Overview of activities
2.1
Between 1 July 2018 and 30 June 2019, the Parliamentary Joint Committee on Intelligence and Security (the Committee) held 52 meetings, at a total duration of 53 hours and 30 minutes.
2.2
The Committee undertook 16 inquiries and tabled 11 reports (includes the publication of an annual report).
2.3
The Committee completed the following reviews:
Review No. 16 (2016-17) of the administration and expenditure of the six agencies comprising the Australian Intelligence Community, pursuant to section 29(1)(a) of the Intelligence Services Act 2001 (the ISA);
inquiries into seven bills referred by the Australian Government and one Act referred by the Senate, pursuant to section 29(1)(b) of the ISA; and
reviews of the listing of two terrorist organisations and the re-listing of five terrorist organisations, pursuant to section 102.1A of the Criminal Code.
2.4
At the dissolution of the House of Representatives on Thursday, 11 April 2019, the following Committee inquiries lapsed before they could be completed:
Review of the Counter-Terrorism Legislation Amendment Bill 2019;
Review of the Identity-matching Services Bill 2018 and the Australian Passports Amendment (Identity-matching Services) Bill 2018; and
Review of Administration and Expenditure No.17 (2017-2018) - Australian Intelligence Agencies;
Review of the amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018;
Review of the Australian Citizenship renunciation by conduct and cessation provisions; and
Review of the mandatory data retention regime.
2.5
A full list of the reports tabled by the Committee during 2018-19 is provided at Appendix B. To the extent appropriate for publication, each of these activities are summarised in further detail below.
Oversight responsibilities
Reviews of administration and expenditure
2.6
The ISA requires the Committee to review the administration and expenditure of the six agencies which comprise the Australian Intelligence Community:
Australian Geospatial-Intelligence Organisation (AGO),
Australian Security Intelligence Organisation (ASIO),
Australian Secret Intelligence Service (ASIS),
Australian Signals Directorate (ASD),
Defence Intelligence Organisation (DIO), and
Office of National Intelligence (ONI).
2.7
In exercising this function, the Committee conducts its reviews on an annual basis.
2.8
In its reviews, the Committee examines each agency’s financial performance and management for the relevant financial year, and considers the budgetary framework within which each agency operates.
2.9
The Committee also considers matters that impact on the administration of agencies, including:
legislative changes and litigation;
strategic direction and organisational structure;
human resource management;
public accountability and public relations; and
Review of administration and expenditure no. 16 (2016-2017)
2.10
On 6 September 2017, the Committee commenced its 16th review of intelligence agencies’ administration and expenditure, concerning the 2016-2017 financial year.
2.11
Submissions were sought and received from the six intelligence agencies, the Auditor-General and the Inspector-General of Intelligence and Security (IGIS). These submissions informed private classified hearings held from March 2018 through to August 2018 with representatives of the six intelligence agencies and the IGIS.
2.12
On 13 February 2019, the Committee tabled a report on Review No. 16 (2016‑2017) which noted that intelligence agencies are overseeing their administrative functions effectively, and that no areas of concern were identified by the Committee.
2.13
The Committee acknowledged that throughout the period of review, the intelligence community underwent significant changes arising from the 2017 Independent Intelligence Review and the machinery of government changes following the creation of the Department of Home Affairs.
2.14
The Committee observed that it is essential that effective oversight of intelligence agencies is maintained as the National Intelligence Community evolves.
2.15
The Committee noted that the IGIS has a key role in providing public assurance that each intelligence agency acts legally and with propriety, complies with ministerial guidelines and directives, and acts consistently with human rights. The Committee indicated that legislative amendments to expand the IGIS’s remit and other oversight mechanisms corresponding to changes to intelligence agencies should be brought forward without delay.
Review of administration and expenditure no. 17 (2017-2018)
2.16
On 18 October 2018, the Committee commenced its 17th review of intelligence agencies’ administration and expenditure, concerning the 2017‑2018 financial year.
2.17
Submissions were sought and received from the six intelligence agencies, the Department of Defence and the Australian National Audit Office. The Committee responded to these submissions with a series of written questions which were comprehensively answered by agencies.
2.18
On 11 April 2019, the review lapsed with the dissolution of the 45th Parliament for a general election.
2.19
However, the review was readopted on 16 July 2019 after the Committee reconstituted at the commencement of the 46th Parliament. The Committee conducted private (classified) hearings with intelligence agencies in September 2019 and plans to table a report on Review No. 17 (2017-2018) in the coming months.
