Australian watchdog criticises Ireland's 'veto' for security services

A proposal to establish an independent examiner of security legislation is contained in the Policing, Security and Community Safety Bill — but experts warn the proposed new office will not have sufficient powers. 

The Australian security watchdog has criticised legislative proposals to set up a similar body in Ireland, saying they give Irish intelligence agencies a “veto” on releasing information.

The Australian independent national security legislation monitor (INSLM) also expressed “disappointment” at a decision by the Department of Justice to limit potential candidates for Ireland’s Independent Security Examiner to serving or former senior judges.

The INSLM was one of the models the Department of Justice scrutinised when researching the establishment of Ireland’s first-ever security oversight body.

The department published a general scheme of the Policing, Security and Community Safety Bill in 2021 and the final bill last November.

The bill is being introduced in the Dáil this week and will be examined for a second time — but in more detail — by the Oireachtas Justice Committee.

In an interview with the Irish Examiner last September,  the INSLM, Grant Donaldson, expressed serious concerns at the proposed limitations to the power of the new Irish watchdog and the protection being given to Irish intelligence agencies, such as An Garda Síochána.

Contacted after the publication of the final bill, he repeated his concerns that the Security Examiner “still does not have the power to compel” an information holder — a security agency — to provide information or documents or require the holder to answer questions from the Security Examiner.

Australia's independent national security legislation monitor, Grant Donaldson.

He said there seems to be “a veto power vested in the information holders”.

Redactions

The bill legally obliges the information holder to exclude or redact anything to safeguard international intelligence sources and protect the safety of a source.

In his previous interview, Mr Donaldson stressed there were no exclusions or redactions on information his office sought.

“We see everything and anything we want,” he said. “And then the decision is ours as to what is publicly disclosed or not, with proper restrictions on us.” 

He said “coercive powers are vital” to the operation of the watchdog and that various cases in Australia illustrate this.

On another issue — who is entitled to assume the position of Security Examiner — the bill stipulates that it must be someone who “holds or has held judicial office in a superior court”. 

This narrows the general scheme which only said that current or former superior judges “may” be appointed.

Mr Donaldson said he is “disappointed” by this further restriction.

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A senior counsel himself, he believes a barrister would be preferable to a judge, saying it is not a judicial role, and that it requires someone who is “prepared to roll the sleeves up a bit more” and have a “pretty good bullshit monitor”.

In its submission on the bill, the Irish Council for Civil Liberties said it provides for a “potentially toothless” Security Examiner in that it will not have full access to information.

It said the exception of safeguarding international intelligence sources is so broad as to make the Examiner’s job “impossible”.

It further says that exceptions in the general scheme to the Examiner’s duty to make information public has been “significantly expanded” and that now the watchdog will be prohibited from publishing information that might prejudice “international relations”.

The ICCL said this is “far too broad” an exception.