2011 Independent Review of the Intelligence Community

The 2011 report of the Independent Review of the Intelligence Community (the Review) was the first comprehensive review of the Australian intelligence community since the 2004 inquiry conducted by Mr Philip Flood AO. 

Appendix 3

Intelligence, oversight, safeguards and the law

The terrorist attacks in the United States on 11 September 2001 marked the start of a decade of legislation creating new terrorism offences and conferring new powers – particularly on ASIO and the Australian Federal Police – to deal with terrorism.

A number of these laws were controversial. They prompted wide public discussion and debate about what were seen by some as a conflict between individual rights and the entitlement of the community to live in safety.

The Review has considered the anti-terrorism laws and related legislation as part of its investigation into how the intelligence community is positioned to support Australia’s national interests now and into the future.

Legislative balance

The resolution of the perceived conflict between individual and community rights was not found in rejecting the proposed legislation but in establishing the appropriate balance between the two competing points of view.

The process of resolution in the Parliament often involved extensive negotiation between the Government and the Opposition. In some cases, significant amendments were made to draft bills before they were acceptable to both major parties.

As a result of those negotiations, all of the significant anti-terrorism and related Acts adopted since 2001 were passed with the support of Government and Opposition and there are many examples of Ministers and Shadow Ministers saying: ‘We think we have got the balance right’.

We believe this process is a good example of the Parliament establishing the wider consensus that strong democracies obtain when an important adjustment is sought in the balance of rights. The strength of the broad social consensus and solidarity we have established about the new balance is itself a bulwark against those forces whose goal is instability.

Perhaps further evidence of the success of this process is that none of the submissions to this Review argued that the balance struck in the anti-terrorism laws should be substantially amended.

Nonetheless, the Review reflected on the balance. We came to the conclusion that the balance remains right for the future we face. Some of the arguments put forward in support of the current anti-terrorism and related laws are particularly persuasive:

  • The aim of the laws is to protect the safety of the community as a whole and, in the process, protect the rights of individuals within society
  • That aim is consistent with the Universal Declaration of Human Rights which states in Article 3 that: ‘Every person has the right to life, liberty and security of the person’, and
  • Individual rights have to sit comfortably with this overriding human right to which everyone in the community is entitled.

These points were made very eloquently by Irwin Cotler, a leading human rights lawyer, when he was Attorney-General of Canada. Mr Cotler described counter-terrorism law and policy as the promotion and protection of both security and human rights. He said:

‘Terrorism constitutes a fundamental assault both on the security of a democracy – indeed, on the peace and security of our hemisphere – as well as an assault on the most fundamental of rights – the rights to life, liberty and the security of the person. Accordingly, counter-terrorism involves the protection of both the security of a democracy – including the protection of international peace and security – and the protection of the most fundamental of our rights’[29].

Mr Cotler described those most fundamental rights as the right to life, liberty and security of the person[30] and the collective right to peace.

Safeguards

In reaching our conclusion that the balance between security and other rights is sound, we took careful note of the significant safeguards that have been built into the anti-terrorism laws.

One person consulted during the Review stressed that, while the laws contained strong provisions and some of them have not yet been required in operations, if the laws are needed in future they will be needed immediately.

Accordingly, the safeguard when granting strong powers to intelligence agencies and police forces is to ensure that there is strong oversight and accountability.

A number of safeguards regulate or are built into Australia’s anti-terrorism laws and their application. They include:

  • General oversight by Ministers of intelligence agencies within their portfolios
  • The requirement for specific ministerial approval or authorisation before a number of actions can be taken by particular agencies
  • Oversight by the Inspector-General of Intelligence and Security
  • Oversight by the Parliamentary Joint Committee on Intelligence and Security
  • Oversight by the courts if the legality of a particular action is challenged, and
  • Internal training, supervision, monitoring compliance with corporate directions and policies with a strong emphasis on adhering to ethical standards.

Ministerial approval or authorisation

In addition to general ministerial oversight of agencies within their portfolio, the following examples provide illustrations of the requirement for ministerial approval or authorisation:

  • ASIO must obtain a warrant from the Attorney-General to exercise its special powers (to enter and search premises, access computers or intercept communications) for the collection of security intelligence and, at the request of either the Minister for Defence or the Minister for Foreign Affairs, foreign intelligence, and
  • The Minister for Defence is required to issue a ministerial authorisation before DSD can undertake activity to produce intelligence on an Australian person and, if the matter involves a threat to security, the Attorney-General must also agree.