Review of listings of terrorist organisations under the Criminal Code
2.20
Under Division 102 of the 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 listed terrorist organisation. Section 102.1A of the Criminal Code provides that the Committee may review a regulation specifying an organisation as a terrorist organisation and report the Committee’s comments to each house of the Parliament before the end of the applicable disallowance period (15 sitting days).
2.21
Regulations re-listing the following terrorist organisations under the Criminal Code were made by the Federal Executive Council on 2 August 2018:
Hamas’ Izz al-Din al-Qassam Brigades;
the Kurdistan Workers Party (PKK);
Palestinian Islamic Jihad.
2.22
The Committee reviewed and supported the re-listings, finding no reason to disallow the legislative instruments. The Committee presented its report to the Parliament on 20 September 2018.
2.23
Regulations listing the following organisations as terrorist organisations under the Criminal Code were made by the Federal Executive Council on 7 June 2018:
Jemaah Anshorut Daulah; and
Jama’at Mujahideen Bangladesh.
2.24
The Committee reviewed and supported the listings, finding no reason to disallow the legislative instruments. The Committee presented its report to the Parliament on 20 September 2018.
2.25
Regulations re-listing the following terrorist organisations under the Criminal Code were made by the Federal Executive Council on 4 April 2019:
al-Qa’ida in the Lands of the Islamic Maghreb;
Jabhat Fatah al-Sham; and
2.26
Regulations listing Islamic State Somalia as a terrorist organisation for the first time were made by the Federal Executive Council on the same day.
2.27
The Committee was also advised that the regulations listing Jamiat ul-Ansar as a terrorist organisation under the Criminal Code were due to expire on 28 June 2019 and that there is insufficient ‘contemporaneous information from classified and open sources’ to demonstrate that the organisation’s listing should continue.
2.28
The Committee supported these re-listings, the new listing and the de-listing and presented its report to Parliament on 10 September 2019.
Review of ‘declared terrorist organisations’ under the Citizenship Act
2.29
Under sections 33AA and 35 of the Australian Citizenship Act 2007 (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.
2.30
Subsection 35AA(4) provides that, once a declaration 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 (15 sitting days).
2.31
No declarations under sections 33AA and 35 of the Citizenship Act were made by the Minister for Home Affairs during the reporting period. Accordingly no reviews were conducted by the Committee.
Review of ‘declared areas’ under the Criminal Code
2.32
Section 119.2 of the Criminal Code provides that it is an offence for a person to enter, or remain, in a ‘declared area’. There are exceptions to this offence for persons entering, or remaining in, declared areas solely for one or more of the listed ‘legitimate purposes’, or for service with a foreign government armed force (other than a proscribed organisation).
2.33
Section 119.3 of the Criminal Code 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’. 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.
2.34
The Criminal Code provides that the Committee may review the Minister for Foreign Affairs’ declaration and report to the Parliament:
within the period in which the declaration may be disallowed by the Parliament (15 sitting days from the day the declaration is tabled); and
at any time that the declaration is in effect.
2.35
No declarations under section 119.3 of the Criminal Code have been made by the Minister for Foreign Affairs since the Mosul District in the Ninewa Province of Iraq was re-declared on 3 March 2018 (it was originally declared on 3 March 2015). That was the first time an area was re-declared under the Criminal Code.
2.36
In addition to Mosul District, only one other area has been declared: al-Raqqa Province in Syria, which was declared in December 2014. However, the Minister for Foreign Affairs revoked that declaration on 27 November 2017 after she ceased to be satisfied that a listed terrorist organisation—Islamic State—was engaging in hostile activity in that area.
2.37
The Committee reviewed the re-declaration of the Mosul District when it came into effect and committed to a further review in September 2019, should the declaration remain in effect at that time:
In the event that Mosul District remains a declared area in September 2019— 18 months from the time of the re-declaration—the Committee intends to undertake a further review of the declaration. The Committee will engage with the Government to ensure any review is timed to complement any parallel review processes.
Oversight of AFP counter-terrorism and stop, search and seizure activities
2.38
Part 5.3 of the Criminal Code contains the Commonwealth terrorism offences, control order regime and preventative detention order regime.
2.39
Part IAA of the Crimes Act 1914 provides for stop, search and seizure powers available to the Australian Federal Police (AFP) in relation to terrorism offences.
2.40
Under section 29(1)(baa) of the ISA, it is a function of the Committee to monitor and to 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. It is also a function of the Committee to report to the Parliament, with such comments as it thinks fit, upon any matter pertaining to the AFP or connected with the performance of its functions under Part 5.3 of the Criminal Code and Part IAA of the Crimes Act 1914.
