Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Monday, 24 September 2001
Page: 27674


Senator PATTERSON (Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs and Parliamentary Secretary to the Minister for Foreign Affairs) (5:35 PM) —I table revised explanatory memoranda relating to the bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows

INTELLIGENCE SERVICES BILL 2001

Introduction

The Intelligence Services Bill 2001 represents an historic step forward in enhancing the accountability of particular agencies dealing with intelligence and security matters. As its title suggests, this Bill relates to three agencies within the Australian Intelligence Community (AIC) - the Australian Secret Intelligence Service (ASIS), the Defence Signals Directorate (DSD) and the Australian Security Intelligence Organisation (ASIO). It deals with ASIS in the greatest detail responding to key recommendations of the Commission of Inquiry, conducted by the Honourable Gordon J. Samuels AC and Mr. Michael H. Codd AC, which reported to Government on 31 March 1995. The Bill seeks to place ASIS on a statutory footing and details its functions, lines of authority and accountability, including under an expanded oversight mechanism through the establishment of a Parliamentary Joint Committee.

The Bill also details the functions of DSD, lines of authority and accountability mechanisms. ASIO, which members will be aware already has its own legislation, is included only in so far as it is to be subject to expanded oversight by the Parliamentary Joint Committee which is also to oversee aspects of ASIS and DSD. This new Parliamentary Joint Committee will replace the Parliamentary Joint Committee for ASIO and will have expanded functions. Flowing from these measures, this Bill should provide increased assurance to the public in regard to the control and conduct of these agencies. The Office of National Assessments (ONA) is not covered by the Bill as it has separate arrangements under the Office of National Assessments Act 1977.

The Bill has benefited from consideration by a Joint Select Committee which made constructive and helpful recommendations, the majority of which the Government has accepted and incorporated.

The Value of Intelligence

Intelligence information is of critical importance to the Australian Government as to most other national governments. Good information is essential to sound policy-making. To ensure national security, the appropriate development of foreign relationships and national economic well-being in fast changing environments, countries must seek to make informed decisions. Information on which these decisions are based is drawn from many quarters: some of it is freely available, some less so. As a result many countries in the world have established intelligence agencies to gather information. As far as Australia is concerned, the intelligence agencies play a vital role in enabling certain critical decisions to be made with the best possible knowledge base. The information they provide, to use the words of the Commission of Inquiry that reported on ASIS in 1995, represents “a valuable element in the advancement of Australia's policies and in the protection of its security”. In so doing the agencies provide a highly cost-effective service. Australia needs quality intelligence to enable it to compete and protect its position in an ever-changing and complex world. The horrific events of recent weeks underline this. It is appropriate that Australia has competent and effective intelligence agencies.

The Government considers the information provided by our intelligence agencies to be invaluable. The service that the agencies provide is essential in the development of our approach to key foreign relations and defence issues. Intelligence information goes to the heart of the protection of Australia's security and is of vital importance in both supporting our Defence force and developing defence capability. ASIS and DSD are tightly focused organisations, attuned and responsive to Australia's needs.

Elements of the Intelligence Services Bill

I will now address specific elements of the Bill. The Australian Secret Intelligence Service was established by executive direction on 13 May 1952 and has provided an important service to Government since that time. Its existence was acknowledged by the Government on 25 October 1977 in conjunction with commentary on the Reports of the Honourable Justice Hope who had conducted the Royal Commission on Intelligence and Security. In his report on ASIS, Justice Hope commented that the Service was “right in concept for Australian circumstances” and recommended that ASIS be retained. Subsequent reviews of ASIS echoed those judgements. In 1995 the Commission of Inquiry noted that “ASIS is highly focused on its core function and on achieving success”.

DSD had its origins in two World War Two organisations, Central Bureau and the Fleet Radio Unit, Melbourne (FRUMEL). It was constituted as the Defence Signals Bureau in 1947, and was renamed the Defence Signals Directorate in 1978. DSD is Australia's national authority for signals intelligence and communications and computer security, and in that capacity provides an important support service to the Government and the Defence Force. The activities of DSD have been reviewed by a number of Royal Commissions, whose findings have all been favourable.

