Did the Richardson intelligence review get it right?

The 1,300-page unclassified version of the review of the legal framework of Australia’s national intelligence community (NIC), delivered to the government in December 2019 and released a year later, offered 203 recommendations for reform. Thirteen of them were classified. The government’s response, also released in December 2020, indicated agreement—in whole, in part or in principle—with 86 of the 90 unclassified recommendations.

Not since Robert Hope’s transformative royal commissions in the 1970s and 1980s has there been such a wide-ranging review of Australia’s laws governing intelligence and security. However, there’s much to lament in what the latest review says, and doesn’t say, about the oversight arrangements for and transparency of the NIC, especially regarding parliamentary scrutiny.

One of the review’s main tasks was to consider whether improvements were needed to ensure that the legislative framework provides for accountability and oversight that is transparent and as consistent across the agencies as is practicably feasible.

The review, undertaken by former Australian Security Intelligence Organisation chief Dennis Richardson and supported by a secretariat in the Attorney-General’s Department, found that the oversight of the NIC is ‘strong, effective and working well’.

However, in our submission to the review, we highlighted a number of areas for reform, especially to the Office of the Inspector-General of Intelligence and Security (IGIS), the Independent National Security Legislation Monitor (INSLM) and the Parliamentary Joint Committee on Intelligence and Security (PJCIS). The issues we raised—some of which were also raised by others—haven’t been substantively addressed in the unclassified version of the report. The reasons for this are not clear, at least not in the public version of the report.

One of the most striking judgements in the review is its rejection of the recommendation of the 2017 independent intelligence review to extend the IGIS’s jurisdiction to cover all 10 NIC agencies. The IGIS currently has jurisdiction over the six agencies that make up the Australian intelligence community (AIC), which does not include the Department of Home Affairs and the Australian Federal Police. The review concluded that ‘[t]he IGIS should not have oversight of the Department of Home Affairs or the AFP as recommended in the 2017 IIR’. According to the review:

The NIC is significantly more disparate than the AIC. Unlike the AIC, the NIC does not have a common philosophical base at the heart of its legislation. Equally, all NIC agencies cannot and should not be treated the same in legislation. This holds true for oversight. A ‘one size fits all’ approach is not appropriate.

Disparate or not, some overlap of oversight bodies’ responsibilities is useful to ensure that no gaps arise in coverage as noted elsewhere in the review. The intelligence functions of the 10 agencies in the NIC may not be equivalent, but Australia’s intelligence and security architecture should require consistent oversight treatment by the IGIS. And given that it is a national intelligence community, perhaps there should be a common philosophical base at the heart of the legislation—a missed opportunity by the review?

The review also noted that the demands on the IGIS are growing, and its rigorous oversight can only continue to provide assurance if it is adequately resourced. The office’s resources are already stretched and, given the many findings and recommendations in the review related to the IGIS, its responsibilities are likely to be stretched even further unless additional resourcing is provided.

Encouragingly, the review noted that several submissions (including ours) raised concerns about the timeliness of government responses to the INSLM’s recommendations and suggested that the government be legislatively required to table timely responses. Accordingly, the review recommended, ‘As a matter of good practice, the Government should provide a publicly available response to the INSLM’s recommendations within 12 months of the INSLM’s report being tabled in Parliament.’

Regrettably, though, our calls to remove barriers to more effective parliamentary scrutiny so that the PJCIS can be appropriately equipped for its future work seem to have fallen on deaf ears.

Most notable among our suggestions for reform was that the PJCIS’s legislative power be widened to include the ability to analyse the NIC’s operations and conduct its own motion inquiries. The review recommended, ‘The remit of the Parliamentary Joint Committee on Intelligence and Security should not be expanded to include direct oversight of operational activities, whether past or current.’ This is a blow to the elected representatives of the people and the integrity of Australia’s intelligence and security architecture.

As highlighted in a recent report from the Australia Institute, ‘Australia’s parliamentary oversight of its intelligence community is weak compared to that of other countries in the Five Eyes. Most significantly, parliamentarians in the UK, USA and Canada have oversight over the operations and activities of intelligence agencies, which Australia and New Zealand lack.’

Alarmingly, in direct contradiction to the recommendations of the 2017 review and the Richardson review, the government rejected changes to allow the PJCIS to request the IGIS to conduct an inquiry into the legality and propriety of particular operational activities, and report to the PJCIS, the prime minister and responsible minister.

The review found that the approach recommended by the 2017 IIR could enhance already strong oversight arrangements while preserving the complementary but distinct roles for executive and parliamentary oversight. It would also provide a mechanism for the PJCIS to bring matters of public concern to the IGIS’s attention and increase its visibility over the IGIS’s review of such matters.

However, according to the government:

Even if the IGIS is not obliged to conduct an inquiry, the remit of the PJCIS should not be expanded to include oversight of agencies’ operational activities by requesting the IGIS to inquire into and report on particular operations. It remains appropriate for ministers to primarily oversee operations and be accountable to Parliament … These existing arrangements appropriately balance accountability with the need to protect sensitive operations and capabilities, and further oversight by the PJCIS is not necessary.

In rejecting the recommendations of both the IIR and the Richardson review, the government is further eroding the NIC’s accountability and oversight mechanisms.

While Richardson and the secretariat should be lauded for their efforts, did the review ‘get it right’, to quote Justice Hope, on intelligence oversight and transparency? As far as the PJCIS is concerned, the review is a missed opportunity—neither an evolution nor a revolution.

As the review states, ‘The world, Australia and the NIC have plainly changed in the 40 years since the Hope Royal Commissions’. The government’s decision not to accept the recommendation to change the powers of the PJCIS is therefore surprising. Without effective parliamentary scrutiny, the confidence and trust of the Australian people in the work of the NIC will corrode.

Clearly what’s required, as Justice Hope’s biographer Peter Edwards has previously called for, is that the next independent intelligence review, expected in 2022–23, be upgraded to a royal commission. Perhaps then the role, powers and resources of the PJCIS will be considered and it will be appropriately equipped to safeguard the democratic values, rights and liberties of all Australians.