Introduction
1.1
The Parliamentary Joint Committee on Intelligence and Security (the Committee) is established pursuant to section 28 of the Intelligence Services Act 2001 (ISA).
1.2
The Committee comprises eleven members, five of whom must be Senators and six of whom must be members of the House of Representatives. A majority of the Committee’s members must be Government members.
1.3
The Committee is required by section 31 of the ISA to provide the Parliament with a report on its activities each financial year. This report is made in compliance with this obligation and covers the period from 1 July 2018 to 30 June 2019.
1.4
In 2018, the Committee celebrated 30 years of operation. The Committee’s role and place within the national security architecture has changed considerably within that time.
1.5
Chapter 1 provides an overview of that history, notes the present day structure and functions of the Committee, and notes two reviews likely to impact the future responsibilities and operation of the Committee.
1.6
Chapter 2 outlines the Committee’s oversight of the Australian Intelligence Community and its review of national security measures passed by Parliament during the 2018-2019 financial year. It concludes with Committee comments reflecting on the ongoing role of the Committee.
History of the Committee
Early oversight of the Australian Intelligence Community
1.7
Oversight of the Australian Intelligence Community (AIC) has evolved considerably overtime. Up until 1988, Australia’s intelligence and security agencies carried on their activities in considerable secrecy, accountable only to Ministers, who were in turn accountable to the Parliament. The Australian public was largely unaware of the existence of Australian intelligence agencies and had a limited understanding of their responsibilities.
1.8
This began to change from 1977 with the conclusion of the Royal Commission on Intelligence and Security led by Justice Robert Marsden Hope (Hope Royal Commission) which examined the Australian Security Intelligence Organisation (ASIO), the Joint Intelligence Organisation (JIO), the Defence Signals Division (DSD) and the Australian Secret Intelligence Service (ASIS).
1.9
The Fraser Government moved quickly to implement many of Hope’s recommendations. The Office of National Assessments (which has since been renamed the Office of National Intelligence) was established in 1977 within the Prime Minister’s portfolio. Prime Minister Fraser officially acknowledged the existence of ASIS in 1977 and DSD was raised to the status of a directorate in 1978. Auditing arrangements for the agencies were improved and a Permanent Heads committee and a Cabinet committee to coordinate and oversee agencies’ work was established. This was followed by the establishment of the office of Inspector-General of Intelligence and Security in 1987 and a new Parliamentary Joint Committee on the Australian Security Intelligence Organisation in 1988.
The Parliamentary Joint Committee on ASIO (1988 to 2001)
1.10
The Parliamentary Joint Committee on the Australian Security Intelligence Organisation (the ASIO Committee) was first appointed on 31 August 1988, during the 35th Parliament.
1.11
The ASIO Committee had its legislative basis in the Australian Security Intelligence Organisation Act 1979, which was amended in December 1986 following the then Government’s response to the Hope Royal Commission.
1.12
Although Justice Hope had recommended against the establishment of such a parliamentary oversight Committee—instead recommending the appointment of an Inspector-General of Intelligence and Security (IGIS) and existing internal scrutiny measures within the Government—the Government argued that:
... further improvement [to existing oversight and accountability measures] can be obtained by directly involving the Parliament—on both sides and in both Houses—in imposing the discipline of an external scrutiny of the intelligence and security agencies quite independent of the Executive. While the Government has been conscious also of the need to carefully protect intelligence and security information, it believes that appropriate arrangements can be made to ensure that a small but informed parliamentary committee would operate effectively in the public interest.
1.13
From its establishment up until the passage of the ISA, the ASIO Committee was dependent on the Minister or a House of the Parliament referring particular matters to it for inquiry. In the 35th Parliament, the ASIO Committee commenced, but did not complete, an inquiry into the effect on ASIO of the access provisions of the Archives Act. The inquiry was prompted, in part, by a submission ASIO made to the Royal Commission on Australia’s Security and Intelligence Agencies which suggested that ASIO’s ‘capacity to function effectively would be diminished as a result of the public right of access to its records under the Archives Act’.
1.14
The second ASIO Committee was appointed in the 36th Parliament and completed the inquiry into the operation of the access provisions of the Archives Act with the tabling of a report in April 1992. It made 14 recommendations aimed at addressing the issues ASIO had raised in its submission. The Committee also commenced, but did not complete, an inquiry into ASIO’s security assessment procedures.
