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Finance and Public Administration Legislation Committee
08/02/2016
Estimates
PRIME MINISTER AND CABINET PORTFOLIO
Independent National Security Legislation Monitor

Independent National Security Legislation Monitor

[18:26]

CHAIR: I would now invite Mr Roger Gyles, the Independent National Security Legislation Monitor, to join us. The committee has obviously changed its program to accommodate your request. I would only say that if you could communicate that a little earlier it would make it easier for us to do it because we have had to juggle the program a little bit.

Mr Gyles : I apologise. I am very grateful to the committee for rearranging things. I must confess I only knew of the 8 pm original scheduling, I think, on Friday afternoon.

CHAIR: Estimates days can be awkward for us and I know you have got a very busy program. It does not matter what you have got on—I understand you would not have asked us to change it—but in future if we can manage that a bit better it would be easier for everyone.

Mr Gyles : Thank you.

Senator McALLISTER: Can I ask you what current inquiries you are working on?

Mr Gyles : At the moment I am working on the second part of the control order safeguards. I delivered the first part to the Prime Minister on 29 January and I am now working on the second part of that report.

Senator McALLISTER: When is that due?

Mr Gyles : It is not due at any particular time, but I am aiming for delivery within the next month.

Senator McALLISTER: That is the only piece of work that you are required to report on to the government?

Mr Gyles : No. There is a third piece of work which relates to the border control area which was referred to me by the Prime Minister originally. We activated that some months ago and we are in discussion with the department at the moment as to how to pursue that.

Senator McALLISTER: As with your other work in relation to legislative oversight—

Mr Gyles : Yes.

Senator McALLISTER: in relation to border control?

Mr Gyles : There are some particular aspects of it.

Senator McALLISTER: Is there any deadline for that? Have you arrived at an internal deadline?

Mr Gyles : No. We are waiting on the department—for us to work out with the department how best to pursue that inquiry. As for the rest of it, I have under my statute a number of pieces of legislation I must look at and then there is the balance of the anti-terrorist legislation which I also have a brief to monitor. Now that we have got one of the bigger reports out and the second one well underway we are now trying to work out a work program which can give us the ability to monitor all of the various pieces of legislation.

Senator McALLISTER: Obviously the current parliament has passed a number of national security bills and presently has a further bill before it. Could you outline for the committee the role your office plays in relation to that legislation coming through the parliament?

Mr Gyles : Yes. The 2014 legislation covered a number of aspects of national security, some of which had been referred to me and some of which will just be part of the overall monitoring situation. The 2015 bill—which is before the parliament at the moment—if passed, will also make a number of significant amendments to the control order regime, amongst others. The antiterrorist legislation basically consists of a number of special powers given to authorities, whether it will be ASIO or the Federal Police or border control and so on. My task is to see what is happening under those pieces of legislation so that one can work out how it is working, other safeguards that should be there, is it proportionate to the threat and so on. It is really a case of finding out how many warrants are issued, and so on, and then working out how the procedure are working and whether they are being abused.

Senator McALLISTER: There was some commentary in the media last year suggesting that, given your workload—with new legislation, plus existing activity to monitor—you were under resourced. Do you have sufficient resources to fulfil these responsibilities?

Mr Gyles : Yes. I am more comfortable now than perhaps I was previously. I have been actively discussing the matter with the relevant officers of the department, and a number of things have happened in that regard since I was last before this committee—particularly in terms of staff and facilities generally—which enable me to see a way forward with the proper planning of what has got to be done.

Senator McALLISTER: Ae you able to provide us with a little more detail about those changes?

Mr Gyles : Yes. At the time I was before the committee on the last occasion, I said that the temporary senior adviser was winding down but that a permanent replacement had been identified. That permanent replacement did take place and has been in position. The acting senior adviser has, by arrangement with the department, been continued on, and he will stay with me for the foreseeable future—that will come to an end at some point. A law graduate assistant has been recruited, and she has been in office since December, and it has been agreed between myself and the department that another assistant—not quite a graduate assistant, but somebody in that level—has been identified and will be engaged in the next couple of weeks. That has made a significant difference to what the position was last year.

Senator McALLISTER: Am I correct in understanding that that is three effective full-time positions working to you, where previously you had just the one?

Mr Gyles : Yes.

Senator McALLISTER: And you had a question of transition in relation to that position, which, of course, always causes issues with workload. Was it that situation that gave rise to your report on the ASIO act, particularly section 35P, being as late as it was? Was that a question of resourcing?

