Intelligence oversight or out of sight? Recommendations for legislative review

Australia’s national intelligence community (NIC) has grown and evolved significantly in recent years. But its key oversight and accountability mechanisms have remained comparatively unchanged and legislatively constrained.

By their very nature, intelligence agencies need to be secretive, and the standards of accountability and oversight they’re subject to necessarily differ from those applicable to other parts of government.

At the same time, the Australian people needs to have confidence that their intelligence agencies are acting with legality, efficacy and efficiency.

In our recent submission to the Australian government’s comprehensive review of the legal framework governing the NIC, led by former defence secretary Dennis Richardson, we considered the oversight and accountability measures required to maintain the confidence of the Australian people in the work of the NIC.

Traditionally, transparency and secrecy have been viewed as diametrically opposed. But the two imperatives can coexist in a democracy, especially one that has strong, independent and well-resourced oversight institutions.

Our submission proposes several reforms to Australia’s oversight-related legislation, including the Inspector-General of Intelligence and Security Act 1986, the Independent National Security Legislation Monitor Act 2010 and the Intelligence Services Act 2001.

The Inspector-General of Intelligence and Security (IGIS) is an independent statutory officeholder who reviews the activities of the intelligence agencies. In July 2017, the Turnbull government announced the establishment of a new home affairs portfolio and a strengthened role for the attorney-general in overseeing intelligence, security and law enforcement agencies.

As part of the restructuring, the IGIS, along with the Independent National Security Legislation Monitor (INSLM) and the Commonwealth Ombudsman, was moved from the Prime Minister and Cabinet portfolio to Attorney-General’s.

The attorney-general continues to exercise certain powers and functions under the ASIO Act, including the power to authorise warrants and special intelligence operations. Putting the IGIS under the attorney-general’s purview means that it’s no longer separate from the portfolio that’s responsible for authorising warrants. IGIS should be transferred back to PM&C, where it sat since its foundation, to help guarantee its complete independence as an oversight body.

The INSLM is responsible for reviewing and assessing the effectiveness and appropriateness of Australia’s national security and counterterrorism legislation. It is a part-time role that’s supported by a small number of permanent staff. But the resourcing of the office makes it difficult for it to keep up with the vast number of new and increasingly innovative counterterrorism laws.

Consideration should be given to making the INSLM a full-time role so that the office can fulfil its core function, especially given that there has been no significant improvement in parliamentary oversight. The government should be legislatively required to table timely responses to the INSLM’s reports. This would at least oblige it to demonstrate that it has read and taken on board the INSLM’s advice.

The Parliamentary Joint Committee on Intelligence and Security (PJCIS) is somewhat of a ‘closed shop’ to crossbench MPs and senators: the legislation refers to members of ‘recognised political parties’, effectively precluding minor parties and independents.

The committee’s oversight is limited to reviewing the administration and expenditure of the NIC, addressing matters referred to it by the responsible minister or by a resolution of parliament, and reporting its recommendations to parliament and the responsible minister. It can’t review the NIC’s intelligence-gathering and assessment priorities or its operational activities.

Nor does it have the power to initiate its own inquiries into matters relating to the activities of an NIC agency. It is the only committee of parliament that doesn’t have the power to inquire into the operations of the agencies it oversees.

By comparison, similar parliamentary committees in Australia’s Five Eyes counterparts (the United States, the United Kingdom, Canada and New Zealand) have much wider oversight of their intelligence and security services.

The UK Intelligence and Security Committee can consider operational matters when requested by the prime minister and when they don’t involve ongoing operations and it’s in the national interest.

The Canadian National Security and Intelligence Committee of Parliamentarians is authorised to review:

‘(a) the legislative, regulatory, policy, administrative and financial framework for national security and intelligence;

(b) any activity carried out by a department that relates to national security or intelligence, unless the activity is an ongoing operation and the appropriate Minister determines that the review would be injurious to national security; and

(c) any matter relating to national security or intelligence that a minister of the Crown refers to the Committee.’

Parliamentary oversight of the intelligence agencies requires strengthening of the PJCIS’s legislative powers by widening its remit to include the ability to analyse the NIC’s operations and conduct its own inquiries.

One argument that has been made against this idea is that these powers, such as the power to review operations, are covered by the IGIS Act. However, the IGIS’s primary role is to oversee the activities of the intelligence agencies; it doesn’t focus on whether they should be conducting those activities. This is a key area in which the expanded remit of the PJCIS is crucial and in which legislative changes are required.

The committee has largely been bipartisan, so the risk of political interference in agency operations from an overzealous committee is negligible. Some combination of the UK and Canadian approaches might work best in the Australian context.

Finally, the Five Eyes intelligence-sharing partnership gives Australian intelligence organisations extraordinary global reach, providing irreplaceable access to information and cutting-edge capabilities.

All of the Five Eyes allies have legislative oversight arrangements. But they differ in their frameworks. There’s no single overarching oversight body or coordinated system of checks and balances that aims to ensure the legality and propriety of Five Eyes intelligence-sharing and activities.

Given Australia’s increased sharing and use of intelligence across governments, consideration should be given to including provisions that allow the IGIS and the PJCIS to oversee some aspects of Australia’s role within Five Eyes.

We appreciate that this measure will be challenging: the arrangements aren’t a single neat program of information exchange that could be easily scrutinised. They include many agencies beyond the remit of the IGIS (in Australia’s case), and the ‘exchange’ and source/receiving country would further complicate any review process.

But in many ways, this is precisely why the proposal should be considered: robust oversight and accountability measures will maintain the confidence of the Australian people in the intrinsic value of the Five Eyes partnership.

The NIC has grown and transformed dramatically in recent years to meet the unprecedented challenges to Australia’s security. Their combined functions are more vital to our national security than ever.

The proposed reforms we’ve outlined will strengthen independent oversight and accountability and maintain the confidence of the Australian people in the work of the NIC.