1.15
In the 37th Parliament, the Committee completed the inquiry into ASIO’s security assessment procedures with the tabling of a report in March 1994. The Committee also began an inquiry into cost recovery practices and ASIO. The inquiry lapsed upon the dissolution of the 37th Parliament.
1.16
When the ASIO Committee was reconstituted in the 38th Parliament it resolved to take a new approach to its activities. Instead of conducting inquiries, the Committee developed further the practice adopted in earlier Parliaments of seeking regular, informal briefings from the Director-General of ASIO and the IGIS. During the 38th Parliament the Committee received briefings on various subjects, including security precautions and counter-terrorism arrangements being planned in preparation for the Sydney 2000 Olympics; ASIO’s role in monitoring the national security implications of the crisis in the Persian Gulf; corporate restructuring in ASIO; ASIO's data collection and retention safeguards, and procedures for accessing archived ASIO material; and proposed amendments to the ASIO Act.
1.17
In the 39th Parliament, the ASIO Committee conducted a review of the Australian Security Intelligence Organisation Legislation Amendment Bill 1999, followed by an inquiry into the nature, scope and appropriateness of ASIO’s public reporting activities. The members of the ASIO Committee in the 39th Parliament also served on the Joint Select Committee on the Intelligence Services that reviewed the Intelligence Services Bill 2001, which received Royal Assent on 1 October 2001.
Parliamentary Joint Committee on ASIO, ASIS and DSD (PJCAAD) (2002–2005)
1.18
Following the passage of the ISA, the former ASIO Committee was replaced by the Parliamentary Joint Committee on ASIO, ASIS and DSD (PJCAAD). The legislative basis of the Committee was now in the ISA and the PJCAAD met for the first time on 21 March 2002, at the beginning of the 40th Parliament.
1.19
The ISA extended the Committee’s oversight to the Australian Secret Intelligence Service (ASIS) and the Defence Signals Directorate (DSD, which has since been renamed the Australian Signals Directorate), in addition to its existing oversight of ASIO. The ISA also tasked the Committee with conducting reviews of the administration and expenditure of the three agencies–for which there would be no need for a reference from a Minister or a House of the Parliament–and with presenting an Annual Report of its activities.
1.20
The PJCAAD’s first report was an Advisory Report on the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002. The Committee then tabled its Annual Report for 2001-2002, which incorporated the Committee’s first review of administration and expenditure of the three intelligence agencies. Other inquiries completed during the 40th Parliament included a private review of agency security arrangements, an inquiry into intelligence on Iraq’s Weapons of Mass Destruction and a review of the Intelligence Services Amendment Bill 2003.
1.21
In March 2004, a provision was inserted into Part 5.3 of the Criminal Code Act 1995 enabling the PJCAAD to review any regulation proscribing a ‘terrorist organisation’, as soon as possible after the making of the regulation, and to report the Committee’s comments and recommendations to Parliament before the end of the applicable disallowance period–a period of 15 sitting days. The Committee’s first report using these powers was tabled in June 2004, being a review of the listing of the Palestinian Islamic Jihad as a terrorist organisation. The Committee was also required to review, as soon as possible after the third anniversary of the Act’s commencement, the operation, effectiveness and implications of the legislation for the proscription of terrorist organisations.
1.22
The PJCAAD reviewed the listings of a number of terrorist organisations during the 41st Parliament and conducted annual reviews of the administration and expenditure of ASIO, ASIS and DSD (since renamed ASD). The Committee also conducted a review of ASIO’s questioning and detention powers, as mandated under the ISA; and reviewed the Intelligence Services Legislation Amendment Bill 2005, which, among other changes, extended the Committee’s oversight mandate to include three additional intelligence agencies.
Parliamentary Joint Committee on Intelligence and Security (2005 to present)
1.23
On 2 December 2005, following the passage of the Intelligence Services Legislation Amendment Act 2005, the Committee was re-established as the Parliamentary Joint Committee on Intelligence and Security (PJCIS).
