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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
INTELLIGENCE AND SECURITY LEGISLATION AMENDMENT
(IMPLEMENTING INDEPENDENT INTELLIGENCE REVIEW) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator McAllister)
INTELLIGENCE AND SECURITY LEGISLATION AMENDMENT
(IMPLEMENTING INDEPENDENT INTELLIGENCE REIVEW) BILL 2020
OUTLINE
This Bill implements the recommendations of the 2017 Independent Intelligence Review
insofar as they relate to the oversight and evaluation arrangements of the Australian
intelligence community.
Context of the 2017 Independent Intelligence Review
On 7 November 2016 the then Prime Minister, the Hon. Malcolm Turnbull MP, announced
that Mr Michael L'Estrange AO and Mr Stephen Merchant PSM were to conduct a review
into the Australian Intelligence Community (the 2017 Independent Intelligence Review).
The terms of reference issued by the Prime Minister tasked the review with considering a
range of issues including:
"the effectiveness of current oversight and evaluation arrangements"
The review authors reported their findings to the Australian Government in June 2017. On 18
July 2017 the Prime Minister released the unclassified version of the 2017 Independent
Intelligence Review report.
The authors summarised their findings as follows:
"The 2017 Independent Intelligence Review found that Australia's intelligence
agencies are highly capable and held in high regard by their international partner
agencies. The Review also found that as a result of transforming geopolitical,
economic, societal and technological changes, the intelligence community will be
faced with challenges that will intensify over the coming decade.
To ensure the intelligence community is best-placed to meet these challenges, the
Review makes a series of recommendations to provide a pathway to an even higher
level of collective performance. These recommendations broadly cover four priority
areas: the co-ordinating structures of the intelligence community, new funding
mechanisms to address capability issues, the streamlining of legislative arrangements,
and measures to further strengthen the state of trust between the intelligence agencies
and the Australian community of which they are part."
The authors of the review undertook considerable consultation. They conducted interviews
with numerous stakeholders and experts, including:
a. eleven government ministers,
b. nine other former and current parliamentarians,
c. senior public servants and policy makers, including principals of:
i. Attorney-General's Department,
ii. Australian Border Force,
iii. Australian Criminal Intelligence Commission,
iv. Australian Federal Police,
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v. Australian Geospatial-Intelligence Organisation,
vi. Australian Secret Intelligence Service,
vii. Australian Security Intelligence Organisation,
viii. Australian Signals Directorate,
ix. Australian Transaction Reports and Analysis Centre,
x. Cyber Security Centre,
xi. Defence Intelligence Organisation,
xii. Department of Communications and the Arts,
xiii. Department of Defence,
xiv. Department of Finance,
xv. Department of Foreign Affairs Defence and Trade,
xvi. Department of Immigration and Border Protection,
xvii. Department of the Prime Minister and Cabinet,
xviii. Inspector-General of Intelligence and Security,
xix. Office of National Assessments,
xx. Treasury,
d. senior Defence Force personnel,
e. the Independent National Security Legislation Monitor,
f. academics and experts, and
g. key interlocutors from the United States, United Kingdom, Canada and New
Zealand
The review also received and considered submissions from fifteen government departments
and agencies, and nineteen public submissions.
The 2017 Independent Intelligence Review's rationale for action
As noted above, the 2017 Independent Intelligence Review identified "measures to further
strengthen the state of trust between the intelligence agencies and the Australian community
of which they are part" as one of the priorities for legislative reform of Australia's security
and intelligence arrangements.
There has been next to no progress in implementing the relevant recommendations since they
were made in 2017.
The report identified a number of reasons for reform to Australia's oversight arrangements.
These reasons included the following.
First, the review identified a need for strong and effective oversight arrangements in our
democracy, in order to keep pace with the increasing complexity and size of Australia's
modern national intelligence enterprise:
7.2 It is critical in a democracy that intelligence agencies are subject to strong
oversight and accountability mechanisms. Indeed, oversight of intelligence
services is a central tenet of the 'state of trust' between intelligence services
and the community of which they are part. A critical element of this 'state of
trust' is the understanding that agencies provide intelligence which
contributes to safeguarding national interests and the lives of citizens and
that, in doing so, those agencies act with propriety, legality and
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proportionality, are responsive to Ministerial direction and control, and are
accountable for their activities.
