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The AFP and CT: it matters who watches the watchers

Posted By and on May 4, 2018 @ 12:30

In an earlier post, we argued that with the forging of the Turnbull government’s Home Affairs portfolio, the time was right to question the policy assumptions underpinning Australia’s domestic security strategies. And with that, we explored the effects of the conflation of policing and law enforcement [1]. With the launch of ASPI’s Counterterrorism Yearbook 2018 [2], we now examine how increased cooperation between law enforcement and intelligence agencies in Australia may be—unintentionally—securitising policing and undermining its independence.

Australia’s law enforcement and intelligence communities have historically evolved and operated in fundamentally dissimilar ways. Each community has had different legal authorities, internal modes of organisation and governing paradigms.

Prior to 11 September 2001, Australia’s counterterrorism (CT) apparatus had a much lower public profile. Many state, territory and Commonwealth agencies had CT responsibilities, but for the most part the Australian Security Intelligence Organisation (ASIO) was Canberra’s lead agency on the issue.

Putting aside the absurd claims that Australia is becoming a ‘police state [3]’, terror threats since 11 September have served as a catalyst for greater cooperation between police and intelligence officials.

Australia’s current CT policy framework ensures that ASIO still has a loud voice and much influence on Canberra’s strategy setting and operational decision-making. That said, law enforcement contributions—by the AFP and other agencies—are highly valued by the government and policymakers alike. However, the commitment to Team Australia [4] ‘jointness’—the Coalition government’s catch cry for a collaborative policy space—may be homogenising the policy voices.

Despite Australia’s long history of separate police and intelligence communities, it would be false to claim that policing is far removed from CT intelligence operations. Consider the use of control orders, preventative detention and warrantless searches of private property. Certainly these laws haven’t been widely used [5] since 2005: control orders have been used six times, preventative detention has never been used federally and, as far as we know, no warrantless search has ever been conducted.

Arguably, extraordinary powers such as these should be considered the tools of intelligence agencies like ASIO, which use them sparingly to disrupt the most serious of threats. That leaves aside delayed notification search warrants and preventative detention orders, which fall under the jurisdiction of the Australian Federal Police (AFP). But now there are more than a few police who’d like to be able to use these extraordinary powers to pursue transnational organised crime targets.

The increasingly closer policing and intelligence CT relationship is manifest elsewhere in Australia’s security and intelligence architecture. Firstly, the Office of National Intelligence [6] will have greater coordination responsibilities for strategy and capability development across Australia’s intelligence and security agencies than the Office of National Assessments ever had. Its coordination remit will likely include at least some oversight of the intelligence collection functions of other agencies such as the AFP. That architecture lends itself to continuing the trend of mainstreaming law enforcement into national security.

Secondly, the shifting of the CT mandate from the Parliamentary Joint Committee on Law Enforcement [7] (PJCLE) to the Parliamentary Joint Committee on Intelligence and Security [8] (PJCIS) speaks to the overlap of policing with national security.

The PJCLE was established in 2010 to monitor and review the performance of the AFP. The PJCIS was established by the Intelligence Services Act 2001 [9] and reviews the administration, activities and expenditure of Australia’s security architecture, including ASIO.

In 2014, the Joint Committee on Intelligence and Security recommended that its oversight mandate be extended to include the AFP’s CT functions. The recommendation came after the government introduced the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 [10]. The committee emphasised that the extension of its oversight powers would be additional to—rather than a substitute for—those of the Joint Committee on Law Enforcement. But the government conferred all oversight authority for the AFP’s CT functions—that is, those that fall under Section 5.3 of the criminal code [11]—from the law enforcement committee to the intelligence and security committee.

This conferral of authority hasn’t been without controversy [12]. The PJCIS clearly has a legitimate interest in the CT activities of the AFP. But, placing the AFP’s CT activities within the remit of the PJCIS jeopardises public perceptions of police independence in matters of security policy, strategy and operations.

Inevitably the AFP’s CT activities overlap with the functions of other Commonwealth law enforcement agencies, as well as those of state and territory police forces. While not a new phenomenon, the overlap between the AFP and intelligence agencies like ASIO has also increased, and is now more accurately described as a collaboration. This has been a major factor in blurring the lines of parliamentary oversight responsibilities. This conflation of law enforcement with CT activities threatens to further securitise Australia’s police.

The AFP’s international police-to-police cooperation programs have always been underpinned by a global understanding that the agency was neither an intelligence agency nor a security service. At the very least, the PJCIS arrangement has undermined the strength of this argument.

In the short term the simplest way to reinforce the independence of Australia’s police is to transfer the oversight responsibility for CT back to the PJCLE. At the very least, this should be done for the law enforcement elements. This would serve to reiterate that CT isn’t an existential threat to Australia’s domestic security, and that our police aren’t part of our security apparatus.

In the longer term, consideration needs to be given to whether the role of the PJCLE ought to be expanded to focus on oversight of Australia’s home affairs arrangements more broadly.



Article printed from The Strategist: https://www.aspistrategist.org.au

URL to article: https://www.aspistrategist.org.au/the-afp-and-ct-it-matters-who-watches-the-watchers/

URLs in this post:

[1] conflation of policing and law enforcement: https://www.aspistrategist.org.au/police-public-servants-law-enforcement-contested-domain/

[2] Counterterrorism Yearbook 2018: https://www.aspi.org.au/report/counterterrorism-yearbook-2018

[3] police state: https://www.smh.com.au/opinion/are-we-on-our-way-to-becoming-a-police-state-20151120-gl3mkv.html

[4] Team Australia: https://www.smh.com.au/politics/federal/you-dont-migrate-to-this-country-unless-you-want-to-join-our-team-tony-abbott-renews-push-on-national-security-laws-20140818-3dvbx.html

[5] these laws haven’t been widely used: https://www.huffingtonpost.com.au/greg-barns/should-australias-counter-terrorism-laws-cost-us-our-civil-liberties_a_23286015/

[6] the Office of National Intelligence: http://www.canberratimes.com.au/national/public-service/malcolm-turnbull-names-spy-chief-nick-warner-to-lead-new-security-agency-20171201-gzwx5g.html

[7] Parliamentary Joint Committee on Law Enforcement: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Law_Enforcement/Role_of_the_Committee

[8] Parliamentary Joint Committee on Intelligence and Security: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Role_of_the_Committee

[9] Intelligence Services Act 2001: https://www.legislation.gov.au/Details/C2017C00360

[10] Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014: https://www.legislation.gov.au/Details/C2014A00116

[11] criminal code: https://www.legislation.gov.au/Details/C2017C00235

[12] controversy: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Law_Enforcement/Annual_Reports/2015/AFP/Report/c04

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