1.1
The Parliamentary Joint Committee on Intelligence and Security (PJCIS) is established pursuant to section 28 of the Intelligence Services Act 2001 (IS Act). The functions of the Committee are prescribed by section 29 of the IS Act, which is set out in Appendix A.
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 under section 31 of the IS Act to provide the Parliament with a report on its activities over each financial year. This report covers the period 1 July 2021 to 30 June 2022.
The year in review
1.4
Changes to membership of the PJCIS over the review period included the resignation from the Committee of the Hon Anthony Byrne, effective 14 October 2021, and Mr Tim Wilson MP, who departed the Committee on 8 October 2021 upon being promoted to the Ministry. Following these vacancies Mr Peter Khalil MP and the Hon Andrew Wallace MP were appointed to the Committee on 28 October 2021. Upon his 11 November 2021 election to Speaker of the House of Representatives, Mr Wallace left the Committee, and the Hon Kevin Andrews MP was appointed on 2 December 2021.
1.5
The impact of COVID-19 continued to affect the conduct of Committee business over the review period, however the ability to conduct virtual hearings allowed much of the public hearing work to continue.
1.6
A general election was called on 11 April 2022, at which point Parliament was prorogued and the House of Representatives was dissolved. In accordance with Schedule 1, Clause 15 of the IS Act, this meant that all membership of the Committee ceased, and its business was therefore suspended until after the appointment of new members in the 47th Parliament.
Overview of activities
1.7
Over the review period the Committee held 44 meetings and briefings, including seven public hearings. This supported the Committee’s work across 21 inquiries, and presentation of 17 reports (including publication of an annual report), on a range of complex national security matters.
1.8
Notable reviews and inquiries conducted during the review period included:
Advisory Report on the Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020
Advisory Report on the Security Legislation Amendment (Critical Infrastructure) Bill 2020 and Statutory Review of the Security of Critical Infrastructure Act 2018, and the subsequent Advisory Report on the Security Legislation Amendment (Critical Infrastructure Protection) Bill 2022
Review of police powers in relation to terrorism, the control order regime, the preventative detention order regime and the continuing detention order regime
Inquiry into national security risks affecting the Australian higher education and research sector.
1.9
A list of all reports presented by the Committee during the review period and government responses received is at Appendix B.
Oversight responsibilities
Reviews of administration and expenditure
1.10
Section 29(1)(a) of the IS Act requires the Committee to review the administration and expenditure of the six intelligence agencies that used to comprise the Australian Intelligence Community (AIC):
Australian Geospatial-Intelligence Organisation (AGO)
Australian Security Intelligence Organisation (ASIO)
Australian Secret Intelligence Service (ASIS)
Australian Signals Directorate (ASD)
Defence Intelligence Organisation (DIO)
Office of National Intelligence (ONI)
1.11
In exercising this function, the Committee conducts annual reviews of the administration and expenditure of these agencies. In these reviews the Committee examines the financial performance and management of each agency and the budgetary framework in which each agency operates.
1.12
The Committee may also consider 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; and
Reviews of Administration and Expenditure No. 18 (2018-2019) and No. 19 (2019-2020) - Australian Intelligence Agencies
1.13
On 5 December 2019 the Committee launched its 18th review of the intelligence agencies’ administration and expenditure, for the period 1 July 2018 - 30 June 2019. The Committee received evidence and conducted classified hearings in February 2020 in support of the 18th review. However, with the onset of the COVID-19 pandemic, the conduct of this review was interrupted.
1.14
On 14 September 2020 the Committee launched its 19th review of the intelligence agencies’ administration and expenditure, covering the 2019-20 period, deciding to combine its evidence-gathering and reporting for the 18th and 19th reviews.
1.15
Submissions for both reviews were sought and received from the six intelligence agencies, as well as the Inspector-General of Intelligence and Security (IGIS) and the Australian National Audit Office (ANAO).
1.16
Further classified hearings for both reviews were held on 14 and 15 April 2021 with representatives of the six intelligence agencies and the IGIS.
1.17
The Committee finalised the 18th and 19th reviews with the publication of a single report, ‘Reviews of Administration and Expenditure No. 18 (2018-2019) and No. 19 (2019-2020) - Australian Intelligence Agencies’ on 24 November 2021.
1.18
The Committee’s report noted that the continued evolution of the National Intelligence Community (NIC) was a theme in the evidence provided by agencies, who drew attention to changes and improvements resulting from the 2017 Independent Intelligence Review, which led to the creation of ONI and the Department of Home Affairs.