Inspector-General of Intelligence and Security

The Inspector-General of Intelligence and Security is an independent statutory office holder appointed under the Inspector-General of Intelligence and Security Act 1986 (Commonwealth). The functions of the Inspector-General are prescribed under sections 8, 9 and 9A of the Act.

The key role of the Inspector-General is to ensure that the intelligence agencies conduct their activities legally, behave with propriety, comply with any directions and guidelines from the responsible Minister and have regard for human rights, including privacy.

The Inspector-General:

  • Conducts regular inspections and monitoring of agency activities
  • Undertakes a formal inquiry into the activities of an Australian intelligence agency in response to a complaint or a reference from the Minister, and
  • Can independently initiate own motion inquiries.

The Parliamentary Joint Committee on Intelligence and Security

The Parliamentary Joint Committee on Intelligence and Security is appointed under section 28 of the Intelligence Services Act.

Under section 29 of the Intelligence Services Act, the Committee’s main functions include:

  • To review the administration and expenditure of the AIC agencies, including their annual financial statements, and
  • To review any matter in relation to any of the AIC agencies referred to the Committee by the responsible Minister or by a resolution of either House of the Parliament.

The Committee gives the Parliament an annual report on its activities during the year.

The courts

The Jack Thomas case illustrates the role of the courts in ensuring the legality of an agency’s actions.

Jack Thomas was convicted in the Supreme Court of Victoria for offences which included intentionally receiving money from a terrorist organisation and falsifying a passport. The conviction was overturned by the Court of Appeal which ruled that a record of interview containing admissions was inadmissible. The interview had been conducted by a joint AFP-ASIO team in Pakistan. The decision indicates the procedures to be followed by Australian police officers conducting interviews in other countries if the records of those interviews are to be admissible in criminal proceedings in Australian courts[31].

Officer training

Australian intelligence agencies take their legal and ethical responsibilities very seriously and train their staff accordingly.

The following examples illustrate ASIO and ASIS training in these areas:

  • All decisions by ASIO officers are guided and informed by the ASIO Act, its Code of Conduct and its Values: Integrity, Excellence, Cooperation and Accountability. ASIO officers undertake mandatory training in ‘Values, Ethics and Accountability in ASIO’ in the induction program followed by refresher training every three years, and
  • As part of the selection and training of its intelligence officers, ASIS looks for and imbues ethical behaviour in its staff. The commitment to ethical behaviour permeates all aspects of organisational culture from recruitment through training to deployment. Ethical conduct applies to the way ASIS officers manage their operations and the agents working for them.

The Inspector-General regularly reviews ASIO and ASIS files for both legality and the propriety of their operational conduct.

Independent National Security Legislation Monitor

The most recent addition to this supervisory regime is the Independent National Security Legislation Monitor.

The Independent National Security Legislation Monitor Act 2010 (Commonwealth) provides for the appointment of an Independent National Security Legislation Monitor.

The appointment of the inaugural holder of this office was announced by the Acting Prime Minister, the Hon Wayne Swan MP, on 21 April 2011. In his media release, Mr Swan said:

‘The Government introduced the legislation creating this new position in response to recommendations from the Parliamentary Joint Committee on Intelligence and Security, as well as recommendations from the Independent Security Legislation Review Committee (the Sheller Committee) and the Clarke Inquiry into the case of Dr Mohammed Haneef’.

The Monitor’s functions are set out in section 6 of the Act. They are:

  • To review, on his or her own initiative, the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation and any other law of the Commonwealth to the extent that it relates to Australia’s counter-terrorism and national security legislation
  • To consider, on his or her own initiative, whether any of that legislation contains appropriate safeguards for protecting the rights of individuals, remains proportionate to any threat of terrorism or threat to national security, or both and remains necessary
  • If a matter relating to counter-terrorism or national security is referred to the Monitor by the Prime Minister – to report on the reference, and
  • To assess whether Australia’s counter-terrorism or national security legislation is being used for matters unrelated to terrorism and national security.

In summary, the Monitor will review the operation, effectiveness and implications of Australia’s counter-terrorism and national security legislation, reporting to the Prime Minister and, through his or her annual report, to the Parliament.

