Our intelligence services
On the northern shore of Canberra’s Lake Burley Griffin, in the heart of the prized parliamentary triangle, a concrete and glass monolith is rising from the dirt. On a site the size of three city blocks and with floor space measuring 62,000 square metres, it is the biggest construction project Canberra has seen since the new Parliament House, which was the most expensive building in the Southern Hemisphere when it was opened by Queen Elizabeth in 1988.
This grand edifice is to be the new home of Australia’s premier spy agency, the Australian Security Intelligence Organisation (ASIO). Costed at a staggering $585 million, the building has been called a “monster” by the architect of Parliament House. Yet it’s a fitting abode for an organisation that has grown over the past decade into one of the most powerful government bodies in the land – its staff numbers trebled, its budget increased more than sixfold to $438 million per year.
ASIO’s grandiose new headquarters are a monument to an intelligence complex on which Australia now spends around $1.4 billion per annum, out of a total national security budget of about $4 billion. According to the Australian Defence Almanac 2010–2011 published by the Australian Strategic Policy Institute (ASPI), ASIO’s slice of that pie has risen 535% since 2001. Its twin, the foreign spy agency the Australian Secret Intelligence Service (ASIS), has enjoyed a budget increase of 344%, while analysis agency the Office of National Assessments (ONA) has had a 443% bonus.
“Total funding for the Australian Intelligence Community (AIC) has increased at a pace faster than some of our allied intelligence partners,” notes a recent ASPI report. “In the United Kingdom, for example, total funding for intelligence has increased by only 68% since 2004, albeit from a higher base.”
“By almost any measure, the increase is enormous,” says Professor George Williams, founding director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales (UNSW). But like the building itself, which was approved with minimal public consultation and exempted from parliamentary scrutiny because the then government deemed it “not in the public interest”, the extraordinary growth of Australia’s intelligence behemoth has occurred in the absence of any vigorous public debate. Questioning of the fact is routinely muted by the bipartisan consensus that national security must be protected, seemingly at any cost.
“From a policy perspective, the difficulty of assessing whether these agencies are performing is that agencies such as ASIO are unaccountable – you never know what they’re doing and we’re not entitled to know, and it makes it very difficult for the community to make an assessment,” says the barrister and civil rights activist Greg Barnes. “What government is going to cut back money for the security agencies? Then it’ll leak out: ‘sources say government risks terror attack’. So they’ve got them over a barrel.”
If the government is over a barrel then the man with the spanker must be Allan Gyngell, the director-general of ONA, designated as Australia’s “peak intelligence agency”. The lean, bespectacled Gyngell – a former adviser to Prime Minister Paul Keating and head of the prestigious Lowy Institute for International Policy from 2003 to 2009 – returned to take the reins at ONA last year after a 20-year absence from the agency; he worked as an analyst back in the ’80s when the Kremlinologists still held sway.
“My last job at ONA was in ‘great power relations’ at the end of the Cold War, which was a classic twentieth-century intelligence issue,” says Gyngell. “I came back to a world and an intelligence community that’s very different. We’re seeing all the consequences of the great changes associated with globalisation that came to a head in the ’90s, and all that has followed: the eroding of borders between domestic and foreign, the rise of transnational issues that preoccupy governments from terrorism, to cyber crime, to people smuggling.” Gyngell says the most striking difference is the vast amount of information available now compared with then. “The world in which information was power has been replaced by a world in which the ability to sort and analyse information is power,” he says.
That world has spawned the phenomenal growth of the six agencies that make up the Australian Intelligence Community, of which Gyngell is nominally the head. As well as running ONA, which analyses incoming intelligence and advises the government on international issues, Gyngell co-ordinates the activities of the foreign intelligence collection services and chairs a monthly meeting of agency heads. In addition to the three civilian bodies there are three military agencies that come under the Department of Defence: the Defence Signals Directorate (DSD), which intercepts and reports foreign communications; the Defence Intelligence Organisation (DIO), which provides strategic intelligence to support military operations; and the Defence Imagery and Geospatial Organisation (DIGO), which collects visual intelligence.
