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Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015

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2013-2014-2015

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Wong)



Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015

 

OUTLINE

 

The purpose of the Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015 is to ensure that the adequacy and effectiveness of Parliamentary oversight of intelligence and security agencies keeps pace with the agencies' enhanced powers. This Bill amends the Intelligence Services Act 2001 , the Independent National Security Legislation Monitor Act 2010 and the Inspector-General of Intelligence and Security Act 1986 to change the membership, powers and functions of the Parliamentary Joint Committee on Intelligence and Security (PJCIS).

 

In Australia, as in many other similar democracies, the powers of intelligence and security agencies have changed dramatically in recent years - the product of an increasingly complex and unpredictable security landscape. The maintenance of public security in the current security environment does require enhanced powers for the agencies charged with this responsibility. However, the protection of our hard-won democratic freedoms equally demands enhanced oversight of the exercise of these powers. With legislative changes extending the powers of security agencies, the requirement for reliable, effective external oversight becomes critical to maintaining an essential level of trust in the community about agency operations.

 

It is the Parliament to which the agencies are accountable, and it is the Parliament’s responsibility to oversight their priorities and effectiveness, and to ensure agencies meet the requirements and standards it sets. There is no greater or more important focus of political activity in this country than Parliament itself, and the Australian Parliament has no better or more authoritative forum than the PJCIS to do this job.

 

The Bill removes current constraints on the membership of the PJCIS to provide that, except for a minimum representation of one Government Member and Senator and one Opposition Member and Senator, the balance of the 11 member PJCIS can be drawn from either chamber.

 

Currently, the Intelligence Services Act 2001 mandates a composition of six House of Representatives members and five Senators on the PJCIS.

 

Removing the current constraints will enable greater flexibility in determining PJCIS membership.

 

The Bill does not amend the requirement for the Government to hold a majority.

 

The Bill also:

 

  • provides for the PJCIS to conduct own motion inquiries after consultation with the responsible Minister;

 

  • authorises the Independent National Security Legislation Monitor (INSLM) to provide the PJCIS with a copy of any report on a matter referred to it by the committee;

 

  • requires the Inspector-General of Intelligence and Security (IGIS) to give the PJCIS a copy of any report provided to the Prime Minister or a Minister within three months;

 

  • gives the PJCIS the function of conducting pre-sunset reviews of legislation containing sunset provisions;

 

  • adds the Independent  National Security Legislation Monitor and the National Security Adviser to officers able to be consulted by the PJCIS.

 

NOTES ON CLAUSES

Clause 1: Short Title

1.           Clause 1 is a formal provision specifying the short title of the Bill.

Clause 2: Commencement

2.           This clause provides for the provisions of the Bill to commence on the day after the Bill receives the Royal Assent .

Clause 3 - Schedules

3.           Clause 3 provides that each Act specified in a Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule.  Any other item in a Schedule to this Act has effect according to its terms.

Schedule 1— Membership, powers and functions of the Parliamentary Joint Committee on Intelligence and Security

4.                        The Schedule deals with the following matters:

Independent National Security Legislation Monitor Act 2010

Item 1 - Reports by the Independent National Security Legislation Monitor

5.                        Item 1 includes in the Independent National Security Legislation Monitor’s functions under section 6 that the Monitor may provide the Parliamentary Joint Committee on Intelligence and Security (PJCIS) with a report of a review in relation to a matter referred to the Monitor by the Committee.

In addition, the capacity for the PJCIS to tap into the Independent National Security Legislation Monitor’s new function (conferred by item 131A of Schedule 1 of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 ) of conducting pre-sunset reviews of specified legislation is expressly included, through the reference to subsection 6(1B) in new paragraph 6(1A)(a).

Inspector-General of Intelligence and Security Act 1986

Item 2 - Definition of the PJCIS in the IGIS Act

6.                        Item 2 inserts a definition of PJCIS in subsection 3(1).

Item 3 - IGIS to provide copies of reports to PJCIS

7.                        Item 3 inserts a requirement in section 22 for the Inspector-General of Intelligence and Security to give the PJCIS a copy of any reports given to the Prime Minister or a Minister within 3 months of the report being provided to the Prime Minister or the Minister.