1.19
The Committee made four recommendations, in summary:
1
establishment of a shared psychological support service for all NIC staff;
2
creation of a NIC-wide Ombudsman staff support service;
3
consideration of a mechanism to enable NIC agencies to declare individuals who lodge persistent and repeated applications and appeals for access to historical material as vexatious; and
4
resourcing for ONI to conduct a review of the intelligence agencies’ initial and ongoing response to the COVID-19 pandemic, with a report to be distributed to the Committee and NIC.
1.20
The government response to the reviews agreed with recommendations one and two, and noted recommendations three and four.
Administration and Expenditure Review No. 20 (2020-2021)
1.21
On 5 November 2021 the Committee commenced work on its 20th administration and expenditure review.
1.22
The review received submissions from six intelligence agencies, the IGIS, the ANAO, Civil Liberties Australia, and two submissions from individuals in a private capacity.
1.23
On 11 April 2022 the review lapsed with the dissolution of the 46th Parliament for a general election, and at the end of the reporting period was awaiting readoption by the new Committee once formed in the 47th Parliament.
Review of listings of terrorist organisations under the Criminal Code
1.24
Division 102 of the Criminal Code Act 1995 (Criminal Code) makes it an offence to direct the activities of, be a member of, associate with or conduct a range of activities in support of a specified (‘listed’) terrorist organisation.
1.25
Pursuant to section 102.1A of the Criminal Code the Committee may review a regulation specifying an organisation as a terrorist organisation and report the Committee’s comments to each house of the Parliament before the end of the applicable disallowance period of 15 sitting days.
1.26
Over the review period the Committee conducted the following reviews of regulations made by the Minister for Home Affairs listing or re-listing terrorist organisations under the Criminal Code:
Review of regulations re-listing Jama'at Mujahideen Bangladesh (JMB) and the listing of Neo-Jama'at Mujahideen Bangladesh (Neo-JMB) as terrorist organisations under the Criminal Code
Regulations to re-list JMB and list neo-JMB were presented on 2 June 2021 and the Committee reported by statement on 10 August 2021.
In its review the Committee was satisfied that the organisations met the definition of ‘terrorist organisation’, and supported the listing of neo-JMB and the re-listing of JMB.
Review of the re-listing of five organisations as terrorist organisations under the Criminal Code
Regulations for the re-listings were presented on 3 August 2021, and the Committee presented its report on 14 October 2021.
In its review the Committee was satisfied the five organisations continued to be considered terrorist organisations. The five organisations were Al-Shabaab, Hamas’ Izz al-Din al-Qassam Brigades, Lashkar-e-Tayyiba, Palestinian Islamic Jihad and the Kurdistan Workers’ Party (PKK).
The Committee made three recommendations: that the Government consider extending the listing of Hamas’ Izz al-Din al-Qassam Brigades to the entirety of Hamas; that the Government engage with the Kurdish community in relation to the listing of the PKK; and that the Department of Home Affairs provide a briefing to the Committee on this community engagement.
Review of the listings of Hizballah and The Base as terrorist organisations under the Criminal Code
Regulations to list Hizballah and The Base were tabled in Parliament on 8 February 2022. The Committee supported these listings in a report by statement on 25 March 2022.
In its report, the Committee supported listing The Base, and extending the re-listing of Hizballah’s External Security Organisation (ESO) to cover the entirety of Hizballah, for the first time.
1.27
At the end of the reporting period the Committee had yet to complete the following review:
Review of the listing and re-listing of eight organisations as terrorist organisations under the Criminal Code
On 31 March 2022 the Committee launched a review of the listing of Hamas, National Socialist Order, Hurras al-Din and Hay-at Tahrir al-Sham; and re-listing Abu Sayyaf Group, al-Qa’ida, al-Qa’ida in the Lands of the Islamic Maghreb, and Jemaah Islamiyah as terrorist organisations. This review was ongoing at the end of the reporting period, awaiting further action in the 47th Parliament.
Oversight of AFP counter-terrorism and stop, search and seizure activities
1.28
Pursuant to section 29(1)(baa) of the IS Act it is a function of the Committee to monitor and review the performance by the Australian Federal Police (AFP) of its functions under Part 5.3 of the Criminal Code and Part IAA of the Crimes Act 1914 (Crimes Act).
1.29
Part 5.3 of the Criminal Code relates to Commonwealth terrorism offences and the control order, preventative detention order (PDO), and continuing detention order (CDO) regimes. Division 3A of Part IAA of the Crimes Act provides for stop, search and seizure powers made available to the AFP in relation to terrorism offences.