In line with one of the key recommendations made by the Commission of Inquiry, which reported to Government in 1995, the Government determined that ASIS should be placed on a statutory footing. The Commission of Inquiry had maintained that legislation to affirm ASIS' existence and provide authority for its activities was both desirable in principle and would be of benefit in practice. The Commission's report stated that in a parliamentary democracy, the existence of an agency such as ASIS should be endorsed by the Parliament and the scope and the limits of its functions defined by legislation. The Howard Government followed through with the previous decision to put ASIS on a statutory footing and has advanced the process of developing legislation appropriate for ASIS.

In placing ASIS on a statutory footing, we are bringing the service in line with the intelligence services in most other Western democracies. Members will be aware, for instance, that the intelligence and security services of the United Kingdom, the United States, Canada and New Zealand all have a legislative basis. Similarly, placing ASIS on a statutory footing will bring the Service more into the open and, in line with the 1995 Commission of Inquiry's viewpoint, see Parliament formally acknowledge its role and value.

The Commission of Inquiry maintained that in placing ASIS on a statutory footing ASIS should obtain from parliament the maximum authority and control consistent with the essential need for secrecy. This Bill seeks to achieve that objective by establishing the framework within which ASIS must operate, detailing arrangements for ministerial control and expanding accountability and oversight mechanisms. Concurrently, the Bill sets out in legislation the existing control and accountability framework for DSD, creating a balance between greater openness and the need for continued secrecy. The functions of ASIS and the Defence Signals Directorate are listed in legislation for the first time.

With regard to accountability, the Bill also details the mechanisms associated with each of the agencies. It is worth noting that the activities of these agencies are already subject to extensive oversight through the Office of the Inspector-General of Intelligence and Security under the Inspector-General of Intelligence and Security Act 1986. In this regard the Commission of Inquiry stated, in its report on ASIS in 1995, that the accountability and oversight arrangements in place were already comprehensive and effective. Nevertheless, under this Bill, the role of IGIS is further emphasised to enable the IGIS to ensure agency compliance with appropriate ministerial authorisations.

As to the functions of ASIS and DSD, both have an external focus in the furtherance of Australia's national security, foreign relations and national economic well-being. Therefore, both agencies are empowered, under close government oversight and control, to collect intelligence information in accordance with national priorities and long-standing intelligence tasking mechanisms and to distribute that intelligence. ASIS may also undertake counter intelligence activities to maintain its own security, and that of Australia, in conjunction with other relevant Australian agencies. Additionally, it is also able to liaise with other intelligence services. DSD may provide assistance in various forms to Commonwealth and State authorities concerning the security and integrity of information and in relation to cryptography and communications technologies. The Government has accepted the recommendation of the Joint Select Committee that the IGIS, in the IGIS Annual Report, report on the operation of this function. Both ASIS and DSD are empowered to cooperate with Commonwealth, State and other authorities in order to perform their functions or to facilitate the performance of their functions.

The Bill also provides the Government of the day with the option of directing ASIS to perform other strictly defined tasks. This is prudent public policy giving the Government of the day flexibility in dealing with contingencies which may arise. These activities or tasks would still have to be strictly related to the capabilities, intentions, or activities of people or organisations outside Australia. The responsible Minister must consult other Ministers with related responsibilities before directing ASIS to perform activities under this provision and subsequently advise the Parliamentary Joint Committee on ASIO, ASIS and DSD of the nature of any additional activity. Furthermore, any directions issued under this part of the Bill would be subject to close inspection by the IGIS and copies provided to him.

It is important to emphasise that ASIS is not a police or law enforcement agency; nor does ASIS have paramilitary responsibilities. Additionally, ASIS does not, in its planning or conduct of activities, allow for personal violence or the use of weapons. Such activities are not relevant to the role and functions of ASIS. Nor, of course, are ASIS or DSD permitted to do anything for the purpose of furthering the interests of an Australian political party or other Australian political organisations. These limitations are made explicit in the Bill.

Levels of Accountability

In respect of the agencies' functions and their oversight, this Bill shows the various levels of accountability to which ASIS and DSD are subject. The Bill itself establishes the first level of accountability, providing a legislative basis for ASIS and listing the functions of both ASIS and DSD. The second level of accountability, as detailed in the Bill, concerns the greater definition of the agencies' roles through written directions. Accordingly, the Bill states that the responsible minister must provide a written direction to the relevant agency head. This classified direction will detail each agency head's responsibilities and also specify the circumstances under which the agency head must seek formal authorisation for the agency to undertake particular activities, including ones which in rare situations may focus on Australians overseas. The third level of accountability in terms of each agency's functions concerns requests to the responsible minister for authorisations to undertake particular activities. The Bill details the circumstances under which this may occur and the arrangements that must be in place before such authorisations may be provided. Through these levels of accountability, all of which are subject to oversight and monitoring by the Inspector-General of Intelligence and Security, and the establishment of a Parliamentary Committee for ASIO, ASIS and DSD, the Bill provides the Australian public with further confidence about the accountability of the intelligence agencies to government.