AFP counter-terrorism and stop, search and seizure activities – 1 June 2018 to 31 May 2019
2.41
The AFP provided details of activities undertaken from 1 June 2018 to 31 May 2019 in relation to Part 5.3 of the Criminal Code and Part IAA of the Crimes Act 1914. During the reporting period the Committee also sought figures on control orders, interim detention orders, preventative detention orders and continuing detention orders. These statistics were discussed at a classified briefing with the AFP and are outlined in detail in Appendix C of this report.
Review of retained data activities of the AFP and ASIO
2.42
Part 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 scheme is designed to ensure that such data remains available for law enforcement and national security investigations.
2.43
Under section 29(1)(bd) of the ISA, it is a function of the Committee to, subject to certain restrictions, 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 ISA, 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 against Part 5.3 of the Criminal Code and is set out in the annual report for the TIA Act.
2.44
During the reporting period, ASIO provided the Committee with a copy of Appendix H of its classified annual report for 2018-19, relating to ASIO’s authorisations for retained and prospective telecommunications data. The Committee is reviewing this material as part of its review of administration and expenditure no. 17. 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.
2.45
Under 29(1)(be) of the ISA, the Committee also reviewed the AFP’s access to retained telecommunications data as included in TIA Act annual reports for 2016-17 and 2017-18 (produced by the Department of Home Affairs). The Committee received classified briefings on this matter from the AFP and from the Commonwealth Ombudsman. The Committee is also conducting a statutory review of the mandatory data retention regime pursuant to section 187N of the TIA Act.
Notifications
2.46
The ISA, the TIA Act and the Citizenship Act each require the Committee to be notified of certain matters or provided with certain reports. Appendix D outlines notifications and reports received during the reporting period.
Private briefings
2.47
The Committee received a range of private briefings from relevant Commonwealth departments and agencies during the reporting period. Some briefings were in connection to specific inquiries before the Committee, while others concerned the Committee’s broader oversight remit.
Site visits
2.48
The Committee conducted site visits in Canberra as part of its review, oversight and briefing activities.
Bill inquiries
2.49
The Committee completed reviews of seven bills that were referred to it during the period under review:
Office of National Intelligence Bill 2018;
Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018;
Intelligence Services Amendment Bill 2018;
Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018;
Crimes Legislation Amendment (Police Powers at Airports) Bill 2018;
Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018;
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019.
2.50
As noted, the Committee also commenced reviews on the following bills, which lapsed before a report could be tabled in Parliament:
Review of the Counter-Terrorism Legislation Amendment Bill 2019;
Review of the Identity-matching Services Bill 2018; and
Australian Passports Amendment (Identity-matching Services) Bill 2018.
2.51
The Committee approached all Bill reviews in a bipartisan manner. It focussed on examining the effectiveness of the bills and ensuring that they encompassed appropriate safeguards to protect civil liberties. The following pages describe these reviews in more detail.
Office of National Intelligence Bill 2018 and Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018
2.52
On 28 June 2018, the Attorney-General, the Hon Christian Porter MP, introduced the Office of National Intelligence Bill 2018 and the Office of National Intelligence (Consequential and Transitional Provisions) Bill 2018 into the House of Representatives.
2.53
In his second reading speech, the Attorney-General noted that the bills were part of the Government’s response to the 2017 Independent Intelligence Review, conducted by Mr Michael L’Estrange, Mr Steve Merchant and their UK adviser Sir Iain Lobban.
2.54
On the same day, the Hon Malcolm Turnbull MP, the then Prime Minister, wrote to the Committee to refer the bills for inquiry and report. In his letter, the then Prime Minister stated that the bills would give effect to his 18 July 2017 announcement that the Government would establish an Office of National Intelligence (ONI). He also stated that in accordance with the review’s recommendations:
ONI will have two key roles – managing Australia’s national intelligence enterprise, and producing national and strategic intelligence assessments. ONI will also be the principal advisory agency to the Prime Minister on intelligence matters.
2.55
The Committee tabled a report on the bills on 24 October 2018. It found that the bills did achieve the recommendations set out in the Independent Intelligence Review by establishing an ONI with a clear mandate to improve coordination and integration across the National Intelligence Community without diminishing the powers and statutory functions of individual intelligence agencies.
2.56
The Committee recommended that the bills be passed following the implementation of six recommendations aimed at ensuring that ONI’s engagement with foreign authorities is appropriately authorised, in a manner consistent with other intelligence agencies, and at strengthening privacy rules governing ONI’s collection, communication, handling and retention of identifiable information.