1.30
The AFP provided details to the Committee on its exercise of these powers during the reporting period, which are outlined in Appendix C of this report. In previous years the reporting period has covered the period 1 June to 31 May, in an effort to improve clarity of reporting and consistency with other reporting periods this has been adapted, and the reporting period now covers 1 July 2021 – 30 June 2022.
Review of retained data activities of the AFP and ASIO
1.31
Part 5-1A of the Telecommunications (Interception and Access) Act 1979 (the TIA Act) provides for a mandatory data retention regime which requires telecommunication carriers, carriage service providers and internet service providers to retain a defined set of telecommunications data for two years. The regime is designed to ensure that such data remains available for law enforcement and intelligence investigations.
1.32
Pursuant to section 29(1)(bd) of the IS Act it is a function of the Committee to review any matter that relates to the retained data activities of ASIO and is set out in the relevant sections of ASIO’s annual report. Under section 29(1)(be) of the IS Act it is a function of the Committee to review any matter that relates to the retained data activities of the AFP in relation to (terrorism) offences under Part 5.3 of the Criminal Code. These reviews are subject to certain restrictions under sections 29(1)(4) and 29(1)(5) of the IS Act.
1.33
As part of its submission to the Committee’s administration and expenditure review No. 20 (2020-2021), ASIO provided information on its authorisations for retained and prospective telecommunications data for the 2020-21 reporting period. While this data is classified, the Committee was satisfied with the information provided by ASIO in its submission and the opportunity to explore it further at a classified hearing for the administration and expenditure review in the 47th Parliament. As such, the Committee did not consider it necessary to conduct a more detailed inquiry in relation to ASIO’s retained data activities during the reporting period.
1.34
The Committee considered the AFP’s retained data activities during the period as part of the oversight of AFP counter-terrorism activities discussed above, and through TIA Act reports published by the Department of Home Affairs.
Bill inquiries
1.35
The Committee completed reviews of seven Bills during the review period:
Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020
Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020
Foreign Intelligence Legislation Amendment Bill 2021
Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020
National Security Legislation Amendment (Comprehensive Review and Other Measures No. 1) Bill 2021
Security Legislation Amendment (Critical Infrastructure) Bill 2020
Security Legislation Amendment (Critical Infrastructure Protection) Bill 2022
1.36
The Committee reviewed all Bills in a bipartisan manner examining the effectiveness and appropriateness of each individual Bill and considered the broader legislative framework in which they operated.
1.37
At the conclusion of the review period the Committee had one outstanding Bill review, the Review of the Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020.
Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020
1.38
The Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 (the SLAID Bill) was introduced into the House of Representatives by then Minister for Home Affairs, the Hon Peter Dutton MP, on 3 December 2020.
1.39
The SLAID Bill proposed three new warrant powers to be used exclusively by the AFP and Australian Criminal Intelligence Commission (ACIC). These powers were: network activity warrants, data disruption warrants and account takeover warrants.
1.40
In his second reading speech, the Minister for Home Affairs said that the Identify and Disrupt Bill would ‘enhance the powers of Commonwealth law enforcement agencies to help combat serious crimes perpetrated using anonymising technologies and the dark web’.
1.41
On 7 December 2020 the Minister referred the SLAID Bill to the Committee for inquiry and report. The Committee received submissions and held public hearings to gather evidence for the SLAID Bill over the review period. The Committee additionally received classified briefings from the AFP and ACIC on the powers proposed by the Bill.
1.42
The Committee completed its review of the Bill and presented its report on 5 August 2021. The Committee made 34 recommendations, and the Government incorporated some of these into the Bill. As amended, the Bill passed both Houses, and received royal assent on 3 September 2021.
Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Bill 2020
1.43
The Counter-Terrorism Legislation Amendment High Risk Terrorist Offenders Bill (HRTO) 2020 was introduced into the House of Representatives by then Attorney-General, the Hon Christian Porter MP, on 3 September 2020 and referred to the Committee for inquiry and report.
1.44
The HRTO Bill 2020 sought to allow a State or Territory Supreme Court to make an extended supervision order as an alternative to a continuing detention order. The Attorney-General, in the second reading speech, stated:
The bill seeks to broaden the range of tools available to address the risk posed by convicted terrorist offenders. The threshold for a Supreme Court to order continuing detention is high, commensurate with the severity of continuing detention. Extended supervision orders will allow supreme courts to impose tailored supervisory conditions specific to the risk posed by the terrorist offender if released into the community, where the court is not satisfied that continuing detention is appropriate to prevent that risk.
1.45
The Committee received submissions from six organisations, including government agencies and advocacy groups, and held one public hearing on 13 November 2020.
