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2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Wong)
PARLIAMENTARY JOINT COMMITTEE ON INTELLIGENCE AND SECURITY
AMENDMENT BILL 2015
OUTLINE
The purpose of the Parliamentary Joint Committee on Intelligence and Security Amendment
Bill 2015 is to ensure that the adequacy and effectiveness of Parliamentary oversight of
intelligence and security agencies keeps pace with the agencies' enhanced powers. This Bill
amends the Intelligence Services Act 2001, the Independent National Security Legislation
Monitor Act 2010 and the Inspector-General of Intelligence and Security Act 1986 to change
the membership, powers and functions of the Parliamentary Joint Committee on Intelligence
and Security (PJCIS).
In Australia, as in many other similar democracies, the powers of intelligence and security
agencies have changed dramatically in recent years - the product of an increasingly complex
and unpredictable security landscape. The maintenance of public security in the current
security environment does require enhanced powers for the agencies charged with this
responsibility. However, the protection of our hard-won democratic freedoms equally
demands enhanced oversight of the exercise of these powers. With legislative changes
extending the powers of security agencies, the requirement for reliable, effective external
oversight becomes critical to maintaining an essential level of trust in the community about
agency operations.
It is the Parliament to which the agencies are accountable, and it is the Parliament's
responsibility to oversight their priorities and effectiveness, and to ensure agencies meet the
requirements and standards it sets. There is no greater or more important focus of political
activity in this country than Parliament itself, and the Australian Parliament has no better or
more authoritative forum than the PJCIS to do this job.
The Bill removes current constraints on the membership of the PJCIS to provide that, except
for a minimum representation of one Government Member and Senator and one Opposition
Member and Senator, the balance of the 11 member PJCIS can be drawn from either
chamber.
Currently, the Intelligence Services Act 2001 mandates a composition of six House of
Representatives members and five Senators on the PJCIS.
Removing the current constraints will enable greater flexibility in determining PJCIS
membership.
The Bill does not amend the requirement for the Government to hold a majority.
The Bill also:
provides for the PJCIS to conduct own motion inquiries after consultation with the
responsible Minister;
authorises the Independent National Security Legislation Monitor (INSLM) to
provide the PJCIS with a copy of any report on a matter referred to it by the
committee;
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requires the Inspector-General of Intelligence and Security (IGIS) to give the PJCIS a
copy of any report provided to the Prime Minister or a Minister within three months;
gives the PJCIS the function of conducting pre-sunset reviews of legislation
containing sunset provisions;
adds the Independent National Security Legislation Monitor and the National
Security Adviser to officers able to be consulted by the PJCIS.
NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
2. This clause provides for the provisions of the Bill to commence on the day after the
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.
Schedule 1-- Membership, powers and functions of the Parliamentary Joint Committee
on Intelligence and Security
4. The Schedule deals with the following matters:
Independent National Security Legislation Monitor Act 2010
Item 1 - Reports by the Independent National Security Legislation Monitor
5. Item 1 includes in the Independent National Security Legislation Monitor's
functions under section 6 that the Monitor may provide the Parliamentary Joint
Committee on Intelligence and Security (PJCIS) with a report of a review in relation
to a matter referred to the Monitor by the Committee.
In addition, the capacity for the PJCIS to tap into the Independent National Security
Legislation Monitor's new function (conferred by item 131A of Schedule 1 of the
Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014) of
conducting pre-sunset reviews of specified legislation is expressly included, through
the reference to subsection 6(1B) in new paragraph 6(1A)(a).
Inspector-General of Intelligence and Security Act 1986
Item 2 - Definition of the PJCIS in the IGIS Act
6. Item 2 inserts a definition of PJCIS in subsection 3(1).
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Item 3 - IGIS to provide copies of reports to PJCIS
7. Item 3 inserts a requirement in section 22 for the Inspector-General of Intelligence
and Security to give the PJCIS a copy of any reports given to the Prime Minister or a
Minister within 3 months of the report being provided to the Prime Minister or the
Minister.
