One rule for them, no rule for us
The purpose of the Ministers of State (Checks for Security Purposes) Bill 2019 is to establish a mandatory security checking regime for Federal Ministers.
Most people, including many people working within the Federal Government, would be quite surprised to learn that Ministers are not subject to any security clearance process.
It may come as something less than a surprise to find that the Coalition Government and the Labor Opposition are united in resisting any increased scrutiny of Ministers as both unnecessary and undesirable.
Neither Government nor Opposition has indicated any interest in this Bill. Both declared their opposition in the second reading debate that took place in the Senate on 9 July 2019. It was telling that the Committee then conducted its inquiry without any public hearings. Initially no submissions were received from any government agency. Only belatedly did the Department of Home Affairs make a submission.
Prime Minister Scott Morrison has on a number of occasions emphasised that “No one is above the law in this country.” However when it comes to security, the Coalition and Labor appear insistent that there should be one rule for Ministers and another for everyone else.
This self-interested position fails to remedy an obvious gap in Australia’s national security framework and may ultimately prove to be costly to our nation.
Ministers and national security
Ministers occupy positions of the highest trust within the Australian Government. Cabinet Ministers are privy to the most sensitive decisions and information. The National Security Committee of Cabinet considers matters of the highest national security classifications. Other Ministers, Assistant Ministers and Parliamentary Secretaries also have routine access to highly sensitive information including national security information.
However Ministers are currently exempt from the security checking and clearance processes that apply to all Australian Government personnel who are allowed access to security classified government information. Security checking and clearance requirements apply to all Australian public servants, government contractors and consultants with access to classified government information as well as to the staff of Ministers, but not to Ministers themselves.
The purpose of the Ministers of State (Checks for Security Purposes) Bill 2019 is to remedy this anomaly by ensuring that the Prime Minister is fully informed of any security issues that may arise from the personal background and circumstances of Ministers including Assistant Ministers and Parliamentary Secretaries.
The security checking regime that would be established by the Bill would ensure that Ministers are subject to rigorous and confidential inquiries into their personal circumstances. It would not substitute for the public, parliamentary and media scrutiny that comes with holding ministerial office, but would rather seek to ensure that the Prime Minister is fully informed of any security issues that might arise from a Ministers private and personal circumstances and activities.
The Bill seeks to strengthen security at the highest levels of the Australian Government in ways that are fully compatible with and reinforce the principles of ministerial accountability that are central to the Westminster system of government
The need for security checks at the highest levels of government
There is widespread recognition that Australia faces an increasing threat from foreign espionage and covert political interference.
The recently retired Director-General of Security, Duncan Lewis, has warned in blunt terms that Australia faces an “unprecedented” wave of espionage and foreign interference. Mr Lewis warned that “the espionage threat showed no sign of abating”, while “unwelcome influence within Australia's political system is now widespread …It is an unprecedented level of activity … it's not visible to most people.” The Australian Parliament, MPs and Senators, Federal Ministers and the Australian Government are the ultimate targets of a substantial part of this foreign espionage and political interference threat.
The Government and the Parliament have already responded to these national security challenges, notably with the introduction of new laws, the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 and the Foreign Influence Transparency Scheme Act 2018, to counter foreign espionage and covert political interference. The Foreign Influence Transparency Scheme is administered by the Attorney-General’s Department.
The 2018-19 annual report of the Australian Security Intelligence Organisation (ASIO) observes that these new laws “will strengthen Australia against acts detrimental to its security and provide the Australian public with a greater degree of transparency regarding those who represent the interests of foreign states. These tools will increase the cost and risk of conducting foreign interference in Australia and make it more difficult for Australia’s adversaries to threaten its interests.”
Significantly, however, Section 25A of the Foreign Influence Transparency Act exempts currently serving Federal, State and Territory Members of Parliament from the coverage of the Foreign Influence Transparency Scheme.
Regrettably, it cannot be assumed that persons appointed to high political office will always be free of characteristics, activities, associations, connections or obligations that may compromise or risk the compromise of national security within the executive government.
