Security at what price? Keeping safe, while staying free
Professor Glyn Davis AC, Secretary, Department of the Prime Minister and Cabinet delivered a speech at ANU National Security College’s Securing our Future conference.
PM&C Secretary Glyn Davis on Australia's national security
Australian National University, Canberra
Wednesday, 10 April 2024, 3.45pm
Let me acknowledge the Ngunnawal people as traditional custodians of these unceded lands and recognise other Aboriginal people with connection to the lands of the ACT and region.
We are privileged to be on your country, to benefit from the continuing culture and care you bring to this community.
Good afternoon and thank you for the honour of addressing the ANU National Security College’s Securing our Future conference.
In particular, let me thank Professor Rory Medcalf for the invitation and for the close association between him, the College and the Department of the Prime Minister and Cabinet.
Whenever invited to consider the future it makes sense first to reflect on the past.
On this occasion, let me turn back the clock about forty years.
In 1983, Justice Robert Hope was deep into an inquiry into the performance and accountability of Australia’s intelligence agencies.
It was the second such Royal Commission he’d led in a decade.
At their heart, the 1973 and 1983 Hope inquiries asked a question that remains front and centre:
How do we safeguard our national security without undermining the way of life we are trying to protect?
Justice Hope addressed the threats of his time. These have only grown
… from extremism and terrorism …
… to hacking and cyberattacks …
… from hostile foreign interference …
… to conventional conflict …
… and the corrosive effects of misinformation and disinformation.
There has been a commensurate increase in the tools and resources intelligence and security agencies can deploy since the Hope reviews.
These include foreign interference, espionage and border-protection laws …
… as well as control orders and advanced surveillance …
… information gathering …
… and data-analysis capabilities.
There is a continuous rebalancing – as the scale and sophistication of threats evolve so we must develop an equally sophisticated response.
Naturally this accumulation of powers and abilities in pursuit of national security happens in a context.
For we are securing our values and identity as a democratic and multicultural nation.
For good reasons - greater fidelity to our democratic principles reinforces security: a more tolerant society is more cohesive; governance that is accountable gains stronger community acceptance and support.
As Justice Hope recognised, the preservation of our democratic way of life should be the overriding imperative. He confirmed the need for security services but, with equal emphasis, the importance of scrutiny and accountability.
That important balance – work to safeguard democracy, recognition that accountability must apply to everyone with that mission – has become the touchstone of the national security community.
Justice Hope’s findings laid the foundations for the laws, doctrines and oversight arrangements under which intelligence agencies — and the broader project — operate today.
It is a community which now works with important accountability agencies, including the Office of Inspector-General of Intelligence and Security, the Parliamentary Joint Committee on Intelligence and Security and, more recently, the Independent National Security Legislation Monitor.
A complex apparatus
When Justice Hope produced his two reports, national security operated in a very different world.
Phones weren’t mobile, computers were as big as cabinets, and mail was delivered to a letter box.
Without the convenience of emails, mobiles and encrypted messaging, coordinating people and groups, innocently or otherwise, was difficult.
Back then, one of the primary tools of surveillance was the phone intercept — a laborious process involving physically installing an electrical intercept, and then transcribing the often tedious and irrelevant calls captured on tape.
Today, everywhere in the world is a mouse-click away. Even thinly resourced entities, innocent and otherwise, can organise and operate transnationally.
Australian-based individuals and groups can readily connect with like-minded counterparts overseas, sharing information and ideas.
This has been a boon for business, research, cultural activities and so many other aspects of modern life.
But, unfortunately, the same accessibility is available for anyone with ill-intent.
That can mean criminal gangs, terrorist groups, and foreign states with a malevolent purpose.
There are so many opportunities, so many potential avenues.
So Australia’s national security community has adapted.
For example, every day the Australian Signals Directorate, or ASD, collects and analyses enormous volumes of foreign digital communications …
… disrupts cyber-enabled crime …
… and leads the government’s response to the growing number of serious cyber incidents.
In this highly-interconnected age the task is not just protecting our information from hackers.
It is also about the integrity and availability of the data and systems we depend on in our everyday lives — from internet and mobile communications, to healthcare and our electricity and water distribution. As we see from current conflicts, all become targets.
ASD is the core of a significant expansion of the nation’s cyber capabilities.
Through REDSPICE, which will expand the range and sophistication of ASD’s intelligence, offensive and defensive cyber capabilities, ASD will recruit an extra 1,900 officers over the next decade.
It is part of the National Intelligence Community that collectively employs in the order of 9,000 people and brings together ten agencies to protect and enhance Australia’s security, prosperity and sovereignty.
But the security effort extends beyond those agencies immediately identified with the National Intelligence Community.
Departments and agencies — including Defence, Home Affairs, the Australian Federal Police, Foreign Affairs and Trade, Prime Minister and Cabinet, Attorney-General’s and Treasury — all host significant national security functions.