Mr Gyles : It certainly was in part, because, as I explained on the last occasion, the timing of the staff changes was very significant. Having said that, it was quite a significant inquiry anyway. I think my initial idea of getting it done by 30 June may have been a little optimistic.

Senator McALLISTER: Thinking specifically about your own role, is that a part-time role?

Mr Gyles : Yes.

Senator McALLISTER: Do you think the workload of the office at present would justify a full-time office holder?

Mr Gyles : Let's put it this way: I think, in a sense, the workload—there would be something for that person to do. I am not sure whether or not that is the correct public policy response. I will have an opinion at some point, but it is not quite yet.

Senator LUDWIG: So, effectively, though do you contribute a full-time workload in a part-time position?

Mr Gyles : I would not go that far. I do have other things that I do, mainly personal, but I work as required.

Senator McALLISTER: Can I just run through very quickly, and I am conscious of the need to accommodate other senators: what support are you provided by the government in addition to staff? Is it just the three effective full-time?

Mr Gyles : I have premises in the PM&C department. I have access to premises in Sydney of a secure nature. I have administrative support from PM&C of a secretarial nature.

Senator McALLISTER: In addition to the three full-time?

Mr Gyles : Matters such as website support, technical assistance, printing and so on are all organised with PM&C.

Senator McALLISTER: Can I finish by asking you about your report on section 35P of the ASIO Act. You have provided that report to the government. Has the government indicated to you that it will implement those recommendations?

Mr Gyles : Yes. It has indicated that it will implement them all.

Senator McALLISTER: Have they indicated a time frame for implementation?

Mr Gyles : I do not believe so.

Senator McALLISTER: Before the next election, do you think?

Mr Gyles : I do not know; I would like to think so.

Senator McALLISTER: Given the nature of your recommendations, is it your view, given your independent oversight role, that they need to be implemented swiftly, given the rather immediate effects that the legislation might have on participants in the political system?

Mr Gyles : I think, having come to the view that I did, it would be certainly advantageous to be done swiftly.

Senator McALLISTER: Before the election?

Mr Gyles : I think I had better leave that to others.

Senator McALLISTER: I think we can conclude that 'swiftly' probably means in this parliament.

Mr Gyles : From my point of view, that would be a good result.

Senator LEYONHJELM: Thank you, Mr Gyles; it is nice to see you again. The report on section 35P kind of confirmed what a number of us had argued when that legislation was going through. I am just wondering—I do not want you to do anything that you should not do but a number of issues were also raised in subsequent legislation relating to press freedom and free speech. Our argument—my argument and those of one or two other senators—was along the same lines as what you reported in relation to section 35P in the ASIO Act. I am just wondering, can we anticipate your next series or your next reports and so forth will pursue those issues?

Mr Gyles : I think you can be satisfied that in any anti-terrorist or national security related legislation, I will have looked at them before I depart the scene

Senator LEYONHJELM: You will have looked at them all. Do you have a timetable for your next report?

Mr Gyles : No. Leaving aside the report that I have mentioned already, which will be in the next four weeks I hope, I then reach a point that I have raised in my annual report which has not yet been tabled, but there is no secret about the point that I am about to make.

The legislation that I work under is not entirely clear as to my ability to make a report on an individual topic unless I have been asked to do so by either the Prime Minister or the PJCIS. The previous monitor took the view, I think, that he could not and that all one could do was do an annual report which picked them all up. I am not quite so sure myself and I have suggested that the government might consider clarifying that. But at least an annual report—it would be a voluminous document—would deal with all of the matters dealt with or monitored during that year.

Senator LEYONHJELM: Another issue that was a matter of substantial concern to some of us as it went through the parliament was the metadata legislation. Is that also on your—

Mr Gyles : It certainly will be, yes.

Senator LEYONHJELM: So you are not in the midst of it now?

Mr Gyles : No. There is a lot to do.

Senator LEYONHJELM: One thing at a time, yes.

Mr Gyles : Exactly. As I have said before, ideally—and the legislation makes this point—it should be provisions that have been utilised so one can get some experience to judge it by.

Senator LEYONHJELM: Indeed, and metadata is not yet an act; you are quite right. I think if I continue any further I will be asking you to talk about stuff you do not want to talk about, so I might give you back the call, Chair. I will leave it there; thank you.

CHAIR: Senator McKim.

Senator McKIM: Thanks, Chair. I just wanted to follow up on one answer you just gave, Mr Gyles. You said the government had indicated support for the recommendations in the report you have recently released. Did they do that in writing?

Mr Gyles : Yes, indeed, they have tabled it.

