Parliament’s Joint Committee on Intelligence and Security has backed the second round of changes to national security laws introduced by Attorney-General George Brandis, but with some major reservations that set it on a potential collision course with the government.

The committee, chaired by Liberal Dan Tehan, this morning released its report into the “foreign fighters” bill, which establishes a new offence of travelling to a designated conflict area, extends control and preventive detention orders and gives the government additional powers to prevent Australians from travelling overseas. The report, with 36 recommendations, suggests the committee is considerably more concerned about this bill than the first set of reforms, which were legislated in Parliament several weeks ago. Among the committee recommendations are:

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  • instead of sunsetting in 2025, as proposed by the government, the controversial and, until recently unused, preventive detention order power will sunset two years after the next election, meaning 2018 at the latest, with a review by the Independent National Security Legislation Monitor and the committee itself to be required ahead of the expiry. The control order power would similarly sunset then; both are currently due to expire next year. That appears to reflect a win for two of the committee’s veterans — Labor deputy chair Anthony Byrne and Senator John Faulkner — who have expressed concerns about the extension of the provisions;
  • the offence of entering a designated area should also sunset two years after the election;
  • some of the language in the bill be should tightened up or dumped: in particular, the committee wants “acts prejudicial to the ‘international relations’” in relation to prescribed organisations either dumped or better defined, after former INSLM Bret Walker SC identified that as a problem in the bill; references to “subverting society”, “engaging in a hostile activity”, “politically motivated violence” and other vague terms should be better defined or linked to existing offences;
  • making it much harder for evidence obtained by torture or duress overseas to be used here;
  • removing the power to designate an entire country off-limits from the bill;
  • powers for the committee itself to review designations of no-go areas;
  • reducing the proposed extensions of the detention powers of Customs, and imposing reporting obligations for them;
  • an investigation by the Privacy Commissioner of the Department of Immigration and Border Protections and Customs’ data storage and sharing processes (which could be explosive if it happens, given Immigration’s poor record); and
  • the entire removal of the proposed power for Immigration to be able to fingerprint and retina-scan everyone leaving and entering Australia.

However, the committee split over the government’s proposed attack on free speech via a new “advocating terrorism” offence. It accepted the argument that current offences — which link advocacy to specific acts of terrorism — need to be widened, but the committee suggests the current drafting is too vague and needs to be made considerably clearer. For example,

“…the Committee does recognise that there is a lack of clarity in relation to what behaviour could be deemed to be acts which ‘advocate’, particularly concerning social media. For example, it is not clear whether a person who ‘likes’ a Facebook comment which contains favourable reference to terrorist activity is ‘advocating’ that others should undertake that behaviour.”

Apart from the specific recommendations, what’s noteworthy about the report is that the committee (which, bear in mind, isn’t an ordinary committee but one established separately in legislation) wants to deal itself much more explicitly into not just future legislative reviews — such as for preventive detention orders — but in overseeing the designation process that the bill would set up. This will be a significant shift by a committee that has traditionally had a limited role, primarily in relation to administrative matters of intelligence agencies, unless a government has specifically requested it to consider an intelligence or security issue.

In addition to the designation oversight and review of sunsetting legislation, the committee thus also wants its role extended to encompass the counter-terrorism activities of the Australian Federal Police (including “anything involving classified material”). These changes to the role of JCIS, if accepted, would establish in legislation a substantially greater review function for the committee not just in future legislative reviews but in overseeing how established legislation is being implemented by the government — in effect codifying the role of JCIS as it has evolved since then-attorney-general Nicola Roxon asked JCIS to review a vast swathe of reforms proposals in 2012. This reflects a desire on the part of some committee members to fill what is an increasingly obvious gap in the broken oversight of Australia’s intelligence agencies, especially compared to the way the Brits and the Americans run parliamentary oversight of agencies.

It all adds up to a significantly greater challenge to Attorney-General George Brandis than perhaps he was expecting. And the government now has a threshold decision to make on whether it accedes to the committee’s desire to play a much bigger role in national security oversight.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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