These include broader policy, regulatory and enforcement responsibilities.
Many areas of domestic policy, once at arms’ length from national security, today have a national security overlay.
Think about –
- The Australian Electoral Commission.
- The Bureau of Meteorology.
- The Reserve Bank.
- Medicare.
- Centrelink.
All of these institutions — and others like them — are sources of national strength.
But they are also potentially vulnerable.
The same can be said for many sections of the private sector. The threat of critical infrastructure disruption is real, and could have far reaching consequences.
Although not caused by a malicious actor, the widespread disruption caused by last year’s Optus outage comes to mind when illustrating the scale of potential harm.
Around 10 million customers and 400,000 businesses were affected, as well as hospitals, public transport systems, payment systems, and calls to the Triple Zero emergency service.
As the incident highlighted — and as the Prime Minister and Deputy Prime Minister have said — preserving and protecting national security must be a ‘whole of nation’ effort.
Evolving threats, thorny questions
This increasingly challenging strategic environment creates some thorny questions for legislators.
Since the year 2000, at least 124 Acts related to national security have been passed in Australia …
… at last count, there were around 3,000 pages of relevant legislation ….
… and 800 secrecy provisions.
And every time an Act of this nature is proposed, our lawmakers are presented with the same challenge: strengthening national security while remaining true to our democratic values of openness, transparency, integrity, tolerance, human rights and the rule of law.
Inescapably there is inherent tension between protecting and promoting the rights of the individual and the collective interest of national security and public safety.
It will always be a balancing act — not easily achieved, often contested, and hopefully always open to public debate.
Let me offer two examples to illustrate this tension, and the difficult choices facing lawmakers.
One involves election campaign laws.
Australia is highly regarded internationally for the integrity of our elections.
The Australian Electoral Commission is regularly called upon by international partners for advice and expertise on how to conduct reliable and robust elections.
To help ensure the fairness of our elections, there is a blackout on election ads on television and radio for the final three days of the campaign period, including polling day.
But the impact of the ban — which only applies to broadcasters — has been diluted by the internet.
While the clamour of political ads on TV and radio falls silent in the final days of campaigning, online it is a different story.
There, the messaging never stops.
While the law requires that groups or individuals must put their name to internet advertising, that’s about the extent of the regulation.
Currently, there is little to prevent even the most misleading and outlandish claims being made.
That may change.
The Electoral Matters Committee of Parliament has pointed to truth in political advertising laws.
But messages do not have to be overtly party-political to potentially sway opinion.
The spread of election-related misinformation and broad disinformation online — much of it originating beyond our national borders — is worrying.
While misleading political statements are nothing new, in recent years there have been increasing attempts to undermine confidence in the election system itself, such as claims unvaccinated voters wouldn’t be allowed into polling places …
… or ballots marked with pencils may be open to tampering.
A taskforce that brings together the Australian Electoral Commission and intelligence agencies is helping mitigate the risk. ASIO has, and will continue, to disrupt attempted foreign interference in elections.
But the proliferation of false and misleading messages online has called the effectiveness of the technology industry’s voluntary code of conduct into doubt.
Ministers have called for social media platforms to be more committed and active in policing what appears online without compromising freedom of expression.
It is a difficult tightrope to walk, a high wire act between the values of a democracy and threats to those same liberties.
Another example of the tension between freedom and security is the treatment of violent or extremist material.
ASIO Director-General Mike Burgess warns that extremist online content can radicalise some people in a matter of days or weeks.
It is not illegal to hold confronting opinions.
As Mr Burgess puts it, people have views that “are awful — but still lawful”.
So any response must be sensitive to the right of free speech — something that distinguishes liberal democracies like Australia from autocratic regimes – yet recognise that rights are constrained when exercising them harms others.
So while Australians are free to hold whatever opinions they like, expressing them may be another matter.
Words have consequences — sometimes terrible ones.
For this reason, there are laws against hate speech at the federal and state levels. We cannot just slander another person, threaten them, or incite violence.
So how, for example, to handle the act of viewing terrorist-related material online?
Britain has made this a crime liable to a sentence of up to 15 years.
And what of changes made to Australia’s Criminal Code in 2018, making it an offence to disclose or ‘deal with’ any information made or obtained by an intelligence agency?
The Independent National Security Legislation Monitor, Jake Blight, held public hearings on these laws last month.
As he said,
“… secrecy offences have an important role to play in protecting national security … There is some information which in the wrong hands could genuinely harm those interests.”
But he went on to say,
“We always have to balance this, so that in empowering our national security, police and law enforcement agencies to do their important work, we have to always be careful that the very democracy we are asking them to protect isn’t getting undermined.”
Quis custodiet ipsos custodes (who guards the guardians)
Independent Monitor Jake Blight makes clear the strain between necessary secrecy for intelligence agencies and the values and liberties that make us who we are.