Add to the mix the Australian Federal Police (AFP), who are primarily responsible for law enforcement but have their own growing intelligence capacity, and Australia seems conspicuously over-serviced. The US, by comparison, has no domestic intelligence agency; the CIA handles foreign intelligence, while the FBI doubles as domestic intelligence collector and law enforcer. Canada has only one agency with carriage of domestic and foreign intelligence. The UK has two – MI5 and MI6 – but no national police force. All of which leaves Australia with at least one more national security-cum-intelligence outfit than most of its counterparts.
Our intelligence agencies are also far more secretive than those overseas, affecting an air of subterfuge that sometimes borders on the comical. The existence of ASIS, for example, was only publicly acknowledged in 1977, 25 years after it was formed. Industry insiders tend to refer to ASIS in hushed tones and not by name, using terms such as “the other place” or “the dark side”. When I rang the public information office of the Department of Foreign Affairs and Trade (DFAT), which ASIS reports to, a media officer would not even confirm this fact. The current director-general of ASIS, former defence department chief Nick Warner, declined to comment for this article, saying the head of ASIS has never been interviewed in the media (although one of his predecessors, Alan Taylor, did hold a press conference in 2001). Compare this with the high public profile enjoyed by successive heads of the CIA. And compare the ASIS website – a handful of pages with no phone numbers listed except to a line providing career advice – with the CIA’s, which contains hundreds of pages including a kids’ page, games, a virtual tour of its headquarters and more than 300 press releases issued since 1994. (ASIS has never issued one that I can find.)
While, unlike ASIS, the ‘S’ in ASIO does not stand for ‘Secret’, our domestic agency also employs a cloak-and-dagger style. ASIO staff introduce themselves at conferences only by their first names and say they work for “the attorney-general’s department”. Until recently the ASIO switchboard operator would answer only “hello”, without identifying the agency by name. Alone in the public relations world, ASIO media officers don’t give their surnames.
Such a plethora of agencies, each jealously guarding its secrets, inevitably leads to overlap and duplication, along with rivalry, suspicion, information hoarding and turf wars. There are myriad anecdotes to this effect. A participant at a recent conference attended by representatives of various agencies in Sydney tells how delegates sniggered when an ASIO staffer told the gathering, “you can’t write my name down, so if anyone’s written my name down would you please pass the piece of paper up to the front of the room.” The speaker following him announced “my name’s [withheld] and you can write my name down and for fuck’s sake don’t hand the piece of paper up to the front.” This second speaker was reportedly furious, having learnt that ASIO had kept important new research data to itself, and went on: “This is supposed to be an adult working environment but as you can see it’s not. They lie to us continuously, and I don’t know why they do it, but it makes our job impossible.”
Gyngell says the agencies co-operate much more closely than they did 20 years ago, when they behaved like “powerful individual fiefdoms with limited contact with each other”. But Carl Ungerer, a former ONA analyst who now heads ASPI’s national security program, says the agencies still operate like vast information silos, separated by diverse histories and cultures, and with entrenched bureaucracies jealously guarding their own turf. “Their growth has made them even more siloed [and] more fearfully guarding the independence of what they do in the system, because they’re bigger and stronger now and able to operate on their own,” says Ungerer.
Assessing the performance of the Australian Intelligence Community is difficult when so little of its work is public. “Compared with their American counterparts, Australian intelligence agencies often seem draped in too much secrecy, particularly with regard to the past,” says another former ONA analyst, Ken Ward. He notes it would be virtually impossible here to write the kind of authoritative histories of intelligence that are routinely written in the US. “I think it would be better if the Australian public were better informed. If America can do it without damaging its national security, why can’t Australia?”
Occasional glimpses behind the veil of secrecy are afforded by the odd terrorism arrest, which invariably take place in a blaze of publicity, or the highly publicised disasters that occur from time to time. ASIS’s reputation has never entirely recovered from the infamous Sheraton Hotel fiasco in 1983, when masked commandos with machine-guns terrified staff and guests during a hostage-rescue exercise at the five-star Melbourne hotel. ASIS has since been overhauled and now claims to be a “dynamic”, “high-performing” organisation. But it is still regarded with mild derision by some within the high-end agencies such as ONA. (“ASIS people have to lie for their living,” one insider commented to me.) Some argue privately that separate domestic and foreign intelligence bodies are unnecessary for a country such as Australia in a globalised world. “Some say you could get rid of ASIS tomorrow and it wouldn’t make a jot of difference,” another insider says.
