Second Reading Speech
Mr Dreyfuss (Attorney-General and Cabinet Secretary)I move:
That this bill be now read a second time.
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.
In the 1970s and 1980s, the Hope royal commissions developed a set of important principles to govern Australia's intelligence and security agencies. In his reports, Justice Robert Hope laid the foundations of a legal framework that ensures that agencies can operate effectively, in accordance with the rule of law and are appropriately oversighted and accountable. Those foundations remain just as relevant today as they did in the 1980s.
On 30 May 2018, the then government commissioned the Comprehensive Review of the Legal Framework of the National Intelligence Community, which was led by Dennis Richardson AC, an eminent Australian.
The review was delivered to the then government in December 2019, and publicly released a year later in December 2020.
The review affirmed the principles that Justice Hope delivered 40 years ago. This includes foundational principles that agencies must operate in accordance with the law, with propriety and political impartiality, in a manner that respects human rights and fundamental freedoms, and must be accountable for their conduct.
As Mr Richardson noted in his report:
Our laws are not constraints or barriers to operational effectiveness ... Rather, they are the guardians of valuable principles and enablers assisting agencies to perform their functions.
Mr Richardson made 203 recommendations in his 2019 report. The former government implemented just 30 recommendations between December 2019 and May 2022.
The National Security Legislation Amendment (Comprehensive Review and Other Measures No. 2) Bill 2023 will implement a further 10 of the outstanding recommendations from the review that fall within my portfolio responsibilities. This parliament will see further legislation implementing other recommendations of the Comprehensive Review conducted by Mr Richardson in coming months.
Recommendations of the Comprehensive Review
The bill will address the following recommendations from Mr Richardson's report:
- Recommendation 18 would be addressed by amending the Law Officers Act 1964to remove the ability of the Attorney-General to delegate his or her powers under the Australian Security Intelligence Organisation Act 1979.
- Recommendation 19 would be implemented through amendments to the Acts Interpretation Act 1901, the ASIO act, and the Telecommunications (Interceptions and Access) Act 1979to prevent the powers of the Attorney-General relating to the Australian Security Intelligence Organisation from being conferred on another minister through executive action, instead requiring legislative amendment. If the Prime Minister is satisfied that exceptional circumstances exist, the Governor-General would continue to make a substituted reference order.
- Recommendation 66 would be addressed by providing for defences in the Criminal Code Act 1995 for ASIO for four offences relating to tampering or interfering with telecommunications carrier facilities, unauthorised modification of data and unauthorised impairment of electronic communications.
- Recommendation 136 would be addressed by inserting a new exclusion into the spent conviction scheme under the Crimes Act 1914 to enable ASIO to use, record and disclose spent convictions information for the purpose of performing its functions.
- Recommendation 145 would be implemented by amending the Inspector-General of Intelligence and Security Act 1986 and the Public Interest Disclosure Act 2013to require the Inspector-General of Intelligence and Security to include details in their annual reports about public interest disclosures and complaints received each year to enhance transparency.
- Recommendation 167 would be addressed through amendments to the Ombudsman Act 1976 to remove the Australian Secret Intelligence Service, the Australian Geospatial-Intelligence Organisation, the Australian Signals Directorate, the Defence Intelligence Organisation, the Office of National Intelligence, and ASIO from the jurisdiction of the Commonwealth Ombudsman. These agencies are already overseen by the IGIS.
- Recommendation 186 would be addressed by removing the exemption under the Freedom of Information Act 1982 regarding the non-intelligence functions of the Australian Hydrographic Office, within the Australian Geospatial-Intelligence Organisation.
- Recommendation 188 would be implemented by expanding the exemption under the Freedom of Information Actfor documents relating to suspicious matter reports and suspicious transaction reports beyond just those in the possession of the Australian Transaction Reports and Analysis Centre to ensure consistency in handling of sensitive information.
- Recommendation 191 would be addressed by amending the Administrative Appeals Tribunal Act 1975and the Archives Act 1983 to ensure matters involving information that could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth arising under the Archives Act are heard in the Security Division of the Administrative Appeals Tribunal.
- Recommendation 192 would be addressed by amendments to the Freedom of Information Actand the Archives Act to provide that the Inspector-General of Intelligence and Security only be required to provide evidence before the Administrative Appeals Tribunal in relation to records that concern an agency within the Inspector-General's jurisdiction.
Amendments to the Intelligence Services Act 2001
The bill also contains amendments to the Intelligence Services Act 2001. The first amendment would clarify the level of detail that the Minister for Foreign Affairs must describe in a direction under paragraph 6(1)(e) of that act.
The bill would also make amendments to the Parliamentary Joint Committee on Intelligence and Security.
The purpose of the Parliamentary Joint Committee on Intelligence and Security is to ensure parliamentary oversight of the intelligence and security agencies. It is the parliament to which the agencies are accountable, and it is the parliament's responsibility to oversight and ensure agencies meet the requirements and standards it sets.
Currently, the Intelligence Services Act provides that the committee is to comprise of 11 members and mandates a composition of six members of the House of Representatives and five senators.
The bill would increase the number of members appointed to the committee to 13 members and remove current constraints on the composition of the committee. The bill would provide that the committee must comprise of at least two government members and Senators, and two non-government members and Senators. The remaining five members can be drawn from either chamber.
The bill does not amend the requirement for the Government to hold a majority.
The government is committed to ensuring the legal framework of the national intelligence community remains fit for purpose. The principles developed by Justice Hope in the 1970s and 1980s—affirmed by Mr Richardson in 2019—are founded in history, practice and philosophy, and establish important delineations between, and limits on the roles and functions of, agencies. They are of enduring importance in their provision of safeguards, clarification of agency roles and responsibilities, and ensuring lines of accountability.
The bill I have introduced today affirms the government's commitment to those foundational principles. The government sees no reason to abandon them, and many good reasons to retain them.
I commend the bill to the House.
Debate adjourned.