Overview
2.1
Existing oversight arrangements under the Intelligence Services Act 2001 (IS Act) and Inspector-General of Intelligence and Security 1986 (IGIS Act) for intelligence agencies apply to the six agencies within the Australian Intelligence Community (AIC):
Office of National Intelligence (ONI);
Australian Security Intelligence Organisation (ASIO);
Australian Secret Intelligence Service (ASIS);
Australian Signals Directorate (ASD);
Australian Geospatial-Intelligence Organisation (AGO); and
Defence Intelligence Organisation (DIO).
2.2
ASD, AGO and DIO sit within the Department of Defence, and AGO and DIO support Australian Defence Force (ADF) operations, capability and policy development in addition to intelligence functions.
2.3
A number of significant external reviews of intelligence oversight contributed to the direction of Australia’s intelligence gathering and operational environment. Two Royal Commissions, in the 1970s and 1980s, and further major reviews in following decades have shaped the framework for intelligence agencies and oversight. Information on the major reviews may be found at Appendix C.
2.4
A number of reforms to the structure and organisation of the intelligence community have taken place in recent years.
2.5
In addition, the scale and complexity of Australia’s intelligence community has increased since the two Royal Commissions. The Richardson Review stated there has been a significant increase in staffing and cost:
In 1975-76, ‘intelligence cost the Australian taxpayers about $30m’ and employed 2,381 staff. By comparison AIC agencies’ budgets quadrupled between 2000 and 2010, reaching a total of $1.07 billion. In 2018-19, the NIC’s staffing exceeded 10,000 and its overall expenses exceeded $3 billion.
2.6
The Intelligence Oversight and Other Legislation Amendment (Integrity Measures) Bill 2020 (the Bill) responds to recommendations made in the Comprehensive Review of the Legal Framework of the National Intelligence Community conducted by Mr Dennis Richardson AC (Richardson Review) and published in December 2020. The Bill responds to recommendations made by expanding oversight by the Inspector-General of Intelligence and Security (IGIS) and Parliamentary Joint Committee on Intelligence and Security (PJCIS) of some intelligence functions of NIC agencies.
Existing Intelligence Oversight Framework
2.7
Australia’s intelligence agencies are subject to an oversight system which ‘consists of a number of specialised bodies independent of the Government and each other and the agencies they oversee. These are sometimes referred to as the integrity bodies’, and include the IGIS, the Independent National Security Legislation Monitor (INSLM), the Independent Reviewer of Adverse Security Assessments (IRASA), Commonwealth Ombudsman (Ombudsman), Australian Commission for Law Enforcement Integrity (ACLEI), parliamentary committees (including the PJCIS and the Parliamentary Joint Committee on Law Enforcement (PJCLE)).
2.8
The intelligence agencies within the AIC are responsible to a range of ministers. The below table sets out the responsible ministers for each agency.
Table 2.1: Australian Intelligence Community
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Australian Security Intelligence Organisation (ASIO)
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Minister for Home Affairs
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Australian Secret Intelligence Service (ASIS)
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Minister for Foreign Affairs
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Office of National Intelligence (ONI)
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Prime Minister
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Australian Signals Directorate (ASD)
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Minister for Defence
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Australian Geospatial-Intelligence Organisation (AGO)
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Minister for Defence
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Defence Intelligence Organisation (DIO)
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Minister for Defence
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2.9
The four agencies which, when combined with the AIC, form the NIC, are responsible to the Minister for Home Affairs. The Richardson Review set out the following table of oversight for the four NIC agencies:
2.10
Oversight of intelligence agencies is performed by the IGIS and the PJCIS, who perform complementary roles: ‘The Committee oversees the administration and expenditure of the intelligence agencies, while the Inspector-General reviews their operational activities’. The Committee reviews legislation – both new and existing, and is required by statute to consider the exercise of a number of powers assigned to both ASIO and the AFP. The PJCIS may request briefings from the IGIS, and the IGIS makes submissions to PJCIS inquiries and appears at hearings. The IGIS may consult with the INSLM, and the PJCIS may refer a matter to the INSLM.
2.11
Judicial oversight of intelligence activities is limited. Relevant warrants sought by law enforcement and intelligence agencies are authorised by members of the judiciary when required by law.
2.12
Certain activities of ASIS, AGO and ASD require ministerial authorisation, and warrants are issued by the Attorney-General for ASIO’s powers.
2.13
The Security Division within the Administrative Appeals Tribunal (AAT) conducts merits reviews of most categories of adverse security assessments issued by ASIO.
