The findings of the recently released public version of the 2011 Independent Review of the Intelligence Community Report
are largely positive. The report cites significantly greater access to information from overseas, improved capability, and increased performance among the variety of developments in the operations of Australia’s intelligence agencies in the ten years since 2001, and concludes that the significant investment in the agencies over that period has paid off. However, while the public version of the classified report is necessarily framed in broad terms, it is possible to read between the lines to identify some of the issues that are likely to have been expanded upon in the classified version. In particular, it seems that interoperability and cooperation between the Australian Intelligence Community (AIC) and other agencies making up the broader National Security Community is still in need of some improvement.
The Review covers six key issues and fulfils a recommendation of the 2004 Inquiry into Australian Intelligence Agencies
(Flood Review) that Australia’s intelligence community should be externally reviewed every five to seven years. The Review acknowledges the important role the intelligence agencies play in supporting the operations of other agencies with a national security function, such as the Department of Foreign Affairs and Trade, the Department of Immigration and Citizenship, the Australian Customs and Border Protection Service, and law enforcement agencies, and states (on p. 21) that while these operational relationships are ‘working well’, ‘the intelligence agencies should continue with their efforts to improve the way they work with the broader National Security Community’. The Review does not specify which aspects of the way in which the AIC works with its partner agencies are in need of further improvement, but such statements recall, for example, the interoperability problems experienced between the Australian Security Intelligence Organisation (ASIO) and the Australian Federal Police (AFP) in the 2003 investigation of Izhar ul‑Haque for terrorism offences.
Issues of cooperation and communication between the AIC and the broader National Security Community (particularly between ASIO and the Australian Federal Police) have been examined and found wanting on several previous occasions dating back to at least 2004. While it was not a key focus of the Flood Review, the relationship between ASIO and the AFP was given some consideration in the resulting report. While recognising the developing relationship between the agencies, which the agencies themselves characterised as ‘never closer’, Flood considered there remained some significant challenges in balancing the needs of the intelligence and law enforcement communities, particularly with respect to electronic connectivity and the use of intelligence for prosecutions.
The relationship was scrutinised more intensely following the failed prosecution of Mr ul‑Haque in early November 2007. In R v Ul-Haque
 NSWSC 1251, the Commonwealth Director of Public Prosecutions (CDPP) withdrew its case after evidence relating to admissions allegedly made by the defendant was ruled inadmissible in pre‑trial hearings due to the conduct of ASIO and AFP officers during the investigation.
On 22 November 2007, the AFP Commissioner appointed a committee to ‘review and report on the AFP’s national security operations and the effect of the interaction between the AFP and its national security agency partners in relation to those operations’. Released in March 2008, The Street Review—a review of interoperability between the AFP and its National Security Partners
(Street Review), recommended a range of measures to improve interoperability and information sharing, and build mutual trust and confidence between the AFP and ASIO. Measures included:
- the establishment of a committee comprising the AFP, ASIO and the CDPP to ensure issues relevant to national security, strategic priorities and interoperability are reviewed and resolved on a regular basis (recommendation 1)
- adoption of a Joint Operations Protocol between the AFP and ASIO (recommendation 2)
- full-time attachment, physical co-location and participation of ASIO officers with AFP Joint Counter-Terrorism Teams (JCTTs)(recommendation 4); and
- improved training within each agency on the functions of the other (recommendation 8).
The Street Review acknowledged that the ul-Haque case in particular had ‘highlighted the need for greater interoperability and information sharing between police and the Australian Intelligence Community (AIC), particularly ASIO’, and concluded that although there had been a ‘significant improvement in the conduct and management of multi-agency national security investigations’ since the ul-Haque case, ‘both agencies could do more to ensure that proper efficiency is achieved on a standing basis’.
The Street Review was followed by an own-motion inquiry into the ul-Haque matter by the Inspector-General of Intelligence and Security (IGIS), the report
of which was delivered in November 2008. The IGIS found that despite having to work more closely with each other since 2000, any arrangements and agreements between ASIO and the AFP to ensure their activities did not come into conflict or have foreseeable consequences for the other agency seemed to be informal. He endorsed many of the recommendations of the Street Review (including 1, 2 and 4), and added some of his own. The need for cooperation and interoperability between intelligence and law enforcement agencies was also highlighted in the Report of the Inquiry into the Case of Dr Mohamed Haneef
, released around the same time as the IGIS report.
Law enforcement and intelligence agencies have distinct and complementary functions to fulfil, and this is as it should be. Balancing the different needs of the two communities will be an ongoing challenge. However, given the history of these issues and the raft of recommendations directed at addressing them, it is somewhat troubling that one of the current Review’s conclusions is that ‘The intelligence agencies are also beginning
to work more effectively with the other members of the recently expanded National Security Community’ (p. 22, emphasis added).
Like the Street Review, which ‘did not find any major impediments to the ability or will to improve interoperability between national security agency partners’ (p. iv), the current report, some four years later, states that the Review ‘did not detect any lack of willingness to further develop cooperative working arrangements’ between the AIC and other national security agencies (p. 22). With the issue of interoperability and measures to improve it having been clearly and repeatedly articulated over several years, and there apparently being sufficient will to effect change, it seems reasonable to expect the relationships between the AIC and the broader National Security Community to have reached a more advanced stage by now.
(post co-authored with Nigel Brew)