7.3 Since much of the work of intelligence agencies is necessarily secret, many
of the traditional means by which the broader community can determine that
government agencies are operating in an appropriate manner are not fully
applicable to the intelligence community. Intelligence agencies need purpose-
designed, strong institutional safeguards and arrangements.
7.4 The Hope Royal Commissions addressed this issue and the government of the
day subsequently established a combination of government, parliamentary
and independent oversight of intelligence agencies, complemented by
increased Ministerial oversight and accountability to Parliament. This
combination remains in place today. In our view, it strikes an appropriate
balance between the need for intelligence agencies to function with
confidentiality, to be operationally effective (subject to checks and balances
applied by legislation and responsible Ministers) and the requirement for
robust accountability in a democratic society.
7.5 Accordingly, we consider the broad architecture of Australia's oversight
arrangements remains appropriate and does not require fundamental change.
Rather, our recommendations in this Chapter focus on the components of the
architecture. We consider changes are needed to some of these components to
ensure they are able to cope with the increasing complexity and size of
Australia's modern national intelligence enterprise.
Second, the review identified the need for oversight arrangements to cover the ten members
of the National Intelligence Community rather than just the six members of the Australian
Intelligence Community:
7.19 ... the intelligence enterprise that supports Australia's national security is no
longer limited to the six AIC agencies. The contemporary threat environment,
particularly the rise of terrorism and irregular immigration as major concerns,
means that the intelligence capabilities of the AFP, the Department of
Immigration and Border Protection (DIBP), the Australian Transaction
Reports and Analysis Centre (AUSTRAC) and the Australian Criminal
Intelligence Commission (ACIC) also make a critically important and
increasingly significant contribution to national security. The intelligence
capabilities of these agencies allow some activities to be undertaken that can
impact significantly on Australian citizens. Furthermore, there is a need for
increased collaboration as well as a greater sharing of capabilities and
information across the ten intelligence agencies of the National Intelligence
Community (NIC). We consider, therefore, that there is a compelling case for
a consistent oversight regime to apply to all the intelligence capabilities that
support national security, across the ten agencies of the NIC.
Third, the review recognised the importance of the Parliamentary Joint Committee on
Intelligence and Security (the PJCIS) in particular, and the need for its work to be supported
by appropriate legislative arrangements:
7.28 The reviews undertaken and reports produced by the PJCIS are vitally
important accountability mechanisms for the intelligence agencies ...
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7.29 In recent years the Committee has also undertaken a range of value-adding
reviews of proposed changes to counter-terrorism and national security
legislation. Since 2014, Parliament has passed eight pieces of counter-
terrorism and national security legislation which have enhanced the powers
available to law enforcement, security, intelligence and prosecution agencies.
Upon introduction, all Bills have been referred to the PJCIS for inquiry and
report and the Committee has made a number of recommendations, the
majority of which have been accepted by the government of the day, to make
contentious legislation more workable ...
...
7.33 We agree that the oversight role of the PJCIS should be enhanced. In framing
our recommendations on this issue, we have been particularly conscious of
the need to reinforce and build on the valuable role the Committee has
played, and to ensure that changes to its role should strengthen the overall
compliance architecture and certainly not weaken it by introducing
disproportionate compliance burdens or undesirable duplication. We have
also considered the remits of Parliamentary Committees in the Five Eyes
partners that have oversight of the activities of intelligence agencies,
including their operations.
...
7.35 The PJCIS has developed significant expertise in reviewing proposed
legislation. This constitutes an important accountability mechanism which, as
Patrick F. Walsh argued in his Submission to this Review, "helps build trust
between the Australian public and the government that the AIC is
accountable in its operations." ...
The oversight recommendations
This Bill seeks to implement the recommendations from the fourth priority area identified by
the Review's authors in the report's abstract, namely "measures to further strengthen the state
of trust between the intelligence agencies and the Australian community of which they are
part."