Senator McKIM: Thanks for that. Could I ask—and apologies if this was asked before I came into the room—in your view, do your current resources allow you to do the job that your legislation requires of you?

Mr Gyles : I am reasonably confident that the answer is yes now.

Senator McKIM: But not certain? Is that because it is an early days scenario?

Mr Gyles : It is a big field and I just have to work out a way of getting across it. I think.

Senator McKIM: All right. If this is outside your remit, please let me know. Do you think that counter-terrorism legislation in Australia is developed in an ad hoc and politicised way?

CHAIR: I can actually state that that is outside—you are not allowed to ask officers for opinions on matters of policy.

Senator McKIM: I will just rephrase the question then, Chair, and you can indicate if you think it is phrased wrongly. We had a counter-terrorism white paper in 2010. In fact, it may be that the legislation that governs your office now flowed from that. I have certainly heard suggestions to that effect. Would another or an updated white paper be of any assistance to you in the commission of your statutory responsibilities?

Senator McGrath: It is dancing down the line.

Senator McKIM: But on the correct side of it, I would submit.

CHAIR: I am sure Mr Gyles will consider the responsibilities of the Senate standing orders in any response.

Mr Gyles : Yes. I think that really is a policy question.

Senator McKIM: Perhaps if I could assist?

Mr Gyles : I suppose any contribution which helps me I would gratefully receive. But I am there to look at the effect of current legislation rather than to be a law reform commission in relation to mooted legislation.

Senator McKIM: I understand that; thank you. Have you been asked by the Prime Minister to examine any matters since you have been in your position?

Mr Gyles : I was asked by the Prime Minister originally to look at three matters, two of which I have reported in whole or in part. The third one, as I said earlier, I have been discussing with the relevant department as to how to pursue that inquiry. But there have been no new references since my original appointment.

Senator McKIM: What was the third request?

Mr Gyles : That deals with certain of the border protection issues which were mooted but not taken up by the parliament dealing with, I think, face recognition, dealing with the amount of time people can be held and so on.

Senator McKIM: You are currently examining those?

Mr Gyles : Yes.

Senator McKIM: What are you examining those proposals against?

Mr Gyles : In fact, we have sought from the relevant department their views as to how the matter ought to be pursued, which I will then take into account. That arose out of legislation some time ago, and the most important thing there is to work out whether that is still a priority.

Senator McKIM: A priority for you or a priority—

Mr Gyles : No, for them.

Senator McKIM: For them?

Mr Gyles : Well, for the government really.

Senator McKIM: For the government.

Mr Gyles : Yes. Because they are not in force, you see, so it is not something I would normally look at.

Senator McKIM: I understand that. Are requests made to you by the Prime Minister ordinarily made public?

Mr Gyles : Yes.

Senator McKIM: Do you make them public or does the Prime Minister?

Mr Gyles : The only way the Prime Minister would communicate with me in any serious way would be by way of a reference, which would be public.

Senator McKIM: And that reference is presumably public?

Mr Gyles : Yes.

Senator McKIM: On your website?

Mr Gyles : Yes.

Senator McKIM: So you make it public rather than the parliament or the Prime Minister?

Mr Gyles : I certainly would, and I am presuming he probably would too.

Senator XENOPHON: Welcome back, Mr Gyles. Is it the case, in terms of the first line of questioning from Senator McAllister, that the government has accepted the recommendations into section 35P?

Mr Gyles : Yes.

Senator XENOPHON: Do you have any idea about what the time frame of that will be?

Mr Gyles : No. It was mentioned earlier. I really do not.

Senator XENOPHON: To Minister McGrath, do you know when the government will respond to those?

Senator McGrath: No; I will take that on notice.

Senator XENOPHON: But you are aware, Minister, that Mr Gyles found that section 35P:

… creates uncertainty as to what may be published about the activities of ASIO …

It notes the 'chilling effect' of that uncertainty and that 'section 35P is not justified'. They are just some of the quotes in the report.

Senator McGrath: The government tabled our response on 2 February this year and we have accepted all of the recommendations.

Senator XENOPHON: Do you have a time frame?

Senator McGrath: As I said before, I will take that on notice.

Senator XENOPHON: Because there seems to be some urgency. Mr Gyles, Senator Leyonhjelm asked questions in terms of the metadata laws. My understanding is that journalists around the country are being retrained as to how they can contact sources. I think it involves more underground car parks—

Unidentified speaker: Back to Watergate days.

