The year in review
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 typically comprises of 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’s functions are set out at section 29 of the ISA, outlined at Appendix A.
1.4
The Committee is required by section 31 of the ISA to provide the Parliament with a report on its activities over each financial year. This report is made in compliance with this obligation and covers the period from 1 July 2019 to 30 June 2020.
1.5
In addition to exercising its ongoing oversight functions, the Committee reviewed several pieces of legislation during the year, received a number of private briefings and also conducted site inspections. To the extent possible for publication, each of these activities are summarised in further detail below.
Impact of COVID-19 on the Committee
1.6
The Committee faced unprecedented circumstances for the second half of 2019–20, due to the challenges presented by COVID-19. The Committee worked effectively to ensure minimal disruption to its inquiry and ongoing oversight activities by holding private meetings, private briefings and public hearings remotely, wherever possible.
1.7
Notwithstanding the Committee’s proactive engagement with this new environment, there was an overarching impact on inquiry timeframes, including report finalisation and the Committee’s ability to conduct inquiries and ongoing oversight activities that included classified materials. The Committee actively engaged with the relevant government agencies to seek solutions to access classified materials and receive oral briefings containing classified information in appropriately secure environments outside of their parliament house offices.
Overview of activities
1.8
Between 1 July 2019 and 30 June 2020, the Committee held 55 meetings and briefings.
1.9
The Committee undertook 15 inquiries and tabled seven reports (including the publication of an annual report) during the reporting period. A summary of the Committees inquiries and activities is provided below in the following chapters.
1.10
The Committee completed the following reviews:
Review of Administration and Expenditure No. 17 (2017–2018) of the six agencies comprising of the Australian Intelligence Community (AIC) , pursuant to section 29(1)(a) of the ISA;
Inquiries into two Bills referred by the Australian Government and one Act, pursuant to section 29(1)(b); and
Reviews of the listing of one terrorist organisation and the re-listing of ten terrorist organisations pursuant to section 102.1A of the Criminal Code Act 1995 (Criminal Code).
1.11
A full list of the reports tabled by the Committee during the 2019–2020 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
1.12
The ISA requires the Committee to review the administration and expenditure of the six agencies which comprise the AIC:
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).
1.13
In exercising this function, the Committee conducts its reviews on an annual basis.
1.14
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.
1.15
The Committee also may considers matters that impact on the administration of agencies, such as:
Legislative changes and litigation;
Strategic direction and organisational structure;
Human resource management;
Public accountability and public relations.
Review of Administration and Expenditure No. 17 (2017–2018)
1.16
On 18 October 2018, the Committee commenced its 17th review of intelligence agencies’ administration and expenditure, concerning the 2017–2018 financial year.
1.17
Submissions were sought and received from the six intelligence agencies, the Inspector-General of Intelligence and Security (IGIS), the Department of Defence and the Australian National Audit Office (ANAO). The Committee responded to these submissions with a series of written questions which were comprehensively answered by agencies. Detailed classified responses were received from each agency and accepted by the Committee as classified submissions.
1.18
On 11 April 2019, the review lapsed with the dissolution of the 45th Parliament for a general election. The review was readopted on 16 July 2019 after the Committee reconstituted at the commencement of the 46th Parliament.
1.19
A private classified hearing was held in September 2019 with representatives of the six intelligence agencies, the Department of Defence and the IGIS.
1.20
The Committee noted a number of significant changes affecting the administration of the AIC agencies took place during the reporting period, including recommendations from the 2017 Independent Intelligence Review. Further, the Home Affairs portfolio was also established during the reporting period. Under these arrangements, ASIO moved from the Attorney-General’s portfolio to the Home Affairs portfolio. The Attorney-General maintained an oversight role, including as the issuer of ASIO warrants. Portfolio responsibility for the IGIS and the Independent National Security Legislation Monitor (INSLM) was moved from the Prime Minister to the Attorney-General.
1.21
The Committee presented its paper to Parliament on 5 February 2020.The Committee was satisfied that the agencies were overseeing their administrative functions effectively. The Committee noted that adequate accommodation presents a challenge for several agencies. The Committee however, was satisfied that work is underway to address these issues.
1.22
The Committee recommended the Government support training and development programs across the national intelligence community as the broader recommendations of the 2017 Independent Intelligence Review are implemented. The Committee recommended ONI, with its expanded, enterprise-wide remit would be well placed to oversee such programs.