Intelligence Services Act 2001

Item 4 - New definitions

8.                   Item 4 inserts 5 new definitions into section 3 to define counter-terrorism and national security legislation; Independent National Security Legislation Monitor; National Security Adviser; sunset date; and sunset provision.

These definitions provide clarity and additional meaning to amendments made to the Act as a result of this Bill.

Item 5 - Membership balance between the House of Representatives and the Senate

9.                   Item 5 gives effect to a proposal to remove constraints on the membership of the PJCIS to provide that, except for a minimum representation of one Government Member and Senator, and one Opposition Member and Senator, the balance of the 11 member PJCIS can be drawn from either chamber. There is no change in the overall size of the Committee as a result of this amendment.

The item does not alter subsection 28(3), which requires that a majority of the Committee’s members must be Government members.

Item 6 - Own-motion inquiry

10.               Item 6 amends paragraph 29(1)(b) to give effect to the power for the PJCIS to conduct an own-motion inquiry by resolution of the Committee (that is, decision of a majority of the Committee), subject to amendments proposed to subsection 29(2) in item 8.

Item 7 - Pre-sunset review

11.               Item 7 gives the Committee the function of conducting a pre-sunset review. The definitions of counter-terrorism, national security legislation, sunset date and sunset provision in item 4 provide additional meaning to this item.

Item 8 - Consultation with Minister

12.               Currently, subsection 29(2) provides that the Committee may request the responsible Minister to refer a matter in relation to the activities of specified intelligence and security agencies to the Committee, and that the Minister may use powers under paragraph 29(1)(b) to make such a referral.

This item, operating in conjunction with the amendment proposed in item 6, means the Committee no longer requires the agreement of the Minister to conduct a review into the activities of specified intelligence and security agencies, but that the Minister must first be consulted about any review adopted by resolution of the Committee.

Items 9 and 10 - Consequential amendments relating to briefings of the PJCIS

13.               Item 9 amends the heading to section 30 to reflect the changes made by item 10.

 

Item 10 adds the Independent National Security Legislation Monitor and National Security Adviser (as defined in item 4) to the list of people in section 30 from whom the PJCIS may seek briefings. The Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 has already added the AFP Commissioner to the list (item 133C of Schedule 1 to that Act).

Item 11 - Membership balance

14.                    Item 11 operates in conjunction with item 5 as it relates to the composition of the PJCIS. It amends subclause 14(5) of Part 3 of Schedule 1 to specify that in nominating the members of the PJCIS, the Prime Minister and the Leader of the Government in the Senate must be satisfied that the members to be nominated are the most appropriate members available to serve on the Committee. This is in addition to the existing requirement (now paragraph 14(5)(b)) that regard be had to ensuring that the composition of the membership reflect the representation of recognized political parties in the Parliament.

Item 12 - Transitional provisions relating to membership

15.                    Item 12 of Schedule 1 is a provision that is designed to manage the transition to the new membership arrangements.



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The measures proposed in this Bill will increase the accountability of our security and intelligence agencies and ensure ongoing public confidence in the integrity of these vital institutions.

The Bill amends the Independent National Security Legislation Monitor Act 2010 , the Inspector-General of Intelligence and Security Act 1986 , and the Intelligence Services Act 2001 to provide the Parliamentary Joint Committee on Intelligence and Security with more flexible membership, greater powers and resources, the capacity to generate its own inquiries, better coordination with the IGIS, and oversight responsibility for the counter-terrorism elements of the Australian Federal Police (AFP). The Bill also provides for review for controversial legislation.

Human rights implications

The Bill promotes the protection of human rights by improving the scrutiny of national security legislation and the actions of intelligence and security agencies.

Conclusion

This Bill is compatible with human rights as it promotes the protection of human rights through improved scrutiny of national security legislation that may limit human rights.

 

Senator Penny Wong