Last Friday, Prime Minister Anthony Albanese announced the next Independent Intelligence Review, to be conducted by two former senior figures from the Office of National Assessments (before it became the Office of National Intelligence) with a range of academic and public service credentials. This review will no doubt be worthwhile, but it also marks a missed opportunity.
Australia’s recent tradition of routine Independent Intelligence Reviews, distinct from the earlier tradition of Royal Commissions into intelligence matters, began with the 2004 Flood Review which resulted from scandals over the weapons of mass destruction (WMD) claims used to justify the 2003 invasion of Iraq.
The short version of the story is that political controversy in the invasion’s aftermath led the Parliamentary Joint Committee on ASIO, ASIS and DSD (PJCAAD, now the PJCIS) to review the basis for the Howard government’s claims that Saddam Hussein had reconstituted his WMD programs. The Committee’s report was damning. It accused the government of making public claims that went much further than the assessments made by Australia’s intelligence agencies.
The Howard government had to manage this embarrassment by shifting blame back on to the intelligence agencies, by misleadingly treating the report as less critical than it was. The government appointed Philip Flood, former Director General of the Office of National Assessments and former Secretary of the Department of Foreign Affairs and Trade, to review the intelligence agencies’ assessments and other issues.
While the Howard government’s decision was in all likelihood partly motivated by wanting to maintain the narrative that the problems lay solely with the intelligence themselves rather than how the government had used the intelligence, the Flood Review was valuable and started a new tradition.
Its final report recommended a new review every five or so years, leading to the 2011 Cornall-Black Review and the 2017 L’Estrange–Merchant Review. These last two reviews effectively established a norm that each review will have two reviewers and be a bit more than five years apart.
The scope of these reviews has since grown, matching the growth of the intelligence community. These earlier reviews covered the six members of what was then called the Australian Intelligence Community (AIC): the Defence Intelligence Geospatial Organisation (DIGO), the Australian Secret Intelligence Service (ASIS), the Australian Security Intelligence Organisation (ASIO), the Defence Signals Directorate (DSD), the Defence Intelligence Organisation (DIO) and the Office of National Assessment (ONA).
The new review will cover all ten members of what is now called the National Intelligence Community (NIC): the Australian Criminal Intelligence Commission (ACIC), the Australian Federal Police (AFP), the Australian Geospatial-Intelligence Organisation (AGO), the Australian Secret Intelligence Service (ASIS), the Australian Security Intelligence Organisation (ASIO), the Australian Signals Directorate (ASD), the Australian Transaction Reports and Analysis Centre (AusTrac), the Defence Intelligence Organisation (DIO), the Department of Home Affairs (presumably including Australian Border Force’s intelligence functions) and the Office of National Intelligence (ONI).
The terms of reference require the reviewers to examine changes resulting from the 2017 L’Estrange–Merchant Review and the 2020 Richardson Review. This latter review (the terms of reference call it the 2019 Comprehensive Review but I am naming them by their reviewers and dating them by when their reports were released) did not examine the performance of the NIC, it examined the legislation that covers all ten entities. It is the longest such review I have seen (it begins with a statement that few people will be likely to read the whole thing) but it’s an invaluable resource for anyone interested in the area and appears to have had a lot of influence behind the scenes.
The new Review’s terms of reference also cover other issues, including the NIC’s preparedness in case of conflicts or crises in Asia (not covered in earlier Independent Intelligence Reviews), whether the NIC is positioned by help the Australian government address the challenges raised by recent defence and security reviews (like the 2023 Defence Strategic Review) the suitability of the information classification system, the (many) outstanding legislative matters from the 2020 Richardson Review, and workforce challenges including diversity and inclusion. Several of these issues (namely the Defence Strategic Review and workforce issues) were raised in a recent ASPI report and it would not be surprising if that influenced the terms of reference.
The final term of reference is to address whether “current oversight and evaluation mechanisms are effective and consistent across the NIC.” It is on this point that the new Review misses an opportunity. The terms of reference could include addressing recent scandals that detract from the NIC’s social license, most prominently the Timor-Leste spying scandal.