The impetus for the legislation and this appointment can be found in the extensive parliamentary and public debates that surrounded the introduction of significant pieces of counter-terrorism legislation passed by the Parliament in the years following the terrorist attacks in the United States on 11 September, 2001.

However, there was no mechanism in the legislation, other than the usual process of parliamentary review, to monitor whether the balance between individual and community rights was still proportionate and being maintained over time.

In 2008, the Attorney-General, the Hon Robert McClelland, discussed the role of a similar position in the United Kingdom with the then British Independent Reviewer of Terrorism Legislation, Lord Carlile of Berriew QC.

The tradition of independent review of terrorism legislation in the United Kingdom stretches back to the 1970s. Between 1978 and 1984, reviews of the Prevention of Terrorism (Temporary Provisions) Acts and the Northern Ireland (Emergency Provisions) Acts were carried out by Lord Shackleton, Earl Jellicoe and Sir George Baker. Between 1984 and 2001 annual reports to the Parliament were produced by Viscount Colville and J J Rowe QC.

The brochure for a public lecture given by Lord Carlile at the Australian National University on 16 June 2009 states:

‘He will argue that an independent person in this role can provide a level of public reassurance on the balance between regulation and civil liberties; and that he can proportionately influence debate and policy making. He will argue that national security is an important individual liberty in the context of current international terrorist activity.’

Lord Carlile held the position for more than nine years until he was replaced by David Anderson QC on 21 February 2011.

In welcoming the appointment of the Independent National Security Legislation Monitor, the Attorney-General, the Hon Robert McClelland said in his April 2011 newsletter:

‘Keeping Australia safe is the job of security, intelligence and law enforcement agencies. The Government equips them with strong counter-terrorism laws to ensure they can do their jobs properly while ensuring there is necessary accountability and oversight. These laws were extensively reviewed during 2009 and 2010 and after a period of public consultation, were amended to ensure police have adequate powers to protect the community, especially in circumstances where a dangerous device or substance is involved.

‘At the same time, additional protections that had been recommended by four different inquiries were included in the amending legislation, which passed through Parliament with the support of both major parties. This reflects a general consensus that the laws achieve the appropriate balance – this week’s events (that is, the killing of Usama Bin Laden) have not created a situation where that balance needs to be recalibrated.

‘Given the nature of these powers, the Government accepts the operation and effectiveness of the laws should be appropriately monitored.’

Need for regular monitoring

The national security laws regulating and conferring powers on the intelligence agencies and, in some cases, the Australian Federal Police require regular monitoring.

In reaching this conclusion, the Review has taken note of the safeguards and oversights contained in the present system as set out in this Appendix.

The Review considers the monitoring and review functions to be undertaken by the Independent National Security Legislation Monitor should provide significant reassurance to the government and the community that the strong powers granted under counter-terrorism and national security legislation will continue to contain appropriate safeguards and remain proportionate to the then existing threat of terrorism or threat to national security over the coming years.

The Independent National Security Legislation Monitor should be given time to establish himself in his role and to form his views on national security legislation before any significant amendments are considered which could affect the current balance of the legislation.

Staying ahead of the challenges to oversight and safeguards

The Review has considered the difficulties presented by issues that are running ahead of domestic and international legal frameworks or of significant sustained ethical analysis.

These issues include:

  • The actions that can be taken against non-state actors: There are legal and ethical structures to deal with what can and cannot be done toward state actors engaged in hostile activity on the one hand and private citizens on the other. It is not clear that either framework is entirely suitable for dealing with non-state actors like terrorist organisations
  • The use of Intelligence Surveillance and Reconnaissance platforms has been subject to criticism from human rights organisations. Close analysis of their concerns suggest that this is an area that requires considerably more deliberation. If the use of important new capabilities like these is to retain public support, there needs to be a clear articulation of any ethical issues involved in managing them effectively and the way they are used, and
  • This Review is of the opinion that there needs to be international discussion and agreement about rules for and limits on cyber warfare.

A thoughtful exploration of these and other ethical issues in the right forums will make it far more likely that publicly acceptable boundaries can be determined by a constructive conversation rather than reactively by a defensive one.

It is important for the future operations of the AIC and intelligence organisations globally that the public understanding of these issues catches up with operational realities and possibly even gets ahead of them.