Government responds to NIC review recommendations

The Commonwealth government has released its response to the former secretary of defence Dennis Richardson’s Comprehensive Review into Intelligence Legislation (Richardson review).

Richardson has issued 203 recommendations, aimed at simplifying the “unnecessarily complex” legal framework governing the intelligence community and streamlining processes for the authorisation of intelligence activities.

The recommendations include:

• introducing a new electronic surveillance Act to address complexities in existing legislation;
• bypassing judicial oversight by enabling ministers to continue authorising intelligence activities;
• establishing an independent panel to provide technical expertise and assistance to the Inspector General of Intelligence and Security; and
• establishing the Australian Geospatial-intelligence Organisation (AGO) as a statutory authority before acquisition of a sovereign geospatial intelligence space capability, with the timing to be revisited as part of future independent intelligence reviews.

In its response, the government has endorsed all but four of Richardson’s recommendations.

Among those rejected by government, are recommendations to:

• refrain from amending the Criminal Code to provide ADF personnel with immunity for telecommunications offences; and
• ensure the Australian Criminal Intelligence Commission (ACIC) remains subject to the Freedom of Information Act.   

According to Attorney-General Christian Porter, the review affirms that this framework has been “well-maintained” and is “largely fit for purpose”.

“The review shows not only do our agencies work tirelessly to keep Australia safe, they are just as focused on making sure they do so within the limits of the law,” the Attorney-General said.

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“The government will ensure that these agencies continue to have the powers necessary to keep Australians safe against new and emerging threats. They will be backed by the oversight necessary to maintain the trust and confidence of all Australians.”

Attorney-General Porter added: “The government’s response to the Richardson review lays out a pathway for the evolution, rather than revolution, of Australia’s intelligence and security agencies.”

Reflecting on Richardson’s recommendation for a new electronic surveillance act, the Attorney-General commented: “The use of these powers is subject to strict safeguards, independent oversight and a range of transparency and accountability mechanisms.

“However, the review found that the existing framework has become unnecessarily complex, and in many ways has been outpaced by technology, and requires major reform.”

The new framework is expected to replace the parts of a number of existing acts that govern electronic surveillance powers, including the Telecommunications (Interception and Access) Act, the Surveillance Devices Act and the Australian Security Intelligence Organisation Act.

The government is now expected to commence consultation with industry and the public on this new framework, led by the Department of Home Affairs.

“The Telecommunications (Interception and Access) Act was developed in 1979. It has lasted remarkably well, but is no longer fit for purpose in the digital world of the internet, smartphones and end-to-end encryption,” the Attorney-General added.

“This will be one of the biggest national security legislative projects in recent history – requiring the repeal and rewriting of nearly 1,000 pages of laws.”

Meanwhile, Richardson's recommendation to enable ministers to continue authorising intelligence activities without judicial oversight has been criticised by the Law Council of Australia. 

Law Council president Pauline Wright said the absence of judicial oversight would erode public confidence in the intelligence community. 

“This would reinforce Australia’s status as a major outlier within the Five Eyes Alliance,” Wright said.

“The United States, United Kingdom, Canada, and New Zealand all have judicial authorisation requirements for their intrusive intelligence collection-powers.

“The Law Council accepts that powers that limit rights and liberties are often necessary for intelligence agencies to keep us safe and protect our national interest. But for the public to have trust and confidence in covert activities it is essential the utmost independence and rigour applies when granting authorisations. Judicial authorisation is essential to creating and maintaining that state of trust.”

However, the Law Council expressed in principle support for most of Richardson's recommendations, including his call for new legislation. 

“Details of the implementation of these amendments to existing legislation will require close scrutiny by civil society and Parliament, and it is important that the government provides adequate opportunities for this to occur,” Wright added.

“The Law Council calls on the government to now work constructively and collaboratively with the national legal profession in the development of legislation.”

[Related: Local industry invited to support geospatial intelligence program]