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Intelligence and Security—Parliamentary Joint Committee—Annual report of committee activities 2020-2021—Report, September 2021


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September 2021 CANBERRA

PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

Annual Report of Committee Activities 2020-2021

Parliamentary Joint Committee on Intelligence and Security

© Commonwealth of Australia

ISBN 978-1-76092-245-0 (Printed Version)

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iii

Foreword

The Parliamentary Joint Committee on Intelligence and Security (PJCIS) has evolved substantially since its beginnings in 1988 as the Parliamentary Joint Committee on the Australian Security Intelligence Organisation (ASIO). Over time the remit of the PJCIS has expanded, firstly in 2005 to include the agencies of the then-Australian Intelligence Community (AIC) and more recently to cover certain matters relating to the Australian Federal Police (AFP). Further expansions have been considered under the 2017 Independent Intelligence Review (the IIR) and the 2019 Comprehensive Review of the Legal Framework of the National Intelligence Community (the Richardson Review). As the scope of the PJCIS has expanded, so has the workload before it.

The national security challenges facing Australia are unprecedented. The Committee’s workload is evidence to this point as the challenges of foreign interference, extremism and cyber security remain at a high level.

The Committee, like the rest of the Australian community, has continued to adapt to the challenges brought on by COVID-19. The Committee’s workload has increased substantially throughout this period but due to the efficiency and responsiveness of Committee members and the relevant agencies the Committee’s workload has been able to be progressed.

These challenges of both increasing scope of the PJCIS and the greatest workload it has ever faced means renewed attention is required to the Intelligence Services Act 2001 (the IS Act) which binds the Committee, as well as the Committee’s ability to regularly access classified briefing facilities to carry out its work.

Senator James Paterson Hon Anthony Byrne MP

Chair Deputy Chair

September 2021 September 2021

v

List of Abbreviations

ACIC Australian Criminal Intelligence Commission

AIC Australian Intelligence Community

AFP Australian Federal Police

AGO Australian Geospatial-Intelligence Organisation

ASIO Australian Security Intelligence Organisation

ASIS Australian Secret Intelligence Service

ASD Australian Signals Directorate

DIO Defence Intelligence Organisation

IGIS Inspector-General of Intelligence and Security

INSLM Independent National Security Legislation Monitor

IS Act Intelligence Services Act 2001

NIC National Intelligence Community

ONI Office of National Intelligence

PJCIS Parliamentary Joint Committee on Intelligence and Security

vii

Members

Chair

Senator James Paterson (from 3 February 2021)

Mr Andrew Hastie MP (until 22 December 2020)

Deputy Chair

Hon Anthony Byrne MP

Members

Dr Anne Aly MP (from 3 September 2020)

Ms Celia Hammond MP (from 3 February 2021)

Hon Mark Dreyfus QC MP

Mr Julian Leeser MP

Mr Tim Wilson MP

Senator Amanda Stoker (until 22 December 2020)

Senator the Hon Eric Abetz

Senator Jenny McAllister

Senator the Hon David Fawcett

Senator the Hon Kristina Keneally

ix

Terms of Reference

This report is made under section 31 of the Intelligence Services Act 2001 which requires:

As soon as practicable after each year ending 30 June, the Committee must give to Parliament a report on the activities of the Committee during the year.

xi

Contents

Foreword ........................................................................................................................................... iii

List of Abbreviations ......................................................................................................................... v

Members ........................................................................................................................................... vii

Terms of Reference ........................................................................................................................... ix

List of Recommendations .............................................................................................................. xiii

The Report

1 Committee activities during the review period ................................................. 1

Overview of activities ........................................................................................................... 2

Bill inquiries ......................................................................................................................... 10

Statutory reviews ................................................................................................................ 16

General policy inquiries ..................................................................................................... 19

Other activities of the Committee ..................................................................................... 21

The future of the Committee ............................................................................................. 24

Appendix A. Functions of the PJCIS ............................................................................. 29

Appendix B. Reports tabled by the Committee during the review period ............ 35

Appendix C. Australian Federal Police activities ....................................................... 39

Appendix D. Notifications and other reports provided to the Committee in the review period .......................................................................................................... 45

xiii

List of Recommendations

Recommendation 1

1.23 The Committee recommends the Department of Home Affairs notify the Parliamentary Joint Committee on Intelligence and Security in writing when terrorist group re-listings are not being sought, or are being de-listed. This is to occur as soon as practicable after the event. Written notification is to be followed up by, if requested, an oral briefing to the PJCIS on the basis for the revocation or non-renewal of terrorist group listings.

Recommendation 2

1.69 The Committee recommends that any Bill referrals are accompanied by a submission from the department(s) responsible for the Bill.

Recommendation 3

1.116 The Committee recommends that the appropriate Minister notify the Committee of any amendments to the Intelligence Services Act 2001 affecting the role or functions of the Committee, not contained in a Bill reviewed by the Committee or in a government response to a Committee report.

Recommendation 4

1.131 The Committee recommends the Australian Government refer Section 29 and Schedule 1 of the Intelligence Services Act 2001 to the Parliamentary Joint Committee on Intelligence and Security for review and report at the commencement of the 47th Parliament.

xiv

Recommendation 5

1.133 The Committee recommends the Australian Government investigate, in consultation with the Presiding Officers of the Parliament, the Director-General of Security and the Director-General National Intelligence, the feasibility of additional classified meeting spaces within Parliament House for use by parliamentary committees, including the Parliamentary Joint Committee on Intelligence and Security.

1

1. Committee activities during the review period

1.1 The Parliamentary Joint Committee on Intelligence and Security (PJCIS) is established pursuant to section 28 of the Intelligence Services Act 2001 (IS Act). The functions of the Committee are set out at section 29 of the IS Act which are outlined in Appendix A.

1.2 The Committee comprises eleven members, five of whom must be Senators and six of whom must be members of the House of Representatives. A majority of the Committee’s members must be Government members.

1.3 The Committee is required under section 31 of the IS Act to provide the Parliament with a report on its activities over each financial year. This report covers the period 1 July 2020 to 30 June 2021.

The year in review

1.4 Changes to membership of the PJCIS over the review period included the appointment of Senator James Paterson as Chair of the PJCIS on 4 February 2021 and the appointment of Ms Celia Hammond MP as a Member of the Committee on 3 February 2021. Mr Andrew Hastie MP and Senator Amanda Stoker departed the Committee on 22 December 2020.

1.5 The impact of COVID-19 affected the conduct of Committee business although the ability to conduct hearings remotely allowed much of its public inquiry work to continue.

2 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

Overview of activities

1.6 Over the review period the Committee held 51 meetings and briefings. This included 17 public hearings.

1.7 Over the review period the Committee undertook 26 inquiries and tabled 13 reports (including the publication of an annual report) totalling 80 recommendations made to Government on a range of complex national security topics. A full list of the reports tabled by the Committee during the review period and government responses received is provided at Appendix B.

1.8 The Committee completed the following reports over the review period:

 Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press  Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019  Review of the re-listing of Islamic State East Asia as a terrorist

organisation under the Criminal Code  Review of the listing and re-listing of three organisations as terrorist organisations under the Criminal Code  Annual Report of Committee Activities 2019-2020  Review of the mandatory data retention regime  Advisory report on the Australian Security Intelligence Organisation

Amendment Bill 2020  Review of the listing and re-listing of two organisations as terrorist organisations under the Criminal Code  Review of ‘Declared Areas’ provisions sections 119.2 and 119.3 of the

Criminal Code  Advisory report on the Telecommunications Legislation Amendment (International Production Orders) Bill 2020  Review of the re-listing of Jaish-e-Mohammad as a terrorist organisation

under the Criminal Code.  Review of the listing of Sonnenkrieg Division as a terrorist organisation under the Criminal Code.  Review of the relisting of Hizballah’s External Security Organisation as a

terrorist organisation under the Criminal Code.