Even “peak” agency ONA has a chequered history in terms of performance in recent years. ONA emerged poorly from a 2003–04 Senate inquiry into whether there had been a failure of intelligence prior to the 2002 Bali bombings, which killed 202 people including 88 Australians. The focus of the inquiry by the Senate Foreign Affairs, Defence and Trade References Committee was whether Australians should have had more warning of an attack in Bali. The evidence raised disturbing questions about ONA’s role, some of which were never satisfactorily answered.
In June 2002 a team of ONA analysts privately briefed then Foreign Minister Alexander Downer on the rise of the militant group Jemaah Islamiyah, and warned of the risk of a bombing, possibly in Bali. In this respect, the ONA analysts were spot on. Downer was worried, and his staff at DFAT asked for a follow-up briefing and more information from ONA. As to what happened next, the DFAT and ONA officers involved gave startlingly different accounts. ONA staff said they gave a further briefing, as requested, with detailed information on the threat in Bali; DFAT staff said ONA never got back to them at all, with one official testifying: “As far as DFAT is concerned this meeting did not happen.” The DFAT version was corroborated by the fact that there were no notes or diary entries to support a second briefing having occurred. The Senate committee found, in direct contradiction to ONA’s evidence, that the meeting almost certainly had not taken place. It concluded: “ONA warrants criticism for failing to respond adequately to DFAT’s direct and unambiguous questions about a highly significant issue for Australians and Australian interests abroad, namely terrorism.”
ONA copped another serve after an inquiry in 2004 headed by its one-time director-general Philip Flood into the failure of Australia’s intelligence agencies to accurately assess Saddam Hussein’s weapons of mass destruction (WMD) program before March 2003, when the US and Australia invaded Iraq – purportedly to destroy a deadly WMD capacity that, as it turned out, did not exist.
The 2004 Flood report found systemic weaknesses contributed to “a failure of intelligence” by ONA – which had assessed that Iraq “must have WMD” – and, to a lesser extent, DIO. These weaknesses included “a failure to rigorously challenge preconceptions” and the absence of a “consistent and rigorous culture of challenge to and engagement with intelligence reports”. Flood pointed to a lack of dialogue between agencies and said “broader analysis … was largely absent”. The inquiry found “inconsistency in assessments, unclear presentation [and] lack of precision” and concluded: “the pool of analytical skills backed by technical and scientific knowledge is shallow.” Between the diplomatically worded lines was a scathing indictment.
Flood recommended a doubling of ONA’s staff and funding, and more focus on training and development, which have been implemented. But some question this solution. “A bigger agency is not necessarily a better one, especially if the recruitment pool for potential analysts hasn’t grown,” says Ward. More important than having extra staff is avoiding ‘group think’, an inherent peril in the intelligence world. Gyngell says rigorous new quality controls have been put in place. “We focus more on long-term issues now than before and our structures for review are stronger. Very formal reviews of all our judgements are done now, [whereby with] every judgement made, we look back over 12 months and see whether we were right or wrong, and why.” But there’s no guarantee ONA will get it right next time. “We’re not fortune tellers, we are in the business of making judgements, and we will get things wrong. But I think the internal processes for review and contestability [and] the external interactions we have with other agencies within the Australian government make us better placed to avoid such mistakes.”
The Flood report and the intelligence failure over Iraq’s WMD illustrate another major danger for an agency such as ONA: political pressure to produce intelligence that backs government policy. Between February and May 2003, ONA was asked to vet five major speeches on Iraq made by then Prime Minister John Howard. Some ONA staff were furious when Howard implied in parliament that he had the agency’s imprimatur for invading Iraq. “Howard butchered and bastardised the material we gave him,” one insider says. Former ONA analyst Andrew Wilkie, elected as an independent in this year’s federal election, resigned from ONA in protest at the time.
“As Iraq showed, so much intelligence is tainted by human agenda and bias,” comments Ungerer, who says keeping government policy and intelligence separate is the single most critical challenge. The same concern emerged during the ‘children overboard’ affair in 2001, when Howard cited an ONA report to support his claims that asylum seekers on a boat north of Christmas Island had deliberately thrown their children into the sea. The report, which was based on media coverage and the government’s own statements, was wrong.
