How to keep national security legislation transparent

Paul Meyer considers the Australian model for amending national security legislation.
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October 17, 2014
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Providing proper oversight for security and intelligence agencies has often been a challenge for governments. Even the most advanced democracies have had difficulty balancing the rule of law (and its attendant requirements for transparency and justice) and ensuring that national security-related activity is not compromised. When one adds to the mix a complex threat environment and a rapidly changing technological context, the operational challenges can seem daunting.

Faced with such difficulties, both politicians and public servants can be inclined to let sleeping statutes lie and carry on their work on the basis of ad hoc internal modifications and ministerial authorizations under the convenient mantle of secrecy.

In a mature democracy, however, this is not an acceptable state of affairs.

Democracies depend on laws that have been developed and adopted by empowered parliaments under the clear light of public scrutiny. Ideally, in addition to the direct action of elected representatives there will also be an opportunity for civil society to give input in these processes and for an independent media to report and comment on them.

In light of the Canadian government’s announcement Thursday to amend its law governing the Canadian Security Intelligence Service, it is useful to look for models on how a democratic government should proceed with any effort to modernize national security legislation. I think there is much merit in considering the case of Australia.

Earlier this month the Australian Parliament completed the process of adopting a set of amendments to existing laws governing Australian security and intelligence (S&I) agencies entitled the National Security Legislation Amendment Bill (No.1) 2014. (Here’s to legislation bearing accurate and neutral titles.)

The bill came with a 34-page explanatory memorandum from the Attorney General that set out in relatively clear, accessible language, the nature and rationale for the legislative changes being proposed. These changes covered a wide gamut of issues from the arming of certain officers to the scope of computer access warrants for the purpose of intelligence collection.

While one can debate the merits of specific amendments contained in the bill, the process by which it was developed was remarkable for its transparency and the quality of assessment applied to it. The bill presented this fall was the final iteration of a process of consultation with parliament and the interested public that had been going on for more than two years.

The parliamentary focus for this consultative process was (and is) the Parliamentary Joint Committee on Intelligence and Security (PJCIS), a bipartisan committee of both the Senate (which is elected in Australia) and the House. Its role includes reviewing the administration and expenditure of the S&I agencies as well as undertaking inquiries on any matter relating to these agencies upon request by the responsible minister or pursuant to a parliamentary resolution.

The PJCIS, alongside the independent office of the Inspector General of Intelligence and Security, which has a mandate to review the operations of the S&I agencies, provide a potent and comprehensive oversight function that others might well wish to emulate.

Certainly Canada lacks an equivalently dedicated and empowered parliamentary committee. The partial and uncoordinated oversight functions of the Security and Intelligence Review Committee for CSIS and the Commissioner for CSEC call for remedial action.

Beyond the disparities in oversight mechanisms and capabilities between Australia and Canada, what is most notable is the qualitatively different approach taken by the Australian authorities to the development and scrutiny of new legislation in an important but inherently sensitive field. In particular, I would highlight the cooperative interaction between the government and the PJCIS in the development of national security legislation.

In July 2012, on the basis of a substantive discussion paper, Australia’s Attorney General requested the PJCIS undertake an inquiry into changes being considered for the S&I agencies. After a thorough review that included six public and four private hearings and the receipt of 236 submissions, the PJCIS tabled in June 2013 its unanimous report with 43 recommendations. Having digested this input, the Attorney General developed a bill to implement the government’s response to the report.

The government then went back to the PJCIS to request a second inquiry “to scrutinize whether the bill appropriately implements recommendations agreed by the Committee last year and to assess the balance of national security and safeguards proposed in the bill.” In other words, the Australian government acknowledges the authority of the PJCIS in assessing this subject matter, has formulated its bill in light of the committee’s recommendations and is now checking with it once again to validate that the bills content is actually aligned with those recommendations.

Although the PJCIS did express some discontent with the constrained timelines for this second review, it duly followed up with another inquiry. This included another two public hearings as well as two classified meetings and garnered a further thirty submissions by the public.

The PJCIS issued its report in September 2014 with 17 new recommendations for consideration. One of these encouraged the government to augment the resources of the Inspector General of Intelligence and Security. Another recommended the government fill the vacant position of National Security Legislation Monitor, another element of the mutually reinforcing oversight system for the Australian S&I community.

Taken together, these recommendations, as the PJCIS report notes, “…are intended to strengthen the integrity of the bill – that is, to improve safeguards and strengthen public confidence that the powers it extends cannot be used in a way that goes beyond their legitimate policy intent.” On this basis the committee was prepared to recommend that, subsequent to further debate in both houses, parliament pass the bill.

Significantly for the citizens that will be subject to its outcome, this process of developing national security legislation was undertaken with maximum transparency. While the PJCIS does receive classified information (a crucial aspect of its effectiveness), all of its reports and related material are publicly accessible on the committee’s comprehensive website.

All in all, a refreshingly open and professional approach to a serious task and one that other democracies would be wise to study.