Timeline of Completed Reviews
Major reviews have been undertaken into intelligence oversight over the last fifty years, including:
1974, 1983 – Hope Royal Commissions;
2011 – Independent Review of the Intelligence Community;
2017 – Independent Intelligence Review (IIR); and
2019 – Comprehensive Review of the Legal Framework of the National Intelligence Community (Richardson Review).
Hope Royal Commissions – 1974 and 1983
The first Royal Commission on Intelligence and Security was announced by then-Prime Minister Gough Whitlam in 1974, and was conducted by Honourable Justice Hope (First Hope Royal Commission). The First Hope Royal Commission examined the national security agencies, their history, administrative structure and functions.
Certain parts of the reports were publicly tabled in the Parliament in October 1977, and many of the originally classified reports were publicly released by the National Archives of Australia in 2008. The First Hope Royal Commission examined ASIO’s functions and structure, the treatment of human sources, ASIO’s capacity to respond to threats, liaison with other government agencies, and the tradecraft and techniques used at the time.
The First Hope Royal Commission led to the revised Australian Security Intelligence Organisation Act 1979, which provided more clarity on the limits of ASIO’s work. The National and International Security Committee of the Cabinet was established after the First Hope Royal Commission, in order to establish a ministerial committee to give general oversight and policy control to the intelligence community. The committee is now known as the National Security Committee of the Cabinet. The Office of National Assessments was also established following a recommendation of the First Hope Royal Commission.
In 1983, Honourable Justice Hope was again commissioned to inquire into the operations, conduct, performance, control and accountability of Australian intelligence agencies (Second Hope Royal Commission). The second inquiry was prompted by the espionage activities of Valeriy Ivanov, uncovered by ASIO.
The Second Hope Royal Commission considered ASIO’s actions and advice in relation to Ivanov, and supported the need for ASIO to refine its internal policies and structure. Justice Hope recommended the establishment of the IGIS, the collection of foreign intelligence in Australia, communication with other intelligence partners and government, and clarification of ASIO’s role in undertaking security assessments for other functions of government.
The IIR considered that the Hope Royal Commissions were ‘the most formative and enduring influences in the history of the Australian Intelligence Community’, and had:
…defined the roles and responsibilities of the intelligence agencies directly in the context of Australia’s national interests, the requirements of the government of the day and the rights of individual Australians. They established the principle of proportionality in relation to the actions of agencies. They specified clear lines of responsibility for Ministers as well as new and appropriately high benchmarks for propriety, accountability under law and oversight of the activities of Australia’s intelligence agencies. Furthermore, they established the centrality of clearly identified national intelligence priorities and the critical role of effective co-ordination in pursuing them.
Flood Review - 2004
In March 2004, then Prime Minister the Hon John Howard MP requested Philip Flood to conduct an inquiry into the Australian Intelligence Agencies. This inquiry followed the report on the inquiry into intelligence on Iraq’s weapons of mass destructions by the Parliamentary Joint Committee on ASIO, ASIS and DSD (PJCAAD) (the former name for the PJCIS).
The Flood Review was asked to focus on Australia’s foreign intelligence agencies (ASIO, ASIS, DIO, DSD, the Defence Imagery and Geospatial Organisation and ONA) and provide advice on:
oversight and accountability mechanisms for intelligence agencies, including relating to prioritising, assigning resources to priorities, and delivery of advice to government;
the structure of the agencies, how they communicate and divide labour;
the contestability of intelligence assessments; and
the resourcing of intelligence agencies, but particularly the ONA.
The inquiry considered the relationship between agencies and ASIO, but because of the terms of reference for the inquiry, did not inquire into domestic security arrangements.
The report noted that, in the previous four years, the intelligence budget had doubled to more than $650 million, and seen a rise in staff numbers by 44 per cent. The increase in global terrorism, security issues in the region and the use of Australian forces were considered to have brought ‘security to centre stage’. The Flood Review said that ‘Intelligence is a key element in Australia’s response to this changed environment’. With the increased investment in intelligence, public scrutiny and expectation had also grown:
Public interest—and concern—has been fuelled by intelligence failures on Iraq’s weapons of mass destruction, and the failure to prevent either the September 11 attacks or the Bali bombings. Intelligence successes, such as uncovering terrorist networks in South East Asia and helping to disrupt planned terrorist attacks, receive little or no publicity, and must remain secret to protect intelligence capability, leaving an impression that is unbalanced.
The review found that the intelligence agencies were performing well overall, and had adapted to the major challenges of the previous four years. The review said that oversight and accountability of intelligence agencies ‘is critically important for a healthy democracy’, and that ‘the more relevant intelligence becomes to government, the greater the need and public demand for strong and transparent oversight and accountability’.