Immunities and Limitations on Functions

The services provided by ASIS and DSD are vital to the interests of the country. Necessarily, the agencies focus on intelligence and their activities must remain secret if they are to be conducted effectively. This Bill does not shy away from that fact. Occasionally, these agencies are inhibited in the conduct of their activities outside Australia by the unintended consequences of some Australian laws, specifically those which have an aspect of extra-territorial application. It will be apparent that the original intention of the legislators who drafted these laws was not to inhibit Commonwealth agencies from fulfilling their charter at the behest of the Commonwealth. Accordingly, this Bill seeks to provide limited immunities for both ASIS and DSD in respect of the proper conduct of their functions. The immunity provisions now in the Bill reflect the careful consideration given by the Joint Select Committee to this issue and the need to protect the rights of Australians. Immunity will only be provided in respect of properly authorised activities which take place overseas or are directly connected with proposed overseas operations and which are carried out in accordance with the directions issued by ministers. Importantly too, as with other aspects of both ASIS' and DSD's activities, the Inspector-General of Intelligence and Security, as an independent watchdog, will oversee the propriety of the activities of the agencies in this regard.

This Bill finds the appropriate balance between the ability of ASIS and DSD to conduct their functions and the limits that should be placed on both agencies. The Bill clearly details the limits that are to be placed on ASIS and DSD. They may only perform their functions in the national interest as determined by Government - in particular, in the interests of Australia's national security, Australia's foreign relations or Australia's national economic well-being - and only to the extent that those matters are affected by people or organisations outside Australia. In addition, specific Ministerial authorisation is required by the agencies before they can focus on Australians overseas with the specific purpose of producing intelligence. Such authorisation will only be granted in relation to specific circumstances prejudicial to national security which are set out in the Bill.

Privacy

The privacy of Australians is another matter that is a focus for protection under this Bill and which was closely examined by the Joint Select Committee. The responsible minister for both ASIS and DSD must make written rules regulating the communication (within government) and retention of intelligence information concerning Australians and Australian corporations. This is done to preserve the privacy of Australians and permanent residents defined as in the ASIO Act, which includes a body corporate. These rules, extending from arrangements already subject to close examination by the Inspector-General of Intelligence and Security, are to be prepared in consultation with the Attorney-General and the IGIS, and ASIS and DSD's compliance with them inspected by the IGIS on a regular basis. The Parliamentary Joint Committee on ASIO, ASIS and DSD is to be briefed by the IGIS on these rules and any changes to them.

Other Provisions

Beyond dealing with the functions of the ASIS and DSD, the Bill also caters for the continued existence and control of ASIS. ASIS is under the control of the Director-General who is responsible to the Minister. The administrative provisions for the Director-General and the employment of ASIS staff are also addressed.

The Bill also provides for the Leader of the Opposition in the House of Representatives to be briefed about ASIS. This provision is in the same terms as that in the ASIO Act.

Parliamentary Joint Committee for ASIS, ASIO and DSD

This Bill, beyond emphasising the role for the Inspector-General of Intelligence and Security, also enhances other aspects of the accountability regime for the intelligence and security agencies by establishing a complementary oversight mechanism that deals with the expenditure and administration of ASIS, ASIO and DSD. This oversight mechanism will take the form of a Parliamentary Joint Committee for these agencies. In its report, the Commission of Inquiry had proposed that a single Parliamentary Joint Committee oversee ASIO and ASIS. The Government accepted the Joint Select Committee's recommendation that DSD also be included. The committee envisaged under the Intelligence Services Bill has an expanded focus in comparison to the current Parliamentary Joint Committee for ASIO, which will be disbanded once the new Committee is established. The Commission of Inquiry maintained that the Parliamentary Joint Committee not review operationally sensitive matters. The Government agrees and the Parliamentary Joint Committee will be authorised to examine the expenditure and administration of ASIO, ASIS and DSD. The Parliamentary Joint Committee's role is a significant development in terms of openness and enhanced accountability. The Inspector-General of Intelligence and Security will address matters associated with operational areas of activity and the Parliamentary Joint Committee will address the areas of agency expenditure and administration. Their roles will be complementary but distinct.

