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Richardson intelligence review much more than an ‘inside job’

Posted By on March 5, 2021 @ 06:00

When the authors of the 2017 independent intelligence review recommended that a ‘suitably qualified person’ review the legislative framework of Australia’s intelligence community, they probably had in mind someone like Justice Robert Marsden Hope, whose two royal commissions in the 1970s and 1980s laid the foundations of the legislation, structures, oversight arrangements and operational doctrines of the intelligence community for the next 40 years.

Instead of a senior judge with no connection to the intelligence agencies, the government appointed Dennis Richardson, a former head of the Australian Security Intelligence Organisation, with support from a group of lawyers from the Attorney-General’s Department. Some observers expected an ‘inside job’, with recommendations supporting the changes for which some in government, including the agencies, had long been pressing.

Those who feared such an outcome should be pleasantly surprised. The review was completed in December 2019, but the unclassified version and the government’s official response were only released a year later. Richardson and his team have presented the most important and comprehensive review of the entire intelligence system since Hope’s first royal commission in the 1970s, but it has prompted remarkably little public comment.

Commentators in the media and academics in law, public policy and the growing field of intelligence studies may have been daunted by the size, scope and technical complexity of the review. That is disappointing, for the review provides answers to most of the issues that led me to call for the next independent intelligence review to be upgraded to a royal commission.

This article makes some general comments on the tone and overall approach of the Richardson review. A follow-on post will comment briefly on Richardson’s recommendations on electronic interception, on the major changes in the structure of intelligence in recent years, and on oversight mechanisms. There is much more to be said about these and other elements of the review. Lawyers, journalists, practitioners and others should now engage in a wide-ranging discussion about the implications of the Richardson review for the future of this vitally important part of national security policymaking.

First, we should note that Richardson’s career in the public service included appointments not only as head of ASIO but also as head of the Department of Defence, head of the Department of Foreign Affairs and Trade, ambassador in Washington, chief of staff to a prime minister, and deputy secretary of the Department of Immigration and Multicultural Affairs. In short, he has witnessed the agencies and their interactions with senior politicians and officials over many years at close range from diverse perspectives, without being imbued with the ethos of any one department or agency.

Richardson’s degree was in history, not law. His academic mentor, the distinguished historian Neville Meaney, encouraged him to apply for the diplomatic service, where he became one of the celebrated 1969 intake. Like Hope, Richardson bases his review on a detailed knowledge of the history of the intelligence organisations. Again like Hope, he investigates not only the agencies’ legislation and structure, but also their culture.

While not a lawyer, Richardson has taken careful note of submissions from authorities such as the Law Council of Australia, former High Court justice Michael Kirby, barrister Bret Walker and Professor George Williams. Richardson and his team of lawyers frequently quote Hope’s principles. Above all, they understand the importance of establishing the right relationship between the demands of national security and the protection of individual civil liberties.

The overwhelming thrust of the report is to insist that the fundamental principles laid down by Hope are still valid today. Richardson is scathingly critical of attempts by the agencies to dismiss the legal constraints upon them as unnecessary, outdated or unreasonably burdensome. At times his blunt rebukes are reminiscent of those addressed to uniformed servicemen in the 1970s by his only predecessor as head of both Foreign Affairs and Defence, Arthur Tange.

For example, Richardson says that too often ‘Australian agencies look over the fence and want [the powers, functions and geographical remit that] another agency has so that they can do their own thing’, rather than understanding the reasons for the different roles and responsibilities of each agency and seeking ‘cooperation and partnership’.

One agency sought a legislative change on the grounds of ‘administrative burden’, which turned out to be eight-tenths of the time of one full-time employee, in an agency with more than 1,000 staff. Legal requirements should be seen, Richardson insists, not as ‘constraints or barriers to operational effectiveness’ but as ‘the guardians of valuable principles’.

Too many in the agencies, he reports, know the law but not the reasons behind the law. To underline the point, the first of Richardson’s 204 recommendations is that the agencies should ensure that their induction and training programs address ‘the history, background and principles that underpin their legal frameworks’.

Those who argue that the principles laid down by Hope are now outdated most commonly refer to the difficulties of distinguishing between Australians and non-Australians, and between what happens in Australia and what happens abroad, at a time of homegrown terrorists, foreign fighters, dual citizenship and instantaneous worldwide communications. These arguments cut little ice with Richardson, who devotes three closely argued chapters on the need to reaffirm the distinctions between security intelligence and foreign intelligence, between onshore and offshore activities, and between monitoring Australian citizens and non-citizens.

Richardson similarly reasserts the importance of maintaining a clear distinction between the collection and assessment of intelligence, and between intelligence and law enforcement agencies. Some of the implications of these principles will be discussed in my next piece.

On these and other crucial issues, Richardson makes his recommendations against changes to legislation as explicit and prominent as his positive recommendations. If, as is highly likely, the proponents of some changes reiterate their claims in the future, there will be a clear record, in some detail, of why those arguments were robustly rejected in 2019–20.

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URL to article: https://www.aspistrategist.org.au/richardson-intelligence-review-much-more-than-an-inside-job/

[1] 2017 independent intelligence review: https://www.pmc.gov.au/resource-centre/national-security/report-2017-independent-intelligence-review

[2] Justice Robert Marsden Hope: https://www.aspistrategist.org.au/keeping-australians-and-their-civil-liberties-safe-who-was-robert-marsden-hope/

[3] unclassified version: https://www.ag.gov.au/national-security/publications/report-comprehensive-review-legal-framework-national-intelligence-community

[4] government’s official response: https://www.ag.gov.au/national-security/publications/government-response-comprehensive-review-legal-framework-national-intelligence-community

[5] call for: https://www.aspistrategist.org.au/keeping-australians-and-their-civil-liberties-safe-the-future-of-the-hope-model/