Keeping Australians and their civil liberties safe: The future of the Hope model

On the whole, the Australian intelligence agencies emerged from the early 2000s with a better reputation than those of the United States or United Kingdom. The terrorist attacks on 11 September 2001 demonstrated the catastrophic impact of rivalry and poor coordination among the American agencies. The strategically disastrous invasion of Iraq in 2003 owed much to the fact that in Washington and London, as the then head of MI6 put it, the intelligence was fixed around the policy, not the policy around the intelligence.

In the climate of the ‘war on terror’, Australian agencies received a substantial boost in resources, including a prominent headquarters building for the Australian Security Intelligence Organisation. Governments made, by some counts, more than 80 amendments to national security legislation, some of which gave executive powers to ASIO. The establishment of the office of the Independent National Security Legislation Monitor, a position held successively by three distinguished lawyers, has only partially eased concerns about the extent and nature of the new legislation.

In recent years, events such as the raids by the Australian Federal Police on an ABC office and the home of a News Corp journalist, the secret prosecution of a former military intelligence officer, and the largely secret prosecution of a former agent of the Australian Secret Intelligence Service and his lawyer, have raised considerable unease in the media, the legal profession and the general public.

It can now be seen that the Hope model for the structure, operations and accountability of the intelligence and security agencies has been under challenge from another model, principally advocated by the public servant Michael Pezzullo. The tension between the Hope and Pezzullo models came to a head in July 2017, when the government announced two decisions at the same media conference.

First, it said that it accepted the recommendations of the 2017 Independent Intelligence Review. The authors, Michael L’Estrange and Stephen Merchant, paid great respect to the Hope model, but recommended that it be updated to meet new geostrategic circumstances. The Office of National Assessments was to be upgraded to the Office of National Intelligence, with its role in the supervision and coordination of intelligence to be strengthened. The existing Australian intelligence community was to be broadened to a national intelligence community, with the inclusion of the intelligence sections of the AFP and the Department of Immigration and Border Protection.

At the same time, the government announced that the Department of Immigration and Border Protection would become the much larger and more influential Department of Home Affairs, including both ASIO and the AFP within the home affairs portfolio. L’Estrange and Merchant had not been advised of this change, which did not emerge from an independent, carefully researched and argued report comparable to their intelligence review. On the contrary, a 2008 review of an earlier version of the home affairs proposal had recommended strongly against it, instead urging that a national security adviser be appointed within the prime minister’s portfolio, to coordinate national security policy.

These two announcements led to the creation of a national intelligence community that was markedly different from the one proposed by the review and supposedly endorsed by the government. Its 10 members include five bodies associated with home affairs—ASIO, the Australian Criminal Intelligence Commission, and the intelligence functions of the AFP, AUSTRAC and the Department of Home Affairs. Commentators speculated that intelligence assessments would not be prepared on a ‘whole-of-government’ basis, coordinated by the ONI under the director of national intelligence, but would be dominated by the new department. L’Estrange and Merchant had warned, in general terms, of the danger of assessments being unduly influenced by ‘pre-ordained policy priorities and preferences’.

Whither from here? It is clear that, as Australia emerges from the Covid-19 crisis, many policies and policymaking structures must be reassessed. National security must be redefined, to include health, environmental and other non-traditional threats, as well as long-term economic security.

As part of the process, there should be a reassessment of the structures, legislation and operations of the whole intelligence community. The next independent intelligence review, which normally would have been expected in 2022–23, should be upgraded to a royal commission and initiated in coming months.

While much has changed in the international and transnational environment, the principles outlined by Hope remain fundamentally important: effectiveness must be matched by accountability; intelligence assessment must be separated from policymaking; intelligence and law enforcement should also be kept separate; and, most importantly, both intelligence assessment and national security policymaking must be whole-of-government processes, based in the prime minister and cabinet portfolio, with no single department or minister to have undue influence.

The commission should be conducted by a panel, be chaired by a current or former judge, and include experienced practitioners from within and outside the national security sphere. At least one member should be a woman. The research and evidence should include not only oral and written submissions from current and recent practitioners, but also a substantial historical review of the Hope royal commissions, the 1995 inquiry into ASIS, the 2004 Flood report, the 2008 Smith review, the reports of the Inspector-General of Intelligence and Security, and all reports of the INSLM.

The commission should have far-reaching and open-ended terms of reference, comparable with those of Hope’s two royal commissions, but it should be encouraged to address such questions as:

  • Should ONI have its role reaffirmed as the central agency for supervising and coordinating a whole-of-government intelligence network?
  • If so, how would that affect its role in making strategic assessments?
  • Should the position of national security adviser be reinvigorated, to coordinate whole-of-government policymaking?
  • Should ASIO be returned to the attorney-general’s portfolio?
  • Should the AFP and the ACIC be overseen by the justice minister?
  • Should AUSTRAC be a responsibility of the finance minister?
  • Should the roles, responsibilities and interagency relationships of the ABF be reassessed, to give appropriate balance to keeping Australians safe from threats to human, plant and animal health, as well as terrorism?
  • Should much of the coordination of intelligence capability built up in the Department of Home Affairs be transferred to ONI, with a whole-of-government rather than whole-of-home-affairs remit?
  • Should the scope of national security legislation be reassessed in the light of not only the report by Dennis Richardson but also the views of successive INSLMs?
  • Should the resources of the IGIS be assessed, perhaps creating separate inspectors-general for the operational (as distinct from the intelligence) sections of the AFP and ABF?
  • Should responsibility for the IGIS and the INSLM come under the portfolio of the attorney-general or of the prime minister and cabinet?

Any major reforms from such an inquiry would inevitably meet huge resistance from those whose bureaucratic and political interests were challenged. But the national interest would be well served if a new inquiry had the breadth of wisdom, the historical depth and the commitment to good public policy that underpinned Hope’s royal commissions in the 1970s and 1980s, and if future governments had the political courage to implement well-founded reforms.

To paraphrase the old hymn, we need our Hope for years to come.