3. Committee Comment
   1. The Committee acknowledges the concerns raised by the Law Council of Australia and the Australian Muslim Advocacy Network (AMAN) in relation to the short timeframe provided to consider the Bill and give evidence to the inquiry, and thanks these organisations for providing a submission to inform the Committee’s inquiry so quickly.
   2. The Committee notes that the provisions of the Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022 (‘IGIS Modernisation Bill’) are similar in some ways to the Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020 (‘Integrity Measures Bill’), but also that in certain respects they differ significantly.
   3. While the Committee has been able to review certain provisions of the IGIS Modernisation Bill in the light of the previous Integrity Measures Bill during this inquiry, the Committee notes that much of the Attorney-General’s Department’s submission was limited to comparisons between these Bills. The Committee would have been assisted by a more expansive submission from the Attorney-General’s Department that went to the proposed amendments more fully and outlined the policy rationale behind them.
   4. The Committee notes that the most significant difference between the IGIS Modernisation Bill and the Integrity Measures Bill is that the IGIS Modernisation Bill does not expand the oversight functions of the Inspector-General of Intelligence and Security (IGIS) and this Committee.
   5. This Committee has recommended in several previous inquiry reports that the recommendations of the 2017 Independent Intelligence Review be implemented to expand the oversight of the IGIS and this Committee to cover the entirety of the National Intelligence Community (NIC).[1]
   6. The Committee notes the statements of the Attorney-General in his second reading speech for this Bill acknowledging the recommendations made by this Committee, and his assurances that the Government is giving these matters due consideration. The Committee echoes the sentiment of the Attorney-General that effective oversight of intelligence agencies enhances the strength of the NIC rather than acting as a barrier to enhancing Australia’s national security interests.
   7. The provisions in the Bill seeking to enhance and deconflict the ability for multiple integrity bodies to work together on elements of operational oversight are welcome, but these are just one part of the intelligence oversight picture. While the Committee considers that the Bill gives ample attention to the risk of duplication of oversight and addresses it appropriately, the Committee is concerned about the growing restrictions on information sharing between this Committee and the IGIS.
   8. As discussed in Chapter 2 of the report, several provisions of the IGIS Act are prescriptive about the circumstances in which information can be shared, which, when aligned with the secrecy provisions contained in the Act, actively prevent the Inspector-General from sharing non-operational information with the Committee even when the information would be directly relevant to the functions of the Committee and the Inspector-General may be minded to share the information if not for legislative limitations.
   9. The Committee notes that there are discrete provisions in the Telecommunications (Interception and Access) Act 1979 that allow the Inspector-General to share information with this Committee when related to authorisations for retained data or authorisations intended to identify a media source. However, it would be prohibitively restrictive and burdensome to amend the Inspector-General of Intelligence and Security Act 1986 to provide for every other instance where the Committee’s oversight role would be enhanced by the ability for the Inspector-General to share information with this Committee.
   10. Therefore, the Committee considers that there is an opportunity to improve information sharing between the IGIS and this Committee, and the Committee recommends that the Government consider amendments to the IGIS Act and the Intelligence Services Act 2001 to improve information sharing provisions. Noting that the information sharing limitations identified in this report could potentially impact on the Committee’s ability to fulfil its statutory oversight functions, the Committee also recommends that the Government respond on this matter within twelve months.

3.11The Committee recommends that the Australian Government consider amendments to the Inspector-General of Intelligence and Security Act 1979 and the Intelligence Services Act 2001 to provide for greater information sharing between the Inspector-General of Intelligence and Security and the Parliamentary Joint Committee on Intelligence and Security.

3.12The Committee recommends that the Government report to the Committee within twelve months of the presentation of this report on the outcomes of such consideration.

3.13The Committee notes the evidence from the Law Council of Australia regarding legal professional privilege and agrees that consistency between provisions abrogating legal professional privilege in different integrity bodies’ legislation is desirable, where it does not change the intended meaning of the provision.

3.14The Committee recommends that the IGIS Modernisation Bill be amended to align the wording of Item 86 of Schedule 1 of the Bill with the equivalent provisions in the Commonwealth Ombudsman Act 1976 and the Law Enforcement and Integrity Commissioner Act 2006.

3.15The Committee recommends that Item 86 of Schedule 1 of the Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022 be amended to align the provisions relating to abrogation of legal professional privilege with equivalent provisions in the legislation governing other integrity agencies.

