2017 Independent Intelligence Review.
2017 Independent Intelligence Review
c/o The Department of the Prime Minister and Cabinet
By Email: intelligencereview@pmc.gov.au
Dear Sirs,
Thank you for the opportunity to make a submission in relation to the 2017 Independent Intelligence Review.
The QCCL is a voluntary organisation established in 1967 to protect the Civil Liberties and human rights of Queenslanders.
This submission is made despite and because of the fact that the terms of reference astonishingly make no express reference to a fundamental issue that has galvanised public debate in this country and around the world since 2001: the extent to which the powers given to intelligence agencies are consistent with basic civil liberties and an open democratic society.
The closest the terms of reference come to raising these issues are those addressing:
1. Whether legislative changes are needed, including to the Intelligence Services Act
2. The effectiveness of current oversight and evaluation arrangements
This submission proceeds on the basis that our concerns fall into these items of the terms of reference.
This submission will be in two parts
1. A critique of the powers given to ASIO in recent times
2. Recommendations for improved oversight arrangements
SUBMISSION
1. EXCESSIVE AND UNJUSTIFIED POWERS
QCCL accepts that ASIO and other intelligence and security organisations must have the powers and resources necessary for the protection of national security including protection against the very real threat of terrorist activity in Australia- consistent with democratic values. We support the modernisation and appropriate streamlining of national security legislation to ensure that the agencies are not hindered by outdated legislation. However, important liberties and human rights are often at stake when security and counter-terrorism laws are under consideration. Since 2001 we and other respected experts and scholars have repeatedly expressed our concerns about the impact of repeated anti -terror laws on civil liberties, most particularly the right to privacy, the right to free speech and the right to due process. Some of those laws have, in our submission, vested our intelligence agencies with alarming and unnecessary powers. Some of those are set out below.
1.1. SPECIAL INTELLIGENCE OPERATIONS (SIO)
We consider the SIO regime unnecessary, dangerous and inappropriate for a domestic intelligence agency. It is not appropriate to presume that powers appropriate for the AFP as a law enforcement agency are automatically appropriate for ASIO. Law enforcement agencies operate more visibly, are subject to accountability through the criminal trial process and sit in a different administrative position from ASIO. The latter is – of necessity - a far more secret organisation.
Of particular concern in this context was the introduction of section 35P of the ASIO Act, which throws a shroud of secrecy over SIOs. It is the view of the QCCL that no agency of the state should be shielded from public scrutiny in this way. We are concerned that in addition to preventing publication of information which is harmful to Australia’s national security interests, the offences could be used to prevent or deter publication or disclosure of important information regarding the use and misuse of official power that is essential to the proper functioning of a democratic state.
The regime should be abolished.
1.2. QUESTIONING POWERS
We take this opportunity to restate our opposition to the powers contained in Division 3 of Part III of the ASIO Act.
We are of the view that the administrative detention of an individual upon executive action constitutes an erosion of the separation of powers and is an intolerable incursion upon fundamental rights. We are of the view that in a free and democratic society no individual should be deprived of his or her liberty other than by a court of law, after evidence based determination, and after the individual has been afforded due process.
Detention for questioning arises on the basis of an assessment by the Attorney-General and not a court of law. Such executive detention is an extraordinary departure from fundamental rights. It constitutes an erosion of the separation of powers and is an intolerable incursion upon individual liberty
A person detained under a detention warrant is not afforded sufficient access to legal advice or representation. There is insufficient guarantee that a person will have access to a lawyer. There is no right to privacy or lawyer client privilege.
There is no requirement that a person detained under a warrant is given any or sufficient information about the reason why they are detained or to what the questioning relates.
We are of the view that in relation to all forms of coercive questioning, greater distinction needs to be made between intelligence and evidence. While coercive questioning may be justified as intelligence gathering, it has the potential to infringe upon an accused person’s right to a fair trial.