The Parliamentary Joint Committee will comprise seven members, four from the House of Representatives and three from the Senate. These members will be appointed by resolution of the relevant Chamber on the nomination of the leader of the Government in that Chamber. This will follow consultation with the leader of each recognised political party in the relevant Chamber. The desirability of ensuring the composition of the Parliamentary Joint Committee reflects the representation of the recognised parties will also be taken into consideration. The 1995 Commission of Inquiry recommended that the Parliamentary Joint Committee exercise its functions principally through the medium of hearings in camera and subject to rules capable of preventing the release of information without authority. The Bill also addresses these recommendations.

The establishment of the Parliamentary Joint Committee to oversee aspects of ASIS, ASIO and DSD brings together a broad, balanced, accountability regime. This is underpinned by the responsibility which Ministers for the agencies have to Parliament, and the role of the Inspector-General of Intelligence and Security in reporting to the Prime Minister and the Parliament on the propriety and legality of the agencies' operational activities. As a consequence, members of the public should gain particular reassurance that the agencies are operating responsibly and are under appropriate control and scrutiny.

Protection of ASIS and its Staff

Having earlier noted the special nature of the ASIS and DSD in respect of their functions externally, this Bill, quite appropriately, seeks to protect ASIS staff, the intelligence it produces and its sources and methods. As was noted by the Commission of Inquiry in its report to the Government, it would be important to dispel any public impression that the introduction of legislation would imply any complete opening up of ASIS to public view. The Commission of Inquiry report also commented that the collection of intelligence information “...depends on people who often put their lives and liberties at considerable risk”. It is for that reason that secrecy about ASIS' activities and the people engaged in them is necessary in the national interest. To lay ASIS bare would be to irreparably damage its capabilities and assets. The men and women of ASIS perform difficult and, at times, dangerous tasks in distant locations. Information about their work and indeed their identities needs to be closely held. Accordingly the Government, in line with recommendations from the Commission of Inquiry, has sought to provide ASIS and its officers with appropriate legislative protection. This Bill generally prohibits the identification of a staff member or agent of ASIS (other than the Director-General of ASIS) and provides protection for information produced by or on behalf of ASIS in connection with its functions. This is in line with similar provisions in the ASIO Act.

Conclusion

In conclusion, I seek to remind the Senate of the importance of intelligence and therefore of the intelligence agencies to government. Australian Governments need the best possible information our intelligence community can provide. The functions performed by the agencies are essential and highly valued.

This Bill implements key recommendations of the Commission of Inquiry concerning ASIS and incorporates substantially all but one of the recommendations of the Joint Select Committee which examined it. The Bill finds a balance between the proper performance by ASIS and DSD of their functions and the agencies' accountability to Government. The accountability regime for ASIS, ASIO and DSD has also been expanded through the establishment of a new Parliamentary Joint Committee.

I commend the Bill to the Senate.

—————

INTELLIGENCE SERVICES (CONSEQUENTIAL PROVISIONS) BILL 2001

The Intelligence Services (Consequential Provisions) Bill 2001 provides for the legislative amendments necessary as a result of the Intelligence Services Bill 2001 which relates to three agencies in the Australian Intelligence Community - the Australian Secret Intelligence Service (ASIS), the Defence Signals Directorate (DSD), and the Australian Security Intelligence Organisation (ASIO). The Bill caters for amendments to the Australian Security Intelligence Organisation Act 1979 stemming from the establishment of the Parliamentary Joint Committee on ASIO, ASIS and DSD, which replaces the Parliamentary Joint Committee for ASIO. The Bill allows for necessary amendments to the Inspector-General of Intelligence and Security Act 1986. The Office of the Inspector-General of Intelligence and Security is responsible for oversight for ASIS and DSD. Finally, the Bill also addresses minor amendments to legislation resulting from ASIS being placed on a statutory footing.

I commend the Bill to the Senate.

Ordered that further consideration of these bills be adjourned to the first day of the 2001 summer sittings, in accordance with standing order 111.