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Will Australia’s intelligence review tackle information hoarding and public scepticism?

By John Coyne and Anthony Bergin

Wednesday’s announcement of the biggest review of Australia’s intelligence laws for over 40 years demonstrates that Malcolm Turnbull is a tough – if not the toughest – Prime Minister on national security.

The review will examine the legal framework underpinning the country’s intelligence community and capability. It’s likely to cover issues relating to interception warrants (there can be conflicting requirements that police and security agencies are sometimes required to meet), arrest and detention powers, and whether agencies mandated to only use their powers overseas should be granted a domestic mandate and surveillance powers.

There are concerns that agencies are unable to pass crucial information to police and other intelligence services about threats to national security.

At present, there is no law that holds agency heads responsible for their success in security information sharing.

But many Australians will be scratching their heads wondering why, after 17 years of fighting terror and 10 tranches of legislative reforms (with another in the pipeline), a further review is required to modernise our security laws.

Despite the best efforts of policymakers, police, legislators and spooks, Australia’s intelligence agencies are still struggling to get the right information to the right people at the right time.

The last review of such magnitude was undertaken in 1977 by Justice Robert Hope’s Royal Commission on Intelligence and Security.

This time around, ex-public service mandarin Dennis Richardson is set to bring his no-nonsense style to finding out what needs changing.

The first major challenge that Richardson faces is creating a map of the various legislative instruments that impact on how the Commonwealth, states and territories share intelligence.

Before he can make recommendations about providing intelligence agencies with greater access to financial intelligence, for example, he’ll need to understand why the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 limits access to such information to designated law enforcement agencies.

Richardson will need to appreciate the underlying intent of the Acts and their various provisions that may limit information sharing. He’ll also need to consider changes to the principles of the Privacy Act 1988, especially those that prohibit the government from collecting personal information for one purpose and using it for another. Attorney General Christian Porter said on Sky News recently that anything done in the information-sharing space must keep in mind “appropriate rules and procedures around privacy“.

The public won’t have confidence in the legislative changes if protections aren’t in place to safeguard against inappropriate disclosure of personal information. Without such confidence, there’ll be less support for national security efforts overall.

Successive Australian governments have amended the Telecommunications (Interception and Access) Act 1979. But they’ve failed to constructively engage with the 21st century’s seismic technological paradigm shifts like encryption. Legislation will need to be rewritten in light of over 40 years of massive technology changes to telecommunications.

But it’s not just about laws when it comes to intelligence sharing. On 10 September, 2001, Australia’s intelligence and security agencies operated on a ‘need to know’ basis when it came to information sharing. Over the years that have followed 9/11, there has been plenty of discussion of the ‘dare-to-share’ paradigm. But change has been slow.

Effective information sharing relies on trust, as well as the creative leadership of members of the country’s security information-sharing network to forge alliances across agencies. National security agencies, like most government organisations, will be inclined to address their own priorities first. Sharing will need to be rewarded to overcome the tendency for information to be hoarded.

Changing these insular intelligence and law enforcement cultures is a tough proposition. Richardson’s review will need to ascertain whether we can, and then should, share certain information between various security agencies, state government bodies and some elements of the private sector.

Richardson will need to be mindful here of the public’s response to the recently-proposed changes to federal police questioning powers at airports.

Australians are becoming less trusting of their governments. Just repeating the mantra that we’re living in ‘dangerous times’ won’t cut it if we’re going to modernise the legislative framework that governs the activities of our intelligence agencies.

Originally published by: APPS Policy Forum on 01 Jun 2018