Office of the Prime Minister
From: Senior Advisor, National Security
To: Prime Minister
Date: 30 August 2019
Re: Proposal to legislate a crossbench position on the Parliamentary Joint Committee on
Intelligence and Security
1. A recent crisis of confidence in the oversight of the national security framework in Australia threatens to undermine the credibility, legitimacy and effectiveness of the Parliamentary Joint Committee on Intelligence and Security.
I. That the Prime Minister consider the introduction of a notice of motion in either the Senate or the House of Representatives that amends the committee membership of the Parliamentary Joint Committee on Intelligence and Security to appoint one crossbench member to the committee.
Current Legislative Framework
1. The Parliamentary Joint Committee on Intelligence and Security (PJCIS) is established under s 28 of the Intelligence Services Act 2001 (the Act).
2. The functions of the committee are set out in s 29 of the Act, and include (but are not limited to) a responsibility:
(a) to review the administration and expenditure of ASIO, ASIS, AGO, DIO, ASD and ONI, including the annual financial statements of ASIO, ASIS, AGO, DIO, ASD and ONI; and
(b) to review any matter in relation to ASIO, ASIS, AGO, DIO, ASD or ONI referred to the Committee by: (i) the responsible Minister; or
(ia) the Attorney-General; or
(ii) a resolution of either House of the Parliament…
3. The Act requires that the committee consists of 11 members: 5 Senators and 6 Members of the House of Representatives, the majority of which are Government members.1 The Chair of the Committee must also come from the Government.2
4. Appointments to the committee are stipulated in Schedule 1, Part 3 of the Act, which states that committee members from the House of Representatives must be appointed by resolution of the House on the nomination of the Prime Minister.3 Prior to making that nomination, the Prime Minister must consult with the Leader of each recognized political party that is represented in the House and does not form part of the Government.4
5. Similarly, members who are Senators must be appointed by resolution of the Senate on the nomination of the Leader of the Government in the Senate.5 The same consultation requirements apply to the Leader of the Government in the Senate as they do to the Prime Minister in the House of Representatives.6
6. The Act requires that the Prime Minister and the Leader of the Government in the Senate ‘have regard to the desirability of ensuring that the composition of the Committee reflects the representation of recognized political parties in the Parliament’.
7. While the appointment provisions do not expressly exclude the appointment of all crossbench member of either House to the committee, the committee has almost exclusively been constituted by members of the Government and the Opposition. The explicit reference to the ‘representation of recognized political parties in Parliament’ does appear to exclude Independent Members of Parliament and raises questions about micro and minor party representation. In practice, only one member of the crossbench has been appointed to the committee. The Member for Denison, Mr Andrew Wilkie MP was appointed to the Committee in 2010 and served until 2013. Mr Wilkie was appointed during the period of the Gillard Minority Government in which the crossbench held the balance of power.
Current political context
8. The PJCIS is widely perceived to be a very powerful committee and is highly lauded for its legitimacy. Despite the political nature of its membership, the committee itself benefits from commonalities in the policy positions of both the Government and the
Opposition when it comes to national security issues. Further, both the Government and the Opposition hold the view that bipartisan approaches are more productive in the carrying out of scrutiny functions, and that consensus reports carry more weight and influence in their recommendations.
9. It appears as if these shared views are reflected in practice. One study showed that the PJCIS achieved a significantly high ‘success rate’ in terms of the conversion of committee recommendations into legislative outcomes. Table 1 below shows that 100% of the recommendations made by the PJCIS in the course of four inquiries were implemented as amendments to the legislation the subject of the review.7
10. However, perceptions of the committee’s apparent success and legitimacy are being undermined by a growing group of voices both in and out of Parliament that the committee is abdicating its scrutiny responsibilities.
11. While these arguments are not necessarily new, they have been amplified in recent times with the introduction and perceived overly expedient passage of multiple pieces of national security legislation that impose restrictions on civil liberties.
12. Recent opinion polling has tracked a dramatic increase in the level of distrust amongst the public towards the Government in the context of national security issues. The same polling data detected an almost equal level of distrust in the Opposition.
Arguments in favour
13. The installation of a crossbench committee member from either the House of Representative or the Senate would serve to increase public confidence in the robustness of the consideration informing the findings and recommendations made by the committee.
14. There is precedent for such an appointment, with the appointment of Mr. Andrew Wilkie MP in the 43rd Parliament.
15. Other Joint Committees have scope for the appointment of cross-benchers. The Parliamentary Joint Committee on Law Enforcement is established under s 5 of the Parliamentary Joint Committee on Law Enforcement Act 2010. Its primary functions (among others) are to monitor and review the performance of the Australian Federal Police8 and the Australian Criminal Intelligence Commission, and to examine and report to the Parliament on trends in criminal activities, practices and methods. Its committee membership is established as follows:
• 3 Members of the House of Representatives to be nominated by the Government;
• 2 Members of the House of Representatives to be nominated by the Opposition or by any minority group or independent member;
• 2 senators to be nominated by the Leader of the Government in the Senate;
• 2 Senators to be nominated by the Leader of the Opposition in the Senate;
• 1 Senator to be nominated by any minority group or independent Senator.9
16. The major argument against implementing a position for a crossbench committee member is that it would lead to a decrease in the effectiveness in the bipartisanship demonstrated by the committee which has led to its success outlined above. While this
is a very legitimate concern, the risk of inaction poses a more significant threat to the credibility and legitimacy of not just the committee, but the Parliamentary scrutiny process more widely. Instead, the Government may wish to adopt a strategy wherein the former risk is mitigated (see the Strategy section below) while serving to enhance public confidence in both the Parliamentary process and the oversight of national
security bodies more generally.
17. A second major concern is that placing a crossbencher on the committee may limit the frankness and openness with which agencies and relevant stakeholders may engage with the committee. The Act contains a number of protections for agencies, including
restrictions on the committee’s ability to require persons or bodies to disclose sensitive information;10 restrictions on disclosure of information to Parliament;11 and penalties for the unlawful disclosure of information acquired through their position on the committee.12 Such restrictions and penalties serve to deter the improper or unlawful use of information by any committee member or staff member, including any prospective crossbench member.
18. To mitigate against the risk outlined in paragraph 15 above, it would be best to maintain the government majority on the committee.
19. The implementation of the recommendation could be undertaken in a number of ways. First, as the statute as it currently stands does not preclude the appointment of crossbench members to the committee, the Prime Minister could introduce a notice of motion into the House of Representatives (or the Leader of the Government in the Senate in the Upper House) which amends the resolution of appointment as it currently stands. It is not anticipated that the difficulty of obtaining the numbers to pass the resolution would be difficult in the House of Representative where the Government holds a majority or in the Senate where such a resolution is likely to attract the support of the crossbench.
20. Second, the Government could introduce legislation amending the IA Act to formalise a crossbench position in the legislation. While this approach is also likely to pass in both chambers, the government may which to delay undertaking such action until such time has passed as to make a proper assessment on the effectiveness (or lack thereof) of the amendment to membership.
That the Prime Minister consider the introduction of a notice of motion in either the Senate or the House of Representatives that amends the committee membership of the Parliamentary Joint Committee on Intelligence and Security to appoint one crossbench member to the committee.