The Flood report warned pointedly of the risk of “overt pressure from government or policy departments to reach a particular judgement,” while concluding there was “no evidence of politicisation of the assessments on Iraq”. To avoid this occurring, Flood recommended the Inspector-General of Intelligence and Security (IGIS) conduct periodic reviews of ONA’s statutory independence. Gyngell agrees this is crucial. “The only point of having an organisation like ONA is precisely so that it is standing apart from policies the government has devised and looking at the world as objectively as possible.” For the record, he adds: “I don’t feel under any pressure to deliver what the government wants.”
Down the carpeted corridor and through a glass security door, at the other end of the building from Gyngell’s office, is the domicile of the director-general of ASIO. As roomy as a five-star hotel suite and with commanding views over leafy northern Canberra, if size were any indication then this would appear to be where the real power in the Australian Intelligence Community resides. Its current occupant is David Irvine, an intelligence veteran who presided over ASIS for six years before being promoted to the more prestigious and relatively more public post at ASIO. A genial, thoughtful interlocutor, Irvine recently told an audience at the University of Canberra his policy, like that of his predecessors, is that ASIO “must assiduously avoid the media spotlight”. He has agreed to a rare interview with me because he wants the public to understand what ASIO does, and to make three specific points: terrorism poses a real threat to Australia, despite claims it is over-stated; ASIO is accountable, contrary to what its critics say; and the emerging cyber threat is “hugely important” for Australia’s security.
“The terror threat is real,” says Irvine. “There has been no major terrorist attack in Australia, but more Australians have been lost pro rata to terror attacks since September 11 than from most other western countries. There have now been no less than four occasions when I believe a mass casualty attack within Australia has been avoided only because of the good work of intelligence and law enforcement authorities.” The cases he cites include the Frenchman Willie Brigitte and Pakistani-Australian Faheem Khalid Lodhi, whose plot was uncovered in 2003; the eight men convicted of being members of a terrorist group in Melbourne in 2008; and the Sydney cell found guilty last year of preparing for a terrorist act.
Irvine stresses that ASIO’s growth has not been ad hoc but a carefully planned result of the 2005 Taylor review of ASIO resourcing that mapped out a five-year plan for expanding the agency – cut heavily in the 1990s at the end of the Cold War – by trebling its staff from 618 in 2001 to 1860 in 2010–11. Intensive recruiting has left ASIO with a workforce dominated by rookies in their twenties and thirties, which has its downsides, as commentators point out.
“Agencies such as ASIO have grown exponentially so of course there have been enormous growing pains,” says Associate Professor Ben Saul, co-director of the Sydney Centre for International Law. “Most of its staff are very junior, with less than a few years experience, and very few are highly experienced. There’s not much you can do about that when you have to expand so quickly, but it does raise questions about the quality of the work. Intelligence work requires tact and sensitivity, and if you’ve got a bunch of 20-year-olds running around tapping people’s phones, it does raise questions.”
Irvine rejects the depiction of his officers as gung-ho young door-busters, saying responsibility and accountability have become “part of the ASIO DNA”. “There will always be debate about the proper balance in a democracy between the need to protect national security and the lives of Australians, and the need to protect common perceptions of civil liberties. It is an issue the people of ASIO have to deal with every day of their working lives and they take this responsibility very seriously,” Irvine says.
We can only hope he is right because, commensurate with their expanded resources, ASIO and its officers have been entrusted with a suite of new powers that allow unprecedented intrusion into the lives of Australians who come into their orbit. Since 2002, no fewer than 45 new security laws have been passed – all but one of them under the Howard government – mainly dealing with terrorism. The clause that most alarms lawyers and civil libertarians is section 34D of the Australian Security Intelligence Organisation Act, which allows ASIO to detain people who are not suspected of any offence for questioning for up to seven days. Detainees are prohibited from revealing their detention or whereabouts to anyone, even their families.
“No other intelligence agency in a liberal western democracy has detention powers like ASIO’s,” says Dr Christopher Michaelsen, a senior research fellow in the law faculty of UNSW. “Is the terrorist threat in Australia really so severe that ASIO needs those powers?”
“The broader point,” says Saul, “is when agencies are given so many new powers it’s a pretty powerful political message being sent by government that these are powers the agencies are expected to use. It generates a lot of law enforcement activity that didn’t exist before and it inevitably leads to a whole range of over-policing.”
