Defence Amendment (Parliamentary Joint Committee on Defence) Bill 2024 - Initial Scrutiny [2024] AUSStaCSBSD 110 (26 June 2024)

• Defence Amendment (Parliamentary Joint Committee on Defence) Bill 202479
• Insufficient parliamentary scrutiny80
• Significant penalties83

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Defence Amendment (Parliamentary Joint Committee on Defence) Bill 2024^[79]

Purpose	The bill seeks to amend the Defence Act 1903 to establish the Parliamentary Joint Committee on Defence to replace the Joint Standing Committee on Foreign Affairs, Defence and Trade and have general oversight of Australian defence agencies, other than the Australian Geospatial-Intelligence Organisation, the Australian Signals Directorate and the Defence Intelligence Organisation.
Portfolio	Defence
Introduced	House of Representatives on 30 May 2024
Bill status	Before the House of Representatives

Insufficient parliamentary scrutiny^[80]

1.86 Schedule 1 to the bill seeks to introduce Part VIIIAB into the Defence Act 1903, to establish the Parliamentary Joint Committee on Defence (PJCD). Proposed Division 3 of Part VIIIAB seeks to introduce provisions relating to the procedures that apply to the PJCD, including how it obtains information, takes evidence and publishes or discloses reports. The provisions include measures to consider ‘protected information’^[81] by providing for circumstances in which a minister can limit or restrict how the PJCD conducts itself. For example:

• proposed section 110ACA—the PJCD can only require the production of some types of ‘protected information’ if the Minister responsible for the Commonwealth entity from which the information originates authorises its disclosure;

• proposed section 110ACE—the minister can give a certificate to the presiding committee member stating that a person should not give evidence or produce documents to the committee in relation to particular matters;

• proposed section 110ACG—limits when the committee may disclose or publish evidence or documents in relation to proceedings conducted in private and evidence that involves protected information;

• proposed section 110ACH—restricts the committee from disclosing protected information in a report to a House of Parliament by requiring the committee to obtain ministerial advice and authorisation; and

• proposed subsection 110AEH(2)—the committee must not conduct proceedings in public without the minister’s approval.

1.87 The explanatory memorandum notes that these processes are in addition to processes associated with public interest immunity in parliamentary committees which will continue to apply. In relation to ministerial certificates, the explanatory memorandum explains in section 110ACE:

It is appropriate that a decision to issue a certificate under this section cannot be questioned in a court and tribunal, noting:

a. Ministers are accountable to the Parliament for a decision to issue a certificate, noting that they must provide a copy of the certificate to the President of the Senate and Speaker of the House of Representatives (subsection 110ACE(7)).

b. It is not appropriate for a court or tribunal to intervene in this way with processes of parliamentary committees.

c. There is a strong public interest in certainty when a certificate is issued, to protect the operationally sensitive and other damaging information from uncontrolled disclosure.^[82]

1.88 These provisions are largely modelled off the Intelligence Services Act 2001 which establishes the Parliamentary Joint Committee on Intelligence and Security.

1.89 The committee considers that these provisions provide for the executive to restrict the ability of this parliamentary committee to operate as it sees fit. By controlling the kinds of information and evidence that the PJCD can receive and restricting what the PJCD may disclose or publish, this limits the ability of the PJCD and the parliament to oversee and scrutinise information that comes before it.

1.90 The committee considers that while there are valid national security reasons for introducing these limitations on the procedures of the committee, it is unclear why these cannot be managed with the existing public interest immunity processes. Nevertheless, the committee notes that this bill seeks to establish these limitations in relation to a particular parliamentary committee and not committees more broadly. The committee also notes that the Senate Foreign Affairs, Defence and Trade committee will continue to have oversight over the defence portfolio and can inquire into matters in the Defence and Foreign Affairs and Trade portfolios in the usual manner.

1.91 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of establishing a parliamentary committee with powers to conduct itself limited by the executive.

Significant penalties^[83]

1.92 Division 4 of Part 1 of Schedule 1 to the bill sets out a number of offences that apply in relation to the PJCD, including offences for the disclosure of evidence, documents and information in certain circumstances, failure to attend or produce documents when required, giving false evidence, and threatening or improperly influencing witnesses. These offences can only be prosecuted with the consent of the Attorney-General.^[84] Generally, the offences and penalties closely align with the Intelligence Services Act 2001 in relation to the Parliamentary Joint Committee on Intelligence and Security (PJCIS).

1.93 Subsection 110ADG(1) provides that it is an offence if a current or former committee member, or staff member of the committee or committee member, directly or indirectly makes a record of, or disclosure or communicates to, a person any information acquired because of holding that office or employment, or produces to a person a document provided to the committee for the purposes of enabling the committee to perform its functions, and does so not for the purposes of enabling the committee to perform its functions. The penalty for this offence is five years imprisonment, 300 penalty units, or both.

1.94 The committee considers that, where significant penalties are imposed, the rationale should be fully outlined in the explanatory memorandum, and should be justified by reference to similar offences in Commonwealth legislation or if not, why not. This promotes consistency and guards against the risk that a person's liberty is unduly limited through the application of disproportionate penalties.

1.95 In this case, the explanatory memorandum explains:

The maximum penalty for this offence is five years imprisonment or 300 penalty units, or both. This penalty reflects the gravity of the responsibility of Committee members and their staff, who are provided with, or may come into the possession of in the course of their work, sensitive information in order to allow close scrutiny by the Committee of defence operations and other matters.^[85]

1.96 While acknowledging this explanation, the committee notes that a similar secrecy offence in the Intelligence Services Act 2001 in relation to the PJCIS is subject to a smaller penalty of two years imprisonment, 120 penalty units, or both.^[86] It is therefore unclear to the committee why the proposed penalty amount is considered appropriate. The committee’s concerns are further heightened in this instance as the offence appears not to be limited to ‘protected information’ but ‘any information’, and this is not explained further in the explanatory memorandum.

1.97 In light of the above, the committee requests the minister’s advice as to the appropriateness of the penalty proposed in subsection 110ADG(1).

1.98 The committee's consideration of the appropriateness of this provision would be assisted if the minister’s response explicitly addresses relevant principles as set out in the Attorney-General’s Department’s Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

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^[79] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Defence Amendment (Parliamentary Joint Committee on Defence) Bill 2024, Scrutiny Digest 7 of 2024; [2024] AUSStaCSBSD 110.

^[80] Schedule 1, item 2, proposed Part VIIIAB. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(v).

^[81] Proposed subsection 4(1) seeks to define ‘protected information’ to mean: operationally sensitive information; information that would or might prejudice Australia’s national security or foreign relations; information that would or might prejudice the performance by an Australian defence agency or agency in the national intelligence community of its functions; naval nuclear propulsion information; and information relating to an inquiry or investigation by the Inspector-General Australian Defence Force that is being conducted.

^[82] Explanatory memorandum, p. 12.

^[83] Schedule 1, proposed subsection 110ADG(1). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

^[84] Proposed section 110ADH.

^[85] Explanatory memorandum, p. 18.

^[86] Intelligence Services Act 2001, section 12.