Parliament, Legislation and Liaison

Overview

The 2007–08 period saw continuing high levels of public interest in, and debate about, the role, functions and activities of the AIC.

The interest of the public in such matters has been naturally fuelled by a succession of:

high profile cases (e.g. Dr Mohamed Haneef, Mr David Hicks, Mr Mamdouh Habib)
prosecutions (e.g. the conduct of pre-trial hearings and trials of 22 individuals in Melbourne and Sydney on terrorism related charges)
legal judgements (e.g. Mr Izhar Ul-Haque, Mr Scott Parkin, Mr Jack Thomas)
events (e.g. planning for, and the execution of, security arrangements for events such as the APEC leaders meeting in September 2007, the Olympic torch relay in April 2008, and the Papal visit in July 2008), and
issues (e.g. the legal and other protections which should be afforded by the Australian government to Australian persons suspected of involvement in terrorist related activities, the exploitation of new technologies for surveillance purposes, the appropriateness of travel advisory notices, border control issues etc.).

At the core of many of these cases and issues is a debate about where the balance should lie between the security needs of the community and obligations of the state on the one hand, and the way of life most Australians enjoy and the civil liberties of individuals on the other.

Against this background it is not surprising that Parliament, which reflects and represents the sovereign will of the Australian people, should be a focal point for many of these arguments and debates.

Either side of the election of 24 November 2007, the Parliament was involved in the development, passage and implementation of various laws, some of which have or could have an impact upon the powers of the AIC agencies (and in consequence the monitoring and inspection function of this office).

As the business of government and public administration is enduring regardless of who is in power, a number of formal reviews were initiated, conducted and/or concluded during the reporting period which will also be influential in shaping the future legislative framework in which the AIC agencies and OIGIS operates.

The following chapter therefore briefly sets out some of the interactions of this office with parliamentary bodies during the reporting period, summarises legislative developments affecting the AIC in which OIGIS has an interest, and briefly details input I have made to some legislative reviews.

I have also included in this chapter, for the sake of completeness, some details of interactions with other government agencies and bodies, which might be characterised as attempts to aid the development and maintenance of public sector governance structures.

Parliamentary oversight

Parliamentary Joint Committee on Intelligence and Security

The Parliamentary Joint Committee on Intelligence and Security (PJCIS) came into existence on 2 December 2005, as a successor to the Parliamentary Joint Committee on ASIO, ASIS and DSD.

The composition, role and functions of the PJCIS are prescribed under sections 28–29 of the Intelligence Services Act 2001 (the ISA).

The PJCIS plays a significant role in oversighting the activities of the AIC agencies, particularly in respect of the administration and expenditure of the AIC agencies. This office has a complementary remit that is focused on the operational activities of the AIC agencies.

A new PJCIS was established when the 42nd Australian Parliament commenced business in February 2008 with a significant number of new members.

That there would be a significant change in the composition of the PJCIS could be reasonably anticipated as some former members of the PJCIS either chose to retire at the federal election, or did not win their seat in the election. The change of government also saw several former members of the committee promoted to Ministerial or Parliamentary Secretary positions meaning that they were no longer in a position to serve on the committee.³¹

The changed electoral landscape also saw two former Ministers in the Howard government become members of the PJCIS in the 42nd Parliament.³²

The new Chair of the PJCIS is the Hon Arch Bevis MP, while the Hon Philip Ruddock MP serves as the Deputy Chair of this committee.

Although OIGIS is not one of the six AIC agencies and therefore not directly within the remit of the PJCIS, it has been my usual practice to meet with the PJCIS two to three times a year to provide an overview of the work of my office and to discuss issues of mutual interest or concern.

During 2007–08 I did not meet formally with the PJCIS in either of its guises. I read nothing of consequence into this but believe that this is simply the by-product of a disrupted parliamentary schedule brought about as a consequence of the federal election, and the need for the new PJCIS to become fully conversant with the six AIC agencies.

Despite my lack of formal contact with the PJCIS, I monitored the work of the committee during the reporting period and the various reports it produced. My office and I also maintained a good and productive working relationship with the PJCIS Secretariat.

I expect to engage with the members of the PJCIS on a more direct and regular basis during the next reporting period, and would expect to liaise with it in planning for the International Intelligence Review Agencies conference which we will jointly host in Australia, in 2010.