Human frailty being what it is, elected parliamentarians and Ministers are not immune to weaknesses and temptations that in rare but significant cases may compromise national security including involvement in espionage and, indeed, treason.
Recent history provides examples of security breaches at the highest levels of Governments. At the end of the Cold War, the publication of secret Soviet intelligence files showed that the KGB had enjoyed success in recruiting as agents not just Western government officials but also parliamentarians and ministers in a number of Western countries.
In the United Kingdom, for example, at least two former British Labour MPs were identified as agents recruited by the KGB. Two other Labour MPs, including one minister in the Labour Government of Prime Minister Harold Wilson, have also been confirmed as having been paid agents of the communist Czechoslovakian intelligence service, the StB.
Here in Australia, the publication of KGB archives, as well as the release of ASIO files by the National Archives, revealed that a former federal member for Hunter, the late Bert James, was a covert source for the Soviet embassy including frequent meetings with identified KGB officers. Another Labor MP, the late Senator John Wheeldon, was involved in a sex-espionage scandal involving the chief KGB officer in Canberra and a French embassy official. Wheeldon was later a minister in the Whitlam government.
The Cold War is long over, but, if anything, the counterespionage and challenges that Australia now faces are greater than before. China, the rising regional power, already enjoys considerable access to and influence within the Australian political system, from local governments to state parliaments and in the Federal parliament.
Recent experience concerning the noncompliance of MPs and Senators, including Ministers, with constitutional requirements for election to Parliament shows that party preselection processes and electoral and media scrutiny, as well as selection to serve on the ministry, cannot be relied on to identify in a timely way matters that would be an issue in a security background checking process.
Instances of corruption or other embarrassing incidents involving Australian political figures show that ministers may succumb to temptations that may make them vulnerable to compromise and pose risks to national security.
Over the past decade, specific security issues have arisen in relation to ministers and shadow ministers. One case which attracted significant media attention was the relationship between the member for Hunter and former Defence Minister Joel Fitzgibbon and a Chinese Australian property developer who was found to be associated with a senior Chinese military intelligence operative. Revelations concerning foreign political donations led to the resignation from Parliament of Senator Sam Dastyari, at the time an Opposition front bencher and a potential Minister.
Most recently controversy has arisen in relation to the alleged foreign political associations of the current Member for Chisholm, Ms Gladys Liu MP.
No judgment is made here about the Members for Hunter and Chisholm, or former Senator Dastyari, other than to say these cases involved precisely the sorts of issues that should be proactively addressed in the case of persons who are appointed to Ministerial office.
Curiously the Committee’s report makes no substantive comment on Australia’s current security environment or the potential for Ministers to be targeted by foreign intelligence agencies or the risk that, as fallible human beings, they might engage in activities that might put national security at risk.
It would be naïve indeed to imagine that Ministers in the future will be entirely free of security issues and concerns. It would also be naïve to imagine that existing processes of public, parliamentary and media scrutiny will necessarily result in the timely consideration of personal activities and circumstances relevant to security that a Minister may not wish to disclose.
The approach taken in the Ministers of State (Checks for Security Purposes) Bill is that it is best to address any such issues proactively as prevention is better than cure.
Exemption of Ministers from security clearance processes
The current Australian Protective Security Policy Framework (APSPF) observes that “access to sensitive and security classified information necessitates a high level of assurance of a person’s integrity. This is due to the potential harm associated with compromise of that information.”
A key component of Australian Government protective security arrangements is the requirement that persons with ongoing access to sensitive or security classified information or material must be security cleared at an appropriate level.
The AGSVA sums up the need for security clearances as follows:
Misuse or mishandling of classified information or resources, whether deliberate or accidental, can have serious consequences for the Australian Government.
For this reason, the government needs to be sure that people who have access to classified information and resources can be relied on to respect and protect classified information and resources appropriately.
The security clearance process is one of the mechanisms used to ensure classified information and resources are only entrusted to suitable people who demonstrate a proper appreciation of their security responsibilities and obligations.
