Government surveillance and Australia’s multiple watchdogs
19 Jun 2013|

Toby Feakin’s post the other day brought up the topic of oversight of government security operations. He’s right that a liberal democracy requires checks and balances to prevent excesses from government agencies. But it got me thinking about Australia’s intelligence oversight mechanisms and wondering why most Australians don’t know much about them, despite us having a multi-layered system that’s pretty much aligned with world’s best practice.

Like any other ‘defence in depth’, the trick to designing oversight mechanisms is to have multiple independent channels. In the past twenty years, successive Australian governments have put in place just such a system. Australians are protected by legislative, statutory, parliamentary and judicial mechanisms as well as the Westminster system of ministerial responsibility. And, if all else fails, we still have a robust and cantankerous press that delights in embarrassing governments who take a step too far. The only protection we don’t have is constitutional, unlike Americans, who have the Fourth Amendment on their side (although that hasn’t stopped some significant violations of American’s rights).

But it seems that public opinion on how the government goes about business is more coloured by the apparently laissez-faire environment of bygone days that produced public fiascos like the ASIS Sheraton hotel incident in 1983. For those with longer memories, ASIO was seen to be working against the right to protest during the Vietnam War; if even the federal Attorney General couldn’t trust them, why should the public?

More recently, Hollywood portrayals of shadowy agencies with (literally) unbelievable powers to snoop on every aspect of citizen’s lives have been the touchstone for public perception. As well, there’s a healthy internet-mediated market for conspiracy theories (see #4). The net result seems to be a working assumption in the public mind that the security agencies of the western world are simultaneously omniscient and amoral.

The truth is more prosaic. The excesses of the past actually led in a very direct way to the structures we have in place today, through a process of review that began with a Royal Commission in each of the 1970s and 1980s and continues with the scrutiny mechanisms mentioned above. Some of the things that happened once either wouldn’t happen now or would be likely to be disclosed, to the embarrassment of all involved.

But still sometimes things happen that shouldn’t. One such example, which happened during my time in the business, was during the ‘Tampa incident’ in September 2001. All sorts of claims were made in the media about the Defence Signals Directorates spying activities, including that phone calls to and from Australian unions were deliberate targets of DSD’s interception. The investigation by the intelligence watchdog into the incident cleared DSD of some of the more serious allegations, but also found—and reported publically—that intelligence reports had been produced that violated the rules designed to protect the privacy of Australians. As well, it identified a probable breach of the Telecommunications Intercept Act. Not good—but not covered up either.

There’s no doubt that there’s a constituency in Australia and elsewhere that would prefer that all government activities were wholly transparent. That’s an important point of view, and I’m sympathetic to the notion that government secrecy should be on an exception basis, with transparency the rule.

But there’s a long-standing acceptance that a balance has to be struck between privacy and security. The Fourth Amendment, for example, isn’t absolute. It allows for warrants for search to be issued, but only ‘upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized’. Likewise the rules to protect the privacy of Australians from their government’s intelligence agencies contain a number of exceptions (see below).

Practically, it’s the exceptions and the ‘probable causes’ we’re arguing about. And things have got trickier in that respect in the post 9/11 environment. Back in the Cold War days, the two sides were massive geopolitical blocs, and the intelligence efforts of the CIA and KGB were legitimately targeted at military and political entities (and each other) and their communications systems. So when the NSA started spying on prominent American citizens, it was a clear breach of the spirit of the protections in place. (Just as in Australia, those excesses led to stricter oversight.)

But when counter-terrorism became an important target for intelligence agencies, things were different. Terrorists can (and do) hide within civilian populations, and routinely use civil infrastructure like telecommunication systems and transport. Tracking them down and watching their movements is almost bound to bring the intelligence agencies into contact with many more of the broader population than did work against nation states. The Prism program Toby wrote about is almost certainly the result of exactly that tension. It’s also, as far as we can tell, consistent with America’s oversight regime.

Nobody wants an all-pervading government presence in their daily lives. But most people want the government to be looking after their security, at least to some extent. The question we need to collectively discuss is where we want the boundary between privacy and security to be drawn. There won’t be unanimity on that; there’s not even unanimity among those of us at ASPI who think about these issues. But awareness of the protections we have—and those we don’t have in the name of security—is important for a mature discussion. I think that some of the powers given to intelligence and security agencies post 9/11 (both here and in the US) went too far, even if some have never been used. But I also think that Australians are pretty well served by the watchdog mechanisms in place. Your mileage might vary on either of those points—and that’s why we need a well-informed debate.

Footnote: Australian intelligence agencies can communicate intelligence information concerning an Australian person where:

a. the information is publicly available, or

b. the information concerns activities in respect of which the Australian person is a representative of the Commonwealth or a State or Territory in the normal course of official duties, or

c. omission of that part of the information concerning the Australian person would significantly diminish the utility of the information for the purposes of:

i. maintaining Australia’s national security

ii. maintaining Australia’s national economic well-being

iii. promoting Australia’s foreign relations

iv. preventing or investigating the commission of a serious crime

d. the information relates to an Australian person who is, or is likely, to be:

i. acting for, or on behalf of, or is suspected of acting for, or on behalf of, a foreign power

ii. involved in activities related to the proliferation of weapons of mass destruction or the movement of goods listed from time to time in the Defence and Strategic Goods List

iii. involved in activities related to a contravention, or an alleged contravention, by a person of a UN sanction enforcement law.

Andrew Davies is a senior analyst for defence capability at ASPI and executive editor of The Strategist. Image courtesy of Flickr user Pulpolux