Draft intelligence laws not gold standard

A government member of parliament's security committee has questioned whether the Inspector-General of Intelligence and Security is too close to the agencies it is supposed to be monitoring.

The committee is scrutinising proposed laws intended to keep Australia's close-knit network of intelligence agencies in check.

Liberal committee member Celia Hammond gathered evidence at Thursday's hearing about the practice of intelligence agencies getting pre-operational advice from IGIS.

"Overall I think the danger, even with the best will in the world, is huge," said Bret Walker SC, chair of the Law Council of Australia's constitutional law committee and member of its criminal law committee.

"I think it is depriving oversight agencies of a critical degree of detachment."

Just like judges don't have lunch with litigants, consulting the Australian Criminal Intelligence Commission about a transaction that might be insider trading was a very bad idea, Mr Walker said.

"There is a real risk, a constant one, of all oversight supervisory bodies engaged in this sector of government activity, of those of us doing that work, being duchessed by the people we are meaning to be supervised."

The new bill will expand the remit of the inspector-general to include ACIC and AUSTRAC, which gathers financial intelligence on money laundering, organised crime, welfare fraud, tax evasion and terrorism financing.

Quizzed at length by shadow attorney-general Mark Dreyfus, Attorney-General's Department senior official Andrew Walter eventually conceded parliament's joint committee on intelligence and security does not have oversight of any intelligence functions of Home Affairs.

"Correct," he said.

George Williams, head of the Gilbert and Tobin Centre of Public Law, said the bill would leave significant gaps and wanted it extended to include all intelligence functions across government.

"It requires a specialised kind of oversight - the gold standard that IGIS provides," Professor Williams said.

He also called for a broader body of work on oversight enjoyed by other members of Five Eyes, particularly the United States and the United Kingdom where parliamentary committees exercise more influence on powerful agencies.

Home Affairs Deputy Secretary Marc Oblong argued the department was "not an intelligence agency in the traditional sense" and does not have intrusive or covert powers.

Rather, they take intelligence from other sources and provided aggregated information to decision makers such as that needed for a drug bust or stopping fraudulent black market sales of COVID-19 vaccines, he said.

Inspector-General Christopher Jessup QC said it was critical in a democracy that intelligence agencies were subject to strong oversight and accountability mechanisms.

"Indeed, independent and credible oversight of intelligence activities is a core element of the public's trust in intelligence agencies and their operations," Dr Jessup said.

But the bill doesn't include any intelligence functions of the federal police and Home Affairs.

For the Morrison government, the bill introduced last December is in line with last year's review of intelligence laws by former ASIO boss Dennis Richardson, who also served as Defence secretary and foreign affairs chief.

Critics say the latest Richardson review is a watered down version of the Independent Intelligence Review of 2017, which found a "compelling case" to also include the federal police and Home Affairs.

The committee also heard that the oversight bill is not dependent on the passage of the identify and disrupt bill that will add to surveillance powers and warrants for the federal police and ACIC.