On John Faulkner’s paper: Surveillance, Intelligence and Accountability

Australian Labor Party (ALP) backbencher John Faulkner has just published a paper: Surveillance, Intelligence and Accountability: an Australian Story. It gives a detailed history of Australian intelligence agencies, outlines problems with their oversight mechanisms, and proposes several reforms.

It’s a good paper and I’m quite excited by it. It comes as the Coalition Government is rushing three sets (or “tranches”) of extensive new national security legislation (some needed, some not) through Parliament, that increases the powers of security agencies and poses risks for press freedom.

This counter-terrorism approach had recieved largely uncritical support from the ALP. However, as the Saturday Paper recently reported, sections of the ALP are regretting this support and pushing back.

Anthony Albanese expressed worries about the reach of the National Security Legislation Amendment Bill’s impact on press freedom, though only after it had been passed. Shadow Attorney General Mark Dreyfus is calling for a greater oversight role by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) to keep a check on how the legislation is used. The PJCIS (a bipartisan committee, but one that contains three ALP shadow ministers: Wong, Plibersek and Conroy) also asserted a stronger role for itself in its response to the Counter Terrorism Legislation Amendment Foreign Fighters Bill (the Government’s second set of new national security legislation). Several Labor MPs are expressing concern about data retention, which will be the Government’s third set of national security legislation.

Faulkner’s proposed reforms are the latest example of this discontent within the ALP.

Faulkner proposes eight reforms, summarised here, which include ways to improve current oversight mechanisms (the PJCIS, the Inspector-General of Intelligence and Security and the Independent National Security Legislation Monitor), shortening the sunset clauses on contentious legislation, and launching an independent review into accountability arrangements.

I would add a further point. Faulkner’s proposals mainly address oversight mechanisms, but another crucial element of accountability is transparency. The proposed review should not just examine oversight, but also address what scope there is for greater transparency. As I’ve argued before:

Intelligence agencies of course have to be more secretive than other parts of the public service, but Australia’s agencies have a level of secrecy that exceeds those in similar countries. For example, ASIO and other agencies have blanket 20–30 year exemptions from Freedom of Information (FOI) legislation, which the Australian Information Commissioner, John McMillan, currently opposes. In a submission to a review of FOI laws he pointed out that (PDF) in ‘other jurisdictions, including New Zealand and the United States, intelligence agencies are covered by FOI legislation’.

This difference allows journalists and academics in such other jurisdictions to obtain much more information about what their intelligence services do. For example, terrorism researcher J. M. Berger has written detailed accounts of the CIA’s investigations into al Qaeda from 1991 to 2003 and the FBI’s infiltration of far-right extremist groups (PDF) in the 1990s, based substantially on documents acquired through America’s FOI legislation. Comparable research into Australian agencies is almost impossible.

The problem goes beyond the intelligence services, as Australia generally has excessive secrecy on national security matters. For example, Australia’s military secrecy goes well beyond that of our allies. Lowy Military Fellow James Brown has noted (PDF) that Defence’s annual reports are ‘less transparent and detailed than similar defence reporting in the UK, US, Canada, and New Zealand’.

The limited transparency contributes to the lack of well-informed debate. Whenever a public controversy breaks out (such as on Julian Assange, Ben Zygier, Mamdouh Habib, possible spying on anti-coal activists, data retention proposals, and now whether Australia receives PRISM data), the lack of publicly available information means that neither side’s claims can be critically assessed. Instead, each side becomes entrenched in their positions, the media publish with what they have and move on, and much of the public remains indifferent.

So transparency, where feasible, also needs to be part of the discussion on intelligence accountability in Australia. Even so, Faulkner’s paper is one of the best contributions to this debate to come from a politician in years. Be sure to read it.

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