Intelligence Services Amendment (Enhanced Parliamentary Oversight of Intelligence Services) Bill 2018 [2018] AUSStaCSBSD 198 (22 August 2018)

• Chapter 1
• Commentary on Bills
• Intelligence Services Amendment (Enhanced Parliamentary Oversight of Intelligence Services) Bill 2018
• Exclusion of judicial review1

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Chapter 1

Commentary on Bills

1.1 The committee seeks a response or further information from the relevant minister or sponsor of the bill with respect to the following bills.

Intelligence Services Amendment (Enhanced Parliamentary Oversight of Intelligence Services)
Bill 2018

Purpose	This bill seeks to amend the Intelligence Service Act 2001 to extend parliamentary scrutiny over the activities of Australia’s national security and intelligence agencies, including scrutiny and reviews of intelligence operations
Sponsor	Senator Rex Patrick
Introduced	Senate on 14 August 2018

Exclusion of judicial review^[1]

1.2 Proposed subsection 29A(1) provides that if the Parliamentary Joint Committee on Intelligence and Security (PJCIS) undertakes a review of activity by Australia's national security or intelligence agencies, and the relevant responsible minister is of the opinion that the activity is an ongoing operation, or the review would interfere with the proper performance by the agency of its functions or otherwise prejudice Australia's national security or foreign relations, the minister may give the PJCIS a certificate stating the minister's opinion and reasons. Proposed subsection 29A(4) provides that the PJCIS must cease or suspend a review if the minister gives such a certificate and proposed subsection 29A(3) provides that a decision of the minister to issue a certificate must not be questioned in any court or tribunal.

1.3 The committee notes that the intention behind proposed subsection 29A(3) would be to exclude judicial review in relation to the minister's decision. The explanatory memorandum does not explain why it is considered necessary to exclude judicial review of such decisions. In addition, the committee notes that section 75(v) of the Commonwealth Constitution confers jurisdiction on the High Court for judicial review of decisions made by officers of the Commonwealth. As such, the committee considers that proposed subsection 29A(3), in seeking to exclude judicial review of a ministerial decision, appears inconsistent with this constitutional source of judicial review jurisdiction.

1.4 In the event that this bill progresses further through the Parliament, the committee may request further information on the proposed exclusion of judicial review from the legislation proponent.

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^[1] Schedule 1, item 3, proposed subsection 29A(3). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).