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Labor gives parliament only limited powers to examine unlawful spying after Timor-Leste scandal

The Guardian - September 11, 2023

Christopher Knaus – Australia's parliament will be given only a limited ability to scrutinise unlawful and improper intelligence operations, prompting concerns it will not be able to meet a pre-election promise for an investigation of the 2004 Timor-Leste bugging scandal.

In opposition, Labor pledged to drastically increase the level of parliamentary oversight of intelligence agencies, including by allowing the parliamentary joint committee on intelligence and security (PJCIS) to examine specific operations mounted by Australia's spies.

The then opposition said such changes would be needed for parliament to examine the 2004 bugging mission targeting Timor-Leste, something it supported.

Labor pledged to improving parliamentary oversight by allowing the PJCIS to ask the intelligence watchdog, the Inspector-General of Intelligence and Security (IGIS), to conduct inquiries into specific spy operations.

It also promised to ease existing restrictions that prohibit the PJCIS from reviewing material relating to specific intelligence operations.

In government, Labor has introduced a suite of reforms that achieve only one of those two aims.

Legislation currently before the lower house would allow the PJCIS to request the IGIS investigate a wide range of matters, including specific intelligence operations like the 2004 bugging mission.

But the PJCIS would still be significantly restricted in the types of material it can review itself.

The reforms do not remove a prohibition on the PJCIS reviewing material relating to specific intelligence operations. The committee will still be unable to review "particular operations that have been, are being or are proposed to be undertaken by ASIO, ASIS, AGO, DIO or ASD".

It will also not be able to review material about intelligence activity that "does not affect an Australian person" or examine intelligence agencies' compliance with privacy rules. The PJCIS would also not be able to review material about "individual complaints" against intelligence agencies.

Many Five Eyes allies give their parliaments the ability to privately oversee the actions of intelligence agencies. The US allows congressional committees to scrutinise covert missions and the UK empowers the intelligence and security committee can examine operational activity.

Bill Browne, the director of the Australia Institute's democracy and accountability program, urged Labor to honour its commitment, describing parliamentary oversight of specific intelligence operations as vital.

Browne, who has published extensively on parliamentary oversight of intelligence, said Australia's current system made it "unusual among its Five Eyes peers".

"Australians expect intelligence agencies to be accountable to their democratically elected representatives in parliament, and the limit on PJCIS being able to review specific operations means that cannot happen," he said.

"PJCIS is a trusted committee of democratically elected parliamentarians, and it is not only proper but vital that it be able to review intelligence agency behaviour, including the scandalous bugging of the Timor-Leste government by ASIS."

Labor's promise for greater oversight of intelligence activity came during a 2020 push by then crossbench senator Rex Patrick for an inquiry into the 2004 bugging of Timor-Leste.

Patrick said at the time the inquiry should be conducted by the legal and constitutional affairs committee to avoid the restrictions on the PJCIS.

A spokesperson for attorney general Mark Dreyfus said the government had ended the prosecution of Collaery and was now "building a new partnership with Timor-Leste based on trust, respect for its sovereignty and support for its economic prosperity".

"The Intelligence Services Legislation Amendment Bill 2023 introduced on 22 June 2023 proposes greater oversight by the PJCIS, including the right for PJCIS to request that the IGIS conduct an inquiry," the spokesperson said.

Source: https://www.theguardian.com/australia-news/2023/sep/11/labor-timor-leste-bugging-scandal-parliament-limited-power