In previous posts I looked at the major structural reforms ^[1] recommended in the recent intelligence review and at the legislative changes ^[2] that will be required to implement them. Today I look at the oversight of the Australian intelligence community. As usual, I’ll recommend that readers refer to the review ^[3] (PDF) for more detail (chapter 7 pertains).

Australia’s robust oversight mechanisms ^[4] owe their existence to the two Hope Royal Commissions ^[5] on intelligence and security in 1974 and 1983. As Peter Edwards pointed out in The Strategist recently, Hope really knew his stuff ^[6], and the layered ministerial, legislative, parliamentary and statutory oversight mechanisms for the nation’s intelligence agencies have rendered sterling service to Australians. The 2017 review agrees, observing that the current framework constitutes ‘a well-structured set of arrangements that provide independent assurance about the legality and propriety of intelligence operations and the management of resources’.

That doesn’t mean that the reviewers are content with the status quo. While leaving all of the major building blocks in place, they make two major recommendations for change to the current arrangements. First, recognising the importance of the Inspector-General of Intelligence and Security (IGIS) role—effectively a standing royal commission—they suggest broadening it and increasing the staffing of the office from 17 to ‘around 50’. Second, they recommend expanding the remit of the Parliamentary Joint Committee on Intelligence and Security (PJCIS). Both recommendations are predicated on the evolving nature of intelligence work, changes to the composition of the Australian intelligence community and the need for greater public outreach.

The agencies recommended to newly come under the watchful eye of the IGIS and PJCIS are the intelligence elements of the Australian Federal Police, the Department of Immigration and Border Protection, the Australian Transaction Reports and Analysis Centre, and the Australian Criminal Intelligence Commission.

That would certainly make for a bigger workload for the IGIS, especially if it’s combined with more public outreach. Whether that all adds up to a need to triple the workforce is impossible to judge on the information provided, though it’s also possible that the reviewers thought the IGIS was already understaffed. I won’t argue; more oversight resources are a good thing.

The review recommends that the PJCIS’s remit be similarly extended to include the agencies listed above. The committee would receive regular briefings from the IGIS, the Independent National Security Legislation Monitor and the director-general of the proposed Office of National Intelligence. However, the operational activities of the intelligence agencies would continue to be outside the purview of the committee—at least as far as formal inquiries go. The review says (paragraphs 7.44 and 7.45) that:

Rather than giving the PJCIS the power to conduct its own inquiries into agency operations, we favour strengthening the connection between the PJCIS and the IGIS … We recommend that the [Intelligence Services Act] be amended to enable the PJCIS to request the IGIS conduct an inquiry into the legality and propriety of particular operational activities of the [national intelligence] agencies, consistent with the IGIS’s remit, and to provide a report to the Committee, the Prime Minister and the responsible Minister.

There’s little to argue about in the recommendations made, but there are a few things not mentioned in the review that could usefully be considered in the implementation phase. While not explicitly part of the intelligence oversight framework, other mechanisms play an important role in assuring the public of the propriety of intelligence operations and management. Those include freedom of information processes and recourse to the courts. Neither of those avenues is mentioned in the review. It’s hard to believe that everything our intelligence agencies do is sensitive beyond the reach of FOI laws, but there’s no discussion of the appropriateness of current blanket exceptions.

Another important—if often imperfect—oversight mechanism not mentioned in the review is the ability of the press to expose questionable behaviour and to ask difficult questions. A related issue is the protection of whistleblowers. There’s an undeniable downside to the public release of secret information, but it can also be positive to shed light on improper activities. And it provides a disincentive to cover up misconduct under the cloak of operational security. Edward Snowden’s leaks led to press investigations—aided by American FOI laws—that revealed a systematic failure ^[7] in the oversight of the US National Security Agency. It’s true that Snowden leaked far more than that, and I think the net result of his activity was negative ^[8]. But the case shows that whistleblowing can play an oversight role when all else fails. (And it also shows that constant vigilance is required even when apparently adequate oversight mechanisms are in place.)

I’ll finish with one other issue that has been nagging away at me for a while: I can’t find a legislative basis for oversight of the activities of the Australian Defence Force’s intelligence units. The IGIS oversees the Defence Intelligence Organisation, and the two collection agencies in the defence portfolio are covered by the Intelligence Services Act. But the ADF intelligence elements aren’t under the command of DIO and, while carrying out their collection function, they could incidentally gather information relating to Australians. For example, ADF intelligence-collection aircraft ^[9] might intercept communications from Australians at sea. And there was at least one past instance of a minister instructing the ADF to collect information about Australians ^[10]—which incidentally provided a good illustration of how the press can help expose infelicities. Perhaps I’ve missed something (comments welcome), but this looks like a loose end needing tidying—perhaps during the forthcoming legislative review.