Senate Finance and Public Administration Committee

I prepared during 2007–08 to appear before the Senate Finance and Public Administration committee during its consideration of Supplementary Budget Estimates, Additional Estimates, and Budget Estimates, but was not called upon to do so.

Parliamentary accountability – general

Despite not being required to attend before the above committee during 2007–08, I was nonetheless accountable to the Parliament through my responses to a range of questions on notice, through the tabling of my previous annual report, and through the provision of input to several parliamentary inquiries and other forms of legislative review.

Legislative proposals and developments

Telecommunications (Interception and Access) Amendment Act 2007

The Telecommunications (Interception and Access) Amendment Bill 2007 (the Bill) was introduced into the House of Representatives on 14 June 2007.

The purpose of the above Bill was to give effect to several recommendations made by Mr A.S.Blunn AO, in the report of an inquiry he had conducted into the then Telecommunications (Interception) Act 1979³³, which had not been dealt with in previous legislative amendments.

The Bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs for review on 21 June 2007.

I provided a submission to the Committee on 11 July 2007.

One of the provisions of the Bill of particular interest to me and upon which I offered comment was a proposal that very senior officers of ASIO would be able to issue authorisations requiring telecommunications carriers or carriage service providers to provide prospective telecommunications data for the duration of the authorisation (i.e. up to 90 days).

In my submission I supported this proposal but suggested that there would perhaps be merit in my office establishing a formal inspection process to periodically review any authorisations of this kind which may be issued.

I suggested that this inspection activity would be akin to my office’s existing inspection activities in relation to special powers warrants issued to ASIO.

The Committee provided a report of its review of the Bill to the Senate on 1 August 2007.

In its report the Committee considered the proposal that senior ASIO officers be able to issue authorisations in respect of prospective telecommunications data in prescribed circumstances, and adopted my suggestion as one of its recommendations, as follows:

“The committee recommends that the Inspector-General of Intelligence and Security incorporate into his regular inspection program oversight of the use of powers to obtain prospective telecommunications data by the Australian Security Intelligence Organisation.” ³⁴

The Bill was passed by both houses of Parliament and received Royal Assent on 28 September 2007.

Telecommunications (Interception and Access) Amendment Act 2008

The Telecommunications (Interception and Access) Amendment Bill 2008 was introduced into the House of Representatives on 20 February 2008.

The purpose of this Bill was to amend the Telecommunications (Interception and Access) Act 1979 to extend sunset provisions relating to network protection activities undertaken by network administrators in law enforcement and security agencies, to clarify reporting requirements for warrants, and to clarify that multiple telecommunications devices can be intercepted on a named persons warrant.

The Bill was also referred to the Senate Standing Committee on Legal and Constitutional Affairs for review.

I did not make a formal submission to the Committee in respect of this Bill but closely read its report when it was tabled on 13 May 2008³⁵.

I also discussed the implications of the Bill with various agencies within my remit both prior to and subsequent to its passage into law.

The Telecommunications (Interception and Access) Amendment Act 2008 passed through both Houses of Parliament in May 2008, and received Royal Assent on 26 May 2008.

Independent Reviewer of Terrorism Laws Bill 2008

On 17 March 2008, the federal member for Kooyong, Mr Petro Georgiou MP, introduced a private members bill in the House of Representatives for the purpose of establishing an independent reviewer of terrorism laws, and for related purposes.

The notion of creating an independent reviewer for terrorism laws is of interest to me because it aligns with the thinking of the Security Legislation Review Committee (SLRC), of which I was a member.

The SLRC was established in October 2005 to conduct a public and independent review of the operation, effectiveness and implications of amendments in six Acts relating to terrorism which were passed by the Commonwealth Parliament in 2002 and 2003.

The SLRC (more commonly referred to as the Sheller Committee after its chair, the Hon Simon Sheller AO QC), delivered a report of its findings to the then Attorney-General and to the PJCIS on 21 April 2006.³⁶ This report was in turn tabled in Parliament on 15 June 2006.

In that report the SLRC suggested that there would be utility in keeping Australia’s security and terrorism related legislation under on-going rather than occasional review and contemplated various mechanisms for doing so.