COMMITTEE ACTIVITIES DURING THE REVIEW PERIOD 3

1.9 During the period, the following reviews had commenced and had not yet been completed or tabled by the Committee :

 Inquiry into extremist movements and radicalism in Australia  Inquiry into national security risks affecting the Australian higher education and research sector  Review of Administration and Expenditure No. 18 (2018-2019)  Review of Administration and Expenditure No. 19 (2019-2020)  Review of AFP Powers  Review of Part 14 of the Telecommunications Act 1997 -

Telecommunications Sector Security Reforms  Review of the amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018  Review of the Counter-Terrorism Legislation Amendment (High Risk

Terrorist Offenders) Bill 2020  Review of the Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020  Review of the Security Legislation Amendment (Critical Infrastructure)

Bill 2020  Statutory review of the Security of Critical Infrastructure Act 2018  Review of the re-listing of Jama’at Mujahideen Bangladesh (JMB) and

the listing of Neo-Jama’at Mujahideen Bangladesh (Neo-JMB) as terrorist organisations under the Criminal Code  Review of the Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020

1.10 As the above lists demonstrate the workload of the Committee is substantial and varied. The Committee regularly completes Bill reviews and a range of statutory reviews of existing legislation. The Committee also conducted three general policy inquiries referred by the Attorney-General and the Minister for Home Affairs.

Oversight responsibilities

Reviews of administration and expenditure

1.11 Section 29(1)(a) of the IS Act requires the Committee to review the administration and expenditure of the Australian Intelligence Community (AIC):

 Australian Geospatial-Intelligence Organisation (AGO)

4 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

 Australian Security Intelligence Organisation (ASIO)  Australian Secret Intelligence Service (ASIS)  Australian Signals Directorate (ASD)  Defence Intelligence Organisation (DIO)  Office of National Intelligence (ONI)

1.12 In exercising this function the Committee conducts annual reviews of the administration and expenditure of these agencies. In these reviews the Committee examines the financial performance and management of each agency and the budgetary framework in which each agency operates. The Committee also examines relevant administration matters for each agency including their legislation, strategic direction and organisational structure, human resources management, security and public accountability and transparency.

Administration and Expenditure review No. 18 (2019-2020)

1.13 On 5 December 2019 the Committee launched its 18th review of the intelligence agencies’ administration and expenditure. The Committee received evidence and conducted classified hearings in support of its 2019-2020 Administration and Expenditure review. Due to the impacts of COVID-19 on the Committee’s ability to securely conduct the 2019-2020 Administration and Expenditure review this report has not yet been completed and was delayed from the previous reporting period.

Administration and Expenditure review No. 19 (2020-2021)

1.14 On 14 September 2020 the Committee launched its 19th review of the intelligence agencies’ administration and expenditure. The Committee received evidence and conducted classified hearings in support of its 2020-2021 Administration and Expenditure review. As at the end of the review period this review had not yet been completed.

Review of listings of terrorist organisations under the Criminal Code

1.15 Division 102 of the Criminal Code states it is an offence to direct the activities of, be a member of, associate with or conduct a range of activities in support of a listed terrorist organisation.

1.16 Pursuant to section 102.1A of the Criminal Code the Committee may review a regulation specifying an organisation as a terrorist organisation and report

COMMITTEE ACTIVITIES DURING THE REVIEW PERIOD 5

the Committee’s comments to each house of the Parliament before the end of the applicable disallowance period of 15 sitting days.

1.17 The Committee conducted the following reviews of regulations made by the Minister for Home Affairs re-listing or listing terrorist organisations under the Criminal Code:

 Review of the re-listing of Islamic State East-Asia as a terrorist organisation under the Criminal Code  Regulation tabled by the Minister on 6 October 2020

 Review of the listing and re-listing of three organisations as terrorist organisations under the Criminal Code  The three organisations were: Islamic State West Africa Province, Boko Haram and Islamic State  Regulations tabled by the Minister on 24 August 2020

 Review of the listing and re-listing of two organisations as terrorist organisations under the Criminal Code  The two organisations were Jama-at Nusrat al-Islam wal-Muslimin and Islamic State Khorasan Province  Regulations tabled by the Minister on 9 November 2020

 Review of the re-listing of Jaish-e-Mohammad as a terrorist organisation under the Criminal Code  Regulation tabled by the Minister on 23 February 2021.

 Review of the listing of the Sonnenkrieg Division as a terrorist organisation under the Criminal Code  Regulation tabled by the Minister on 23 March 2021

 Review of the re-listing of the Hizballah External Security Organisation (ESO) as a terrorist organisation under the Criminal Code  Regulation tabled by the Minister on 11 May 2021

1.18 The Committee supported the re-listings and new listings in order to protect Australians and Australia’s interests and found no reason to disallow the legislative instruments. In its report on the re-listing of the Hizballah ESO, the Committee made two recommendations to the government to consider extending the listing to the entirety of Hizballah and to provide a briefing to the Committee on its response.

1.19 As at the end of the review period the Committee had yet to complete the following review:

 Review of the re-listing of Jama’at Mujahideen Bangladesh (JMB) and the listing of Neo-Jama’at Mujahideen Bangladesh (Neo-JMB) as terrorist organisations under the Criminal Code.

6 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

Non-renewal of terrorist organisation listings and notification to the Committee

1.20 Through the re-listing process for Hizballah’s External Security Organisation (ESO) in 2021 the Committee became aware of the Department of Home Affairs’ practice of not notifying the PJCIS when a Government decision had been made to not renew a terrorist group listing, as noted in Submission 1.2 from the Department of Home Affairs to the PJCIS on that particular inquiry.

1.21 The Department of Home Affairs noted that the Criminal Code does not provide for review by the Committee of the de-listing or discontinued listing of an organisation as a terrorist organisation. The Committee considers this to be unsatisfactory and not in the spirit of transparency and accountability to the Parliament, via the Committee.

1.22 The Committee recommends the Department of Home Affairs notify the Committee in writing when a terrorist group is not being re-listed (or being de-listed) outlining details of the matters that are the basis for the de-listing or non-renewal as soon as practicable after the event. The Committee additionally recommends, should the Committee request, a verbal briefing be provided to the Committee by the Department of Home Affairs. The purpose of providing such notifications would not be for the Committee to undertake reviews as it does in the listing and re-listing process, but would aid in transparency by making the Committee, and therefore the Parliament, aware of these important decisions made by Government.

Recommendation 1

1.23 The Committee recommends the Department of Home Affairs notify the Parliamentary Joint Committee on Intelligence and Security in writing when terrorist group re-listings are not being sought, or are being de-listed. This is to occur as soon as practicable after the event. Written notification is to be followed up by, if requested, an oral briefing to the PJCIS on the basis for the revocation or non-renewal of terrorist group listings.

Review of ‘Declared Terrorist Organisations’ under the Citizenship Act

1.24 The Committee exercises certain functions under the Australian Citizenship Act 2007 (the Citizenship Act). Under sections 33AA and 35 of the

COMMITTEE ACTIVITIES DURING THE REVIEW PERIOD 7

Citizenship Act a person aged 14 years or older who is a national or citizen of another country loses their Australian citizenship if they engage in certain conduct on behalf of a ‘declared terrorist organisation’ as defined in section 35AA of the Citizenship Act.

1.25 Pursuant to subsection 35AA(4) of the Citizenship Act once a declaration of a terrorist organisation is made by the Minister, the Committee may review the declaration and report the Committee’s comments and recommendations to each House of the Parliament during the applicable disallowance period of 15 sitting days.

1.26 No declarations under section 35AA(1) of the Citizenship Act were made by the Minister for Home Affairs during the reporting period and accordingly no reviews were conducted by the Committee.

Review of ‘Declared Areas’ under the Criminal Code

1.27 The Committee exercises certain functions under the Criminal Code relating to declared areas allowing the Committee to review the Foreign Affairs Minister’s declarations under these provisions and provide a report to Parliament.

1.28 Section 119.2 of the Criminal Code provides that it is an offence for a person to enter, or remain, in a ‘declared area’. The Minister for Foreign Affairs may by legislative instrument, pursuant to section 119.3 of the Criminal Code, declare an area in a foreign country for the purposes of section 119.2 if he or she is ‘satisfied that a listed terrorist organisation is engaging in a hostile activity in that area of the foreign country’. Unless disallowed by the Parliament, or revoked earlier by the Minister for Foreign Affairs, a declaration ceases to have effect on the third anniversary of that day on which it takes effect.

1.29 As at 30 June 2021 there were no ‘declared areas’ under the Criminal Code.

Oversight of AFP counter-terrorism and stop, search and seizure activities

1.30 Pursuant to section 29(1)(baa) of the IS Act it is a function of the Committee to monitor and review the performance by the Australian Federal Police (AFP) of its functions under Part 5.3 of the Criminal Code and Part IAA of the Crimes Act 1914 (the Crimes Act).

