This Bills Digest replaces a preliminary Digest that was published on 3 June 2024 to assist Parliament in early consideration of the Bill.

Purpose of the Bill

The purpose of the Defence Amendment (Parliamentary Joint Committee on Defence) Bill 2024 (the Bill) is to amend the Defence Act 1903 (the Act) to create the Parliamentary Joint Committee on Defence (the Committee).

Structure of the Bill

There is one Schedule to the Bill, which amends the Act. The Schedule has 2 Parts. Part 1 has two items which both commence the day after Royal Assent.

• Item 1 inserts a series of new definitions into subsection 4(1) of the Act.
• Item 2 inserts new Part VIIIAB—Parliamentary Joint Committee on Defence. New Part VIIIAB contains new sections 110AAA to 110AFD.

Part 2 contains a contingent amendment which can only commence after the commencement of the Australian Naval Nuclear Power Safety Bill 2023 (if enacted). The amendment adds consideration of the operations, resources, independence and performance of the Australian Naval Nuclear Power Regulator to the Committee’s functions in proposed section 110ABB.[1]

Background

Over the years, several parliamentary committees have recommended the establishment of a more powerful Defence committee to provide greater scrutiny by the Australian Parliament.[2]

The November 2018 bipartisan report of the Defence Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade (JSCFADT), Contestability and consensus: a bipartisan approach to more effective parliamentary engagement with Defence, noted:

This inquiry commenced as an attempt to establish bipartisanship in defence policy and concluded that under Australia’s system of government, the only feasible way to foster bipartisanship was to establish a new and effective committee that had real powers of oversight along the lines of the Parliamentary Joint Committee on Intelligence and Security (PJCIS).[3]

Most recently, the JSCFADT report Inquiry into international armed conflict decision making recommended establishing an 11-member (6 government and 5 non-government) Joint Statutory Committee on Defence modelled on the PJCIS that could be authorised to receive classified information.[4] The Australian Greens published a Dissenting Report which agreed with the recommendation to establish a Joint Statutory Committee on Defence, subject to the condition that there be a ‘legislated requirement for crossbench members from both houses of Parliament to be members of the committee’ and the oversight role of the Senate Estimates process and relevant Senate committees not be infringed.[5] The issue of committee membership has caused tensions for the PJCIS, and this is likely to be replicated for the proposed new Defence committee (see ‘Policy position of non-government parties/independents’).

The Government agreed with the recommendation but noted further work was required to determine the scope of the proposed committee and its appropriate powers and functions.[6] The Committee is expected to ‘supersede and enhance the Defence-related functions currently undertaken’ by the JSCFADT. Existing arrangements would remain unchanged for scrutiny of Defence matters and legislation by the Senate Standing Committee on Foreign Affairs, Defence and Trade and the Senate Estimates process. The functions of other committees to inquire into Defence matters, like the Joint Committee of Public Accounts and Audit, would not be impacted. [7]

The Bill mirrors similar provisions to those of the PJCIS. The PJCIS is constituted under section 28 of the Intelligence Services Act 2001 and its functions are set out in section 29.

Committee consideration

As at publication, the Bill had not been referred to any committee for report.

Senate Standing Committee for the Scrutiny of Bills

As at publication, the Senate Standing Committee for the Scrutiny of Bills had not commented on the Bill.

Policy position of non-government parties/independents

Opposition

During the Second Reading debate, Shadow Minister for Defence Andrew Hastie expressed broad support for the Bill but foreshadowed the Opposition’s intent to move an amendment to restrict Committee membership to Government and Opposition members only. Should the amendment not pass, the Opposition will not support the Bill.[8]

Senator David Fawcett’s private senator’s Bill, Defence Capability Assurance and Oversight Bill 2024, proposed a new Parliamentary Joint Committee on Defence along similar lines to the PJCIS. The private senator’s Bill also proposes establishing a Defence Capability Assurance Agency and an Inspector-General of Defence Capability Assurance, which the proposed Committee would oversee.

Senator Fawcett has since moved an amendment removing any reference to establishing a Parliamentary Joint Committee on Defence citing the Government’s support for the JSCFADT’s recommendation to set up the Committee. The Supplementary Explanatory Memorandum explaining this amendment noted that the Government’s Bill establishing the Committee will be scrutinised and if required, amendments moved ‘to ensure the Committee’s functions include oversight of the Defence Capability Assurance Agency and the Inspector General of Defence Capability Assurance’.[9]

Australian Greens

In their March 2023 Dissenting Report to the JSCFADT report Inquiry into international armed conflict decision making, the Australian Greens agreed with a recommendation to establish a Joint Statutory Committee on Defence, subject to the condition that there be a legislated requirement for crossbench members of both houses to be members.[10]

While the Bill contains a requirement for consultation with ‘recognised political parties’, the Bill does not contain a requirement for the crossbench to be represented on the Committee.

