Concerns raised over major review of spy laws

By Shannon Jenkins

Monday December 7, 2020

Independent senator Rex Patrick has slammed the head of the National Archives of Australia and the prime minister
Independent senator Rex Patrick has slammed the head of the National Archives of Australia and the prime minister. (AAP Image/Mick Tsikas)

The release of the biggest review of Australia’s intelligence laws in nearly four decades has sparked concerns over accountability from the legal community and Independent senator Rex Patrick.

The review was conducted by former Australian Security Intelligence Organisation boss Dennis Richardson, and was delivered to the government in late 2019.

Released publicly on Friday, the 1,300-page declassified report made hundreds of recommendations in relation to the legal frameworks governing the National Intelligence Community.

One recommendation advised against expanding the remit of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) to include direct oversight of operational activities, to which the federal government agreed.

Another called for the PJCIS to be able to request the Inspector-General of Intelligence and Security (IGIS) to conduct an inquiry into the legality and propriety of particular operational activities. The IGIS would then report to the PJCIS, prime minister and responsible minister. The government rejected this recommendation.

Patrick has slammed both Richardson and the government for excluding the PJCIS from inquiries and reviews of “what Australia’s spies actually do”.

“Australia remains the only Five Eyes country to deny Parliament a role in scrutiny over and ensuring government accountability for national intelligence operations,” he said.

“The Richardson review is unquestionably a missed opportunity to bring Australian Parliamentary scrutiny of intelligence into line with our allies and up to an appropriate standard of democratic accountability. But this was an opportunity the government was determined to miss.”


Read more: Major review of intelligence laws makes ‘controversial’ recommendations


Patrick accused Richardson of not wanting to enhance Parliamentary scrutiny.

“That’s one of the reasons the government chose him and not an eminent legal figure to carry out the review. The fix was in from the very beginning,” he said.

“Intelligence operations can have highly significant diplomatic, military and human rights impacts. Within the bounds of appropriate security and secrecy, the Parliament should be able to scrutinise intelligence operations, the success or failure of which may be of vital importance to our nation.”

Meanwhile, the Law Council of Australia has drawn attention to another recommendation that would allow ministers to solely be able to authorise warrants to exercise “intrusive intelligence collection powers” — ASIO and Intelligence Services Act agency activities, specifically — without judicial oversight.

Like Patrick, Law Council president Pauline Wright noted the proposal would “reinforce Australia’s status as a major outlier within the Five Eyes Alliance”, as the US, UK, Canada and New Zealand all have judicial authorisation requirements for such powers.

“The Law Council accepts that powers that limit rights and liberties are often necessary for intelligence agencies to keep us safe and protect our national interest,” Wright said.

“But for the public to have trust and confidence in covert activities it is essential the utmost independence and rigour applies when granting authorisations. Judicial authorisation is essential to creating and maintaining that state of trust.”

The organisation has voiced in principle support for other recommendations, including for a new Electronic Surveillance Act, and improvements to oversight legislation.

“Details of the implementation of these amendments to existing legislation will require close scrutiny by civil society and Parliament, and it is important that the government provides adequate opportunities for this to occur,” Wright said.

“The Law Council calls on the government to now work constructively and collaboratively with the national legal profession in the development of legislation.”

Labor’s Kristina Keneally and Mark Dreyfus said the release of the report is welcome but Labor is “deeply concerned” that the government has sat on the report for a year.

They said Labor only received the report on Friday, and would “carefully study” it before providing a response.

“Labor sincerely thanks Dennis Richardson for his dedication and service in producing his review,” they added.


Read more: No time for cowards and wafflers: Dennis Richardson clocks off


 

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