2.57
The Government agreed to implement the Committee’s recommendations in full.
Intelligence Services Amendment Bill 2018
2.58
The Intelligence Services Amendment Bill 2018 was introduced into the House of Representatives by the Hon Paul Fletcher MP, the then Minister for Families and Social Services, on 29 November 2018.
2.59
In his second reading speech, the then Minister noted that the role of the Australian Secret Intelligence Service (ASIS) has expanded over the last 15 years and ‘Australian has become more of an international terrorism and espionage target’. The then Minister tabled an Explanatory Memorandum which described the purpose of the Bill as modernising the legislative framework governing the use of force by ASIS officers to address operational challenges and issues:
The Bill will do this by amending the Intelligence Services Act 2001 (IS Act) to:
a.
enable the Minister to specify additional persons outside Australia who may be protected by an ASIS staff member or agent; and
b.
provide that an ASIS staff member or agent performing specified activities outside Australia will be able to use reasonable and necessary force in the performance of an ASIS function.
2.60
On 29 November 2018, Senator the Hon Marise Payne, Minister for Foreign Affairs referred the Bill to the Parliamentary Joint Committee on Intelligence and Security for inquiry and report.
2.61
The Committee tabled its report on the Bill on 4 December 2018. It noted that the Bill sought to expand the powers available to ASIS staff and agents to use weapons, self-defence techniques and reasonable force. It felt that reviewing such legislation constituted one of its most important functions and reflected that the Parliament does not provide powers like this lightly.
2.62
In assessing the legitimacy, reasonableness and transparency of the Bill, the Committee had regard to:
the comprehensive consultation and decision making process required to be undertaken by the Minister before authorising the use of the powers;
guidelines surrounding the use of the powers; and
oversight provided by referral of these guidelines to the Inspector-General of Intelligence and Security and the Committee.
2.63
The Committee recommended that the Bill be passed without amendment and the Intelligence Services Amendment Act 2018 subsequently received royal assent on 10 December 2018.
Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018
2.64
On 20 September 2018, the Hon Peter Dutton MP, Minister for Home Affairs, introduced the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 (Assistance and Access Bill) into the House of Representatives. In his second reading speech, the Minister explained that the Bill provided a ‘package of reforms’ aimed at strengthening the ability of Australia’s law enforcement and national security agencies to deal with the challenges of encrypted communications.
2.65
The Hon Christian Porter MP, the Attorney-General wrote to the Committee referring the Bill for inquiry and report.
2.66
The Committee launched a detailed review of the legislation which attracted over 100 submissions from industry and members of the public, involved five public hearings and multiple private hearings and classified briefings.
2.67
Towards the end of 2018, the Government advised the Committee that the immediate passage of the legislation was critical to assist agencies to respond to a heightened national security environment over the Christmas/New Year period. The Committee responded by expediting its consideration of the Bill and tabled a brief report on 5 December 2018 which contained 17 recommendations for amendment or other action by Government, primarily aimed at improving the efficacy and oversight of the industry assistance measures provided for by the Bill.
2.68
In response to this report, amendments to the Bill were introduced and passed by the Parliament on 6 December 2018, the final sitting day for 2018.
2.69
Some members of the Committee felt that the amendments introduced and passed did not implement the recommendations of the Committee’s report. Others felt that, on balance, the amendments passed appropriately addressed the concerns that the Committee’s recommendations were seeking to resolve.
2.70
Nonetheless, all members agreed that the significant new powers introduced by the Assistance and Access Bill warrant ongoing consideration. To that end, the amendments passed included two referrals of the Assistance and Access Act back to the Committee for:
immediate review and report back to Parliament by 3 April 2019; and
a more detailed review to commence by 13 April 2019 and report back to Parliament by 13 April 2020.
2.71
These reviews of the Assistance and Access Act are outlined on pages 20 to 23 of this report.
Crimes Legislation Amendment (Police Powers at Airports) Bill 2018
2.72
The Crimes Legislation Amendment (Police Powers at Airports) Bill 2018 (the Bill) was introduced into the House of Representatives by the Hon Peter Dutton MP, Minister for Home Affairs, on 12 September 2018. In his second reading speech, the Minister acknowledged that, unfortunately, airports remain terrorist targets and explained that the Bill will enable police officers at airports to ‘assess and disrupt potential security and criminal threats’.
2.73
On 13 September 2018, the Minister for Home Affairs referred the Bill to the Committee for inquiry and report.