In 2022, Senator Waters criticised the consultation process for membership of the PJCIS and suggested that as a result the makeup of the PJCIS was undemocratic:

At the last election a third of the population of Australia voted for someone other than the Labor and coalition parties. They elected a diverse parliament, including a record 16 Greens. It was a clear message that people are ready to move beyond a limited two-party system and towards a parliament whose decision-making reflects the diversities of the communities that we represent …

The PJCIS has long been a stitch-up by the two big parties without a single dissenting voice to the old party consensus. We need that dissent because all too often complex national security legislation is presented to this parliament with a phone book of amendments coming out of the PJCIS with little to no warning and is rammed through this place in a matter of hours. When we on the crossbench raise concerns with that or want to refer it to a Senate committee for scrutiny, we're refused because the bill's already been through the PJCIS. But we don't get to participate in that inquiry.[11]

Position of major interest groups

The report of the JSCFADT inquiry into international armed conflict decision making (War Powers Inquiry) noted that the creation of a new parliamentary committee on Defence had support from multiple stakeholders.[12]

Submitters to the JSCFADT War Powers Inquiry proposed a range of different ideas for effective Parliamentary oversight of decisions taken by and for Defence in relation to armed conflict. A significant majority of stakeholders supported increased parliamentary engagement, though they supported a variety of forms of additional engagement, including the establishment of a new Joint Statutory Committee on Defence.[13]

During the JSCFADT War Powers Inquiry, the Department of Defence (Defence) was asked if the JSCFADT made a recommendation to establish a Defence committee similar to the PJCIS, how would Defence best interact with such a committee.[14] Defence’s written response noted:

The establishment of an additional parliamentary committee to inform, and provide parliamentary oversight of, decisions to deploy the ADF beyond existing arrangements is a matter for the Government and Parliament. As stated in Defence’s submission, Defence assesses that current Executive-led decision-making arrangements, as they relate to ADF deployments into international armed conflicts, remain appropriate.

Relevant security factors in considering any proposal to establish a PJCIS-like body would include the critical importance of maintaining timely and flexible decision-making for ADF deployments, and ensuring the ongoing confidentiality of highly classified information. Any such proposal would also need to consider the potential impacts on the ADF’s operational security; the ADF’s relative strategic and tactical advantages over adversaries; and Australia’s international credibility as a security and intelligence partner.[15]

Some commentators have argued that a new parliamentary joint committee on Defence would facilitate greater consideration of specific issues through access to classified material and private briefings while ‘hopefully reinforcing public trust’.[16]

Financial implications

Resourcing associated with the administration of the measures in the Bill is being met from within the existing resourcing of the Department of Defence and transferred to the relevant Parliamentary department.[17] The 2024–25 Federal Budget included measures to establish the Committee, allocating $17.5 million over ten years from 2024–25 and $1.8 million per year ongoing.[18]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[19]

Parliamentary Joint Committee on Human Rights

As at publication, the Parliamentary Joint Committee on Human Rights had not commented on the Bill.

Key issues and provisions

Establishment of the Committee

The first committee is expected to be established under a transitional provision should the Bill receive Royal Assent (Part 1, Item 3). Thereafter the Committee would be established at the commencement of the first session of each new Parliament (proposed subsection 110ABA(1)).

Membership of the Committee

Proposed subsection 110ABA(2) provides that the Committee is to consist of up to 13 Committee members, and must be composed of at least 8 members:

• 2 Senators who are Government members and
• 2 members of the House of Representatives who are Government members and
• 2 Senators who are non-Government members and
• 2 members of the House of Representatives who are non-Government members.

Nomination and appointment of the members is dealt with in proposed section 110AEA.

Members from the House of Representatives are nominated by the Prime Minister after consulting with the leader of each recognised political party represented in the House that does not form part of the Government. Members are appointed by resolution of the House.

Members who are Senators are nominated by the Leader of the Government in the Senate after consulting with the leader of each recognised political party represented in the Senate that does not form part of the Government. Senators are appointed by resolution of the Senate.

