by Brian Toohey
After Peter Barbour took over from Spry in 1970, he tried to introduce reforms but was often frustrated by senior officers from the Spry era, some of whom were strongly influenced by Santamaria. John Blaxland’s chapter called ‘Shaping and Influencing’ in the second volume of the ASIO history gives details of operations conducted by a new Special Projects Section established in 1965 to influence the debate over the Vietnam War. Its head, Bob Swan, said these ‘spoiling’ operations were initially ‘designed primarily to debunk, discredit, disillusion or destroy’ the Communist Party and later extended to the anti–Vietnam War protest movement, which merely exercised the democratic right to oppose government policy.’8 ASIO’s attempts to damage the government’s critics went far beyond its charter. It made extensive use of journalistic stooges in major media outlets who would put their name on material prepared by ASIO.9 One journalist, Robert Mayne, later revealed details of this activity in the National Times.10 For many years during this period the ABC and the Melbourne Age let ASIO vet journalists to weed out people who might be regarded as subversive.11
ASIO’s faction-riddled behaviour after Labor won the December 1972 election is covered in the chapters on the Whitlam years in this book. After 1975 the new Coalition prime minister, Malcolm Fraser, did not revert to politicising ASIO. However, when the Australian Financial Review (AFR) repeatedly published leaked Cabinet and other documents, Fraser wanted ASIO to tap my phone in the AFR’s Parliament House office where I covered national security, among other topics. Fraser faced opposition from senior public servants, who persuaded him that the phones in Parliament House, including those of journalists, should remain immune to official interception.12 ASIO then tapped my family’s home phone without discovering anything of value.
After I switched to the National Times following a posting to Washington, I published on 15 March 1981 a long article based on a leaked copy of the top-secret Hope report on the Australian Secret Intelligence Service (ASIS). Fraser told the new ASIO head, Harvey Barnett, that he wanted the leak investigated with the aim of prosecuting. Barnett, who had been deputy director of ASIS, told Fraser that those responsible would have ensured they couldn’t be detected.13 He was right.
Blaxland and Crawley’s third volume of the official ASIO history chastises Barnett for taking a softer stand than the Labor prime minister Bob Hawke after ASIO discovered in 1983 that a KGB officer, Valeri Ivanov, was allegedly cultivating David Combe, Labor’s former national secretary. Combe, who had become a lobbyist, was looking for work, including consulting on trade with Russia. Blaxland and Crawley criticise Barnett for focusing on expelling Ivanov while being ‘oblivious’ to Combe, who he didn’t see as a target and to whom he gave ‘the benefit of every doubt’.14
Barnett’s approach made sense. Once the government had expelled Ivanov and banned Combe from having contact with ministers, Barnett correctly concluded that any national security risk had abated. Nevertheless, Hawke insisted on continuing an investigation into Combe that yielded nothing adverse. After listening to surveillance tapes, Attorney-General Gareth Evans and Foreign Minister Bill Hayden were not as convinced as Hawke that Combe had overstepped the line. Evans told the Cabinet Security Committee meeting that there was little in the bugged conversations ‘that might constitute a viable charge of impropriety, or even worse, against Combe’.15 Much of the ASIO case was based on the transcript of a conversation between Combe and Ivanov in the latter’s home, which was bugged. The error-riddled transcript was incomprehensible in places, containing phrases such as ‘even old stacks talk’. If Ivanov had been trying to recruit Combe as an agent, why would he have asked him to his home where the conversation might be bugged?
After retiring, Barnett told me in Melbourne, ‘I passed the ball to Hawke, who kicked it out of the ground.’ Barnett drove a red MG, the same colour and brand he used to tool around Jakarta while ASIS station chief. When I suggested he might be slightly conspicuous, he insisted that his ‘tradecraft’ let him foil Indonesian counterintelligence efforts. He clearly enjoyed his time in ASIS a lot more than his time in ASIO.