1.31 Part 5.3 of the Criminal Code relates to Commonwealth terrorism offences and the control order, preventative detention order (PDO), and continuing detention order (CDO) regimes. Division 3A of Part IAA of the Crimes Act

8 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

provides for stop, search and seizure powers made available to the AFP in relation to terrorism offences.

1.32 The AFP provided details to the Committee on this topic which are outlined in Appendix C of this report.

Review of retained data activities of the AFP and ASIO

1.33 Pursuant to section 29(1)(bd) of the IS Act it is a function of the Committee to review any matter that relates to the retained data activities of ASIO and is set out in the relevant sections of ASIO’s annual report. Similarly under section 29(1)(be) of the IS Act it is a function of the Committee to review any matter that relates to the retained data activities of the AFP in relation to offences under Part 5.3 of the Criminal Code. These reviews are subject to certain restrictions under ss 29(1)(4) and 29(1)(5) of the IS Act.

1.34 Part 5-1A of the Telecommunications (Interception and Access) Act 1979 (the TIA Act) provides for a mandatory data retention regime which requires telecommunication carriers, carriage service providers and internet service providers to retain a defined set of telecommunications data for two years. The regime is designed to ensure that such data remains available for law enforcement and intelligence investigations.

1.35 During the reporting period ASIO provided the Committee with a copy of Appendix L of its classified annual report for 2019-2020 relating to ASIO’s authorisations for retained and prospective telecommunications data. The Committee continued to review the retained data activities of ASIO as part of its administration and expenditure reviews. The Committee did not consider it necessary to conduct a more detailed inquiry in relation to ASIO’s retained data activities over the reporting period.

1.36 During the reporting period the Committee reviewed the AFP’s usage of retained and prospective telecommunications data through the TIA Act Annual Reports as prepared by the Department of Home Affairs. The Committee additionally completed a review of the mandatory data retention regime. The Committee was provided further information from the AFP on its use and administration of its telecommunications powers in response to the Commonwealth Ombudsman’s own motion report as referred to below.

Commonwealth Ombudsman—AFP‘s use and administration of telecommunications data powers 2010-2020

1.37 The Commonwealth Ombudsman provided the Committee with his own motion report Australian Federal Police’s (AFP) use and administration of

COMMITTEE ACTIVITIES DURING THE REVIEW PERIOD 9

telecommunications data powers 2010 to 2020 to support its review of the retained data activities of the AFP:

1.38 The following is taken from the Foreword of that report.

This report makes findings based upon the following themes:

 We identified that many of the authorisations made by ACT Policing for access to telecommunications data between 13 October 2015 and 2019 were not properly authorised. Of the 1,713 individual accesses to LBS [location-based services, known as ‘pings’] by ACT Policing for that period, we were only able to provide assurance that nine were fully compliant with the TIA Act.

 Many LBS could have been accessed unlawfully which has a number of potential consequences. Firstly, if access was unlawful and the information relied on in prosecutions, there may be consequences for people convicted of an offence. While initial advice provided by the AFP to my Office was that the LBS obtained by ACT Policing was only used to locate someone to arrest them, we were unable to rule out the possibility that unlawfully obtained evidence, the LBS, may have been used for prosecutorial purposes. Secondly, the privacy of individuals may have been breached.

 We could not be satisfied that the scope of the breaches has been fully identified by the AFP nor the potential consequences and consider it is possible breaches have occurred in parts of the AFP other than ACT Policing.

 The AFP and ACT Policing missed a number of opportunities to identify and address that ACT Policing was accessing LBS outside the AFP’s approved process earlier.

 The internal procedures at ACT Policing and a cavalier approach to exercising the powers resulted in a culture that did not promote compliance with the TIA Act. This contributed to the non-compliance identified in this report.

In response to PwC’s report, the AFP made several changes to the way in which staff access prospective telecommunications data in an effort to improve compliance with the TIA Act. These have been useful first steps towards the AFP achieving future compliance. However, I consider the AFP needs to do more to confirm the extent of non-compliance with the legislation for this type of telecommunications data and remediate any consequences of non-compliance with the TIA Act identified in this report. This report includes

10 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

eight recommendations to assist the AFP in addressing these issues and implementing processes to prevent recurrence of similar issues.1

1.39 On 22 April 2021 the AFP Commissioner wrote to the Committee in relation to the above report. The letter in part stated:

The AFP accepts all the recommendations (the attached table refers), many of which have already been addressed. For example, the AFP introduced the Electronic Surveillance Warrant and Authorisation Management System (ES-WAMS) project, which will assist frontline members and address compliance issues by using two forms in a digitised format under section 180(2) Prospective authorisations and section 180(7) Prospective revocations under the TIA Act. The AFP is taking this report very seriously, and has a dedicated team embedded within our Covert Analysis and Assurance team, which includes members from ACT Policing, to assist implementation of the report recommendations.2

1.40 The Committee was pleased to note the response by the AFP to the serious breaches notified by the Commonwealth Ombudsman. The Committee will continue to monitor the AFP’s use and administration of telecommunications and data powers and its implementation to the Commonwealth Ombudsman’s recommendations.

Bill inquiries

1.41 The Committee completed reviews of three Bills during the review period:

 Australian Security Intelligence Organisation Amendment Bill 2020  Telecommunications Legislation Amendment (International Production Orders) Bill 2020  Review of the Australian Citizenship Amendment (Citizenship

Cessation) Bill 2019

1.42 The Committee reviewed all Bills in a bipartisan manner examining the effectiveness and appropriateness of each individual Bill and consider the broader legislative framework in which they operated. Increasingly these Bills refer to each other and holistic analysis was critical in Committee deliberations.

1 Commonwealth Ombudsman, Australian Federal Police’s (AFP) use and administration of

telecommunications data powers 2010 to 2020: Access to immediate response location data under the Telecommunications (Interception and Access) Act 1979, April 2021, pp. 1-3.

2 Correspondence from the AFP Commissioner to the Committee, dated 22 April 2021.

COMMITTEE ACTIVITIES DURING THE REVIEW PERIOD 11

1.43 At the conclusion of the review period the Committee had commenced, or was completing reviews of five Bills:

 Review of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020  Review of the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020  Review of the Intelligence Oversight and Other Legislation Amendment

(Integrity Measures) Bill 2020  Review of the Security Legislation Amendment (Critical Infrastructure) Bill 20203  Review of the Migration and Citizenship Legislation Amendment

(Strengthening Information Provisions) Bill 2020

Advisory report on the Australian Security Intelligence Organisation Amendment Bill 2020

1.44 The Australian Security Intelligence Organisation Amendment Bill 2020 (the Bill) was introduced into the House of Representative by the Hon Peter Dutton MP, Minister for Home Affairs on 13 May 2020.

1.45 In his second reading speech Minister Dutton said:

The Australian Security Intelligence Organisation Amendment Bill 2020 will modernise ASIO's powers and, in doing so, improve ASIO's capacity to respond to these threats.

`It does this in two ways. First, the bill repeals ASIO's existing questioning and detention warrant framework contained in division 3 of part III of the Australian Security Intelligence Organisation Act 1979(ASIO Act), and introduces a reformed compulsory questioning framework.

Second, the bill aligns the approval process for ASIO to use non-intrusive tracking devices with that of law enforcement agencies under the Surveillance Devices Act 2004 and modernises the definition of tracking device to ensure ASIO is able to use the latest and safest technology to perform its functions.4

3 The Committee elected to review the Security Legislation Amendment (Critical Infrastructure)

Bill 2020 with the statutory review of the Security of Critical Infrastructure Act 2018 given the substantial overlapping interests between the two inquiries

4 The Hon Peter Dutton MP, Minister for Home Affairs, House of Representatives Hansard, 13 May

2020, p. 3230.

12 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

1.46 On 13 May 2020 the Minister for Home Affairs, wrote to the Committee to refer the provisions of the Bill to the Committee for inquiry and report.

1.47 The Committee concluded its review of the Bill and tabled its report on 3 December 2020. The Committee made a number of recommendations including amending the Bill so that:

 the sunsetting time is reduced from 10 to 5 years  the Committee may review the operation, effectiveness and implications of the questioning powers ahead of that sunset date  a legal practitioner able to be appointed as a prescribed authority must

have engaged in legal practice for at least 10 years and be a Queen’s Counsel or a Senior Counsel5

Advisory report on the Telecommunications Legislation Amendment (International Production Orders) Bill 2020

1.48 The Telecommunications Legislation Amendment (International Production Orders) Bill 2020 (the IPO Bill) was introduced into the House of Representatives on 5 March 2020 by the Minister for Population, Cities and Urban Infrastructure and referred to the Committee on 9 March 2020 by the Minister for Home Affairs.

