The good and not so good of policymaking
21 Jul 2017|

The most important point to make about the government’s proposed Home Affairs portfolio is that these new arrangements can be made to work. They will not harm our counterterrorism performance and could improve Australia’s underwhelming efforts to protect against foreign interference and strengthen the security of critical infrastructure. But in announcing last Tuesday what Prime Minister Turnbull called ‘the most significant reform of Australia’s national intelligence and domestic security arrangements—and their oversight—in more than forty years’, it’s surprising that so little groundwork had been done to justify the need for change or to say how it was going to be done.

The Home Affairs announcement was linked to the government’s release of the unclassified version of the 2017 Independent Intelligence Review. By contrast, this is a meticulously argued report based on extensive consultations and containing detailed recommendations and implementation strategies that will significantly reshape the Australian intelligence community. The prime minister said that the government would accept some of the review’s key proposals and that a ‘task force’ in the Department of the Prime Minister and Cabinet could consider other recommendations ‘in detail.’ Changing tack, Mr Turnbull then said, ‘In these difficult times, repeated reviews and task forces are not enough. We need to take more decisive action.’ With that the Home Office was announced, with promises that detailed implementation arrangements would be worked out in the second half of this year and ‘its roll-out to be complete by 30 June next year’. There is indeed more than one way to skin a policy cat.

The fallow period of implementation planning creates a policy mammoth moving slowly across the tundra of Australian politics. Will the beast still be alive in June 2018? Government should move quickly to shape the policy debate by issuing a discussion paper that sets out, as clearly as possible, the strategic reasons for making these big changes and addresses some of the questions that have arisen in the last few days. For example, how will ASIO and the AFP ‘retain their current statutory independence, which is such a vital aspect of the Australian system’, as the PM said, while the Home Affairs portfolio ‘oversee[s] policy and strategic planning and the coordination of the operational response to the threats we face’ at the same time? [My emphasis.]

More clarity is needed around the handling of ministerial warrants and authorisations for ASIO and AFP activities. The PM said that the Attorney-General ‘will retain his current role in the issue of warrants and ministerial authorisations’. But he also said that the government will ‘review the role of the Attorney-General in the role in ASIO’s operations in the work to design and establish the new portfolio to ensure continued and efficient oversight’. When pressed about whether ASIO and AFP warrants and authorisations would require the signature of one or two ministers, the Attorney-General seemed to suggest that both he and the Home Affairs minister would authorise actions, saying that for certain types of ASIS and ASD actions ‘there are two hands, as it were, on the mechanism to ensure that a warrant or an authorisation has the oversight and scrutiny of two ministers and not one’. So, the Attorney-General will be either the sole approver of warrants, or one of two ministers. But on the third hand, the Attorney-General may not have any oversight role after yet another review. Clear?

The recommendations in the intelligence review are certainly clear and well thought through. The current Office of National Assessments undergoes a subtle but important name change to the Office of National Intelligence—the significance being that the ONI will take on a stronger leadership role of the intelligence community, not simply be the drafter of community-wide national assessment reports. The agency’s director-general position will be elevated to the level of a departmental secretary and will be more analogous to the US Director of National Intelligence in function. The DG-ONI will become a centrally important figure in discussions at the National Security Committee of Cabinet. The ONI is recommended to have a 50% increase in analytical staff, addressing a systemic weakness in the intelligence community, which can often be one-person deep in terms of real expertise on specific countries and issues.

The government has accepted the review’s recommendation to make the Australian Signals Directorate a statutory authority within the Defence portfolio. This continues ASD’s journey to becoming something more like the UK’s GCHQ, which is separate from but works closely with defence. This is the end of a turf battle in which Defence lost a major crown jewel. How did that happen, chaps?

There’s a lot more to the L’Estrange–Merchant review, including sensible measures to strengthen the ministerial warrants system over certain types of intelligence operations and to boost the role of the Parliamentary Joint Committee on Intelligence and Security, which has done sterling work in the last few years and is one of best committee appointments for aspiring backbenchers. It’s a pity the government didn’t clearly commit to implementing all of it, instead of cherrypicking some recommendations and passing the rest to a PM&C ‘task force’ to consider. Why do reviews like this if the final product is then opened to public service predation? It’s not as if the government didn’t have the chance to react to drafts as the study developed.