1. Committee Activities During the Review Period
   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 in section 29 of the IS Act which is reproduced in Appendix A.[1]
   2. During the reporting period the Committee comprised eleven members, five Senators and six members of the House of Representatives, as required by the IS Act. A majority of the Committee’s members must be Government members.
   3. The Committee is required by section 31 of the IS Act to provide the Parliament with a report on its activities over each financial year. This report fulfils that requirement for the period from 1 July 2022 to 30 June 2023.

The year in review

1.4At the commencement of the 2022-23 reporting year, the new Parliament was yet to convene following the May 2022 Federal election. The 47th Parliament commenced on 26 July 2022, and members were appointed to the PJCIS on 5 and 6 September (in the House of Representatives and Senate respectively).[2]

1.5The new Committee commenced work on 7 September 2022, at which time Mr Peter Khalil MP was elected as Committee Chair, and Mr Andrew Wallace MP was elected as Deputy Chair. Induction briefings for the new Committee were held with intelligence agencies and others during September 2022, and further briefings and site visits were arranged during the Committee’s first months of operation, to assist Committee members build their familiarity with Australia’s national intelligence community, national security matters, and the Committee’s role.

1.6Upon its formation the new Committee immediately (re-)commenced work on four statutory and oversight reviews which had carried over from the previous Parliament. The Committee’s workload then grew steadily in the ensuing months, with new bills referred for inquiry and additional statutory and oversight matters arising for review. Each of the inquiries and reviews conducted by the Committee during the reporting period is discussed below.

1.7On 22 June 2023, the Hon Karen Andrews MP resigned from the Committee. There was therefore one vacancy on the Committee at the end of the reporting period.

1.8During the period, two Bills which proposed to amend provisions of the IS Act relating to the Committee were introduced into Parliament.[3] Neither had passed into law by 30 June 2023.

Overview of activities

1.9Between 7 September 2022 and 30 June 2023 the Committee held 50 meetings and briefings, including seven public hearings. This supported the Committee’s work across 14 inquiries and reviews. The Committee presented nine reports to Parliament, completing eight reviews as well as its annual report for 2021-22. At the conclusion of the reporting period six reviews remained in progress.

1.10Notable reviews and inquiries completed during the period included:

• Advisory report on Item 250 of the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022
• Review of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019
• Advisory report on the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023
• Advisory report on the Australian Security Intelligence Organisation Amendment Bill 2023.
  11. A list of all the reports presented by the Committee during the review period, and government responses received, is at Appendix B.
  12. Key reviews that remained in progress at the end of the reporting period included two Reviews of Administration and Expenditure, and the Review of the Foreign Influence Transparency Scheme Act 2018.

Oversight responsibilities

Reviews of administration and expenditure

1.13Paragraph 29(1)(a) of the IS Act requires the Committee to review the administration and expenditure of the six intelligence agencies that comprise the (former) Australian Intelligence Community (AIC):

• Australian Geospatial-Intelligence Organisation (AGO)
• Australian Security Intelligence Organisation (ASIO)
• Australian Secret Intelligence Service (ASIS)
• Australian Signals Directorate (ASD)
• Defence Intelligence Organisation (DIO)
• Office of National Intelligence (ONI).
  14. In exercising this function the Committee conducts annual reviews of the administration and expenditure of these agencies, largely through the receipt and examination of classified evidence.
  15. The Committee examines the financial performance and management of each agency and the budgetary framework in which each agency operates. The Committee may also consider matters that impact on the administration of agencies.

Administration and Expenditure review No. 20 (2020-2021)

1.16The Committee had commenced work on its 20th review of administration and expenditure in November 2021. Focus areas identified by the Committee for this review included:

• the ongoing impact of COVID-19 on agencies' administration and expenditure
• business continuity plans in the face of COVID-19 and other operational risks
• internal staff complaint investigation and resolution mechanisms, and review for cause processes
• initiatives in development or underway regarding artificial intelligence and machine learning
• shifting operational priorities.
  17. The Committee received 11 submissions: from six intelligence agencies, the Inspector-General of Intelligence and Security (IGIS), the Australian National Audit Office (ANAO), Civil Liberties Australia, and two submissions from individuals in a private capacity.
  18. The review lapsed with the dissolution of the 46th Parliament and was readopted once the new Committee was formed in the 47th Parliament. Classified hearings for the review were held on 14 and 15 November 2022. The Committee adopted its final report on the review in June 2023, and at the conclusion of the reporting period it was being prepared for presentation to Parliament.