Similarly, the appointment of two former intelligence insiders will inevitably detract from the public credibility of the review’s oversight recommendations (and for addressing any scandals if they had been included in the terms of reference).
The new Independent Intelligence Review will be conducted by Dr Heather Smith and Richard Maude. Dr Heather Smith is the former Deputy Director-General of the Office of National Assessments (now the Office of National Intelligence) and again a professor at the Australian National University’s National Security College. Richard Maude is the former Director-General of the Office of National Assessments and the Executive Director of Policy at Asia Society Australia.
Both are no doubt highly qualified (of the two, I’m most familiar with the public work of Richard Maude, you can hear him interviewed in many episodes of the excellent Australia in the World podcast).
However, the norm of having two reviewers provides an ideal opportunity for appointing one former intelligence insider (for greater credibility within, and expertise drawn from, the NIC) and one outsider such as a judge (for credibility beyond the NIC).
There is a clear precedent for this with Justice Robert Hope’s appointment for two Royal Commission’s into the intelligence agencies, along with chairing the Protective Security Review after the 1978 Hilton Bombing. The rationale was that appointing someone from a judicial background would strengthen public confidence that their tasks were being carried out with independence. Justice Hope directly addressed many scandals that ASIO was implicated in, with his findings sometimes vindicating critics and sometimes humiliating critics.
Starker examples include decisions to appoint judges to run ASIO itself, such as Ben Chifley appointing South Australian Supreme Court Justice Geoffrey Reed as ASIO’s first Director-General or Malcolm Fraser appointing High Court Justice Edward Woodward as Director-General to ensure that Hope’s proposed reforms were implemented.
The value of this can be recognised without having to view intelligence agencies as something sinister. Regular readers of this blog will know that I do not tend to have unfavourable views of Australian intelligence services.
Indeed, intelligence agencies are often unfairly blamed for things that are mainly the fault of political leaders. I have argued for strengthening accountability mechanisms, but more from a position of inherent liberal democratic principles and boosting public confidence than a suspicion that the agencies are up to all sorts of dodgy things.
As for the possibility that dodgy things are indeed happening, it is far better to be extra zealous in trying to stay ahead of any misconduct rather than risk failing to act and allowing misconduct to massively escalate over time, which tragically happened with the war crimes uncovered by the Brereton inquiry into the Special Forces community. The Chief of the Defence Force was unambiguous on this point, declaring that:
[o]versight mechanisms, such as legal reviews, operational assessments and inquiries took place, but they were not sufficiently rigorous or independent. Individuals and processes were either suborned into the culture that had emerged, obstructed by it or frustrated by the silence it bred.
One way to help pre-empt the risk of anything similar in the intelligence community (which is extremely different from the Special Forces, but necessarily as secretive) would be allowing outsiders to play a part in reviewing oversight mechanisms.
This is not to suggest that former insiders are not independent thinkers, do not have highly valuable expertise, or do not perform these reviews well. It makes sense that “at least one reviewer should have detailed knowledge of, and experience within, Australian intelligence.” The point is that intelligence oversight can benefit from a careful mix of outsiders and former insiders, and that the external credibility that outsiders bring is important for liberal democracy.
At the very least, appointing too many former insiders makes the Independent Intelligence Reviews look less independent.
In the broader national security context, the Victorian Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers (in response to the 2017 Brighton Siege) achieved the balance well with a former Police Commissioner (Ken Lay) and a former judge (David Harper). Similarly, those appointed as Independent National Security Legislation Monitors have often been national security outsiders. Former judge Anthony Whealy conducted the Council of Australian Government’s 2012 Review of Counter-Terrorism Legislation.
However, the recent intelligence reviews have tilted heavily in the direction of former insiders, in contrast with the pre-9/11 era. For example, Dennis Richardson from the 2020 Richardson Review was a former ASIO Director-General and Merchant from the 2017 L’Estrange–Merchant Review was a former DSD Director.
This would have been a good time to restore some balance by appointing at least one outsider (ideally from a judicial background in the Hope tradition) for the new Independent Intelligence Review. The decision to appoint two former insiders, and not include recent scandals in the terms of reference, represents a missed opportunity.