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Intelligence Services Amendment (Enhanced Parliamentary Oversight of Intelligence Agencies) Bill 2018

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2016-2017-2018

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

INTELLIGENCE SERVIVES AMENDMENT (ENHANCED PARLIAMENTARY OVERSIGHT OF INTELLIGENCE AGENCIES) BILL 2018

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

(Circulated by authority of Senator Patrick)

 

 

 

 

 

 

 

 

 

 

 



 

INTELLIGENCE SERVICES AMENDMENT (ENHANCED PARLIAMENTARY OVERSIGHT OF INTELLIGENCE AGENCIES) BILL 2018

 

OUTLINE

 

The purpose of the Intelligence Services Amendment (Enhanced Parliamentary Oversight of Intelligence Agencies) Bill 2018 is to amend the Intelligence Service Act 2001 to extend parliamentary scrutiny over the activities of Australia’s national security and intelligence agencies, including scrutiny and reviews of intelligence operations.

 

Australia’s ten national security and intelligence agencies employ more than 7,000 people and spend well over $2 billion each year while they accumulate massive amounts of data at home and abroad. While Australia’s intelligence community has grown rapidly over the past two decades, the mechanisms of accountability and review overseeing those agencies have received much less attention, resources and authority.

 

In particular, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) has been tightly restricted under the Intelligence Services Act 2001 to review matters relating to the administration and expenditure of Australia’s intelligence agencies: Australian Security Intelligence Organisation (ASIO), Australian Secret Intelligence Service (ASIS), Australian Geospatial Intelligence Organisation (AGO), Defence Intelligence Organisation (DIO), Australian Signals Directorate (ASD) and the Office of National Assessments (ONA).

 

The PJCIS is explicitly prohibited from reviewing the operations of Australian intelligence agencies. The PJCIS is prohibited by the I ntelligence Services Act 2001 f rom reviewing intelligence-gathering priorities and operations of Australian intelligence agencies, or the assessments and reports they produce. The committee is further barred from examining sources of information, operational activities and methods, or any operations that have been, are being or are proposed to be undertaken by intelligence and national security agencies. 

 

The PJCIS is also prohibited from reviewing the privacy rules made by Ministers that regulate the communication and retention by agencies of intelligence information concerning Australian persons.

 

These limitations on parliamentary scrutiny have reflected a historical reluctance of past governments and intelligence agency officials to trust Members of Parliament outside the executive with the most sensitive intelligence information.

 

However the PJCIS can’t properly hold these agencies properly accountable for their activities if the Parliament continues to ban its own committee from reviewing their operations and other activities. Nor can expenditure and administration be adequately examined without consideration of operational performance.

 

Three decades have passed since the establishment of the Parliamentary Joint Committee on the Australian Security Intelligence Organisation in 1988. Over some thirty years the Parliamentary Joint Committee, supported by its secretariat, has demonstrated its capacity to handle highly sensitive information with absolute confidentiality and security. It is not credible to suggest that senior Members of Parliament, often including former Ministers with direct experience overseeing intelligence agencies, serving as members of the Joint Committee cannot be trusted to inquire into and review the most sensitive intelligence matters including information relating to intelligence agency operations.

 

The complete exclusion of intelligence operations from parliamentary committee scrutiny is not an approach followed by some of Australia's closest intelligence partners.

 

In the United States, Congressional oversight of the intelligence community is spread across several committees, including specialised committees on intelligence in the House of Representatives and the Senate. While each Congressional committee has some limits on what it may examine, taken collectively committees have long enjoyed the ability to inquire into all of the intelligence-related activities of the US Government, including highly sensitive operational matters. Wide ranging Congressional inquiries are accepted by the US intelligence community as necessary and appropriate.

 

In the United Kingdom, the Intelligence and Security Committee of the British Parliament is empowered by the Justice and Security Act 2013 to oversee the expenditure, administration, policy and operations of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters. The Intelligence and Security Committee can consider operational matters when requested by the Prime Minister and where they do not involve ongoing operations and it is in the national interest.

 

Under section 8 of Canada's National Security and Intelligence Committee of Parliamentarians Act 2017 the Canadian parliament's intelligence committee can review:

 

“any activity carried out by a department that relates to national security or intelligence, unless that activity is an ongoing operation and the appropriate Minister determines that the review would be injurious to national security”

 

Section 8 of the Canadian legislation further provides that:

 

“If the appropriate Minister determines that a review would be injurious to national security, he or she must inform the Committee of his or her determination and the reasons for it.”

    

“If the appropriate Minister determines that the review would no longer be injurious to national security or if the appropriate Minister is informed that the activity is no longer ongoing, he or she must inform the Committee that the review may be conducted.”

 

This Bill adapts the model of the Canadian parliamentary oversight legislation to  extend the functions of the PJCIS to examine and review intelligence agency operations and other activities including intelligence policy and coordination, subject to the opinion of relevant Ministers concerning potential impacts on ongoing operations, national security and foreign relations.