These recommendations are contained in Chapter 7 of the Report entitled 'Oversight of
Australia's Intelligence Agencies'. They are as follows:
Recommendation 21: The oversight role of the Parliamentary Joint Committee on
Intelligence and Security and the Inspector-General of Intelligence and Security be
expanded to apply to all ten agencies within the National Intelligence Community,
with oversight of the Australian Federal Police, the Department of Immigration and
Border Protection, and the Australian Criminal Intelligence Commission limited to
their intelligence functions, and with current oversight arrangements in relation to the
Office of National Assessments applied to the Office of National Intelligence.
Recommendation 23: The role of the Parliamentary Joint Committee on Intelligence
and Security (PJCIS) be expanded by amending relevant legislation to include:
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a) a provision enabling the PJCIS to request the Inspector-General of
Intelligence and Security (IGIS) conduct an inquiry into the legality
and propriety of particular operational activities of the National
Intelligence Community (NIC) agencies, and to provide a report to
the PJCIS, Prime Minister and the responsible Minister;
b) a provision enabling the PJCIS to review proposed reforms to
counter-terrorism and national security legislation, and to review all
such expiring legislation;
c) provisions allowing the PJCIS to initiate its own inquiries into the
administration and expenditure of the ten intelligence agencies of the
NIC as well as proposed or existing provisions in counter-terrorism
and national security law, and to review all such expiring legislation;
d) provisions enabling the PJCIS to request a briefing from the
Independent National Security Legislation Monitor (the Monitor), to
ask the Monitor to provide the PJCIS with a report on matters referred
by the PJCIS, and for the Monitor to provide the PJCIS with the
outcome of the Monitor's inquiries into existing legislation at the
same time as the Monitor provides such reports to the responsible
Minister; and
e) a requirement for the PJCIS to be regularly briefed by the Director-
General of the Office of National Intelligence, and separately by the
IGIS.
The report also included recommendations relating to resourcing and funding for oversight
bodies. This bill does not implement those recommendations.
The government has not issued a formal response to the review, however relevant ministers
have expressly accepted most of the recommendations of the Review. The government has
not publicly rejected any of the recommendations of the review relating to oversight.
NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 is a formal provision specifying the short title of the Act.
Clause 2: Commencement
2. This clause provides for the provisions of the Bill to commence on the day after this
Bill receives the Royal Assent.
Clause 3: Schedules
3. Clause 3 provides that each Act specified in a Schedule to this Act is amended or
repealed as is set out in the applicable items in the Schedule. Any other item in a Schedule to
this Act has effect according to its terms.
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Schedule 1--Expanding the functions of the IGIS and the PJCIS
Inspector-General of Intelligence and Security Act 1986
4. Items 1 to 5 and items 12 to 15 of Schedule 1 implement part of Recommendation
22 of the Independent Intelligence Review that:
The oversight role of the ... Inspector-General of Intelligence and Security be
expanded to apply to all ten agencies within the National Intelligence Community,
with oversight of the Australian Federal Police, the Department of Immigration and
Border Protection, and the Australian Criminal Intelligence Commission limited to
their intelligence functions, and with current oversight arrangements in relation to the
Office of National Assessments applied to the Office of National Intelligence.
5. This is achieved by including reference to the new agencies within the existing
provisions of the Act.
6. Items 6 to 11 of Schedule 1 implement Recommendation 23(a) of the Independent
Intelligence Review that:
The role of the Parliamentary Joint Committee on Intelligence and Security (PJCIS)
be expanded by amending relevant legislation to include:
a) a provision enabling the PJCIS to request the Inspector-General of
Intelligence and Security (IGIS) conduct an inquiry into the legality
and propriety of particular operational activities of the National
Intelligence Community (NIC) agencies, and to provide a report to
the PJCIS, Prime Minister and the responsible Minister;
Item 1 - Subsection 3(1)
7. Item 1 incorporates by reference the definitions of members of the National
Intelligence Community contained in other related legislation.
Item 2 - Subsection 3(1) (after paragraph (f) of the definition of head)
8. Item 2 expands the definition of 'head' to include the Chief Executive Officer of the
ACC.