The provisions state that when nominating 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 (proposed subsection 110AEA(5)).

‘Recognised political party’ is not defined in the Bill. The Explanatory Memorandum does not provide any assistance. The same term is used in the Intelligence Services Act and also not defined in that Act.

For the purposes of the Commonwealth Electoral Act 1918,‘registered political party means a political party that is registered under Part XI. The Australian Electoral Commission publishes a Register of Political Parties. However, it is unlikely that ‘recognised’ will be interpreted as meaning ‘registered’ when that alternative term is clearly available to Parliament; particularly since subsection 129(2) of the Commonwealth Electoral Act has a definition that applies only within section 129:

(2) In this section:

recognised political party means a political party that is:

(a)  a Parliamentary party;[20] or

(b)  a registered party; or

(c)  registered or recognised for the purposes of the law of a State or a Territory relating to elections and that has endorsed a candidate, under the party’s current name, in an election for the Parliament of the State or Assembly of the Territory in the previous 5 years.

There is no requirement for the Prime Minister or the Leader of the Senate to consult with independents or reflect the number of independents in Parliament when nominating members.

Operation of the Committee

Proceedings and voting controlled by Government

The Committee will be controlled by the Government: proposed subsection 110ABA(3) requires that a majority of the Committee’s members, but no more than 7, must be Government members.

The Chair of the Committee is elected by the Committee members but must be a Government member (proposed section 110AEC). If it is a voting meeting and the Chair is absent, the Committee must appoint a Government member to preside (proposed subsection 110AEE(5)).

The quorum and voting provisions again ensure Government control. A quorum is 6 members when the majority are Government members. An equal number of Government and non-Government members can constitute a quorum if the presiding Committee member is a Government member (proposed section 110AEF). The Government remains in control because the presiding Committee member has both a deliberative vote and a casting vote if the votes are equal (proposed subsection 110AEG(2)).

Proceedings usually in private

The proceedings of the Committee must be conducted in private except:

• with the Minister’s approval or[21]
• when the Committee decides to conduct a review in public of:
  • the annual report of Defence
  • the annual report of the Department of Veterans’ Affairs.[22]

Functions of the Committee

The definition of Australian defence agency is important in defining the scope of the Committee’s functions. The ADF and the Department of Veterans Affairs are both within the proposed definition in item 1 of Schedule 1.

The Australian Submarine Agency is explicitly defined as an Australian defence agency but the Australian Submarine Corporation (ASC) is a Commonwealth corporation solely owned by the Commonwealth Government and represented on the Board by the Department of Finance. Australian Naval Infrastructure Pty Ltd (ANI) is a Government Business Enterprise. ANI’s joint shareholders are the Minister for Finance and the Minister for Defence.[23] It appears neither of those corporations meet the definition of an Australian defence agency and are treated instead the same as other defence industry participants.

Extensive capacity to obtain information and provide advice

The functions of the Committee are considerably broader than those currently exercised by the JSCFADT; they are listed in proposed section 110ABB. Among others, the Committee has specific roles in relation to reviewing administration and expenditure, strategy and planning, capability development and examination and monitoring of war, warlike operations, and significant non‑conflict operations.

The Committee’s functions would include being appraised of and examining war or warlike operations, which seeks to address the JSCFADT’s recommendation from the war powers inquiry to ‘hold the Executive to account for decisions it has taken’ on military deployments without curtailing the prerogative of the Executive Government to take such decisions (proposed paragraph 110ABB(1)(e)).[24]

While matters can be referred to the Committee by a Minister or a resolution of either House, the Committee does not need a referral to exercise the functions listed in proposed section 110ABB.

The Committee may not direct the activities of the ADF, the Inspector-General of the ADF or an Australian defence agency. It also may not do anything within the functions of the PJCIS.

Exclusion of oversight of AGO, ASD or DIO

The intelligence agencies of Defence: the Australian Geospatial-Intelligence Organisation (AGO), the Australian Signals Directorate (ASD) and the Defence Intelligence Organisation (DIO), are already subject to the oversight of the PJCIS. Proposed subsection 110ABB(2) ensures that the Committee cannot review the expenditure or administration of AGO, ASD or DIO. The Committee can, however, request the heads of those agencies to brief the Committee about matters that are related to its functions.

Reporting

Proposed paragraph 110ABB(1)(k) provides for the Committee to report its findings. The Committee would normally report on its findings to the Minister for Defence and each House of the Parliament; however, where a matter has been referred to the Committee by another Minister, there are also reporting obligations to that Minister.

