Home Affairs-AGD shakeup authors address accountability concerns

By Harley Dennett

February 9, 2018

Only one of the independent officials caught up in the creation of the Home Affairs department objected to the new arrangements — but the Hon. Margaret Stone, the Inspector-General of Intelligence and Security, is no run-of-the-mill officeholder.

Most of agencies moving, either to Home Affairs or the Attorney General’s Department, did so by administrative arrangements order in December without needing parliamentary approval. But a quirk of ASIO’s telecommunication interception powers means legislation must be passed it to move along with other agencies. This opening allowed parliamentarians with a forum to raise Stone’s concerns and other ministerial power oddities in the restructure.

Stone, in her submission to the legislation inquiry, was concerned that oversight from the Attorney-General, then George Brandis, was a conflict of interest and would undermine her independence. And more tangibly, the AG’s additional powers to compel the IGIS to investigate could divert resources from matters the IGIS considered more urgent:

“Doubling the number of ministers with this power [the PM who had it already, and the AG who gains it] is, in itself, a significant incursion into the independence of the Inspector-General. Nevertheless, given the Prime Minister’s position of overall responsibility for the National Intelligence Community it is not inappropriate that this power should be retained. In the case of the Attorney-General this consideration does not apply; moreover the Attorney’s position as the minister responsible for authorising warrants requested by ASIO is likely to give rise to a perceived conflict of interest. For instance, could a direction to undertake a particular inquiry be seen to divert the resources of this office from a review of ASIO warrants?

“The power of the Attorney-General to compel an inquiry would materially detract from the Inspector General’s ability to assure the public, as well as Parliament, that the decision to conduct an inquiry is free from political influence.”

Officials from the Department of the Prime Minister and Cabinet and Attorney General’s rebutted those concerns at a hearing on Friday morning.

Allan McKinnon, a deputy secretary at PM&C heading the taskforce shepherding the Home Affairs and Office of National Intelligence overhaul, told the committee he was surprised by Stone’s concerns. IGIS was never intended to be completely separate from government, he said, and the power to force the IGIS to investigate had only been used three times since the office’s creation. “She/he is still free to make their own conclusions, completely of their own volition.”

The question of resource depletion may soon be moot:

“I can’t see it,” McKinnon said. “It would be easily seen [to the public] if there were lots of referencing in direction A when there was an important thing going on in direction B … [and] I’m confident in an increase to IGIS resources.”

The L’Estrange-Merchant review of Australia’s intelligence community recommend a three-fold increase to the IGIS budget, and the government has already indicated it will support most of the recommendations, but has not yet officially confirmed its response. McKinnon gave the firmest sign yet, without stealing the PM’s thunder on the other confirmations, that at least in respect to IGIS, she will get her funding.

There is still significant work before the detail of reforms following from L’Estrange-Merchant’s recommendations, McKinnon advised the committee. While departments of state are relatively routinely altered under section 64 of the Australian Constitution, the changes such as the Office of National Assessments becoming the Office of National Intelligence, were a far more complex task of legislative engineering.

Additionally, the committee heard that IGIS had made recommendations on the proposed powers and functions of the new ONI — Stone calls them ‘modernising’ — that have been welcomed by the intelligence agencies, but the PM has not yet signed off on these changes, so couldn’t have been included in the initial Home Affairs-ASIO legislation.

Labor members of the inquiry were concerned that the government was asking for parliament to authorise moving ASIO, with its vast surveillance powers, before all the safeguards and oversight were in place.

Parl Sec, sorry, ‘Assistant Minister’, with terror threat powers?

The horse-trading needed to get the Home Affairs consolidation through cabinet hinged on beefing up the Attorney General’s oversight role, particularly with respect to authorising warrants during a terrorism emergency. Those changes are key to the proposed legislation, but Labor’s shadow attorney general Mark Dreyfus was not happy with the new language where it ambiguously refers to ministers.

In the event of an emergency and the Attorney General is unavailable, new powers that would allow “ministers” from the Home Affairs portfolio to fill in with respect to powers in the terrorism section of the criminal code. Those ministers, one official helpfully confirmed, include not just Peter Dutton, but the junior ministers too: Minister for Citizenship and Multicultural Affairs, Alan Tudge; Minister for Law Enforcement and Cybersecurity, Angus Taylor; and Assistant Minister for Home Affairs, Alex Hawke — who would, until recently, have been styled a parliamentary secretary.

Michael Pezzullo, secretary of the new Department of Home Affairs, assured the committee there is only one minister for counter-terrorism: “The Counter Terrorism Minister is Mr Dutton, and solely Mr Dutton,” adding that the safeguards of the criminal code remain in place.

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