2.74
The Committee announced the inquiry on 17 September 2017. It received 11 submissions, including four supplementary and one confidential submission, and conducted a public hearing on 17 October 2019.
2.75
On 13 February 2019, the Committee tabled a report supporting the passage of the Bill following the implementation of recommendations aimed at:
tightening the scope of the Bill;
ensuring that the powers provided by the Bill do not interfere with the right to peaceful assembly;
requiring the AFP to maintain records detailing the use of some powers provided by the Bill; and
providing for an expedited judicial review mechanism.
2.76
However, the Bill lapsed at the conclusion of the 45th Parliament on 11 April 2019, without having moved beyond the second reading stage in the House of Representatives.
Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018
2.77
On 28 November 2018, the Hon Christian Porter MP, Attorney-General, introduced the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018 into the House of Representatives.
2.78
According to its Explanatory Memorandum, the Bill sought to amend the Citizenship Act to strengthen the citizenship loss provisions inserted by the Australian Citizenship Amendment (Allegiance to Australia) Act 2015, which provided explicit powers for the cessation of Australian citizenship in specified circumstances where a dual citizen engages in terrorism-related conduct.
2.79
In his second reading speech, the Attorney-General stated that ‘the ability to cease the Australian citizenship of those who seek to do us harm forms an integral part of [the] ongoing response to international violent extremism and terrorism’.
2.80
On 28 November 2018, the Attorney-General wrote to the Committee to refer the Bill for inquiry and report.
2.81
The Committee launched its inquiry on 3 December 2018. It received 19 submissions and eight supplementary submissions, and conducted both a public and classified hearing.
2.82
On 14 February 2019, the Committee tabled a report supporting the passage of the Bill, but recommending that the amendments it makes to the Citizenship Act are reviewed by the Committee (alongside those made by the Australian Citizenship Amendment (Allegiance to Australia) Act 2015) by 1 December 2020.
2.83
However, the Bill lapsed at the conclusion of the 45th Parliament on 11 April 2019, without having moved beyond the second reading stage in the House of Representatives.
Counter-Terrorism (Temporary Exclusion Orders) Bill 2019
2.84
On 22 November 2018, the Hon Scott Morrison MP, the Prime Minister, and the Hon Peter Dutton MP, Minister for Home Affairs, announced that a new temporary exclusion order regime would be introduced to ‘enable authorities to delay, and then monitor and control’ the return and re-entry of Australian foreign fighters into the community. The Prime Minister explained that the new scheme would be based on the existing scheme for temporary exclusion orders in the United Kingdom.
2.85
On 21 February 2019, the Minister for Home Affairs introduced the Bill into the House of Representatives. In his second reading speech, he noted that, ‘even after the defeat of Islamic State on the battlefield, the issue of foreign terrorist fighters will continue to be a challenge for our national security agencies and international partners for years to come’. The Minister wrote to the Committee on the same referring the Bill to the Committee for inquiry and report.
2.86
The Committee launched its inquiry on 22 February 2019 and requested submissions by 8 March 2019. Eight submissions and one supplementary submission were received with several submitters expressing concern regarding the relatively short timeframe for inquiry. The Committee conducted a public hearing on 15 March 2019.
2.87
The Committee tabled its report on the Bill on 3 April 2019. It supported the intention of the Bill and was convinced that the existing powers available to authorities—including powers of arrest and prosecution, powers to obtain control orders and powers to cancel passports—do not fully respond to the risk posed by suspected terrorist supporters returning to Australia in an uncontrolled and unmonitored manner. However, it noted submitter concerns that the Bill lacked sufficient accountability measures and may be vulnerable to constitutional challenge. The Committee therefore tabled a report supporting the passage of the Bill with 19 recommendations.
2.88
The Bill lapsed at the conclusion of the 45th Parliament on 11 April 2019, without having moved beyond the second reading stage in the House of Representatives.
Review of the Counter-Terrorism Legislation Amendment Bill 2019
2.89
On 20 February 2019, the Hon Christian Porter MP, Attorney-General, introduced the Counter-Terrorism Legislation Amendment Bill 2019 into the House of Representatives and wrote to the Committee to refer the Bill for inquiry and report.
2.90
The Committee announced the review and invited submissions via media release on 22 February 2019. Four submissions and two supplementary submissions were received from government, human rights advocates and the legal profession.
2.91
A public hearing was held 15 March 2019 in Canberra.
2.92
Concurrent to the Committee’s review, the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee for Human Rights also held inquiries into the Bill, both of which presented reports in March and April respectively.