Applied to many thousands of Australian public servants, Australian Defence Force personnel, law enforcement personnel, government contractors and consultants whose duties require access to sensitive or national security classified Australian Government information, the security clearance process is an essential foundation for Australian Government’s security arrangements including the investigation of foreign espionage and interference activities.
The scale of security clearance activity across the Australian Government is reflected in answers to questions on notice provided by Departments to the Committee.
For example the Department of Home Affairs advised that all its staff were security cleared – a total of some 19,363 with more than 1,767 personnel holding Negative Vetting Level 2 clearances permitting access to classified information up to and including the Top Secret level, and 275 with Positive Vetting clearance allowing access to information at all classification levels, including Top Secret and certain types of caveated and codeword intelligence information.
All the Home Affairs Minister’s staff are security cleared and would not be allowed access to classified information if they were not. However the Minister for Home Affairs, like all other Ministers, is not required to undergo any security checking process, even though he has access to the most sensitive and highly classified information held by his Department or circulated to the National Security Committee of Cabinet.
This state of affairs reflects the provisions of the Australian Protective Security Policy Framework which identifies certain Australian office holders who are not required to hold a security clearance to access security classified information.
These office holders inter alia include Members and Senators of the Commonwealth, state parliaments and territory legislative assemblies, and members of the Federal Executive Council.
Under this policy Ministers of State are excluded from security clearance requirements by virtue of their status as Members of Parliament and as members of the Federal Executive Council.
The exemption of Ministers from otherwise mandatory security clearances was first publicly acknowledged in answers given by the then Attorney-General Daryl Williams to questions on notice asked in the House of Representatives in 2002. However no explanation was given for this policy which appears to date back to the beginning of the Australian Government's security clearance system in the 1940s.
The current APSPF advances no reasons to support the policy to exempt Ministers from security clearance requirements.
One of the benefits of introducing this Bill has been to elicit from Government (and the Opposition) what appears to be the first publicly articulated justifications for this policy.
In the second reading debate on 29 July 2019, the Chair of the Senate Finance and Public Administration Committee, Senator James Paterson made the following comments on behalf of the Government:
… there are very good reasons why ministers and their staff and public servants should be treated differently when it comes to security vetting. In the Westminster system, the only qualifications for ministerial office are, first, election by the people as a member of parliament and, second, an invitation from the Prime Minister to join their ministry. Along with every other member of parliament, ministers are required to publicly declare any relevant interest that they may have which could influence them in the exercise of their duties. Ministers are also accountable to the parliament and have to front up on a regular basis to question time, estimates and other forums to be questioned on their conduct and performance in their role. Introducing a third qualification, whereby ministers would be required, in effect, to pass a bureaucratic process in order to hold office, undermines the Westminster system. … The burden for ensuring that ministers are qualified and appropriate for their role rightly falls squarely with the Prime Minister. Any Prime Minister knows that their appointments will be scrutinised through the democratic parliamentary and political processes that we have in place.
Of course, party leaders must exercise good judgement in choosing their frontbench teams, and I acknowledge, as Senator Patrick has pointed out, that has not always been the case. … A confidential security vetting process as proposed by Senator Patrick is no substitute for this robust process of public and parliamentary scrutiny and the Westminster principles of ministerial accountability. It is for these reasons that the government will not be supporting the bill.
This argument is reiterated by the Committee in its report which states:
… the committee notes that it is the Prime Minister who bears the burden of ensuring that ministers are qualified and appropriate for their role. The Prime Minister appoints ministers with the knowledge that these appointments will be scrutinised through robust democratic parliamentary and political processes under the Westminster system. [T]he confidential security vetting process—as proposed in the bill—is not a necessary or appropriate substitute for, or supplement to, the public and parliamentary scrutiny that comes with holding a ministerial role.
While these arguments should not be lightly dismissed, the position taken by the Government, and by the Committee, wilfully misconstrues the nature of the measures proposed in the Bill and their relationship to established principles of Ministerial accountability.
