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(generated from captions) This Program is Captioned Live. # Theme music I'm Waleed Aly. Hi and welcome to Big Ideas, In today's show security and individual rights. the broad theme is balancing national Doctor Vivienne Thom The program features Intelligence and Security. the Inspector-General of Director General of ASIO, Mr David Irvine, the most recent review Doctor Black co-authored intelligence community. of the Australian theme from different perspectives. The three speakers approached the Thom's brief is to review six intelligence agencies the activities of her own inquiries and she can generate against any of these agencies. as well as investigate complaints historical analysis She also presents a succinct might be suspicious as to why the Australian community of our intelligence services. there'll always be tensions Irvine concedes that and protect national security between the need to promote civil liberties while at the same time protecting and individual rights. his part of the session Doctor Rufus Black kicks off no-one is watching.' with 'ethics is what you do when to George Bernard Shaw He attributes this to this quip and his co-author wrote and he goes on to expand on what he ethics and intelligence. about the relationship between territory of torture He enters the very interesting and a cyber hostility. the use of drones to kill remotely Doctor Vivienne Thom is first up. This seminar has a broad theme and individual rights. balancing national security this stage with Mr David Irvine And given that I am sharing the head of ASIO, Director-General of Security, along to a debate. you might think you've come for individual rights That I will focus on putting the case my points and then Mr Irvine will rebut

for national security and pronounce the case and then maybe Doctor Rufus Black and theologian ethicist, management consultant at the end will provide some moderating comments and we can all vote. But it's not just as simple as that. history of my office I hope that by tracing the 25-year and by using some examples complexities inherent in this topic. I can illustrate some of the

in the system In my view, while there are tensions on both sides of the equation. we all have an interest is essential Protecting national security to live in a safe community. if individuals are to have the right agencies And if intelligence and security do not respect individual rights

not entrust them then parliament and the public will that they require with the significant powers to safeguard national security. that it is our 25th Anniversary. First a bit of history, given

the docu-drama I Spry I expect a number of you watched on the ABC recently - well in fact about 18 months ago - Sir Charles Spry. about the then head of ASIO, or the fairness of that presentation Look, I can't vouch for the accuracy a very real sense but it did give you would have had serious reservations that in the 1960s many Australians intelligence agencies. about the behaviour of Many in the community at that time progressive individuals and groups believed that ASIO targeted socially a real threat to national security. regardless of whether they posed probably many of you And looking around after the incident in 1973 were actually born of the day, Lionel Murphy when the Attorney-General as a raid conducted what was referred to on ASIOs Melbourne headquarters the judgement in that step and while one might query his belief that as Attorney-General you must also appreciate he wasn't being given being given the information - or he believed that he wasn't that he needed to do his job. these fears and concerns Another notable event fostering 'Combe-Ivanov Affair' in 1983. was that so-called

In that matter, the new government ASIO raised concerns to that a prominent figure Hawke government closely aligned to the incoming

by a Soviet citizen was perhaps being cultivated security apparatus. with links to the USSR of the affair The Australian at the centre strenuously denied any wrong doing surrounding this subject but the frenzy of publicity about ASIO's role and motivations. served to heighten suspicions when a training exercise A further prominent incident occurred

the Sheraton Hotel in Melbourne conducted by ASIS in the environs of went badly wrong, also in 1983. The training exercise a hostage in a hotel room which involved the mock rescue of without publicity, was intended not only to be conducted but also without involving persons taking part. other than those directly

did become involved However, members of the public the same day and it was publicly revealed had been carrying weapons, that the trainees had threatened members of the public of a hotel causing damage. and had forced entry into the room and the 'Sheridan Incident' The 'Combe-Ivanov Affair' as they became known intelligence and security agencies fuelled a perception that the were running out of control. The creation of the position of Intelligence and Security - the Inspector-General of and that is called IGIS or IGIS

you come from, I've discovered - depending upon which organisiation of the second Hope Royal Commission was the recommendation in 1984 these agencies and reflect concerns that ministerial control, were not suffiently under not subject to enough scrutiny caught-up in domestic politics. and were being improperly And this was a time when framework was being put into place - the Australian ministerial law

information, things like freedom of appeals tribunals the Commonwealth Ombudsman, and various commissioners. by inspections, We generally carry out our work

complaint handling and enquiries.