The Flood Review did not recommend significant changes to the structure of the intelligence community, but did recommend wide-ranging recommendations to improve accountability and management. Major outcomes of the report were a stronger coordination and evaluation role for the ONA, new responsibilities for the Department of Prime Minister and Cabinet (PMC) to advise on the performance, priorities and resources of the AIC, and an annual review process for ONA to be conducted by PMC.
The review recommended the expansion of the PJCAAD to all intelligence agencies:
In particular, greater parliamentary scrutiny is necessary to enhance public confidence in Australia’s intelligence agencies. Because security issues will preclude full parliamentary scrutiny of the operations and output of the intelligence agencies, the role of the [PJCAAD], extended to cover all agencies, should be supplemented by periodic external review.
The external review of AIC agencies was recommended to occur every 5 to 7 years.
The review noted the introduction of the IS Act, the expansion of the Parliamentary Joint Committee from ASIO to include ASIS and DSD, and the role of the IGIS.
Independent Review of the Intelligence Community - 2011
The next comprehensive review of the AIC after the Flood Review was the 2011 Independent Review of the Intelligence Community (Independent Review). Then Prime Minister the Hon Julia Gillard MP announced the review in December 2010, with Mr Robert Conall AO and Dr Rufus Black appointed to lead the review.
The terms of reference for the review included consideration of how the AIC was positioned to support Australia’s national interests, how the AIC had developed over the previous decade, how the agencies worked together and with international partners, arrangements and practices for collaborative work within the AIC, and resourcing.
The Independent Review also found that the intelligence agencies were performing well, and noted the significant growth of the previous decade. The major findings were that Australia was safer than it would have been without the effort of intelligence agencies, that Australia’s intelligence capability had contributed to global security, that Australia’s intelligence capabilities were commensurate with growing security challenges, and that the basic AIC structure was appropriate.
The Independent Review found that the balance between security and other rights is sound, and considered the ‘significant safeguard’ that had been brought in:
A number of safeguards regulate or are built into Australia’s anti-terrorism laws and their application. They include:
• General oversight by Ministers of intelligence agencies within their portfolios
• The requirement for specific ministerial approval or authorisation before a number of actions can be taken by particular agencies
• Oversight by the Inspector-General of Intelligence and Security
• Oversight by the Parliamentary Joint Committee on Intelligence and Security
• Oversight by the courts if the legality of a particular action is challenged, and
• Internal training, supervision, monitoring compliance with corporate directions and policies with a strong emphasis on adhering to ethical standards.
The review noted that although not part of the AIC, other agencies ‘make significant intelligence contributions in their own areas of operation’, including the AFP, then-Australian Crime Commission, then-Australian Customs and Border Protection Service, the Department of Foreign Affairs and Trade and the then-Department of Immigration and Citizenship.
Independent Intelligence Review - 2017
The IIR was announced by former Prime Minister, the Hon Malcolm Turnbull MP, on 7 November 2016. The IIR’s terms of reference set out that the review would focus on: the Office of National Assessments (ONA), the Australian Security Intelligence Organisation (ASIO), the Australian Signals Directorate (ASD), the Defence Intelligence Organisation (DIO) and the Australian Geospatial-Intelligence Organisation (AGIO).
The review would also ‘examine the relationship and engagement between those agencies and the members of the broader National Intelligence Community’, including the Australian Federal Police (AFP), the Department of Immigration and Border Protection (DIBP) , the Australian Criminal Intelligence Commission (ACIC), and the Australian Transaction Reports and Analysis Centre (AUSTRAC). The review was conducted by Michael L’Estrange AO and Stephen Merchant PSM.
The IIR called for submissions, and consulted with intelligence agencies, ministers, members of the opposition, government departments and other relevant parties. Consultation was also conducted with the IGIS and intelligence agencies and colleagues in Five Eyes.
A major focus of the review was on how key aspects of Australia’s security environment, and nature of security threats, has changed, and whether the Australian Intelligence Community (AIC) was appropriately structured and resourced to serve Australia’s national interests.
The Department of Prime Minister and Cabinet (PMC) established a secretariat to undertake the review and provided logistics support for the review.