Justice Hope said the balance was “no simple or easy thing”, he also believed “… in the final analysis, public safety and individual liberty sustain each other”.
But, it is worth noting this system — as substantial as its powers and resources are — is subject to significant degrees of scrutiny and accountability.
Since the inaugural Hope Royal commission in 1974, the intelligence community has been the subject of regular reviews — the most recently completed being the 2019 Richardson Review.
Drawing on the Richardson Review, the Government focused on strengthening oversight of intelligence activities.
Laws which implement Richardson recommendations to upgrade the functions, powers and operations of the Inspector-General of Intelligence and Security, and the powers of the Attorney-General regarding ASIO, were passed last year.
Legislation is currently before parliament to enhance the ability of the Inspector-General and the Joint Committee on Intelligence and Security to scrutinise all 10 agencies in the National Intelligence Community.
These proposed changes would empower the Parliamentary Committee to request Inspector-General investigations and ensure annual briefings from both the Inspector-General and the Director-General of National Intelligence.
In addition, as part the cycle of post-Hope evaluations, the Government has commissioned the latest Independent Intelligence Review. The Review asks how well the intelligence community is operating within recommendations from previous reviews to support the nation’s national security priorities. It is due to report mid-year.
Such moves show Government and Parliament expect intelligence agencies to be held accountable.
There are also oversight mechanisms in place for those other departments and agencies involved in protecting our national security.
Each is subject to the strictures of the Public Service Act and the Public Governance, Performance and Accountability Act, as well as parliamentary scrutiny.
Such supervision needs to be as transparent as possible — consistent with justifiable requirements for confidentiality around operational secrecy.
We need intelligence and security agencies to have the powers, resources and capabilities they need.
But accountability is also about ensuring the powers they have and exercise are proportionate.
Much of this takes place in the public sphere — thanks not just to formal scrutiny bodies but to parliamentary committees, the agencies themselves, external experts, civil society groups, and the media.
In a democratic society — one that treasures the rule of law — this is as it should be. We need a constant conversation about the role of the National Intelligence Community, because its role will change as public expectations, new technologies and, alas, new threats emerge.
One important innovation, arising from a recommendation of the 2017 Independent Intelligence Review was the evolution of the long-standing work of the Office of National Assessments, to create the Office of National Intelligence, or ONI, with a mission and autonomy set out in legislation.
ONI leads the National Intelligence Community with Director General Intelligence appointed as the principal adviser to the Prime Minister on intelligence matters. ONI has an evaluation role and oversees a fund designed to foster collaboration and integration within the Community by incentivising the development of joint capability.
Conclusion
Looking to the past to think about the future underscores the continuous evolution of Australia’s intelligence community, and indeed the broader apparatus of national security.
As the 2024 ASIO Annual Threat Assessment makes clear, constant adaptation reflects the ever-shifting and growing constellation of risks and threats that surround us.
The nature and extent of its capabilities are a far cry from those they possessed when Justice Hope undertook his reviews, and so began shaping the National Intelligence Community.
New issues play into established themes.
Hence malicious cyber activity — particularly in an age of the rapid adoption of artificial intelligence — has become a significant area of concern. Its aim is often all too familiar - espionage and foreign interference, and could extend to critical infrastructure disruption in crises and conflicts.
And while much of the focus remains on the state actors, recent experience stresses the threat from highly organised ideological groups and motivated individuals.
The size of the task facing the sector is formidable — but so is the expertise in our national intelligence community. There are thousands of Australians contributing their working lives to responsibilities they cannot discuss with family and friends, where work to stop something happening may be the most important contribution they ever make.
It is a community in which values matter, and I know from many conversations the intelligence community recognises the demands of national security must be balanced against the values and freedoms that make Australia a vibrant democracy.
Mike Burgess, for example, says that in tackling security threats,
“… it is right we consider civil liberties and keep under review the right mix of powers to protect people’s rights and the safety of the community.”
He argues that, far from being contradictory, protecting security is actually complementary with the right of citizens to privacy.
ASIO, he says, is committed to safeguarding the security of Australians and their liberties — protection from wrongs while securing their rights.
The inherent tension can mean chafing on both sides – citizens worried about privacy, intelligence agencies dealing with restrictions imposed in the name of individual rights and democratic values.
Yet, in my experience, there is widespread recognition of such limits as legitimate, agreement that scrutiny and accountable are necessary democratic checks.
By the time the next independent intelligence review rolls around, in five years or so, the world and its threats will have changed again. On the track record of the past forty years we can predict the wider intelligence and security will have pivoted to those challenges, as it has through the decades. The tension will remain – but still understood, in the context of the outcome we all want: a safe and secure Australia in which intelligence plays a vital role, with a national intelligence community that lends all its considerable expertise and heft to living and supporting our democratic values.