Administration and Expenditure review No. 21 (2021-2022)

1.19The Committee launched its 21st review of administration and expenditure, for the financial year 2021-22, in November 2022. Particular focus areas agreed by the Committee for this review were:

• cyber resilience and cyber assurance processes
• financial management and efficiency, including opportunities for collaboration across the National Intelligence Community
• strategic workforce planning activities and initiatives, including long-term recruitment planning, attracting and retaining specialised skill sets, and initiatives directed at diversity and inclusion
• governance and compliance systems.
  20. The Committee received seven submissions: from five Australian intelligence agencies, the ANAO and the IGIS.
  21. The Committee held classified hearings for this review on 7 and 8 June 2023. At the end of the reporting period, review No. 21 was still underway.

Review of listings of terrorist organisations under the Criminal Code

1.22Under Division 102 of the Criminal Code Act 1995 (Criminal Code) 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 specified (‘listed’) terrorist organisation. Organisations are listed as terrorist organisations for a period of three years at a time, by regulations made by the Governor-General on the advice of the Minister responsible for the Australian Federal Police (AFP).[4]

1.23Pursuant to section 102.1A of the Criminal Code the Committee may review a regulation specifying an organisation as a terrorist organisation and report the Committee’s comments and recommendations to each House of the Parliament before the end of the applicable disallowance period of 15 sitting days.

1.24During the reporting period the Committee conducted the following reviews of regulations listing or relisting terrorist organisations under the Criminal Code.

Review of the listing and relisting of eight organisations as terrorist organisations under the Criminal Code

1.25Regulations listing Hamas, National Socialist Order, Hurras al-Din and Hay-at Tahrir al-Sham; and relisting Abu Sayyaf Group, al-Qa’ida, al-Qa’ida in the Lands of the Islamic Maghreb, Hay’at Tahrir al-Sham, Hurras al-Din, Jemaah Islamiyah and National Socialist Order were tabled in Parliament in March 2022.

1.26The Committee launched its review of these listings on 31 March 2022 and invited public submissions. In addition to the referral letters and information from the Minister for Home Affairs, accepted as submissions 1 and 2 to the review, eleven further submissions were received. These submissions, from community organisations, academics and members of the public, overwhelmingly focused on the listing of Hamas (in its entirety) as a terrorist organisation for the first time, replacing the previous listing of Hamas’ paramilitary wing, the Izz al-Din al-Qassam Brigades.

1.27The review was not complete when Parliament dissolved for the 2022 election, but following the formation of the Committee in September 2022, the review was resumed, and the Committee reported to Parliament on 26 September 2022.

1.28The Committee concluded that it was satisfied that each of the eight organisations met the definition of a ‘terrorist organisation’. The Committee made two recommendations related to the listing of Hamas:

• that the Australian Government engage proactively with the Palestinian-Australian community, and with Australian organisations that are providing or are likely to provide humanitarian aid or other assistance to people in Gaza; to disseminate guidance and promote an accurate understanding of the scope and limits of relevant offences under the Criminal Code; and
• that the Committee receive a briefing from relevant Government agencies on the impact of the listing of Hamas within 12 months of the report’s tabling, particularly in relation to humanitarian assistance and other activities in Gaza, and engagement with the Palestinian diaspora in Australia. The Committee noted that it also proposed to seek briefings from relevant non-government organisations in relation to the impact of this listing.
  29. While a government response had not been received by the end of the reporting period, the Committee held briefings in accordance with Recommendation 2 following the presentation of the report.