The IIR was finalised in June 2017 and made publicly available in July 2017. It said that Australia’s intelligence agencies were strong performers with skilled staff, and had performed well ‘particularly in the areas of counter-terrorism, support to military operations and assistance in addressing the issue of people smuggling’. Although the IIR noted the necessity for the work undertaken by intelligence agencies to remain secret, it highlighted the importance of robust oversight and accountability measures:
It is critical in a democracy that intelligence agencies are subject to strong oversight and accountability mechanisms. Indeed, oversight of intelligence services is a central tenet of the ‘state of trust’ between intelligence services and the community of which they are part. A critical element of this ‘state of trust’ is the understanding that agencies provide intelligence which contributes to safeguarding national interests and the lives of citizens and that, in doing so, those agencies act with propriety, legality and proportionality, are responsive to Ministerial direction and control, and are accountable for their activities.
The report also noted that the ‘traditional means’ of oversight were not applicable to intelligence agencies, which meant that intelligence agencies required ‘purpose-designed, strong institutional safeguards and arrangements’.
The IIR noted that although the agencies performed well individually, structural changes would promote a stronger collective performance. The IIR recommended changes to the:
…co-ordinating structures of our intelligence community, new funding mechanisms to address capability gaps, the streamlining of some current legislative arrangements, and measures to further strengthen the state of trust between the intelligence agencies and the Australian community of which they are part.
Coming challenges to be faced by the national intelligence community were identified as:
new forms of rivalry and competition among states;
the threat posed by extremism with global reach; and
the implications of accelerating technological change.
The changing nature of the threats to Australia would challenge the existing intelligence structure, which were based on the principles set out in the Hope Royal Commissions. The IIR noted the delineations made by the Hope Royal Commissions, ‘between foreign and security intelligence, intelligence and law enforcement, intelligence collection and assessment, and intelligence assessment and policy formulation’. The IIR, however, highlighted the need for greater levels of collaboration and cross-over point in Australia’s ‘future security environment’.
The IIR proposed the National Intelligence Community (NIC) include the ‘traditional’ members of the intelligence community and adding the ACIC and intelligence functions of other agencies. The IIR said that due to the increased cooperation between agencies within the NIC, it was appropriate to have a consistent oversight mechanism in place, and recommended that the IGIS and PJCIS oversee the intelligence functions of the four additional agencies which make up the NIC.
The IIR noted that oversight of an increased number of agencies would place demands on the existing oversight bodies, and recommended increased funding for the IGIS.
Establishment of the Office of National Intelligence
The IIR noted the Five Eyes model of a single point of co-ordination for intelligence communities, and recommended that Australia develop a similar co-ordination point. The IIR’s major recommendation was the establishment of the Office of National Intelligence (ONI), to be within the Prime Minister’s portfolio. The ONI would be led by a Director-General who would be the principal adviser to the Prime Minister on matters relating to the national intelligence community. The Director-General would not direct the activities of agencies, but would ensure co-ordination and that ‘there are appropriately integrated strategies across the suite of agency capabilities’.
The ONI would take the place of the ONA, and would be responsible for enterprise-level management of the national intelligence community, including:
leading the development and implementation of national intelligence priorities;
undertaking systematic and rigorous evaluation of the performance of the agencies;
implementing strategic workforce planning and facilitating joint capability planning, including for the development of an environment for enhanced data sharing and collaborative analysis.
The Office of National Intelligence Act 2018 (ONI Act) was passed in November 2018, and the ONI came into being in December that year. Under the ONI Act 2018, the ONI leads the NIC and has an evaluation function for agencies within its remit, including an intelligence agency or agency with an intelligence role or function. The ONI Act defines agency with an intelligence role or function to include AUSTRAC (within the meaning of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006), the AFP, the Department of Home Affairs, and the Defence Department (other than AGO and DIO) to the extent that they have intelligence capabilities.
Expansion of oversight for the National Intelligence Community
The IIR recommended that oversight and accountability arrangements be expanded to provide the IGIS and PJCIS with a broader remit which would include the ten agencies the IIR considered to ‘properly constitute the national intelligence community’. Of the ten agencies, it was recommended that oversight of the AFP, DIBP and ACIC be limited to their intelligence functions.
The IIR recommended that the IGIS be allocated additional funding to enable it to have a full-time staff of around 50 to allow oversight of the ten NIC agencies.
Increased resourcing for the IGIS was allocated in the 2018-19 Budget, in line with the IIR recommendation, in order to allow for an expanded oversight role of additional agencies and additional powers to existing agencies. The IGIS was allocated an additional $52.1 million over five years, including funding to expand the office from 17 to 55 full-time equivalent staff, and cover commercial rent, IT systems, and secure fit-out costs for new premises.