Item 3 - After subsection 8(3)
9. Item 3 inserts a new subsection 3A that extends the oversight powers of the
Inspector-General to the ACC, AUSTRAC, the AFP, and the Department of Home Affairs.
These powers are in the same terms as the powers the Inspector-General possess with respect
to ASIS, the AGO and the ASD under existing section 8(2).
10. Unlike the departments and agencies currently subject to the oversight of the
Inspector-General, the ACC, AUSTRAC, the AFP and the Department of Home Affairs have
both intelligence and non-intelligence roles and functions. The Inspector-General will only
gain oversight of the former. This limitation is imposed via the new subsection 3B.
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Items 4 and 5 - Subsection 8(5)
11. Subsection 8(5) clarifies that the Inspector-General does not possess the power to
inquire into certain employment matters. Items 4 and 5 amend this subsection to extend this
limitation to the Inspector-General's oversight of agencies under the new subsection 8(3A).
Item 6 - Section 9 (heading)
12. Section 9 currently sets out the power of the Prime Minister to request that the
Inspector-General conduct an inquiry. This power is not altered by this Bill. Item 6 instead
amends the heading of Section 9 to make clear that it relates to inquiry requests by the Prime
Minister, in order to differentiate this section from new sections that provide for the PJCIS to
make inquiry requests.
Item 7 -After section 9
13. Item 7 inserts a new section 9AAA giving the PJCIS the power to request that the
Inspector-General inquire into a matter relating to an intelligence agency, the ACC, or an
agency with an intelligence role or function.
14. This power differs in a number of respects from the power of the Prime Minister to
refer a matter to the Inspector General. First, the Inspector-General may only accept a referral
if the matter falls within its scope authority as set out in section 8. Second, the Inspector-
General is not compelled to accept the referral. If the Inspector-General decides not to
comply with the request, the Inspector-General must give written notice to the Committee of
the decision and the reasons for the decision.
Item 8, 9 and 10 - Section 9AA
15. Existing section 9AA sets out certain limitations on the Inspector-General's powers
under sections 8 and 9. Items 8, 9 and 10 extend those limitations to the new powers gained
under section 9AAA.
Item 11 - After paragraph 22(5)(a)
16. Section 22(5) sets out to whom the Inspector-General must given a copy of the final
agency copy or version of a report. Item 11 inserts a new subsection 22(5)(aa) that provides
that a copy of the report must be given to the PJCIS for any inquiries conducted as a result of
a request by the PJCIS under section 9AAA.
Item 12 and 13 - Section 32A
17. Section 32A provides that the Inspector-General is able to obtain certain reports
produced by the agencies that are subject to its oversight. Item 12 and 13 inserts a new
subsection 32A(1)(e) and subsection 32A(5)(a) which extend that power to the ACC and
agencies that have an intelligence role or function.
Item 14 - Section 32B (at the end of the heading)
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18. Item 14 amends the heading of section 32B to clarify that it contains the general
provisions relating to directions and guidelines by the Minister. This is to differentiate it from
the new Section 32C.
Item 15 - After Section 32C
19. Item 15 inserts a new section 32C. This section provides that the Minister must
provide the Inspector-General with a copy of any guidelines or directions given by the
responsible Minister to the head of the ACC or an agency with an intelligence role or
function.
Intelligence Services Act 2001
20. Items 16 to 18 and 23 to 26 of Schedule 1 implement part of Recommendation 21 of
the Independent Intelligence Review that:
The oversight role of the Parliamentary Joint Committee on Intelligence and Security
... be expanded to apply to all ten agencies within the National Intelligence
Community, with oversight of the Australian Federal Police, the Department of
Immigration and Border Protection, and the Australian Criminal Intelligence
Commission limited to their intelligence functions, and with current oversight
arrangements in relation to the Office of National Assessments applied to the Office
of National Intelligence.
