Role of the PJCIS and the IGIS
4.1
The Committee notes the conflicting positions of the Independent Intelligence Review (IIR) and Comprehensive Review of the Legal Framework of the National Intelligence Community (Richardson Review) in relation to the role of the Parliamentary Joint Committee on Intelligence and Security (PJCIS). The IIR recommended that the oversight role of the PJCIS be expanded to all agencies which make up the National Intelligence Community (NIC). The Richardson Review did not make recommendations to expand the oversight role of the PJCIS to further intelligence agencies, however commented that there was a strong case for Inspector-General of Intelligence and Security (IGIS) oversight of the ACIC and AUSTRAC intelligence functions.
4.2
The Office of National Intelligence Act 2018 (the ONI Act) defines the NIC to mean:
Each intelligence agency;
Each agency with an intelligence role or function.
4.3
The ONI Act defines ‘agency with an intelligence role or function’ as:
a.
AUSTRAC (within the meaning of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006); or
b.
The Australian Federal Police; or
c.
The Department of Home Affairs; or
d.
The Defence Department (other than AGO or DIO);
To the extent that the agency:
e.
Collects, correlates, analyses, produces or disseminates intelligence that relates, or may relate, to national intelligence priorities, requirements or capabilities; or
i.
Maintains a capability that materially assists in doing any of the things mentioned in paragraph (e); or
ii.
Is developing a capability that is designed to materially assist in doing any of the things mentioned in paragraph (e).
4.4
Intelligence agencies are defined under the ONI Act as the following:
a.
ASD, ASIO, ASIS, AGO or DIO; or
b.
The agency known as the Australian Criminal Intelligence Commission.
4.5
The Committee notes the position of some inquiry participants, including Dr Keiran Hardy and Professor George Williams AO, that oversight by the IGIS and PJCIS should extend to the fullest extent of the legislated definition of the NIC.
4.6
The Committee supports the extension of the IGIS’ oversight arrangements to the ACIC and AUSTRAC, which will provide consistent and specialised intelligence oversight to these agencies. The Committee considers that the PJCIS should similarly have oversight of these bodies, concluding that both AUSTRAC and the ACIC should be scrutinised by the PJCIS.
4.7
The Committee further considers that it is necessary to extend oversight to the specialised intelligence functions of the AFP. Accordingly, the committee considers legislation governing both the PJCIS and the IGIS should be amended to support this.
4.8
The Committee notes that the Department of Home Affairs presently exercises intelligence functions. While these functions are long standing, consistent with the longstanding separation of intelligence collection and policy, the Richardson review recommended that ‘Home Affairs’ existing electronic surveillance powers be transferred to the ABF.’
4.9
The Committee also notes that the Richardson review goes on to further caution that ‘The Review would have significant concerns if Home Affairs were to be granted new powers for the purpose of intelligence collection. If such a case ever emerged, we think it would be appropriate to vest such functions or powers in a separate agency, to ensure appropriate independence, ministerial control and accountability.’
4.10
The Committee notes that the intelligence functions of Home Affairs are overseen by a Minister, and to this extent may be distinguished from other operational agencies.
4.11
Accordingly, the Committee does not recommend expansion of oversight to the Department of Home Affairs at this time.
4.12
The Committee recommends that the Bill and, to the extent necessary, other legislation be amended to expand the oversight remit of the Parliamentary Joint Committee on Intelligence and Security and the Inspector-General of Intelligence and Security to cover the intelligence functions of the Australian Federal Police.
4.13
The Committee considers that the Bill should be amended to ensure that the PJCIS should have the same oversight of ACIC and AUSTRAC that is proposed for the IGIS.
4.14
The Committee notes the Bill expands the oversight of the Inspector-General of Intelligence and Security to the Australian Criminal Intelligence Commission (ACIC), and recommends that the Bill be amended to similarly provide the Parliamentary Joint Committee on Intelligence and Security with oversight of the ACIC.
4.15
The Committee notes the evidence received about the IGIS’ oversight functions of the ‘intelligence life-cycle’ of ACIC and AUSTRAC. The Law Council of Australia proposed the definition of ‘intelligence function’ in relation to ACIC and AUSTRAC in subsection 3 (1) of the IGIS Act (item 162 of Schedule 2 to the Bill) be amended to include the acts and practices of ACIC and AUSTRAC in relation to the retention and destruction of intelligence. The Committee recommends that the government consider these matters and make amendments to the Bill as appropriate.
4.16
The Committee recommends that the Government review the scope and adequacy of legislative provisions regarding the retention and destruction of intelligence material, with a view to clarifying relevant obligations for members of the Australian Intelligence Community undertaking collection, analysis and policy, and the role of oversight bodies in safeguarding any such obligations.
4.17
The Committee notes the increased workload of the IGIS and the PJCIS due to structural changes within the NIC. Extending oversight to the NIC agencies would place a significantly higher workload onto these bodies, which could have the unintended consequence of diluting oversight rather than strengthening it. Staffing has been a consistent area of focus for NIC agencies, as noted in the Committee’s recently presented Reviews of Administration and Expenditure 2018-19, 2019-20.
4.18
As the agencies themselves grow, and their work becomes more complex as technologies and methodologies change, the oversight of that work will also grow more challenging and complex. Staffing for the oversight agencies will need to be considered to ensure that it can be conducted to the standard necessary.
4.19
In its most recent Annual Report, the Committee recommended that Section 29 and Schedule 1 of the Intelligence Services Act 2001 be reviewed. Should this recommendation be accepted, the committee would consider it appropriate to consider a range of issues regarding the Committee’s scope and powers, including those raised by submitters, and those canvassed in the IIR and Richardson reviews.
Coordination of Oversight
4.20
The Committee notes the current Integrity Agencies Group (IAG) meeting, which occurs twice-yearly to bring together the heads of integrity agencies and other relevant Commonwealth departments. The IAG provides a forum for coordination and promotion of integrity across Commonwealth institutions. Meetings are chaired by the Australian Public Service Commissioner.
4.21
The Committee heard that concerns over duplication of oversight for the ACIC and AUSTRAC could be resolved by agencies working together in a practical way. The Committee agrees that the duplication of oversight could be detrimental to oversight agencies with limited resources, but is satisfied that the agencies can draw on productive working relationships to address any matters that arise.
4.22
The Committee considers that a meeting of the heads of intelligence oversight and integrity bodies be convened, in a manner similar to the existing IAG meetings. The Intelligence IAG meetings should take place twice-yearly, and discuss coordination and promotion of integrity across the agencies within the National Intelligence Community.
4.23
The Committee recommends that the Australian Government consider convening a meeting of the heads of intelligence integrity agencies in a manner similar to the existing Integrity Agencies Group meetings. The Intelligence IAG should meet twice yearly to discuss coordination and promotion of integrity across agencies within the National Intelligence Community.
4.24
The Committee recommends that, following implementation of the recommendations in this report, the Bill be passed by the Parliament.
Senator James Paterson
Chair
1 February 2022