Irvine says the statistics on ASIO’s use of its powers show the opposite, demonstrating the “proportionality” he cites as his guiding principle. He says ASIO has used the coercive questioning power 16 times since 2003, but has never used its power to detain someone for up to seven days. Irvine says this power is “like the airbags in your car – I believe it’s necessary [to have it], but I hope it will never be necessary [to use it]”.
Critics, on the other hand, contend that this argument shows the power is unnecessary and should be repealed. “[ASIO] is an intelligence agency, it’s not supposed to be a law enforcement agency,” says barrister Cameron Murphy, president of the NSW Council for Civil Liberties, which monitors ASIO’s powers and activities. “Last year alarming new powers were given to ASIO to carry weapons and investigate certain crimes, such as people smuggling. There have been extensive increases in the powers of surveillance. Telephone intercepts have gone up massively. The last comparison we did showed that, per capita, Australia has about 26 times the rate of phone intercept warrants as the United States.”
Australia’s reliance on listening devices and telephone intercepts also contrasts dramatically with the UK, where electronic intercept material cannot be used as evidence in court. Here, some of the most high-profile terrorism cases, such as the convicted Melbourne terror cell and the case currently being tried over the alleged Holsworthy plot, have relied heavily on bugged conversations among the accused terrorists, which would not have been admissible in a British court.
The veil of secrecy cloaks all court proceedings where national security is involved. Under the National Security Information (Criminal and Civil Proceedings) Act, whenever evidence deemed to impinge on national security is to be introduced, the attorney-general must be notified so the court can be closed to assess whether the evidence can be heard. Lawyers in some terrorism trials have had to undergo security checks and sign secrecy agreements that prevent them disclosing classified evidence, even to their clients. The use of so-called ‘criminal intelligence’, secret evidence that can be heard in the absence of an accused person and his or her lawyers, has spread from counterterrorism legislation into other areas of the law governing security, firearms, liquor licensing and motorcycle gangs.
In ASIO’s case, the court-sanctioned secrecy ensures its ventures onto the “dark side” – in the words of former American Vice President Dick Cheney – are kept well out of public view. Former terrorism suspect and Guantanamo Bay inmate Mamdouh Habib is currently suing the Commonwealth, alleging it was complicit in his 2001 capture by the CIA in Pakistan and subsequent “rendition” to Egypt. The central question in Habib’s case is whether ASIO effectively gave the green light to his transfer to Egypt, where he was detained and tortured for seven months. Establishing the truth of this may take years and may ultimately prove impossible, because virtually every detail of Habib’s treatment is exempt from disclosure because of ‘national security’.
“It’s all bullshit,” argues Peter Faris, QC and former chairman of the National Crime Authority. “A lot of security related evidence is completely overrated. My experience with secret organisations is not only do they use it to cover up material that’s sensitive, but they use it to cover up all material including errors they’ve made. There is no transparency or accountability, and that’s my concern.”
Irvine is impatient with such accusations. “There continues to be this mythology that because an organisation like ours has to operate with a level of confidentiality that doesn’t apply to other government agencies, that somehow or other we are not accountable. We are.” The caveat is that accountability does not equal transparency. “The balance is to be secret but accountable. There [can be] no transparency about our operations. To give away your operational methods and targets in a public forum is simply to reduce your capacity to use those methods against your targets.”
Irvine argues ASIO is accountable several times over because it answers to the attorney-general, Senate Estimates and the parliamentary joint committee on intelligence and security, it requires warrants to use its special powers, and it is oversighted by the IGIS. That post of inspector-general has been held by Dr Vivienne Thom, a former deputy ombudsman, since April this year. IGIS’s role is to see that “Australia’s intelligence agencies act legally, ethically and with propriety”. The organisation is modestly equipped, with a budget of $2 million and 12 staff, an increase from four a decade ago. IGIS and the agencies it monitors like to point out that the inspector-general has strong investigative powers, “akin to those of a Royal Commission”. But they are rarely, if ever, used. Dr Thom says as far as she knows the power to demand entry to Australian Intelligence Community premises has never been used, while the power to compulsorily obtain documents and information is not usually needed because the agencies generally co-operate.