21. Items 19 to 20 of Schedule 1 implement Recommendation 23 (b) of the Independent
Intelligence Review that:
The role of the Parliamentary Joint Committee on Intelligence and Security (PJCIS)
be expanded by amending relevant legislation to include:
...
b) a provision enabling the PJCIS to review proposed reforms to
counter-terrorism and national security legislation, and to review all
such expiring legislation;
22. Item 21 of Schedule 1 implements Recommendation 23(c) of the Independent
Intelligence Review that:
The role of the Parliamentary Joint Committee on Intelligence and Security (PJCIS)
be expanded by amending relevant legislation to include:
...
c) provisions allowing the PJCIS to initiate its own inquiries into the
administration and expenditure of the ten intelligence agencies of the
NIC as well as proposed or existing provisions in counter-terrorism
and national security law, and to review all such expiring legislation;
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23. Item 22 of Schedule 1 removes an ambiguity about the interaction between the
provisions delineating the functions of the committee.
Item 16 - Section 3
24. Item 16 incorporates by reference the definitions of 'agency with an intelligence role
or function' and 'national intelligence community' from the Office of National Intelligence
Act 2018.
Item 17 - Paragraph 29(1)(a)
25. Paragraph 29(1)(a) provides that one of the functions of the PJCIS is to review the
administration and expenditure of the agencies it oversees. Item 17 updates this paragraph to
include reference to all agencies within the national intelligence community.
Item 18 - Paragraph 29(1)(b)
26. Paragraph 29(1)(b) provides that one of the functions of the PJCIS is to review any
matter referred to it by a responsible Minister, the Attorney-General, or parliament. Item 18
updates this paragraph to make clear that this matter can be in relation to all agencies within
the national intelligence community.
Item 19 - After paragraph 29(1)(b)
27. Item 19 inserts two new paragraphs that provide that the functions of the PJCIS
include reviewing proposed or existing laws relating to counter-terrorism or national security;
and reviewing laws relating to counter-terrorism or national security that are to be repealed,
expire, lapse, or cease to have effect.
28. These are functions that the PJCIS currently performs on an ad hoc basis.
Item 20 - At the end of subsection 29(1)
29. Item 20 closes a potential gap in the designated functions of the PJCIS by clarifying
that it is permitted to undertake such other functions as are conferred on the committee by
law.
Item 21 - After subsection 29(2)
30. Item 21 inserts new subsections (2A) and (2B) that establish an own-motion power
for the PJCIS. The scope of this power matches the terms of the recommendation made by
the Independent Intelligence Review.
31. Subsection 2A empowers the PJCIS to resolve to review any matter relating to the
administration and expenditure of an agency within the national intelligence community, or
any proposed or existing laws relating to counter-terrorism and national security law.
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32. Subsection 2B clarifies that the Committee's functions do not extend to reviewing
anything done by an agency with an intelligence role or function to the extent that thing does
not relate to its intelligence role or function.
33. The power created by item 21 is complementary to the provisions created by item 7,
as set out above. Item 7 gives the PJCIS the power to request that the Inspector-General
inquire into a matter. Together, these powers give the PJCIS the ability to either inquire into a
policy matter itself or, if more appropriate, to refer a matter to the Inspector-General of
Intelligence and Security (which is resourced and legislatively empowered to enquire into a
range of operational matters.)
Item 22 - After subsection 29(3)
34. Subsection 29(2) sets out the activities that constitute the functions of the PJCIS.
Subsection 29(3) sets out a range of activities which are not part of the functions of the
committee. Item 22 inserts a new paragraph to resolve an ambiguity about the interaction
between these two provisions.
35. A matter that is validly referred to the PJCIS for inquiry, in accordance with its
specified functions under subsection 29(2), may nonetheless require it in passing to consider
a matter relating to the prohibited functions under subsection 29(3). This item formalises the
informal arrangements that would be necessary in order for the committee to fulfil its
statutory functions in such a situation.
36. This item does not change the functions of the PJCIS. It is still prohibited from
undertaking the functions listed under subsection 29(3).
Items 23 to 26
37. These items amend various definitions necessary to enlarge the PJCIS' oversight
from the six agencies comprising the Australian Intelligence Community to the ten agencies
comprising the National Intelligence Community.
