Opposition Dissenting Report

Introduction

1.1The security of the nation is the primary responsibility of any federal government.The Parliamentary Joint Committee on Intelligence and Security (the Committee) is widely recognised as the most important and functional committee of the Parliament and has played a key role in supporting successive federal governments to protect the national security of Australia.Its members, past and present have prided themselves on working together constructively in a bipartisan way in the national interest.It is this history of bipartisanship since the Committee was first formed in August 1988 which has seen an effective oversight of our National Intelligence Community Agencies, and the successful passage of complex and contested national security legislation through the Parliament without rancour or division.

1.2This Inquiry, in part, examines 10 recommendations made by Dennis Richardson AC in the Comprehensive Review of the Legal Framework of the National Intelligence Community (the Comprehensive Review).This Inquiry also examines whether changes should be made to the direction requirements made by the Foreign Minister to ASIS.Further, this Inquiry examines whether there should be a change to the membership composition and quorum requirements of the Committee.

1.3At the outset, the Opposition affirms all of the 10 recommendations contained within the Comprehensive Review which are the subject of this Inquiry.The Opposition agrees with those recommendations, as it does with the changes sought by the Government in respect to amending Part 2 of the IS Act, that is in relation to clarifying the current uncertainty relating to the level of detail required in a Ministerial direction issued under s.6(1)(e) of the IS Act.

1.4The sole point of contention between Government and Opposition members of the Committee arises out of the Government’s unilateral proposal to change the member composition and quorum requirements of the Committee.

1.5It is with considerable regret that the Opposition feels compelled to provide a dissenting report in this Inquiry.Opposition Members note that this is the first time in 17 years that the Committee has not reached consensus on its recommendations.Not since the Committee’s Report on the review of the original terrorist listing of the Kurdistan Workers Party (PKK)[1] has there been a dissenting report from an opposition in this Committee.

Changes to the Committee

1.6The Committee is peculiar in nature from all other committees of the Parliament in that it receives classified briefings from Security Agencies such as the Australian Security Intelligence Organisation (ASIO), the Australian Secret Intelligence Service (ASIS), the Australian Geospatial-Intelligence Organisation (AGO), the Defence Intelligence Organisation (DIO), the Australian Signals Directorate (ASD) and the Office of National Intelligence (ONI).Classified information is shared with members of the Committee up to the most classified level, namely Top Secret.Just like relevant Ministers, Members of the Committee are not required to possess security clearances.

The status quo regarding membership of the Committee

1.7Pursuant to s.28(2) and (3) of the IS Act:

(2) The Committee is to consist of 11 members, 5 of whom must be Senators and 6 of whom must be members of the House of Representatives.

(3) A majority of the Committee’s members must be Government members.

1.8The appointment of members of the Committee is made pursuant to clause 14 of Schedule 1 of the IS Act, which provides:

(1) The members who are members of the House of Representatives must be appointed by resolution of the House on the nomination of the Prime Minister.

(2) Before nominating the members, the Prime Minister must consult with the Leader of each recognised political party that is represented in the House and does not form part of the Government.

(3) The members who are Senators must be appointed by resolution of the Senate on the nomination of the Leader of the Government in the Senate.

(4) Before nominating the members, the Leader of the Government in the Senate must consult with the Leader of each recognised political party that is represented in the Senate and does not form part of the Government.

(5) In nominating the members, the Prime Minister and the Leader of the Government in the Senate must have regard to the desirability of ensuring that the composition of the Committee reflects the representation of recognised political parties in the Parliament.

(6) A person is not eligible for appointment as a member if the person is:

(a) a Minister; or

(b) the President of the Senate; or

1.9By convention however, members of the Committee are personally chosen by the Prime Minister in consultation with the Leader of the Opposition.

The proposed amendments

1.10Schedule 1, Part 3 of the Bill would amend the IS Act to provide that the Committee is to consist of thirteen members, comprised of at least two Government senators, two Government members of the House of Representatives, two non-Government senators and two non-Government members of the House of Representatives.The remaining five members could be drawn from either chamber.It also raises the quorum requirement from six to seven members.

1.11There is no proposal to amend Clause 14 of Schedule 1 of the IS Act, namely to the legislative manner in which members are appointed to the Committee.

The process of the Inquiry

1.12The manner in which the Government has conducted this Inquiry has been irregular, rushed and contrary to the good conduct of a national security inquiry of this importance.

1.13On 29 March 2023, the Attorney-General referred the Bill to the Committee for inquiry and report.The Committee was asked to report by 28 April 2023, less than one month later. No justification was provided for this extremely short timeline.

1.14This unreasonably short timeline for the inquiry meant stakeholders were given just 5 business days to provide submissions.Such a short timeframe is disrespectful to stakeholders and otherwise unacceptable when it involves the examination of important amendments to national security legislation.