And by way of example - use a wide range of powers special powers warrants allow ASIO to interception, including telecommunication listening and tracking devises. entry and search, computer access, The Attorney-Generals require to consider this case and approach and approve each of these warrants individually. Special powers warrants are by their nature highly intrusive

and should only be considered for use when other less intrusive means of obtaining information are likely to be ineffective. And in our inspections we review the documentation after the warrants have been served to provide assurance that the case is properly described and the powers properly exercised. We also investigate complaints from members of the public. And the largest number by far and the perhaps the area that gets the most publicity at the moment are complaints about the time taken for ASIO to conduct security assessments for visas. But we also get a fair spread of other complaints. For example,

we've investigated complaints about alleged harassment of individuals and the presumed refusal to allow legal advisors in security interviews. A complexity of the role is that in responding to complaints - for example about the alleged activities of intelligence officers - we do not confirm whether a person is or isn't of interest to the intelligence agency. This is standard practice, because if we denied it for some we'd be confirming it for the rest. We might say, for example, that we've found no evidence that ASIO acted improperly or unlawfully if that is the case. Understandably, this does not always resolve complaints, nor satisfy complainants and I have been quizzed at Senate estimates about the number of complaints that we've resolved. And unfortunately, even when I might advise complainants

that I consider a matter to be finalised. I think, in the absence of more information, they often may not consider it have been resolved. For ASIO and ASIS

we also handle some complaints about staff management issues ensuring that these matters are dealt with confidentially. In conducting full enquiries, I have strong coercive powers - often referred to as Royal Commission powers. I can compel oral evidence and take it on oath or affirmation. I can require records to be produced and access urgency premises,

I can initiate these full enquiries myself, sometimes as a result of complaints. It could be also things that have appeared in the media, or matters can be referred to me by a minister and these powers are not used infrequently.

In the last financial year I commenced three full enquiries and have commenced a further three since June. And I certainly use the power to interview people under oath or affirmation or require documents. I have never had to use the power to access premises, perhaps that's because I have passes that allow me into all the buildings. At the end of the inquiry, I provide the responsible minister with a report setting out the findings and recommendations. And it's important to note that these are recommendations only. I don't have any directive or determinative powers. But if I'm not happy with the way an agency is picking up

and implementing these recommendations, I can submit a further report to the Prime Minister in respect to the matter. Over the last 25 years, the powers and the roles of the agencies has expanded and so too has our role. In fact, almost any time there are changes suggested to the powers or the reach of the intelligence and security agencies, my office is invoked as providing the appropriate checks and balances. For example, the provisions relating to the use of weapons by ASIS staff in the legislation require me to be given copies of their guidelines

and to be notified by a way of a written report if the weapon is discharged. And when Freedom of Information conclusive certificates were abolished my office was given yet another new role in providing expert evidence to the AAT and now the Information Commissioner about national security exemptions. But perhaps the most controversial of new powers in recent years for ASIO was the introduction of questioning and detention warrants. One of the safe guards in the relevant legislation is that I can attend questioning sessions and any concerns that I raise must be considered.

The sort of things we look at are - has the effect of the warrant including the rights and obligations have been explained in a way that the person can understand? Does the questioning respect human rights? Are the interactions humane and courteous? Is any questioning unfair or oppressive?

Are the facilities appropriate? Lest you think all of our efforts are directed at ASIO, we also look at the intelligent assessments from the assessment agencies. In 2004, Mr Philip Flood conducted an inquiry

into the Australian Intelligence agencies

And the inquiry arose partly out a concern, that intelligence assessments about weapons of mass destruction in the period prior to the commencement of hostilities in Iraq in March 2003, may not have been sufficiently independent or robust. One of the more significant recommendations made by Mr Flood, at least in terms of accountability arrangements, was that the IGIS should conduct periodic reviews of the statutory independence of the Office of National Assessment to provide assurance that they are free from political interference, objective and independent. And we've conducted two such reviews since that time. We also look at the foreign intelligence collection agencies. Generally these agencies are not subject to the Privacy Act, but nevertheless they sometimes they have legitimate cause to refer to Australian persons and their products and other forms of communication. Now foreign intelligence collection agencies must get personal approval from the responsible minister before deliberately collecting intelligence on an Australian person. They must also apply privacy rules made by the minister before communicating such intelligence and these privacy rules are publicly available. They're based on the assumption that the privacy of Australian persons will be protected unless appropriate justification is put forward to enable the reporting of intelligence information to recipients with an established need to know. And we regularly inspect the records of these agencies to ensure that they comply with the requirement to protect information about Australian persons. We also look at whether agencies have regard to human rights and this is explicit in he legislation.

