With the dust settling on the most recent extensions of security agency powers, how we oversee agencies like the Australian Security Intelligence Organisation and the Australian Federal Police remains problematic.
Apart from extensions to the agencies’ already-draconian powers over the past 10 months, the oversight model for national security, intelligence and counter-terrorism in Australia has also undergone a significant change. Like other Westminster countries and the United States, we have a mixed system of oversight of security agencies composed of parliamentary committees, independent officeholders and judicial oversight. But the respective powers of each varies between countries. In Australia, the relevant parliamentary committee, the Joint Committee on Intelligence and Security, has had a very limited role, in essence confined to operating as an estimates committee for spooks who (they insist) shouldn’t be subjected to the same kind of public grilling about their finances as other public servants. JCIS’ other role has been to review the listing of terror groups plus whatever matters the government referred to it.
As John Faulkner pointed out last year in his detailed discussion of oversight, the JCIS is a fairly recent innovation. Labor established it — it is one of only a small number of committees established by legislation — in the Hawke years against ferocious opposition from the Coalition, which suggested any parliamentary oversight of intelligence would endanger national security. The Inspector-General of Intelligence and Security was also establish by the Hawke government, while the most recent addition to the oversight process, the Independent National Security Legislation Monitor, was established under the Rudd government, and only narrowly survived an attempt by the Coalition to kill it off on the grounds that it was just “red tape”.
The most recent changes to the oversight arrangements have expanded the IGIS and given more responsibility for overseeing ASIO in areas like mass surveillance. The Ombudsman has been given added responsibility in relation to AFP surveillance. And most critically, the role of the JCIS has expanded significantly. JCIS now has a years-long work program reviewing both sunsetting legislation (such as preventative detention orders) or ongoing legislation (data retention); the AFP’s counter-terrorism operations have been shifted from the Joint Committee on Law Enforcement to JCIS, and the committee will have real-time access to information about attempts by security agencies to access journalists’ metadata for the purposes of identifying sources, and be able to request briefings on them.
Most of this expansion has been driven by Labor’s now-retired John Faulkner and Anthony Byrne, deputy chair of the committee, with support from the current chair, Victorian Liberal Dan Tehan. Expanding the JCIS role to include the AFP was one of the reforms proposed by Faulkner last year.
So where does all that leave us? Oversight of agencies has improved, but the powers of security agencies — including laws to jail journalists for revealing intelligence operations or whether the AFP is trying to identify their sources — have also increased, and Australia’s first nationwide mass surveillance program is being established. And the improvements have created incoherence and inconsistency: JCIS now oversees AFP counter-terror activities but can’t initiate its own reviews into either the AFP or intelligence agencies; it is still legislatively prevented from inquiring into any operational matters of intelligence agencies, but it can demand information about the AFP or ASIO pursuing journalists; it is unable to consider secret intelligence reports but is now tasked with reviewing the operation of key pieces of counter-terrorism and intelligence-gathering legislation in coming years.
The central point is that even in its current, expanded role, JCIS is still dependent on the goodwill of the government of the day. Anxious to secure bipartisan support for its extension of security agency powers, the Abbott government referred all its legislation to the committee. But this is very unusual — references to JCIS or its predecessors of draft legislation under the Howard government were very rare and tended to relate to legislative changes affecting the committee itself. A less politically inept government, or a more competent attorney-general, might return to the practice of the Howard era of rushing further extensions to security powers through Parliament without consulting JCIS, dismissing any critics were simply soft on terrorism. JCIS would be unable to initiate inquiries of its own to provide scrutiny.
A system that relies on the goodwill and competence of individuals will, at some point break down. A similar problem applies to IGIS: while IGIS’ role and resources have been expanded, Vivienne Thom’s performance raises serious questions as to whether she is willing to use her powers, especially given her apparently relaxed attitude to ASIS misleading her.
As it currently stands, JCIS has no systematic, independent role in oversight, merely one dependent on the executive. This is the status that Faulkner wanted to change before his retirement — he left with a private member’s bill pending that would have overhauled the committee’s role. The bill, notionally, remains live for Labor — a spokesman for shadow attorney-general Mark Dreyfus says Labor implemented some of Faulkner’s proposals in the data retention bill, and that further reforms will be progressed this year.
Tehan is less than enthusiastic, but he is not closed to an overhaul. “The government and Parliament more broadly have shown significant support for, and trust in, the role of the committee” since mid-2014, he told Crikey, and the transition of AFP counter-terrorism oversight to his committee has gone smoothly, he says. However, “there is a case to look at the role of the committee”. “There is some support for expanding its remit, but it cannot be done in isolation and would have to be considered in the context of the existing national security accountability framework.” Tehan, in particular, points to the role of IGIS and its royal commission-level powers.
The other significant change Faulkner wanted to pursue related to the composition of the committee. Not everyone on the committee has covered himself in glory — Labor’s Michael Danby was on it under Julia Gillard, while Liberal Andrew Nikolic has proved an embarrassment on the current committee. But the committee is required under legislation to be split between the Senate (five members) and House of Reps (six), which has meant some rather eccentric choices for membership — the committee took a long period to re-establish after the 2013 election while Labor ummed and ahhed over who would be on it. With Byrne, the former chair, determined to stay on and Deputy Opposition Leader Tanya Plibersek wanting to join, Dreyfus missed out while then-Labor Senator Joe Ludwig was appointed.
Others have also criticised the absence of non-major party representatives, although this is a matter for the parties themselves, not the legislation. Andrew Wilkie was on the committee under Gillard, and was widely regarded as a strong performer, unsurprisingly given his background. The ongoing absence of the Greens has drawn criticism, especially after what many saw as a Liberal-Labor stitch-up on data retention — although whether, tactically, the Greens or Nick Xenophon (who has also focused on intelligence and security issues) would benefit from participating in the committee on controversial legislation rather than attacking it from the outside isn’t clear. Tehan, for one, doesn’t believe a non-major party representative should be mandated.
What is clear is that there may never be a better time for the committee to push for an even greater role. The government has conspicuously relied on the committee to give it political cover for its agenda to increase security agency powers, and agreed to all of its recommendations. A concerted push from the committee might finally give us the kind of oversight otherwise unaccountable, vastly powerful and generously funded agencies like ASIO need.