1.46
The Committee presented its report on 16 September 2021. In its report, the Committee made 11 recommendations, focused principally on:
amending the operation of post-sentencing orders, violent extremism risk assessments and de-radicalisation tools;
providing guidance and additional support for individuals subject to interim and extended supervision orders; and
changing the IS Act to enable the Committee to commence an inquiry into Division 105A of the Criminal Code within 12 months of the completion of the Independent National Security Legislation Monitor’s (INSLM) report.
1.47
The Government noted one recommendation, accepted in-part or in-principle two recommendations, and accepted in full all other recommendations.
Foreign Intelligence Legislation Amendment Bill 2021
1.48
Prior to its 25 August 2021 introduction to Parliament, the Foreign Intelligence Legislation Amendment Bill 2021 was referred on an embargoed basis to the Committee for private review and report by then Minister for Home Affairs, the Hon Karen Andrews MP, on 20 August 2021.
1.49
The Bill amended the TIA Act and the Australian Security Intelligence Organisation Act 1979 to address critical gaps in Australia’s foreign intelligence warrant framework.
1.50
Due to the sensitive nature of the Bill’s proposed powers, the Committee agreed to the Government’s request to expeditiously consider this legislation in a private inquiry, and held a private classified briefing on Monday 23 August 2021 with officials from relevant agencies.
1.51
On 25 August 2021 the Bill was introduced in the House of Representatives by then Minister for Trade, Tourism and Investment, the Hon Dan Tehan MP. The Committee presented its report on the same day, and recommended two amendments to the Bill to ensure that the Committee:
is notified that a mandatory written procedure has been issued or varied, and that the Committee is provided with a briefing on the procedure as soon as practicable after issuance; and
may conduct a review of the amendments made by the Bill not less than five years after receipt of royal assent.
1.52
During the second reading debate on the Bill, on 26 August 2021, the Committee Chair drew attention to the need for the Bill’s legislative amendments to ‘ensure that our foreign intelligence collection capabilities are up to date, that they keep pace with modern technology and that they're not unduly limited by technological change or legislative loopholes that are not functioning as intended’.
1.53
The Committee’s proposed amendments were agreed to, and the Bill received royal assent on 2 September 2021.
Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020
1.54
The Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020 (the IM Bill) was introduced into the House of Representatives by then Attorney-General, the Hon Christian Porter MP, on 9 December 2020. On 10 December 2020 the Attorney-General referred the IM Bill to the Committee for inquiry and report.
1.55
The IM Bill proposed changes to intelligence oversight, notably extending PJCIS oversight to the Australian Transaction Reports and Analysis Centre (AUSTRAC) and IGIS oversight to AUSTRAC and the ACIC’s intelligence functions. The Committee received six submissions from government agencies, academics, the Law Council, and the Police Federation, and held one public hearing in May 2021.
1.56
In its report the Committee made five recommendations. These included expanding the oversight of the PJCIS and the IGIS to cover the intelligence functions of the AFP, and extending PJCIS oversight of ACIC, to match the new powers the IM Bill proposed for the IGIS. Further, the Committee recommended the Government review the adequacy of legislative provisions regarding the retention and destruction of intelligence material by the intelligence community, and proposed the establishment of biannual intelligence integrity agency meetings.
1.57
The Committee’s report was presented on 7 February 2022. The Bill lapsed at dissolution of the 46th Parliament on 11 April 2022.
National Security Legislation Amendment (Comprehensive Review and Other Measures No. 1) Bill 2021
1.58
On 25 November 2021 the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 1) Bill 2021 was introduced into the House of Representatives by then Minister for Home Affairs, the Hon Karen Andrews MP, and the Minister referred the Bill to the Committee for inquiry and report.
1.59
The Bill sought to strengthen the ability of intelligence agencies to respond to emerging threats and mitigate critical operational challenges faced by the NIC. In doing so, the Bill implemented the Government response to some of the recommendations arising from the ‘Comprehensive Review of the Legal Framework of the National Intelligence Community’ led by Dennis Richardson AC in 2020, as well as amendments recommended by the 2017 Independent Intelligence Review.
1.60
The Committee received 10 submissions to its inquiry from members of the intelligence community, government agencies, and advocacy groups, and held one public hearing.
1.61
In its report the Committee made one substantive recommendation, that the Explanatory Memorandum to the Bill be amended to state that Ministerial Authorisations allowing ASIS, ASD or AGO to produce intelligence on Australians who are or are likely to be involved with a terrorist organisation, will not authorise the production of intelligence on a lawyer advocating for the delisting of a terrorist organisation.