 

In what is a major enhancement of the PJCIS’s mandate, the Bill removes most, though not all, of the current legislative constraints on the scope of PJCIS inquiries.

 

The Bill retains existing prohibitions on reviewing information provided by a foreign government where that government does not consent to the disclosure of the information.



This exclusion is necessary in view of the sensitive nature of Australia’s intelligence cooperation agreements with foreign countries which govern the sharing of intelligence information between Australia and the United States, United Kingdom, Canada and New Zealand, as well as other countries.

 

The Bill also retains the prohibition on conducting inquiries into individual complaints about the activities of designated intelligence and national security agencies as those complaints are appropriately dealt with by the Inspector-General of Intelligence and Security.

 

As is the case with Canada’s legislation, the Bill recognises that there are details of intelligence operations involving sensitive and vulnerable sources that are best held by the smallest number of people with an absolute need to know.

 

Accordingly, the relevant Minister may certify that a review by the PJCIS relates to an ongoing operation and that the review would interfere with the proper performance by the relevant body of its functions or otherwise prejudice Australia’s national security or the conduct of Australia’s foreign relations. If this is the case the Committee will be required to cease or suspend the review.

 

However the committee may refer the Minister's decision to the Inspector-General of Intelligence and Security who, within 30 days, must review the matter and consider:

·          whether the activity is an ongoing operation; and

·          whether it is reasonable to conclude that a review by the committee would interfere with the proper performance by the relevant body of its functions or otherwise prejudice Australia’s national security or the conduct of Australia’s foreign relations.

 

If the Inspector-General advises the committee that the activity is not an ongoing operation, or that the review would not cause interference with the proper functioning of the relevant body or otherwise prejudice Australia’s national security or the conduct of Australia’s foreign relations, the committee may proceed with the review, or commence a new review into the activity.

 

Overall, the Bill provides a framework for the proper exercise of parliamentary scrutiny while enabling the government to act to protect the security of particularly sensitive ongoing intelligence operations.

 

The Bill’s proposed amendments do not affect other provisions within the Intelligence Service Act 2001 , including the provisions of Schedule 1 to the Act, relating to the disclosure of information, power to obtain information and documents, the provision of information to the committee by agencies, the issue of ministerial certificates relation to the disclosure of operationally sensitive information, the publication of evidence or contents of documents including restrictions on disclosures to Parliament and secrecy offences relating to the work of the PJCIS.

 

Australia's intelligence community agencies are not infallible. In the future their performance will be tested in a much more demanding security environment and the Australian Parliament will need to subject our intelligence agencies to much closer scrutiny than has been the case previously.

 

This Bill provides a sensible and secure framework within which to extend parliamentary scrutiny to the operations of Australia’s national security and intelligence agencies.



 

NOTES ON CLAUSES

 

Clause 1: Short Title

 

1.         This clause is a formal provision and specifies that the short title of the Act may be cited as the Intelligence Services Amendment (Enhanced Parliamentary Oversight of Intelligence Agencies) Act 2018.

 

Clause 2: Commencement

 

2.         This clause provides for the commencement of the main provisions in Schedule 1 of the Act to be the day after the Act receives the Royal Assent.

 

Clause 3: Schedules

 

3.         This clause states 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 - Amendments

 

Intelligence Services Act 2001

 

Item 1—Paragraph 29(1)(a)

 

4.         Item 1 inserts the word “activities” after the words “to review the” so that the functions of the Parliamentary Joint Committee on Intelligence and Security will no longer be limited  to review of the “administration and expenditure” of the agencies listed in the section (ASIO, ASIS, AGO, DIO, ASD and ONA) and will include the operational and other activities of those agencies. Activities that could be subject to review by the Parliamentary Joint Committee would, subject to the provisions of paragraph 29(3), include all activities conducted in accordance with the functions of the agencies as defined by legislation including the Intelligence Services Act 2001 , the Australian Security Intelligence Organisation Act 1979 and the Office of National Assessments Act 1977 . Activities subject to potential PJCIS review would cover operational matters relating to the collection of intelligence as well as the assessment of intelligence and the broader questions of control of intelligence and security agencies including cooperation or relations with foreign intelligence and security agencies. Other functions of the Parliamentary Joint Committee, as set out in other paragraphs of section 29, are unaffected.

 

Item 2—Subsection 29(3)

 

5.         Item 2 repeals subsection 29(3), which sets out certain matters that are excluded from the functions of the Parliamentary Joint Committee, and substitutes a new subsection that provides that the committee’s functions shall not include:

(a) reviewing information provided by, or by an agency of, a foreign government where that government does not consent to the disclosure of the information; or

(b) conducting inquiries into individual complaints about the activities of ASIO, ASIS, AGO, DIO, ASD, ONA, AFP or the Department of Immigration and Border Protection.

