The Committee was established under the Intelligence Services Act 2001. The Act governs its size, structure, functions, procedures and powers. In its last Annual Report, the Committee noted that the functions of the Committee had expanded considerably. It has become regular practice to refer new anti-terrorist legislation to the Committee for review at set intervals. This expanded role has ensured a high level of activity for the Committee over the year. In addition, in line with the recommendations of the Flood inquiry and the Committee’s own suggestions for changes, made as a result of the experience of its first Parliament in operation, the Intelligence Services Act was amended in 2005 to expand the Committee’s size and structure. The name of the Committee changed from the Joint Parliamentary Committee on ASIO, ASIS and DSD to the Joint Parliamentary Committee on Intelligence and Security.

Size and structure

The changes in structure came into effect on 8 December 2005 with the appointment of two additional members. The Committee is a joint committee of the Parliament comprised of nine members, five government members and four opposition members. Of the five government members, three are from the House of Representatives and two are from the Senate. The Opposition members are comprised of two members of the House and two Senators.

Members are appointed by resolution of the House or the Senate on the nomination of the Prime Minister or the leader of the Government in the Senate. Prior to nomination, consultation must take place with the leaders of recognised parties in each of the Houses.

Functions

Under an amended section 29 of the Intelligence Services Act, the Committee is now charged with reviewing the administration and expenditure of all six intelligence agencies: ASIO, ASIS, DSD, DIGO, DIO and ONA. Other matters may be referred by the responsible Minister or by a resolution of either House of the Parliament. In addition to this function initially within the Act, the Committee is required to review the operation, effectiveness and implications of:

• the amendments made by the Security Legislation Amendment (Terrorism) Act 2002 and the following acts:

  the Border Security Legislation Amendment Act 2002;

  the Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002; and

  the Suppression of the Financing of Terrorism Act 2002;

• Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979; and
• the amendments made by the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2003, except item 24 of Schedule 1 to that Act (which included Division 3 of Part III in the Australian Security Intelligence Organisation Act 1979).

Amendments to the Criminal Code Act 1995, made in March 2004, further tasked the Committee with reviewing regulations which specify organisations as terrorist organisations for the purposes of section 102.1 of the Criminal Code. The Committee’s findings on its reviews of these regulations are to be tabled before the end of the disallowance period, 15 sitting days from the tabling of the regulation.

Procedures and powers

The Committee is a statutory committee. Unlike other statutory or standing committees of the Parliament, the Parliamentary Joint Committee on Intelligence and Security has very specific limitations placed on its operations, dictated by the nature of the agencies it scrutinises and the subject matters with which it deals. Balancing national security and parliamentary scrutiny remains a constant challenge for the Committee.

Limitations are broadly directed at Committee scrutiny of operational matters. Operational matters are monitored by the Inspector-General of Intelligence and Security, who operates under his own Act of Parliament. Specific prohibitions on the Committee’s activities include the following:

• reviewing the intelligence gathering priorities of the agencies;
• reviewing sources of information, other operational assistance or operational methods available to the agencies;
• reviewing particular operations, past, present or proposed;
• reviewing information provided by a foreign government or its agencies, without the consent of that government to the disclosure;
• reviewing an aspect of the activities of the agencies that does not affect an Australian person;
• reviewing rules within the Act relating to the privacy of Australian citizens; or
• conducting inquiries into individual complaints in relation to the activities of the agencies.¹

For statutory committees of the Parliament, where its governing act is silent, a committee’s powers and privileges are those of all committees of the Parliament. These powers include the power to require the attendance of witnesses and the production of documents. The Intelligence Services Act specifies that the Committee may give a person written notice requiring the person to appear before the Committee with at least 5 days notice, as well as notice of any documents required by the Committee.² However, the Minister may prevent the appearance of a person (not an agency head) before the Committee or, in order that operationally sensitive information will not be disclosed, prevent the provision of documents to the Committee. To achieve this, the Minister must provide a certificate outlining his opinion to the presiding member of the Committee, to the Speaker of the House of Representatives, the President of the Senate and the person required to give evidence or produce documents.³

The Intelligence Services Act sets out that the Committee must not require a person or body to disclose to the Committee operationally sensitive information.⁴ There is also a protection against the disclosure in Committee reports of operationally sensitive information. Under subclause 7(1) of Schedule 1, the Committee must not disclose in a report to a House of the Parliament specified information, namely:

• the identity of a person who is or has been a staff member of ASIO, ASIS or DSD; or
• any information from which the identity of such a person could reasonably be inferred; or
• operationally sensitive information that would or might prejudice:
• Australia’s national security or the conduct of Australia’s foreign relations; or
• the performance by an agency of its functions.⁵

Unlike the reports of other parliamentary committees, which are privileged documents which may not be disclosed to anyone outside the committee itself until after tabling, the Intelligence and Security Committee must obtain the advice of the responsible Minister or Ministers as to whether any part of a report of the Committee discloses a matter referred to in subclause 7(1) of Schedule 1. A report may not be tabled until this advice is received.

Finally, to protect the national security status of the Committee’s work and to maximise the Committee’s access to information, the Intelligence Services Act requires that staff of the Committee must be cleared for security purposes to the same level and at the same frequency as staff members of ASIS.⁶

Changes to the Intelligence Services Act

As a result of the Flood review of the Australian Intelligence Agencies, released in July 2004, changes to the Intelligence Services Act were foreshadowed. In the last year, a number of amendments were made. Apart from the structural changes noted above, the amendments expanded the functions of the Committee to include oversight of the analytical intelligence agencies, the Office of National Assessment (ONA) and the Defence Intelligence Organisation (DIO) and included the Defence Imagery and Geospatial Organisation (DIGO). In 2006, the Committee conducted its first review of administration and expenditure of ONA, DIO and DIGO in conjunction with the three original agencies, ASIO, ASIS and DSD. On-going legislative review and the continuing review of terrorist listings have meant a high tempo of work in the last year.

The broader scope of the Committee’s mandate, including wide ranging legislative review, the review of the listing of terrorist organisations and the review of the administration and expenditure of all six intelligence agencies, necessitated not only the enlargement of the Committee but also the power to form sub-committees to deal with the volume of work. The Committee has not yet availed itself of this power.

This year also saw the appointment of the Committee’s first Deputy Chair, Mr Anthony Byrne, MP.

Intelligence Services Act 2001, subsection 29(3) Back

Intelligence Services Act 2001, clause 2 of Schedule 1 Back

Intelligence Services Act 2001, subclause 7(1) of Schedule 1. Back

Intelligence Services Act 2001, clause 21 of Schedule 1. Back