Following the Combe affair, the Hawke Government took the unprecedented step of making it a criminal offence to reveal the identity of ASIO officers. This raised ongoing difficulties for the justice system. In December 2007 an ASIO member named ‘Officer 1’ appeared by video link as a News Limited witness in a defamation action brought by a Sydney man, Mamdouh Habib, after one of its papers allegedly accused him of lying about being tortured. Officer 1 gave evidence about interrogating Habib after he was arrested in Pakistan and subsequently flown by the CIA to Egypt where he plausibly claimed to have been tortured. The former chief economist for HSBC in Australia, Jeff Schubert, who followed the case from Moscow, said, ‘For all we know Officer 1 is an actor. If not, how did News Limited find him? Presumably, it asked ASIO to provide him as a witness, believing that he would readily tell the story it wanted the court to hear. Sitting here in my Moscow apartment, I wonder what News Limited would have to say about this practice in a Russian court.’16
Hawke also watered down Fraser’s 1979 Australian Security Intelligence Organisation Act, which imposed severe limits on what ASIO could consider subversive activities. Fraser essentially confined domestic surveillance to groups likely to be involved in politically motivated violence. When Hawke’s changes were introduced in parliament on 3 June 1988, the mainstream media did not bother to report them. But the amendments allowed ASIO to inquire into matters or persons ‘reasonably believed’ to be relevant to security, and said acts of violence or threats of violence were not a prerequisite.17
The weakening of Fraser’s legal protections did nothing to discourage the kind of ill-disciplined thinking that flourishes in a culture of secrecy. In November 1995 ASIO’s deputy director, Gerard Walsh, made sensational claims that people had been murdered in Australia as a result of irresponsible disclosure of intelligence secrets.18 Following his speech, Walsh gave an off-the-record media briefing in which he referred to three murders since 1990. The ABC’s national news that night reported that three people had been killed as a result of intelligence disclosures. The next day The Australian led with the headline ‘Suspected Spies Killed Here: ASIO’.
But after checking, the attorney-general, Michael Lavarch, publicly rejected the claims, saying that nobody had been killed as result of media or other disclosures. The correction prompted the obvious question of how many other glaring errors senior ASIO officials have made—and continue to make—that never see the light of day.
Walsh subsequently told Lavarch’s staff he never meant to imply that the murders had resulted from intelligence disclosures. But it was more than implied: in his speech he attacked the media and disaffected intelligence officers for showing an ‘arrogant’ disregard for the national interest by disclosing intelligence secrets, and said, ‘In the most dramatic cases it has cost lives.’19 The episode does not bolster confidence in the ability of high-ranking officers to give even a vaguely accurate account of what has happened.
ASIO has been widely criticised for not catching more hostile foreign intelligence officers. After the 11 September 2001 terrorist atrocities in the US, ASIO’s director-general, Dennis Richardson, got this task into perspective: he shifted all counterintelligence staff to counterterrorism duties until more resources became available. Although many commentators are convinced that one or more of ASIO’s officers spied for the Soviets for decades, it is hard to justify devoting resources to trying to discover the identity of a ‘mole’ who might have existed sixty years ago. Today, he or she would probably be dead, demented or disinclined to confess. The official history puts great emphasis on ASIO’s suspicions and investigations about the existence of a mole, but they never actually found any, let alone showed they did serious damage to ASIO or the nation.
A former head of ASIS, Ralph Harry, said the success of former West German chancellor Willy Brandt’s policy of détente ‘was greatly assisted by the presence of a seni
or Soviet bloc agent in Brandt’s office’.20 The chapters in this book on nuclear risks reveal that moles even helped avert an accidental nuclear war by telling the Soviets that Western preparations for a nuclear attack were only an exercise. Catching the spies who engage in this type of espionage could end in a catastrophe and would benefit neither side.
Yet in an interview with the Canberra Times in November 2016, an excitable Blaxland spoke about the intense battles he alleges took place in the national capital between Russian spies and Australian spycatchers in the 1970s and 80s. He said ‘It was on for young and old’ in shops, restaurants, cafes and bars in Manuka, Kingston, Deakin, Yarralumla, Red Hill and parks near the Soviet and Chinese embassies. Blaxland claimed Russian spies were waiting for ‘a pre-arranged contact to turn up to drop something off or have a “brush-past”’ (jargon for a quick handover of information).