1.62
The Committee presented its report on 25 March 2022 and its recommendation was incorporated by the Government. The Bill subsequently passed Parliament and received royal assent on 1 April 2022.
Security Legislation Amendment (Critical Infrastructure) Bill 2020 and Statutory Review of the Security of Critical Infrastructure Act 2018
1.63
The Security Legislation Amendment (Critical Infrastructure) Bill 2020 (the SOCI Bill) was introduced into the House of Representatives by then Minister for Home Affairs, the Hon Peter Dutton MP, on 10 December 2020. On 18 December 2020 the Attorney-General referred the SOCI Bill (later known as part one of the SOCI Bill) to the Committee for inquiry and report.
1.64
The SOCI Bill sought to create an enhanced regulatory framework by introducing ‘mandatory cyber incident reporting’ and ‘government assistance to relevant entities for critical infrastructure sector assets in response to significant cyber attacks that impact on Australia’s critical infrastructure assets’.
1.65
The Committee decided to combine its review of the Bill with its statutory review of the pre-existing Act, as discussed below.
1.66
Over the review period the Committee held four public hearings and received 88 submissions from the NIC, Commonwealth and State governments, academics, business, unions, and private citizens.
1.67
The Committee presented its report on 29 September 2021. The report included 14 recommendations, key of which recommended that the Critical Infrastructure Bill 2020 be split into two Bills, so that urgent elements of reforms such as government assistance mechanisms, mandatory requirements and related measures could be swiftly legislated.
1.68
Recommendations were adopted by the Government and the urgent measures of the SOCI Bill (part one) received royal assent on 2 December 2021.
Security Legislation Amendment (Critical Infrastructure Protection) Bill 2022
1.69
The Security Legislation Amendment (Critical Infrastructure Protection) Bill 2022 formed part two of the SOCI Bill. The Critical Infrastructure Protection Bill was introduced into the House of Representatives by then Minister for Home Affairs, the Hon Karen Andrews MP, on 10 February 2022 and the Minister referred the Bill to the Committee for inquiry and report.
1.70
Whereas the first Bill allowed for rapid passage of urgent amendments, this Bill resulted from and facilitated further consultation with industry. The Critical Infrastructure Protection Bill introduced declarations of Systems of National Significance, enhanced cyber-security obligations, and positive security obligations. In the second reading speech, the Minister for Home Affairs stated:
The measures that are outlined in this bill will enable Australia to maintain the availability, integrity and confidentiality of assets and networks critical to our national interest, and secure those assets from further severe shocks—shocks such as those we have seen from the COVID-19 pandemic and natural disasters, malicious actors and other hazards.
1.71
In the course of its inquiry the Committee received significant public and private evidence and engagement. The Committee received 50 submissions from government agencies, industry, academics, unions, and private citizens, and held one public hearing.
1.72
The Committee presented its advisory report on 25 March 2022. Principal amongst the Committee’s recommendations was increased industry consultation by the Department of Home Affairs and the Cyber and Infrastructure Security Centre.
1.73
The Government amended the Critical Infrastructure Protection Bill to incorporate some of the Committee’s recommendations, and the Bill received royal assent on 1 April 2022.
Statutory reviews
1.74
The Committee must undertake statutory reviews of several pieces of legislation. Over the review period the Committee completed four statutory reviews, while two lapsed at the dissolution of the 46th Parliament.
Statutory Review of the Security of Critical Infrastructure Act 2018
1.75
The Statutory Review of the Security of Critical Infrastructure Act 2018 (SOCI Act) was required as a result of a recommendation in the Committee’s Advisory Report on the Security of Critical Infrastructure Bill 2017. Pursuant to section 60A of the SOCI Act the Committee was required to commence a review into the operation, effectiveness and implications of the reforms introduced in the Act by 11 April 2021.
1.76
As mentioned above, this review was combined with the Committee’s inquiry into the 2020 SOCI Bill. In the course of the inquiry the overwhelming majority of the evidence received focused on the SOCI Bill, and did not identify substantive concerns with the SOCI Act as it had operated up to that time.
1.77
The submission put forward by the Department of Home Affairs was the only one with any focus on the statutory review elements, and reported on declarations of assets as critical infrastructure assets.
1.78
As amendments being made to the Act by the new SOCI Bill became the primary focus of the Committee’s review, consideration of the original Act’s powers was largely made redundant. Moreover, information gathering and direction powers under sections 37 and 32 of the Act respectively had not been used up to the end of 2020, so the Committee did not pursue these elements. On that basis, the statutory review of the original operation of the SOCI Act was discharged.