This is an area that is receiving increasing attention both in Australia and internationally where there have been a number of very high profile cases. One particular issue to do with information exchange with other countries was explained well in an article in the UK newspaper, The Independent. It read, 'The Head of MI6 emerged from the shadows yesterday' - and look, spies are always lurking in the shadows in the media, but he emerged form the shadows - 'to describe the moral dilemma of the use of intelligence obtained by torture while facing the threat of terrorism. In the first ever speech by the head of the intelligence service he presented a defence of his organisation against charges that had become complicit in some of the dark acts on the war on terror.' And the head of MI6 is reported as saying, 'Britain had refused to pass on information which could have resulted in mistreatment of suspects in foreign countries even when the failure to do so

allowed terrorist activities to go ahead.' He said that 'torture was illegal and abhorrent'

and he was sure his agents had nothing whatsoever to do with it. But then he continued, 'We can't do our job if we work only with friendly democracies. Dangerous threats usually come from dangerous people, in dangerous places. We have to deal with the world as it is. Suppose we receive credible intelligence that might save lives, we have a professional and moral duty to look into it.'

He continued, 'If we hold back and don't pass on that intelligence,

innocent lives may be lost that we could have saved.

They're real, constant operational dilemmas. Sometimes there is no clear way forward.' And I'm not suggesting that we've looked into particularly those particularly extreme examples with the Australian intelligence agencies but we do have a role in these human rights issues. We review the relevant policy guidance provider to staff and as a part of our inspection role we look at how agencies manage the challenges or risks when making decisions relating to exchanging intelligence information with foreign authorities. We examine the records of decision to ensure there is documentary evidence that the considerations articulated in the policy are actually being given effect in practice. Particularly, that the risks to the safety of the individual are being fully considered. And we've a particular interest in the role of Australian officials in participating custodial questioning overseas. Or the provision of material, which might be used in such questioning. I'll move now, to an inquiry that although I've completed has not yet been made public and say a few words perhaps about the process - although I can't talk about the outcome. Partly as a result of the Clarke Inquiry into the Haneef matter, the Government broadened the mandate to this office, again, late in 2010. So the Prime Minister can now request me to inquire into an intelligence or security matter relating to any Commonwealth agency - that's any agency outside of those six that have been named previously. A month later, the Prime Minister requested me to inquire into the arrest and detention overseas of Mr Mamdouh Habib. And as an aside this was a power that was only to be used in exceptional circumstances but it was only a few months later that the Prime Minister requested me to do another inquiry outside the AIC and that was Defense Security Authority and the alleged improper work practices that were aired on Lateline. But going back to the Habib Inquiry - we looked at the actions of Australian intelligence agencies and the Australian Federal Police,

The Department of the Prime Minister and Cabinet, The Attorney General's Department and the Department of Foreign Affairs and Trade. Because it's not true that the intelligence and the security agencies have the monopoly on intelligence and security matters. And this was in relation to the arrest and detention overseas of Mr Habib, from 2001 to 2005. So that included events in Pakistan, Egypt and Guantanamo Bay. The Inquiry covered the actions of Australian agencies in relation to Mr Habib's arrest and detention as well as the policies, procedures and practices of such agents as they were at the time and as they are now. In the course of the Inquiry, my team examined many thousands of pages of documents from relevant Commonwealth agencies and there is no restriction on the documents they may access including legal advice and briefing to ministers no matter how sensitive is the information, it must be produced to me. I also conducted some 25 interviews, under oath or affirmation, and provided Mr Habib with an opportunity to give me any material and also to be interviewed. I gave my final report to the Prime Minister in December 2011. And I'm on the record as saying that in general I think it's important that the reports of the inquiries to be made public to the extent that they can be. And there's a number of reasons for that. Firstly, given the public interest in matters such as these and the significance of the issues raised, it's important for the accountability and transparency of government. Secondly, the public credibility of oversight bodies,

such as Inspectors-General and Ombudsmen depend upon such public reporting.

And thirdly, there are often lessons for broader public administration that can arise and apply in a more general way to government agencies. But enquiries into intelligence matters often deal with very sensitive information in terms of national security. This, of course, can affect what can be published. And ultimately, it's not my decision. I also note that this type of reporting framework is in clear contrast to the reporting framework

that applies to the Ombudsman, the Integrity Commissioner and the Auditor-General. But there are reasons for this. Finally, I's like to look at some challenges ahead. And I think it's clear to everybody that the size, scale and complexity of intelligence collection is increasing. The increase in international exchange of information will raise more complex risks to human rights, but will also provide important opportunities in the quality and amount of intelligence information. The need for Australian government agencies to work co-operatively perhaps adopting more of a need-to-share

rather than need-to-know approach increases the volume of personal information kept about Australian individuals and the number of places where it's kept and highlights the importance of good controls around the dissemination, retention and destruction of personal information. And these are issues in which I have a keen interest. Continuing security challenges and changes in technology could lead to a further push for an increase in powers available to agencies and will raise further questions about what safeguards can be put in place. There's a constant struggle to balance the need for accountability and review with the need to preserve the secrecy of some information, and it's important that my office pay particular attention to how new powers and capabilities are used. And this will mean continuing, strengthening and refocusing our inspection program.