1.49 The Bill sought to address Australia’s evolving technological landscape where data previously held in Australia is now stored overseas. The Explanatory Memorandum stated:

The extensive use of foreign telecommunications and online platforms by both criminals and terrorists has made accessing this data increasingly valuable. Australian law enforcement and national security agencies require timely access to electronic information and communications data from foreign communications providers for criminal investigations and prosecutions, as well as other law enforcement and national security purposes. To collect this data, Australia has relied heavily on mutual legal assistance from overseas jurisdictions, particularly the United States, where many communications providers of interest are located. Accessing communications data through the mutual legal assistance regime is a lengthy process, which cannot keep pace with the fast moving requirements of the investigation and prosecution of serious crime.6

5 Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Australian

Security Intelligence Organisation Amendment Bill 2020, December 2020.

6 Telecommunications Legislation Amendment (International Production Orders) Bill 2020,

Explanatory Memorandum, p. 2.

COMMITTEE ACTIVITIES DURING THE REVIEW PERIOD 13

1.50 The Committee concluded its review of the Bill and tabled its report on 12 May 2021. The Committee made a number of recommendations including amending the Bill to include:

 conditions that qualify an agreement to be a designated international agreement  require that a foreign country must demonstrate certain characteristics for Australia to make an agreement with them  clarify aspects of the process to make designated international

agreements  enhancement of oversight powers associated with the powers in the Bill  provisions for a statutory review in whichever is the earlier of three

years following the enactment of the first designated international agreement, or five years following the commencement of the provisions of the Bill

Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019

1.51 The Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 (the Bill) was introduced into the House of Representatives by the Hon Peter Dutton MP, Minister for Home Affairs on 19 September 2019.

1.52 In his second reading speech Minister Dutton said:

The Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 continues the coalition government's effort to address the threat of terrorism and to deliver on our commitment to keep the Australian community safe. It's central reform and it provides for ministerial decision-making with respect to the cessation of Australian citizenship, replacing the current automatic operation of law provisions. Under this model, the Minister for Home Affairs can cease a person's Australian citizenship if satisfied that their conduct demonstrates a repudiation of their allegiance to Australia and that it is not in the public interest for the person to remain an Australian citizen.7

1.53 On 19 September 2019 the Minister for Home Affairs, wrote to the Committee to refer the provisions of the Bill to the Committee for inquiry and report.

1.54 In addition the Minister referred to the Committee the Independent National Security Legislation Monitor’s (INSLM) Report to the Attorney-General: Review

7 The Hon Peter Dutton MP, Minister for Home Affairs, House of Representatives Hansard, 19

September 2019, p. 4.

14 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

of the operation, effectiveness and implications of terrorism-related citizenship loss provisions in the Australian Citizenship Act 2007 stating that the Bill ‘implements the majority of the recommendations made by the INSLM.’8

1.55 The Committee completed a review of the Bill and tabled its report on 1 September 2020. The Committee made a number of recommendations including:

 that the Explanatory Memorandum clarify that proposed section 36B of the Bill require the Minister to be ‘reasonably’ satisfied of the matters listed in proposed subsection 36B(1)

 that the Explanatory Memorandum of the Bill clarify that under proposed section 36E(2) of the Bill the Minister must take into account the following matters  the likely effects of citizenship cessation on any dependents of the

person whose citizenship the Minister is proposing to cancel  a person’s connection to Australia  conduct that would be captured by Chapter 8 of the Criminal Code  a requirement for the PJCIS to commence a review of the Bill’s

functioning three years after the Bill’s assent9

Review of the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020

1.56 The Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 (the HRTO Bill) was introduced into the House of Representatives by Attorney-General on 3 September 2020 and referred the Bill to the Committee for inquiry and report.

1.57 The Committee received submissions and held public hearings to gather evidence for the HRTO Bill over the review period.

1.58 The Committee’s review of the HRTO Bill was ongoing at the end of the review period.

8 The Hon Peter Dutton MP, Minister for Home Affairs, House of Representatives Hansard, 19

September 2019, p. 4.

9 Parliamentary Joint Committee on Intelligence and Security, Advisory report on the Australian

Citizenship Amendment (Citizenship Cessation) Bill 2019, September 2020.

COMMITTEE ACTIVITIES DURING THE REVIEW PERIOD 15

Review of the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

1.59 The Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 (the SLAID Bill) was introduced into the House of Representatives by the Minister for Home Affairs on 3 December 2020. On 9 December 2020 the Minister referred the SLAID Bill to the Committee for inquiry and report.

1.60 The SLAID Bill proposed three new powers for the AFP and ACIC, network activity warrants, data disruption warrants and account takeover warrants.

1.61 The Committee received submissions and held public hearings to gather evidence for the SLAID Bill over the review period. The Committee additionally received classified briefings from the AFP and ACIC on the powers proposed by this Bill.

1.62 The Committee’s review of the SLAID Bill was ongoing at the end of the review period.

Review of the Security Legislation Amendment (Critical Infrastructure) Bill 2020

1.63 The Security Legislation Amendment (Critical Infrastructure) Bill 2020 (the CI Bill) was introduced into the House of Representatives by the Minister for Home Affairs on 10 December 2020. On 18 December 2020 the Minister referred the CI Bill to the Committee for inquiry and report. The Committee received submissions to gather evidence for the CI Bill over the review period.

1.64 The Committee’s review of the CI Bill was ongoing at the end of the review period.

Review of the Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020

1.65 The Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020 (the IM Bill) was introduced into the House of Representatives by the Attorney-General on 9 December 2020. On 10 December 2020 the Attorney-General referred the IM Bill to the Committee for inquiry and report.

1.66 The IM Bill proposes changes to intelligence oversight, notably extending PJCIS oversight to AUSTRAC and IGIS oversight to AUSTRAC and the ACIC’s intelligence functions. The Committee received submissions and

16 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

held public hearings to gather evidence for the IM Bill over the review period.

1.67 The Committee’s review of the IM Bill was ongoing at the end of the review period.

General comment

1.68 Once a Bill is referred to the Committee for review, it has been the practice of the Committee to call for submissions including from the Department responsible for the Bill. The Committee is aware that departmental and ministerial staff would have prepared many documents to support the drafting of any Bill. The Committee would therefore recommend that any Bill referral be accompanied by a departmental submission. Once the Committee launches an inquiry this will allow submitters to see, in addition to the Bill and the Bill’s explanatory memorandum, the policy arguments and any additional comments that the department may wish to provide. It is noted that the Committee may still call for further submission(s) from any department in answer to issues raised by submitters during the course of the Committee’s review.

Recommendation 2

1.69 The Committee recommends that any Bill referrals are accompanied by a submission from the department(s) responsible for the Bill.

Statutory reviews

1.70 The Committee must undertake statutory reviews of several pieces of legislation. As the size of national security legislation has grown substantially, so has the workload of the Committee in conducting statutory reviews. Over the review period the Committee completed two statutory reviews.

1.71 At the conclusion of the review period the Committee had commenced, or was completing four statutory reviews:

 Review of AFP Powers  Review of the amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018  Review of Part 14 of the Telecommunications Act 1997 -

Telecommunications Sector Security Reforms  Statutory Review of the Security of Critical Infrastructure Act 2018

COMMITTEE ACTIVITIES DURING THE REVIEW PERIOD 17

Review of ‘declared areas’ provisions

1.72 The Committee was required by section 29(1)(bb)(iii) of the ISA, to review the operation, effectiveness and implications of sections 119.2 and 119.3 of the Criminal Code (which provide for declared areas in relation to foreign incursion and recruitment).

1.73 The Committee’s report on the review of ‘declared areas’ provisions of the Criminal Code was tabled on 24 February 2021.

1.74 The Committee made four recommendations in its report including to extend sections 119.2 and 119.3 of the Criminal Code for a further three years, provide in the Criminal Code that the Committee may undertake a review of the provisions prior to the new sunset date, require additional briefings to the Committee, and provide for exemptions by the relevant Minister.

1.75 The Government responded to the Committee’s review on 4 August 2021.

Review of the mandatory data retention regime

1.76 The Committee was required by Part 5-1A of the Telecommunications (Interception and Access) Act 1979 (TIA Act) to undertake a review of the mandatory data retention regime (MDRR).