The aim of the Bill is not to substitute for the public and parliamentary scrutiny that comes with holding a ministerial role.
Rather it seeks to provide much needed support for the role of the Prime Minister as the leader of the Cabinet and Ministry by ensuring that the Prime Minister proactively receives security relevant information that would not necessarily be in the public domain. It does so through measures and mechanisms that are fully compatible with the established principles of ministerial accountability and the Westminster system of government.
Canada’s Ministerial security background checks
Canada has a Westminster-style system of responsible ministerial government in a federal context similar to Australia.
Canadian Ministers are all Members of Parliament and, as in Australia, are appointed as Ministers by the Governor-General of Canada on the advice of the Prime Minister. The Prime Minister and Ministers are responsible to the Canadian Parliament through conventions, mechanisms and processes that are very similar to those that apply in the Australian Parliament.
As the Explanatory Memorandum to the Bill notes the Government of Canada conducts security background checks on Federal Ministers.
This policy was introduced by the Conservative Government of Prime Minister Stephen Harper in a context of concerns about foreign espionage and interference in Canada. The policy of security checking Ministers has continued under the present Liberal Government of Prime Minister Justin Trudeau. The practice of conducting security background checks on Ministers has been accepted in Canada as fully compatible with longstanding ministerial and parliamentary conventions.
The Canadian Privy Council Office (the secretariat of the federal Cabinet of Canada) arranges for security background checks to be conducted in relation to Members of Parliament who are being considered by the Prime Minister for appointment as Ministers or Parliamentary Secretaries. Periodic checks are also undertaken in relation to serving Ministers.
The Privy Council Office has indicated publicly that the security background checking process entails records checks with the Royal Canadian Mounted Police and the Canadian Security Intelligence Service, a check with the Canada Revenue Agency regarding tax compliance, and a check with the Office of the Superintendent of Bankruptcy regarding bankruptcy and insolvency. Prospective Canadian Government Ministers are required to provide the Privy Council Office with extensive personal information including financial disclosures relating to themselves and family members. Security interviews are also conducted.
Although Canadian practice does not rest on a statutory basis and is ultimately at the discretion of the Prime Minister, current practice amounts to a mandatory security checking regime for all Canadian Government Ministers with checks repeated at least every two years.
The Committee’s report briefly notes Canadian practice but makes no comment on how Canada has implemented such a scheme in the context of a federal system of government resting on the same principles of ministerial accountability as are central to the Westminster system of government practiced in Australia.
If Canada can strengthen its national security in this way, why not Australia? The Committee’s report does not engage with this question.
A mandatory security checking regime for Australian Ministers
As set out in the Explanatory Memorandum, this Bill seeks to strengthen security at the highest levels of the Australian Government.
While avoiding subjecting Ministers to a security clearance process that would override the Prime Minister’s independent decisions on Ministerial appointments, the Bill would ensure that the Prime Minister has access to relevant security information that may arise from a rigorous examination of the background and circumstances of persons appointed as Ministers.
By requiring security checking of similar to that required for ASIO officers, with access to top secret information, Ministers would be obliged to proactively disclose much more comprehensive and detailed information than is currently required by the parliamentary registers of Members and Senators’ Interests. This would allow comprehensive confidential examination of the personal circumstances of Ministers so that there would be much greater likelihood that any security issues would be identified at an early stage.
The proposed security checking regime would also ensure that potential aspirants to Ministerial office would know without any doubt that appointment to such an office would inevitably involve a high level of transparency, including the examination of personal circumstances that would not normally be subject to external scrutiny (including through public and media scrutiny and through the registration of financial and other interests required of all Members of Parliament and Senators). This would have a significant deterrent effect with regard to behaviour that might compromise national security.
Security information relating to Ministers, conveyed in the form of confidential reports by the Director-General of Security, would provide the Prime Minister with confidence that comprehensive checks have been made to identify any possible security issues that might affect a Minister’s ability to perform their duties including maintaining Cabinet confidentiality and protecting other sensitive and national security classified information.
