National security review recommends complete overhaul of electronic surveillance – but will it work?

The most extensive review of Australia’s intelligence sector because the Seventies has released its public report.

The Comprehensive Review of the Legal Framework of the National Intelligence Community – the “Richardson Review” – culminated in a four-volume declassified report containing 203 recommendations (13 of them classified).

It has been embraced by the federal government, which took almost a 12 months to think about the classified report (described by Attorney-General Christian Porter as needing “to be carried around in a wheelbarrow”).

The undertaking was enormous. In the 19 years because the terror attacks of September 11, 2001, federal parliament has introduced 124 separate acts in regards to the national intelligence community. On the entire, these acts have enhanced government power, increased secrecy, and scrambled to maintain up with a continuously evolving threat environment. The result’s one of the vital complex legislative landscapes on the earth.

Shining light into the shadows

The intelligence community operates within the shadows. So it is critical that this extensive (and expensive, to the tune of A$18 million) inquiry has resulted in a public report and proposals. The report provides a precious insight into the intelligence sector: its powers, functions and room for improvement.

But it should be acknowledged this was essentially – and maybe necessarily – an internal inquiry.

The review was chaired by retired senior public servant Dennis Richardson. His former roles include head of ASIO and secretary of each the Department of Foreign Affairs and Trade and the Department of Defence. Consultation focused on Commonwealth, State and Territory agencies and departments. Only 16 submissions were received from non-government sources.

This means the inquiry had the high-level access and expertise vital for a really comprehensive review.

It also makes it less surprising the federal government has agreed (in whole or part) to all but 4 of the review’s recommendations. Indeed, most of the recommendations affirm the present state of the law and the sector as a complete. The review’s engagement with civil liberties, democratic freedoms, whistleblower protections and such, is restrained. Instead, it focuses on other points of the rule of law, particularly legal clarity and (internal) oversight.

An electronic surveillance act is idea – in principle

The sheer scope of the Richardson review means its far-reaching recommendations shall be mulled over for years.

However, the report comprises one clear centrepiece: the introduction of a brand new electronic surveillance act. This, Porter says:

…could be perhaps the most important national security legislative project in recent history.

While Richardson estimates the introduction of the act could take five years and a budget of A$10 million, the federal government has agreed to pursue the thought.

The simplification of Australia’s surveillance laws shall be welcomed by anyone who has grappled with the monstrously complex Telecommunications (Interception and Access) Act 1979 (TIA act).

An electronic surveillance act would retain the identical basic processes that exist now; the changes would give attention to clarity and modernisation.

The attorney-general would also keep a key role in issuing a variety of warrants – the report advises against a greater role for the judiciary on this respect. The primary focus stays on intelligence and investigatory goals.

New powers and access to telecommunications data could be granted to the Australian Transaction Reports and Analysis Centre (AUSTRAC), Australian Border Force and corrective services agencies.

But the report warns against giving other agencies latest powers. The Australian Signals Directorate, for instance, (which a leaked 2018 memorandum suggesting it could possibly be given domestic surveillance powers) mustn’t be given “an onshore crime-fighting role” as this could “dilute its mission” and “constitute a profound break with the principles which have stood us in good stead”.

Centralising oversight

Oversight is crucial for the powerful security sector, but in addition presents tricky problems of security and secrecy (as demonstrated by the Witness K affair). Richardson decries the present oversight framework within the TIA act as “a dog’s breakfast”, and recommends centralising national oversight within the Commonwealth Ombudsman.

An identical emphasis is given to the Inspector General of Intelligence and Security (IGIS). Numerous enhancements to the oversight powers of the IGIS are really useful, including allowing the Parliamentary Joint Committee of Intelligence and Security to request the IGIS undertake an investigation. However, this latter advice has been wholly rejected by the federal government.

While this marks the culmination of an immense investigation, the Richardson report is the start, moderately than the tip, of a journey.

It must be read alongside the countless other reports and inquiries which have really useful necessary changes to Australia’s counterterrorism, data surveillance, whistleblower protection and other frameworks.

A start line for reform

The government has committed to an entire overhaul of its electronic surveillance powers and processes. The Richardson report lays the groundwork for this. It synthesises the views and experiences of Australia’s vast intelligence community and presents an important start line for reform.

However, the means of rewriting the principles on electronic surveillance should include myriad voices beyond the intelligence community. Ideally, this could involve not only experts in law, rights and privacy, but in addition technology, AI, telecommunications, criminology and more.

The review gives a nod to just a few of the complicating aspects in the longer term of electronic surveillance – including the rise of artificial intelligence, the capability to make use of the 5G network as a tracking device, and the pervasiveness of cyber crime.

Data surveillance laws are rarely subject to effective oversight or public accountability. This was borne out, for instance, within the Commonwealth Ombudsman’s 2019 report on warrantless access to retained telecommunication data. It revealed widespread misconduct and a mean of 1000 accesses to Australians’ data every day.

An electronic surveillance act is idea, in theory. It will take a full of life and regarded public debate to make sure it becomes idea in practice – able to not only protecting our safety and security, but democratic accountability and basic freedoms as well.