Director-General's Address to National Security College Conference

Introduction

The National Security College is a significant investment in developing the leadership and intellectual foundation of Australia's national security community. I personally, and ASIO corporately, are strong supporters of it, and committed to its success.

Today's conference topic – "The limits of sovereignty and the constraints of multilateralism" – has particular implications for the Australian Security Intelligence Organisation (ASIO) and the Australian Intelligence Community (AIC) more broadly. Both of the presumptions in this topic have elements of validity – as they have had ever since the nation state became the principal building block of the world community.

• An overly parochial view of national sovereignty ignores the reality that nations acting in isolation find it rather difficult effectively to protect or advance the interests of their citizens.
• Similarly, the practical application of the rising imperative for multilateralism – the formulation and implementation of common approaches across national boundaries that reconcile the frequently disparate, contradictory and conflicting interests of sovereign nations and the dominant cultures within them – often finds itself in conflict with the demands of national sovereignty.

The paradox is that the limits of sovereignty in our increasingly interconnected world are precisely the factors that demand multilateral solutions. Yet elements of sovereignty also serve to constrain multilateralism.

There is a third factor that also needs to be considered, particularly in Australia and other nation states whose populations have been shaped by waves of multi-ethnic immigration, and that is the way in which domestic security and social harmony and welfare are advanced across many diverse cultural, ethnic and religious groups that constitute the Australian community of the 21st century.

Liberal democracies, at least during my lifetime, have made rather a better fist of achieving harmony and advancement through diversity of thought, word, action and creed than many other forms of political governance.

By world standards we live in an exceptionally stable, secure and safe society. We can blame prosperity and liberal democracy for this. But we can also thank our legal system and our law enforcement authorities for contributing to that goal.

ASIO, too, has played its part – albeit more behind the scenes than out in front.

Successive Australian Governments have seen the role of ASIO, enshrined in the precise language of the ASIO Act, as being to protect against threats to our national life and the safety of the citizens of the sovereign nation of Australia.

These threats can be overt or covert; they can emanate from state or non-state actors; they can threaten our institutions, our national defence capabilities and our borders, or the lives and well-being of our people. Almost invariably they have direct physical, ideological, financial or other links that come to us from across sovereign borders, from the multilateral world.

Sovereignty and threats

Throughout history there has been a great swirl of people, ideas, movements, religions, trade and commerce and military endeavours across sovereign borders. What characterises the 21st century is that swirl has become perpetual motion – faster, more complicated, more contested and more insistent.

How does national sovereignty cope with this unprecedented upsurge of human activity that transcends sovereign borders? The examples are as broad as humankind itself.

How do we cope with cross border epidemics or pandemics? We have seen how difficult it is for national sovereignty to find solutions to the evidence of climate change – solutions that may only be achieved on a multilateral basis.

Espionage, sabotage and improper foreign influence are clear examples of, usually, state based attacks from overseas on our national security or institutions. Religiously inspired terrorism and the persistence of racial prejudice leading to violence generally, but not always, emanate from non-state actors. One characteristic of recent decades has been how the balance in the threat to our national security between state and non-state actors has moved significantly towards the latter.

So how do states regulate non-state actors across sovereign borders? It can be by force, or by cooperation. Obviously cooperation is the goal, but it is never easy.

Google is multilateral or multinational but the servers on which it operates fall within the national jurisdictions of sovereign states, even as the emails they spray across the face of the earth call across national borders for violence in support of this or that extremist political view or distorted religious creed that could threaten the lives of our people.

Sometimes the same generic threat can come from both state and non-state actors. Our daily infusion of emails could contain viruses that seek to take the money from our bank accounts or that will affect the operation of our vital national infrastructure or the protection of our national secrets – for the multilateral internet has become both a tool of criminals and a tool of war against a sovereign state.

These are the sorts of issues with which a domestic security intelligence service must deal.

Australia has, in fact, had a ‘security intelligence function’ for close to some 100 years, directed against espionage, sabotage and subversion.

In its more modern form – and by modern I’m referring to ASIO’s 1979 governing legislation [the Australian Security Intelligence Organisation Act 1979 - the ASIO Act] – security intelligence was given a very specific meaning, defined in the ASIO Act as the protection of Australia, its people and interests against:

• espionage;
• sabotage;
• politically motivated violence;
• the promotion of communal violence;
• attacks on Australia's defence system; or
• acts or foreign interference.