1.23
The Committee has been monitoring the application of the efficiency dividend on the AIC since 2010 and has consistently raised concerns on its effect. The Committee welcomed the decision in the Federal Budget (2015-2016) to exempt the Office of National Assessments (now ONI) and the Office of the IGIS from the efficiency dividend for the next four years. The Committee noted that that this should also be applied to ASIO and ASIS. The Committee recommended that ASIO, ASIS and ONI should be exempt from the efficiency dividend.
Review of Administration and Expenditure No. 18 (2018–2019)
1.24
On 5 December 2019, the Committee launched its 18th review of intelligence agencies’ administration and expenditure, during the 2018–2019 financial year.
1.25
Submissions were sought and received from the six intelligence agencies, IGIS, the Department of Defence and the ANAO.
1.26
Due to a number of circumstances, in particular those presented by COVID-19, the Committee was only able to conduct private (classified) hearings with a very limited number of submitters.
1.27
The Committee considered the impact of these circumstances on the timeframe for review activities, including reporting. Consequently, the Committee will move forward by exploring in further detail any matters it may have identified through the evidence received from this review, as part of its next administration and expenditure review for 2019–20.
Review of listings of terrorist organisations under the Criminal Code
1.28
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).
1.29
Regulations re-listing the following terrorist organisations under the Criminal Code were made by the Minister for Home Affairs on 4 April 2019:
al-Qa’ida in the Lands of the Islamic Maghreb;
Jabhat Fatah al-Sham; and
1.30
A regulation listing Islamic State-Somalia as a terrorist organisation was made by the Minister for Home Affairs on the same day.
1.31
The Committee reviewed and supported the re-listings and new listing and found no reason to disallow the legislative instruments. The Committee presented its report to Parliament on 10 September 2019.
1.32
Regulations re-listing the following terrorist organisations under the Criminal Code were made by the Minister for Home Affairs on 31 October 2019:
al-Qa’ida in the Arabian Peninsula;
al-Qa’ida in the Indian Subcontinent;
Islamic State in Libya; and
Islamic State Sinai Province.
1.33
The Committee reviewed and supported the re-listings, finding no reason to disallow the legislative instruments. The Committee tabled a report by statement to the Parliament on 5 February 2020.
Review of ‘Declared Terrorist Organisations’ under the Citizenship Act
1.34
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.
1.35
Subsection 35AA(4) provides that, once a declaration of a terrorist organisation is made by the Minister, the Committee may review the declaration and report the Committee’s comments and recommendations to each House of the Parliament during the applicable disallowance period (15 sitting days).
1.36
No declarations under section 35AA(1) 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
1.37
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).
1.38
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.
1.39
The Criminal Code provides that the Committee may review the Foreign Affairs Minister’s 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.
1.40
As per the previous Annual Report, 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.
1.41
In August 2019, the Minister for Foreign Affairs advised the Committee that the declaration of the Mosul District was being examined and requested that the further review be deferred until the conclusion of the Government examination process.
1.42
In December of that same year, the Minister for Foreign Affairs advised the committee that the declaration of the Mosul District had been revoked. As at 30 June 2020, there are no ‘declared areas’ under the Criminal Code.
Oversight of AFP Counter-Terrorism and Stop, Search and Seizure Activities
1.43
Part 5.3 of the Criminal Code contains the Commonwealth terrorism offences, the control order regime, the preventative detention order regime and the continuing detention order regime.
1.44
Division 3A of Part IAA of the Crimes Act 1914 (Crimes Act) provides for stop, search and seizure powers available to the Australian Federal Police (AFP) in relation to terrorism offences.
1.45
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. 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.
AFP Counter-Terrorism and Stop, Search and Seizure Activities – 1 June 2019 to 31 May 2020
1.46
The AFP provided details of activities undertaken from 1 June 2019 to 31 May 2020 in relation to Part 5.3 of the Criminal Code and Part IAA of the Crimes Act. 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
1.47
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.
1.48
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.
1.49
During the reporting period, ASIO provided the Committee with a copy of Appendix L of its classified Annual Report for 2018–2019, relating to ASIO’s authorisations for retained and prospective telecommunications data. The Committee continuing to review the retained data activities of ASIO as part of its review of Administration and Expenditure No. 18 & 19. The Committee did not consider it necessary to conduct a more detailed inquiry in relation to ASIO’s retained data activities over the reporting period.
1.50
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 2019–2020 (produced by the Department of Home Affairs).The Committee held 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.
Bill inquiries
1.51
The Committee completed reviews of three Bills that were referred to it during the period under review:
Identity-Matching Services Bill 2019;
Australian Passports Amendment (Identity-Matching Services) Bill 2019; and
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019.
