Tag Archive for: IGIS

Ongoing staff shortages handicap Australia’s peak intelligence oversight body

Staffing levels at Australia’s peak intelligence oversight body are regressing, impeding its ability to ensure that national security agencies operate as intended within our democratic framework of institutions and laws.

Without enough people, the organisation, the Office of the Inspector-General of Intelligence and Security, cannot monitor the agencies and assure ministers, Parliament and the public of their effective and legal operation.

Its 2023–24 annual report, released in September, revealed that staffing was below target and falling.

The office has extensive powers of investigation and access, including conducting inquiries, undertaking inspections and investigating complaints and public interest disclosures. Its powers are legislated under the Inspector-General of Intelligence and Security Act 1986 and are critical to oversight of Australia’s National Intelligence Community.

The office employs people with a wide range of skills, including legal, investigative, financial and technical capabilities.

Its understaffing was already evident two years ago. Things have got worse since then.

In the opening review of the Annual Report 2023-24, the current inspector-general, Christopher Jessup KC, reveals the office’s oversight teams had completed 77 inspections, fewer than planned and down from 91 in 2022–23.

Worryingly, the report also reveals that the planned expansion of the office from an average staffing level of 57 to 60 was not achieved. On 30 June 2024, it had only 39 permanent staff members.

Shockingly, the ongoing staffing level has in fact fallen for two years: it was 49 at the end of 2021–22 and 41 at the end of 2022–23. This is despite additional funding in 2018–19, 2023–24 and 2024–25 to expand its oversight and supporting capabilities, commensurate with extra spending in the intelligence community.

The report attributes the staffing deficit to factors including external labour market shortages, ongoing challenges with the Top-Secret vetting pipeline and increasing resignations. The resulting shortages affect operations and corporate functions.

These problems are not new and have been previously identified in successive annual reports. However, staffing deficits are not confined to the Office of the Inspector-General of Intelligence and Security. Recruitment and retention of staff across a range of skillsets is an ongoing challenge for other public sector agencies, including the National Intelligence Community.

While the inspector-general’s office is exploring new approaches to recruitment and retainment, the current understaffing damages the core institutional integrity and functioning of the office. The problem is even more acute because its jurisdiction has expanded in response to the 2017 Independent Intelligence Review  and recommendations of the 2019 Comprehensive Review of the Legal Framework of the National Intelligence Community.

Hopefully, the overdue release of the unclassified 2024 independent review of Australia’s NIC will address these findings and provide further recommendations to ensure the inspector-general’s office has enough people and funding to perform effective oversight functions of the National Intelligence Community.

One helpful move could be limited expansion of the role of the Parliamentary Joint Committee on Intelligence and Security to help alleviate some of the burden on the inspector-general’s office.

If transparency and oversight remain important features of Australia’s intelligence community, the government needs to act decisively and urgently to ensure the office is in the best possible position to perform its function.

Intelligence watchdog faces continuing staffing deficit

The 2020–21 annual report of the Inspector-General of Intelligence and Security (IGIS) reveals that an office that’s paramount to the oversight and accountability of some of Australia’s most secretive agencies is struggling to meet some of its key performance measures due to ongoing staff shortages and resourcing constraints.

The IGIS is an independent statutory office appointed to oversee and review the activities of Australia’s intelligence agencies for their legality and propriety as well as consistency with human rights.

Established in 1986 in response to a recommendation from the Hope royal commission into Australia’s security and intelligence agencies, the IGIS has powers akin to a standing royal commission under the Inspector-General of Intelligence and Security Act 1986.

The inspector-general’s office can undertake formal independent inquiries into the activities of Australian intelligence agencies in response to its own motion, in response to complaints or public interest disclosures (PIDs), or at the request of relevant ministers or the prime minister. It can also act independently to initiate and conduct regular inspections and monitoring of agency activities to help foster a culture of compliance.

The IGIS’s scrutiny of the intelligence agencies is critical and central to assuring the parliament and the Australian public that Australia’s national intelligence community is subject to robust scrutiny and held to account by a credible and independent oversight body. Its crucial role is often used as an argument for limiting the remit of the Joint Parliamentary Committee on Intelligence and Security to play a more active role in agency oversight.

The 2017 independent intelligence review recommended an expansion of the IGIS’s jurisdiction to include AUSTRAC and the intelligence functions of the Australian Criminal Intelligence Commission, the Australian Federal Police and the Department of Home Affairs. Under the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 and the Intelligence Oversight and Other Legislation (Integrity Measures) Bill 2020, which is under review in the House of Representatives, the IGIS’s remit will expand to three of the four additional agencies recommended by the intelligence review to either include the whole or some part of their functions.