We are of the view that derivative use immunity is no substitute for the privilege against self-incrimination. This perspective was strongly argued in a speech delivered by Terry O’Gorman, President Australian Council for Civil Liberties, to the 30th Australian Legal Convention: “Right to Silence”, 20 September 1997: https://qccl.org.au/wiki/accl-speech-20sep97-right-to-silence/
The incursions upon rights and freedoms that QDWs constitute are not sufficiently linked to a demonstrated counterterrorism purpose.
The report of the INSLM in 2012 recommended that detention warrants were not necessary as less restrictive means existed to achieve the same purpose. Notwithstanding that the terrorism threat to Australia is said to have increased in recent years, it is our view that nothing has changed to alter the assessment of the INSLM in 2012
QCCL’s position is that the questioning powers conferred upon ASIO constitute an unjustified and intolerable incursion upon the rights of individuals in the community, particularly those not suspected of having committed any criminal offence. The provisions should be repealed.
1.3. DISRUPTING COMPUTERS
By the 2014 National Security Legislation Amendment Bill (No 1) 2014, ASIO was given the power to disrupt target and third-party computers.
In our view the legislation goes too far when it provides in section 25A(5) that ASIO may disrupt a target or third party computer so long as the interference and a loss or damage is not "material". The word "material" is in our view too open a ended a standard and is entirely unjustified in relation to 3rd party computers that is a computer of an innocent third party.
QCCL suggests consideration be given to limiting the type of data that may be collected or interfered with as a safeguard against arbitrary interference with privacy. Other accountability measures which should be considered include:
i. Limiting the power to specified categories of third parties (currently the Act allows access to ‘any other computer or communication in transit’);
ii. Creating a duty to notify third parties of the use at an appropriate time; and
iii. Creating a duty to rectify any interference made with a third party computer.
1.4. DATA RETENTION
The position of QCCL in relation to this issue has recently been vindicated by the decision of the Grand Chamber of the European Court of Justice in Post-och telesyrelsen v Secretary of State for the Home Department delivered 21 December 2016.
The court held[1] that the fight against serious crime, including terrorism cannot in itself "justify national legislation providing for the general and indiscriminate retention of all traffic and location data.”
The Court allowed that the protection of basic rights and liberties does not prevent legislation providing for "the targeted retention of traffic and location data for the purpose of fighting serious crime, provided the retention of data is limited, with respect of the categories of data to retain, the means of communication affected, the persons concerned and the retention period adopted to what is strictly necessary.”[2]
The court went on to make it clear that legislation providing for data retention "must be based on objective evidence which makes it possible to identify a public whose data is likely to reveal a link, at least an indirect one, with serious criminal offences, and to contribute in one way or another to fighting serious crime or preventing serious risk to public security.”[3]
The court made it clear that access test to such data “must be authorised by a court or other independent administrative authority."- para 120 and that access should only be granted "to the data of individuals suspected of planning, committing or having committed a serious crime or are being implicated in one way or another in such a crime." Para 119
Furthermore, court held that persons whose data has been accessed must be notified as soon as that notification is "no longer liable to jeopardise the investigation that is being undertaken by those authorities”[4]
These statements broadly data preservation over data retention which would include elements such as:
i. quick response preservation of data of persons who have been identified as posing a real and immediate serious threat and designated vulnerable groups
ii. requiring persons convicted of specified crimes released on licence to register their means of electronic communication for data preservation for a prescribed period;
iii. case by case judicial authorization for preservation targeted at those reasonably believed to have engaged in criminal activities (with emergency procedures).
iv. targets to be notified afterwards where suspicious proved unfounded in the absence of compelling reasons not to do so
v. access to the data on judicial authorization
1.5. SECRET POLICE
In our submission the cumulative effect of these developments is to move ASIO toward a Secret Police force rather than an intelligence organisation.
Traditionally intelligence organisations have been allowed to operate in secret and without the type of public accountability mechanisms that apply to police because intelligence organisations don’t produce evidence and don’t have police type powers. The developments discussed above, in our submission, blur that distinction in a disturbing way.
We urge this committee to resist the temptation to continue this process.