Review of the relisting of Islamic State Somalia as a terrorist organisation under the Criminal Code

1.30A regulation relisting Islamic State Somalia was tabled in Parliament on 23 September 2022. The Committee commenced a review of the regulation on 10 October 2022 and invited public submissions, but did not receive any.

1.31The Committee presented its report to Parliament by statement on 9 November 2022. The Committee concluded that it was satisfied Islamic State Somalia met the definition of ‘terrorist organisation’ and supported the organisation’s relisting.

Review of the 2022 relisting of four organisations as terrorist organisations under the Criminal Code

1.32Regulations relisting Islamic State Sinai Province, Islamic State in Libya, al-Qa'ida in the Indian Subcontinent and al-Qa'ida in the Arabian Peninsula were tabled in Parliament on 28 and 29 November 2022. The Committee commenced its review on 29 November and received three public submissions.

1.33The Committee presented its report to Parliament by statement on 14 February 2023. The Committee was satisfied that all four organisations met the definition of ‘terrorist organisation’ and supported the organisations’ relisting.

Review of ‘Declared Terrorist Organisations’ under the Citizenship Act

1.34The Committee exercises certain functions under the Australian Citizenship Act 2007 (Citizenship Act), including reviewing any declaration of a ‘declared terrorist organisation’ under section 36C of the Citizenship Act.

1.35No such declarations were made or reviewed by the Committee during the reporting period.

Review of ‘Declared Areas’ under the Criminal Code

1.36Section 119.2 of the Criminal Code provides that it is an offence for a person to enter, or remain, in a ‘declared area’. Section 119.3 provides that the Minister for Foreign Affairs may, by legislative instrument, 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’.

1.37The Criminal Code provides that the Committee may review such declarations by the Foreign Affairs Minister and report to the Parliament within the 15 sitting days’ disallowance period for a declaration, or at any time a declaration is in effect.

1.38No such declarations were made during the reporting period, and as of 30 June 2023 there were no declared areas under the Criminal Code.

1.39In a report presented in February 2021 following a review of the ‘declared areas provisions’ of the Criminal Code, the Committee had recommended that it receive a briefing from relevant government agencies on the use, proportionality and effectiveness of the provisions, within 18 months of the report’s tabling. To fulfil this requirement the Committee sought a written briefing from the Attorney-General on the declared areas provisions, in September 2022. This was received in March 2023, and further information was subsequently provided in response to questions in writing from the Committee.

1.40Further, paragraph 29(1)(bbaa) of the IS Act provides that the Committee may resolve to undertake a further review of the operation, effectiveness and proportionality of the declared areas provisions, by 7 January 2024. The Committee agreed, following the above correspondence, not to commence such a review during the reporting year.

Temporary Exclusion Orders

1.41Subsection 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 (TEO Act) by the Minister administering that Act.

1.42The AFP Minister is required under section 31 of the TEO Act to provide a report in respect of the operation of that Act. The Report to Parliament for tabling, under section 31 of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 shows that during the year ending on 30 June 2023 the figures there was no TEO activity. That is:

• no temporary exclusion orders made, either for adults or for persons 14-17 years of age
• no temporary exclusion orders revoked
• no temporary exclusion orders taken to never have been made because of the operation of paragraph 14(7)(a) of the Act
• no temporary exclusion orders that came into force immediately after being made
• no return permits issued, varied or revoked
• nobody subject to a return permit who entered Australia
• nobody charged with an offence against the Act.[5]

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

1.43Pursuant to paragraph 29(1)(baa) of the IS Act it is a function of the Committee to monitor and review the performance by the AFP of its functions under Part 5.3 of the Criminal Code and Part IAA of the Crimes Act 1914 (Crimes Act).

1.44Part 5.3 of the Criminal Code relates to Commonwealth terrorism offences and the control order, preventative detention order, and continuing detention order (CDO) regimes. Division 3A of Part IAA of the Crimes Act provides for stop, search and seizure powers made available to the AFP in relation to terrorism offences.

