Who watches the watchers?

Who watches Australia’s spies? That is the job of Ian Carnell, the Inspector-General of Intelligence and Security. He plays a crucial role given the lack of judicial or parliamentary oversight in Australia of intelligence operational activities. His Annual Report (PDF 1.89MB) for 2007-2008, has just been publicly released. The constant need to balance security, secrecy and civil liberties hovers over this Report.

It is easy to take a jaundiced view of security and intelligence agencies, but all countries, one way or another, have them, even New Zealand and Switzerland. The hard part is for democratic governments to keep track of their spy agencies. The Inspector-General's office was basically established to “watch the watchers” and head off major problems that might effect the government, public or employees of the agencies themselves.

The Inspector-General, with his tiny staff of nine people, has oversight of the following spy agencies:

• Australian Security Intelligence Organisation (ASIO);
• Australian Secret Intelligence Service (ASIS);
• Defence Signals Directorate (DSD);
• Defence Imagery and Geospatial Organisation (DIGO);
• Defence Intelligence Organisation (DIO); and
• Office of National Assessments (ONA).

It is notable that the Australian Federal Police is not included even though it possesses extensive security and intelligence resources within Australia and overseas.

Some issues that jumped out in the Annual Report include: serious delays in ASIO assessment procedures; further examination of whether ONA assessments are influenced by political pressure; references to the Haneef inquiry; and to the murder of Australian journalists by the Indonesia Army in 1975. An additional sensitivity is the absence of warrants or any other judicial oversight of three of Australia’s intelligence agencies (DSD, ASIS and DIGO) even though these agencies can legally spy on Australian citizens.

The Annual Report (pages 17 and 37) indicated that, in the 2007-2008 financial year, there had been a sharp rise, almost tripling to 193, in the number of complaints made about ASIO’s handling of security assessments in immigration cases. ASIO admitted this was largely due to administrative errors and moved to fix the problems. Page 39 onwards in the ASIO chapter is also very interesting reading.

The Report noted concerns by some ONA analysts that there was undue pressure from policy departments. ONA is the government’s central intelligence analysis agency, which is roughly equivalent to the CIA’s Intelligence Directorate. The most notorious recent example of political pressure was the forced acceptance by ONA of foreign intelligence about non-existent WMDs immediately prior to the 2003 invasion of Iraq. Unsurprisingly for 2007-2008 (pages 64 and 65) the Inspector-General did not find ONA to be politically influenced.

An Annual Report is not supposed to generate headlines critical of the government - hence events are covered in a process driven manner. Dramatic events that received passing mention included the treatment of Dr Haneef (mainly on page 23) which is also the subject of the enfeebled Clarke Inquiry. A cynic might suspect that the AFP-influenced Haneef affair could be minimised simply because the vast security and intelligence resources of the AFP are strangely immune from the Inspector-General’s oversight.

Mention is also made of a major event of national interest which was the murder in 1975 of five Australian journalists by the Indonesian Army in East Timor (pages 21, 22 and 56). Contentious issues were how much and how quickly DSD and the wider Australian government knew about the murders in 1975. The murder of five Australian journalists by a foreign army has been ducked by successive Foreign Ministers and finally pigeon-holed as a New South Wales coronial matter rather than a bilateral matter demanding Indonesia compensate families of the victims. Hence the Annual Report gives this international incident the innocuous title “NSW coronial inquiry into Mr Brian Peters’ death”.

Most lawyers and other people concerned with civil liberties may assume that warrants or other judicial involvement is required before Australians can be spied on. This is not true. Pages 51, 56 and 59 of the Annual Report, for ASIS, DSD and DIGO respectively, indicate that Ministers alone can authorise these agencies to spy on Australians, even though these agencies where established to spy on foreigners. This power is contained in sections 8 and 9 of the Intelligence Services Act 2001. To his credit the Inspector-General describes how closely he watches over this power. For example on page 56, concerning DSD and Australians, he writes:

In order to obtain an [Ministerial Authorisation] MA, the Director DSD provides a comprehensive written submission to the Minister for Defence in respect of each individual about whom DSD wishes to produce intelligence.

My office has access to the details of every authorisation which is approved, and I and my staff review documentation for each new or renewed authorisation, usually within four weeks of the authorisation being granted.

Still it appears an anomaly that while ASIO, the AFP or State police forces require warrants to investigate Australians Australia’s most secret agencies do not. A part explanation for this seeming discrepancy is that ASIS, DSD and DIGO have military origins rather than judicially regulated police origins. A more cynical view is that the political and legal sensitivity of such spying is such that the government would not want judges to meddle in it.

For people interested in civil liberties the Annual Report of the Inspector-General of Intelligence and Security is a gold mine of major issues described, issues barely described and issues notable by omission. There is much more of interest in it than I have described in this article. What comes out of this document is not the authoritarian tone I expected, but a sense of duty of care and compassion. These last two traits are essential for an Inspector-General and the spies he watches.