An extensive review of Australia’s intelligence laws has found that Asio should seek government approval before targeting citizens overseas.
The 1,300-page review, completed by former Asio director general Dennis Richardson, was released by the attorney general, Christian Porter, on Friday.
It makes 203 recommendations, 13 of which are classified. Porter said the government would accept all but four of the public recommendations.
Richardson recommended that the Asio Act should be amended so that it required ministerial authorisation for offshore intelligence collection relating to Australians, if those activities would require a warrant should they have occurred inside Australia.
Porter would not be drawn on whether any particular Asio activity had raised Richardson’s concerns, but said it was likely he considered specific case studies.
Asio has repeatedly emphasised a focus on foreign interference in the past two years, after spending much of the past two decades monitoring the threat of Islamic extremism after the 9/11 attacks. Guardian Australia understands its recent overseas operations include cases relating to Australians who joined Islamic State.
The Asio director general would still be able to authorise overseas warrants without ministerial approval under the changes, but only under certain circumstances, and such decisions would have to be reported to the minister and the intelligence watchdog within a defined period.
The Richardson review, which was commissioned in May 2018, is considered the most comprehensive of its type since the Hope royal commissions in the 1970s and 1980s. The review’s findings will be a roadmap for an extensive overhaul of the intelligence community, which has had 124 new acts introduced since the 9/11 attacks.
Richardson found the laws governing the agencies were complex, to the point where it could be hampering their work and undermining public confidence.
But he also found that some agencies, which suggested the current laws were “ad hoc, piecemeal and inconsistent”, incorrectly believed they “presented barriers to their effective operation”.
“On closer examination it was often apparent that these barriers, to the extent they in fact were barriers, were not due to legislation but rather to culture, policy or practice,” the former Asio boss said. “In other cases, a perception of the existence of barriers stemmed from an immature understanding of the foundational principles governing the intelligence agencies.”
Richardson said some agencies suggested legitimate safeguards should be removed to relieve administrative burdens and promote information sharing.
“One member … saw ‘legal requirements’ as a hindrance to data and information sharing. The ends do not always justify the means and the referenced legal requirements are important features designed, amongst other things, to protect individuals’ rights.”
A major reform recommended by Richardson was an overhaul of the Telecommunications (Interception and Access) Act, parts of which he described as a “dog’s breakfast”. He said the reform could cost more than $100m over five years.
The review covers the legal framework governing 10 agencies, including Asio, the Australian Secret Intelligence Service, the Australian federal police, the Australian Criminal Intelligence Commission, the financial watchdog Austrac and the Department of Home Affairs.
The classified review was completed last December, and an unclassified version was completed by June. Porter denied that its release was timed to increase pressure on China, in a week when the diplomatic relationship between the countries reached another low point.
The four recommendations the government disagreed with included not extending a section of the Intelligence Services Act which allowed Asis to assist Asio in Australia.
Richardson also recommended that Australian Defence Force members should not have immunity from offences under the Telecommunications Act, as occurs with members of other agencies, as it was unclear why they needed it. Porter said the government had found “narrow circumstances” under which those immunities could be required.
Porter said the government disagreed with a recommendation that would allow the parliamentary joint committee on intelligence and security to be able to request that the intelligence watchdog, the inspector general of intelligence and security, conduct an inquiry into the legality and propriety of particular operations.
The government will also ignore a recommendation that Acic should be subject to the Freedom of Information Act.
The shadow attorney general, Mark Dreyfus, and the shadow home affairs minister, Kristina Keneally, said in a joint statement they welcomed the release of the report but were deeply concerned about the delay in releasing it.