2.93
However, this Bill and the Committee’s corresponding review lapsed at the conclusion of the 45th Parliament without a report being tabled.
Identity-matching Services Bill 2018 and the Australian Passports Amendment (Identity-matching Services) Bill 2018 (lapsed)
2.94
On 7 February 2018, the Hon Peter Dutton MP, Minister for Home Affairs, introduced the Identity-matching Services Bill 2018 into the House of Representatives.
2.95
On 7 February 2018, the Hon Julie Bishop MP, Minister for Foreign Affairs, introduced the Australian Passports Amendment (Identity-matching Services) Bill 2018 to the House of Representatives.
2.96
On 1 March 2018, Attorney-General, the Hon Christian Porter MP, wrote to the Committee to refer the provisions of both Bills for inquiry. He requested that the Committee should, as far as possible, conduct its inquiry in public.
2.97
The Committee announced the review and invited submission via media release on 8 March 2018. Twenty submissions and eight supplementary submissions were received from industry, government and other organisations.
2.98
A public hearing was held on 3 May 2018 and a public hearing and private briefing was held on 17 August 2018.
2.99
Concurrent to the Committee’s review, the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee for Human Rights also held inquiries into the Identify-matching Services Bill 2018, both of which presented reports in May and June respectively.
2.100
These Bills and the Committee’s corresponding review lapsed at the conclusion of the 45th Parliament without a report being tabled.
Statutory reviews
Review of the Australian Citizenship Renunciation by conduct and cessation provisions (lapsed)
2.101
The Citizenship Act contains a number of provisions dealing with both acquiring and ceasing Australian citizenship. In 2015, the Government introduced amendments to the Act via the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 (the Allegiance to Australia Bill). The legislative changes broadened the powers of the Minister relating to the cessation of Australian citizenship for individuals engaging in terrorism, and those who are a serious threat to Australia and Australian interests.
2.102
The Australian Citizenship Act now provides that any dual national citizen of Australia can automatically lose their Australian citizenship if they engage in terrorism-related conduct which repudiates their allegiance to Australia. The Act also empowers the Minister to determine that, where a person is a dual national, their Australia’s citizenship has ceased if they have been convicted of a number of offences including terrorism offences.
2.103
The Government sought to amend these provisions further with the introduction of the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018 into the House of Representatives on 28 November 2018. However, this bill did not progress beyond the second reading debate and lapsed with the dissolution of the Parliament on 11 April 2019.
2.104
Section 29 of the ISA requires the Committee to review the operation, effectiveness and implications of sections 33AA, 35, 35AA and 35A of the Australian Citizenship Act and any other provision of that Act, and to report to the Parliament by 1 December 2019.
2.105
On 2 April 2019, the Committee adopted the review and resolved to examined the following, more targeted, terms of reference:
the operation of sections 33AA, 35, 35AA and 35A of the Australian Citizenship Act, including:
the process of renunciation by conduct or cessation, including the operation of the Citizenship Loss Board
the legal threshold for a Ministerial decision under section 35A of the Act;
the effectiveness of sections 33AA, 35, 35AA and 35A of the Australian Citizenship Act, including:
citizenship loss as a response to the threat environment;
the extent of the use of the provisions (including details on persons affected by their use);
comparisons with similar legislation in other countries; and
the implications of sections 33AA, 35, 35AA and 35A of the Australian Citizenship Act, including:
unintended consequences flowing from renunciation by conduct or cessation of citizenship (including consequences for relatives and friends of individuals who have lost their citizenship).
2.106
The Committee also resolved to consider whether the current oversight and reporting requirements are appropriate.
2.107
The Committee launched the inquiry via media release on 4 April 2019 and invited stakeholders to make submissions by 1 July 2019. However, the Committee ceased to exist at the dissolution of the 45th Parliament on 11 April 2019.
2.108
The Committee readopted the inquiry and accepted submissions received to date when it reformed shortly after the opening of the 46th Parliament.
Review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018
2.109
Section 187N of the Telecommunications (Interception and Access) Act 1979 (the TIA Act) requires the Committee to undertake the following reviews and report to the Parliament by 13 April 2020:
the review of amendments to Commonwealth legislation made by the Telecommunications and Other Legislation Amendment (Assistance and Access Act 2018; and
the review of the mandatory retention regime.
2.110
The progress of these statutory reviews is outlined below.