3.16The Committee noted the evidence of the Office of National Intelligence (ONI) with interest, though ONI was not significantly impacted by the IGIS Modernisation Bill overall. The Committee notes the evidence that ONI has not yet turned its mind to the framework that would govern a person engaged under the provisions of the Office of National Intelligence Act 2018 (ONI Act), and that, to the date of this report, the ONI has not used this provision to engage staff members.

3.17The Committee also notes the evidence of ONI that the ability to engage staff members under the ONI Act is likely to become more relevant as time progresses. The Committee notes the provisions of the ONI Act that indicate the employment conditions for staff members engaged under the Act should be aligned with the provisions of the Public Service Act 1999 where possible. However, the Committee considers that ONI would benefit from establishing a framework which would outline the employment conditions of staff members engaged under the ONI Act, drawn from the provisions of the PS Act where possible, in the event the use of the provisions becomes essential for national security purposes.

3.18Therefore, the Committee recommends that ONI develop an employment framework for staff members that may be engaged under subsection 33(1)(b) of the ONI Act, and report on progress to the Committee in 12 months on the framework and progress in the ONI’s consideration of engaging staff members under this provision.

3.19The Committee recommends that the Office of National Intelligence develop an employment framework governing staff members that may be engaged under subsection 33(1)(b) of the Office of National Intelligence Act 2018.

3.20The Office of National Intelligence should report to the Committee in 12 months on progress towards implementing this recommendation.

3.21The Committee notes the additional recommendations made by the Law Council of Australia and AMAN regarding the amendments to human rights provisions in the Bill. The Committee also notes the evidence received from the IGIS that no referrals have been received from the Australian Human Rights Commission in the last five years, since the financial year 2017-2018.

3.22The Committee supports provisions that would enable those with genuine grievances about the conduct of intelligence agencies to have an avenue to raise these complaints. At the same time the Committee is conscious of the potential impact a significant increase in complaints may have on the IGIS. Should this change pass into law, the Committee will seek advice from the IGIS at a later date on its impact on IGIS’ workload and priorities.

3.23The Committee notes the recommendations made by the Law Council of Australia in relation to additional qualifications for appointment to the role of Inspector-General.

3.24However, the Committee also notes the comments on eligibility for appointment to the role of Inspector-General in the Richardson Review, and in the Explanatory Memorandum to the present Bill. The Committee acknowledges the conclusions of the Richardson Review that it would not generally be appropriate to appoint someone to the position of the IGIS who was previously employed or closely connected with a NIC agency, although in some cases an employment relationship with an NIC agency may be so remote in time that it would not affect the perception of the person’s independence in performing the role. The Committee therefore considers that excluding a person whose most recent position was the head or deputy head of an intelligence agency may not adequately address the issue of apprehended bias, arising from both the time and level of seniority of the position previously held. To be clear, the Committee is of the view that these disentitling provisions ought not simply be constrained to persons who have previously held the positions of head or deputy head of an intelligence agency.

3.25The Committee therefore recommends that, in addition to the current qualifications proposed by the IGIS Modernisation Bill, the Government consider amending the Bill to prescribe an appropriate length of time a person would be ineligible for appointment to the role of Inspector-General following employment in an intelligence agency. The Government should consider what an appropriate time period might be.

3.26The Committee recommends that the Australian Government consider amendments to the Inspector-General of Intelligence and Security and Other Legislation Amendment (Modernisation) Bill 2022 to prescribe that a person would be ineligible for appointment to the role of Inspector-General for an appropriate period of time to be determined by the Government, following employment in an intelligence agency.

3.27The Committee supports, in principle, the provisions of the IGIS Modernisation Bill that implement two of the recommendations of the Richardson Review. The Committee notes the evidence provided by the Attorney-General’s Department that implementation of the remaining recommendations of that Review is currently under consideration by the Government and looks forward to the opportunity to consider further advice and action in this regard, in due course.

3.28Overall, the Committee supports the Bill and recommends that, following the implementation of the recommendations in this report, the Bill be passed by Parliament.

3.29The Committee recommends that, following implementation of the recommendations in this report, the Bill be passed by the Parliament.

Mr Peter KhalilMP

Chair

16 March 2023

Footnotes

[1]For example, see Parliamentary Joint Committee on Intelligence and Security (PJCIS), Advisory Report on the Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020, Final Report, February 2022, Recommendations 1-2; PJCIS, Review of the Amendments Made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018, Final Report, December 2021, Recommendations 18-19; PJCIS, Advisory Report on the Surveillance Legislation Amendment (Identify and Disrupt) Bill, Final Report, August 2021, Recommendation 2.