1.15The tight deadline set by the Government proved to be unworkable for the Committee whose members were required to review the submissions, hold a public hearing, draft a report and consider its contents.For the Government to continue to place stakeholders, the members of the Committee and its Secretariat who are already under significant workload pressures, under such inordinate pressure on legislation which is not so time sensitive is inexcusable and is most certainly contrary to the Set the Standard Report on the Independent Review into Commonwealth Parliamentary Workplaces [2]- see Principle 5.[3]

1.16Stakeholders and the Committee’s work is hindered by the undue haste in which this Inquiry has been conducted.The Law Council in its submission said:

“The Law Council has been unable to consider all aspects of the Bill in detail because of the limited time for consultation, nor has it had the opportunity to adequately consult with its membership on the proposed reforms.”[4]

1.17Similar complaints were made in other submissions and correspondence received by the Committee.[5]

The evidence

1.18In its written submission, the Attorney-General’s Department claimed that the amendment to s.28(2) of the IS Act is “intended to allow for greater flexibility in determining PJCIS membership while retaining the requirement for representation of both the Senate and the House of Representatives, and Government and non-Government members.It also raises the quorum requirement accordingly.Oversight and accountability by an expanded PJCIS will provide confidence to the Australian public that intelligence and security agencies are subject to robust parliamentary oversight.”[6]

1.19None of the other written submissions included any reference to the changes to the composition of the Committee.

1.20In oral evidence given on 11 April 2023, when asked about the risks involved in increasing the number of people on the Committee and the risk of classified information being leaked, the Director-General of Security said:

“’Need to know’ is a sound principle.And yes, the more people know something, the risk increases.”[7]

1.21The Director-General was also asked whether he held any concerns about members being on the Committee who were not from parties of government.He responded:

“… the make up of this committee is very much a matter for government and the parliament.It wouldn’t be right for me to comment on that.My only ask of this committee would be that secrets are kept secret.Beyond that, the nature and the composition of this committee is a matter for government and parliament.”[8]

1.22In response to a question on notice, the Attorney-General’s Department conceded that it did not consult with or advise any non-Government parliamentarians on the proposed changes to the membership and composition of the Committee.It also conceded that these measures were a recommendation of the Government.The Attorney-General’s Department also suggested that it did consult with officers from the National Intelligence Community agencies and the Departments of the Prime Minister and Cabinet, Defence, Foreign Affairs and Trade, Home Affairs and Infrastructure, Transport, Regional Development, Communications and the Arts and “no comments were received on the proposed changes to the composition of the Committee.”[9]

Opposition Comment

1.23No appropriate justification has been provided to the Committee by the Attorney-General as to the compression of relevant timeframes in the conduct of this Inquiry.The Committee relies heavily upon well researched, considered, meaningful submissions made by stakeholders in order to do its important work.If the Committee is to properly perform its statutory role of oversight of intelligence agencies and relevant legislation, it must be afforded appropriate timeframes in which to conduct its work, unless exceptional circumstances apply.The Government has tacked on these proposed reforms to a Bill, the contents of which are not time sensitive.The former and current Governments have been working their way through the Comprehensive Review’s 203 recommendations since December 2019.

1.24There is no evidence that supports the assertion by the Attorney-General’s Department that the proposed changes to the composition of the Committee would lead to greater oversight and accountability of Australia’s intelligence and security agencies.Simply by adding a further two members of the Committee would not lead to any greater parliamentary oversight.Indeed, the opposite may occur.The Committee has proven its agility over the years and that its composition and strict quorum requirements encourages members to attend its many regular meetings and take an active interest in becoming subject specific experts.To allow more members on the Committee, could result in a perverse outcome by sharing the responsibility between more members, this could result in a reduction in the knowledge base of individual members.

1.25In addition, it is important to note that the proposed amendments to s.28(2) of the IS Act could result in the Government enjoying an overwhelming majority of nine positions on the Committee, with the non-Government members being limited to just four positions.The allocation of those four places could in theory be allocated to members who are not from the Opposition.That is, they could be filled by independents or minor parties.This is unacceptable to the Opposition.Such an outcome would not only significantly weaken the utility of the Committee’s oversight responsibilities, but it would almost certainly impact upon the bipartisan nature and good standing of the Committee.It could also create a corporate knowledge gap for relevant members of the Opposition who may be called to serve on the Committee after a change of government.The cycle would then repeat itself.The Opposition accepts that the government of the day should retain a majority on the Committee as currently required by s.28(3) of the IS Act, but it should not enjoy an overwhelming majority.

1.26The Opposition considers that the only members who should sit on the Committee should be from parties of government.

1.27Further, the addition of two more members to the Committee does increase the risk of classified material being leaked, either intentionally or inadvertently as the Director-General of Security stated in his oral evidence.Axiomatically, the less people who know a secret, the less chance that secret has of falling into the wrong hands.The significance of the “need to know” principle has recently been amplified in the leaks of classified information alleged to have been perpetrated by US Air National Guardsman, 21-year-old Jack Teixeira.