Within ASIO these are referred to as the 'heads of security'.

Great credit needs to go to the architect of the ASIO act, Justice Robert Hope. His concept of security intelligence has endured remarkably well. His definition of security has provided a set of enduring strategic priorities and a sound legal basis on which to contribute to the defence of Australia, Australians and Australian interests.

However, what Hope never could have anticipated some 30 years ago is how the swirl of globalisation, of instant and ubiquitous communications and the increasingly free movement of people, goods and ideas around the world has changed forever the environment in which intelligence services operate.

To be sure, many of the threats – espionage, terrorism, proliferation, foreign interference – that we faced 30 years ago remain, but more and more we are seeing traditional threats emanating from non-traditional sources; and traditional sources employing non-traditional means.

Today's terrorism, for example, is a particularly virulent and destructive variety. The al-Qa'ida business model does not rely on the support or tactics of nation states – or on a nicely delineated organisational chart.

To terrorists, sovereign borders are simply an operational obstacle to be overcome – or a convenience behind which they can shelter or frustrate their pursuers.

Citizenship these days is as much an enabler as it is a constraint. The emergence of home-grown terrorism means Australia is just as likely to be attacked from within; or by one of our own.

Similarly, whereas weapons of mass destruction (WMD) were once solely the purview of nation states, with great masses of nuclear, chemical and biological-related material and expertise residing in both the private and public sectors, WMD-entrepreneurialism is a terrifying prospect; particularly with terrorists as willing customers.

Such is the convergence of domestic and international; and state and non-state; that the Parliament recently gave ASIO a seventh 'head of security' – "the protection of Australia's territorial and border integrity from serious threats".

• The principal function of the new head is to enlist ASIO's intelligence capabilities to counter people-smuggling, and it recognises that in today's globalised world activity within Australia can help facilitate people-smuggling to Australia.

The Intelligence Response

The changing nature of the challenges to national security, from both state and non-state actors, has in recent years forced the national intelligence community, and particularly the domestic intelligence services, not to mention state and federal law enforcement, to undergo a hardly surprising, but still traumatic, series of changes to the way we go about the business of security intelligence.

• First, we have had to integrate far more effectively than ever before the intelligence capabilities that exist across our six national intelligence agencies and the AFP, operating under four different ministers and a variety of different legislation.
• The formation in 2008 of the National Intelligence Coordination Committee under the aegis of the Prime Minister represents a key advance in fusing the national intelligence efforts more effectively.
• But, there is more work to be done, particularly in balancing operational agility with the differing legal and policy requirements of security and foreign intelligence.
• It has been my own agency, ASIO, which is having to make some of the greatest changes to it business model and to its culture. In the past, being essentially its own customer for its own intelligence product promoted a sense of self-sufficiency and separateness. Today’s challenges require ASIO to work hand-in-glove with all the other agencies. Indeed, in counter-terrorism, ASIO’s Counter-Terrorism Control Centre announced in the Government's counter-terrorism white paper is an important further step in enhancing cross-agency cooperation. It accords ASIO a central coordinating role covering the main federal agencies working in the field.
• ASIO has also had to learn to work more closely with law enforcement, both state and federal – this form of cooperation is a key component of national security. We simply do not have domestic security without the contribution of the nation's state police forces.
• Second, the fact that terrorists and terrorist ideas cross sovereign borders means that we have to work more closely than ever before with the intelligence services of other sovereign states, some like-minded and some not so like-minded. Even home-grown terrorists typically have links abroad, whether it be ideological inspiration, operational support or training. As you can imagine, this presents all sorts of challenges.
• What information can intelligence agencies legitimately exchange on our own citizens when one of those citizens is likely to perpetrate a terrorist attack against the citizens of the other country?
• What do I do when a foreign service for its own legitimate security reasons prevents me from using in court intelligence it has supplied and which has been crucial in preventing a potentially devastating terrorist incident in Australia? And what should the sovereign courts do?
• And will that other country’s sovereign courts protect my sensitive intelligence sources, when my agency has provided intelligence to fight a common scourge?

