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‘Serving government as a whole’: Justice Hope and the remit of Australia’s intelligence agencies

Posted By on June 26, 2019 @ 11:00

On 4 June, the Australian Federal Police executed a search warrant on the home of a News Corp journalist, apparently seeking the source of a story in April 2018 that indicated that the secretaries of the departments of Defence and Home Affairs had sought new powers for the Australian Signals Directorate [1]. To understand why this proposal has caused considerable concern, in the national security community as well as in the media, we need to go back more than four decades.

The Royal Commission on Intelligence and Security [2], conducted by Justice Robert Marsden Hope at the instigation of Prime Minister Gough Whitlam, was a far-reaching review of Australia’s entire intelligence system. Hope prescribed in detail not only what each agency should do, and what it should not do, but also how they all should operate as an intelligence community. One means to this end was the creation of the Office of National Assessments, an assessment-only organisation with a coordinating role over the entire network of agencies.

ONA’s assessments were to be guaranteed, by legislation, freedom from interference from policymakers, including departments as well as ministers. Hope stressed that one of his fundamental aims was to make ‘the agencies less the creatures of their parent departments and more the servants of government as a whole’.

It was obvious which departments he had in mind. Of the four agencies in existence when he started his work, two were controlled by Defence and one by Foreign Affairs. The signals intelligence agency, the Defence Signals Division, was as its name indicated a division of the Defence Department. Although located in Melbourne, DSD was firmly under the policy and administrative direction of that department and its formidable head, Arthur Tange.

Hope was greatly impressed by DSD’s performance and potential, but wanted it to serve the needs of ‘government as a whole’, not just those of the department and the defence force. Hope recommended that DSD be publicly acknowledged, given a legislative charter, brought to Canberra, significantly upgraded in status and resources, and given much greater autonomy, remaining within the defence portfolio but responsible to the ‘higher intelligence machinery’ of cabinet ministers and senior officials, rather than to the secretary of defence.

Tange opposed the thrust of these and other recommendations from Hope, as did some of his successors, so that implementation took decades. DSD was upgraded to a directorate and publicly acknowledged in 1977, but it didn’t move to Canberra until the early 1990s, still firmly within the defence structure. It only gained legislative recognition in 2001. It was renamed the Australian Signals Directorate, as a gesture towards its whole-of-government role, in 2013, but it only became a statutory authority in 2018.

This last change followed the 2017 Independent Intelligence Review, conducted by Michael L’Estrange and Stephen Merchant. Another outcome of the review was the elevation of ONA to become the Office of National Intelligence, with its head to be designated the director of national intelligence, a reinforcement of the position’s leadership role in the whole intelligence community. Like the upgrading and autonomy of ASD, this was entirely consistent with the tenets of Hope’s recommendations in the 1970s.

The intelligence review and its outcomes were overshadowed by another announcement made on the same day that Prime Minister Malcolm Turnbull said the government had accepted the review’s recommendations. This was that the immigration and border protection portfolio would be expanded [3] into a large and powerful portfolio of home affairs, led by Peter Dutton, that would incorporate a new Department of Home Affairs plus a number of intelligence and security agencies, including the Australian Security Intelligence Organisation and the Australian Federal Police, transferred from the attorney-general’s portfolio.

The final report of the intelligence review [4] was based on considerable experience, wide consultation and a deep knowledge of both the details and the principles of Hope’s two royal commissions. The home affairs decision, by contrast, emanated from no comparable, independent study. Most commentators claimed it was based on Michael Pezzullo’s well-known ambition to head such a department, combined with Turnbull’s need for support from the conservative wing of the Liberal Party, of which Dutton was emerging as the leader.

L’Estrange and Merchant had no forewarning of the home affairs decision when preparing their report, although both were made public at the same media conference. In the report, they addressed the question of the relationship between policymaking and intelligence assessment, arguing that the strict separation prescribed by Hope might no longer be possible in current strategic circumstances. They said (paragraph 2.30) that intelligence assessments would be irrelevant if not connected to the choices and timing involved in policymaking; but they also warned that assessments would lose credibility if they were influenced by ‘pre-ordained policy priorities and preferences’.

At that time, the government established the national intelligence community, comprising 10 bodies. To the six agencies of the former Australian intelligence community were added not only the agencies responsible for criminal intelligence and financial intelligence, but also the AFP and ASIO. Hope had always insisted on a clear separation not only between departments and intelligence agencies, but also between intelligence and law enforcement agencies. Of the 10 agencies, five are in the home affairs portfolio, three are in defence, one is in foreign affairs and one, supposedly the central coordinating agency, is in the prime minister’s portfolio.

The elevation of the head of ONA to become the director of national intelligence and the full statutory autonomy of ASD were entirely consistent with the directions recommended by Hope in the 1970s and implemented by governments over the next four decades. On the other hand, he would have raised both eyebrows at the inclusion, by name, of the nation’s premier law enforcement agency and a powerful policymaking department in the intelligence community.

These structural changes, introduced without independent analysis or wide consultation, raise a serious question. Will Australia’s intelligence agencies, acting in accordance with their respective charters and coordinated by the director of national intelligence, serve ‘government as a whole’, or will the ‘pre-ordained policy preferences and priorities’ of a single department be allowed to dominate their assessments?



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URLs in this post:

[1] new powers for the Australian Signals Directorate: https://www.theguardian.com/australia-news/2019/jun/16/peter-dutton-confirms-plan-to-create-new-spying-powers-still-being-considered

[2] Royal Commission on Intelligence and Security: http://www.naa.gov.au/collection/explore/security/royal-commisson/index.aspx

[3] expanded: https://www.malcolmturnbull.com.au/media/press-conference-announcing-the-establishment-of-the-home-affairs-portfolio

[4] final report of the intelligence review: https://www.pmc.gov.au/resource-centre/national-security/report-2017-independent-intelligence-review

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