In addition, the review recommended that the resources of the office of the IGIS be increased to ensure that it could effectively oversee the national intelligence community. The government accepted this recommendation and in the 2018–19 budget allocated funds for the IGIS to sustain a full-time staff of 55, which the IGIS was working to achieve by 2020–21.

However, the planned expansion of the IGIS’s staff numbers is yet to be achieved. The 2020–21 annual report highlights the precarious state of the office’s staffing, which is having an impact on its ability to meet some of its key performance indicators. As detailed in the annual report, the results against the performance criteria set out in the IGIS’s corporate plan reveal that the office didn’t meet one of the measures for ‘well-developed and effective complaint and PID management processes’ due to a lack of resources. It only partially met one measure under the ‘appropriate infrastructure and governance’ criterion due to resource constraints in finalising internal policies.

According to the report, as at 30 June 2020 the office had 33 staff—well under the proposed 55 and vastly disproportionate to the expanded staffing and resourcing of the intelligence agencies the IGIS oversees.

According to previous reporting, the IGIS had 33 ongoing employees (not including the inspector-general) at 30 June 2020 and 32 at 30 June 2019. So, since 2019, the office has only managed to increase its overall staffing by one.

Why has recruitment continued to be an ongoing challenge for the IGIS? The 2019–20 annual report notes that one reason for the shortfall is the lengthy security-vetting process:

While IGIS welcomed a number of new officers over the past year, the planned expansion to 55 staff has not yet been reached. IGIS officers are required to hold the highest level of security clearance. Acquiring this level of clearance is a lengthy process that not infrequently results in a number of candidates withdrawing before it is finalised … Recruitment activity remains a focus for the next year as well as developing retention strategies to provide flexibility for IGIS officers and to promote high levels of job engagement and satisfaction.

The protracted security clearance process clearly requires further reforms not only for the IGIS but also for the intelligence agencies and other government entities that use the same process. No doubt, Covid-19 has also played its insidious role. However, some remedial action is also required to the IGIS’s recruitment and retention strategies, which the 2020–21 report acknowledges: ‘[T]he Office continues to review recruitment strategies and processes to ensure recruitment is targeted and as flexible and efficient as possible.’

Given the climate of emerging and evolving threats and the growing powers and size of Australia’s intelligence community, it is imperative that we ensure that they have robust and proportionate oversight mechanisms. The IGIS is key to this.

While others have noted there will always be a significant disparity between the size of the intelligence agencies and the IGIS, that such a crucial gatekeeper is lacking teeth is inexcusable and reflective of fundamental systemic weaknesses.

The IGIS needs more resourcing and staffing to ensure a more muscular approach to its powers and independence to guarantee public confidence in Australia’s intelligence agencies. That an office so crucial to the oversight and accountability architecture of Australia’s intelligences agencies is understaffed, under-resourced and unable to meet key performance criteria is not in the national interest.

It is encouraging that the report notes that recruitment and retention strategies are expected to bear fruit with several new staff expected to commence in the current financial year. Hopefully, at the next round of Senate estimates hearings, this issue will be front and centre of questioning because numbers do indeed count if oversight is to be real and effective rather than tokenistic.

Richardson intelligence review recommendations must be implemented—and soon

In a previous post, I noted that the Richardson review of the legislative framework of Australia’s intelligence community robustly rejected many of the claims made for relaxing the constraints on agencies, and its reassertion of basic principles laid down by Justice Robert Marsden Hope in the royal commissions in the 1970s and 1980s. This should not obscure the fact that Dennis Richardson and his team endorse the need for a complete reform of the legislation on electronic interception of communications, a regime described in the government’s response as ‘unnecessarily complex and … outpaced by technology’ and by Richardson as ‘like a dog’s breakfast.’

This will be a major and complex task, and the government should be commended for setting up a task force to start the work. It would be unfortunate, however, if the implementation of this major reform were allowed to overshadow the other important recommendations of the Richardson review.

Many of the recent controversies surrounding the intelligence agencies have arisen from two simultaneous, but not adequately coordinated, announcements made by the Turnbull government in 2017. They included upgrading the Office of National Assessments to the Office of National Intelligence, making the Australian Signals Directorate an independent statutory authority, adding the intelligence sections of the Australian Federal Police and the immigration authorities to the existing Australian intelligence community to form the national intelligence community, turning the Department of Immigration and Border Protection into the much larger Department of Home Affairs, and moving several intelligence and law enforcement agencies into the home affairs portfolio. The secretary of Home Affairs has not hidden his intention to make his position central to Australia’s intelligence and security operations.