1.28The Opposition is greatly concerned that the Government’s decision to increase the number of members of the Committee is as a result of a deal done between the Government and the cross-bench, and that the Prime Minister intends to appoint at least one member of the crossbench as one of the two additional members of the Committee.The success of the Committee over the years is in part, as a result of it being comprised of members of the parties of government which have a stake in ensuring that national security legislation is effective, workable, consistent and appropriate to the risks faced, no matter which party is in government.This is important because, with only one exception, the Committee has only ever been comprised of members of parties of government. This has underpinned the strong bipartisan culture of the committee which has provided a secure negotiating forum for the parties of government to resolve differences about sensitive and important national security legislation in the national interest. The addition of a member of the crossbench risks undermining the trust and confidence built up on the Committee over successive parliaments, and render it simply like any other committee of the Parliament. It is not possible to separate the high regard the Committee is held in by stakeholders, parliamentarians and the media, for its constructive and bipartisan approach from the composition of the membership of the Committee.

1.29Given the history of bipartisanship on the Committee, if the government believed these changes were necessary and urgent they could have approached this inquiry differently, including by consulting with and seeking the support of the Opposition. Instead, by unilaterally proposing changes to the Committee as part of a rushed inquiry, the government has given the impression that a political deal has been done with the crossbench to fundamentally alter the composition and therefore the culture of the Committee.

1.30The Opposition also opposes the proposed changes to the Committee composition which lowers the prescribed representation from the Senate from five Senators to four [10] and from six to four Members from the House of Representatives [11].The proposed changes permit the admission of the balance of the remaining five members to be chosen from either Chamber.The Committee is a joint committee.It is important that both chambers are appropriately represented at meetings and hearings.The proposed amendments would result in a 20% reduction in the prescribed number of Senators required to sit on the Committee and a 33% reduction in the number of prescribed Members from the House of Representatives.In other words, the proposed amendments could result in one chamber being underrepresented.

1.31The Opposition is concerned that the proposed changes to the composition of the Committee is as a result of internal politics within the Government.Membership on the Committee is a sought-after prize for many members of Parliament.After the May 2022 election, the Government was not able to resolve who its members of the Committee would be for at least three months.Despite the Committee being widely recognised as the most important committee of the Parliament, it had not been capable of being reconvened until 6 September 2022.The Committee’s important work should never be held hostage by any party’s internal machinations.

1.32The proposed amendments to s.28(2) of the IS Act were not recommended by Mr Richardson AC in the Comprehensive Review.If these amendments were considered necessary or appropriate, one wonders why they were not included in the most detailed examination of the intelligence and security framework since the Hope Royal Commissions of the 1970s and 1980s.

1.33Indeed, on the evidence of the Attorney-General’s Department, the proposed amendments to the composition of the Committee were not recommended by any stakeholder.The proposed changes to s.28(2) of the IS Act emanate from the Government itself, entirely devoid of any consultation with the Parliament or stakeholders outside of the Executive.The Government cannot rely upon the fact that no government department has objected to the changes, when as the Director-General of Security noted in his evidence, these are matters for the Government and the Parliament.

Recommendations

1.34The Opposition has not sought to block the proposed amendments to s.28(2) of the IS Act for opposition’s sake.Rather it has always sought to be constructive in its approach to the reform of important national security legislation.

1.35The Opposition makes the following alternative recommendations to address any concerns with the composition of the Committee, perceived or otherwise:

Recommendations

That Part 3 of Schedule 1 of the Bill be amended to ensure that:

The Government should have six members on the Committee, whilst non-Government members should be restricted to five and with no changes to the quorum requirements contained in s.28(3) of the IS Act; or
In the alternative, if the Government insists on increasing the number of members on the Committee to thirteen, then the Government should be restricted to seven members and the non-Government members to six with a change to the quorum requirements to seven members; and
Only members of parties of government are eligible to be appointed to the Committee; or

That Part 3 of Schedule 1 of the Bill be omitted and the issue of the composition of the Committee referred to a further, broader inquiry into the operations of the Committee itself as dictated by the Intelligence Services Act (2001); consistent with the unanimous and bipartisan recommendation of the Committee in its annual report in 2020-21; or
That the government affirm the convention that only members of the parties of government be appointed to the committee; or
That Part 3 of Schedule 1 of the Bill be omitted in its entirety.

Andrew Wallace MP Senator the Hon Simon Birmingham

Deputy Chair

The Hon Andrew Hastie MP The Hon Karen Andrews MP

Senator James Paterson

Footnotes

[1]https___aphref.aph.gov.au_house_committee_pjcis_pkk_report_report.pdf

[2]Set the Standard Report on the Independent Review into Commonwealth Parliamentary Workplaces, Chapter 5.5

[3] Ibid, p.26

[4] Law Council of Australia, Submission 9 dated 6 April 2023, para 2

[5] For example’ see Damon O’Hara Submission 8 dated 6 April 2023, page 2

[6] Attorney-General’s Department, Submission 7 dated April 2023, page 6

[7] Hansard, 11 April 2023, page 15

[8] Hansard, 11 April 2023, page 15

[9] Attorney-General’s Department, Supplementary Submission 7, page 2

[10] With a minimum of 2 Government Senators and 2 Non-Government Senators

[11] With a minimum of 2 Government Members of the House of Representatives and 2 non-Government Members of the House of Representatives