Sovereignty, multilateralism and responding to threats

In the face of threats that have no regard for sovereignty, the obvious solution is to respond in kind; to go anywhere, work with anyone and target all – regardless of citizenship or geography.

The paradox , however, is that at the same time sovereignty means less to those things that threaten us, there are elements of sovereignty that are overwhelmingly important in liberal democracies such as Australia. These limit the extent to which intelligence agencies can – or are willing to – respond multilaterally and bilaterally.

The Rule of Law is an explicit element of our national sovereignty. It is therefore entirely appropriate that ASIO should operate within a particularly stringent oversight and accountability framework and why it is scrutinised most closely by the Inspector-General of Intelligence and Security (IGIS).

As it should be, Australians have been given rights and protections when it comes to their intelligence agencies' ability to examine them. There are various processes, checks, legal thresholds and authorisations that must be met before intelligence collection can be employed or administrative action taken.

In addition, Australians have greater rights to contest ASIO security assessments of them through the Administrative Appeals Tribunal.

• Similar rights are not afforded to non-Australians, in recognition that to do so would become an avenue to undermine Australia's ability to spoil threatening activity originating from overseas.

Within ASIO, the organisational culture has to take very seriously the rights and liberties of Australian citizens. In doing so, we have to combat constantly a tendency to equate accountability to our own citizens with elaborate bureaucratic process. Excessive bureaucratic process reduces the speed with which the organisation is able to respond to threats and is at odds with today's security environment where threats now evolve very rapidly.

Accountability will always remain paramount and, courtesy of the IGIS, the ASIO Act and bodies such as the Parliamentary Joint Committee on Intelligence and Security (PJCIS), the public can be guaranteed that ASIO will remain one of the most heavily pawed-over organs of the Government.

Another area where sovereignty is important lies in our legal systems. Liberal democracies are increasingly litigious. Australia is no exception. More and more we see individuals, corporations and interest groups seeking redress from the legal system on all manner of fronts and for all manner of reasons, including to test, scrutinise and overrule the decisions and actions of Government agencies.

For ASIO, this trend – combined with our increased participation in counter-terrorism related legal proceedings – has seen an exponential increase in the need for legal support as we manage the approximately 60 litigation matters in which we are currently involved.

In terms of multilateral and bilateral intelligence cooperation, we have to be very careful that the greater complexity and pervasiveness of sovereign legal requirements will not delay and dull individual agencies' threat responses. Different domestic legal requirements mean that international cooperating agencies have different obligations and they all need to be accounted for and accommodated as part of any multilateral threat mitigation

A good example is computer-based electronic attack. Attacks may be routed through any number of different countries as part of the perpetrators' efforts to conceal their identity. And entire computer networks, even in friendly countries, can be hijacked and turned into attack clones. This makes any consequent intelligence investigation a legal and diplomatic quagmire, through which our intelligence agencies, and eventually our courts, must navigate.

Conclusion

The domestic security function is clearly an important responsibility of a sovereign state. Within that context, the operating environment for ASIO and our fellow intelligence agencies has never been more complex:

• threats from non-state actors now compete in seriousness with those from nation states;
• geography and borders mean little to those that threaten us; and
• a home-grown threat, albeit influenced from overseas, is just as likely as an imported one.

In response, Australia's intelligence and security agencies, as well as state and federal law enforcement, need more than ever to work together as a single, flexible and responsive capability; able to go wherever the threats to Australia or Australian interests take us.

For ASIO in particular, we are today more reliant than ever before on the cooperation of foreign partners. The protection of our sovereignty demands it.

But it must also be recognised that when it comes to intelligence, sovereignty also constrains what can be done either multilaterally or bilaterally:

• territory will always be sacred ground with sovereign nations wanting to decide what intelligence activity takes place there, and how;
• in liberal democracies sovereign legal frameworks will continue to govern the activities of intelligence agencies, and regulate cooperation and information sharing and how we deal with the threat; and
• nations will always retain a special responsibility to – and for – their own citizens.

This is all as it should be.

Intelligence agencies must cope with the restrictions of liberal democracy, or risk being a threat to that democracy itself. But so too does liberal democracy rely on a strong foundation of security, stability and social cohesion; foundation which is in large measure provided by a nation's security and intelligence apparatus, operating both within the limits of sovereignty and the constraints of multilateralism.