Richardson pays particular attention to the functions and legal status of the various bodies now included in the national intelligence community. One crucial distinction is between a department and a portfolio. Home Affairs is not, he asserts, an intelligence agency. It is, like Foreign Affairs and Trade and Defence, a policy department which has some intelligence agencies in the portfolio, but not in the department.

Just as the Australian Secret Intelligence Service reports directly to the foreign minister, not through the DFAT secretary, and the head of ASD reports directly to the defence minister, not through the secretary of the department, so also ASIO reports directly to the minister of home affairs, not through the departmental secretary.

ASIO, ASIS and ASD are all statutory authorities, with their own legislated powers and obligations. A crucial aim of Hope’s reports was to ensure that these and comparable agencies served ‘government as a whole’, without being unduly influenced by the policies or ethos of any one department.

The initial submission to the review from Home Affairs argued that its intelligence functions should be included in legislation, on the grounds that the department provided strategic, operational and tactical intelligence. Richardson, by contrast, argues that the department’s intelligence activities are associated with its functions in immigration and border control, which are comparable to the intelligence work of DFAT or Defence, quite separate from the intelligence agencies. Presumably after some discussion, Home Affairs withdrew its claim and accepted Richardson’s firm recommendation that the department’s intelligence functions should not be written into legislation.

Richardson’s discussion of the status and legal functions of the various agencies leads him to reassert important differences between the six agencies of the Australian intelligence community and the four that were added to form the national intelligence community. The former deal with the higher levels of intelligence collection and assessment: it is they alone that warrant the attention of the Inspector-General of Intelligence and Security, the principal form of executive oversight that emerged from the Hope royal commissions. The AFP has its own reporting and oversight mechanisms, and IGIS has no more responsibility for Home Affairs than it does for DFAT or Defence.

Richardson deprecates the tendency for agencies to ask IGIS for legal advice before undertaking operations, arguing that this practice risks compromising the perceived independence of IGIS’s subsequent inquiries. Such advice should be sought, he says, from the Australian Government Solicitor. Richardson is opposed to the UK model of an investigative services commissioner, who can give pre-operation advice as well as make post-operation inquiries. It is hardly a ‘double-lock’ system if the same agency has the key to both locks.

Richardson says little on the relationship between the Office of National Intelligence and Home Affairs on the coordination of intelligence, but he notes that ONI has this central role written into its legislation while Home Affairs has no legislated intelligence function.

While not challenging the decision to move ASIO from the attorney-general’s portfolio to that of the home affairs minister, the Richardson review reinforces the implication that the attorney-general has an important and independent role in authorising warrants. Richardson and his team underline the special status of the attorney-general as the first law officer of the Crown, whose loyalty must be to the law as well as to government policy. Richardson insists, for example, that the attorney-general cannot delegate his or her authority to another minister but must exercise it independently. While this reaffirmation of the attorney-general’s special status is to be welcomed, it would carry more weight if that officer did not simultaneously hold a highly political responsibility, such as minister for industrial relations.

As Kate Grayson and Anthony Bergin have noted, Richardson has not supported claims to give the Parliamentary Joint Committee on Intelligence and Security a greater role in operational oversight. Richardson did endorse the recommendation of the 2017 review that the PJCIS could request the IGIS to conduct an inquiry. This would be an appropriate way in which the PJCIS could ensure an independent, non-partisan inquiry. Regrettably, this is one of the few instances where the government has explicitly rejected a review recommendation.

The role of a parliamentary committee on intelligence in a Westminster-style political system, as distinct from Washington’s separation of legislature and executive, is ambiguous. On one hand, the PJCIS has evidently made valuable, bipartisan contributions to legislation on the agencies’ powers. On the other, if the PJCIS wishes to be seen as a truly independent mechanism of parliamentary oversight, it should not become identified with the endorsement of a particular policy position.

The recent promotion of the previous chair of the committee, Andrew Hastie, to the ministry, and his replacement with Senator James Paterson, both ‘wolverines’ with hawkish views on China policy, run the risk that the PJCIS will be seen as a policy instrument rather than an independent oversight mechanism.

