The Australian Parliament’s most secret committee is angling for more powers and the ability to conduct its affairs live on TV, just like in the USA.
The Parliamentary Joint Committee on Intelligence and Security (PJCIS) wants to emulate the high-profile intelligence committee system in the US Congress.
But it is unlikely to be open and transparent like committees operating under the close media scrutiny possible in the US. Here, draconian laws against the media, journalists and whistleblowers prevent US openness. (For example, just writing this article mentioning ASIO may be dangerous – the laws are far-reaching, and untested).
The PJCIS is responsible for parliamentary oversight of the Australian intelligence community, which includes the Australian Security Intelligence Organisation (ASIO), the overseas human intelligence agency ASIS, and other specialist security entities. The PJCIS remit usually covers administrative and expenditure matters only – it provides no oversight of, nor can it examine, “operational matters”. It can also investigate after a reference from a minister or either house of parliament.
By contrast, the statutorily independent Inspector-General of Intelligence and Security (IGIS) can look into whether security agencies are operating legally and “with propriety”. Even a previous IGIS herself (Vivienne Thom) highlighted that “propriety” was nowhere defined in the IGIS legislation or operating procedures.
While propriety is important, the policies and practices of the intelligence agencies are even more crucial. No-one – not parliament, not IGIS – is permitted to examine the thinking which determines ASIO’s workload, which is left to the independent Director-General of Security, Duncan Lewis, who is a former army special operations commander, civil national security adviser, ambassador to NATO and secretary of the Department of Defence.
The mushroom-like system was revealed recently when a bargain hunter bought the infamous “cabinet papers” tucked into cheap and keyless security cabinets in a second-hand furniture shop in Canberra. How did ASIO become involved in the cabinets matter? (see later).
The cabinets paperwork revealed that then-Immigration Minister Scott Morrison strongly indicated to ASIO in 2013 that it should dramatically slow refugee security assessments. ASIO, being independent, could have ignored the Minister, who was obliged legally to decide on refugee applications within 90 days. But ASIO subsequently managed an average waiting time of three to five years to produce assessments. Refugees rotted in detention, physically and mentally: some still do. (ASIO security assessments are problematic for a whole host of reasons: they rely on secret evidence, do not have to respect natural justice and are effectively unchallengeable in court. But that’s for another day).
PJCIS wants the power to examine such policy decisions. But it is itself a body much skewed, and not at all representative of the people, or even of the parliament. It comprises MPs from the two major parties, only. No Greens, no independents.
Its 11 members are heavily tilted towards security insiders, ‘hawks’ and other “safe hands”. The chair is Liberal Andrew Hastie, a former SAS officer well acculturated to secrecy. Other members on both sides enjoy similar backgrounds. They include Senator David Fawcett who is a former army officer and test pilot, Mike Kelly, also a former army officer, and Jason Wood, a former Victoria Police senior sergeant in the counter terrorism unit.
Another of the 11 members is David Bushby, chair of the like-minded Joint Committee on the Australian Commission for Law Enforcement Integrity. ACLEI monitors the Australian crime agencies, including the Department of Home Affairs and Australian Border Force.
At first glance, it might seem appropriate to have experienced security people on the PJCIS. But the reverse is true for transparency and openness. For example, would Australians endorse an 11-member committee inquiring into banking practices, policies and propriety if it was dominated by senior bankers, banking industry heavies and their associates?
There’s no overt ex-journalist, freedoms academic, human rights or civil liberties advocate on PJCIS. Not one. Even Penny Wong, a member, of PJCIS, is tainted by being privy, as Shadow Foreign Affairs Minister, to secret national security briefings, as is Mark Dreyfus, the Shadow Attorney-General.
The PJCIS should have half or more of its members from outside the spook and parliamentary hierarchy, “The Community” as it is called in Canberra. Both the “establishment” and the spy agencies should be rigorously examined by people who are not insiders.
The PJCIS has eight current inquiries under way (mid-February 2018). Voluntary monitoring groups like law bodies, academics, and freedom advocates have little chance of keeping pace. Much of the work of the PJCIS goes unwatched, even the bits held in public session.
Would it be good for the PJCIS to get more power, to investigate ASIO operations at the policy level? Yes, undoubtedly…but not with its current composition. Its membership now is sub-optimal to proper accountability for the nation.
Would TV coverage of the PJCIS committee enlighten Australians? Almost certainly no. The main US committee holds only about 10% of its hearings in public. The ultra-secretive system in Australia, including the PJCIS, would be much more closed than that if past practice is a guide. Also, given the ASIO Act makes it an offence punishable by 10 years in jail to identify or name any current or former ASIO officer other than the Director-General, there may be practical difficulties for news agencies to even replay PJCIS committee footage on the news. Certainly juicy revelations would remain American entertainment only.
Coming back to the cabinets fiasco. It was reported that ASIO, after a few days delay, rushed in to Parliament House to “secure the documents” in the ABC press gallery office by providing lockable safes. The very next day, ASIO was reported to have entered the ABC offices in Parliament House to take the ASIO-provided and securely locked cabinets away, presumably for ASIO management and storage.
Will the PJCIS ask ASIO some interesting questions, in public?
Who gave ASIO permission, or a warrant, to enter Parliament House, where responsibility for security usually rests with the Australian Federal Police? Were the President of the Senate and the Speaker of the House of Representatives – the two guardians of the parliament and its buildings – asked for permission by ASIO, or by anyone else, for ASIO to enter? Did Prime Minister Malcolm Turnbull and the Department of Prime Minister and Cabinet exceed their executive authority if they were the ones who invited ASIO in?
Was ASIO invited into the press gallery, and in particular into the offices of the ABC? If so, by whom and in what circumstances? Has a worrying precedent been set of easy entry to government entities by ASIO on a “security” claim?
And could ASIO explain how its “cabinets” behaviour matches up with this prime clause in the ASIO legislation?
(2) It is not a function of the Organisation – that is, ASIO – to carry out or enforce measures for security within an authority of the Commonwealth.
– Pt III, Functions/Powers, 17 (2)
If the Parliament of Australia and Parliament House are not “authorities of the Commonwealth”, surely the ABC is? And providing safes, locking documents in them, then taking the safes away for storage would appear to be “enforc(ing) measures for security”.
Bill Rowlings is CEO of Civil Liberties Australia.