Since 11 September 2001, new threats to Australia's national security have emerged, with Australians targeted by terrorist organisations at home and abroad.
Close to home, the threat of terror became a shocking reality with the 2002 and 2005 Bali bombings, the 2004 bombing of the Australian Embassy in Jakarta, the 2009 Holsworthy Barracks terror plot, and other planned attacks on Australian soil, prevented by authorities. On 12 September 2014, based on advice from agencies, the Government moved the Australian terror-alert level from Medium to High for the first time.
The powers, functions, and resources of the Australian Intelligence Community (AIC) have changed and expanded dramatically since the September 11 attacks. The current security environment does require such enhanced powers. However, this has come with a share of controversy. Recent information coming from the material disclosed by Edward Snowden, for instance, reveals something of the nature of Australia's intelligence cooperation with the US, UK, Canada and New Zealand, and raises questions about the extent to which this cooperation might circumvent national laws relating to the surveillance of citizens.
In the heightened atmosphere of war and terrorism there is also a danger that proper effect will not be given to important measures to safeguard the rights of Australian citizens. In the case involving Joseph 'Jihad Jack' Thomas, for instance, the Victorian Court of Appeal overturned his conviction because admissions he made whilst in custody in Pakistan had been obtained by ASIO and Australian Federal Police (AFP) agents contrary to Australian legal safeguards. The case of Dr Muhamed Haneef revealed the capacity of counter-terrorism laws to infringe the rights of an individual and to deny just treatment. The Haneef case also highlights arguments, which have not been resolved, about the power to detain people.
The decision to go to war in Iraq raised questions in Australia about the quality of intelligence assessments and the public use the government made of intelligence on weapons of mass destruction. By contrast with Australia, the UK has conducted at least six major inquiries into issues surrounding the role of intelligence agencies in the Iraq war.
The protection of our hard-won democratic freedoms demands enhanced oversight of the AIC's expanded powers. With legislative change extending the powers of security agencies, the requirement for reliable, effective external oversight arguably becomes more critical to maintaining an essential level of trust in the community about agency operations.
In a paper posted on my website today, I make eight recommendations to improve oversight and scrutiny:
- It is the parliament to which the intelligence agencies are accountable, and it is the parliament's responsibility to oversight their priorities and effectiveness. The Australian Parliament has no better or more authoritative forum than the Parliamentary Joint Committee on Intelligence and Security (PJCIS) to do this job. But the provision requiring a prescribed balance of PJCIS members between the Houses has been an unnecessary impediment to ensuring the best qualified eligible parliamentarians serve on the committee. This should change to ensure the PJCIS has the capacity to draw on those parliamentarians with the greatest expertise and experience.
- The AFP now plays a central role in Australia's counter-terrorism framework. To ensure comprehensive and consistent oversight arrangements it is critical that the AFP's counter-terrorism elements be added to the list of organisations reviewable by the PJCIS.
- Currently the PJCIS is charged with reviewing the administration and expenditure of intelligence agencies. I would argue that the powers and access of the PJCIS should be enhanced to include access to the classified annual reviews of intelligence agencies.
- Currently the PJCIS can only request a matter be referred to it by the responsible Minister. In the US and UK, the equivalent committees set their own agenda and work program. It is time for the PJCIS to be given the power to generate its own inquiries if it believes, following consultation with relevant agencies, that such action is necessary and appropriate.
- The Inspector-General of Intelligence and Security (IGIS) provides detailed scrutiny of the legality and propriety of intelligence agencies' operations. The Government and the Parliament must ensure the resources and level of staffing provided to IGIS continue to meet the growing demands and responsibilities placed on them by the expansion of the Australian intelligence community and its powers.
- There should be broader and more formalised liaison between the PJCIS and other oversight bodies including the IGIS and the Independent National Security Legislation Monitor.
- In recent years, in some instances the Parliament has used sunset clauses when intelligence agencies have been granted unprecedented powers. These unprecedented powers include AFP preventative detention orders, AFP control orders, and ASIO questioning and detention powers. The lifespan of too many such sunset clauses has been too long. It is simply not possible to predict the nature and extent of terrorist threats over a ten-year period. Giving future sunset clauses a three-year lifespan would be more appropriate to meet immediate threats to national security and give a new Parliament, with a fresh perspective, the opportunity to reconsider their necessity.
- Not only has oversight of the intelligence agencies failed to keep pace with their burgeoning role and powers, it has been decades since the effectiveness and adequacy of the oversight framework have been critically examined. It is time to satisfy the Australian community, the Parliament, and the agencies themselves that we have got this right. The time has come for a thorough review of the current arrangements for oversight of Australian intelligence agencies. The inquiry should encompass the role, powers and scope of existing oversight mechanisms and consider the adequacy of the legislative framework which governs oversight; the degree to which it is coordinated and comprehensive; and whether the resources allocated to such bodies are adequate.
Enhanced power requires enhanced accountability. The greater the potential for that power to infringe on individual liberties, the greater the need for accountability in the exercise of that power. This is not to suggest that our security and intelligence agencies are acting perniciously or misusing their powers. But in the relatively recent past those powers were used inappropriately, with a consequent erosion of public trust. We must be conscious that enhancements we agree to now may lend themselves to future misuse in the absence of appropriate and effective accountability mechanisms.
Photo by Flickr user sobriquet.net.