2.111
As noted on pages 13 and 14 of this chapter, the Committee concluded an expedited review of the Assistance and Access Bill on 5 December 2018. The Bill subsequently passed Parliament on 6 December 2019 with amendments referring the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (the Assistance and Access Act) back to the Committee for:
immediate review and report back to Parliament by 3 April 2019; and
a more detailed review to commence by 13 April 2019 and report back to Parliament by 13 April 2020.
2.112
The progress of these two reviews is outlined in the following sections of the report.
Completed review
2.113
As previously noted, the Assistance and Access Act was referred to the Committee for inquiry and report by 3 April 2019 as part of a second reading amendment moved during Senate consideration of the Assistance and Access Bill.
2.114
In light of the short timeframe for the review, the Committee decided to focus its inquiry on clarifying the intent of the recommendations it made in its previous advisory report on the Assistance and Access Bill and to advise the Parliament on the extent to which those recommendations as intended, were addressed by Government amendments to that Bill.
2.115
The Committee received 71 submissions and 7 supplementary submissions. It held classified briefings with ASIO, AFP and the IGIS in February 2019.
2.116
On 12 February 2019, Mr Andrew Hastie MP (Chair), and the Hon. Mark Dreyfus QC MP (in his capacity as a member of the Committee) made statements in the House of Representatives on behalf of the Committee to advise the Parliament that the Committee supported two further amendments to the Assistance and Access Act:
to bring forward the timeframe for an Independent National Security Legislation Monitor (INSLM) review of the Act; and
extend industry assistance powers provided for in the Act to Commonwealth and state anti-corruption bodies.
2.117
On 13 February 2019, the Government introduced into the Senate the Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019 (Miscellaneous Amendments Bill) to give effect to these amendments. A number of additional amendments were also moved.
2.118
However, in recognition that the Miscellaneous Amendments Bill was unlikely to pass before the dissolution of the 45th Parliament, the Committee used its powers under section 7A of the Independent National Security Legislation Monitor Act 2010 to unilaterally refer the Assistance and Access Act to the INSLM for inquiry and report by 1 March 2020. This was the first time the Committee used this referral power in its 30 years of operation.
2.119
The Committee tabled a report on the Assistance and Access Act on 3 April 2019. In its report, the Committee acknowledged that its review of the Assistance and Access Bill and the subsequent Act had attracted significant domestic and international stakeholder interest, and had highlighted a range of matters warranting further consideration, particularly relating to Schedule 1 of the Bill.
2.120
The Committee indicated that it intended to consider these matters as part of the detailed review of the Assistance and Access Act to commence by 13 April 2019.
2.121
As expected, the Miscellaneous Amendments Bill lapsed at the conclusion of the 45th Parliament on 11 April 2019.
Current review
2.122
The Committee launched its second, more detailed, review of the Assistance and Access Act on 4 April 2019. Having already expressed its intention to examine matters raised by stakeholders during the preceding reviews of the Assistance and Access Bill and subsequent Act, the Committee sought to further focus its inquiry by resolving to adopt more targeted terms of reference.
2.123
The Committee decided to concentrate its review on the following aspects of the amendments made to Commonwealth legislation by the Assistance and Access Act:
the threshold, scope and proportionality of powers provided for by the Assistance and Access Act;
authorisation processes and decision-making criteria;
the scope of enforcement provisions and the grant of immunities;
interaction with intelligence agencies other powers;
interaction with foreign laws, including the United States’ Clarifying Lawful Overseas Use of Data Act;
impact on industry and competitiveness; and
reporting obligations and oversight measures.
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The Committee opened the submission period prior to its dissolution (along with the 45th Parliament) on 11 April 2019.
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The Committee readopted the inquiry and accepted submissions on 4 July 2019, when it reformed shortly after the opening of the 46th Parliament. Public and classified hearings will be conducted in the coming months as the Committee considers the matters raised in submissions.
Review of the mandatory data retention regime
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The mandatory data retention regime is a legislative framework which requires telecommunications 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 national security investigations.
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The regime was established by the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 which amended Part 5-1A of the Telecommunications (Interception and Access) Act 1979 (TIA Act) to provide for the regime. During the second reading debate for the Act, the then Minister for Communications, the Hon Malcom Turnbull, stated that the regime was critical to maintaining the capabilities of Australia’s law enforcement and national security agencies. He said:
It does not expand the range of telecommunications metadata which is currently being accessed by law enforcement agencies. It simply ensures that metadata is retained for a period of two years.
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Section 187N of the TIA Act requires the Committee to review the mandatory data retention regime prescribed by Part 5-1A of the TIA Act and report to Parliament by 13 April 2020.