1.77 The mandatory data retention regime is a legislative framework which requires carriers, carriage service providers and internet service providers to retain a defined set of telecommunications data for two years ensuring that such data remains available for law enforcement and intelligence investigations.

1.78 The Review of the mandatory data retention regime report was tabled on 28 October 2020.

1.79 The Committee’s report made 22 targeted recommendations that increased transparency around the use of the MDRR, increased the threshold for when data can be accessed under the MDRR and, did so in a way that did not have a great effect on law enforcement and ASIO’s ability to do their very important work. In addition the Committee made recommendations that sought to reduce the very broad, access to telecommunications data under the Telecommunications Act.10

10 Parliamentary Joint Committee on Intelligence and Security, Review of the mandatory data retention

regime, October 2020.

18 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

Review of AFP Powers

1.80 Pursuant to section 29(1)(bb)(i)(ii) of the IS Act the Committee is required to review the AFP Powers before 7 January 2021. Specifically the Committee is to review the operation, effectiveness and implications of Division 3A of Part IAA of the Crimes Act which provides for police powers in relation to terrorism and Divisions 104 and 105 of the Criminal Code which provide for control orders and preventative detention orders.

1.81 The Committee received submissions and held public hearings to gather evidence for the AFP Powers inquiry over the review period.

1.82 The Committee’s review of AFP Powers was ongoing at the end of the review period.

Review of the amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018

1.83 Pursuant to section 29(1)(bca) of the IS Act the Committee is required to review the amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (the TOLA Act) by 30 September 2020.

1.84 The Committee received submissions and held two public hearings in July and August 2020 to gather evidence for the TOLA Act inquiry over the review period.

1.85 The Committee’s review of the TOLA Act was ongoing at the end of the review period.

Review of Part 14 of the Telecommunications Act 1997 - Telecommunications Sector Security Reforms

1.86 Pursuant to Part 14 Division 81 section 315K of the Telecommunications Act 1997 the Committee is required to commence a review of Part 14 of the Telecommunications Act 1997 - Telecommunications Sector Security Reforms before the second anniversary of the commencement of this section and complete said review on or before the third anniversary of this section (18 September 2021). The Committee must give the Home Affairs Minister a written report of the review.

1.87 The Committee received submissions and held a public hearing to gather evidence over the review period.

1.88 The Committee’s review was ongoing at the end of the review period.

COMMITTEE ACTIVITIES DURING THE REVIEW PERIOD 19

Statutory review of the Security of Critical Infrastructure Act 2018

1.89 Pursuant to section 60A of the Security of Critical Infrastructure Act 2018 (the SOCI Act) the Committee is required to commence a review into the operation, effectiveness and implications of the SOCI Act before the end of three years after the SOCI Act received Royal Assent (July 2021). Specifically section 60A provides:

4 The Parliamentary Joint Committee on Intelligence and Security must:

a. Review the operation, effectiveness and implications of this Act; and

b. Without limitation paragraph (a), consider whether it would be appropriate to have a unified scheme that covers all infrastructure assets (including telecommunication assets) that are critical to:

i. The social or economic stability of Australia or its people; or

ii. The defence of Australia; or

iii. National security; and

c. Review the circumstances in which any declarations have been made under Part 6 of this Act (declarations of assets by the Minister); and

d. Report the Committee’s comments and recommendations to each House of the Parliament

1.90 The Committee received submissions and held public hearings to gather evidence for the review of the SOCI Act over the review period.

1.91 The Committee’s review of the SOCI Act was ongoing at the end of the review period.

General policy inquiries

1.92 Pursuant to section 29(1)(b) the Committee may review any matter in relation to the AIC referred to the Committee by the responsible Minister; the Attorney-General; or a resolution of either House of the Parliament. This referral power allows the appropriate person to refer a matter to the Committee.

1.93 Historically the workload of the Committee was almost exclusively the review of legislation in various forms or the administration and expenditure inquiries into the AIC. These general, or policy reviews represent a shifting role for the Committee and an increased part of the Committee workload.

20 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

During the review period the Committee completed one general policy inquiry:

 Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press

1.94 At the conclusion of the review period the Committee had commenced, or was completing two general policy inquiries:

 Inquiry into national security risks affecting the Australian higher education and research sector  Inquiry into extremist movements and radicalism in Australia

Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press

1.95 On 4 July 2019 the Attorney-General referred an inquiry to the Committee relating to the impact of the exercise of law enforcement and intelligence powers on the freedom of the press for inquiry and report, providing terms of reference to the Committee.

1.96 The Committee received submissions and held public hearings to gather evidence for this inquiry over the review period.

1.97 The Committee’s report for this inquiry was completed in the review period and tabled in August 2020. The Committee notes the Senate Standing Committees on Environment and Communications References Committee tabled a report on 19 May 2021 on press freedoms.

1.98 The Committee made a number of recommendations to address concerns raised by submitters to the inquiry, including recommendations to:

 bolster the existing public interest advocate regime  ensure that warrants sought by an enforcement agency relating to journalists are issued by a judge of a superior court of record in the jurisdiction for Crimes Act 1914 warrants

 allow for improved consultation between media organisations and intelligence agencies  improvements to the Public Interest Disclosure scheme  include additional reporting and transparency obligations

1.99 On 15 December 2020 the Government released its response to the inquiry.

COMMITTEE ACTIVITIES DURING THE REVIEW PERIOD 21

Inquiry into national security risks affecting the Australian higher education and research sector

1.100 On 1 October 2020 the Minister for Home Affairs referred an inquiry to the Committee relating to national security risks affecting the Australian higher education and research sector, providing terms of reference to the Committee.

1.101 The Committee received submissions and held public hearings to gather evidence for this inquiry over the review period.

1.102 The Committee’s inquiry was ongoing at the end of the review period.

Inquiry into extremist movements and radicalism in Australia

1.103 On 9 December 2020 the Minister for Home Affairs referred an inquiry to the Committee relating to extremist movements and radicalism in Australia, providing terms of reference to the Committee.

1.104 The Committee received submissions and held public hearings to gather evidence for this inquiry over the review period.

1.105 The Committee’s inquiry was ongoing at the end of the review period.

Other activities of the Committee

1.106 In addition to numerous inquiries the Committee also received several notifications under existing statutory frameworks, conducted private briefings on a range of topics and conducted site visits.

Notifications

1.107 The IS, TIA and Citizenship Acts each require the Committee be notified of certain matters or provided with certain reports. Appendix D outlines the notifications and reports received by the Committee during the reporting period.

1.108 There are a number of matters that the Committee is required to monitor but there is no corresponding requirement for the Committee to be notified of these matters or powers having been used.

Temporary Exclusion Orders

1.109 Subsection 29 (cd) of the IS Act requires that the Committee monitor and review the exercise of powers under the Counter Terrorism (Temporary Exclusion Orders) Act 2019 by the Minister administering that Act.

22 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

1.110 The AFP Minister is required under section 31 of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 to provide a report in respect of the operation of that Act. On 30 November 2020, the Control Orders, Preventative Detention Orders, Continuing Detention Orders, Temporary Exclusion Orders, and Powers in Relation to Terrorist Acts and Terrorism Offences Annual Report 2019-2020 was tabled and was the first such annual report listing information regarding temporary exclusion orders.

1.111 During the year ending on 30 June 2020 the figures were as follows:

Table 1.1 Temporary Exclusion Orders 2019-20

Item Number

Temporary exclusion orders made 5

Temporary exclusion orders revoked 1

Temporary exclusion orders taken to never have been made because of the operation of para. 14(7)(a)

0

Number of times a temporary exclusion order came into force immediately after it was made

1

Temporary exclusion orders made in relation to persons aged 14 to 17 0

Return permits issued 1

Conditions imposed on return permits 0

Return permits varied or revoked 0

Persons subject to a return permit who entered Australia 1

Persons charged with an offence against this Act 0

Source: https://www.nationalsecurity.gov.au/Media-and-publications/Annual-Reports/Documents/annual-report-2019-20.pdf

COMMITTEE ACTIVITIES DURING THE REVIEW PERIOD 23

Private briefings

1.112 The Committee received a range of private briefings from relevant Commonwealth departments and agencies over the reporting period. These briefings related both to specific inquiries and broader Committee oversight. The Committee thanks all who participated in these briefings which were informative and beneficial to the progression of Committee matters.