The greatest contribution the PJCIS could now make, with support from all parliamentarians, commentators and academics with a serious interest in intelligence matters, would be to ensure that the parliament, the government and the agencies fully implement all of the Richardson review’s recommendations, not just those on interception legislation, in a timely manner.

The government says it will act on some recommendations ‘in due course,’ but it must not be allowed, as Richardson puts it, to ‘kick the can down the road.’ Several of Hope’s major recommendations took up to four decades to be fully implemented, largely because of bureaucratic opposition and political inertia.

It is in the national interest to ensure that all the review’s recommendations, both positive and negative, are fully and promptly implemented, not just in legislative form and administrative structure but also in operational culture.

Government must release intelligence review

The recently published annual report of the Parliamentary Joint Committee on Intelligence and Security (PJCIS) reveals mounting resourcing pressures on the committee’s ability to carry out its duties as well as uncertainty about its legislative future.

According to the report:

The workload of the Committee continues to rise substantially, yet the Intelligence Services Act 2001 remains unchanged. We look forward to a review of the legislation that considers the role, powers and resources invested in the Committee. This review would follow the 2017 Independent Intelligence Review by [Michael] L’Estrange and [Stephen] Merchant which recommended a variety of amendments to appropriately equip the Committee for its future work.

The PJCIS was established pursuant to section 28 of the Intelligence Services Act. The committee’s functions include providing oversight of Australian intelligence agencies by reviewing their administration and expenditure, reviewing national security bills introduced to parliament, and ensuring national security legislation remains necessary, proportionate and effective by conducting statutory reviews.

However, the committee’s powers do not extend to reviewing the intelligence-gathering and -assessment priorities of Australia’s intelligence agencies; nor does it have the power to initiate its own inquiries. In effect, the PJCIS is hamstrung in comparison to similar committees within our Five Eyes counterparts which have much wider oversight remits.

The 2017 independent intelligence review made several recommendations relating to the future of the PJCIS. These included making amendments to legislation to expand the committee’s oversight role to apply to all 10 agencies of the national intelligence community; enabling the committee to request the Inspector-General of Intelligence and Security (IGIS) to conduct an inquiry into the legality and propriety of particular operational activities of the agencies; allowing the committee to initiate its own inquiries into the administration and expenditure of the agencies as well as proposed or existing provisions in counterterrorism and national security laws, and to review all such expiring legislation; enabling the committee to ask the Independent National Security Legislation Monitor to provide the findings of its inquiries into existing legislation at the same time as it provides such reports to the responsible minister; and requiring the committee to be regularly briefed by the director-general of the Office of National Intelligence, and separately by the IGIS.

The PJCIS annual report notes the recommendations were accepted by then prime minister Malcolm Turnbull and parliament passed legislation enacting a number of them, but three years on the government has yet to introduce any bill to enact the recommendations related to changing the oversight role and powers of the committee.

Perhaps the hold-up is due to the delay in the public release of Dennis Richardson’s review of the legal framework governing the national intelligence community, which was tasked after the release of the 2017 review with examining the effectiveness of the legislative framework and making findings and recommendations for reform. One of its key terms of reference was examining improvements that could be made to ensure that the legislative framework provides for accountability and oversight that is transparent and as consistent across the intelligence agencies as is practicably feasible.

In a submission to the Richardson review, ASPI’s Anthony Bergin and I made a number of recommendations, including strengthening the PJCIS’s legislative powers by widening its remit to include the ability to analyse agencies’ operations and conduct its own inquiries.

The review provided classified and unclassified reports to the government late last year. However, it has not yet been publicly released. The release of the review will give direction to the reforms required of the legal framework governing the intelligence agencies and the PJCIS.

The concerns raised in the committee’s annual report, and the criticism of the failure of the government to enact recommendations from the 2017 review in relation to the IGIS, relate to key mechanisms in the oversight and accountability of the national intelligence community.

If strong oversight and accountability are important to give the Australian public confidence that our intelligence and security agencies are not only safeguarding our nation’s security, but do so respecting the rights and liberties of all Australians, appropriately equipping the PJCIS for future work is essential. Any further delay in the release of the Richardson review would be unacceptable and smack of government ineptness.

Still no inspector-general oversight for key Australian intelligence agencies

Four of Australia’s national security and intelligence agencies—the Department of Home Affairs, the Australian Federal Police, the Australian Criminal Intelligence Commission and the Australian Transaction Reports and Analysis Centre—still lack formal oversight by the Office of the Inspector-General of Intelligence and Security, three years after their inclusion in the national intelligence community.