1.45The AFP provided details to the Committee on this topic covering the reporting period, which are outlined in Appendix C of this report.

Review of retained data activities of the AFP and ASIO

1.46Part 5-1A of the Telecommunications (Interception and Access) Act 1979 (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, and the TIA Act establishes a warrant system for specified agencies to seek access to this data. These are known as ‘retained data’ provisions and activities.

1.47Pursuant to paragraph 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 paragraph 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 subsections 29(1)(4) and 29(1)(5) of the IS Act.

1.48During the reporting period ASIO provided the Committee with a copy of Appendix M of its classified annual report for 2022-23 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.

1.49The Committee receives an annual briefing from the AFP and the Commonwealth Ombudsman to identify any issues relating to the AFP’s retained data activities. No concerns were identified regarding systemic or significant non-compliance in the 2022-23 reporting period.

Notifications

1.50In addition to the above, several other Acts contain provisions requiring that the Committee be notified, or provided with a report, when certain actions are taken or certain events occur: for example, in relation to telecommunications, citizenship and critical infrastructure. Such notifications enable the Committee to monitor sensitive national security activities and decisions, and when it deems necessary, seek further information or briefing from relevant agencies to satisfy itself about the decision made or action taken.

1.51Appendix D sets out such notifications and reports received by the Committee during the reporting period.

Bill inquiries

1.52The Committee completed reviews of four Bills during the reporting period:

• Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022
• Item 250 of the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022
• National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023
• Australian Security Intelligence Organisation Amendment Bill 2023.
  53. At the conclusion of the reporting period, two further Bill inquiries had been referred to the Committee:
• Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023
• Intelligence Services Legislation Amendment Bill 2023.

Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022

1.54On 7 February 2023 the Attorney-General, Hon Mark Dreyfus KC MP, referred the Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022 (the Bill) to the Committee for inquiry and report.

1.55The Bill sought to amend the Inspector-General of Intelligence and Security Act 1986 (IGIS Act) for the purpose of enhancing oversight of Australia’s intelligence agencies. This would include additional powers for the IGIS to enter and remain on intelligence agency premises, to clarify whistleblowing arrangements, and to enhance information sharing provisions.

1.56In his second reading speech, the Attorney-General said:

The Inspector-General of Intelligence and Security Act was enacted in 1986 and was designed for a smaller agency and a different Commonwealth integrity activity framework. This bill will enhance the Inspector-General's oversight of the agencies within its existing jurisdiction, ensuring Australia's oversight functions are commensurate with modern national intelligence community functions. This will provide the public with greater assurance that Australia's intelligence agencies are subject to robust oversight and integrity.[6]

1.57The enactment of the Bill would also implement two recommendations of the 2019 Comprehensive Review of the Legal Framework of the National Intelligence Community (the ‘Richardson Review’) to:

• prevent the head or deputy head of an organisation within the remit of the IGIS’ oversight from being appointed to the role of IGIS immediately following their term; and
• ensure that the IGIS can consider employment-related grievances raised by employees of the Office of National Intelligence (ONI).
  58. In addition, the Bill proposed to amend the National Anti-Corruption Commission Act 2022 following that Act’s commencement to clarify the information sharing relationship between the new Integrity Commissioner and the IGIS.
  59. The Committee presented its report on 20 March 2023. The Committee made five recommendations, including that the Bill be passed following implementation of the other four recommendations. Those recommendations were:
• to provide for greater information sharing arrangements between the IGIS and the Committee
• to align provisions related to abrogation of legal professional privilege between equivalent pieces of legislation
• that ONI develop an employment framework to govern the engagement of staff members under the Office of National Intelligence Act 2018
• to place additional restrictions on eligibility for appointment to the role of Inspector-General of Intelligence and Security for a period of time following employment in an intelligence agency.

Item 250 of the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022

1.60On 30 September 2022 the Attorney-General referred an amendment to subsection 110A(1) of the Telecommunications (Interception and Access) Act 1979 (TIA Act), effected by Item 250 of the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 (the Consequential Bill), to the Committee for review.

