Bolstering scrutiny of Australia’s intelligence agencies remains a vexed issue
26 Oct 2021|

A policy options paper from the National Security College at the Australian National University, titled ‘Improving national security governance’, proposes reforms to hold Australia’s security and intelligence agencies more accountable as we move into an era of heightened strategic complexity and risk.

The paper is a welcome contribution to public discourse at a time when the powers and resourcing vested in Australia’s national intelligence community are greater than ever. It makes astute observations about problematic limitations to the scrutiny and guidance of Australia’s security and intelligence agencies.

One key recommendation is the appointment of an assistant or junior minister for intelligence to work across national security portfolios and support senior ministers and the prime minister ‘on matters relating to national security strategy, managing investment in intelligence capability and reforms to enabling legislation’.

While that idea is commendable at face value, adding yet another layer of executive oversight within the machinery of government to an already immensely complex and crowded oversight structure is problematic. Indeed, if some of the security and intelligence legislation has been described as a ‘dog’s breakfast’, then the current haphazard oversight structure can only be described as a ‘dog’s dinner’. Last year, John Blaxland made a valiant effort to outline the complicated oversight and accountability mechanisms for Australia’s intelligence agencies.

In fact, there’s a real inherent danger that the creation of such a portfolio would raise the risk of politicising oversight. It is by no means clear that collecting all the intelligence agencies under a single minister as proposed would be sufficient to prevent the politicisation of intelligence. Moreover, the political interests of such a minister could inhibit impartial oversight and even increase the risk of sensitive information being leaked. In the Australian case, a one-size-fits-all approach is easier said than done for effective oversight.

What is required is an integrated approach for more exacting standards of objectivity and rigour to bolster the powers and resourcing of the key existing oversight bodies, including the Parliamentary Joint Standing Committee on Intelligence and Security (PJCIS) and the Inspector-General of Intelligence and Security (IGIS). As well, reintroducing the role of a national security adviser, previously performed by Duncan Lewis and Margot McCarthy, could be considered to enhance whole-of-government coordination.

As Australia’s national intelligence community has grown and expanded in size and powers in the past two decades, key oversight and accountability mechanisms have remained comparatively unchanged and legislatively constrained. That necessitates enhanced oversight.

Over the years, current and former parliamentarians—John Faulkner, Russell Trood, Penny Wong, Jenny McAllister and Rex Patrick—have called for the bolstering of the PJCIS’s powers and resourcing. Anthony Bergin and I have also written extensively on the vexed issues pertaining to its effective oversight.

In a recent article, PJCIS chair James Paterson acknowledged that the committee had already recommended it conduct an inquiry after the next election into the provisions of the Intelligence Services Act 2001 that govern its work. According to Paterson: ‘It has not been examined since it was legislated in 2001, and an inquiry would ensure the committee is functioning as efficiently and securely as possible.’

However, the 2019 review of the legal framework of the national intelligence community by Dennis Richardson did examine the Intelligence Services Act 2001. Disappointingly, it concluded that the remit of the PJCIS should not be expanded to include direct oversight of operational activities, past or current. Nor did it recommend any amendment to the composition of the PJCIS for a more flexible membership.

However, the review did endorse the 2017 intelligence review’s recommendation to expand the remit of the PJCIS to request the IGIS to conduct an operational inquiry and report to the PJCIS, the prime minister and the responsible minister. Unfortunately, this was one of the few recommendations of the review dismissed by the government, which asserted that the existing arrangements were appropriately balanced and further PJCIS oversight wasn’t necessary.

The 2017 review also recommended that the resources of the office of the IGIS be increased to ensure that it could effectively oversee the national intelligence community. The government accepted this recommendation and in the 2018–19 budget allocated funds for the IGIS to sustain a full-time office of 55.

However, in its submission to the PJCIS review of agencies’ administration and expenditure for 2019–20, the IGIS noted that ‘delays in the processing of positive vetting security clearances continue to impact on the ability of some agencies, including IGIS, to recruit staff’. As at 30 June 2020, IGIS had 33 staff, well below the recommended 55.

The under-resourcing of an office that plays such a vital role in providing independent, rigorous oversight of, and public assurance about, the intelligence community is unacceptable and further reforms to the vetting process are essential.

The Richardson review noted that ‘the oversight system for the NIC is strong, effective and working well. There is no need for substantial reform of the system.’

It is clear that the ambit of oversight of Australia’s security and intelligence agencies is a complicated and vexed issue and there’s still considerable room for reform, especially to the PJCIS and IGIS.

Bolstering the scrutiny of Australia’s national intelligence community is essential so that the public can trust the oversight. It is in the national interest to ensure more profound rethinking of such oversight measures. Here the policy options paper makes a positive contribution to an important ongoing debate.