Intelligence Services Act 2001
Item 4 - New definitions
8. Item 4 inserts 5 new definitions into section 3 to define counter-terrorism and national
security legislation; Independent National Security Legislation Monitor; National
Security Adviser; sunset date; and sunset provision.
These definitions provide clarity and additional meaning to amendments made to the
Act as a result of this Bill.
Item 5 - Membership balance between the House of Representatives and the Senate
9. Item 5 gives effect to a proposal to remove constraints on the membership of the
PJCIS to provide that, except for a minimum representation of one Government
Member and Senator, and one Opposition Member and Senator, the balance of the 11
member PJCIS can be drawn from either chamber. There is no change in the overall
size of the Committee as a result of this amendment.
The item does not alter subsection 28(3), which requires that a majority of the
Committee's members must be Government members.
Item 6 - Own-motion inquiry
10. Item 6 amends paragraph 29(1)(b) to give effect to the power for the PJCIS to conduct
an own-motion inquiry by resolution of the Committee (that is, decision of a majority
of the Committee), subject to amendments proposed to subsection 29(2) in item 8.
Item 7 - Pre-sunset review
11. Item 7 gives the Committee the function of conducting a pre-sunset review. The
definitions of counter-terrorism, national security legislation, sunset date and sunset
provision in item 4 provide additional meaning to this item.
Item 8 - Consultation with Minister
12. Currently, subsection 29(2) provides that the Committee may request the responsible
Minister to refer a matter in relation to the activities of specified intelligence and
security agencies to the Committee, and that the Minister may use powers under
paragraph 29(1)(b) to make such a referral.
This item, operating in conjunction with the amendment proposed in item 6, means
the Committee no longer requires the agreement of the Minister to conduct a review
into the activities of specified intelligence and security agencies, but that the Minister
must first be consulted about any review adopted by resolution of the Committee.
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Items 9 and 10 - Consequential amendments relating to briefings of the PJCIS
13. Item 9 amends the heading to section 30 to reflect the changes made by item 10.
Item 10 adds the Independent National Security Legislation Monitor and National
Security Adviser (as defined in item 4) to the list of people in section 30 from whom
the PJCIS may seek briefings. The Counter-Terrorism Legislation Amendment
(Foreign Fighters) Act 2014 has already added the AFP Commissioner to the list
(item 133C of Schedule 1 to that Act).
Item 11 - Membership balance
14. Item 11 operates in conjunction with item 5 as it relates to the composition of the
PJCIS. It amends subclause 14(5) of Part 3 of Schedule 1 to specify that in
nominating the members of the PJCIS, the Prime Minister and the Leader of the
Government in the Senate must be satisfied that the members to be nominated are
the most appropriate members available to serve on the Committee. This is in
addition to the existing requirement (now paragraph 14(5)(b)) that regard be had to
ensuring that the composition of the membership reflect the representation of
recognized political parties in the Parliament.
Item 12 - Transitional provisions relating to membership
15. Item 12 of Schedule 1 is a provision that is designed to manage the transition to the
new membership arrangements.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015
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 proposed in this Bill will increase the accountability of our security and
intelligence agencies and ensure ongoing public confidence in the integrity of these vital
institutions.
The Bill amends the Independent National Security Legislation Monitor Act 2010, the
Inspector-General of Intelligence and Security Act 1986, and the Intelligence Services Act
2001 to provide the Parliamentary Joint Committee on Intelligence and Security with more
flexible membership, greater powers and resources, the capacity to generate its own inquiries,
better coordination with the IGIS, and oversight responsibility for the counter-terrorism
elements of the Australian Federal Police (AFP). The Bill also provides for review for
controversial legislation.
Human rights implications
The Bill promotes the protection of human rights by improving the scrutiny of national
security legislation and the actions of intelligence and security agencies.
Conclusion
This Bill is compatible with human rights as it promotes the protection of human rights
through improved scrutiny of national security legislation that may limit human rights.
Senator Penny Wong
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