Review of police powers in relation to terrorism, the control order regime, the preventative detention order regime and the continuing detention order regime
1.79
Pursuant to section 29(1)(bb)(i)(ii) of the IS Act the Committee was required to review 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 Divisions 104 and 105 of the Criminal Code which provide for control orders and preventative detention orders, by January 2021.
1.80
On 12 August 2020 the Committee resolved to expand the scope of this review to also address the requirement under section 29(1)(cb) of the IS Act that the Committee review Division 105A of the Criminal Code (which provides for continuing detention orders) and any other provision of that Code as far as it relates to that Division.
1.81
Over the course of the review the Committee received 10 submissions and five supplementary submissions from government, academia and other stakeholders, and held two public hearings to gather evidence. The Committee also received private briefings over the course of its review.
1.82
In its report, presented on 14 October 2021, the Committee supported extension of the relevant powers while making 19 recommendations to improve clarity, oversight and interoperability of counter-terrorism laws. Further, the Committee recommended amendments to the IS Act 2001 to allow the PJCIS to undertake further reviews of the powers prior to their next sunset date.
1.83
A government response to the Committee’s report had not been received at the end of the reporting period, and legislation to extend the relevant powers, due to sunset in December 2022, had not yet been introduced.
Review of the amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018
1.84
Section 187N of the TIA Act required the Committee to review the amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (TOLA Act) by 30 September 2020.
1.85
The TOLA Act amended Commonwealth legislation to introduce measures to better deal with challenges posed by ubiquitous encryption.
1.86
This review built upon findings of a review conducted by the INSLM, provided to the Committee on 30 June 2020, and two previous Committee reviews from 2018 and 2019.
1.87
Through the review process the Committee received 35 submissions from government agencies, industry, academia and other stakeholders, held two public hearings in July and August 2020, and received a private briefing.
1.88
In its review the Committee considered the ongoing appropriateness, effectiveness and necessity of the powers conferred by the TOLA Act and made 29 recommendations to the Government to amend the legislation.
1.89
The Committee presented its report on 22 December 2021. The Committee supported expanded oversight powers, however recommended additional safeguards and oversight mechanisms by the PJCIS and IGIS. Furthermore, the Committee recommended the development of government review and consultation mechanisms to provide the public with confidence the legislation continues to be used proportionally and for its intended purpose.
1.90
A government response to the Committee’s report had not been received at the end of the reporting period.
Review of Part 14 of the Telecommunications Act 1997 – Telecommunications Sector Security Reforms
1.91
Pursuant to Section 315K of the Telecommunications Act 1997 the Committee was required to undertake a review of Part 14 of the Telecommunications Act 1997, concerning the Telecommunications Sector Security Reforms (TSSR), to be completed by 18 September 2021.
1.92
The TSSR, which commenced on 18 September 2018, established a regulatory framework to manage the national security risks of espionage, sabotage and foreign interference to Australia’s telecommunications networks and facilities. In its ‘Inquiry into the Telecommunications and Other Legislation Amendment Bill 2016’ the Committee recommended that this review focus on the operation, effectiveness and implications of the reforms.
1.93
The Committee commenced its review of the TSSR on 4 September 2020, and gathered evidence through 11 submissions from government agencies, industry, advocacy groups and other stakeholders, and held one public hearing and one private briefing.
1.94
The Committee presented its report on 7 February 2022. Noting the importance of appropriate safeguards, the Committee made six recommendations focused broadly on:
ensuring that reforms and regulation are informed by the latest global network trends and threats; and
increasing government and industry collaboration and information sharing in a collaborative working environment to ensure that sharing information on threats is efficient, and that any further reforms are co-designed between industry and government to avoid regulatory duplication.
Review of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019
1.95
Under Section 29(cc) of the IS Act the Committee was required to consider the operation, effectiveness and implications of the Temporary Exclusion Orders (TEO) scheme by 31 July 2022. The Committee commenced its review of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 on 5 August 2021.
1.96
The TEO scheme was introduced in 2019 to provide greater control over Australians returning from overseas, who are of counter-terrorism interest (such as foreign fighters).
1.97
TEOs impose conditions on some Australians who return to Australia without a return permit, and impose pre-entry and post-entry conditions. Eligible individuals for TEOs must meet one of the following criteria:
the Minister must consider that making the order would substantially assist in addressing the threat of terrorism from an individual; or
ASIO has assessed the individual to be a direct or indirect risk to security.
