National security review recommends complete overhaul of electronic surveillance - but will it work?

The most extensive review of Australia’s intelligence sector since the 1970s has released its public report.

The Comprehensive Review of the Legal Framework of the National Intelligence Community – the “Richardson Review” – culminated in a four-volume declassified report containing 203 recommendations (13 of them classified).

It has been embraced by the government, which took almost a year to consider the classified report (described by Attorney-General Christian Porter as needing “to be carried around in a wheelbarrow”).

The undertaking was enormous. In the 19 years since the terror attacks of September 11, 2001, federal parliament has introduced 124 separate acts concerning the national intelligence community. On the whole, these acts have enhanced government power, increased secrecy, and scrambled to keep up with a constantly evolving threat environment. The result is one of the most complex legislative landscapes in the world.

Read more: Australia has enacted 82 anti-terror laws since 2001. But tough laws alone can't eliminate terrorism

Shining light into the shadows

The intelligence community operates in the shadows. So it is significant that this extensive (and expensive, to the tune of A$18 million) inquiry has resulted in a public report and recommendations. The report provides a valuable insight into the intelligence sector: its powers, functions and room for improvement.

But it must be acknowledged this was essentially – and perhaps necessarily – an internal inquiry.

The review was chaired by retired senior public servant Dennis Richardson. His former roles include head of ASIO and secretary of both the Department of Foreign Affairs and Trade and the Department of Defence. Consultation focused on Commonwealth, State and Territory agencies and departments. Only 16 submissions were received from non-government sources.

This means the inquiry had the high-level access and expertise necessary for a truly comprehensive review.

It also makes it less surprising the government has agreed (in whole or part) to all but four of the review’s recommendations. Indeed, many of the recommendations affirm the current state of the law and the sector as a whole. The review’s engagement with civil liberties, democratic freedoms, whistleblower protections and such, is restrained. Instead, it focuses on other aspects of the rule of law, particularly legal clarity and (internal) oversight.

An electronic surveillance act is a good idea - in principle

The sheer scope of the Richardson review means its far-reaching recommendations will be mulled over for years.

However, the report contains one clear centrepiece: the introduction of a new electronic surveillance act. This, Porter says:

…would be perhaps the biggest national security legislative project in recent history.

While Richardson estimates the introduction of the act could take five years and a budget of A$10 million, the government has agreed to pursue the idea.

The simplification of Australia’s surveillance legislation will be welcomed by anyone who has grappled with the monstrously complex Telecommunications (Interception and Access) Act 1979 (TIA act).

An electronic surveillance act would retain the same basic processes that exist now; the changes would focus on clarity and modernisation.

The attorney-general would also keep a key role in issuing a range of warrants – the report advises against a greater role for the judiciary in this respect. The primary focus remains on intelligence and investigatory aims.

New powers and access to telecommunications data would be granted to the Australian Transaction Reports and Analysis Centre (AUSTRAC), Australian Border Force and corrective services agencies.

But the report warns against giving other agencies new powers. The Australian Signals Directorate, for example, (which a leaked 2018 memorandum suggesting it could be given domestic surveillance powers) should not be given “an onshore crime-fighting role” as this would “dilute its mission” and “constitute a profound break with the principles which have stood us in good stead”.

Read more: Explainer: how the Australian intelligence community works

Centralising oversight

Oversight is crucial for the powerful security sector, but also presents tricky problems of security and secrecy (as demonstrated by the Witness K affair). Richardson decries the existing oversight framework in the TIA act as “a dog’s breakfast”, and recommends centralising national oversight in the Commonwealth Ombudsman.

A similar emphasis is given to the Inspector General of Intelligence and Security (IGIS). Numerous enhancements to the oversight powers of the IGIS are recommended, including allowing the Parliamentary Joint Committee of Intelligence and Security to request the IGIS undertake an investigation. However, this latter recommendation has been wholly rejected by the government.

While this marks the culmination of an immense investigation, the Richardson report is the beginning, rather than the end, of a journey.

It needs to be read alongside the countless other reports and inquiries that have recommended important changes to Australia’s counterterrorism, data surveillance, whistleblower protection and other frameworks.

Read more: Why the raids on Australian media present a clear threat to democracy

A starting point for reform

The government has committed to a complete overhaul of its electronic surveillance powers and processes. The Richardson report lays the groundwork for this. It synthesises the views and experiences of Australia’s vast intelligence community and presents a crucial starting point for reform.

However, the process of rewriting the rules on electronic surveillance should include myriad voices beyond the intelligence community. Ideally, this would involve not only experts in law, rights and privacy, but also technology, AI, telecommunications, criminology and more.

The review gives a nod to a few of the complicating factors in the future of electronic surveillance – including the rise of artificial intelligence, the capacity to use the 5G network as a tracking device, and the pervasiveness of cyber crime.

Data surveillance laws are rarely subject to effective oversight or public accountability. This was borne out, for example, in the Commonwealth Ombudsman’s 2019 report on warrantless access to retained telecommunication data. It revealed widespread misconduct and an average of 1000 accesses to Australians’ data each day.

An electronic surveillance act is a good idea, in theory. It will take a lively and considered public debate to ensure it becomes a good idea in practice – capable of not only protecting our safety and security, but democratic accountability and basic freedoms as well.