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4 <strong>SENATE</strong> Thursday, 13 October 2016 I want to briefly turn to an international comparison. An increasingly complex and unpredictable security landscape in Australia and around the world means the powers of intelligence and security agencies have changed dramatically in recent years. This is as true in Australia as it is in many other similar democracies. The maintenance of public security in the current security environment has led to greater powers for the agencies charged with these responsibilities. However, the protection of democratic liberties and freedoms equally demands enhanced oversight of the exercise of these powers. This is the case at home and abroad. As senators would know, Australia forms part of the Five Eyes intelligence and security network of nations, including the United Kingdom, the United States, New Zealand and Canada. With the exception of Canada, each of these countries has at least one committee of the legislature that exercises oversight of that country's intelligence and security agencies. In the United Kingdom, the Intelligence and Security Committee of Parliament consists of nine members drawn from both the House of Commons and the House of Lords. The numbers from each chamber are not specified in the governing act. Similarly to our committee, the members of the intelligence and security committee of the United Kingdom are appointed by the house in which they serve, on the nomination of the Prime Minister in consultation with the opposition. Recent reforms provided that committee with greater powers and increased its remit, including oversight of operational activities and the wider intelligence and security activities of government. The United States Senate Select Committee on Intelligence is established by resolution of the senate and consists of 15 senators: eight from the majority party and seven from the minority party. It meets roughly twice a week, generally in closed sessions. Most hearings involve appearances by senior intelligence community officials, who present evidence and answer senators' questions. There is also the House Permanent Select Committee on Intelligence in the United States House of Representatives. The New Zealand Intelligence and Security Committee has a membership of five, notably including the Prime Minister and the Leader of the Opposition. Two of the remaining three are nominated by the Prime Minister, and one by the Leader of the Opposition. As I said at the outset, Canada does not currently have a parliamentary committee responsible for intelligence and security. However, the new government, during the election campaign, promised to establish an all-party national security oversight committee if it was elected. The new Prime Minister has instructed the relevant minister to assist the leader of the government in the House of Commons in the creation of a statutory committee of parliamentarians with special access to classified information to review government departments and agencies with national security responsibilities. As can be generally seen, the legislative branch of government has a central role in the oversight and scrutiny of the work of such agencies amongst our allies. Further, the membership of the parliamentary committees that I have outlined in general is more flexible than the situation that currently applies in Australia—something this bill is designed to address. As a result of legislation that passed in the last parliament, from 1 March 2016 the parliamentary joint committee has already had a number of additional functions added to its previously existing responsibilities. These include: monitoring and reviewing the performance of the AFP's counter-terrorism functions under the Criminal Code Act; reporting to the parliament on matters appertaining to the AFP, or connected to those functions; reviewing matters relating to the retained data activities of the AFP and ASIO covered in annual reports on the mandatory data retention regime, including where this goes to operational matters, for the sole purpose of assessing and making recommendations on the overall operation and effectiveness of the regime; reviewing bills in relation to the mandatory data retention regime; conducting a review of a range of counter-terrorism legislation, by 7 March 2018; conducting a review of the mandatory data retention regime, to be commenced by 13 April 2019 and completed a year later; conducting a review, by 1 December 2019, of the new citizenship revocation powers contained in the Australian Citizenship Amendment (Allegiance to Australia) Act 2015. This is in addition to powers in other areas. I express my hope that the bill will receive sensible consideration and, in time, I hope, support from all parties across the chamber, recognising that this is a bill that is designed to enhance the ability of the committee to protect the interests of the parliament and, through us, the Australian people. I commend the bill to the Senate. Senator IAN MACDONALD (Queensland) (10:07): This is the first opportunity I have had to be in a debate that Senator Farrell has spoken in, so I take this opportunity of congratulating him on his appointment as deputy leader. I must say I look forward to his further advancement in the opposition in the years ahead. Senator Farrell indicated in his opening remarks that this was a matter that former Senator Faulkner had an interest in. While I disagreed with then Senator Faulkner on many issues, I have always accepted his absolute CHAMBER
