Richardson intelligence review recommendations must be implemented—and soon
10 Mar 2021|

In a previous post, I noted that the Richardson review of the legislative framework of Australia’s intelligence community robustly rejected many of the claims made for relaxing the constraints on agencies, and its reassertion of basic principles laid down by Justice Robert Marsden Hope in the royal commissions in the 1970s and 1980s. This should not obscure the fact that Dennis Richardson and his team endorse the need for a complete reform of the legislation on electronic interception of communications, a regime described in the government’s response as ‘unnecessarily complex and … outpaced by technology’ and by Richardson as ‘like a dog’s breakfast.’

This will be a major and complex task, and the government should be commended for setting up a task force to start the work. It would be unfortunate, however, if the implementation of this major reform were allowed to overshadow the other important recommendations of the Richardson review.

Many of the recent controversies surrounding the intelligence agencies have arisen from two simultaneous, but not adequately coordinated, announcements made by the Turnbull government in 2017. They included upgrading the Office of National Assessments to the Office of National Intelligence, making the Australian Signals Directorate an independent statutory authority, adding the intelligence sections of the Australian Federal Police and the immigration authorities to the existing Australian intelligence community to form the national intelligence community, turning the Department of Immigration and Border Protection into the much larger Department of Home Affairs, and moving several intelligence and law enforcement agencies into the home affairs portfolio. The secretary of Home Affairs has not hidden his intention to make his position central to Australia’s intelligence and security operations.

Richardson pays particular attention to the functions and legal status of the various bodies now included in the national intelligence community. One crucial distinction is between a department and a portfolio. Home Affairs is not, he asserts, an intelligence agency. It is, like Foreign Affairs and Trade and Defence, a policy department which has some intelligence agencies in the portfolio, but not in the department.

Just as the Australian Secret Intelligence Service reports directly to the foreign minister, not through the DFAT secretary, and the head of ASD reports directly to the defence minister, not through the secretary of the department, so also ASIO reports directly to the minister of home affairs, not through the departmental secretary.

ASIO, ASIS and ASD are all statutory authorities, with their own legislated powers and obligations. A crucial aim of Hope’s reports was to ensure that these and comparable agencies served ‘government as a whole’, without being unduly influenced by the policies or ethos of any one department.

The initial submission to the review from Home Affairs argued that its intelligence functions should be included in legislation, on the grounds that the department provided strategic, operational and tactical intelligence. Richardson, by contrast, argues that the department’s intelligence activities are associated with its functions in immigration and border control, which are comparable to the intelligence work of DFAT or Defence, quite separate from the intelligence agencies. Presumably after some discussion, Home Affairs withdrew its claim and accepted Richardson’s firm recommendation that the department’s intelligence functions should not be written into legislation.

Richardson’s discussion of the status and legal functions of the various agencies leads him to reassert important differences between the six agencies of the Australian intelligence community and the four that were added to form the national intelligence community. The former deal with the higher levels of intelligence collection and assessment: it is they alone that warrant the attention of the Inspector-General of Intelligence and Security, the principal form of executive oversight that emerged from the Hope royal commissions. The AFP has its own reporting and oversight mechanisms, and IGIS has no more responsibility for Home Affairs than it does for DFAT or Defence.

Richardson deprecates the tendency for agencies to ask IGIS for legal advice before undertaking operations, arguing that this practice risks compromising the perceived independence of IGIS’s subsequent inquiries. Such advice should be sought, he says, from the Australian Government Solicitor. Richardson is opposed to the UK model of an investigative services commissioner, who can give pre-operation advice as well as make post-operation inquiries. It is hardly a ‘double-lock’ system if the same agency has the key to both locks.

Richardson says little on the relationship between the Office of National Intelligence and Home Affairs on the coordination of intelligence, but he notes that ONI has this central role written into its legislation while Home Affairs has no legislated intelligence function.

While not challenging the decision to move ASIO from the attorney-general’s portfolio to that of the home affairs minister, the Richardson review reinforces the implication that the attorney-general has an important and independent role in authorising warrants. Richardson and his team underline the special status of the attorney-general as the first law officer of the Crown, whose loyalty must be to the law as well as to government policy. Richardson insists, for example, that the attorney-general cannot delegate his or her authority to another minister but must exercise it independently. While this reaffirmation of the attorney-general’s special status is to be welcomed, it would carry more weight if that officer did not simultaneously hold a highly political responsibility, such as minister for industrial relations.

As Kate Grayson and Anthony Bergin have noted, Richardson has not supported claims to give the Parliamentary Joint Committee on Intelligence and Security a greater role in operational oversight. Richardson did endorse the recommendation of the 2017 review that the PJCIS could request the IGIS to conduct an inquiry. This would be an appropriate way in which the PJCIS could ensure an independent, non-partisan inquiry. Regrettably, this is one of the few instances where the government has explicitly rejected a review recommendation.

The role of a parliamentary committee on intelligence in a Westminster-style political system, as distinct from Washington’s separation of legislature and executive, is ambiguous. On one hand, the PJCIS has evidently made valuable, bipartisan contributions to legislation on the agencies’ powers. On the other, if the PJCIS wishes to be seen as a truly independent mechanism of parliamentary oversight, it should not become identified with the endorsement of a particular policy position.

The recent promotion of the previous chair of the committee, Andrew Hastie, to the ministry, and his replacement with Senator James Paterson, both ‘wolverines’ with hawkish views on China policy, run the risk that the PJCIS will be seen as a policy instrument rather than an independent oversight mechanism.

The greatest contribution the PJCIS could now make, with support from all parliamentarians, commentators and academics with a serious interest in intelligence matters, would be to ensure that the parliament, the government and the agencies fully implement all of the Richardson review’s recommendations, not just those on interception legislation, in a timely manner.

The government says it will act on some recommendations ‘in due course,’ but it must not be allowed, as Richardson puts it, to ‘kick the can down the road.’ Several of Hope’s major recommendations took up to four decades to be fully implemented, largely because of bureaucratic opposition and political inertia.

It is in the national interest to ensure that all the review’s recommendations, both positive and negative, are fully and promptly implemented, not just in legislative form and administrative structure but also in operational culture.