Senator XENOPHON: I do not know whether it involves carrier pigeons, but it involves doing things very differently to the way they do them now. I can tell you that in terms of whistleblowers who want to contact my office, they now appear to be more reluctant and we have to have alternative means to contact them because of metadata surveillance. Given the concerns amongst the media and amongst members of parliament who may have concerns about this in terms of how they do their work with whistleblowers, can you give us an idea about when you will be able to look at the metadata laws?

Mr Gyles : No, I cannot at the moment. As I said, I am doing a work plan at the moment. There is an awful lot to be got through. That is an obvious matter of public interest, so I cannot tell you more than it will be done by August 2017.

Senator XENOPHON: There are a lot of whistleblowers that will be in limbo.

Mr Gyles : Fair enough, but there are a lot of people dealt with by warrants or dealt with by preventative detention.

Senator XENOPHON: I know Senator Leyonhjelm has understandably raised that. Can I go to the issue of your work plan. Is the pace of your work plan determined in part by the resources available to you?

Mr Gyles : No, the work plan is, as we are in the process of doing it, looking at what needs to be done. It looks at the time frame in which it must be done by and then works out how it is going to be done. If it cannot be done on a realistic assessment by what we have got at the moment, then I will be speaking with the relevant members of the government.

Senator XENOPHON: Please take this as a compliment as to the quality of your work on the 35P report, which is comprehensive and extremely thorough in nature: because there are so many issues, as indicated by Senator Leyonhjelm and others, that need to be dealt with, is this a bit like the case of coroner's courts, where they have a deputy coroner to undertake a parallel inquiry because there is simply so much material that requires a lot of in-depth analysis? This is not questioning your capacity; on the contrary it is a question of how, physically, you will deal with it. Even if you were full time, I do not know whether you could reasonably deal with all these issues.

Mr Gyles : I think this work-plan analysis, which is underway, will throw that up. My preference would be to have the resources to enable me to do it so that there is some consistency in approach and those subcontracting out, but in previous roles—

Senator XENOPHON: Senator Leyonhjelm and I would be very happy to assist you if you need any help. In terms of that work plan, what timeframe are we looking at for that?

Mr Gyles : August 2017, when my term ends.

Senator XENOPHON: In terms of the draft work plan, when will you know—

Mr Gyles : Sorry, I misunderstood you.

Senator XENOPHON: When will the actual work plan itself—setting out what you propose to do and when you think you will be able to do it—be available?

Mr Gyles : I think it will be an evolving thing, but I am looking for the next two or three weeks. I am coming down to Canberra again on Thursday and that will be one of the main topics for me to look at.

Senator XENOPHON: If I were to ask you, via the committee, to provide a copy of that work plan, even in a draft form, is that something you would be inclined to provide to the committee?

Mr Gyles : No, not really.

Senator XENOPHON: Why not?

Mr Gyles : That is my job.

Senator XENOPHON: Okay, but it would be helpful for us to try to establish—I know I am amusing the minister—

Mr Gyles : At some point I might be able to indicate—I am not being silly about it—time lines. I am not against that, but work plans, no—time lines, yes.

Senator XENOPHON: Is the work plan at the moment a known unknown or a unknown known?

Mr Gyles : No, it is a draft plan.

Senator LUDLAM: In your report on the impact on journalists, section 35P, you have made a couple of recommendations, Before I go through them I want to go to scope, because one of your recommendations is around treating insiders and outsiders separately—and I can see the sense in that. Was the treatment of insiders under this legislation out of scope for you?

Mr Gyles : It really was, if not formally. The view I took about that was that the whole question of whistleblowing and the treatment of insiders was looked at quite significantly in relation to the amendments to the legislation a year or two ago, where the resolution of it was that there should be no external whistleblowing—for example, no external material apart from that which goes to the IGIS. It seemed to me that it was not the time to look at that problem again.

Senator LUDLAM: But we should not consider that in your mind that case is necessarily closed?

Mr Gyles : No, I simply did not deal with that issue.

Senator LUDLAM: That is valuable to know. So there is no implied endorsement of the status quo as far as insiders—

Mr Gyles : Not really. It seemed to me—and it still does—that a general secrecy provision is appropriate. The open question is how one deals with the whistleblowing situation.

Senator LUDLAM: You have two recommendations around express harm provisions, both for the main offence and the aggravated offence. Defence of prior publication, which seems relatively uncontroversial—my question goes to whether you believe that simply embedding express harm requirements for the breaches actually allows journalists to do their job. You would probably be aware that there has been some commentary in the press subsequent to your publication of this report, that this actually does not get journalists out of the swamp of not being able to report on these things about which they do not even know whether they exist or not.