The IIR highlighted the work of the PJCIS, and said that the ‘reviews undertaken and reports produced by the PJCIS are vitally important accountability mechanisms for the intelligence agencies’, and recommended that the role of the PJCIS be expanded, with amendments recommended to relevant legislation to include:
a.
a provision enabling the PJCIS to request the Inspector-General of Intelligence and Security (IGIS) conduct an inquiry into the legality and propriety of particular operational activities of the National Intelligence Community (NIC) agencies, and to provide a report to the PJCIS, Prime Minister and the responsible Minister;
b.
a provision enabling the PJCIS to review proposed reforms to counter-terrorism and national security legislation, and to review all such expiring legislation;
c.
provisions allowing the PJCIS to initiate its own inquiries into the administration and expenditure of the ten intelligence agencies of the NIC as well as proposed or existing provisions in counter-terrorism and national security law, and to review all such expiring legislation;
d.
provisions enabling the PJCIS to request a briefing from the Independent National Security Legislation Monitor (the Monitor), to ask the Monitor to provide the PJCIS with a report on matters referred by the PJCIS, and for the Monitor to provide the PJCIS with the outcome of the Monitor’s inquiries into existing legislation at the same time as the Monitor provides such reports to the responsible Minister; and
e.
a requirement for the PJCIS to be regularly briefed by the Director-General of the Office of National Intelligence, and separately by the IGIS.
The IIR said that expanding the role of the PJCIS to initiate inquiries into the operational activities of intelligence agencies was not required given the role of the responsible Ministers to judge the effectiveness of operations.
Other major recommendations
Other major recommendations included the establishment of a Joint Capability Fund, to support shared capabilities for use across the NIC, to complement the fund with an Intelligence Capability Investment Plan, and to establish the ASD as a statutory authority. Integration-strengthening recommendations were also made to amend the legislative framework, including amendments to the Ministerial authorisation (MA) regime in the Intelligence Services Act 2001 (ISA). A comprehensive review of the relevant acts which govern the intelligence community was also recommended.
Comprehensive Review of the Legal Framework of the National Intelligence Community - 2019
In 2019, the Australian Government commissioned Mr Dennis Richardson AC to undertake a comprehensive review of the NIC’s legal framework. The Richardson Review examined the effectiveness of the legislative framework which governs the NIC, and prepared findings and recommendations for reforms. The terms of reference for the review were broad, and included:
legislation relating to the six members of the AIC, as well as the intelligence functions of the AFP, ACIC, AUSTRAC and Department of Home Affairs;
the distinction between intelligence collected on- and off-shore, and between Foreign Intelligence and Security Intelligence;
a common legislative framework;
improvements to the NIC legislation to enable cohesive effort; and
legislation related to oversight.
The Attorney-General’s Department supported the review through a Secretariat.
A classified version of the report was provided to the Australian Government, and an unclassified report published in December 2020. The public version of the report made 203 recommendations. Some chapters, text and recommendations were redacted from the unclassified version of the report. Some text was amended to avoid reference to classified material. Thirteen recommendations were classified.
The Richardson Review was the ‘first and largest since the Hope Royal Commissions considered the Australian Intelligence Community’, and had broad terms of reference including legislation establishing the NIC agencies’ functions, powers and oversight. The Richardson Review also considered the frameworks ‘cooperation, coordination and information sharing within the NIC’.
The establishment of the NIC brought together ‘those agencies that need to work closely together in the national interest’, although the AFP, AUSTRAC and Department of Home Affairs are not intelligence agencies, and perform a range of regulatory and law enforcement responsibilities. The Richardson Review reinforced that, due to the broad nature of the NIC, the same level of consistency could not apply to the NIC as to the AIC.
The Richardson Review highlighted the complexity of the legislative framework governing intelligence and security, noting that there are a number of Acts the agencies must interpret and act on and that each of these Acts is complex and lengthy. Further, the ‘majority of growth in the legislative framework has taken place following the terrorist attacks of 11 September 2001’. More than 124 Acts amending legislation relevant to the NIC have been passed by the Parliament between 2001 and 2019.
Major recommendations
A common legislative framework to govern all or some NIC agencies was not recommended, due to the diversity of NIC agency functions and the significant investment and time such a framework would require.
The Richardson Review made a number of major recommendations for reform, including:
recommendations relating to ministerial authorisations, warrants and delegation powers;
legislation should continue to distinguish between foreign intelligence and security intelligence, on- and off-shore intelligence, and Australians and non-Australians;
major reform relating to electronic surveillance, including the suggested repeal of the TIA Act, Surveillance Devices Act 2004 and parts of the Australian Security Intelligence Organisation Act 1979, to be replaced with a single new Act to govern the use of electronic surveillance powers;
amendments to legislation to allow the Director-General of Security to seek a warrant, on request from the Foreign or Defence Minister, from the Attorney-General, for the collection of foreign intelligence on an Australian person acting for a foreign power;
recommendations relating to open source information collection and the Open Source Centre;
the establishment of AGO as a statutory agency; and
recommendations relating to foreign relations risks.