And finally, I must admit that my office is not without its critics.

Some assert publicly that we're not truly independent,

that we're part of the security agencies, and that we always find for the agency, that we are in fact a lap dog, not a watch dog. I'm not sure this view is held currently by the agencies. Apart from the fact that it's almost impossible to rebut these criticisms, because we conduct our enquiries in secret, and many of our findings cannot be made public, it also misunderstands my role. We are not a court, we don't find for an agency, but the importance of continued scrutiny and recommendations for improvements should not be understated. Today I really would like to talk on that question of balance between those two - I wouldn't like to say - not competing priorities. A significant element of our modern democratic freedoms, certainly in their implementation, relies upon the rule of law and upon principles of transparency. That's a given. But intelligence agencies, by their very nature

and by the very nature of their business, cannot operate in a state of total transparency, indeed quite the reverse. Intelligence is a business that must be conducted in secret. And as a business that's conducted in secret, it will give rise from time to time to all sorts of mis-perceptions and indeed, sometimes paranoia. How then, in a democratic society, can we ensure that these non-transparent but necessary organs of the state, whose very function and whose very opaqueness creates suspicion amongst the citizens whom it's been established to protect. How then will that organisation operate according to the law and in accordance with the moral and ethical values upon which modern Australia is based? How do we ensure that the appropriate level of accountability is there

and how do we monitor and enforce that accountability? This question of accountability and the role of security intelligence in a modern 21st century democracy continues to be very, very relevant, and indeed no doubt inflames passions on both sides of the debate. But allowing for the place of constructive disagreement within our civic life, I believe that the vast majority of Australians recognise the need for a properly regulated and monitored security service in our democracy. One of the problems of operating a secret intelligence service, as I've said frequently in the past,

is that mistakes or concerns are always aired. The successes of the organisation are not. And one of the issue that we find in operating ASIO is that perceptions of the organisation invariably focus on the negative and do not, for many good reasons,

pay much attention to the positive.

And I'm reminded of a cartoon which appeared in 2003 in The Sydney Morning Herald when the legislation for counter-terrorism was going though and some people called it very draconian legislation. And the cartoon was of an ASIO officer, well, at least he had 'ASIO' written right across the front of his black overalls underneath his black helmet. He had pistols strapped to either thigh and in his hands he held a battering ram, about to knock down a door. And on the battering ram were written the words - 'Open up, in the name of your cherished liberties.' And at the time, I think the people of ASIO felt a bit miffed by that, because we don't carry weapons and certainly no self-respecting ASIO officer would use a battering ram to knock down a door or open a door, when a skeleton key would do the trick. (Audience laughter) Accountability comes through a variety of mechanisms. First of all, it comes from the fact that ASIO's acts

are limited, by Section 4 of the act, to some very, very specific issues.

They are limited to espionage, to protecting the state from sabotage, from protecting the state from acts of foreign interference, from acts of politically motivated violence, which these days, of course, includes terrorism. From attacks on Australia's defence systems and more recently, serious threats to Australia's border security. The act also has a very, very specific enjoinder against ASIO involvement in the suppression of legitimate protest or dissent. Unless they threaten to become violent and threaten security. The act also gives the Attorney-General responsibility to set strict operating guidelines for the organisation, which have in themselves become very, very complex. And he himself must approve the use of highly intrusive methods of investigating Australian citizens who might be security risks. In other areas of accountability, ASIO must report annually to parliament, albeit in unclassified format. ASIO is subject to parliamentary oversight through the Joint Parliamentary Committee on Intelligence and Security and the Director-General's much anticipated and thoroughly enjoyed appearances before the Senate estimates committee. But two mechanisms are worthy of particular note here. Another element of accountability for us is the accountability for some of our decisions to be contested in court. And in his 1977 report,

Hope recommended that any adverse security assessments about Australian citizens could be contested and appealed on the merit of the decision through a special appeals tribunal, Now, that function is now resident in the the security appeals division of the Administrative Appeals Tribunal. And importantly for us today - and I've taken a long time, I'm sorry, to get this point - in his 1984 report, Hope recommended the establishment of the Office of the Inspector-General of Intelligence Security. Not to conduct merits review of the AIC's activities and of ASIO security assessments,

but to ensure that the agencies acted legally and with propriety, complied with ministerial guidelines and directives and respected civil liberties and human rights. The Inspector-General was given powers roughly equivalent to those of a standing Royal Commission.