2.14
The budgets for ASIO, ASIS and ONI are published in annual Portfolio Budget Statements, and these agencies can appear at Senate Estimates hearings. ASIO routinely appears before the Senate Legal and Constitutional Affairs Legislation Committee during Senate Estimates, and, in accordance with the Public Governance, Performance and Accountability Act 2013 (PGPA Act), produces a publicly available annual report. The Attorney-General receives a classified ASIO annual report, and must share it with the Leader of the Opposition. ASD appears before the Senate Foreign Affairs, Defence and Trade Legislation Committee, and produces a publicly-available Annual Report in accordance with the PGPA Act.
2.15
Individual budget and expenditure outcomes for AGO and DIO are not publicly reported. As a statutory agency within the Defence portfolio, ASD’s budget is available through the Defence Portfolio Budget Statement.
2.16
AUSTRAC and ACIC officials are also examined by the Legal and Constitutional Affairs Committee during Senate Estimates. Questions relating to AIC agencies other than ASIO tend to be addressed to the lead portfolio departments, examined by the Senate Foreign Affairs, Defence and Trade Legislation Committee and Senate Finance and Public Administration Committee.
2.17
Financial and administrative audits for AIC agencies may be carried out by the Australian National Audit Office (ANAO).
2.18
The Independent National Security Legislation Monitor (INSLM) reviews the operation, effectiveness and implications of national security and counter-terrorism laws; and considers whether the laws contain appropriate protections for individual rights, remain proportionate to terrorism or national security threats, and remain necessary.
Inspector-General of Intelligence and Security
2.19
The Inspector-General of Intelligence and Security (IGIS) is an independent statutory agency within the Attorney-General’s portfolio, employing 34 staff under the Public Service Act 1999, and the Inspector-General.
2.20
The Inspector-General is an independent statutory officer appointed under the Inspector-General of Intelligence and Security Act 1986 (IGIS Act). The office was recommended by the 1984 Royal Commission on Australia’s Security and Intelligence Agencies, and commenced operation in February 1987.
Current functions of the IGIS
2.21
The IGIS currently reviews the activities of six intelligence agencies, with the purpose of providing ‘assurance that each intelligence agency acts legally and with propriety, complies with ministerial guidelines and directives, and respects human rights’. The IGIS has several key functions, including:
inquiry functions for AIC agencies;
inquiry functions relating to intelligence and security matters;
inspection functions relating to AIC agencies; and
public interest disclosure functions.
2.22
The inquiry functions relating to AIC agencies differ between the agencies, as does the initiation of inquiries. The broadest inquiry functions are in relation to ASIO. Inquiries relating to an AIC agency, or intelligence or security matter relating to any Commonwealth agency may be requested by the Prime Minister.
2.23
The powers of the IGIS are similar to those of a Royal Commission, including the power to obtain information and documents, take evidence and enter the premises of Commonwealth agencies. Inquiries are conducted in private. Reports on the inquiries undertaken are produced and provided to the relevant agency head and responsible minister, and, where possible, an unclassified report or summary is published to the IGIS website. Summaries are provided in the IGIS’ annual reports. Where an inquiry is the result of a complaint, a written response is provided to the complainant.
2.24
The IGIS is able to access information and records held by AIC agencies necessary to fulfil its inquiry function. IGIS said that conducting inquiries is ‘resource intensive’ but provides a ‘rigorous’ way to examine a complaint, serious incident or systemic matter within an agency.
2.25
Inspection and monitoring functions are primarily focussed on the activities of agencies with intrusive power and investigative techniques in order to identify issues ‘before there is a need for major remedial action’. IGIS said that it takes a risk-based approach to agency inspections:
IGIS has a risk based approach to its inspection program, targeting high risk activities and activities with the potential to affect the lives or rights of Australian citizens detrimentally.
2.26
The IGIS also receives and investigates complaints about the activities of an intelligence agency. Complaints may be made by a member of the public, current or former employees of an intelligence agency. The IGIS may receive and investigate public interest disclosures about suspected wrongdoing within intelligence agencies, and while matters may be resolved quickly due to the full access the IGIS has, the IGIS may also conduct a formal inquiry. The IGIS said that details regarding individual complaints, and their resolution, are not made public but the complainant is provided with ‘as much information about the outcome as possible, within security restrictions’.
2.27
Certain activities must be notified to the IGIS, including:
copies of emergency warrants or authorisations made by agency heads (in place of a minister);
ASIO must notify the IGIS of any use of force against a person during the execution of a warrant;
the authorisation of a ‘special intelligence operation’; and
matters relating to its special terrorism powers.
2.28
The IGIS also liaises with other domestic accountability and integrity agencies, including the ACLEI, the Australian Human Rights Commission (AHRC), Inspector-General of the Australian Defence Force (IGADF), Office of the Australian Information Commissioner and Office of the Commonwealth Ombudsman. IGIS discusses ‘matters of mutual interest such as oversight processes, administrative improvements, implementation of legislative change, and significant developments in relevant domestic and global issues’. The Inspector-General attends the Integrity Agencies Group (IAG) meeting, which brings together the heads of integrity agencies and other relevant Commonwealth departments.