Site visits

1.113 The Committee conducted site visits around Australia as part of its review, oversight and briefing activities.

New functions

1.114 One new statutory review function was added to section 29 of the ISA during the review period. The Migration Amendment (Clarifying International Obligations for Removal) Act 2021 amended Section 29 of IS Act to insert the following sub-paragraph:

(cf) to commence, by the second anniversary of the commencement of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021, a review of the operation, effectiveness and implications of the amendments made by Schedule 1 to that Act

1.115 The Committee understands that this amendment was made following negotiations between the government and opposition parties however the Committee was not formally advised of this amendment. In future the Committee recommends that any amendments to the IS Act affecting the role or future conduct of the Committee, not contained in a Bill reviewed by the Committee or in a government response to a Committee report be separately notified to the Committee.

Recommendation 3

1.116 The Committee recommends that the appropriate Minister notify the Committee of any amendments to the Intelligence Services Act 2001 affecting the role or functions of the Committee, not contained in a Bill reviewed by the Committee or in a government response to a Committee report.

24 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

The future of the Committee

1.117 As this report has shown the workload of the Committee has increased substantially over several years. Many reviews were completed in the review period, but many reviews are yet to be completed due to the significant workload of the Committee. The Committee is being referred more Bills across an increasingly broad number of areas, general policy inquiries are being referred by Ministers which had not occurred in previous parliaments, and statutory review requirements are increasing under the ISA and other national security Acts.

1.118 During 2020-2021 several reviews of Bills and statutory reviews overlapped. For example in 2020-2021 the Committee concurrently conducted a Review of Part 14 of the Telecommunications Act 1997 - Telecommunications Sector Security Reforms, a review of the Security Legislation Amendment (Critical Infrastructure) Bill 2020 and a statutory review of the Security of Critical Infrastructure Act 2018. This was also the case with the review of AFP Powers and the review of the Counter Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020 which had substantial overlap due to their specific focus. These overlapping inquiries have presented complexities to considering the effectiveness and operation of current statutes while considering proposed legislation which could amend those statutes.

1.119 The Committee has endeavoured to be consistent in its recommendations across the inquiries it has undertaken. Some of the key issues considered by the Committee over the review period have included intelligence oversight, press freedoms and intelligence functions.

1.120 The Committee thanks all those who submitted to the various inquiries conducted over the review period and commends the quality of many of those submissions. The Committee continues to endeavour to hold public hearings where possible on these issues and thanks those who gave evidence before the Committee in public hearings.

1.121 At its formation the Committee reviewed ASIO though this expanded to include the AIC agencies soon after. In this review period the Committee reviewed matters involving or in relation to the AFP, Australian Criminal Intelligence Commission (ACIC), the Commonwealth Ombudsman and other agencies. The Committee additionally received evidence from a range of Government departments including the Department of Home Affairs, Attorney-General’s Department, Department of Defence, Department of

COMMITTEE ACTIVITIES DURING THE REVIEW PERIOD 25

Education, Skills and Employment and Department of Foreign Affairs and Trade.

Section 29 - Functions of the Committee

1.122 The Committee notes the provisions of the IS Act limit and guide the Committee’s ability to conduct inquiries and are both exhaustive and exclusive. Section 29(1)(b) of the IS Act allows the Committee to review any matter in relation to ASIO, ASIS, AGO, DIO ASD or ONI referred to the Committee by the responsible Minister, the Attorney-General, or a resolution of either House of the Parliament. It does not currently provide for the Committee to review any matter referred by the relevant persons, there must be a nexus to the agencies outlined in the IS Act. If it is the wish of the Government to refer matters to the PJCIS that may be beyond the scope of section 29(1) then the Committee considers a review of this section is required and amendments made to provide the statutory basis to conduct general or policy inquiries.

1.123 The Committee notes section 29 of the IS Act has slowly expanded over time with the inclusion of several statutory review requirements. This is in addition to other statutory review requirements which are found in primary legislation elsewhere, for example the Telecommunications Act. The Committee recommends consolidation or normalisation of section 29 through a specific review of this section by the PJCIS.

1.124 The Committee notes the 2017 Independent Intelligence Review (the IIR) and the 2019 Comprehensive Review of the Legal Framework of the National Intelligence Community (the Richardson Review) are now complete. The recommendations from these reports, which sometimes differed between the two reports, are now being considered by Government for implementation. One of the primary issues considered under these reports was intelligence oversight and the role of this Committee which are issues the Committee considers unresolved.

1.125 The Committee notes section 4 of the Office of National Intelligence Act 2018 (the ONI Act) defines the National Intelligence Community (NIC) to mean:

 ONI

 Each intelligence agency  Each agency with an intelligence role or function

1.126 The Committee believes consideration should be given to its oversight functions being expanded to the agencies of the NIC rather than just the traditional and now-defunct AIC. This may include oversight of several new

26 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

agencies such as the ACIC and the AFP to the extent they are executing an intelligence function. Legislation surrounding these other agencies has evolved over time, but the legislation governing the PJCIS has not kept up with these legislative changes.

1.127 The Committee is currently reviewing the functions of the Committee and other related matters in its inquiry into the Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2021 and will make further comment and recommendations when presenting its report later this year.

Schedule 1 of the Intelligence Services Act 2001 - Committee business

1.128 Several submissions to inquiries over the past several years have referenced the increasingly out-of-date provisions in the IS Act that relate to the Committee, notably found in Schedule 1. Submissions to Committee inquiries have recommended Schedule 1 of the IS Act be reviewed by the Committee for modernisation and review as has been the case for other pieces of national security legislation. Whilst the PJCIS has reviewed a substantial amount of legislation, the IS Act itself has not been reviewed which has led to inconsistencies developing over time. For example section 29(3)(g) of the IS Act still refers to the Department of Immigration and Border Protection.

1.129 Reform and modernisation of Schedule 1 would assist the Committee and secretariat to respond to the increasing number of inquiries being levied upon it. Through a review of Schedule 1 of the IS Act the Committee would seek to consider modernisation reforms to the PJCIS that would be provided by the IS Act including but not limited to:

 Quorum requirements and meeting procedures  Information storage and provision including suitable classified meeting venues  Secretariat staffing and clearance requirements  Resourcing

1.130 In addition to a review of section 29 of the ISA as outlined above, the Committee recommends the Government refer Schedule 1 of the IS Act to the Committee for review at the commencement of the 47th Parliament.

COMMITTEE ACTIVITIES DURING THE REVIEW PERIOD 27

Recommendation 4

1.131 The Committee recommends the Australian Government refer Section 29 and Schedule 1 of the Intelligence Services Act 2001 to the Parliamentary Joint Committee on Intelligence and Security for review and report at the commencement of the 47th Parliament.

1.132 The Committee is grateful for the access it is granted to existing classified meeting spaces within Parliament House but recognises that use of these facilities cannot always be guaranteed. Priority access to additional classified meeting spaces within Parliament House would facilitate the Committee concluding its work in a timely and secure fashion.

Recommendation 5

1.133 The Committee recommends the Australian Government investigate, in consultation with the Presiding Officers of the Parliament, the Director-General of Security and the Director-General National Intelligence, the feasibility of additional classified meeting spaces within Parliament House for use by parliamentary committees, including the Parliamentary Joint Committee on Intelligence and Security.

Senator James Paterson Chair 2 September 2021

29

A. Functions of the PJCIS

The following is an extract from section 29 of the Intelligence Services Act 2001 (Functions of the Committee)

(1) The functions of the Committee are:

(a) to review the administration and expenditure of ASIO, ASIS, AGO, DIO, ASD and ONI, including the annual financial statements of ASIO, ASIS, AGO, DIO, ASD and ONI; and

(b) to review any matter in relation to ASIO, ASIS, AGO, DIO, ASD or ONI referred to the Committee by:

(i) the responsible Minister; or

(ia) the Attorney-General; or

(ii) a resolution of either House of the Parliament; and

(baa) to monitor and to review the performance by the AFP of its functions under Part 5.3 of the Criminal Code; and

(bab) to report to both Houses of the Parliament, with such comments as it thinks fit, upon any matter appertaining to the AFP or connected with the performance of its functions under Part 5.3 of the Criminal Code to which, in the opinion of the Committee, the attention of the Parliament should be directed; and

30 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

(bac) to inquire into any question in connection with its functions under paragraph (baa) or (bab) that is referred to it by either House of the Parliament, and to report to that House upon that question; and

(bb) to review, by 7 January 2021, the operation, effectiveness and implications of the following:

(i) Division 3A of Part IAA of the Crimes Act 1914 (which provides for police powers in relation to terrorism) and any other provision of the Crimes Act 1914 as it relates to that Division;

(ii) Divisions 104 and 105 of the Criminal Code (which provide for control orders and preventative detention orders in relation to terrorism) and any other provision of the Criminal Code Act 1995 as it relates to those Divisions;

(iii) sections 119.2 and 119.3 of the Criminal Code (which provide for declared areas in relation to foreign incursion and recruitment); and

(bba) to monitor and review:

(i) the performance by the AFP of its functions under Division 3A of Part IAA of the Crimes Act 1914; and

(ii) the basis of the Minister’s declarations of prescribed security zones under section 3UJ of that Act; and

(bc) to conduct the review under section 187N of the Telecommunications (Interception and Access) Act 1979; and

(bca) to review, by 30 September 2020, the operation of the amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 and to give a written report of the review to the Minister administering the Telecommunications (Interception and Access) Act 1979; and

(bd) subject to subsection (5), to review any matter that:

(i) relates to the retained data activities of ASIO; and

(ii) is included, under paragraph 94(2A)(c), (d), (e), (f), (g), (h), (i) or (j) of the Australian Security Intelligence Organisation Act 1979, in a report referred to in subsection 94(1) of that Act; and

(be) subject to subsection (5), to review any matter that:

(i) relates to the retained data activities of the AFP in relation to offences against Part 5.3 of the Criminal Code; and

FUNCTIONS OF THE PJCIS 31

(ii) is set out, under paragraph 186(1)(e), (f), (g), (h), (i), (j) or (k) of the Telecommunications (Interception and Access) Act 1979, in a report under subsection 186(1) of that Act; and

(ca) to commence, by the third of the day the Australian Citizenship Amendment (Citizenship Cessation) Act 2020 commenced, a review of the operation, effectiveness and implications of Subdivision C of Division 3 of Part 2 of the Australian Citizenship Act 2007 (citizenship cessation determinations) and any other provision of that Act as far as it relates to that Subdivision; and

(cb) without limiting paragraphs (baa) to (bac), to review, before the end of 6 years after the day the Criminal Code Amendment (High Risk Terrorist Offenders) Act 2016 received the Royal Assent, the operation, effectiveness and implications of Division 105A of the Criminal Code and any other provision of that Code as far as it relates to that Division;

(cc) to review, by the end of the period of 3 years beginning on the day the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 commenced, the operation, effectiveness and implications of that Act; and

(cd) to monitor and review the exercise of powers under the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 by the Minister administering that Act; and

(c) to report the Committee’s comments and recommendations to each House of the Parliament, to the responsible Minister and to the Attorney-General.

(2) The Committee may, by resolution, request the responsible Minister or the Attorney-General to refer a matter in relation to the activities of ASIO, ASIS, AGO, DIO, ASD or ONI (as the case may be) to the Committee, and the Minister or the Attorney-General may, under paragraph (1)(b), refer that matter to the Committee for review.

(3) The functions of the Committee do not include:

(aa) reviewing anything done by ONI in its leadership of the national intelligence community, to the extent that it involves prioritising national intelligence priorities and requirements, and allocating resources accordingly, in relation to:

(i) an intelligence agency (as defined by subsection 4(1) of the Office of National Intelligence Act 2018); or

(ii) an agency with an intelligence role or function (as defined by subsection 4(1) of that Act); or

(ab) reviewing anything done by ONI in its leadership of the national intelligence community, to the extent that it relates to:

32 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

(i) an intelligence agency (as defined by subsection 4(1) of the Office of National Intelligence Act 2018) and a matter that would otherwise be covered by any of the following paragraphs of this subsection; or

(ii) an agency with an intelligence role or function (as defined by subsection 4(1) of that Act) and a matter that would otherwise be covered by any of the following paragraphs of this subsection if those paragraphs applied to the agency; or

(a) reviewing the intelligence gathering and assessment priorities of ASIO, ASIS, AGO, DIO, ASD or ONI; or

(b) reviewing the sources of information, other operational assistance or operational methods available to ASIO, ASIS, AGO, DIO, ASD or ONI; or

(c) reviewing particular operations that have been, are being or are proposed to be undertaken by ASIO, ASIS, AGO, DIO or ASD; or

(d) 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

(e) reviewing an aspect of the activities of ASIO, ASIS, AGO, DIO, ASD or ONI that does not affect an Australian person; or

(f) reviewing the rules made under section 15 of this Act; or

(fa) reviewing the privacy rules made under section 53 of the Office of National Intelligence Act 2018; or

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

(h) reviewing the content of, or conclusions reached in, assessments or reports made by DIO or ONI, or reviewing sources of information on which such assessments or reports are based; or

(i) reviewing anything done by ONI in carrying out the evaluation functions mentioned in section 9 of the Office of National Intelligence Act 2018; or

(j) reviewing sensitive operational information or operational methods available to the AFP; or

(k) reviewing particular operations or investigations that have been, are being or are proposed to be undertaken by the AFP.

Note: For Australian person see section 3.

FUNCTIONS OF THE PJCIS 33

(4) Subject to subsection (5), paragraphs (3)(c) and (k) do not apply to things done in the performance of the Committee’s functions under paragraphs (1)(bd) and (be).

(5) The Committee’s functions under paragraphs (1)(bd) and (be):

(a) are to be performed for the sole purpose of assessing, and making recommendations on, the overall operation and effectiveness of Part 5-1A of the Telecommunications (Interception and Access) Act 1979; and

(b) do not permit reviewing the retained data activities of service providers; and

(c) may not be performed for any purpose other than that set out in paragraph (a).

Note: The performance of the Committee’s functions under paragraphs ( 1)(bd) and (be) are also subject to the requirements of Schedule 1.

35

B. Reports tabled by the Committee during the review period

Table B.1 Reports tabled by the Committee during the review period

General policy inquiries

Title of report Tabling date Government response

Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press

26 August 2020 15 December 2020

Annual reports

Title of report Tabling date Government response

Annual Report of Committee Activities 2019-2020 7 October 2020 Not required

Review of terrorist listings

Title of report Tabling date Government response

Review of the re-listing of Islamic State East Asia as a terrorist organisation under the Criminal Code

7 October 2020 Not required

36 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

Review of the listing and re-listing of three organisations as terrorist organisations under the Criminal Code

7 October 2020 Not required

Review of the listing and re-listing of two organisations as terrorist organisations under the Criminal Code

7 December 2020 Not required

Review of the re-listing of Jaish-e-Mohammad as a terrorist organisation under the Criminal Code

23 February 2021 Not required

Review of the listing of Sonnenkrieg Division as a terrorist organisation under the Criminal Code

17 June 2021 Not required

Review of the relisting of Hizballah’s External Security Organisation as a terrorist organisation udner the Criminal Code

22 June 2021 Not yet received

Statutory reviews

Title of report Tabling date Government response

Review of the mandatory data retention regime 28 October 2020 Not yet received

Review of ‘Declared Areas’ provisions sections 119.2 and 119.3 of the Criminal Code

24 February 2021 4 August 2021

REPORTS TABLED BY THE COMMITTEE DURING THE REVIEW PERIOD 37

Bill inquires

Title of report Tabling date Government response

Advisory report on the Australian Security Intelligence Organisation Amendment Bill 2020

3 December 2020 Not required

Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019

1 September 2020 Not required

Advisory report on the Telecommunications Legislation Amendment (International Production Orders) Bill 2020

12 May 2021 Not required

Source: PJCIS

39

C. Australian Federal Police activities

Terrorism Offences (Division 101)

The Australian Federal Police (AFP) charged five individuals with terrorism offences under Division 101 of the Criminal Code between 1 June 2020 and 31 May 2021. One person was charged with two offences under Division 101. Three offences were charged under section 101.1 and three offences were charged under 101.6. All five individuals charged with these terrorism offences are currently subject to ongoing prosecutions.

Two prosecutions were finalised between 1 June 2020 and 31 May 2021 for terrorism offences under Division 101 of the Criminal Code.

 One individual was sentenced in November 2020 for offences under sections 101.5 and 101.6 of the Criminal Code and received a total sentence of 12 years imprisonment with a non-parole period of 9 years.

 One individual was sentenced in November 2020 for an offence under section 101.6 of the Criminal Code and received a sentence of 16 years imprisonment with a non-parole period of 12 years.

Terrorism Offences (Division 102)

Between 1 June 2020 and 31 May 2021 the AFP charged two individuals with terrorism offences under Division 102 of the Criminal Code.

