18 Jul 2017
A strategic boost from a common approach to national security
The sensitive powers of ASIO have been recognised in the way that its warrants are to be handled.
In what might have been expected to be a quiet parliamentary winter recess, the Turnbull government has set national security circles astir with two major announcements on national security in a matter of two days.
On Monday, a formal announcement of enhanced Defence counter-terrorism support to states and territories, and on Tuesday confirmation of the creation of a new Ministerial security portfolio – leaked in some detail the previous day. Both announcements were muddied to some extent by political overlay, as well as ambiguity about the details on the so-called "super-portfolio". But what do they mean and what will really be the impact on Australia's national security?
But what do they mean and what will really be the impact on Australia's national security?
First to the new portfolio arrangements. A new Home Affairs Minister will be established, presiding over ASIO, the AFP and the Australian Border Force (separated from the Department of Immigration), along with the Australian Criminal Intelligence Commission, the Australian Transaction Reports and Analysis Centre and the Office of Transport Security.
Most of the change is unremarkable – many of the agencies were previously in the Attorney-General's portfolio, and all work closely together already across a range of security matters. Bringing the agencies together within a common portfolio focused on national security can only enhance Australia's strategic approach to this critical issue.
The point attracting most controversy is moving ASIO away from reporting to the Attorney-General – a state of play that has existed since ASIO's inception in 1949 and reinforced throughout its history including through a series of Royal Commissions on Intelligence and Security in the 1970s and 1980s.
ASIO's role as a security intelligence organisation and its intrusive powers of investigation meant that it has always been considered of great importance that it is apolitical, unbiased and separate from law enforcement, with decisions on its special power warranted operations being reserved for the First Law Officer who had the unique responsibility of balancing public security with individual rights. The announcement that the Attorney-General will remain the approving authority for ASIO warrants provides some reassurance that the importance of maintaining this balance has been recognised and accommodated.
A second factor at play is that these changes haven't come directly from a formal review process, and this has attracted rare criticism from the Opposition on a topic that traditionally has bi-partisan support.
The timetable for implementing the changes is set for a year, in order to work out the detail including governance arrangements, as well as the legislative amendments needed to bring these changes into effect. But with an Opposition openly concerned about both the proposals and that they hadn't been consulted, the process of change may be stymied.
The announcement of changes to Defence's role in counter-terrorism has effectively drawn a line in the government's response to what had become a vexed issue. The question of the military's involvement in counter-terrorism came to prominence last year during the Lindt Café coronial inquest. There is little substantive in the announcement, but it is a useful clarification of the assistance that may be provided to states and territories. The government has proposed removing the language in the Defence Act that requires states to have "exhausted capacity" before requested Commonwealth military support, proposing instead a more collaborative and supportive arrangement.
In practice, this won't substantively change the type of support already available and provided. But it does go some way to address the lack of understanding about how military support may be sought, so damningly found by the NSW coroner. The second part of the Defence announcement was affirming Special Forces training and other support to state police. While training already occurs, this is the strong statement at the highest levels of this being a designated role for Defence – neither 2016's Defence White Paper nor the 2015 CT Strategy mention such a role.
This week's announcements, dramatic though they appear, essentially follow the path of incrementally building and maturing Australia's national security approaches. There will be little change to operations on the ground, which are progressing well, and in the states and territories where most of the counter-terrorism action takes place, the higher-level restructuring may go relatively unnoticed. But the addition of a common strategic approach is sorely needed and should serve Australia well.
The time taken to implement the changes will be important to watch. Should the Opposition object, it may be difficult to make the legislative changes required to implement the planned changes, particularly in the case of ASIO. And a year is a long time in terrorism. Should Australia experience a major mass casualty attack all bets could be off.