Mr Gyles : That is theoretically correct, but any prosecution of a journalist would require proof of recklessness beyond reasonable doubt in relation to, amongst other things, the harm that might come, as well as the other elements of the offence. Inadvertence would not be good enough, and I think the consequence that arises is that it would prevent, I accept, journalists from publishing some matter.

Senator LUDLAM: How are journalists or their legal advisers meant to weigh those factors up when they will not even know whether they are dealing with a special intelligence operation or not? How do you weigh up recklessness when you are blind?

Mr Gyles : That would be viewed from what the journalist did.

Senator LUDLAM: The journalist will not necessarily even know if they have done something. They are blindfolded.

Mr Gyles : If they publish with no idea that there is any ASIO involvement—as they could, because it could be a break in by somebody—then they certainly could not be prosecuted. If they know it is an ASIO operation, the question is how do they resolve that.

Senator LUDLAM: Whether it is an SIO or not.

Mr Gyles : It may not be an SIO, so they are going to have to deal with how they approach that.

Senator LUDLAM: How do they do that in the absence of that knowledge?

Mr Gyles : They will be looking at all of that at the moment. One thing I touched on in the course of the report was what would be the consequence of them going to ASIO and saying—

Senator LUDLAM: 'Is it or isn't it?'

Mr Gyles : That is right. Both the press and ASIO are very reluctant to get involved in any form of clearance, but I think there may be a set of procedures which the press might work out to deal with it.

Senator LUDLAM: Are you aware—or did you become aware in any of the due diligence that you did in preparing this report—of any instances where journalists have either knowingly or unknowingly compromised intelligence operations?

Mr Gyles : No. There was no example that was given to me, and I mentioned that in the report.

Senator LUDLAM: So what is the problem that we are trying to solve? Maybe I should not ask you to speak for the government here.

Mr Gyles : On any view, there is the possibility of it occurring. We do not even know of any instances in relation to police-controlled operations.

Senator LUDLAM: Right. I guess the point that I am trying to put is that the government is committed to upholding your recommendations in full. We will wait and see how long that takes, but that commitment is there and we will take that on face value. The point that I would put to you is that, even if that happens, the most likely outcome here is that a story will just be legalled out of existence, and it would be by far the most understandable course of action for a media organisation or publisher to just play it on the safe side and not publish, which, I would put to you, is substandard as far as the public interest is concerned.

Mr Gyles : Possibly. The other point of view is that you either do or do not accept the need for protection of people and protection of operations. Once you do accept that, then the question is how do you reconcile those two things.

Senator LUDLAM: This bill was actually introduced in part to try and prevent what I think was called in the explanatory memorandum a 'Snowden-type situation' from arising here, which I thought was an instructive example, because Edward Snowden disclosed substantial illegalities on behalf of the agencies that he had been in contact with and, indeed, working for. You have made the judgement and you have put the position that section 35P is arguably invalid on the basis that it infringes on the constitutional protection of freedom of any political communication—that is, that sometimes it is in the public interest for people to know what is going on inside these agencies. That is why I led with those questions initially about insider threat.

Mr Gyles : It is easy to think of Snowden and so on, but the more instructive thing may be to think about somebody whose home is broken into by somebody. We always think in terms of leaks. The secrecy provisions which govern insiders is, as I have said, a separate issue. The real question is what happens when something external may occur, which does not depend upon a leak but may involve an SIO going badly wrong? These are the sorts of things.

CHAIR: With that, if I could ask you, Senator Ludlam, to put further questions on notice. Mr Gyles, thank you very much for your attendance. We will suspend for the dinner break.

Mr Gyles : I thank the committee for accommodating my—

CHAIR: We will all communicate better. Mr McKinnon, did you have something to add?

Mr McKinnon : Yes, I did. I administer the area within Prime Minister and Cabinet in which Mr Gyles's office sits. There were questions about numbers—

CHAIR: Is this updating—

Mr McKinnon : The numbers of staff.

CHAIR: Right.

Mr McKinnon : A very simple and quick thing, with your indulgence, Chair. Mr Gyles said three; the numbers are moving around at the moment. There are 3½ full-time equivalent. Within a short couple of weeks, there will be another two people for an ongoing four full-time equivalent. In addition, the Prime Minister has written to the Remuneration Tribunal asking that the number of days Mr Gyles is remunerated for be examined to see whether it is still appropriate. So we have moved on resources, and there is still more to come.

CHAIR: Okay. You have brought some time because now there is a change to our dinner break.

Proceedings suspended from 19 : 02 to 19:58