Schedule 2--Independent National Security Legislation Monitor
38. Schedule 2 implements the Recommendation 23(d) of the Independent Intelligence
Review that:
The role of the Parliamentary Joint Committee on Intelligence and Security (PJCIS)
be expanded by amending relevant legislation to include:
...
d) provisions enabling the PJCIS to request a briefing from the
Independent National Security Legislation Monitor (the Monitor), to
ask the Monitor to provide the PJCIS with a report on matters referred
by the PJCIS, and for the Monitor to provide the PJCIS with the
outcome of the Monitor's inquiries into existing legislation at the
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same time as the Monitor provides such reports to the responsible
Minister; and
39. Item 4 implements the first part of the recommendation by adding the Monitor to the
list of people who may be requested to brief the PJCIS.
40. Items 1 and 3 implement the second part of the recommendation by creating a
mechanism for the PJCIS to ask the Independent National Security Legislation Monitor to
report on a matter.
41. Item 2 implements the third part of the recommendation by requiring the Monitor to
provide reports to the PJCIS at the same time as the responsible minister.
Independent National Security Legislation Monitor Act 2010
Items 1 and 3
42. Section 7A of the legislation presently permits the PJCIS to refer a matter to the
Monitor for inquiry and report. These items provide further legislative clarity around the
operation of this section.
43. Section 6 sets out the function of the Monitor. Item 1 insets a new subsection
permitting the Monitor to report on a reference made to it by the PJCIS.
44. Item 3 inserts two new sections relating to the Monitor's decision whether to report
on a reference by the PJCIS. New section 30A requires the monitor to notify PJCIS if the
Monitor is not accepting a reference, and provide the reasons for this decision.
45. New section 30B sets out the mechanisms by which the Monitor is to report on a
reference by the PJCIS. This includes the ability to provide declassified versions of a report if
appropriate and necessary.
Item 2 - After subsection 30(5)
46. Item 2 inserts a new subsection 30(5A) which permits the referring minister to give a
copy of a report by the Monitor to the PJCIS.
Intelligence Services Act 2001
Item 4 - At the end of section 30
47. Item 4 adds the Monitor to the list of officers from whom the PJCIS can request a
briefing.
Schedule 3 - Regular briefings to the PJCIS by the IGIS and ONI
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48. Schedule 3 implements Recommendation 23(e) of the 2017 Independent Intelligence
Review that:
The role of the Parliamentary Joint Committee on Intelligence and Security (PJCIS)
be expanded by amending relevant legislation to include:
...
e) a requirement for the PJCIS to be regularly briefed by the Director-
General of the Office of National Intelligence, and separately by the
IGIS.
Inspector General of Intelligence and Security Act 1986
Item 1 and 2
49. Items 1 and 2 create a new obligation for the Inspector-General to provide a briefing
to the PJCIS once a quarter about the inquiries that the Inspector-General is to commence,
has commenced or has recently completed.
50. These briefings will be conducted in private.
Office of National Intelligence Act 2018
Items 3 and 4
51. Items 3 and 4 create a new obligation for the Director-General of ONI to brief the
PJCIS at least twice a year on matters relating to the ONI's leadership and evaluation
functions.
52. These briefings will be conducted in private.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Intelligence and Security Legislation Amendment (Implementing Independent
Intelligence Review) Bill 2020
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The measures contained in this Bill implement the recommendations of the 2017 Independent
Intelligence Review that relate to the oversight of the Australian intelligence community.
The Bill amends:
- Inspector-General of Intelligence and Security Act 1986
- Independent National Security Legislation Monitor Act 2010
- Office of National Intelligence Act 2018
- Intelligence Services Act 2001
in order to, inter alia:
- increase the scope of oversight to include all agencies within the National Intelligence
Community,
- strengthen the ability of the key oversight arrangements to refer matters and request
briefings from each other, and
- create and own-motion inquiry power for the PJCIS.
Human rights implications
This Bill promotes the protection of human rights by increasing the capacity of the oversight
bodies that review national security and intelligence legislation and issues.
Conclusion
This Bill is compatible with human rights as it advances human rights.
Senator McAllister
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