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Thursday, 23 June 2011
Page: 3698


Senator CARR: I move:

That these bill 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—

Inspector-General of Intelligence and Security Amendment Bill 2011

The purpose of the Inspector-General of Intelligence and Security Amendment Bill 2011 (‘the Bill’) is to update and modernise the operation of the Inspector-General of Intelligence and Security Act 1986 (‘the Act’).

The proposed amendments are primarily intended to ensure the Inspector-General of Intelligence and Security (IGIS) is able to undertake the work of the Office of the IGIS (‘the Office’) more effectively and efficiently, including by addressing issues which have arisen or become evident since the legislation was enacted in 1986.

The Bill will also strengthen the accountability and oversight framework governing the activities of the agencies that make up the Australian Intelligence Community (AIC), and will provide greater assurance regarding the legality or propriety of their activities.

The Act was originally drafted in response to the Royal Commission on Intelligence and Security conducted by the Honourable Justice Robert Hope in 1983, which raised, amongst various issues, concerns about the capacity of Ministers to control effectively some AIC agencies.

The Government’s expressed aim at the time in establishing the Office was for assistance to be provided to ministers in undertaking their oversight and review responsibilities in relation to the five Australian intelligence and security agencies, particularly with regard to ensuring compliance with the law, propriety of their particular activities, and consistency with human rights. The work of the IGIS, particularly in assisting the Government meet its responsibilities in relation to the intelligence agencies, is one of the foundations of the accountability framework for the AIC, currently numbering six agencies.

With a view to renewing assurance to the Parliament and the public that agency use of special powers and capabilities is subject to scrutiny, the Bill recognises expressly the IGIS’s special role in assisting the Government in relation to oversight of the intelligence agencies.

In relation to the IGIS’s inquiry and reporting functions, the Bill enhances and expands the IGIS’s capacity to undertake own-motion inquiries and to provide copies of reports of inquiries to the Prime Minister.

Currently, the Act allows the IGIS to undertake preliminary inquiries, but only where a complaint is made to the Office. The proposed amendment will widen the scope for such preliminary inquiries by the IGIS. The ability to undertake a preliminary inquiry in response to a complaint provides the IGIS with an efficient and cost-effective mechanism to ask an agency for information about a matter, without having to allocate resources to conduct a full investigation.

In a significant number of instances, this allows for a sufficient examination of the matter while avoiding a full inquiry. There can be occasions when an allegation about one or more of the AIC agencies is made, for example in the media, but a formal complaint is not lodged with the IGIS. Currently, the only formal option open to the IGIS to examine a matter raised in this way, if he or she is so minded, is to move straight to a full inquiry.

It is preferable in such circumstances for the agency to have an early opportunity to present relevant facts to IGIS, prior to a decision about whether or not to commence a full own motion inquiry. The Bill allows for the adoption of this two stage process for deciding whether to commence an own-motion inquiry, which will help ensure the significant coercive powers provided under the Act for use in a full inquiry are only available when an actual need is identified. Moreover, this will provide the IGIS with more flexibility and a more cost effective option for handling many issues.

The Bill also addresses an anomaly in the Act in that for the Office of National Assessments (ONA), the Australian Security Intelligence Organisation and the Defence Intelligence Organisation, inquiries can be conducted by the IGIS on his or her own motion into ‘the effective­ness and appropriateness of the procedures of (the agency) relating to the legality or propriety of the activities of (the agency)’, but for the Defence Imagery and Geospatial Organisation, the Defence Signals Directorate and the Australian Secret Intelligence Service there is currently no own motion capacity in this regard - the IGIS can only conduct an inquiry into these agencies in response to individual cases of concern. The Bill ensures IGIS can adopt a common approach towards all six AIC agencies.

The Act currently allows the IGIS to provide to the Prime Minister, as the Minister responsible for ONA, a copy of any report covering ONA, but not the other five AIC agencies within the IGIS’s jurisdiction. The Bill will correct this anomaly and allow the IGIS to give the Prime Minister a copy of any final report prepared in relation to an inquiry conducted under the IGIS Act, either where the Prime Minister has requested that be done or where the IGIS otherwise considers such action appropriate.

The Bill will also provide the IGIS with the capacity to delegate his or her powers in certain circumstances, subject to Ministerial approval.

There is currently no power of delegation in the Act, and hence the IGIS must personally exercise the significant powers of the Office. Due to the small size of the Office, there is a limit to how many inquiries can be effectively conducted at any one time on top of its inspection and complaints handling functions.

In addition, the strong coercive powers provided to the IGIS to compel persons to provide information and documents can be exercised only by the IGIS personally. In practice, this means it would be difficult for IGIS to concurrently progress more than two full inquiries of a significant nature in a timely way.

The Bill allows for the engagement of a suitable person to conduct a major inquiry with access to the full range of powers under the Act. This will ensure the IGIS has greater flexibility to expand the capacity of the Office at short notice if a person of suitable standing could be engaged and delegated the full powers of IGIS in respect of a particular inquiry.