1.52
At the conclusion of the reporting period, the Committee had commenced inquiries into a further three Bills:
Australian Security Intelligence Organisation Amendment Bill 2020;
Telecommunications Legislation Amendment (International Production Orders) Bill 2020; and
Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019.
1.53
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.
Identity-Matching Services Bill 2019 and Australian Passports Amendment (Identity-Matching Services) Bill 2019
1.54
On 31 July 2019, the Hon David Coleman MP, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, introduced the Identity-Matching Services Bill 2019 (IMS Bill) and the Australian Passports Amendment (Identity-Matching Services) Bill 2019 (Passports Amendments Bill) into the House of Representatives.
1.55
In his second reading speech, the Minister noted that the IMS Bill would make life easier for the “everyday Australian”. Further, with regard to the Passports Amendments Bill, the Minister stated that sharing of the passport data would be for the purposes of national security.
1.56
On 31 July 2019, the Attorney-General, the Hon Christian Porter MP, wrote to the Committee to refer the provisions of both Bills for inquiry. On 8 August 2019, the Hon Peter Dutton MP, Minister for Home Affairs, wrote to the Committee and requested that, as far as possible, the Committee conduct its inquiry in public.
1.57
The Committee reviewed this legislation together and tabled a report on the bills on 24 October 2019. The Committee recommended that the IMS Bill be re-drafted to take into account the findings from the review. The Committee also recommended that the Passport Amendments Bill be amended to ensure that automated decision making can only be used for decisions that produce favourable or neutral outcomes for the subject, and that such decisions would not negatively affect a person’s legal rights or obligations, and would not generate a reason to seek review. Further, the Committee recommended that both Bills should be referred back to the Committee following their introduction to the Parliament.
Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Bill 2019
1.58
The Counter Terrorism Legislation Amendment (2019 Measures No.1) Bill 2019 (Counter Terrorism Amendment Bill) was introduced into the Senate by Senator the Hon Jonathon Duniam, Assistant Minister for Forestry and Fisheries and Assistant Minister for Regional Tourism, on 1 August 2019.
1.59
In his second reading speech, the Assistant Minister said,
The Counter-Terrorism Legislation Amendment Bill 2019 continues the important work of protecting our community. It will ensure that there is a presumption against bail and parole for all terrorists and their supporters. It will also make two changes to improve the operation of the continuing detention order scheme for high-risk terrorist offenders.
1.60
On 1 August 2019 the Attorney-General referred the Bill to the Committee for inquiry and report.
1.61
The Committee tabled its report on the Bill on 14 October 2019. The Committee recommended that the Bill and the Explanatory Memorandum be amended so that, in respect of any application for a continuing detention order, the onus is on the AFP Minister to satisfy the Court that any exculpatory information that is excluded from an application is protected by public interest immunity.
1.62
Further, the Committee recommended that, following the implementation of the above recommendation, the Counter Terrorism Amendment Bill be passed.
1.63
The Bill included the Committee’s recommendation and the Bill received royal assent on 11 December 2019.
Review of the Australian Citizenship Amendment (Citizenship Cessation) Bill 2019
1.64
The Australian Citizenship Amendment (Citizenship Cessation) Bill 2019 (Citizenship Cessation Bill) was introduced into the House of Representatives by the Hon Peter Dutton MP, Minister for Home Affairs on 19 September 2019.
1.65
On that same day, the Hon Peter Dutton MP, Minister for Home Affairs, wrote to the Committee to refer the provisions of this Bill to the Committee for inquiry and report.
1.66
In addition the Minister referred to the INSLM’s Report to the Attorney-General: Review of the operation, effectiveness and implications of terrorism-related citizenship loss provisions in the Australian Citizenship Act 2007 stating that the Bill ‘implements the majority of the recommendations made by the INSLM.’
1.67
The Committee’s review of the Citizenship Cessation Bill was ongoing as of 30 June 2020.
Australian Security Intelligence Organisation Amendment Bill 2020
1.68
The Australian Security Intelligence Organisation Amendment Bill 2020 (ASIO Bill) was introduced into the House of Representative by the Hon Peter Dutton MP, Minister for Home Affairs on 13 May 2020.
1.69
On that same day, the Hon Peter Dutton MP, Minister for Home Affairs, wrote to the Committee to refer the provisions of this Bill to the Committee for inquiry and report.
1.70
The Committee’s review of this Bill was ongoing as of 30 June 2020.