Of course, there were, at the time other currents which were, in a sense, part of that same process that were operating,

and which helped convince governments, inter alia, of the need for an office like IGIS.

Because in the 1970s there was a feeling that government departments and agencies needed to be made more accountable and more responsive generally to the needs of government. And there were important developments between the two Hope Royal Commissions which gave shape to this desire for greater accountability - the administrative law reforms packages that included the Ombudsman, the Administrative Appeals Tribunal, Freedom of Information Act, and so on. And these developments led, at the time, to the creation of other watchdog bodies

such as the Privacy Commissioner and the Australian Humans Rights Commission. But the intelligence community, with its unique roles, functions and need to operate secretly and protect sources, to protect tradecraft and methods and to protect the information it collected presented a conundrum for all of these reforms - how effectively to oversight the agencies and yet protect that about them which made them unique? The creation of the office of a specialist independent review body, the IGIS, was a key element in the response to that conundrum. Legislation to give effect to the Hope recommendation for Inspector-General was enacted in 1986. It commenced operations in February 1987 under the inaugural Inspector, Neil McInnes, at Macarthur House in Lyneham, here in the ACT.

Perhaps the view in Lyneham wasn't too much to Neil's liking because a little over a year later he accepted the invitation to lodge with PM & C at Barton and IGIS has been lodging there pretty much ever since. In practical terms, the Office of the Inspector-General examines and monitors all elements of ASIO's operational work to ensure that established practices and procedures are followed, that individual rights are taken into account, and that intrusive activity at a particular level is justified. The IGIS and her staff actively question the appropriateness and propriety of ASIO's actions. They have complete freedom to go where they need inside the organisation, to look at its activities, to look at every file. Indeed, far from being the toothless tiger, as some have claimed,

the lap dog, I think, Dr Thom said, in my view, the IGIS plays a key role in monitoring ASIO on behalf of the parliament and the Australian public against the possibility of inappropriate action. I acknowledge that the position of the role of IGIS is not easy. Unlike some other statutory positions, the IGIS should not, in my view, be an advocate for a single dimension of the national security, civil libertarian equations for one side of the coin only. The office must understand and weigh up the needs of national security, the need for intrusive activity from time to time,

the need for proportionality and the way in which decision-making within ASIO must be based on proper process and investigative procedures that will ensure that the rights both of the individual and the community that is being protected. Proper training, including in ethics,

together with proper investigative practices and processes are important elements of how we guarantee that ASIO will pay correct attention to the rights of the individual. Overall I believe Inspectors-General, at least in my time, have worked through these sometimes competing priorities with clear-headed objectivity. At times they have been critical of mistakes made or procedures not properly followed. At other times, they have made balanced and constructive contributions to the development of intelligence policy and practice, particularly in respect of the way in which security threats are investigated. That does not mean that I or my officers will agree with every suggestion or criticism made by the IGIS. And so, a constant challenge for both IGIS and ASIO has been to ensure that IGIS's recommendations do not unnecessarily add to the weight of bureaucratic process that has accumulated within ASIO over the years and that the accountability regime does not become so restrictive in design or in practice that it prevents the organisation from carrying out its core task of protecting the lives and livelihoods of Australians.

And I should add that ASIO being the sort of organisation it is and taking its responsibility for proportionality and civil liberties as seriously it does, that the accumulation of process,

the accumulation of bureaucratic barnacles does not come solely from IGIS adding new patches around the place, to process.

So conscious are ASIO officers of their ethical and moral responsibilities that they themselves often contribute to the myriad of internal policy and procedures that govern their day-to-day activities. Since inefficiency could risk threats to security not being investigated as fully as they should

we therefore need to work closely with our own organisation, but closely with the IGIS to guard against the addition of unnecessary, excess process that can lead to inefficiency. So, rather than accepting the word of someone with a deeply vested interest