1.24
The Committee now included the Defence Imagery and Geospatial Organisation (DIGO, since renamed Australian Geospatial-Intelligence Organisation), the Defence Intelligence Organisation (DIO) and the Office of National Assessments (since renamed the Office of National Intelligence) in its oversight role, in addition to ASIO, ASIS and ASD. This change was in response to recommendations of the Inquiry into Australian Intelligence Agencies by Mr Philip Flood AO (the ‘Flood Inquiry’). Mr Flood found:
Effective oversight and accountability of intelligence agencies is critically important for a healthy democracy. The more relevant intelligence becomes to government, the greater the need and public demand for strong and transparent oversight and accountability. To the greatest extent possible, these mechanisms should be similar to those of other government agencies. In particular, greater parliamentary scrutiny is necessary to enhance public confidence in Australia’s intelligence agencies. Because security issues will preclude full parliamentary scrutiny of the operations and output of the intelligence agencies, the role of the Parliamentary Joint Committee on ASIO, ASIS and DSD, extended to cover all agencies, should be supplemented by periodic review.
1.25
During the remainder of the 41st Parliament, the PJCIS reviewed four pieces of terrorism-related legislation, as mandated under the ISA, informed by input from an independent Security Legislation Review Committee chaired by the Hon Simon Sheller AO QC (the ‘Sheller Committee’). Amongst other recommendations coming out of its review, the PJCIS recommended the appointment of an Independent Reviewer of terrorism law in Australia. This recommendation was accepted by the Government and implemented through the appointment of the first Independent National Security Legislation Monitor (INSLM) in 2011. As required under the ISA, the PJCIS also conducted an inquiry during the 41st Parliament into the proscription of terrorist organisations under the Criminal Code.
1.26
During the 42nd and 43rd Parliaments, the PJCIS continued to review terrorist organisation listings (and re-listings), conduct annual reviews of the administration and expenditure of the six agencies under its remit, receive private briefings, conduct site inspections and produce annual reports of its activities. In the 43rd Parliament, the Committee additionally conducted an inquiry into a wide range of ‘potential reforms’ to Australia’s national security legislation referred by the Attorney-General, including possible reform in the following three areas:
the interception of communications and access to data under the Telecommunication (Interception and Access) Act 1979;
the telecommunications security aspects of the Telecommunications Act 1997 and other relevant legislation; and
the Australian Security Intelligence Organisation Act 1979 and the Intelligence Services Act 2001.
1.27
The Australian Government supported all of the Committee’s 19 recommendations, in full, in part or in principle.
1.28
The PJCIS’s work during the 44th Parliament was characterised by reviews of a series of significant pieces of national security legislation, which included implementation of many of the proposals reviewed in the Committee’s earlier inquiry into ‘potential reforms’. Bills reviewed by the Committee included:
the National Security Legislation Amendment Bill (No.1) 2014;
the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014;
the Counter-Terrorism Legislation Amendment Bill (No.1) 2014;
the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014;
the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015; and
the Counter-Terrorism Legislation Amendment Bill (No.1) 2015.
1.29
The PJCIS’s own role and functions were expanded as a result of recommendations made during these Bill inquiries being adopted. New responsibilities included:
reviewing proscriptions under the Criminal Code of ‘declared areas’ in overseas countries;
monitoring and reviewing the performance of the Australian Federal Police’s (AFP) counter-terrorism functions under Part 5.3 of the Criminal Code;
reviewing any matters in relation to the retained data activities of the AFP and ASIO set out in their annual reports on the mandatory data retention regime, including (for the first time) reviewing particular operations;
reviewing any Bills in relation to the mandatory data retention regime that:
amend the data set required to be retained;
amend the organisations required to retain data; or
amend the organisations authorised to access retained data;
being notified of certain declarations made in relation to the data retention regime and any Journalist Information Warrants that are issued;
being provided with any reports produced by the IGIS or the Commonwealth Ombudsman in relation to data retention;
being notified by the IGIS of any emergency ministerial authorisations given to intelligence agencies under the ISA;
reviewing the declaration of any terrorist organisation for the purposes of section 35AA of the Australian Citizenship Act 2007; and
being notified of, and briefed on, instances where a person’s citizenship is lost under sections 33AA, 35 or 35A of the Australian Citizenship Act 2007.
1.30
The Committee continued to review national security legislation throughout the 45th Parliament and supported the passage of bills which reconfigured the Australian Intelligence Community, modernised the storage and access of telecommunications data and introduced a national register for persons acting on behalf of foreign principals, including:
the Telecommunications and Other Legislation Amendment Bill 2016 (also known as the Telecommunications Sector Security Reforms):
the Security of Critical Infrastructure Bill 2017;
the Home Affairs and Integrity Agencies Legislation Amendment Bill 2017;
the Counter-Terrorism Legislation Amendment Bill (No.1) 2018;
the National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017;
the Foreign Influence Transparency Scheme Bill 2017;
the Office of National Intelligence Bill 2018;
the Office of National Intelligence (Consequential and Transitional) Bill 2018; and
the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018.