Telecommunications Legislation Amendment (International Production Orders) Bill 2020
1.71
The Telecommunications Legislation Amendment (International Production Orders) Bill 2020 (IPO Bill) was introduced into the House of Representatives by the Hon Alan Tudge MP, Minister for Population, Cities and Urban Infrastructure on 5 March 2020.
1.72
On 9 March 2020 the Hon Peter Dutton MP, Minister for Home Affairs, wrote to the Committee to refer the provisions of this Bill to the Committee for inquiry and report.
1.73
The Committee’s review of this Bill was ongoing as of 30 June 2020.
Statutory Reviews
Review of the renunciation by conduct and cessation provisions in the Australian Citizenship Act 2007
1.74
Section 29 of the ISA requires the Committee, by 1 December 2019, to review the operation, effectiveness and implications of sections 33AA, 35, 35AA and 35A of the Citizenship Act.
1.75
The Committee of the 45th Parliament formerly adopted the review and called for submissions on 4 April 2019. The Committee resolved to focus on the operation, effectiveness and implications of the Act.
1.76
Additionally, the Committee resolved to examine whether the current oversight and reporting requirements are appropriate.
1.77
Following the Australian Federal election on 18 May 2019, the Committee of the 46th Parliament again formerly adopted the review and accepted 21 submissions and nine supplementary submissions to the review.
1.78
The Committee tabled its report on the Bill on 4 December 2019 and made the following comments;
Operation of the Act: the Committee noted that the current terrorism-related citizenship loss provisions included in the Citizenship Act were as a response to the threat that foreign terrorist fighters presented to Australia and its interests. Many submitters, Government and non-Government alike, raised concerns about the ‘automatic’ nature of the provisions. The Committee shared those concerns and noted that, as the conduct provisions stand, the Minister’s role is effectively limited to restoring a person’s citizenship after it has been lost or exempting a person from the effect of those provisions.
The Effectiveness of the Act: The Committee acknowledged the concerns raised by submitters around the unintended consequences of these provisions. The Committee also noted the evidence from ASIO that it is:
too early to determine any direct deterrent effects or other security outcomes among the individuals whose citizenship has ceased pursuant to sections 33AA and 35.
The Committee accepted that citizenship cessation may be a useful counter-terrorism tool in some circumstances. However, the Committee also accepted that the use of such a tool may have unintended consequences and so must be subjected to limitations and safeguards, and be regularly reviewed.
The Implications of the Act: The Committee’s view is that the current ‘operation of law’ model, whereby a dual-national’s Australian citizenship is automatically renounced through their actions, should be replaced by a ministerial decision-making model. Such a model would allow the Minister to take into account a broader range of considerations in determining whether to cease an individual’s citizenship and may resolve a number of the issues with the operation of law model discussed in this chapter. The Committee noted that the Government has proposed a Ministerial decision-making model in the Citizenship Cessation Bill.
In respect of the notification and reporting requirements under section 51C of the Citizenship Act, the Committee believed that further information should be provided to it, especially information contained in ASIO’s Qualified Security Assessments (QSA). Going forward the Committee expected that, subject to particular sensitivities which ASIO can negotiate with the Committee, QSAs will be provided to the Committee (at least when it receives an oral briefing on people who have lost their citizenship).
Review of the amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018
1.79
The Committee is required under the ISA to review amendments made to Commonwealth legislation by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (the Assistance and Access Act) and to complete its review by 30 September 2020.
1.80
The Assistance and Access Act amended a range of Commonwealth legislation to empower law enforcement and national security agencies to request, or compel assistance from telecommunications providers. It also established powers which enable law enforcement and intelligence agencies to obtain warrants to access data and devices, and amended the search warrant framework under the Crimes Act and the Customs Act 1901 to expand the ability of criminal law enforcement agencies to collect evidence from electronic devices.
1.81
This review will build on the findings of a review conducted by the INSLM and two previous Committee reviews.
1.82
On 26 March 2019, the Committee requested that the INSLM commence a review of operation, effectiveness and implementation of amendments made by Assistance and Access Act 2018 focussed on the whether the Act:
contains appropriate safeguards for protecting the rights of individuals;
remains proportionate to any threat of terrorism or threat to national security, or both; and
1.83
As requested, the INSLM report ‘Trust but Verify’—A report concerning the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 and related matters was provided to the Committee by 30 June 2020 and will be published on the Committee website at a later date
1.84
Dr Renwick’s term as the INSLM concluded on Tuesday 30 June 2020. As of 30 June 2020, the Government had not yet announced Dr Renwick’s successor nor did the Committee have any outstanding referrals with the INSLM.