in promoting the perception that the framework for accountability and effective management of Australia's intelligence community is appropriate, let me quote again from the report of last year's Independent Review of the Intelligence Community. This is, and was an independent review. 'The Review believes that the legal framework that enshrines the balance between those competing issues is sound and does not need any adjustment at present, while recognising that periodic amendments will be needed to ensure the purpose and intention of the legislation keeps pace with changes in the nature of the threat and the rapidly evolving, technical operating environment. This balance is not just protected by law and the regulatory and oversight regimes that regulate and monitor agency conduct, it is also protected by the culture of each agency and the intelligence community as a whole.' So, to conclude, we are today in a position where the Australian people can have confidence in their security intelligence organisations and its function of security intelligence, that it is one of the more accountable institutions within the family of government, and certainly, in my view, it's one of the more comprehensively regulated thanks largely to the pioneering work of Hope and to the continuing work of the Inspector-General of Intelligence and Security. In my view there are good reasons why the Office of the Inspector-General has survived for 25 years - it performs a necessary function in a democratic society, it has contributed positively to the development of appropriate practices and accountability in a necessarily non-transparent security intelligence apparatus, it represents a guarantee to the parliament and the people of Australia that their intelligence agencies can be relied upon to act with legality and probity. As Director-General of Security, I've come to value the role of the IGIS and the consultative approach taken by successive Inspector-Generals. I believe that the Office of the Inspector-General has contributed substantially to best practice in the security intelligence business in Australia. It certainly does help protect the rights of citizens. And as an Australian citizen, my earnest wish is that long may it continue to do so. Thank you. 'Ethics is what you do when no-one is watching,' George Bernard Shaw is said to have quipped. Conversely, we might say, when it comes to the world of intelligence, when no-one is watching, you need to make sure people are ethical. Of course, for 25 years, IGIS has been watching. But she does not have an all-seeing eye. Therefore, we need to recognise that for all the oversight, I think the real guarantee of this balance for a world which we at best see through a glass darkly, is the propensity for people to act ethically when they're not being watched.

So, today, I want to expand on some observations that Rob Cornell and I made about the relationship between ethics and intelligence and to explore the balance - and David highlighted from our report,

the important role that we see it playing, but also to pick up on some other themes we mentioned about why there's work to be done to ensure we continue to retain that kind of culture in a changing world.

In, er, my role co-leading the independent review, it gave me a rare privilege to have an outsider's look at the operations of our intelligence community.

I took that look with the eye of a management consultant and an ethicist, and someone familiar with the world of the law.

Our mandate was broad, and the co-operation we received - exemplary. So, drawing on that experience I want to say that I think there are four conditions

that need to be in place if an ethical culture and framework is to continue to provide an important part of how we sustain this balance. I think it's important that there is a culture, that there are a culture and practices in an intelligence community and agencies that encourage ethical reflection and behaviour.

That secondly, there is a consistent and coherent approach to reasoning through ethical questions. Thirdly, that that approach fits with the legal framework that governs the community,

and finally, that there is a broad social consensus about how to ethically manage the type of questions that an intelligence community faces. In both David and Vivienne's presentations they talked about the importance of the relationship between what happens in the intelligence community and public perceptions of what would be ethical - what would be, what would have propriety. That actually puts some obligations on the public as well to make sure thinking about what amounts to propriety in our age continues to evolve with our changing times. My case is that it is more important for the intelligence communities than virtually any other kind of organisation to do the hard work that unquestionably exists to actually develop consistent, coherent ways of reasoning ethically within our organisations.

And the reasons are clear, because of, I think, the vital role it plays in maintaining the balance. So let me get to the last of these conditions. The importance of maintaining a broad social consensus

about how ethically to manage the types of questions

that the intelligence community has to face. And this is an area where Rob and I signaled the need for discussion and debate, that actually the world we are now imposes us with all sorts of challenges that we think require a broader social discussion,

and indeed that Australia should probably play a lead

in maintaining those, in having those discussions. I think in the decade that followed 9/11, we saw the problems globally -

though I'm happy to say, not so much particularly in Australia - of where a social consensus about what's ethical

parts company with the practices of intelligence communities. We saw that with waterboarding, rendition and detention at Guantanamo Bay, expanded surveillance powers, extended attention without trial and even the doctrine of preemption. They read as a list of moral controversies of our time, happily not ones that we had to deal with, we had to deal with so much. Although clearly on the fringes, we had to encounter these issues and challenges because of the necessary intimacy of our relationship with our allies. It would be easy to see these problems as driven by the realist pressures

and a utilitarian means justifies the end kind of logic. Now, while those forces no doubt played a role, I think the root cause is something deeper and more enduring and requiring more profound attention. The deeper problem is that the legal regimes and the ethical frameworks that still regulate the international and domestic security environment were forged to solve the dilemmas of an earlier strategic era. What was required in that era were the regulation of states and supra-state structures, like the armed blocs of east and west, and the world of largely conventional technologies, and a number of other things. But those are key features. The difficulty is that landscape has changed with the rise to prominence of non-state actors, nuclear proliferation outside major blocs, new technologies and the new domain of the cyber world. Our legal and ethical frameworks need to continue to keep up with these changes. And that requires a broad community discussion about what we think is ethical and legal in dealing with these kind of challenges. I don't think we can turn the clock back and reinforce the structures that served us potentially quite well in a previous era. We need, in fact, to evolve a debate about how we strike the right balance between security and other rights, in the face of these new realities. We have been, in a sense, working on that task for the better part of the decade, but there is a great deal of work to be done, because unsolved areas remain significant. If we think of just four of them, just four of them. We start with the non-state actor challenge. Non-state actors are an almost necessary product of our era. If we are to confront the challenges, if any power is to confront the challenges of a state with such hegemonic military power and other forms of state power as the United States, the only way in which that can be done is in some asymmetric form, if it is to be remotely effective. That's a deep strategic logic that gives birth to non-state actors. And they are tricky entities, they are neither criminal on the one hand, nor clearly state on the other. They are not criminal, because they are not acting for private gain

