Quis custodiet ipsos custodes?*
24 Sep 2018| and

Amid the turmoil of the Liberal leadership spill, and its ripple effects, the government introduced its controversial draft laws to give police the power to demand identification from travellers at airports. In contrast to the public outcry generated when the proposal was announced earlier this year, there was nary a response.

The safe passage of the legislation is far from guaranteed but, given the possibility of further political distractions and an election in the not-too-distant future, it highlights the growing importance of those institutions charged with watching the watchers.

We’re fortunate in Australia that our independent oversight agencies, the Inspector-General of Intelligence and Security (IGIS) and the Australian Commission for Law Enforcement Integrity (ACLEI) are far from toothless tigers. Over the last several years both agencies have performed admirably (see here and here), despite their small size.

The budget reality for both agencies has meant that they’ve had to make some tough choices in terms of priorities. In an organisational sense, these constraints are likely felt in terms of overall staff numbers and the ability to prepare for, and often even respond to, disruptive changes to their operating environment.

The war on terror and challenges to the global rules-based order have driven rapid and diverse changes to the national security community over the last 15 years. Often the public face of this change has been growing budgets, restructures and new powers.

The IGIS performs regular inspections, conducts inquiries and handles complaints to determine if the agencies of the Australian intelligence community (AIC) are acting legally, complying with guidelines and respecting human rights. Under its original mandate, the IGIS reviews the activities of the AIC: the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service, the Australian Geospatial Intelligence Organisation, the Defence Intelligence Organisation, the Australian Signals Directorate and the Office of National Assessments.

Admirably, Inspector-General Margaret Stone, in the face of a broadening of her responsibilities, has focused her agency on identifying systemic compliance issues.

An independent intelligence review in 2017 found that the AIC had expanded beyond its traditional core agencies and recommended that the intelligence functions of the Australian Federal Police (AFP), the Australian Criminal Intelligence Commission (ACIC), the Department of Home Affairs and AUSTRAC come under the IGIS purview.

The intelligence review conducted by former top public servants, Michael L’Estrange and Stephen Merchant, also found that the oversight mechanisms in place were adequate but that funding and staffing levels weren’t. In 2016, the IGIS budget was just $3.2 million. In 2017, having accepted the review’s finding, government provided the IGIS with a funding increase of $15.3 million to a total budget of $18.5 million.

In contrast to the IGIS, ACLEI investigates law enforcement corruption issues, overseeing the activities of the ACIC, the AFP, AUSTRAC, Home Affairs and the Australian Border Force as well as certain aspects of the Agriculture Department. ACLEI faces similar challenges to the IGIS in terms of the broad scope of its remit, increasing demand for its resources and sub-optimal funding.

The Wood royal commission and the Fitzgerald inquiry both illustrated that proactive and visible oversight mechanisms markedly improve public trust in law enforcement. It’s a point not lost on ACLEI Integrity Commissioner Michael Griffin, who more recently has focused on integrating the agency’s intelligence function with its corruption prevention capabilities.

Fortunately, confidence levels in Australia’s police are relatively high and stable. In 2015–16, 74.7% of Australians reported being satisfied with the police, a figure which has seen little variation in the past five years. Perceptions of honesty are high, with only 5% of Australians believing the police to be corrupt. These perceptions remain fragile, however, and agencies need to remain alive to the threats posed by corruption.

With just 47 staff to oversee more than 23,000 officials within Home Affairs, ACLEI’s 2017–18 operating budget of $13.5 million appears to be very light on.

To be fair, both ACLEI and the IGIS have recently enjoyed increases to their operating budgets. It’s difficult to find a global benchmark for how much is enough. However, both agencies have been operating from a very low resource base for some time. While new money is welcomed, finding the right people and ensuring they’re ready for the job won’t be easy or quick.

With the increased use of new intelligence collection technologies, including artificial intelligence, the pressure is on the IGIS and ACLEI to enhance their capabilities. In the near future the IGIS will need to be able to undertake reviews of the self-learning algorithms that seem set to support intelligence discovery. And ACLEI will need to work out whether decisions have been influenced by inherent AI bias or bad behaviour. Preparing for this won’t be easy for two agencies that collectively have just over 100 staff.

In the here and now the challenges are equally vexing. Both ACLEI and the IGIS have responsibility for more agencies than ever before. And the interaction between law enforcement, security services and the wider AIC has never been more frequent or complex.

Those watching the watchers need a long-term, bipartisan funding commitment from government. And this commitment needs to include an agreement that funding levels and powers of both agencies will be independently reviewed whenever substantive changes are made to Australia’s policing and national intelligence arrangements.

* Who shall guard the guardians? (Juvenal: Satire VI lines 347–348)