Still no inspector-general oversight for key Australian intelligence agencies
4 Sep 2020|

Four of Australia’s national security and intelligence agencies—the Department of Home Affairs, the Australian Federal Police, the Australian Criminal Intelligence Commission and the Australian Transaction Reports and Analysis Centre—still lack formal oversight by the Office of the Inspector-General of Intelligence and Security, three years after their inclusion in the national intelligence community.

The increasing tension between expanding the jurisdiction of the IGIS and its resourcing level was revealed in last month’s public hearing by the Parliamentary Joint Committee on Intelligence and Security for its review of recent legislative amendments that provide security agencies with greater access to encrypted data held by internet and telecommunications companies.

While the hearing focused primarily on the key aspects of the Telecommunications and Legislation Amendment (Assistance and Access) Act 2018, it also inadvertently highlighted the mounting resourcing pressures on the operational capability of the IGIS to sustain the demand of its legislative oversight role.

The IGIS is a critical component of Australia’s intelligence oversight architecture. The statutory independence of the office is its strongest asset, and it has direct access to the intelligence agencies and their records. Its role is to assure the Australian public that the agencies are operating with legality and propriety. However, perennial resourcing issues and continuing uncertainty surrounding the jurisdictional remit of the office are testing that assurance.

Currently, the IGIS reviews the activities of the six Commonwealth intelligence agencies that comprise the ‘Australian intelligence community’: the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service, the Australian Signals Directorate, the Australian Geospatial-Intelligence Organisation, the Defence Intelligence Organisation and the Office of National Intelligence.

However, a key recommendation of the 2017 independent intelligence review was that the oversight role of IGIS be expanded to apply to all 10 agencies in the national intelligence community, including the intelligence functions of the AFP, the ACIC, AUSTRAC and Home Affairs.

The authors of the 2017 review noted that the resourcing of the IGIS had not kept pace with the functions it had been tasked to perform and addressed this by recommending that the office be allocated additional resources to enable it to sustain a full-time staff.

More funding has been allocated to the IGIS since then. But, alarmingly, the amendments required to the Inspector-General of Intelligence and Security Act 1986 to bring the four additional agencies within the IGIS’s oversight remit have not occurred.

Three years on from the 2017 review, it still remains to be seen whether the government will amend the IGIS Act to expand the office’s jurisdictional oversight.

As the outgoing inspector-general, Margaret Stone, observed in her testimony to the committee, ‘If our jurisdiction was extended to those four agencies then I think we would need this extra assistance in addition to what we have. We’re able to manage at the moment, because there has been no final decision on that jurisdiction.’

Under questioning by Labor Senator Kristina Keneally about the office’s ability to meet demand under the current legislation with existing resources, Stone revealed the extent of her concerns:

I think one needs to remember that the additional legislation, of which we’re all aware, not only expands the scope of what we do, but, in order to oversee activities carried out under that legislation, requires additional depth of investigation. And it will also depend on usage by the agencies. So there are some unknowns and some knowns, but with the increasing technical requirements for oversight we will, for instance, need more technically competent or expert staff. We’ve got technically competent staff, but we will need more expertise than we presently have.

The national intelligence community has grown and evolved significantly in recent years, with new agencies, greater powers under national security legislation and ever-advancing technical capabilities, but the oversight and accountability mechanisms have remained comparatively unchanged and legislatively constrained.

Australians are entitled to expect that intelligence agencies are properly scrutinised and are held to account. If the measure of a good democracy is strong, independent and well-resourced oversight institutions, then clearly Australia’s resourcing of this office is sorely lacking.

Peter Edwards, in an article for The Strategist earlier this year, called for the next intelligence review to be upgraded to a royal commission. Such a commission should be encouraged to question the current resourcing of the IGIS, among other issues.

Further extending the resourcing of the IGIS commensurate with the scale and complexity of the intelligence agencies and their operations will strengthen independent oversight and accountability and maintain the confidence of the Australian people in the agencies’ work.

Failure to do so could see the efficacy and credibility of the IGIS dwindle to unacceptable levels, disregarded by both the Australian public and the agencies it oversees. The many parliamentary investigations and reviews into the activities of intelligence agencies both here and in the US and UK provide ample evidence that poor oversight can lead to the wrong intelligence calls being made, and can leave agencies, individual analysts and intelligence collectors vulnerable to politicisation.

Current controversies over the increasing powers of intelligence agencies—including access to and sharing of citizen data, and use of artificial intelligence tools such as facial recognition and predictive policing—are likely to only increase the future workload for IGIS in making sure that agencies are applying their new powers lawfully, appropriately and impartially. And weakened protections for public-interest whistleblowers and journalists are likely to have a chilling effect on fourth estate oversight. In these contexts, giving the IGIS the resources and legislative powers it needs to do its job is becoming increasingly urgent.