“From information available to the SLRC, there are several existing models set up to undertake ongoing reviews of security legislation, such as a public advocate, a public interest monitor (PIM) and an independent reviewer, which governments could consider.” ³⁷

Elsewhere in the SLRC’s report, the Committee considered the workings of the United Kingdom’s ‘Independent Reviewer’, and offered the following view:

“If the Government is minded to establish a similar body in Australia, the SLRC favours it being attached to the office of the IGIS or the office of the Commonwealth Ombudsman. The Independent Reviewer would be required to provide a report to the Attorney-General every twelve months, which the Attorney-General should be obliged to table in Parliament.” ³⁸

The Independent Reviewer of Terrorism Laws Bill 2008 has not progressed, at this stage, beyond its introductory reading.

Independent Reviewer of Terrorism Laws Bill 2008 (No.2)

On 23 June 2008, Senator the Hon Judith Troeth and Senator Gary Humphries, introduced the Independent Reviewer of Terrorism Laws Bill 2008 (No.2) into the Senate.

This Bill is expressed in virtually identical terms and has the same purpose as the private members bill introduced by Mr Georgiou (referred to above).

Further debate on this Bill had been adjourned at the conclusion of 2007–08.

Inspector-General of Intelligence and Security Act 1986

As indicated in my previous annual report, I have been considering a range of possible minor and technical amendments to the IGIS Act.³⁹

These possible amendments, which have been informed by my experiences as Inspector-General over the past four years, have been the subject of initial discussions with the new Government.

ALRC review of the Privacy Act 1988

On 31 January 2006 the then Attorney-General, the Hon Mr Philip Ruddock MP, provided a reference to the Australian Law Reform Commission (ALRC) for an inquiry into the extent to which the Privacy Act 1988 and related laws continue to provide an effective framework for the protection of privacy in Australia.

I met with the Commissioner in charge of this review, Professor Les McCrimmon on 15 March 2007, to discuss a range of privacy related issues pertaining to the AIC, with a focus on how the privacy rules and guidelines which exist in the AIC are interpreted and applied.

The ALRC released a discussion paper on 12 September 2007, based on their research to that point and invited comment on it.⁴⁰

I wrote to Professor McCrimmon in December 2007, responding to several of the proposals contained in the discussion paper which pertain directly to this office.

The final report of this review was delivered to the current Attorney-General, the Hon Robert McClelland MP, on 30 May 2008. The report had not been tabled in Parliament at the conclusion of 2007–08.

ALRC review of client legal privilege

I included in my previous annual report a submission I had made on 1 June 2007 to the ALRC review of client legal privilege and federal investigations. The final report of this review was tabled in Parliament in February 2008.⁴¹

In that report the ALRC recommended, among other things, that the IGIS Act, the Ombudsman Act 1976 and the Human Rights and Equal Opportunity Commission Act 1986 be amended to state that where client legal privilege cannot be claimed over legal advice given to a Minister, an agency or an authority of the Commonwealth, this abrogation applies to litigation privilege as well as advice.

I welcome this recommendation and hope that it will be accepted and acted upon.

Contributions to public sector governance

Membership of the Administrative Review Council

The then Attorney-General, the Hon Mr Philip Ruddock MP, announced in a media release dated 26 April 2007, that I had been reappointed as a part-time member of the Administrative Review Council (ARC) for a further three years.

During 2007–08 I attended four ARC meetings, and participated in two ARC related teleconferences.

One of the major ARC related activities in which I was involved was the preparation of a report on The Coercive Information-gathering Powers of Government Agencies.⁴²

The above report developed a list of 20 best practice principles as a guide to legislators and government agencies, to ensure fair, efficient and effective use of coercive information-gathering powers which hopefully strike a balance between an agency’s objectives in using coercive information-gathering powers and the rights of those in relation to whom the powers are being exercised.

Homeland and Border Security Review

On 22 February 2008, Prime Minister Rudd announced that he had asked the recently retired former Secretary of the Department of Defence, Mr Ric Smith AO PSM, to conduct a comprehensive review of homeland and border security arrangements in Australia, and to report back to him by 30 June 2008.⁴³

The purpose of the Smith Review is to consider the roles, responsibilities and functions of departments and agencies involved in homeland and border security, and to also consider possible changes to optimise the coordination and effectiveness of Australia’s homeland and border security efforts.

I met with Mr Smith and members of his review team during the period of his review, offering my perspectives on a range of issues relating to the AIC.

I understand that Mr Smith reported by the due date. There has not yet been any announcement of a response by the government.