Significantly, and contrary to the inference made by both Government and Opposition in the second reading debate and in the Committee’s report, the proposed security checking process for Ministers would not involve an administrative veto over the appointment of Ministers or their continuance in office.
Ministers would not be required, as Senator Paterson has wrongly claimed, “to pass a bureaucratic process in order to hold office”.
In the event that security background checks undertaken by ASIO revealed an issue of security concern, the Prime Minister would be free to determine what steps might be required to resolve the matter.
Questions of appointment to the Ministry, responsibilities and administrative arrangements orders and access to information would remain entirely the responsibility of the Prime Minister exercising his or her independent judgment. This is the case now in accordance with the provisions of Section 64 of the Constitution, the Ministers of State Act 1952 and other long-established conventions and administrative arrangements relating to the Cabinet and Ministry. However the Bill would ensure that the Prime Minister’s judgments and decisions would be informed by comprehensive reports relating to security.
The Bill proposes that reports relating to security will be prepared by the Director-General of Security and ASIO, rather than another agency such as the Australian Government Security Vetting Agency. This is most appropriate given the sensitivity of this task and the statutory provisions that already govern the independent and apolitical work of the ASIO.
The roles of the Director-General of Security and ASIO proposed in the Bill are clearly consistent with ASIOs statutory function set out in paragraph 17(1)(a) of the Australian Security Intelligence Organisation Act 1979 “to obtain, correlate and evaluate intelligence relevant to security”.
Significantly, in its submission to the Committee the Department of Home Affairs makes the point that the Director-General of Security is already empowered to examine security issues relating to Ministers.
The Department’s submission states:
The Bill would make it mandatory for a Prime Minister to seek and be provided with a report from the Director-General of Security about security matters in relation to Ministers of State appointed by the Governor-General. The Bill does not mandate the Prime Minister to act on the report. The Prime Minister is already able to seek advice on such matters and the Australian Security Intelligence Organisation’s existing legislative framework would permit it to prepare and provide such a report. … It is currently within the legislative functions and powers of the Australian Security Intelligence Organisation to provide to a Prime Minister advice in respect of matters relating to security, of the kind envisaged by the Bill, in so far as it is relevant to the Prime Minister’s functions and responsibilities. Such advice might be at the request of a Prime Minister, or the Australian Security Intelligence Organisation might proactively provide advice to a Prime Minister.
ASIO can already undertake security inquiries and investigations relating to Ministers. The Prime Minister can already seek security advice relating to a Minister from the Director-General of Security.
The key point is that the Bill would make ASIO security checking mandatory. This would include the commencement of ASIO checking, the provision of information by Ministers to ASIO and the provision of security advice to the Prime Minister by ASIO.
It is not publicly known whether any recent Prime Minister has sought advice from a Director-General of Security specifically concerning a member of their Ministry.
It is clear, however, that a Prime Ministerial decision to ask ASIO to provide security advice concerning a Minister or for the Director-General to proactively provide such advice would be fraught with political sensitivity.
Decision making about whether to investigate the personal circumstances of a Minister or otherwise examine a Minister’s trustworthiness would inevitability take place in the context of partisan politics and potential political tensions within government itself.
It is not difficult to envisage circumstances in which a future Prime Minister might be hesitant to seek such advice for ASIO or in which a future Director-General of Security might choose to be reactive than proactive. It would be foolish to assume that political and bureaucratic decision-making will always be timely or solely guided by national security considerations.
The mandatory security checking regime set out in the Bill ensures that security checks would be undertaken regardless of the politics of the day. It would require ASIO to be proactive and it would relieve the Prime Minister of the potentially politically difficult decision to initiate initial security checks in relation to a particular minister. The question of what, if anything, might appropriately flow from security advice provided by ASIO would appropriately remain a matter for independent decision by the Prime Minister who in turn is responsible to the Parliament.
Perhaps most importantly the security checking process that would be established by the Bill would ensure that the personal circumstances of Ministers would be reviewed from a security perspective in a timely manner. Potential security issues would be more likely to be identified at an early stage. The Prime Minister would be more likely able to deal with any issues in a proactive way instead of reacting to media reports or other unexpected disclosures or controversies.