Recommendations Relating to Oversight
The delicate balance of transparency and necessary secrecy was noted in the Richardson Review:
Intelligence agency oversight, by its nature, differs from oversight of other government agencies. Intelligence oversight in democracies must grapple with a permanent conundrum: how to provide democratic control of those government functions and agencies which are necessary for the state’s security but which must also operate—to a certain extent—in secrecy.
…
Intelligence oversight must balance the transparency and accountability required for open government with appropriate secrecy to support agencies’ operational effectiveness. Intelligence oversight therefore requires unique, purpose-built architecture.
The Richardson Review found that the NIC’s oversight system is ‘strong, effecting and working well’ and did not find a need for substantial reform of the system, and said that the IGIS and Commonwealth Ombudsman are independent, with access to strong powers. The review also noted the INSLM and Independent Reviewer of Adverse Security Assessments as playing important roles in ensuring transparency and accountability.
The IIR’s recommendation that the PJCIS be able to request the IGIS to conduct operational inquiries and report findings was endorsed. The Richardson Review said:
If implemented, the recommendation would give the PJCIS a more active role in agency oversight, facilitating matters of public concern being brought to the IGIS’ attention, increasing the PJCIS’s visibility of the IGIS’ review of such matters. We consider this will enhance already strong oversight arrangements while maintaining the complementary but distinct roles for executive and parliamentary oversight.
The Richardson Review did not endorse the IIR’s recommendation that the role of the IGIS be expanded to apply to all ten NIC agencies, and said that there was a risk of confusion if oversight was extended:
A ‘one size fits all’ approach is not necessary for effective oversight. To the extent that the AFP engages in intelligence collection activities, it does so in support of its police functions, with the activities dispersed and embedded across the AFP.
Indeed, given the oversight arrangements already in place for the AFP, there is a serious risk of real confusion. We also see no deficiency in the oversight of Home Affairs and question the value of adding another oversight body. There is, however, a stronger case for IGIS oversight of the ACIC and AUSTRAC’s intelligence activities.
The review noted that the Commonwealth Ombudsman’s jurisdiction extends to all NIC agencies except ASIO, and that, by convention, the Ombudsman does not exercise its jurisdiction over the AIC agencies.
Further, the Richardson Review said that agencies were consulting the IGIS early on questions of legality and propriety. Although consultation is important, the review said that this could lead to a duplication of assessment:
…it also risks placing the IGIS in the difficult position of considering, even if only in a preliminary and informal way, a proposed activity and subsequently reviewing the same activity to assess its legality and propriety. Too often some agencies are looking to the IGIS when they should be seeking independent legal advice from the Australian Government Solicitor.
The review noted the IIR’s recommendations relating to the PJCIS, and agreed with some recommendations:
make explicit in legislation the PJCIS’ power to review proposed reforms to counter-terrorism and national security legislation, and to enable it to review all such expiring legislation (recommendation 23(b))
enable the PJCIS to initiate its own inquiries (recommendation 23(c))
enable the PJCIS to request a briefing from the Independent National Security Legislation Monitor (INSLM), and ask the INSLM to report on matters referred by the PJCIS and provide the PJCIS with the outcome of the INSLM’s inquiries into existing legislation at the same time as the INSLM provides such reports to the responsible minister (recommendation 23(d)), and
require the PJCIS to be regularly briefed by the Director-General of ONI and separately by the IGIS (recommendation 23(e)).
Retaining the IGIS’ remit for operational oversight was favoured by the Richardson Review, and would remove the risk of duplication of inquiries by the IGIS and PJCIS:
Giving the PJCIS a role in operational oversight, even with limitations, would involve a duplication as both the IGIS and the PJCIS would require facilities and staff to deal with the highly-classified material needed for effective operational oversight.
The review noted arguments that the size and powers of the NIC has increased in the last two decades, the key oversight mechanisms have not changed at the same pace. However, the review said that key oversight bodies have been expanded to respond to the changes.
Ultimately, the Richardson Review did not concur with the IIR recommendation for the expansion of the role of the PJCIS, and recommended that:
The remit of the Parliamentary Joint Committee on Intelligence and Security should not be expanded to include direct oversight of operational activities, whether past or current.
The Richardson Review recommended that publicly-available guidelines for oversight of the NIC should minimise duplication:
171.a Legislation should clearly state oversight bodies’ jurisdiction.
171.b Any duplication in oversight jurisdiction should be minimised where possible, while recognising that the elimination of all overlap would also give rise to unintended gaps.