or targeting harm at a particular individual. When they act, they act not so much against the individual, but against the collective of a state. Which makes them look a lot more like a state-actor. Only clearly they have none of the apparatus of states. To date, we have chosen to fight these non-state actors using the rules of state conflict and domestic policing well augmented by intelligence capability. And that approach here and in other countries

has had some great successes. We have managed to maintain, at least in Australia, security working within those frameworks. And I think if we look to the north in Indonesia, we see a remarkable example of a country which has managed - there will, no doubt, be those who point criticisms in places - but within a rule of law framework, a domestic rule of law framework, has managed to deal with a wide range of security threats. And I think by doing so, degraded them remarkably well. But there are still situations where non-state actors pose us challenges. And just to highlight two of them, because they do capture our attention. And that's what to do when threatening non-state actors - terrorists - are captured or come into detention. They present a very difficult kind of problem - they, and we at times, experience that even here, when we have non-state actors who turn up in some form of irregular arrival, having not actually committed any crime or done anything wrong but clearly hold an intent that may be hostile to Australia. They are not criminals, nor are they prisoners of war. The Guantanamo Bay problem represents an inadequate solution but nevertheless to a very difficult kind of problem - as to what to do with people who represent this new category of actor. And here we need to get into the kind of debate that I think becomes publicly uncomfortable. And probably in making this debate, I lose friends amongst my human rights friends and amongst security services.

Because, and in a sense, I hope to lose that friendship a little, because the debate needs to shift to a new place. This is an inescapable problem and it will need new resolutions. We have, as Western societies,

explored some of the boundaries of these problems when we have tested when preventative detention can be used. There are cases where we know people maintain violent criminal intent, or sexual offenders. And we have sought to work out what the appropriate regime is for protecting our community against people who maintain a powerfully harmful will against them. Unrecognised that on the one hand it does seem to be a legitimate role to protect the community from those who harbour violent ill intent against it. But on the other hand we have a great need, for when we're doing that, to maintain strong checks

against the kinds of harms that could happen

if judicial review or other mechanisms of check aren't maintained in a very strong form. There is also a second area which I think we have seen recently with the killing of Awlaki by a United States citizen, in the Yemen. There you have what was clearly not an act of punishment against a citizen of a Western democracy and clearly not an act of war. It was fitted, not neatly, in either camp. And we need frameworks to deal with what happens when the only opportunity to respond to a citizen who might be threatening your own state is a very narrow window of opportunity where the only acceptable balance between your enforcing that security and dealing with it, is to use some form of lethal force. This is the reality that we need actually

to be able to have a framework to manage. Of course you could fancifully speculate about the United States as they have done on occasion, deploying soldiers into extremely difficult situations to try and capture and enable normal justice processes to operate. But I think a society can rightly judge that there are times

where the threat posed to security officers doing that

represents an unreasonable ask, or is simply impractical and will not occur. How do we deal with those kind of dilemmas and challenges? We need, in fact, to be able to have an environment which authorises force

to be used legitimately in those kinds of environments, in those kinds of situations.

For, I think it is inevitable that we ourselves will not have the luxury of watching others do it. Then of course, to name a couple of the other challenges we face, we have the difficulty with the use of drones. This has caused moral disquiet in the global community, I think disquiet that to date has been somewhat misplaced. It usually has focused on the number of innocent people killed in the use in a particular drone strike. The difficulty there is while there might be single cases that are very unhappy and represent a poor use of the weapon, they are certainly a much more discriminate weapon than using fast jets to try and launch similar attacks, let alone artillery. But they do present a major moral challenge, because they are an asymmetric weapon. They do pose money against life, put at its simplest. They change the equation. And that inevitably creates risks of using these things in less than proportionate ways. And at times, I think, we get closer to making that kind of objection. We need to be careful as we evolve our practices for the use of these weapons, and Australia of course doesn't have armed drones, but our allies do. We have to be very careful about the rules we place around the use of these weapons. And also to think deeply about the ethics of actually asking people to kill people remotely, or to witness acts of great violence at a great distance. We have a long way to go in thinking through what it is to operate in that kind of ethics of killing in a near virtual world. And then finally, the cyber conundrum. The cyber conundrum represents, in some ways,