Thursday, 13 October 2016 <strong>SENATE</strong> 5 commitment to parliament and to what he believed was right. So having this bill introduced by Senator Farrell with reference to the work that then Senator Faulkner had done meant I listened with a great deal of interest to what Senator Farrell said in his opening address and I tried to follow through the arguments that he was putting in support of this bill. I want to say at the outset that in these days of heightened insecurity across the world, and Australia is no different, our intelligence and our security agencies have an even greater role to perform in protecting Australians. Regrettably, where that occurs throughout history it of necessity sometimes curtails some of the other freedoms that we would expect—some of the roles that parliament and others might have in looking at issues—because of this heightened security. We have to make sure that the agencies we entrust to look after our safety have everything going in their favour because, as I always point out, the bad guys—the terrorists, the criminals—are constrained by no-one and nothing. They are not accountable to anyone at all. They do what they like. But our agencies—our police forces, our security agencies—are always accountable to someone and so they have to act in the most appropriate manner all of the time. And sometimes that does constrain what they are able to do. I do not think this parliament should do anything that makes it harder for our security agencies and our police forces to do their jobs in protecting us. And while I accept that this bill has been introduced in good faith, it is not a bill that I could support or that the government could support for reasons that I will get onto shortly. Just by way of background, I indicate to those who might be following the debate that the Parliamentary Joint Committee on Intelligence and Security has existed in its current form since the inquiry into the Australian intelligence agencies by Mr Philip Flood AO in 2004. Amongst his findings, Mr Flood recommended that membership of the then parliamentary joint committee on ASIO, ASIS and the Defence Security Directorate should be extended to include the Defence Imagery and Geospatial Organisation, the Defence Intelligence Organisation and the Office of National Assessments. Following the passage of the intelligence services legislation bill in 2005, which resulted from the Flood inquiry, the committee was re-established as the Parliamentary Joint Committee on Intelligence and Security. The functions of that committee are outlined in the Intelligence Services Act, as amended. Briefly, section 29 provides that the committee's functions are: … to review the administration and expenditure of ASIO, ASIS, AGO, DIO, ASD and ONA, including the annual financial statements … The committee is also required: … to review any matter in relation to ASIO, ASIS, AGO, DIO, ASD or ONA referred to the Committee by: (i) the responsible Minister; or (ii) a resolution of either House of the Parliament The committee also has to: … monitor and to review the performance by the AFP of its functions under Part 5.3 of the Criminal Code— which relates to terrorism. It is also to review the 'operation, effectiveness and implications' of: Part III of the ASIO Act, which relates to questioning and detention powers; division 3A of IAA of the Crimes Act, which relates to police powers in relation to terrorist acts and terrorism offences; divisions 104 and 105 of the Criminal Code, which relate to control orders and preventative detention orders; and sections 119.2 and 119.3 of the Criminal Code about declared area provisions. The committee has other roles required by the act. I will not go through them all, but they are all set out in section 29 of the act. Under the Criminal Code, the committee is also able to review any regulation made for the listing or relisting of a terrorist organisation and report the committee's comments and recommendations to each house of parliament, so it has fairly wide powers. It can review and report on the declaration of any terrorist organisation under the Australian Citizenship Act. It can do all of those things that I have mentioned, and it is also required to prepare and table an annual report each year. The committee, though, is not authorised by the act to initiate its own references, but may resolve to request the responsible minister to refer a particular matter to it for review. So if the committee thinks that there is an issue that needs to be addressed it can, by resolution, ask the relevant minister—no doubt the Attorney-General or the Minister for Justice—to make a reference on that particular matter. It is then up to the minister to either agree or disagree with that role. The act specifically sets out what the committee is not able to do. It is important to understand these. The committee is barred from reviewing the intelligence gathering and assessment priorities of our intelligence agencies. It is prevented from reviewing the sources of information or other operational assistance or operation methods available to any of those agencies. It is not able to review particular operations that have been, are being CHAMBER
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