Executive Oversight of Intelligence Agencies in Australia

Zachary Goldman and Samuel Rascoff recently released Global Intelligence Oversight: Governing Security in the Twenty-First Century. The edited volume “is a comparative investigation of intelligence oversight systems in democratic countries, which focuses on some of the new dynamics shaping and constraining intelligence services, and the range of purposes a holistic approach to oversight should serve.” This week, Lawfare is hosting a mini-forum where contributing authors discuss their chapters.

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Many avenues for holding government agencies accountable—including the media, courts and Parliament—are ineffective or problematic when applied to intelligence agencies due to the inherent secrecy of their work. Because of this, executive accountability mechanisms take on a particularly important role in holding intelligence agencies to account. Specially appointed office holders and inquiries are trusted, where others are not, to access classified information and assess the appropriateness of intelligence agencies’ powers and operations.

The key conceptual and practical problem with executive oversight of intelligence agencies is that the relevant accountability mechanisms are part of the same arm of government to which the intelligence agencies belong. This undermines the notion of ‘horizontal’ accountability: the idea that the different arms of government—legislature, judiciary, executive—should keep each other in check.

In our chapter, we consider whether executive oversight of Australia’s intelligence agencies is robust and effective. We set out the six Australian intelligence agencies and their functions, and the executive bodies which oversee those agencies. We then evaluate the strengths and weaknesses of these accountability measures, and use this analysis to draw some broader lessons about the role that the Executive plays in holding secret intelligence organisations to account. One important lesson is that it is difficult for intelligence agencies to be held accountable when those agencies have been granted extraordinary statutory powers that are difficult to exceed.

Australia’s Intelligence Agencies

There are six intelligence agencies in Australia, with their roles and functions split along similar lines as intelligence agencies in other countries. They are the:

• Australian Secret Intelligence Service (ASIS), Australia’s foreign intelligence collection agency (the equivalent of the UK’s MI6)
• Australian Security Intelligence Organisation (ASIO), Australia’s domestic intelligence collection agency (the equivalent of the UK’s MI5)
• Australian Signals Directorate (ASD), Australia’s signals intelligence agency (the equivalent of the UK’s GCHQ or the United States’ NSA)
• Australian Geospatial-Intelligence Organisation (AGO), a foreign intelligence collection agency which collects intelligence from imagery and geospatial data
• Defence Intelligence Organisation (DIO), a strategic all-source assessment agency which provides advice to the Australian government and the Australian Defence Force on overseas military operations
• Office of National Assessments (ONA), an all-source assessment agency which is responsible to the Prime Minister and helps to coordinate Australia’s foreign intelligence activities

Executive oversight mechanisms

The Australian intelligence agencies are overseen by a wide range of executive accountability mechanisms.

Each agency is responsible to a Cabinet Minister in the Federal Government; for example, ASIO is responsible to the Attorney-General and ASIS is responsible to the Minister for Foreign Affairs. While in theory this exposes the intelligence agencies to public scrutiny through Parliament, the more significant role played by government ministers is to authorise the use of many of the agencies’ statutory powers. For example, the Director-General of Security (the head of ASIO) may request the Attorney-General to issue a warrant allowing ASIO officers to search private premises.

The intelligence agencies’ operations are subject to post-hoc review by the Inspector-General of Intelligence and Security (IGIS). The IGIS assesses whether the intelligence agencies have acted in accordance with laws, directions and guidelines, and whether their activities are consistent with human rights. This is done through public inquiries and the regular inspection of the intelligence agencies’ records.

Review of the legislation that provides the intelligence agencies their statutory powers is conducted primarily by the Independent National Security Legislation Monitor (INSLM), a statutory office created in 2010 which is loosely modelled on the UK’s Independent Reviewer of Terrorism Legislation. The INSLM reviews the operation and effectiveness of Australia’s counter-terrorism laws and assesses whether those laws remain proportionate and necessary and contain appropriate safeguards.

The intelligence agencies’ finances and expenditure is independently audited by the Commonwealth Auditor-General. This is one of the few areas in which the intelligence agencies are subject to the same level of scrutiny as other government departments.

The Australian intelligence agencies are subject in addition to a range of governance mechanisms which set their policy and intelligence collection priorities. The key example of these is the National Security Committee of Cabinet (NSC), which sets the collection priorities of the intelligence agencies and helps coordinate responses to terrorist attacks and other emergencies.

Strengths of System

The key strength of this system of executive accountability is that Australia’s intelligence agencies are subject to a wide range of review mechanisms with broad jurisdiction. This is crucial given the difficulties posed by public, judicial and parliamentary scrutiny of the intelligence agencies. The accountability measures described above oversee not only the use of covert powers by the intelligence agencies, but also their finances, legislation and policy direction.

Another key strength is that independent office-holders such as the IGIS and INSLM have statutory tenure and strong investigative powers, such as the power to compel witnesses for questioning under oath.

Weaknesses

The system also reveals a number of weaknesses. One key weakness is that the ministers responsible for the intelligence agencies tend to have a very close relationship with those agencies. For example, in response to the threat of foreign fighters returning from Syria and Iraq, the Attorney-General played the lead role in developing and introducing legislation to dramatically expand ASIO’s powers. It must be questioned whether he (or his successors) will bring a critical, independent approach when authorising the use of those powers.

Another key weakness is that independent office-holders like the INSLM have no remedial powers. Of course, statutory office-holders could not have remedial powers along the lines of those possessed by a court, but too frequently the recommendations of these bodies are simply ignored by government.

It is also difficult to gauge the effectiveness of these oversight mechanisms because they frequently rely on classified information provided by the intelligence agencies. This means that the Australian public must often trust, rather than know, that the intelligence agencies are being held to account.

Finally, it is extremely difficult to hold the intelligence agencies to account for the use of extraordinary statutory powers. For example, ASIO has a power to detain and question non-suspects for the purpose of gathering intelligence in relation to terrorism offences. ASIO may use this power according to the letter of the law, but it is still concerning for its impact on fundamental rights.

This suggests that the key problem is not whether these executive oversight mechanisms have sufficient powers to hold Australia’s intelligence agencies to account. Rather, it is how they can act as effective oversight mechanisms given the vast expansion of Australia’s counter-terrorism laws over more than a decade, from those introduced in response to 9/11 attacks to those which continue to be introduced today in response to the threat of returning foreign fighters.