2.29
The IGIS appears before the Senate Finance and Public Administration Committee during Senate Estimates hearings.
Resourcing
2.30
There are currently 34 staff of the IGIS employed under the Public Service Act 1999, and the Inspector-General. As at 30 June 2020, five employees were part-time and all staff were employed on an ongoing basis.
Parliamentary Joint Committee on Intelligence and Security (PJCIS)
2.31
The PJCIS is established pursuant to section 28 of the Intelligence Services Act 2001 (IS Act). The functions of the Committee are set out at section 29 of the IS Act. The Committee was first established in 1988 as the Parliamentary Joint Committee on the Australian Security Intelligence Organisation, expanded to include ASIS and ASD in 2002, and expanded again to all AIC agencies in 2005.
2.32
The PJCIS is established after the commencement of the first session of each Parliament, and consists of 11 members, 5 of whom must be Senators and 6 of whom must be members of the House of Representatives. A majority of the Committee’s members must be Government committee members.
Current functions of the PJCIS
2.33
The PJCIS undertakes oversight of the six traditional AIC agencies, including reviewing administration and expenditure, annual financial statements, monitoring and reviewing the performance of the Australian Federal Police (relating to functions under Part 5.3 of the Criminal Code Act 1995.), and reviewing any matter in relation to AIC agencies referred by the responsible Minister, the Attorney-General or a resolution of either House of Parliament. The Committee is also required to undertake reviews of relevant legislation.
2.34
The PJICS conducts an annual review of the administration and expenditure of the AIC agencies, with a report presented to the Parliament and published to the Committee’s webpage.
2.35
In reviewing the administration and expenditure of AIC agencies, the Committee also examines relevant administration matters for each agency including its legislation, strategic direction and organisational structure, interactions with specialised oversight bodies including the IGIS and the Commonwealth Ombudsman, human resources management, security and public accountability and transparency.
2.36
By resolution, the PJCIS may request the responsible Minister or Attorney-General to refer a matter in relation to the AIC agencies’ activities.
2.37
Under Section 29 of the IS Act, the PJCIS is limited in its functions, and may not:
review anything done by ONI in its leadership of the NIC, extending to its role in prioritising intelligence activities and requirements and allocating resources accordingly;
regarding the AIC, review the intelligence gathering and assessment priorities, sources of information, operational assistance or operational methods, operations of, or activities not affecting an Australian person;
review information provided by a foreign government or agency of a foreign government where that government has not consented;
review rules made under s. 15 of the IS Act;
review the privacy rules under s. 53 of the ONI Act;
conduct inquiries into individual complaints about the activities of the AIC, AFP or Immigration and Border Protection Department (now Home Affairs);
review the content or conclusions of assessments or reports made by DIO or ONI, or review the sources of information which led to such reports;
review anything done by ONI in carrying out the evaluation functions in s. 9 of the ONI Act;
review sensitive operational information or operational methods available to the AFP; or
review the particular operations of the AFP.
2.38
The PJCIS may request briefings from the following people, but is not able to require anyone briefing the Committee to disclose operationally sensitive information:
the Director-General of Security;
the Director-General of ASIS;
the Director-General of ASD;
the Director-General of National Intelligence;
the Inspector-General of Intelligence and Security;
the Commissioner of the AFP;
the Secretary of the Immigration and Border Protection Department.
2.39
The IS Act grants the power for the Committee to require a person to appear before it and give evidence or produce documents, although this power only applies to the heads of AIC agencies and cannot be used for the IGIS or staff.
2.40
Schedule 1 of the IS Act sets out further limitations on the PJCIS’ activity, including that the Committee may not require operationally sensitive information to be provided, including:
sources of information, operational assistance or operational methods available to the AIC;
particular operations that have been, are being, or are proposed by the AIC;
information provided by or for an agency of a foreign government where that government does not consent to the public disclosure of the information;
information that might or would prejudice Australia’s national security or the conduct of Australia’s foreign relations.
2.41
In addition to reports on reviews and inquiries undertaken, the PJCIS produces and publishes an annual report on its activities.
Resourcing
2.42
The PJCIS is supported by a dedicated secretariat comprised of staff of the Department of the House of Representatives, including research and administrative staff working to a Committee Secretary. Technical advisers from government agencies are seconded from time to time. All staff supporting the PJCIS are required, under the IS Act, to be security-cleared at the level of ASIS staff (Positive Vetting).