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The Committee launched this review on 4 April 2019 and invited stakeholders to make a submission on the following terms of reference by 1 July 2019:
the continued effectiveness of the mandatory data retention scheme, taking into account changes in the use of technology since its introduction;
the appropriateness of the dataset and retention period;
costs, including ongoing costs borne by service providers for compliance with the regime;
any potential improvements to oversight, including in relation to journalist information warrants;
any regulations and determinations made under the regime;
the number of complaints about the scheme to relevant bodies, including the Commonwealth Ombudsman and the IGIS;
security requirements in relation to data stored under the regime, including in relation to data stored offshore;
any access by agencies to retained telecommunications data outside the TIA Act framework, such as under the Telecommunications Act 1997; and
developments in international jurisdictions since the introduction of the scheme.
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The Committee ceased to exist at the dissolution of the 45th Parliament on 11 April 2019.
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The Committee readopted the inquiry and accepted submissions received to date when the Committee reformed shortly after the opening of the 46th Parliament. Public and classified hearings will be conducted in the coming months as the Committee considers the matters raised in these submissions.
Other activities
Referral to the Independent National Security Legislation Monitor
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Section 7A of the Independent National Security Legislation Monitor Act 2010 provides that the Committee may refer to the INSLM for review:
any matter the Committee becomes aware of in the course of performing its functions as prescribed in section 29 of the ISA; and
which it considers should be referred to the INSLM.
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The Committee used this power for the first time on 26 March 2019 when it wrote to the current INSLM, Dr James Renwick CSC SC, to refer the Assistance and Access Act for inquiry and report:
A review of the operation, effectiveness and implications of amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018.
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The Committee invited the INSLM to review whether the Assistance and Access Act contains appropriate safeguards for protecting the rights of individuals, remains proportionate to the threat to national security and remains necessary.
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In announcing the referral, Mr Andrew Hastie, Chair and the Hon Anthony Byrne, Deputy Chair of the Committee stated that:
The Assistance and Access Act seeks to respond to highly technical challenges encountered by Australian intelligence and law enforcement agencies, and the Act has attracted significant domestic and international attention.
In our view, the INSLM provides a valuable, independent perspective on the balance between necessary security measures and the protection of civil liberties. As such, the INSLM is an important and valued component of Australia’s national security architecture.
As an eminent barrister, Dr Renwick brings a wealth of legal expertise to the role of INSLM and has a strong understanding of national security issues and the operation of relevant security agencies. The Committee looks forward to the outcome and any recommendations made by the INSLM in the review and report.
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The Committee also requested that the inquiry be conducted in public as much as possible, and that an unclassified report be provided to the Committee by 1 March 2020.
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The Committee will consider any findings or recommendations made by the INSLM in its own review of the Assistance and Access Act.
Concluding comments
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The Committee is pleased to be celebrating 30 years of operation.
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The Committee’s role and place within the national security architecture has changed considerably since the first Parliamentary Joint Committee on the Australian Security Intelligence Organisation was appointed in 1988 to provide some oversight of ASIO.
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Over the years the Committee’s oversight responsibilities have matured to encompass most of the National Intelligence Community.
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The Committee now examines the administration and expenditure of intelligence agencies annually. These reviews provide an important transparency mechanism; ensuring that agencies remain accountable to the Australian Parliament and providing a measure of public assurance that Commonwealth funds are being used effectively.
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The Committee has also developed substantial responsibilities in refining national security legislation to build bipartisan consensus in the Australian national interest. The Committee’s Bill reviews provide a classified and collaborative space for members from both sides of the House of Representatives chamber to examine draft national security legislation in a detailed manner. Committee members work together to ensure draft legislation strikes the right balance between protecting civil liberties and empowering intelligence and enforcement agencies to keep Australians safe.
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The Committee’s role does not end with the passage of a Bill through Parliament. It also includes the review of legislation after its first few years in operation. In doing so the Committee seeks to ensure Australia’s national security legislation remains effective and proportionate in a rapidly changing world.
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The Committee anticipates further evolution of its role and responsibilities over the coming parliaments as the recommendations of the Independent Intelligence Review and the Richardson Review of the Legal Framework Governing the National Intelligence Community are implemented.
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The Independent Intelligence Review contemplates further expansion of the Committee’s oversight responsibilities; new inquiry referral and self-initiation powers; and a closer working relationship between the Committee, the National Security Legislation Monitor and the Inspector-General of Intelligence and Security. These new responsibilities and powers will cement the importance of the Committee within the national security architecture and set its direction for the next 30 years.
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The Committee looks forward to these developments.
Chair