Providing advice on the outcome of complaints investigations

The Commonwealth Ombudsman, the Australian Public Service Commissioner and I had some discussions in 2006 about concerns that an overly strict interpretation of the Privacy Act 1988 may have been inhibiting some public sector agencies from providing sufficient advice to complainants about the outcome of investigations into their complaints, especially where the outcome involved disciplinary action being taken against one of the parties.

The raising of this subject led to the creation of a small working group, which included a representative from my office, to examine this issue.

The end result of the above was the publication of a policy circular by the Australian Public Service Commission on 23 April 2008, about what information Australian Public Sector agencies can or should give complainants about the outcome of their complaints.⁴⁴

Review of Part D of Protective Security Manual

The Australian government Protective Security Manual (PSM) is issued by the Attorney-General’s Department and endorsed by government.

The PSM is the principal means for disseminating Australian government protective security polices, principles, standards and procedures to be followed by all Australian government agencies for the protection of official information and resources.

The PSM is a living document and is subject to periodic review to take account of changing security policies, practices and circumstances.

The body which is responsible for ensuring that the PSM is accurate and up to date is the Protective Security Policy Committee (PSPC).

The PSPC has a program in place to progressively review every part of the PSM. This review is currently examining Part D of the PSM, which provides standards, procedures and guidance in relation to personnel security practices.

During 2007–08 my office was asked to participate in a working group which is examining certain aspects of Part D of the PSM. I was happy to accept this invitation and to contribute to this important work.

Liaison with other Commonwealth integrity agencies

During 2007–08 I attended several meetings of heads of Commonwealth agencies which have a functional interest in promoting integrity and accountability in public administration.

I found these periodic meetings to be a useful forum for the exchange of ideas and of assistance in developing common approaches to issues of mutual interest or concern.

These meetings are likely to continue on a regular basis.

Renewed involvement with CrimTrac

Immediately prior to commencing as Inspector-General, I served for a number of years as a Deputy Secretary in the Attorney-General’s Department (AGD). During that time I was involved in the establishment of a new specialist agency, CrimTrac and was the first Chair of its Board of Management (2000–2004).

CrimTrac exists to provide specialist support to Australian police services through the provision of information and specialist investigative tools, and national criminal history record checks for accredited agencies.

Given my earlier involvement, I was happy to be invited in September 2007 to sit on CrimTrac’s Audit Committee. I attended three meetings of the CrimTrac Audit Committee during 2007–08.

Footnotes

31. Senator the Hon John Faulkner was made Cabinet Secretary / Special Minister of State, the Hon Mr Anthony Byrne MP was made a Parliamentary Secretary reporting to the Prime Minister, while the Hon Duncan Kerr SC MP was appointed the Parliamentary Secretary for Pacific Island Affairs.

32. Namely the former Attorney-General, the Hon Philip Ruddock MP, and the former Minister for Foreign Affairs, the Hon Alexander Downer MP.

33. Review of the Regulation of Access to Communications, Canberra, August 2005 (aka The Blunn Review)

34. Report of the Senate Legal and Constitutional Affairs Committee into the Telecommunications (Interception and Access) Amendment Bill 2007, dated 1 August 2007, paragraph 3.79. This report is accessible from the Parliament of Australia - Senate website (accessed on 7 August 2008).

35. Report of the Senate Legal and Constitutional Affairs Committee into the Telecommunications
(Interception and Access) Amendment Bill 2008, dated 6 May 2007. This report is accessible from the Parliament of Australia - Senate (accessed on 7 August 2008).

36. Report of the Security Legislation Review Committee, April 2006.

37. ibid, paragraph 18.4.

38. ibid, paragraph 18.8.

39. IGIS Annual Report 2006–07, pp. 28–29.

40. ALRC Discussion Paper 72, Review of Australian Privacy Law. A copy of this paper can be found on the Australian Law Reform Commission website (accessed 7 August 2008).

41. ALRC Report No. 107, February 2008, Privilege in Perspective: Client Legal Privilege in Federal Investigations.

42. ARC Report No. 48, May 2008, The Coercive Information-gathering Powers of Government Agencies.

43. Prime Minister’s press release dated 22 February 2008, entitled ‘Homeland and Border Security Review’ which can
be found on the Prime Minister of Australia website (accessed 9 August 2008).

44. APSC Policy Circular 2008/3, dated 23 April 2008, entitled Providing Information on Code of Conduct Investigation Outcomes to Complainants.

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