Coercive questioning, however, is an extraordinary power exercised by a very limited number of agencies. Accordingly, the scope for the IGIS to delegate the powers of the Office, particularly coercive questioning powers, will be subject to limitations that ensure this mechanism is only resorted to when there is a strict need.

The proposed amendments require the IGIS to seek approval from the relevant Minister in each case where such powers are to be delegated for the purpose of a specific inquiry only. The amendments also specify that unless the responsible Minister otherwise agrees in relation to a particular inquiry, the person proposed to be employed in relation to the inquiry must be able to obtain and maintain a security clearance to at least the same level as staff members of the Australian Secret Intelligence Service.

There would be a relatively limited number of suitable candidates for delegation. The key qualities required for a suitable person would include: a very good understanding of the policy, bureaucratic and legal environment within which the intelligence and security agencies work, as well as an ability to approach issues fairly and with an open mind in order to arrive at objective, credible and defensible outcomes from inquiries or other investigations.

The person would have to have the seniority and wisdom required to engage effectively the highest levels of agencies, and where necessary to resist pressures to influence unreasonably the outcomes of an IGIS investigation. For reasons of credibility, a delegate should also not have worked for any significant period of their career in the intelligence community itself, and would have to be able to work with and be subject to direction from the IGIS. Finally, the amendments require that the responsible Minister must be satisfied that the proposed delegate has appropriate expertise for the particular inquiry.

The Bill also provides the IGIS with the capacity to assist Royal Commissions at the discretion of the Government of the day, while ensuring the effective operation of limitations on any unauthorised release of sensitive intelligence material by current or former IGIS officers to a court, coronial inquiry or Royal Commission. This would be in order to assist the work of relevant Royal Commissions.

The secrecy provisions of the Act are intended to avoid court proceedings becoming an indirect route for disclosure via the IGIS of documents and information from the intelligence and security agencies, to which the IGIS has complete and necessary access, and the Bill ensures that no person can be required by a court or tribunal to disclose information in contravention of the secrecy provisions of the Act.

There are, however, likely to be cases where the IGIS could provide significant assistance to, and facilitate the work of, a Royal Commission. The Bill therefore recognises the desirability of enabling the IGIS to release material to Royal Com­missions in certain circumstances. The proposed provision that a Commission must be expressly prescribed in regulations as authorised to seek evidence from, or cooperate with, the IGIS will avoid the IGIS being under an obligation to give evidence to all Royal Com­missions at a Commission’s request.

The Bill will also simplify some of the existing provisions of Section 8 which, although they are key to the IGIS’s jurisdiction, complainants and interested members of the public often find convoluted and difficult to read and comprehend. The operation of subsections 8(5), (6) and (7), which relate to the scope of the IGIS’s authority to inquire into employment matters concerning intelligence agency employees, will be simplified, providing greater clarity regarding the IGIS’s inquiry functions covered by these provisions. The substantive role, powers or functions of the IGIS in relation to the intelligence agencies will not be altered by these proposed amendments.

Finally, the opportunity is taken with this Bill to rectify drafting oversights and inconsistencies that have become apparent in the Act.

One oversight arose when a new requirement was introduced by the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 for the IGIS to give evidence in Information Commissioner reviews in certain circumstances, requiring a minor consequential amendment to paragraph 34(5)(a) proposed by this Bill.

The Bill will also rectify an unintended inconsistency in subsection 34(5) regarding the treatment of ‘documents’ as opposed to ‘information’ that arose when the subsection was repealed and substituted by Schedule 4 to the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009, and then amended by Schedule 6 to the Freedom of Information Amendment (Reform) Act 2010.

Currently, paragraphs 34(5)(c), (ca), (d) and (e) deal with circumstances in which a person can be required to divulge or communicate informa­tion, but there are no equivalent provisions relating to documents. The proposed new paragraphs 34(5)(ba), (bb), (bc) and (bd) correct this drafting oversight.

As noted by the Prime Minister in announcing in December 2010 the Independent Review of the Intelligence Community, which is currently under way, intelligence plays a key role in preserving Australia's national security and supports a wide range of our national interests.

With the significant expansion in the resources and capabilities of the intelligence community over the past decade, it is important for the accountability machinery for the intelligence agencies to be revisited and refined in order to keep pace.

This Bill will ensure the Office of the IGIS is well positioned for the future, and is one part of the Government’s broader agenda of ensuring accountability machinery across the Commonwealth is operating both efficiently and effectively.

Military Justice (Interim Measures) Amendment Bill 2011

The Australian Military Court was established in 2007 by legislation supported by both sides of the Parliament.

The Court's establishment followed a series of Senate Committee reports over a number of years recommending extensive changes to the system of military justice.

On 26 August 2009, the High Court of Australia handed down its decision in the case of Lane v Morrison. The case challenged the constitutional validity of the Australian Military Court.

The High Court found unanimously that the provisions of the Defence Force Discipline Act 1982 establishing the Australian Military Court were invalid, because the Australian Military Court purported to exercise the judicial power of the Commonwealth, but did not meet the requirements of Chapter III of the Constitution.

Chapter III of the Constitution ensures judicial independence from the executive and the legislature by providing that federal judges have tenure until they reach a fixed age of no more than 70, and that they can only be removed for proved misbehavior or incapacity following a request from both Houses of Parliament to the Governor General.