 

6.         The effect of Item 2 is to remove the current restrictions on the scope of reviews and inquiries by the Joint Parliamentary Committee that include

·          exclusions on reviewing the intelligence gathering and assessment priorities of intelligence and security agencies;

·          reviewing coordination and evaluation activities undertaken by ONA;

·          reviewing particular operations that have been, are being or are proposed to be undertaken;

·          reviewing activities that do not affect an Australian person;

·          reviewing the content of, or conclusions reached in, assessments or reports made by DIO or ONA, or reviewing sources of information on which such assessments or reports are based;

·          reviewing written rules written rules regulating the communication and retention by the relevant agency of intelligence information concerning Australian persons (privacy rules); and

·          reviewing operational information or operational methods available to the AFP or reviewing particular operations or investigations that have been, are being or are proposed to be undertaken by the AFP.

 

7.         The new subsection retains the existing exclusion on the Parliamentary Joint Committee conducting inquiries into individual complaints about intelligence and security agency activities as such inquiries are appropriately dealt with by the Inspector-General of Intelligence and Security.

 

8.         The new subsection also retains the existing exclusion on the Parliamentary Joint Committee reviewing information provided by, or by an agency of, a foreign government where that government does not consent to the disclosure of the information to the committee. This exclusion is necessary in view of the sensitive nature of Australia’s intelligence cooperation agreements with foreign countries which govern the sharing of intelligence information, in particular agreements between Australia and the United States, United Kingdom, Canada and New Zealand (the so-called “Five Eyes” countries), as well agreements with other countries.

 

Item 3—New Section 29A

 

9.         Item 3 inserts, after section 29, a new section 29A. This establishes a mechanism which would allow a relevant minister to veto a Parliamentary Joint Committee review of an ongoing operation by an intelligence agency when the minister is of the opinion that such a review would interfere with the proper performance by the agency of its functions or otherwise prejudice Australia’s national security or the conduct of Australia’s foreign relations.

 

10.       These provisions are broadly modelled on the provisions of section 8 of Canada’s National Security and Intelligence Committee of Parliamentarians Act 2017 .

 

11.       Subsection 29A(1) provides that if the minister is of the opinion that a review by the Parliamentary Joint Committee of an going agency operation would interfere with the proper performance of the agency’s functions or otherwise prejudice Australia’s national security or foreign relations, the minister may provide the committee with a certificate stating the minister’s opinion and reasons.

 

12.       Subsection 29A(2) provides that the minister must also give a copy of the certificate to the President of the Senate and the Speaker of the House of Representatives.

 

13.       Subsection 29A(3) provides that the minister’s decision to issue such a certificate may not be questioned in any court or tribunal. Subsection 29A(4) provides that once the minister has provided a certificate, the Joint Parliamentary Committee must cease or suspend its  review.

 

14.       Section 29A further provides a mechanism for resolution of any disagreement between the Parliamentary Joint Committee and a minister on the conduct of a review by allowing the Inspector-General of Intelligence to review the minister’s decision.

 

15.       Subsection 29A(6) provides that the Parliamentary Joint Committee may refer a ministerial certificate to the Inspector-General of Intelligence and Security.

 

16.       Subsection 29A(7) provides that within 30 days the Inspector-General must review the certificate and consider whether the activity is an ongoing operation, and whether a review by the Parliamentary Joint Committee would interfere with the proper functioning of the relevant body or otherwise prejudice Australia’s national security or foreign relations; and provide the committee with written advice setting out the Inspector-General’s opinion in relation to those matters.

 

17.       Subsection 29A(8) provides that in the event the Inspector-General advises that the activity is not an ongoing operation, or that the review would not cause interference with the proper functioning of the relevant body or otherwise prejudice Australia’s national security or the conduct of Australia’s foreign relations, the committee may proceed with the review, or commence a new review into the activity. If the Inspector-General does not so advise, the committee may not proceed with the review.

 

Additional note

 

18.       In the event that the Parliament passes the Office of National Intelligence Bill 2018 and the Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018 , it will be necessary to amend this Bill to replace reference to the Office of National Assessments with reference to the new Office of National Intelligence.

 

 

 

 

 

 

 



 

Statement of Compatibility with Human Rights

 

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

 

Intelligence Services Amendment (Enhanced Parliamentary Oversight of Intelligence Agencies) Bill 2018

 

This Bill is compatible with 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 purpose of this Bill is to amend the is to amend the Intelligence Service Act 2001 to extend parliamentary scrutiny over the activities of Australia’s national security and intelligence agencies, including review of intelligence operations.

 

Human rights implications

 

This Bill does not directly engage any of the applicable rights or freedoms as it deals with parliamentary scrutiny of the activities of Australia’s intelligence and security agencies. However enhanced parliamentary scrutiny should provide an additional broad safeguard that all agency activities are consistent with the purposes and functions of those agencies as set out in legislation, and are consistent with human rights and freedoms.

 

Conclusion

 

This Bill is compatible with human rights as it does not raise any human rights issues.

 

 

Senator Patrick