some of the greatest challenges to keeping this balance right in our time. Clearly this is not a unique problem for the intelligence world and so I want to touch on two areas just briefly - privacy and cyber hostility, where I think we need some new ethical thinking to help us strike some new balances. The first of these areas, of course, is privacy. We have enough debates around the commercial world on this one. And in some ways those debates should be encouraged and fostered, 'cause I think they'll help us sort through the nature of a citizens' responsibility about their own information in the cyber world. And when you think about what people voluntarily give up to Facebook, it is a staggering proposition - if you thought about people doing that just a few years ago, I think we would have been surprised that anyone would have done that. But in the intelligence world, clearly the information people voluntarily put up and the kind of extraordinary electronic contrails that modern life leaves behind does present a rich set of possibilities for finding the, kind of, needle in the haystack, which is so much the challenge of intelligence communities dealing with particular threats. And here, we need to debate where the balance lies.

Again, at the risk, in a sense, I suspect, of making my intelligence and my human rights friends less than happy, I think there are some new ways we can think about these balances. And one of the great powers of the world of big data, is what it reveals about networks. Commercial organisations have for some time, been using it to see that the power of the information is what it enables us to know about a network, and somebody's place in it, even more than it is to know about a particular individual. +And I think the balance between privacy and knowledge, that that affords us, is actually quite considerable. It is possible to know who particular threats are

without actually knowing a lot about - or even the names of large numbers of other people who might be connected to that network, and, actually, only when you've got very good network analysis, to actually zero in on a particular person who presents a problem. The privacy of a great many can be protected,

while, at the same time, enabling us to use that data

very, very effectively. But it is a new kind of balance which needs us to think about individuals as members of networks,

not simply as individuals on their own. And finally, on the hostility front, here, I think, there is the most urgent need for reflection. I think cyberspace presents us with a new class of state hostility. And we need to recognise it as such. To date, if you think about the sheer scale of harm that has occurred in cyberspace, the UK estimated, in 2010, it suffered ?9.2 billion of intellectual property theft and ?7.6 billion worth of industrial espionage - of harm to it. And the US's ODNI's public report last October revealed that states lie behind an awful lot of the harm that gets caused. And if states are involved, or they're actors, then we are in the realm of state, rather than criminal, action. And on the one hand it doesn't seem to be like an act of war, which involves a breach of territorial sovereignty. But on the other hand, the scale of harm is vast and it clearly involves practices that are outside

a rule-based international order. I think we have been a bit slow in recognising how serious this sort of hostility is in our world, where the cyber and physical worlds so thoroughly inter-penetrate each other. Just as we took rather too long to recognise that online bullying was as serious as a punch up in the playground, I think it's time we did more to recognise that there are new forms of hostility in this cyber-environment and we need to develop new frameworks for thinking about what the right and proportionate responses are to that kind of activity. And as we do that, we will have to ask new and difficult questions about what kind of classes of combatants there are given that lots of the action in cyberspace is not by crude state actors but by a whole range of different kinds of people acting in states' interests. Who counts as a combatant? Who counts as a legitimate target in these cases? And just as there are new combatants, there are new front lines, as we find commercial organisations on the front line of hostilities that were once directed against states. So we do find ourselves in a new environment where I think we need to have some new discussions about how, ethically, we regard this set of activities. Neither, on the one hand, to string to the extreme

of seeing this is a new form of war, nether on the other to regard it lightly,

but in fact I think to regard it with an increased sense of seriousness. So there are, as we look forward, new balances to be struck and in large measure, they are not going to need large scale legislative change to re-strike them. In some places they might, but on the whole I don't think in the near term. What we do need, though, is new community discussions about how these major changes in our strategic environment give rise to new challenges and the need for new kinds of actions to be legitimate or illegitimate and new kinds of checks to evolve. Part of what Rob and I wanted to do in this report is to signal

that while we've still got the time, we need to have these discussions in our wider community. And while we've still got the time, because of such well functioning agencies, to actually engage in a new level of intensity about moral deliberation in our agencies, we should do that. If we engage in those kind of practices, then it is Rob and my view that we can continue to sustain the kind of balance that I think has served Australia well in recent times. Thank you. (Applause) That was balancing national security and individual rights.

The panel was sponsored by the ACT branch of the Institute of Public Administration Australia. And you can find that talk in full along with questions from the audience on our website. Don't forget, you can always follow us on Twitter and Facebook. That's all for Big Ideas today, I'm Waleed Aly, see you next time. Closed Captions by CSI

This Program is Captioned

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