The Australian Military Court legislation claimed that the court was not a court under Chapter III of the constitution, as the appointment and tenure of its judges did not comply with Chapter III.

However the High Court found in Lane v Morrison that it was exercising judicial power, which the Constitution only allows to be exercised by a Chapter III court.

The Military Justice (Interim Measures) Act (No. 1) 2009 was then passed by the Parliament, again with bipartisan support, to reinstate the pre-2007 military justice arrangements.

The reinstatement of the pre-2007 military justice system was required to allow time for the consideration and development of options for a new military justice system which meets the requirements of Chapter III of the Constitution.

The Military Justice (Interim Measures) Act (No. 1) 2009 provided for a tenure of up to two years for the Chief Judge Advocate and the Judge Advocates.

This tenure is due to expire in September this year.

The Military Justice (Interim Measures) Amendment Bill 2011 will continue the appointment, remuneration and entitlement arrangements for the Chief Judge Advocate and the two full-time Judge Advocates for an additional two years or until the Minister for Defence declares, by legislative instrument, a specified day to be a termination day, whichever is sooner.

The Department of Defence and the Attorney-General's Department are currently working to finalise the details of a Military Court of Australia Bill and associated consequential and transitional provisions.

This important legislation will establish a permanent, effective and constitutionally sound system of military justice for Australia's defence forces.

This process will take some time, and there is currently no certainty that it will be complete and be enacted by the Parliament by September this year.

This Bill will ensure the continuity of these key military justice appointments until legislation establishing the Military Court of Australia takes effect.

I commend the Bill to the House.

Mutual Assistance in Criminal Matters Amendment (Registration of Foreign Proceeds of Crime Orders) Bill 2011

Organised crime affects all Australians. The Australian Crime Commission estimates that between $10-$15 billion dollars every year is lost as a result of organised crime. This is money that is being siphoned from legitimate Australian businesses; it is money that cannot be spent on education, health or any number of services. And in this way, organised crime steals from every Australian citizen every day.

In an age where borders are increasingly permeable, effective and efficient international crime cooperation is increasingly important. The growing use of sophisticated technology by organised criminal groups means assets derived from criminal activities are often moved offshore to avoid detection and confiscation by local authorities.

Organised criminals are motivated by greed - money is their lifeblood. If we can stop the money flow we can stop organised criminals in their tracks. The Gillard Government has made combating organised crime a priority, and being able to confiscate assets and profits which are a result of crimes committed overseas is a key plank in this strategy.

Legislative framework

Australia has a strong framework for cooperating with foreign countries and restraining and confiscating benefits derived from foreign criminal offences where those assets are located in Australia. Part VI of the Mutual Assistance in Criminal Matters Act 1987 (Mutual Assistance Act) enables an Australian court to register and enforce orders issued by a foreign court. These foreign orders include restraining, confiscation and pecuniary penalty orders over property derived from serious criminal offences.

Once a foreign order is registered in Australia, it is able to be enforced as though it were an Australian order made under the Proceeds of Crime Act.

Provisions in the International Criminal Court Act 2002 and the International War Crimes Tribunals Act 1995, expand upon the regime in the Mutual Assistance Act and allow an Australian court to register and enforce forfeiture orders issued by the International Criminal Court and specified international war crimes tribunals.

A recent High Court decision regarding New South Wales proceeds of crime related provisions has highlighted the importance of ensuring that functions imposed onto a court properly reflect the nature of judicial functions under Chapter III of the Constitution. Specifically, the decision reinforced that courts must be allowed to exercise appropriate supervision over the making or enforcement of proceeds of crime orders.

Amendments in Bill

To ensure the legislative framework providing a court with the power to register and enforce foreign orders continues to operate as intended, this Bill will make minor but important amendments to the Mutual Assistance Act, the International Criminal Court Act and the International War Crimes Tribunal Act.

The amendments to each of these Acts will provide a court with greater discretion when determining whether a foreign order should be registered and enforced in Australia, and whether or not to hear an application for registration on an ex parte basis. The amended provisions will require a court to register a foreign order unless it considers it would be contrary to the interests of justice to do so. In determining whether registra­tion of a foreign order is in the interests of justice, the court is to give due regard to the overarching purpose of the regime.

Objects provision

In order to clarify the purpose of this regime, the Bill will also insert an object clause into Subdivision A of Part VI of the Mutual Assistance Act. The objective of the Subdivision is to enable Australia to give effect to foreign orders in situations where property related to serious foreign offences is located in Australia. As reciprocity is the fundamental basis of international crime cooperation, it is vital that we are able to provide the same level of assistance to other countries as we would expect of them.

Conclusion

Where a person has committed a serious offence in a foreign country, and proceeds from that offence are located within Australia, it is important that Australia is able to enforce foreign orders. Australia must not be seen as a safe haven for criminals and their ill-gotten gains.

These amendments will ensure that the legislative framework continues to operate as intended and that Australia can register foreign proceeds of crime orders in an effective and timely fashion.

Debate adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.