Andrew Davies valuable post calls attention to the range of watchdog mechanisms holding Australia’s intelligence agencies to account. It also asks why Australians don’t know much about these checks and balances. I would suggest that’s partly because of Australia’s unusually high level of secrecy on intelligence matters, and also because our watchdog mechanisms fall short when compared to some other liberal democracies.
For example, the US Congress has multiple committees (PDF) overseeing intelligence agencies and scrutinising their operations, and these committees require notification of all covert actions (PDF). Our sole comparable committee, the Parliamentary Joint Committee on Intelligence and Security, has a much more limited role. It has no oversight of actual operations, and in fact has a lengthy list of things it can’t do (see footnote).
As a result, our Parliament rarely has the sort of media-friendly confrontations over intelligence matters that the US Congress sometimes has, which contributes to the lack of public awareness about intelligence oversight. It also calls into question whether, as Andrew argues, ‘Australians are pretty well served by the watchdog mechanisms in place’. I’m less confident than him that we are, because there’s a limited amount of publically available information on which to base such a judgment.
Intelligence agencies of course have to be more secretive than other parts of the public service, but Australia’s agencies have a level of secrecy that exceeds those in similar countries. For example, ASIO and other agencies have blanket 20–30 year exemptions from Freedom of Information (FOI) legislation, which the Australian Information Commissioner, John McMillan, currently opposes. In a submission to a review of FOI laws he pointed out that (PDF) in ‘other jurisdictions, including New Zealand and the United States, intelligence agencies are covered by FOI legislation’.
This difference allows journalists and academics in such other jurisdictions to obtain much more information about what their intelligence services do. For example, terrorism researcher J. M. Berger has written detailed accounts of the CIA’s investigations into al Qaeda from 1991 to 2003 and the FBI’s infiltration of far-right extremist groups (PDF) in the 1990s, based substantially on documents acquired through America’s FOI legislation. Comparable research into Australian agencies is almost impossible.
The problem goes beyond the intelligence services, as Australia generally has excessive secrecy on national security matters. For example, Australia’s military secrecy goes well beyond that of our allies. Lowy Military Fellow James Brown has noted (PDF) that Defence’s annual reports are ‘less transparent and detailed than similar defence reporting in the UK, US, Canada, and New Zealand’.
The limited transparency contributes to the lack of well-informed debate. Whenever a public controversy breaks out (such as on Julian Assange, Ben Zygier, Mamdouh Habib, possible spying on anti-coal activists, data retention proposals, and now whether Australia receives PRISM data), the lack of publicly available information means that neither side’s claims can be critically assessed. Instead, each side becomes entrenched in their positions, the media publish with what they have and move on, and much of the public remains indifferent.
So while Andrew rightly calls for well-informed debate, the current excessive secrecy works against this. As he points out, Australian intelligence agencies do indeed have plenty of accountability mechanisms; see the comprehensive list on pages 302-317 of this report (PDF). However, they have fewer teeth than they could have, and our agencies enjoy more secrecy than national security requirements appear to justify. As former ONA analyst Ken Ward has said, ‘it would be better if the Australian public were better informed. If America can do it without damaging its national security, why can’t Australia’?
Footnote: The Parliamentary Joint Committee on Intelligence and Security’s website states that:
The IS Act limits the inquiry powers of the Committee by providing that the functions of the Committee do not include:
- reviewing the intelligence gathering and assessment priorities of ASIO, ASIS, DIGO, DIO, DSD or ONA;
- reviewing the sources of information, other operational assistance or operational methods available to ASIO, ASIS, DIGO, DIO, DSD or ONA;
- reviewing particular operations that have been, are being or are proposed to be undertaken by ASIO, ASIS, DIGO, DIO or DSD;
- reviewing information provided by, or by an agency of, a foreign government where that government does not consent to the disclosure of the information;
- reviewing an aspect of the activities of ASIO, ASIS, DIGO, DIO, DSD or ONA that does not affect an Australian person;
- reviewing the rules made under section 15 of the Act (to protect privacy of Australians);
- conducting inquiries into individual complaints about the activities of ASIO, ASIS, DIGO, DIO, DSD or ONA;
- reviewing the content of, or conclusions reached in, assessments or reports made by DIO or ONA, or reviewing sources of information on which such assessments or reports are based; or
- reviewing the coordination and evaluation activities undertaken by ONA.