1.61Subsection 110A(1) of the TIA Act defines 'criminal law-enforcement agency', being an agency that is permitted to obtain stored communications warrants and to give authorisations for access to telecommunications data under the TIA Act. Subsection 110A(11) of the TIA Act requires that any amendment to subsection 110A(1) of the TIA Act be referred to the Committee for review.

1.62Item 250 of the Consequential Bill (Item 250) proposed to amend section 110A(1) of the TIA Act by substituting the Australian Commission for Law Enforcement Integrity for the National Anti-Corruption Commission (NACC), as a criminal law-enforcement agency.

1.63The main focus of the Committee’s inquiry related to the NACC’s ability to exercise such covert powers in relation to an expanded group of subjects, particularly parliamentarians, and how this would interact with parliamentary privilege.

1.64The Committee presented its report on 29 March 2023, by which time the Consequential Bill had already passed into law. The Committee nevertheless made seven recommendations which focused mainly on ensuring the protection of parliamentary privilege in the use of covert powers by the NACC. Recommendations also covered reporting on the electronic surveillance reform project, and strengthening cybersecurity and personnel security at the NACC.

National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023

1.65The National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023 (the Bill) was referred to the Committee for inquiry and report by the Attorney-General on 29 March 2023.

1.66The Bill proposed amendments to enhance the legislative framework of the National Intelligence Community (NIC) by implementing ten recommendations of the Richardson Review. It proposed amendments to 13 Commonwealth Acts to support these proposed enhancements.

1.67The Bill also proposed to amend the IS Act to provide certainty regarding the level of detail required to describe the directed activities in a Ministerial direction to ASIS under paragraph 6(1)(e) of the IS Act. In addition, the Bill proposed amendments to the IS Act to increase the membership and quorum of the PJCIS, and amend the required composition of members between Government and non-Government members, and MPs and Senators. (This would not, however, change the requirement that the Committee maintain a government majority.)

1.68The Committee received 15 submissions, including four supplementary submissions, and held one public hearing with interested stakeholders and relevant departments and agencies. The Committee also received a classified briefing from ASIS and the IGIS regarding the IS Act amendment relevant to ASIS.

1.69The Committee presented its report on 12 May 2023. The Committee recommended that the Bill be passed, following implementation of one substantive recommendation relating to the definition and control of ‘ASIO affiliates’.

1.70The report also, unusually, incorporated a dissenting report from all Opposition members of the Committee. The Opposition members dissented from the proposal in the Bill to change the member composition and quorum requirements of the Committee, recommending that those provisions be amended or deleted.

Australian Security Intelligence Organisation Amendment Bill 2023

1.71On 29 March 2023 the Minister for Home Affairs, Hon Clare O’Neil MP, referred the Australian Security Intelligence Organisation Amendment Bill 2023 (the Bill) to the Committee for inquiry and report.

1.72The Bill contained a suite of amendments designed to uplift and harden Australia’s highest level of security clearance in response to the unprecedented threat from espionage and foreign interference confronting Australia. The Bill amended the ASIO Act, ONI Act, Administrative Appeals Tribunal Act 1975(AAT Act) and theIGIS Act.

1.73The Bill introduced a new security vetting and security clearance framework into the ASIO Act, to enable ASIO to become centrally responsible for the issuing, maintaining and revoking of Australia’s highest-level of security clearance, and the implementation of a consistent approach across the Australian Government. This included a new Top Secret-Privileged Access (TS-PA) security standard, to incrementally replace the previous top-level Top Secret-Positive Vetting clearance.

1.74The Bill also established a Quality Assurance Office in ONI, responsible for independently assuring the quality, consistency and transferability of the TS-PA security clearances; and for working with clearance-sponsoring agencies to strengthen their capabilities to prevent and detect insider threats.

1.75The Bill amended the AAT Act to enable a new external merits review framework applicable to TS-PA security clearance decisions by ASIO.

1.76The Committee commenced its inquiry on 30 March 2023 and invited public submissions. Four submissions and two supplementary submissions were received. A public hearing was held on 10 May 2023.

