General principles and approach
Oversight matters.
As members of this committee have written in another context:
If we want our agencies to be in the best possible position to face today’s challenges, they must be supported by modern and effective oversight bodies. This is because strong and effective oversight mechanisms do not stand in opposition to our national security arrangements – they are best understood as an essential part of them.
Intelligence oversight bodies have a unique role in democracies. Much of our nation’s intelligence work is necessarily secret – this means that the usual agents of democratic accountability such as civil, society, the media and even parliament are less able to fulfil their usual functions.
Dedicated intelligence oversight bodies fill this gap. They are empowered to examine the legality and propriety of intelligence activities, even those that are otherwise necessarily kept secret. In doing so, they help build the culture of trust that is necessary for intelligence agencies to be able to operate effectively in a democracy.
These principles have been rightly endorsed by the PJCIS on a number of occasions. In 2019 the Committee emphasised in one of its reports:
The Committee reiterates the importance of the public assurance that is provided by effective and robust oversight measures. Democracies require intelligence agencies to be subject to independent oversight and review. Australia’s intelligence agencies have significant human and technical capabilities as well as legal powers and immunities. Without strong and credible oversight there may be a loss of trust between the agencies and the public.
Intelligence oversight runs the risk of ceasing to be strong and credible if it fails to adapt and respond to the changing nature and activities of intelligence agencies.
The key elements of Australia’s intelligence oversight system were put in place in the 1980s following the Hope Royal Commissions. The most significant change since was the creation of the Independent National Security Legislation Monitor in 2010.
The demands on Australia’s oversight system have not stayed static in the decade since.
Parliament has passed dozens of bills that adapt the powers of agencies to respond to an evolving set of national security threats. There have been changes to the structures of Australia’s national security apparatus, including the creation of a new Department of Home Affairs.
The relationship between this bill and completed intelligence reviews
Given this, it is unsurprising that both of the major intelligence reviews delivered in the past five years have recommended reform of Australia’s oversight arrangement. The 2017 Independent Intelligence Review (Independent Intelligence Review) and the 2020 Comprehensive Review of the Legal Framework of the National Intelligence Community (Comprehensive Review) have each set out detailed recommendations to expand the remit of Australia’s existing oversight bodies.
Unfortunately, this bill fails to fully implement the oversight recommendations of either review.
For example the Comprehensive Review endorses a number of recommendations made by the earlier Independent Intelligence Review:
42.11 The 2017 IIR also recommended that the PJCIS’ role be expanded to:
make explicit in legislation the PJCIS’ power to review proposed reforms to counter-terrorism and national security legislation, and to enable it to review all such expiring legislation (recommendation 23(b))
enable the PJCIS to initiate its own inquiries (recommendation 23(c))
enable the PJCIS to request a briefing from the Independent National Security Legislation Monitor (INSLM), and ask the INSLM to report on matters referred by the PJCIS and provide the PJCIS with the outcome of the INSLM’s inquiries into existing legislation at the same time as the INSLM provides such reports to the responsible minister (recommendation 23(d)), and
require the PJCIS to be regularly briefed by the Director-General of ONI and separately by the IGIS (recommendation 23(e)).
42.12 The Review agrees with these recommendations
The bill does not fully respond to these recommendations, or to the recommendations in the Independent Intelligence Review aimed at strengthening the mechanisms for cooperation and coordination between the PJCIS and the IGIS.
Two separate reviews have now identified these gaps in Australia’s oversight arrangements. Labor members hope to see further legislation brought forward to respond to them.
In particular, Labor members note the importance of the PJCIS being able to initiate its own inquiries.
In its last annual report, this Committee indicated its interest in undertaking a review of the Intelligence Services Act. The main report in this present inquiry reiterates the Committee’s willingness to perform this review.
Labor members hope that the government accepts this recommendation and refers the matter to the PJCIS for inquiry. An own motion inquiries power, however, would have allowed the Committee to undertake this important oversight task of its own volition.
In 2020, Labor introduced a private senators bill to implement the oversight recommendations of the Independent Intelligence Review following several years of inaction by the government. That bill contains a model for how such an own motion power could be legislated.
Oversight of the Department of Home Affairs
The committee has correctly noted in its main report in this present inquiry that these reviews’ recommendations differ slightly in scope and substance. One of the key points of divergence is whether the intelligence functions of the Department of Home Affairs should be subject to the jurisdiction of the IGIS and the PJCIS.
Although only some of the department’s work could be considered “intelligence” work, it is substantial enough for the ONI to include the department in its definition of an “agency with an intelligence role or function”.
As Prof. Williams and Dr Hardy observe in their written submission:
While the proportion of intelligence activities conducted by an agency may differ, the rationale for expanding intelligence oversight lies in the specialised nature of those activities, not their extent or the departmental structure under which they are organised.
It is true that the Department of Home Affairs is subject to oversight by a minister, who in turn is subject to scrutiny via their responsibility to parliament.
However the Comprehensive Intelligence Review noted that this form of oversight had historically been weak:
Agency oversight was principally the responsibility of ministers, consistent with the concept of ministerial responsibility. The effectiveness of this system was limited, however, as it relied on Parliament having the information necessary to hold ministers to account, which it often did not. The absence of information on the intelligence agencies also contributed to concerns about the partisan nature of intelligence matters.
These are outcomes to be avoided.
The Committee’s report acknowledges that intelligence collection and analysis is part of the Home Affairs responsibilities and notes the recommendation from the Comprehensive Review that intelligence collection functions be transferred to Border Force. The Committee as a whole declined to recommend inclusion at this time.
Labor members consider that the powers exercised within this portfolio, including by the ABF require specialist oversight – consistent with the broader principle that specialised and secret functions require specialised and empowered oversight.
The authors of the Independent Intelligence Review considered there to be a compelling case for including Home Affairs within the remit of the IGIS and the PJCIS.
Labor members of PJCIS agree with them.
Senator Jenny McAllister
Deputy Chair
Hon Mark Dreyfus QC MPMr Peter Khalil MP
Senator the Hon Kristina KeneallyDr Anne Aly MP