We also urge this inquiry to avoid arguments for more powers for intelligence services based simply on operational convenience. Operational efficiency is never sufficient reason for curtailing liberties. Unfortunately it appears to have underlined many developments in anti terror laws in the last 15 years.
2. IMPROVEMENT TO OVERSIGHT
2.1. Inspector General of intelligence and Security
The Inspector has to be regarded as currently the principal oversight mechanism of the Australian intelligence organisations.
The QCCL has two concerns about its functioning.
Firstly, it is our submissions the Inspector should be given a power to conduct inspections without notice. This is a power held by state government anticorruption commissions such as the Crime and Misconduct Commission- section 73 of the Crime and Misconduct Commission Act (Qld).
Even more importantly we are concerned about the resources available to the Inspector to conduct her functions.
In an article in the Saturday Paper dated 22 November 2014 entitled ASIO and other Intelligence Agencies reach for the spy, Martin McKenzie-Murray reported that, "Since 2001, the size and budgets of these services have more than trebled. In 1999, ASIO employed 565 people and had an operating budget of $66 million. Today, start staff number about 1800 and enjoy a budget of $444 million. ASIS does not publicly reveal staffing levels, but its budget has increased in the same period from $42.5 million to $248 million.” These figures do not include the other intelligence agencies including the Australian Signals Directorate, the Australian Geospatial-Intelligence Organisation, the Defence Intelligence Organisation and the Office of National Assessments.
We acknowledge that there have been budgetary increases for the IGIS. The annual report of the inspector for 2013-14 shows a budget of some $2.2 million-page 43. The Inspector’s report of 2015-16 shows at page 11 a budget of $3.05 million. However, the same report at page 48 reveals that the Inspector has a staff of 14.
Once again it is acknowledged that the number of complaints to the organisation has fallen considerably from approximately 500 in 2013-14 and 2014-15 to 147 in the 2015-16 financial year- see page 45 of the 2015-16 report.
In comments to PJCIS in 2014 the Inspector suggested that about 16 officers should be sufficient to carry out the work of the Inspectorate. Whilst it is difficult to question the judgment of the person on the ground, with no reason to understate the issue, the size of the organisations being checked on means the issue of resources should be under regular consideration. The Inspector should be required to address this issue in her annual report.
2.2. Parliamentary Joint Committee on Intelligence and Security (‘the Committee”)
In post-war Western democracies, the development of accountability mechanisms outside that of the Parliamentary process has been an important and welcome development[5]. However the right to vote is still the fundamental control mechanism in a democracy and hence the most important accountability mechanism is still through the Parliamentary process. Whilst experts ought to be respected, to surrender to rule by experts is to give up democracy and pluralism[6]
For this reason, the Committee has to take a more front and centre role in ensuring that intelligence agencies are held accountable for their actions.
Firstly, the QCCL express support for the Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015. This Bill was originally produced by Senator Faulkner and is now under the name of Senator Wong.
The Committee is one of the main oversight mechanisms for the intelligence organisations. This Bill introduces a number of reforms, all of which are in our opinion worthwhile.
The most important ones are however to:
1. enable the committee to undertake investigations of its own initiative
2. open the committee membership to members of parliament who are not members of the major parties.
The first reform will give the Committee the valuable freedom from executive restraint.
Broadening the membership of the Committee may in fact improve its effectiveness by breaking down barriers between the various parties.[7]
In addition, the Bill requires that reports by the National Security Legislation Monitor and the Inspector-General of intelligence and Security be provided to the Committee.
Ministerial accountability is almost, if it is not already, a dead letter as an effective means of accountability for the conduct of public servants and government agencies. In the circumstances the Committee is the main mechanism of democratic accountability for the conduct of these organisations. It is difficult to conceive of any reason why the Committee should not have access to reports by the other accountability organisations.