The security checking regime proposed by the Bill would assist the Prime Minister in ensuring that there is no compromise to security at the highest levels of Government. On questions of national security, prevention is infinitely preferable to cure, if indeed a remedy is available once damage has been done.
These measures would appropriately supplement and support, not substitute for, the processes of scrutiny that are associated with the election of members of Parliament, the selection of Ministers by the Prime Minister and the accountability of Ministers to the Parliament.
The Ministers of State (Checks for Security Purposes) Bill 2019 is designed to strengthen security at the highest levels of the Australian Government.
It is an obvious and dangerous anomaly that Ministers of State are not subject to a rigorous and mandatory security checking process.
It would be naive to think that Australian ministers of state will always be immune from failings that may make them vulnerable to compromise or tempt them into behaviour that may harm national security.
Parliamentary and media scrutiny of Ministers are not sufficient alone to detect and deal with security issues, potentially arising from circumstances and activities that are far removed and perhaps deliberately concealed from the public domain.
A process that provides for the confidential examination of the personal circumstances of Ministers is essential to support the Prime Minister in effectively exercising his or her responsibilities in relation to Ministerial appointments, the functioning of the Cabinet and government and the preservation of national security.
Contrary to the claim of Government and Opposition, the Bill has been carefully designed to be fully consistent with the principles of Westminster-style responsible Ministerial government and accountability to Parliament and the public.
No doubt current Ministers and other MPs and Senators who hope to serve as Ministers at some future time have little enthusiasm for the prospect of filling out forms and paperwork similar to that which many thousands of Australia public servants, Australia Defence Force personnel and government contractors and consultants must complete as part of the security clearance process in order to have access to classified government information. No doubt many MPs feel that they are already subject to too much public and media scrutiny.
However the responsibilities of Ministers are greater than those of other MPs and Senators and those who choose to accept such responsibilities and opportunities should also be prepared to accept a significantly greater burden of personal scrutiny and transparency. That scrutiny and transparency should be equivalent to that accepted by many thousands of Australians who undergo intrusive security clearance processes.
In supporting the continuation of the current exemption of Ministers from security clearance processes, and in declining to engage with the development of any adequate alternative to supplement Parliamentary and public scrutiny, the Committee has reaffirmed the longstanding tendency of both the Coalition and Labor Parties, the so-called “parties of government” to take the view that rules should apply to everyone except themselves.
In this regard it is also relevant to note that the Government and Opposition joined together to exempt Federal, State and Territory Parliamentarians from the reporting and disclosure requirements of the Foreign Influence Transparency Scheme. Notwithstanding a recommendation from the Parliamentary Joint Committee on Intelligence Services, the Parliament has after more than a year failed to progress the establishment of a parallel Parliamentary Foreign Influence Transparency Scheme.
In an environment in which there is wide acknowledgement of a rising threat of foreign espionage and covert political interference, it is a striking and unacceptable state of affairs that Federal Ministers are not security checked and all Federal MPs are exempted from the Foreign Influence Transparency Scheme requirements that apply to all other Australian citizens.
Both the Coalition and Labor should reconsider their position.
Even if the Government is not prepared to support a legislative security checking regime, it is clear from the Department of Home Affairs submission that it is open to the Prime Minister to direct ASIO to implement security checking arrangements for Ministers along similar lines to that undertaken in Canada.
While a legislated mandatory scheme would be preferable, less formal arrangements established at the discretion of the Prime Minister could still be a useful first step. Any such arrangements should be the subject of a public announcement setting out the nature and extent of any security checking process.
The Parliament should also treat the establishment of a Parliamentary Foreign Influence Transparency Scheme as a matter of urgency.
One rule for everyone else but no rules for Ministers and MPs is an approach that puts not only national security but Australian democracy at risk.
It is recommended that the Senate further consider the Bill with a view to the establishment of a mandatory security checking regime for Ministers of State.
Senator Rex Patrick
Senator for South Australia