1.85
The Committee’s review was ongoing as of 30 June 2020.
Review of the mandatory data retention regime
1.86
The Committee is required by the ISA to review the mandatory data retention regime, Part 5-1A of the TIA Act, by 13 April 2020.
1.87
The mandatory data retention regime is a legislative framework which requires carriers, carriage service providers and internet service providers to retain a defined set of telecommunications data for two years, ensuring that such data remains available for law enforcement and national security investigations.
1.88
Public hearings were held in Canberra in February 2020.
1.89
On 15 April 2020, the Committee provided a media release that the review had been completed. As of 30 June 2020, report finalisation was underway.
Review of declared areas provisions
1.90
On 18 June 2020, the Committee commenced a statutory review into the ‘declared area’ provisions, listed in sections 119.2 and 119.3 of the Criminal Code.
1.91
The provisions were introduced as part of the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, and make it an offence for a person to enter, or remain in, declared areas of a foreign country, historically on the basis of regional terrorism activity.
1.92
Under a sunset clause, the provisions are due to expire on 7 September 2021.
1.93
The Committee’s review was ongoing as of 30 June 2020.
Review of AFP powers
1.94
On 18 June 2020, the Committee commenced a statutory review into AFP Counter-Terrorism Powers.
1.95
Under section 29(1)(bb)(i)(ii) and (ii) of the ISA, it is a function of the PJCIS to review, by 7 January 2021, the operation, effectiveness and implications of:
Division 3A of Part IAA of the Crimes Act (which provides for police powers in relation to terrorism) and any other provision of the Crimes Act as it relates to that Division; and
Divisions 104 and 105 of the Criminal Code (which provide for control orders and preventative detention orders in relation to terrorism) and any other provision of the Criminal Code as it relates to those Divisions.
1.96
The Committee one inquiry covering both of these review activities and was ongoing as of 30 June 2020.
Other Activities of the Committee
Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press
1.97
On 4 July 2019, the Committee commenced an inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press. The inquiry was referred by the Attorney-General, The Hon Christian Porter MP, who noted that the Government would consider proposals from media organisations and interested bodies which aim to ensure the right balance is struck between a free press and keeping Australians safe.
1.98
The Committee was requested to inquire and report back to both Houses of Parliament on the following matters:
The experiences of journalists and media organisations that have, or could become, subject to the powers of law enforcement or intelligence agencies performing their functions, and the impact of the exercise of those powers on journalists' work, including informing the public.
The reasons for which journalists and media organisations have, or could become, subject to those powers in the performance of the functions of law enforcement or intelligence agencies.
Whether any and if so, what changes could be made to procedures and thresholds for the exercise of those powers in relation to journalists and media organisations to better balance the need for press freedom with the need for law enforcement and intelligence agencies to investigate serious offending and obtain intelligence on security threats.
Without limiting the other matters that the Committee may consider, two issues for specific inquiry are:
Whether and in what circumstances there could be contested hearings in relation to warrants authorising investigative action in relation to journalists and media organisations.
The appropriateness of current thresholds for law enforcement and intelligence agencies to access electronic data on devices used by journalists and media organisations.
1.99
The Committee held hearings in August and September of 2019 and received 61 submissions.
1.100
As notified in the media release of 13 December 2019, due to the tendering of late submissions, further deliberations were required by the Committee and report finalisation was ongoing as of 30 June 2020.
Notifications
1.101
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
1.102
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
1.103
The Committee conducted site visits around Australia as part of its review, oversight and briefing activities
Future of the Committee
Independent Intelligence Review
1.104
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 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.
1.105
A subsequent media release by then Prime Minister the Hon Malcolm Turnbull MP on 18 July 2017 accepted the recommendations on the review.
1.106
Shortly after the Australian Parliament passed legislation enacting a number of recommendations made by L’Estrange and Merchant.
1.107
As of 30 June 2020, the Government was yet to introduce legislation to enact the recommendations made by the review which could change the oversight role and powers of the Committee on the NIC.
Comprehensive review of the legal framework governing the National Intelligence Community
1.108
On 30 May 2018, the Government launched a review into the legal framework which governs the NIC, which was headed by Mr Dennis Richardson AO (the Richardson Review).
1.109
The Richardson Review’s terms of reference included 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’.
1.110
Mr Richardson completed his review provided a classified report and an unclassified report to the Government. The outcomes of this review may impact the future activities of the Committee.
Mr Andrew Hastie MP
Chair
September 2020