Australian Commission for Law Enforcement Integrity and Parliamentary Joint Committee on Law Enforcement
2.43
The Australian Commission for Law Enforcement Integrity (ACLEI) supports the Integrity Commissioner to investigate allegations of corruption in Commonwealth law enforcement agencies, including:
Australian Competition and Consumer Commission;
Australian Criminal Intelligence Commission (including the former Australian Crime Commission, the former CrimTrac Agency and the former National Crime Authority);
Australian Federal Police (including ACT Policing);
Australian Prudential Regulation Authority;
Australian Securities and Investments Commission;
Australian Taxation Office;
Australian Transaction Reports and Analysis Centre (AUSTRAC);
Department of Home Affairs, including the Australian Border Force; and
prescribed aspects of the Department of Agriculture, Water and the Environment.
2.44
The Parliamentary Joint Committee on Law Enforcement (PJCLE) is established pursuant to the Parliamentary Joint Committee on Law Enforcement Act 2010, with functions relating to performing oversight of the Australian Crime Commission (now Australian Criminal Intelligence Commission) and AFP. The committee reports to both Houses on the performance of both agencies and examines annual reports.
2.45
The PJCLE also examines trends and changes in criminal activity, practice and methods. The committee does not undertake operations or investigate matters relating to criminal activity, or reconsider the findings of ACIC investigations. Similar to the PJCIS, the committee may not review the sensitive operational information or operational methods available to the agencies over which it has oversight, or review their particular operations or review information from foreign governments without that government’s consent. The committee is also restricted from examining individual complaints about the ACIC or AFP, and may not monitor, review or report on the performance of the AFP under Part 5.3 of the Criminal Code Act 1995.
2.46
Under section 4 of the ONI Act, the AFP is an agency with an intelligence role or function, to the extent that it ‘collects, correlates, analyses, produces or disseminates intelligence that relates, or may relate, to national intelligence priorities, requirements or capabilities’, or ‘maintains a capability that materially assists’ the above, or is developing the capability which would materially assist.
2.47
The AFP’s intelligence function supports the AFP Executive and operational functions by providing intelligence for use in decision making in the AFP. The AFP’s intelligence function is responsible for the production of intelligence relating to criminal activity and national security matters, including: people smuggling; illicit drugs; human trafficking and sexual servitude; economical and/or financial; counter-terrorism; high-tech crime; and child sex tourism.
Commonwealth Ombudsman
2.48
Under the Ombudsman Act 1976 (Ombudsman Act), the Commonwealth Ombudsman has oversight of the non-intelligence functions of the ACIC and AUSTRAC. This function would continue on passage of the Bill.
2.49
The Commonwealth Ombudsman can investigate complaints about the actions of AFP members and the policies, practices and procedures of the AFP as an agency. The Ombudsman reports annually on the effectiveness of the AFP’s handling of complaints.
2.50
The Ombudsman also has a specific inspection and reporting function in relation to the ACIC’s legislative compliance when using covert or intrusive powers. The Ombudsman said that it was ‘crucial’ that the IGIS and Ombudsman’s Office are able to share information and complaints, and welcomed the ‘enhanced complaint transfer arrangements the Bill introduces’ between the two offices.
2.51
The Ombudsman is not entitled to require the production of information concerning matters which would prejudice the security, defence or international relations of the Commonwealth, or are in the possession or control of the ACC (now ACIC) or the Integrity Commissioner, if its release would endanger the life of a person or create the risk of serious injury.
Independent National Security Legislation Monitor (INSLM)
2.52
The Independent National Security Legislation Monitor (INSLM) was established by the National Security Legislation Monitor Act 2010 (INSLM Act). Under Section 6 of the INSLM Act, the INSLM’s functions are to review, on the INSLM’s own initiative, the operations, effectiveness and implications of Australia’s counter-terrorism and national security legislation, and any other Commonwealth law that relates to these matters. Further, the INSLM has the power:
(b) to consider, on his or her own initiative, whether any legislation mentioned in paragraph (a):
(i) contains appropriate safeguards for protecting the rights of individuals; and
(ii) remains proportionate to any threat of terrorism or threat to national security, or both; and
(iii) remains necessary;
2.53
The PJCIS may refer matters to the INSLM for consideration, and has done on one occasion. The Telecommunications and other Legislation Amendment (Assistance and Access) Act 2018 and related matters was referred to the INSLM by the PJCIS, with the specific request to consider whether the Act achieves an appropriate balance: whether the Act contains sufficient safeguards for protecting the rights of individuals and remains proportionate and necessary.
2.54
The INSLM also conducts statutory reviews as set out in the INSLM Act.
2.55
Section 6 of the INSLM Act also sets out the functions that the INSLM does not perform, including:
reviewing the priorities and use of resources by agencies that have functions relating to (or are involved in the implementation of) counter-terrorism and national security legislation; and
consider individual complaints about the activities of Commonwealth agencies involved in counter-terrorism and national security legislation.