1.31
The Committee also completed statutory reviews of existing legislation in relation to ASIO’s questioning and detention powers; police stop, search and seizure powers; the control order regime; the preventative detention order regime; and the Criminal Code ‘declared area’ provisions.
1.32
The adoption of recommendations made by PJCIS during these reviews further expanded the Committee’s role and functions to include additional responsibilities, such as:
being notified of the making of any preventative detention orders or prohibited contact orders under Division 105 of the Criminal Code;
reviewing any changes to rules relating to the authorisation of the Secretary of the Attorney-General’s Department to communicate information about the Foreign Influence Transparency Scheme;
reviewing and reporting to Parliament on any area ‘declared’ under section 119.3 of the Criminal Code at any time prior to the declaration’s revocation or cessation; and
monitoring and reviewing the performance of the AFP’s stop, search and seizure powers under Division 3A of Part IAA of the Crimes Act 1914, and the basis of any Ministerial declaration of a ‘proscribed security zone’ under the provisions.
1.33
The PJCIS concluded the 45th Parliament by exercising its powers under Section 7A of the Independent National Security Legislation Monitor Act 2010, to refer a matter for inquiry and report to the Independent National Security Legislation Monitor (INSLM). The Committee’s referral of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 to the INSLM in March 2019 was the first such referral in the Committee’s history.
1.34
The Committee’s general functions are set out in section 29 of the ISA, outlined at Appendix A.
Future of the Committee
Independent Intelligence Review
1.35
In 2017, the Independent Intelligence Review conducted by Mr Michael L’Estrange AO and Mr Stephen Merchant PSM made several recommendations regarding the future of the Committee. These included amendments to legislation to:
expand the Committee’s oversight role to apply to all ten agencies of the National Intelligence Community (NIC), with oversight of the AFP, the Department of Immigration and Border Protection, and the Australian Criminal Intelligence Commission limited to their intelligence functions;
enable the Committee to request the IGIS to conduct an inquiry into the legality and propriety of particular operational activities of the NIC agencies, and to provide a report to the Committee, Prime Minister and the responsible Minister;
allow the Committee to initiate its own inquiries into the administration and expenditure of the ten intelligence agencies of the NIC as well as proposed or existing provisions in counter-terrorism and national security law, and to review all such expiring legislation;
enable the Committee to request a briefing from the Independent National Security Legislation Monitor (INSLM), to ask the INSLM to provide the Committee with the outcome of their inquiries into existing legislation at the same time as the INSLM provides such reports to the responsible Minister; and
require the Committee to be regularly briefed by the Director-General of ONI, and separately by the IGIS.
1.36
On18 July 2017, the then Prime Minister the Hon Malcom Turnbull MP, issued a joint media release responding to the review:
…the Government believes that the evolving and complex threats to Australia’s security require more enduring and better integrated intelligence and domestic security arrangements.
We have accepted the recommendations of the Australian Intelligence Community review as a sound basis to reform Australia’s intelligence arrangements.
1.37
Shortly thereafter, the Australian Parliament passed legislation establishing a Home Affairs portfolio encompassing immigration, border protection and domestic security and law enforcement agencies.
1.38
It also passed legislation creating an Office of National Intelligence, headed by a Director of National Intelligence, and transforming the Australian Signals Directorate into a statutory agency incorporating the Australian Cyber Security Centre within the Defence portfolio.
1.39
The Australian Government is yet to introduce legislation to give effect to the recommendations of the review primarily directed at the Committee. The Committee’s oversight role has not been expanded, it does not have a broad authority to self-initiate inquiries, and it cannot invite the IGIS to conduct inquiries or request the INSLM to provide a briefing on the outcome of an inquiry before a report has been released by the Minister.
Comprehensive review of the legal framework governing the National Intelligence Community
1.40
The future responsibilities and operation of the Committee may also be altered depending on the outcome of the review of the legal framework governing the NIC currently being conducted by Mr Dennis Richardson AO (the Richardson Review).
1.41
The Richardson Review’s terms of reference include examining improvements that could be made to ensure the legislative framework for the NIC ‘provides for accountability and oversight that is transparent and as consistent across the NIC agencies as is practicably feasible’. The review is expected to conclude in the late 2019.