“I have found them very open and willing to give me information,” she says. “In fact, they welcome the scrutiny we bring to their work and the assurance we provide to their ministers. I suppose it enhances their reputation.” A snapshot of the inspector-general’s work can be found in IGIS’s last published annual report (2008–09), which details the outcomes of three inquiries initiated by the organisation. The first examined whether there had been improper pressure placed on DIO over its input into the annual Defence White Paper process. The second reviewed ASIO’s role in the aborted terrorism trial of Sydney medical student Izhar Ul-Haque. And the third examined whether DSD staff had covertly investigated then Defence Minister Joel Fitzgibbon over his dealings with Chinese businesswoman Helen Liu. In all three cases IGIS found in favour of the agencies; sceptics say this reflects a typical pattern. Dr Thom insists IGIS is “very thorough and rigorous” and says claims of bias are difficult to rebut because IGIS too works in secret. “The public ventilation of this material could be potentially very harmful to those persons involved in its collection, or compromise collection methodologies, neither of which would serve the national interest,” she says.
If the contest for intelligence turf and taxpayer dollars is sometimes acrimonious, it is most often so between ASIO and the AFP. Both agencies have for years enviously eyed the dual role – intelligence gathering and law enforcement – enjoyed by America’s FBI, prompting much muscling in by each on the other’s territory. The relationship is characterised by mutual disdain. The spies see the cops as blundering plods, while the cops view the spies as overpaid spooks who have no idea about the real business of fighting crime. “ASIO people froth at the mouth about the ‘wooden heads’ at the AFP,” says one veteran. ASIO staff roll their eyes at the AFP’s use of the term “federal agent”, copied from the FBI, and clench their teeth over the empire-building believed to have gone on under former AFP Commissioner Mick Keelty, which included an expansion of the force’s intelligence division. “People like Keelty hung onto this ridiculous vision of an FBI-type role for the AFP,” the same veteran continues. “They do need intelligence as backup for their investigatory capacity, but [they should] stop trying to be a poor man’s ASIO.”
The testy working relationship came to a head in two recent cases: that of Izhar Ul-Haque, who was accused of training with the Pakistani militant group Lashkar-e-Toiba; and that of Indian doctor Mohamed Haneef, who was charged then exonerated over his links to a terror cell in the UK.
Ul-Haque was arrested in Sydney in November 2003 after two ASIO officers picked him up at a suburban railway station and said to him: “You’re in serious trouble. You need to talk to us and you need to talk to us now.” They took him to a public park for questioning and then to his home where they interviewed him again while his house was being raided, before turning him over to the AFP. Ul-Haque later testified that he was shocked and frightened, and feared he would be physically harmed or deported if he didn’t co-operate. When Ul-Haque went to trial in 2007, NSW Supreme Court judge Michael Adams ruled that admissions he had made to the AFP, on which the case rested, were so tainted by the “oppressive and improper conduct” of the ASIO officers as to be inadmissible. Justice Adams said ASIO’s detention of Ul-Haque amounted to false imprisonment and kidnapping under common law. The charges were withdrawn as a result.
ASIO’s humiliation was heightened when, after Justice Adams’ comments, Mick Keelty called an AFP inquiry into the Ul-Haque case, headed by former NSW Chief Justice Sir Laurence Street. This came at the height of the Haneef affair, when the AFP itself was under heavy pressure over its own perceived blundering. The Street inquiry “was a sop”, says an ASIO insider. “It was seen as political artifice by Keelty to shift the opprobrium onto ASIO.”
The Street report recommended, among other things, a string of reforms to enhance co-ordination between the two bodies. Justice Adams’ suggestion that the two ASIO officers should be charged was rejected by an IGIS inquiry into the matter. Nor were they counselled or disciplined, as the prevailing view in ASIO was – and remains – that they had just been “doing their job”.
The tables were turned with the case of Mohamed Haneef, arrested in July 2007 after his cousin was involved in attempted terrorist bombings in London and Glasgow. This time it was the AFP who stumbled, repeatedly extending Haneef’s detention under the draconian provisions of the counterterrorism laws, and ultimately charging him with supporting terrorists, despite demonstrable lack of evidence to support the charge, which was eventually withdrawn by the Director of Public Prosecutions. Details supplied to the Clarke inquiry in 2008 showed that throughout the saga ASIO repeatedly advised the government and the AFP there was no evidence Haneef was involved in or had foreknowledge of the events in the UK, or posed any security risk himself. This repeated advice was assiduously ignored by the AFP.