There is a potential conflict between the Explanatory Memorandum and the Bill. The Explanatory Memorandum states that it is a function of the Committee:

k. to report on its findings on a matter to the Minister for Defence, each House of the Parliament and, where a report relates to matters referred by another Minister, to that Minister [emphasis added][25]

The text in the Bill instead uses ‘or’ which introduces some ambiguity:

(k) to report on its findings on a matter to:

(i) if the report relates to matters referred to the Committee by a Minister—that Minister; or

(ii) in every case—the Minister and to each House of the Parliament;

Powers of the Committee

The Committee may request briefings from:

• the head of an Australian defence agency
• the Inspector-General ADF
• the Director-General of National Intelligence (proposed section 110ACB).

Orders to appear and produce documents

There are 2 different provisions governing the Committee’s power to require a person to appear before the Committee or produce documents to the Committee. In either case, a person can only be required to appear if the Committee has reasonable grounds to believe that the person is capable of giving evidence or producing documents relevant to the functions of the Committee (see proposed subsections 110ACC(1) and 110ACD(1)).

Imposing statutory requirements for the exercise of power has the result that a person would be able to ask a court to set aside a notice to appear if the person believed the relevant criteria for issuing a notice did not exist.

Heads and staff members of Australian defence agencies (proposed section 110ACD)

The Committee may require the head of an Australian defence agency to appear before the Committee to give evidence or to produce documents to the Committee. Failure to attend or produce documents would be an offence (proposed sections 110ADB and 110ADD). The agency head can nominate a staff member of the agency to give evidence in their place (proposed subsection 110ACD(4)). Once nominated, the staff member has an obligation to appear (proposed subsection 110ADB(2)).

The definition of staff member of an Australian defence agency includes employees, consultants and contractors, members of the ADF, and people seconded or loaned to Defence agencies (item1).

The headings of proposed sections 110ACC and 110ACD refer to ‘briefing agencies’. This term is not defined in the Bill and in each case the text of the provision refers only to Australian defence agency. Neither provision appears to have any wider application to agencies which might brief the Committee.

Other people outside Australian defence agencies (proposed section 110ACC)

Any person who is not within the above categories could be required to appear; that might include public servants from outside Defence, academics, Commonwealth corporations such as the ASC and ANI, and persons working for defence industry.

Unclear position of companies contracted to Defence

A consultant or contractor to Defence is defined as a staff member of an Australian defence agency (item 1). The position of directors and employees of companies that supply services or supply or construct equipment for Defence is not explicitly spelled out.[26] While some contractors and consultants may have a legal relationship with an Australian defence agency, others will have a legal relationship with the Commonwealth. It is possible that the meaning of staff member covers only those consultants and contractors who are personally contracted to an Australian defence agency in a quasi-employment role. In that case, the contractor or consultant would only give evidence if nominated by the head of the relevant defence agency under proposed subsection 110ACD(4).

If a consultant or contractor is not considered a staff member, then the Committee may call them directly to give evidence under proposed subsection 110ACC(2).

It is worth noting that the proposed definition of protected information in subsection 4(1) does not include any concept of sensitive commercial or intellectual property information. Presumably the requirement that evidence taken in private must not be published without the witness’s permission is considered sufficient to protect that information (proposed subsection 110ACG(2)).

Constraints on Committee powers

Minister may prevent giving of evidence

While Ministerial permission is not required for public servants or employees of Commonwealth entities to give evidence or produce documents, if a responsible Minister is of the opinion that it is necessary to take certain action in order to prevent the person from disclosing protected information, the Minister may give a certificate under proposed subsection110ACE(1) or (2)[27] stating that a person should not:

• give evidence or continue giving evidence
• give evidence or continue giving evidence relating to particular matters
• produce particular documents
• produce documents of a particular kind or about particular matters.

If the Defence Minister or another Minister gives a certificate, the Committee must comply with the certificate (proposed subsection 110ACE(6)) and the decision of the Minister cannot be questioned in any court or tribunal (proposed subsection 110ACE(8)). The Explanatory Memorandum notes:

The certificate process set out in section 110ACE exists in addition to ordinary processes associated with public interest immunity in parliamentary committees, which will continue to apply in the Committee.[28]

The certificate process appears to provide a Ministerial capacity to inhibit potential ‘whistleblowing’ to the Committee where it would involve the disclosure of protected information.