 One individual was charged with section 102.3 of the Criminal Code  One individual was charged with section 102.7 of the Criminal Code

40 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

The AFP supported the commencement of two prosecutions for an offence related to terrorist organisations under Division 102 of the Criminal Code between 1 June 2020 and 31 May 2021. These prosecutions remain ongoing.

Between 1 June 2020 and 31 May 2021 two prosecutions relating to offences in Division 102 of the Criminal Code were finalised.

 One individual was sentenced on 18 December 2020 and released on 1 January 2021 due to time previously served counting towards the duration of the sentence.

 One individual, who had previously been released upon successful appeal to the South Australian Court of Criminal Appeal in October 2019, had their appeal overturned and conviction reinstated by the High Court of Australia in October 2020. The individual was returned to prison to serve the remainder of their sentence and released at the expiry of their head sentence on 6 May 2021.

Division 102 of the Criminal Code Number of people

charged with this offence

102.2 Knowingly and intentionally direct the activities of a terrorist organisation One

102.3 Member of a terrorist organisation None

102.4 Recruit a person to join a terrorist organisation None

102.7 Providing support to a terrorist organisation One

102.8 Associate with a person who is a member of a terrorist organisation None

Financing Terrorism (Division 103)

The AFP did not charge anyone, commence or finalise any prosecutions for offences relating to financing terrorism and terrorists under Division 103 of the Criminal Code in the review period.

AUSTRALIAN FEDERAL POLICE ACTIVITIES 41

Control Orders (Division 104)

Between 1 June 2020 and 31 May 2021 the AFP applied for six control orders and seven control orders were issued as one control order was applied for prior to the reporting period.

In the reporting period one interim control order was modified by the issuing court.

In the reporting period no urgent interim control orders were requested under section 104.6 or 104.8.

In the reporting period seven interim control orders were confirmed, four without variation and three with variation. No control orders were revoked without being confirmed.

In the reporting period one confirmed control order was varied under section 104.20.

In the reporting period no control orders were varied under section 104.24.

In the reporting period seven people were charged by the AFP for the offence of contravening a control order under section 104.27 of the Criminal Code. There were seven prosecutions commenced by the AFP for contravening a control order, five of which remained ongoing and two were discontinued by the CDPP. Two prosecutions were finalised as a result of their discontinuance.

The following table outlines the control orders applied for and issued by the AFP:

Action Number of Control

Orders

Control orders applied for and issued Seven (one applied for prior to reporting period)

104.4(3) Control orders modified by the issuing court before being issued One

104.6 Requesting an urgent interim control order by electronic means None

104.8 Requesting an urgent interim control order in person None

Control orders confirmed without variation Four

Control orders confirmed with variation Three

42 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

Control orders revoked without being confirmed None

104.20 Removal of one or more obligations, prohibitions or restrictions by court One

104.24 Addition of obligations, prohibitions or restrictions by court None

104.27 Offence for contravening a control order Seven

Prosecutions finalised for the offence of contravening an order Two

Preventative Detention Orders (Division 105)

The AFP did not apply for and was not issued with any preventative detention orders between 1 June 2020 and 31 May 2021 (the review period). No preventative detention orders were revoked. No persons were taken into custody under a preventative detention order and no persons were charged by the AFP or with the AFP’s support for disclosure offences for preventative detention orders. No prosecutions were finalised.

Continuing Detention Orders (Division 105A)

The AFP said the Department of Home Affairs was the agency responsible for applying for Continuing Detention Orders and as such the AFP did not apply for or were issued any continuing detention orders in the review period. The AFP said they were aware the Minister for Home Affairs had sought one continuing detention order during the reporting period which was granted by the Victorian Supreme Court.

The AFP did not apply for or were issued any interim detention orders and no person was taken into custody under a CDO by the AFP in the review period. The AFP said this was again because the AFP was not the applicant. The AFP said they were aware the Minister for Home Affairs sought one interim detention order during the reporting period which was issued by the Victorian Supreme Court.

The AFP said they were aware of one person being placed on a continuing detention order during the reporting period.

AUSTRALIAN FEDERAL POLICE ACTIVITIES 43

Stop, Search and Seizure Powers (Division 3A, Part 1AA, Crimes Act 1914)

The AFP did not stop, detain, or search any persons, property or vehicles for terrorism related items under section 3UD between 1 June 2020 and 31 May 2021 (the review period). The AFP did not seize any terrorism related items under section 3UE.

The AFP did not seek emergency entry to premises with a warrant under section 3UEA in the review period. The AFP did not secure any premises pending the issue of a warrant in the review period.

No zones were declared by the Minister to be ‘prescribed security zones’ under section 3UJ in the review period.

45

D. Notifications and other reports provided to the Committee in the review period

Intelligence Services Act 2001

Item Number of notifications

and reports

Section 6A

If the responsible Minister gives direction under paragraph 6(1)(e) of the IS Act the Minister must as soon as practicable advise the Committee of the nature of the activity or activities to be undertaken

1

Section 9B(8A)

If the Inspector-General of Intelligence and Security produces a report on the legality or compliance with provisions relating to emergency authorisations made by an agency the Committee must be provided with a copy of the conclusions in the report

0

46 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

Section 9C(6)(c)

If the Inspector-General of Intelligence and Security produces a report on the legality or compliance with provisions relating to an emergency authorisation by an agency where agreement is not provided by the Attorney-General, Director-General of ASIO, or both, the Committee must be provided with a copy of the conclusions in the report

0

Section 15

If rules governing the manner in which ASIS, ASD or AGO communicate and retain intelligence information concerning Australians change the Inspector-General of Intelligence and Security must brief the Committee on their content and effect

0

Claude 1(7A) to Schedule 2

If ASIS guidelines for the use of weapons and self-defence techniques change the Inspector-General of Intelligence and Security must brief the Committee on their content and effect.

Classified information

Not disclosed in accordance with Schedule 1, Clause 7 of the Intelligence Services Act 2001.

NOTIFICATIONS AND OTHER REPORTS PROVIDED TO THE COMMITTEE IN THE REVIEW PERIOD 47

Office of National Intelligence Act 2018

Item Number of notifications

and reports

Section 53

If rules governing the manner in which ONI collect, handle and retain intelligence information which is identifiable change the Inspector-General of Intelligence and Security must brief the Committee on their content and effect

0

Telecommunications (Interception and Access) Act 1979

Item Number of notifications

and reports

Section 187B(7)

The Minister must give written notice to the Committee of any declaration made to require a service provider to retain data relating to a relevant service.

Classified information

Not disclosed in accordance with Schedule 1, Clause 7 of the Intelligence Services Act 2001.

Section 185D(1)(b) The Minister must notify the Committee of any journalist information warrants issued by ASIO.

Classified information

Not disclosed in accordance with Schedule 1, Clause 7 of the Intelligence Services Act 2001.

Section 185D(5)(a)(ii)

The Minister must notify the Committee of any journalist information warrants issued by a law enforcement agency

0

48 ANNUAL REPORT OF COMMITTEE ACTIVITIES 2020-2021

Section 185D(3)

For any report prepared by the Inspector-General of Intelligence and Security relating to: a journalist information warrant issued to ASIO or an authorisation made under the authority of the warrant, the Minister must provide a copy of the report to the Committee and the Committee may request a briefing from the Inspector-General of Intelligence and Security

Classified information

Not disclosed in accordance with Schedule 1, Clause 7 of the Intelligence Services Act 2001.

Section 185D(7)

For any report prepared by the Commonwealth Ombudsman relating to: a journalist information warrant issued to the AFP or an authorisation made under the authority of the warrant, the Minister must provide a copy of the report to the Committee and the Committee may request a briefing from the Commonwealth Ombudsman.

0

Australian Citizenship Act 2007

Item Number of notifications

and reports

Section 51C(1)(a) and (b)

For any attempt by the Minister to give notice under paragraph 33AA(10)(a), 35(4)(a), 35A(5)(a) or 36F(1)(a) that a person’s Australian citizenship has ceased, the Minister must notify the Committee and the Committee may request a briefing from the Minister

2

Section 51C(1)(c)

For any determination by the Minister under paragraph 33AA(12), 35(7) or 35A(7) that a notice should not be given to a person as it could prejudice the security, defence or international relations of Australia, the Minister must notify the Committee and the Committee may request a briefing from the Minister

0

Source: PJCIS