1.98
The Committee received eight submissions from government agencies, academics and engaged stakeholders. The Committee’s review lapsed with the dissolution of the 46th Parliament, and at the end of the reporting period awaited re-adoption in the 47th Parliament.
Review of the Foreign Influence Transparency Scheme Act 2018
1.99
The Foreign Influence Transparency Scheme was introduced in 2018 with the purpose of bringing transparency to activities undertaken on behalf of foreign principals, particularly where those activities are intended to influence Australian political and governmental systems and processes.
1.100
Under the Foreign Influence Transparency Scheme Act 2018 the Committee was required to commence a review into the operation, effectiveness and implications of the scheme by the third anniversary of the Act (10 December 2021). The Committee commenced its review on 6 August 2021, and received submissions from government, academics, industry and other stakeholders.
1.101
Due to the timing of the 2022 election, the Committee’s review lapsed with the 46th Parliament’s dissolution, awaiting re-adoption at the end of the review period.
General policy inquiries
1.102
Pursuant to section 29(1)(b) the Committee may review any matter in relation to the AIC referred to the Committee by the responsible Minister; the Attorney-General; or a resolution of either House of the Parliament.
1.103
While historically the workload of the Committee was almost exclusively the review of Bills or legislation and the administration and expenditure inquiries into the AIC, in the 46th Parliament the Committee was referred three general policy inquiries.
1.104
During the review period the Committee completed one general policy inquiry, and had one outstanding policy inquiry underway at the time that the 46th Parliament dissolved.
Inquiry into national security risks affecting the Australian higher education and research sector
1.105
On 28 October 2020 then Minister for Home Affairs, the Hon Karen Andrews MP, referred an inquiry to the Committee relating to national security risks affecting the Australian higher education and research sector. The sector includes those entities engaged in tertiary teaching, research, commercialisation of research, and other related bodies including grants, coordination and institutional entities.
1.106
Over the course of the inquiry the Committee received 62 submissions from research institutions, academics, government, industry and other stakeholders, and held two public hearings.
1.107
The Committee’s report for this inquiry was presented on 25 March 2022. In its report the Committee made 27 recommendations, focused on:
securing sensitive, taxpayer-funded research and protecting student safety on campus;
risk mitigation associated with Chinese government-funded Confucius Institutes; and
measures to protect students from threats to their freedom of speech, association and physical safety.
1.108
The Committee also called for the Minister for Foreign Affairs to exercise her power under the Australia’s Foreign Relations (State and Territory Arrangements) Act 2020 to make a determination in the national interest relating to the agreement between Monash University and COMAC, a Chinese government-owned aviation company that has been linked to a global industrial cyber espionage campaign and been sanctioned by the US government.
1.109
At the end of the reporting period the Government had not yet released its response to the Committee’s report.
Inquiry into extremist movements and radicalism in Australia
1.110
On 9 December 2020 then Minister for Home Affairs, the Hon Karen Andrews MP, referred an inquiry to the Committee relating to extremist movements and radicalism in Australia, providing terms of reference to the Committee.
1.111
The Committee received a great deal of interest in the inquiry, and due to the sensitive subject considered various matters prior to publishing 19 submissions and 10 supplementary submissions from Commonwealth and State government agencies, academics, and businesses including Facebook, Twitter and Google. In gathering evidence for its inquiry the Committee held two public hearings in April 2021 and received numerous private briefings on security matters in relation to the inquiry.
1.112
On 1 April 2022, as the 46th Parliament reached its end, the Committee presented an interim report on the review. This noted the sensitive nature of evidence received and the value of continued scrutiny of extremism and radicalisation threats in Australia.
1.113
Due to the high volume of work undertaken by the Committee it was unable to conclude its inquiry, and as such recommended that the Australian Government consult with the Committee of the 47th Parliament with a view to referring an inquiry into extremist movements and radicalisation in Australia.
Other activities of the Committee
1.114
In addition to numerous inquiries the Committee also received several notifications under existing statutory frameworks, conducted private briefings on a range of topics and conducted site visits and delegations.
Notifications
1.115
The IS Act, the TIA, the Australian Citizenship Act 2007, the Office of National Intelligence Act 2018 and the SOCI Act each require that the Committee be notified of certain matters or provided with certain reports. Appendix D outlines the notifications received by the Committee during the reporting period.
1.116
There are a number of other matters that the Committee is required to monitor but without a corresponding requirement for the Committee to be notified of these matters or powers having been used.
Temporary Exclusion Orders
1.117
Subsection 29 (cd) of the IS Act requires that the Committee monitor and review the exercise of powers under the Counter Terrorism (Temporary Exclusion Orders) Act 2019 by the Minister administering that Act.