1.77The Committee presented its report on 13 June 2023. The Committee recommended that the Bill be passed, following implementation of one substantive recommendation: that the Explanatory Memorandum for the Bill be amended, or a supplementary Explanatory Memorandum presented, specifying that, notwithstanding the Bill’s authority to delegate functions and powers to ASIO affiliates, human sources or agents would not be used to undertake security vetting.

Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023

1.78The Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 was introduced into Parliament by the Attorney-General on 14 June 2023, and referred to the Committee the same day. The Committee commenced its inquiry into the Bill on 21 June 2023, and at the end of the reporting period, was awaiting submissions.

Intelligence Services Legislation Amendment Bill 2023

1.79The Intelligence Services Legislation Amendment Bill 2023 was introduced into Parliament by the Attorney-General on 14 June 2023, and referred to the Committee on 22 June 2023 for review and report. At the end of the reporting period, the Committee had not yet commenced its inquiry into the Bill.

Statutory reviews

Review of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019

1.80Paragraph 29(1)(cc) of the IS Act required the Committee to review the operation, effectiveness and implications of the Counter‑Terrorism (Temporary Exclusion Orders) Act 2019 (TEO Act) by three years after its commencement, which was 31 July 2022.

1.81The TEO Act established a regime, the TEO Regime, to provide greater control over Australians returning from overseas, who are of counter-terrorism interest. The scheme provides for the Minister for Home Affairs to issue:

• ‘temporary exclusion orders’ (TEO) to prevent the return of individuals to Australia without a return permit; and
• ‘return permits’ to enable pre-entry and post-entry conditions to be imposed on returning individuals.
  82. The Committee commenced its review of the TEO Act on 6 August 2021. By the conclusion of the 46th Parliament in April 2022, the Committee had received eight submissions. Following the commencement of the 47th Parliament the Committee resolved to continue the review. The Committee received four further (supplementary) submissions and held a public hearing in October 2022, and a private briefing in March 2023.
  83. The Committee presented its report on 10 May 2023. The Committee found that the TEO regime was operating as expected and was effective. The Committee made six recommendations to ensure that the TEO Regime continued to work to protect Australia’s national security. These included a recommendation that the IS Act be amended to require another review of the TEO Act by the Committee, three years after the presentation of this one.

Review of the Foreign Influence Transparency Scheme Act 2018

1.84The Foreign Influence Transparency Scheme was introduced in 2018 with the purpose of bringing transparency to activities undertaken on behalf of foreign principals, particularly where those activities are intended to influence Australian political and governmental systems and processes.

1.85Under the Foreign Influence Transparency Scheme Act2018 the Committee was required to commence a review into the operation, effectiveness and implications of the Scheme by the third anniversary of the Act (10 December 2021). The former Committee commenced its review on 6 August 2021, and received submissions from government, academics, industry and other stakeholders. However, due to the timing of the 2022 election, the Committee’s review lapsed with the 46th Parliament’s dissolution.

1.86The Committee relaunched the review at the start of the 47th Parliament and held two private briefings and one public hearing during the reporting period.

1.87The review was ongoing at the end of the annual report period.

Review of post-sentence terrorism orders: Division 105A of the Criminal Code Act 1995

1.88Under paragraph 29(1)(bbaaa) of the IS Act, the Committee was required to commence a review of the operation, effectiveness and implications of Division 105A of the Criminal Code, and any other provision of the Criminal Code as it relates to that Division, within 12 months of the Independent National Security Legislation Monitor (INSLM) completing a review into that Division.

1.89Division 105A allows for the Courts to make orders detaining or supervising individuals who are serving a sentence for a serious terrorism offence, and are considered to pose an ‘unacceptable’ risk to society if they were to be released without any restrictions on their movements. This Division allows for two main forms of post-sentence orders to be made: continuing detention orders, in which individuals are detained in prison once their sentence for terrorism offences concludes; and extended supervision orders, in which individuals may be subject to a range of conditions on their release into the community.

