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Watching the watchers: intelligence oversight in Australia

Image Credit: Jonathan McIntosh (Flickr: Creative Commons)

The government has commissioned an independent inquiry into the Australian intelligence community which is set to produce a final report in the first half of 2017. This is consistent with the findings of the latest inquiry in 2011 which recommended that there should be a periodic investigation into the Australian Intelligence Community occurring every five years. Considering that our intelligence agencies, particularly our domestic security intelligence agency, have enjoyed a raft of new powers since the last review and are courting more, the adequacy of the current oversight and accountability framework should be given particular attention this time round.

In particular there have been calls for an assessment of whether parliament should have an oversight role larger than that currently provided by the Parliamentary Joint Committee on Intelligence and Security (PJCIS), which is limited to investigating issues of administration and budget of our Intelligence agencies. Actual operations and complaints are overseen by an independent statutory body the Inspector General of Intelligence and Security (IGIS).

With what may seem to be a reasonable division of responsibility, it may not be obvious how our current watchdog system could benefit from greater powers of scrutiny especially when our intelligence oversight arrangements are more or less in line with international best practice. However, when comparing the Australian system to those of other members of the Anglosphere where parliament oversees intelligence operations, such as in Britain and the United States, we see a relative deficit of accountability and insurance measures against abuses of power.

US Congress, for instance, operates a number of bodies that scrutinise the activities and covert actions of the domestic and foreign intelligence services of the United States, a freedom not enjoyed by our equivalent parliamentary committee. Furthermore, Australia lacks the constitutional protection afforded to American citizens by the fourth amendment which prohibits unreasonable searches and seizures.

Another crucial distinction to be made between our system and those of many of our allies is the level of transparency. While a measure of secrecy is of course necessary for the successful function of our intelligence services, that our agencies are exempted from freedom of information legislation, unlike in a number of other liberal democracies such as the US and New Zealand, suggests a level of secrecy that may not be entirely necessary or beneficial. Indeed, investigative journalism has long been a tool of holding government to account. Making this job frustratingly difficult if not impossible in matters of intelligence unreasonably deprives Australia of a robust public oversight enjoyed elsewhere. That these arrangements have not damaged the national security of the United States or New Zealand in any noticeable way indicates that stifling transparency to such a degree when it comes to issues of intelligence in Australia is less than justifiable.

Short of a relaxing of the laws governing transparency in matters of intelligence, a more muscular intelligence oversight capability within parliament is worth considering. Not only will this strengthen our watchdog framework broadly, but it will introduce a measure of contestability into investigations of intelligence activities and operational methods currently undertaken by the IGIS. To be clear, this should not be construed as an indictment of the performance of the office of the IGIS which to date has performed a necessary service effectively. Rather, introducing another layer of operational scrutiny should merely be taken as a step to offset relative deficiencies in intelligence accountability, particularly as the powers of our intelligence agencies grow.

That said, there are dangers that come with excessive oversight that must be avoided. For example, too many bureaucratic bodies involved in a limited number of oversight roles risks a collective action problem whereby the costs of undertaking certain oversight activities may be buck-passed onto another actor. However, such risks are not insurmountable and may be mitigated through effective governance of and communication between the bureaucratic bodies involved in oversight activities. Nor is the Australian watchdog system as susceptible to such shifting of responsibility as is the American system where there is a relative multiplicity of statutory bodies, committees, and working groups all sharing similar oversight duties.

While our intelligence agencies are the most important actors involved in protecting our peacetime national security interests, this does not exempt them from rigorous scrutiny and the powers they wield makes a robust accountability framework all the more necessary. In this way, providing parliament with larger powers of investigation (whether achieved through augmenting the investigative powers of the PJCIS or creating a separate committee entirely) should be given careful consideration in the next intelligence inquiry.

Indeed, the threat of domestic and international terrorism remains potent and the powers granted to our intelligence agencies are largely justified in this context. But it is important to watch for any attempts by actors with authority to move away from arrangements holding them to account, especially in the national security sphere, because there is no going backwards after freedoms have been given away.

Henry Overton holds a Bachelor of Arts and a Bachelor of Asia-Pacific Studies from the Australian National University and has recently completed his honours thesis.

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