Protected information cannot be required

The Committee must not require a person to disclose protected information unless disclosure is specifically authorised by a responsible Minister (see proposed section 110ACA and proposed definition in subsection 4(1), inserted by item 1).

The PJCIS cannot require anyone providing a briefing to disclose ‘operationally sensitive information’ which is defined in clause 1A of Schedule 1 to the Intelligence Services Act 2001:

… operationally sensitive information means information:

 (a) about sources of information, other operational assistance or operational methods available to ASIO, ASIS, AGO, DIO, ASD or ONI; or

 (b) about particular operations that have been, are being or are proposed to be undertaken by ASIO, ASIS, AGO, DIO or ASD; or

 (c) provided by, or by an agency of, a foreign government where that government does not consent to the public disclosure of the information.

The proposed definition in subsection 4(1) (item 1) of operationally sensitive information is more expansive and covers both intelligence focussed information and military/defence agency focussed information. Paragraph (c) of that definition includes ‘information provided by, or by an agency of, a foreign government if that government does not consent to the public disclosure of the information’. There is no exception when the Committee is hearing evidence in private.[29]

The term operationally sensitive information is not used in the operational provisions. Instead, the broader term protected information is used, which means:

• operationally sensitive information
• information that would or might prejudice Australia’s national security or foreign relations
• information that would or might prejudice the performance of functions of an Australian defence agency or an agency in the national intelligence community
• naval nuclear propulsion information (but does not extend to information about naval nuclear-powered submarines more generally: see Explanatory Memorandum paragraph 30(c)(iv))
• information relating to an inquiry or investigation being conducted by the Inspector‑General ADF.

The Committee must never disclose in a report to a House of Parliament, protected information relating to an inquiry or investigation by the Inspector-General ADF that is being conducted (see proposed section 110ACH and paragraph (d) of the definition of protected information in subsection 4(1)).

For all other categories of protected information, the Committee must not disclose protected information in a report to a House of Parliament unless disclosure is specifically authorised by a responsible Minister (see proposed section 110ACH and paragraphs (a), (b) and (c) of the definition of protected information in subsection 4(1)).

Offences

The Bill inserts 9 new offences into the Act. It is important to note that the offences may apply to members of the Committee, staff of the Committee and staff of the members of the Committee as well as witnesses and other people. Note, however, that proposed sections 110ADC and 110ADD appear to provide a right to not provide evidence to the Committee if it ‘would tend to incriminate the person’. This would be a stronger position than the usual situation where a parliamentary committee witness can object to responding to questions or requests on the grounds of self-incrimination, but the committee may insist upon an answer to the question either in camera or in public.[30]

The offences protect the confidentiality and procedure of the Committee by criminalising:

• unauthorised publishing or disclosing of evidence or documents - proposed section 110ADA (maximum penalty of imprisonment for 2 years or 120 penalty units[31] or both)
• failure to attend the Committee when required by notice - proposed section 110ADB (maximum penalty of imprisonment for 6 months or 30 penalty units or both)
• failure to take an oath, make an affirmation or answer a question - proposed section 110ADC (maximum penalty of imprisonment for 6 months or 30 penalty units or both)
• failure to comply with notice to produce - proposed section 110ADD (maximum penalty of imprisonment for 6 months or 30 penalty units or both)
• knowingly giving false or misleading evidence - proposed section 110ADE (maximum penalty of imprisonment for 2 years or 120 penalty units or both)
• threatening a person intending to interfere with evidence to the Committee - proposed subsection 110ADF(1) (maximum penalty of imprisonment for 5 years or 300 penalty units or both)
• improperly influencing a witness intending to interfere with evidence to the Committee - proposed subsection 110ADF(2) (maximum penalty of imprisonment for 5 years or 300 penalty units or both)
• threatening a person who provided evidence to the Committee - proposed subsection 110ADF(3) (maximum penalty of imprisonment for 5 years or 300 penalty units or both)
• improper disclosure of Committee information by a Committee member, staff of the Committee or staff of a Committee Member - proposed section 110ADG (maximum penalty of imprisonment for 5 years or 300 penalty units or both).

The Explanatory Memorandum does not discuss the interaction of parliamentary privilege and the operation of the offences.

Proposed section 110ADH provides that these offences can only be instituted by the Attorney-General or with the Attorney-General’s consent. This provision limits to some extent the capacity of the Committee to govern its own procedure. The Government will control both the operation of the Committee and the prosecution of any person who interferes with the operation of the Committee.