However, in our submission the main obstacle to the effectiveness of the Committee as an oversight mechanism is section 29 (3) of the Intelligence Services Act which provides that:
The functions of the Committee do not include:
(a) reviewing the intelligence gathering and assessment priorities of ASIO, ASIS, AGO, DIO, ASD or ONA; or
(b) reviewing the sources of information, other operational assistance or operational methods available to ASIO, ASIS, AGO, DIO, ASD or ONA; or
(c) reviewing particular operations that have been, are being or are proposed to be undertaken by ASIO, ASIS, AGO, DIO or ASD; or
(d) reviewing information provided by, or by an agency of, a foreign government where that government does not consent to the disclosure of the information; or
(e) reviewing an aspect of the activities of ASIO, ASIS, AGO, DIO, ASD or ONA that does not affect an Australian person; or
(f) reviewing the rules made under section 15 of this Act; or
(g) conducting inquiries into individual complaints about the activities of ASIO, ASIS, AGO, DIO, ASD, ONA, AFP or the Immigration and Border Protection Department; or
(h) reviewing the content of, or conclusions reached in, assessments or reports made by DIO or ONA, or reviewing sources of information on which such assessments or reports are based; or
(i) reviewing the coordination and evaluation activities undertaken by ONA; or
(j) reviewing sensitive operational information or operational methods available to the AFP; or
(k) reviewing particular operations or investigations that have been, are being or are proposed to be undertaken by the AFP.
It is our submission that the Committee ought to be empowered to review the operational activities of the intelligence services.
This is not an unusual arrangement. The pre-eminent example is oversight of the operational activities of the intelligence community by committees of the American Congress, one in the House the other in the Senate. Some details of the activities undertaken by those committees are found in the document Legislative Oversight of Intelligence Activities: the US experience-Report prepared by the Committee on Intelligence United States Senate October 1994.
Mechanisms available to the Congressional Committees to oversee the intelligence organisations include: the legislative process, review of financing, calling agency officials to testify at hearings, launching their own investigations or requesting the Government Accountability Office to evaluate agency programs.[8]
These Senate and House committees, have generally the same powers. However the House committee can also assess technical intelligence and intelligence-related activities and reviews the sources and methods of intelligence Organisations.[9]
But in addition, the following countries have parliamentary oversight of the operational activities of intelligence services:
1 oversight of both ongoing and complete operations-Austria, Denmark, Estonia, Finland, Germany and Latvia,
2 oversight of completed operations-the Czech Republic and Italy[10]
The current Committee was established following the Commission of Inquiry into the Australian Secret Intelligence Service in 1995.(“ the Samuelson Report’)
The report does not specifically address why the Committee should not investigate the operational activities of the Intelligence Services.
Three arguments can be divined from the report.
The first is the comment in paragraph 5.15 in relation to the American committees that, "The committees' oversight role does not appear to have imposed restraints, in every case, upon the CIA's less successful initiatives."
Whilst criticising the effectiveness of the Committees, it appears to acknowledge that the Committees have been effective in some cases in restraining the excesses of the CIA.
Whilst post 9/11 there have been reviews of the functioning of the American Committees, none of those reviews has suggested abolishing the committees. They have rather focused on whether or not the two committees should be combined into a joint committee. This would suggest both that the committees are serving a useful purpose and that they are not unduly interfering with the operations of the organisations that they are supervising.[11]
In paragraph 5.4 of the Samuelson report, the argument is made that because ASIO does not have the capacity to affect the right of Australians oversight of its operational activities is not required. Well, as we have noted above ASIO, at the very least, now has substantial power to affect the rights of Australians.
Finally, the case for not allowing the Committee to investigate operational activities rests ultimately on concern about secrecy. There is no doubt that secrecy is a legitimate area of concern and has been the subject of continuing contention and bargaining between the American Committees and the Executive since their creation
Three points can be made in response to this concern.
Firstly the existence of operational oversight in nine countries, which include a number of substantive democracies with some knowledge of what happens when secret services go rogue would indicate the concern can be addressed.