1.90On 30 March 2023 the Attorney-General presented to Parliament the Review into Division 105A (and related provisions) of the Criminal Code Act 1995 (Cth), undertaken by the fourth INSLM, Mr Grant Donaldson SC.

1.91Consequently, the Committee launched its review of post-sentence terrorism orders on 11 May 2023. The Committee received 15 submissions from government, advocacy groups and legal experts.

1.92At the end of the reporting period the Committee’s review was ongoing.

Review of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021

1.93Under paragraph 29(1)(cf) of the IS Act, the Committee was required to commence a review of the operation, effectiveness and implications of the amendments made to the Migration Act 1958 by Schedule 1 of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021.

1.94The amendments clarified that the Migration Act 1958 does not authorise removal of a person who is found to attract Australia’s protection obligations under international law; and required that Australia’s protection obligations be considered before a decision is made to grant or refuse a protection visa.

1.95On 15 May 2023 the Committee launched its review and invited submissions. At the end of the reporting period the Committee’s review was ongoing.

Other activities of the Committee

Private briefings

1.96The 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

1.97As noted above, the Committee conducted some site visits within Australia during the reporting period as part of its induction and oversight activities. These provided valuable opportunities for Committee members to better understand and explore the work of National Intelligence Community agencies.

Looking forward

1.98The new Committee in the 47th Parliament commenced with several ongoing reviews, and the Committee’s workload steadily grew throughout 2022-23 with new Bills and reviews referred or arising. Management of a consistently high workload with limited time and resources remains a challenge for the Committee.

1.99Three Bills before Parliament at the end of the reporting period contained proposed provisions that would meaningfully impact the Committee, by changing the composition and governing rules of the Committee itself, expanding its oversight responsibilities, and changing other review provisions and mechanisms on certain matters, such as counter-terrorism. This rolling series of reforms promise a further significant increase in the demands on the Committee going forward.

1.100While the Committee looks forward to some modest additional resourcing in 2024, and is exploring its own strategies and efficiencies to manage its work, the Committee encourages the Government to recognise this state of affairs and exercise realism in setting expectations of the Committee, particularly in relation to requested timeframes for Bill reviews. The Committee notes that extremely short timeframes for examination of complex legislation not only place pressure on the Committee and its staff, but can also diminish the quality and quantity of evidence able to be gathered, and can even undermine relationships with key stakeholders.

1.101While some new laws may be truly urgent, this is not always the case, and wherever possible a healthy democratic process and appropriate national security oversight requires that the Committee be provided the appropriate time and space necessary to do its work well.

1.102The Committee thanks all those both within and outside government who contributed to the various inquiries conducted over the review period through providing submissions and evidence at briefings and hearings.

1.103The Committee looks forward to reflecting further on its activities, challenges and changes in the next annual report.

Mr Peter Khalil MP

Chair

1 February 2024

Footnotes

[1]In addition to the IS Act, certain other legislation also imposes specific functions on the Committee, such as the Criminal Code Act 1995 and the Telecommunications (Interception and Access) Act 1979.

[2]See House of Representatives Votes and Proceedings No.8—5 September 2022, Item 11; Journals of the Senate No.9—6 September 2022, Item 17.

[3]National Security Legislation Amendment (Comprehensive Review and Other Measures No.2) Bill 2023; Intelligence Services Legislation Amendment Bill 2023.

[4]From 31 May 2022, responsibility for the AFP—and therefore for terrorist organisation listings under the Criminal Code—was moved from the Minister for Home Affairs to the Attorney-General. In subsequent reviews the Committee was advised that the Minister and Department of Home Affairs continued to play a role in assessing and advising the Attorney-General on proposed terrorist organisation listings.

[5]See https://www.homeaffairs.gov.au/reports-and-pubs/files/reports-to-parliament/temporary-exclusion-order-report-2022-2023.pdf.

[6]The Hon. Mark Dreyfus KC MP, Attorney-General of Australia, House of Representatives Hansard, 30 November 2022, p. 3922.