“They ignored it because they were following their own agenda,” says an inside observer. “The Haneef case showed a police service that seemed to be out of control, operating in the national security space, refusing to acknowledge the [ASIO] threat assessments because ‘we’re the counter-terrorism experts’, when in fact they’re not.” ASIO was commended by IGIS for showing “good moral courage in expressing its views”. But this same observer asks: “Why the hell didn’t the director-general of ASIO go around and see Keelty and say ‘listen, you’re wrong’?” The answer, some believe, is that ASIO was content to watch the AFP squirm. As a high-ranking ASIO officer remarked smugly at the time: “We tell the AFP everything they need to know.”
The Street report, the Clarke report and numerous other reviews over the years have focused extensively on ‘inter-operability’, the prevailing jargon for co-operation and co-ordination between the agencies, or lack thereof.
Irvine agrees it’s a major challenge and says a great deal of work has gone into achieving it. “I think the culture in this organisation has had to change more than anyone else’s, and you don’t do that in a week. I’m pretty pleased with how we’re going.”
The most recent initiative is the appointment by the former Rudd government of a National Security Adviser (NSA), who works out of the prime minister’s office and chairs a new National Intelligence Coordination Committee, to ensure the agencies are “closely aligned [and] effectively integrated”. Australia’s first NSA, the former SAS commander Brigadier Duncan Lewis, did not respond to my calls. “He doesn’t do interviews,” a media officer in the Department of the Prime Minister and Cabinet told me.
However, the new set-up is conspicuously flawed. One problem is it centralises control in the prime minister’s office, potentially leading to greater rather than less politicisation of intelligence efforts. Another is that the NSA is a political appointee with no statutory office or legislative powers. A third is that the position is entirely outside the accountability umbrella of IGIS. A report in September by the ASPI noted: “Other than just pushing this task [co-ordination] higher up the food chain to the NSA, there has been very little by way of legislative or structural changes to the national security agencies that would drive improved cohesiveness.”
Other reforms promised in the wake of the Haneef debacle have stalled. Amendments to the counterterrorism laws that would reduce the length of time a suspect such as Haneef can be held without charge have yet to be passed, while legislation to appoint an independent monitor to oversee the laws was approved by parliament in March but the position has yet to be filled. “Legislative changes haven’t been made to prevent [a recurrence of] Haneef. In terms of the law there hasn’t been one jot of change,” says Professor Williams.
Australia’s intelligence agencies are about to face yet another review, a follow-up recommended by the Flood report six years ago. The terms of reference and who will head it have yet to be announced. There will be calls for a comprehensive re-think of Australia’s counterterrorism policy and laws, as well as of the enormous resources thrown at the intelligence and national security agencies since 2001. Terrorism sceptics such as UNSW’s Dr Michaelsen argue the allocated resources vastly outweigh the “negligible” risk. “More Americans have drowned in the bath than have been killed by terrorists in recent years. The risk of being killed in a terrorist attack in Australia is one in 33 million, compared with the risk of getting killed in a traffic accident, which is one in 15,000,” he says. The more time elapses since a major terrorist incident, the more traction this argument gains.
“Is the money justified?” asks Ungerer. “Ten billion dollars in new money spent over and above regular departmental costs since 2001. That is a lot of money in anyone’s terms.”
As ASPI’s recent report noted, overwhelming across-the-board increases mean hard questions about where funding should be prioritised have largely been avoided. “Entrenched bureaucratic bottlenecks and unnecessary silos” still bedevil the AIC. And the need for strong leadership and ongoing reform have been relegated in favour of a policy of throwing more money at every new problem that arises – such as the $69 million for biometric scanning at airports provided in the last federal budget after the 2009 Christmas Day bombing attempt in the US. “We have this kind of plug system rather than any broad systemic analysis of where we want the Australian Intelligence Community to be in five, ten or 20 years,” Ungerer says. The bottom line for the agencies is succinctly stated in the ASPI report: “Sustaining this level of funding will prove increasingly difficult in the absence of a major national security incident on Australian soil.”