Secondly, the claims to secrecy are in our submission overstated. One member of the 9/11 Commission stated that “only 10% of classification was for “legitimate protection of secrets”[12] The general consensus seems to be that Australia is more secretive than the United States. If this is so, one would expect that over classification in this country would be greater than in the US. This is an issue that the Committee will have to confront and address.
Finally, the claims of Intelligence Organisations to absolute secrecy are now much less justifiable, particularly in the case of ASIO, because that organisation is no longer restricted to collecting intelligence and now has distinct powers to affect the rights of Australians. In addition, it is not clear to an outsider how the other organisations such as the Defence Signals Organisation, feed into the activities of organisations like ASIO. Absent satisfactory assurances that they do not feed ASIO, their operational activities should also be subject to review.
It is extremely alarming that some parts of our government seem to think they should be protected from scrutiny by the elected representatives of the people of the country. This is an anathema to any Democrat.
In the end, as is the case in the United States, the starting point should be that the Committee is entitled to oversight the operational activities of these organisations. Access to secret material should
be the subject of bargaining between the committee and the executive.
2.3. Cultural Change.
However, it is our submission that none of these changes will make any difference if the Committee continues to function as it has done for the last few years.
In effect, the Committee has worked as a place where the major parties get together and agree on a common position behind closed doors. We acknowledge that negotiations of this type often occur in committees and it has resulted in some of the more extreme edges of recent legislation being knocked off. But this is not sufficient to justify this process. We submit that the Committee has, in recent years, taken on the appearance of the classic smoke filled back room. So much so, however, that the result is that public debate is effectively stymied.
This is one of the reasons why we consider it fundamental, that the membership of the Committee be open to members of Parliament who are not members of the major political parties.
In addition, there has been the predilection of certain members of the Committee to come out in public and argue in favour of positions which are in contention before the Committee. This sort of conduct by committee members can only lead to the conclusion that the Committee has closed its mind to arguments about the proposals before it.
SUMMARY AND RECOMMENDATIONS
1 ASIO in particular is presently looking more and more like a secret police service
2 To arrest this trend the following powers given to ASIO should be repealed – Special Intelligence Operations and Questioning Detention Warrants
3 These powers given to ASIO need to significantly curtailed – Disrupting computers
4 The powers of the PJCIS need to be expanded including by the passage of the Parliamentary Joint Committee on Intelligence and Security Amendment Bill 2015
5 The PJCIS ought to be allowed to oversight the operational activities of the intelligence organisations.
5 The most fundamental reform the needs to be made to the PJCIS is to allow non major party members on to it so that it no longer appears to function simply as a place for the major parties to do deals.
6 The IGIS should be given the power to conduct unannounced inspections
7 Provision should be made for the IGIS to report annually on the adequacy of his or her budget.
We trust this is of assistance to you in your deliberations
[1] at paragraph 103
[2] In paragraph 108 of the judgement
[3] in paragraph 111
[4] para 121
[5] Or monitory democracy as it is called Keane The Life and Death of Democracy Pocket Books 2009 pages 713-6
[6] Crick In Defence of Politics 5th ed 2000 Continuum chapt 5
[7] O’Connell The Architecture of Smart Intelligence 94 California Law Review 1655 at 1698 (2006)
[8] ibid 1696-7
[9] Frederick M Kaiser A Joint Committee on Intelligence 25 August 2004 page 2 Congressional Research Service
[10] Wills and Vermeulen Parliamentary Oversight of Security And Intelligence Agencies in the European Union 20/6/11 see Table 1 at pages 120-3 – a report requested by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs
[11] L. Elaine Halchin and Frederick M. Kaiser Congressional Oversight of Intelligence: Current Structure and Alternatives May 14, 2012 published by the Congressional Research Service and O’Connell opcit page 1698.
[12] Quoted in Kitrosser Free Speech and the Leaky Ship of State 6 Journal of National Security Law & Policy 409 at page 428 where similar views by other respected figures in the world of American Intelligence are quoted and see also Brennan Center for Justice Strengthening Intelligence Oversight 2015 at pages 16 and 17.