your evidence, to which you may suggest corrections. If you have been asked to provide any additional material, please forward this to the secretariat by close of business tomorrow. If the committee has any further questions, the secretariat will write to you.