1.118
The AFP Minister is required under section 31 of the Counter-Terrorism (Temporary Exclusion Orders) Act 2019 to provide a report in respect of the operation of that Act. On 8 February 2022, the Control Orders, Preventative Detention Orders, Continuing Detention Orders, Temporary Exclusion Orders, and Powers in Relation to Terrorist Acts and Terrorism Offences Annual Report 2020-2021 was tabled in both chambers of Parliament.
1.119
During the year ending on 30 June 2021 the figures were as follows:
Table 1.1: Temporary Exclusion Orders 2020-21
|
|
|
|
Temporary exclusion orders made
|
3
|
|
Temporary exclusion orders revoked
|
3
|
|
Temporary exclusion orders taken to never have been made because of the operation of para. 14(7)(a)
|
0
|
|
Number of times a temporary exclusion order came into force
immediately after it was made
|
3
|
|
Temporary exclusion orders made in relation to persons aged 14 to 17
|
0
|
|
Return permits issued
|
3
|
|
Return permits on which a condition was imposed under para:
|
|
|
|
1
|
|
|
0
|
|
|
0
|
|
|
0
|
|
|
3
|
|
|
3
|
|
|
2
|
|
|
2
|
|
|
2
|
|
|
2
|
|
|
0
|
|
|
3
|
|
|
3
|
|
|
2
|
|
|
3
|
|
|
0
|
|
|
0
|
|
|
0
|
|
Return permits varied or revoked
|
0
|
|
Persons subject to a return permit who entered Australia
|
1
|
|
Persons charged with an offence against this Act
|
0
|
Source: https://www.homeaffairs.gov.au/reports-and-pubs/files/reports-to-parliament/20-21-counter-terrorism-powers-annual-report.pdf
Private briefings
1.120
The Committee received a range of private briefings from relevant Commonwealth departments and agencies over the reporting period. These briefings related both to specific inquiries and broader Committee oversight. The Committee thanks all who participated in these briefings which were informative and beneficial to the progression of Committee matters.
1.121
In February-March 2022 a bipartisan Committee delegation visited the United States of America and United Kingdom. The delegation was the first visit by the Committee to the US and UK in several years, and provided a valuable opportunity to share information and strengthen ties at the parliamentary level with two of Australia’s closest partners in the intelligence and security arena. The delegation met with parliamentary counterparts and senior officials in both countries and discussed a range of matters including counter-terrorism and counter foreign interference legislation and activity; cybersecurity threats and responses; oversight of intelligence and security agencies by parliament and integrity bodies; and international security collaboration.
New functions
1.122
Over the review period the Committee gained new or updated review provisions under section 29 of the IS Act through the following legislation:
Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2021
Surveillance Legislation Amendment (Identify and Disrupt) Act 2021
Telecommunications Legislation Amendment (International Production Orders) Act 2021
1.123
In addition, the National Security Legislation Amendment (Comprehensive Review and Other Measures No. 1) Act 2022, added another function of the Committee to section 29 of the IS Act: to review privacy rules made for ASIS, ASD, ONI, AGO and DIO; while excluding review of the agencies’ compliance with those rules.
The future of the Committee
1.124
The workload of the Committee continued at the high levels found in the previous reporting period. At the end of the reporting period four statutory reviews were ongoing, requiring completion in the 47th Parliament.
1.125
Over the course of the review period the Committee conducted seven bills inquiries, a significant increase on the three of the previous reporting period. Likewise, statutory review requirements continue to increase, with three completed, and two others commenced. The volume of reviews and inquiries is likely to continue at a high rate in the 47th Parliament.
1.126
The Committee sought to ensure recommendations across its reports for the 2021 to 2022 reporting period remained consistent, both with each other, and with those set out in reports from previous years. Recommendations particularly focused on improved oversight and accountability mechanisms and agencies’ powers remaining fit-for-purpose.
1.127
The Committee thanks all those who made contributions to the various inquiries conducted over the review period and commends the quality of evidence given in submissions and through public hearings. The Committee especially thanks witnesses who appeared at public hearings by videoconference due to the COVID-19 pandemic.
1.128
In its previous annual report the Committee commented on the role of the PJCIS, and the need for review of the parts of the IS Act governing the Committee. Currently, outdated and limited provisions in the Act impact the Committee’s ability to conduct inquiries and undertake adequate oversight of the NIC. As these issues remain extant the Committee hopes that they will be acted upon in the 47th Parliament.
Mr Peter Khalil MP
Chair
14 February 2023