This is exhilarating stuff, but did it happen? The question is worth asking when one realises that ASIO gave the Australian National University $1.7 million to fund the research and writing of the official history volumes. When asked to confirm that Russian spies met their Australian contacts in shops, cafes, etc. in each of the locations, Blaxland referred me to the official history, which finished in 1989. It gave no instances of ASIO detecting a KGB officer actually meeting an agent at any of the locations mentioned in Canberra or anywhere else. On the contrary, it says ASIO admitted it never detected a decorated KGB officer called Pavlovich Lazovik actually meeting an agent during the seven years he spent in Canberra in the 1970s.21 To some, this is proof he must have been protected by a mole within ASIO. To others, that way lies madness, and a life trapped in a ‘wilderness of mirrors’.22
Although ASIO keeps tabs on Chinese and Russian activities, there is no suggestion that its counterintelligence role covers the activities of other foreign governments. Fairfax media reported on 9 December 2010 that WikiLeaks had revealed that several US cables from its Canberra embassy referred to Mark Arbib, a minister in the Rudd Labor government, as a ‘protected source’—someone whose name should not be disclosed as a source of information. When I asked ASIO if it had investigated whether Arbib had disclosed sensitive information, it declined to answer. Without any examples, there is no reason to believe he did.
3
AN INFORMATION GATHERER MUTATES INTO A SECRET POLICE AGENCY
‘[Two ASIO officers] committed criminal offences of false imprisonment and kidnapping … ASIO’s conduct constituted an unlawful interference with personal liberty … by agents of the state.’
Justice Michael Adams1
When the Hawke Government made it illegal to name ASIO members, the blow to accountability was limited by the agency’s inability to detain or interrogate anyone. This changed in 2002 when Coalition attorney-general Daryl Williams introduced a bill to allow ASIO officers acting as anonymous agents of the state to detain and question people for seven days, even when they were not suspected of committing a crime. An innocent person who refused to answer questions or revealed that they had been detained, let alone what they were asked, could be jailed for five years. So could others who revealed what happened, even if they exposed a serious miscarriage of justice.
Although subsequent amendments have taken some of the sharper edges from the bill, the key features remain to this day. The politicians who enacted the new law not only trashed legal protections built up over centuries—they ignored the potential of these powers to facilitate extrajudicial executions. This is not a fanciful concern when Australia’s overseas intelligence partners assassinate people. If the CIA or its French counterpart wanted to kill someone in Spain, they could ask ASIO to use its coercive questioning powers to force an innocent relative in Australia to reveal the target’s location.
Intelligence information is often wrong. Identities can be confused, intercepts misconstrued, and informants give false information about rivals. For this reason police are not allowed to assassinate people suspected of committing a crime—at least not in liberal democracies.
How readily ASIO uses its special questioning and detention powers depends on who happens to be director-general. It is not even required to reveal how many warrants it has received each year to use these powers. In 2017, it argued for an extension of its special questioning powers to include espionage, communal violence and foreign interference. These extra powers had not been granted at the time of writing.
The secretary of the Hope RCIS, George Brownbill, said at the public release of the commission’s papers, ‘One of people’s great fears, and rightly, is of secret police.’2 He noted that ASIO was never intended to be more than an intelligence-gathering and assessment agency that left breaches of the law to the police, and said Hope believed these functions must remain separate. Brownbill correctly identified the dangers of ASIO turning into a secret police agency, but failed to foresee that most people wouldn’t care.
The case of ASIO kidnapping a University of New South Wales medical student, Izhar ul-Haque, is instructive. Ul-Haque attended a training camp in Pakistan in 2003 where he said he had hoped to find a role as a medic in the continued fighting over India’s disputed control of Kashmir. The camp was not run by a declared terrorist organisation. Ul-Haque didn’t like it and left after only three weeks. On returning to Australia, he told officials at Sydney Airport what he’d done. Neither ASIO nor the Australian Federal Police (AFP) showed any further interest until almost twelve months later, when they asked him to become an informer against other Muslims in Sydney. He declined, saying he wanted to concentrate on completing his degree, and was subsequently charged with terrorism offences.