The increasing tension between expanding the jurisdiction of the IGIS and its resourcing level was revealed in last month’s public hearing by the Parliamentary Joint Committee on Intelligence and Security for its review of recent legislative amendments that provide security agencies with greater access to encrypted data held by internet and telecommunications companies.

While the hearing focused primarily on the key aspects of the Telecommunications and Legislation Amendment (Assistance and Access) Act 2018, it also inadvertently highlighted the mounting resourcing pressures on the operational capability of the IGIS to sustain the demand of its legislative oversight role.

The IGIS is a critical component of Australia’s intelligence oversight architecture. The statutory independence of the office is its strongest asset, and it has direct access to the intelligence agencies and their records. Its role is to assure the Australian public that the agencies are operating with legality and propriety. However, perennial resourcing issues and continuing uncertainty surrounding the jurisdictional remit of the office are testing that assurance.

Currently, the IGIS reviews the activities of the six Commonwealth intelligence agencies that comprise the ‘Australian intelligence community’: the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service, the Australian Signals Directorate, the Australian Geospatial-Intelligence Organisation, the Defence Intelligence Organisation and the Office of National Intelligence.

However, a key recommendation of the 2017 independent intelligence review was that the oversight role of IGIS be expanded to apply to all 10 agencies in the national intelligence community, including the intelligence functions of the AFP, the ACIC, AUSTRAC and Home Affairs.

The authors of the 2017 review noted that the resourcing of the IGIS had not kept pace with the functions it had been tasked to perform and addressed this by recommending that the office be allocated additional resources to enable it to sustain a full-time staff.

More funding has been allocated to the IGIS since then. But, alarmingly, the amendments required to the Inspector-General of Intelligence and Security Act 1986 to bring the four additional agencies within the IGIS’s oversight remit have not occurred.

Three years on from the 2017 review, it still remains to be seen whether the government will amend the IGIS Act to expand the office’s jurisdictional oversight.

As the outgoing inspector-general, Margaret Stone, observed in her testimony to the committee, ‘If our jurisdiction was extended to those four agencies then I think we would need this extra assistance in addition to what we have. We’re able to manage at the moment, because there has been no final decision on that jurisdiction.’

Under questioning by Labor Senator Kristina Keneally about the office’s ability to meet demand under the current legislation with existing resources, Stone revealed the extent of her concerns:

I think one needs to remember that the additional legislation, of which we’re all aware, not only expands the scope of what we do, but, in order to oversee activities carried out under that legislation, requires additional depth of investigation. And it will also depend on usage by the agencies. So there are some unknowns and some knowns, but with the increasing technical requirements for oversight we will, for instance, need more technically competent or expert staff. We’ve got technically competent staff, but we will need more expertise than we presently have.

The national intelligence community has grown and evolved significantly in recent years, with new agencies, greater powers under national security legislation and ever-advancing technical capabilities, but the oversight and accountability mechanisms have remained comparatively unchanged and legislatively constrained.

Australians are entitled to expect that intelligence agencies are properly scrutinised and are held to account. If the measure of a good democracy is strong, independent and well-resourced oversight institutions, then clearly Australia’s resourcing of this office is sorely lacking.

Peter Edwards, in an article for The Strategist earlier this year, called for the next intelligence review to be upgraded to a royal commission. Such a commission should be encouraged to question the current resourcing of the IGIS, among other issues.

Further extending the resourcing of the IGIS commensurate with the scale and complexity of the intelligence agencies and their operations will strengthen independent oversight and accountability and maintain the confidence of the Australian people in the agencies’ work.

Failure to do so could see the efficacy and credibility of the IGIS dwindle to unacceptable levels, disregarded by both the Australian public and the agencies it oversees. The many parliamentary investigations and reviews into the activities of intelligence agencies both here and in the US and UK provide ample evidence that poor oversight can lead to the wrong intelligence calls being made, and can leave agencies, individual analysts and intelligence collectors vulnerable to politicisation.

Current controversies over the increasing powers of intelligence agencies—including access to and sharing of citizen data, and use of artificial intelligence tools such as facial recognition and predictive policing—are likely to only increase the future workload for IGIS in making sure that agencies are applying their new powers lawfully, appropriately and impartially. And weakened protections for public-interest whistleblowers and journalists are likely to have a chilling effect on fourth estate oversight. In these contexts, giving the IGIS the resources and legislative powers it needs to do its job is becoming increasingly urgent.