The case collapsed after NSW Supreme Court judge Michael Adams found that prior to the charges being laid, two ASIO officers had ‘committed criminal offences of false imprisonment and kidnapping … ASIO’s conduct constituted an unlawful interference with personal liberty … by agents of the state’.3 Although kidnapping is a serious criminal offence, no one in ASIO was subsequently charged. However, the head of the Attorney-General’s Department, Robert Cornall, asked the NSW Judicial Commission to discipline the judge for being unfair to ASIO. The commission found no grounds to do so.
The overall lack of checks and balances on ASIO’s powers extended to John Howard’s Cabinet. One member told me on a non-attributable basis that three ministers questioned ASIO’s role in the protracted imprisonment on Nauru and elsewhere of two Iraqi refugees, Mohammed Sagar and Muhammad Faisal, after they had fled Saddam Hussein’s brutal regime. In line with this, the ministers wanted to know what the men had done to be incarcerated without trial from 2002, contrary to the basic principles of our justice system. The attorney-general, Philip Ruddock, refused to answer on ‘national security’ grounds. In effect, he denied Cabinet members the information they needed to decide whether there was any justification for depriving people of their liberty in such a fashion. The two were eventually released in early 2007. Often they had been the only refugees on Nauru, meaning their detention was extremely expensive.
To its credit, ASIO opposed the AFP’s unjustified pursuit of Gold Coast doctor Mohamed Haneef. In July 2007, the AFP commissioner, Mick Keelty, approved charging Haneef with the ‘reckless’ provision of material support for a terrorist group: Haneef had given a second cousin a phone SIM card with unused credit that he no longer needed since he was leaving the UK for the job in Australia. The cousin was not a terrorist, as the British police established several days before the AFP charged Haneef. Shortly after the case began, the Director of Public Prosecutions (DPP) recommended that the charges be dropped because of a lack of evidence. More than twelve months and $8.2 million later, the AFP admitted Haneef was no longer a suspect.4
Well before the AFP charged Haneef, ASIO head Paul O’Sullivan had given written advice to the Howard Government that there were no grounds for believing Haneef was involved in terrorism. Instead of combating terrorism, the AFP’s behaviour risked radicalising young Islamic people. Yet the Rudd Government expre
ssed its full confidence in Keelty. In contrast to its relentless pursuit of Haneef, the AFP responded with remarkable nonchalance to an online post in Melbourne’s Sun Herald on 10 July 2011 which said, ‘Someone needs to assassinate Julia Gillard NOW before she totally destroys our way of life’. After I queried the AFP about its inaction, it said, ‘Such comments can and do occur regularly in a range of online forums’, later adding, ‘A distinction should be made between inappropriate or offensive comments and comments that constitute someone making a specific threat to a person’s life.’5 In this case, the post, which was below an Andrew Bolt column with a large audience, specifically threatened Gillard’s life.
Despite the AFP’s attitude, inciting acts of politically motivated violence, whether in print or online, is a serious criminal offence. Ignoring menacing online posts by an Australian white supremacist culminated in the mass murder of 50 people at two Christchurch mosques in March 2019.
In 2014 the Coalition and Labor parties backed new laws imposing five- to ten-year jail sentences on anyone who revealed anything about what ASIO designates a Special Intelligence Operation (SIO). Numerous official inquiries and media reports in Australia and overseas have shown that highly secretive bodies will abuse their powers in the absence of strong checks and balances. Yet these changes have empowered intelligence operatives to commit criminal acts other than murder or serious violent offences—but the prohibition on revealing almost anything about these operations still covers murder and other crimes, as well as endemic incompetence or dangerous bungling. The loosely worded law shields ASIO officials and its agents and ‘affiliates’—the latter could include other Australian and overseas intelligence agencies, police forces and commandos. It removed the long-standing defence that publication in the public interest can be legally justified. Countries such as the US and Israel do not have an equivalent law.
