by Brian Toohey
Bank robbers at least know they are breaking the law. Under the 2014 law, journalists, documentary makers and others who report on crimes, stuff-ups and abuses of power don’t know whether a violent assault, for example, is part of an SIO. If asked by a journalist, ASIO will not even say if what the person wants to report might have been part of an SIO. Australian media reporting has never resulted in the death of an intelligence operative or undercover police officer—far more people have been wrongly killed as a result of intelligence operations being kept secret. Based on erroneous intelligence, drones and special forces repeatedly kill people, including children, around the globe.
Limited changes to the SIO laws were made after the head of the National Security Legislation Monitor, Roger Gyles, recommended in February 2016 that there should be differentiation between breaches by ‘outsiders’, such as journalists, and ‘insiders’, such as ASIO members, and that ‘express harm’ would need to have occurred to obtain a conviction. He said the existing law meant journalists could be jailed for an article ‘regardless of whether it has any, or any continuing, operational significance and even if it discloses reprehensible conduct by ASIO insiders’. But he said ‘outsiders’ should still be considered to have breached the law if their reporting was reckless and endangered an operation or people’s lives. Whistleblowers, such as ASIO officers, would still face the brunt of the law by revealing morally repugnant behaviour during one of these operations. Later in 2016, the inspector-general of intelligence and security, Margaret Stone, reported that ASIO had failed to meet a requirement to report to her within ten days of being authorised to conduct an SIO.6
4
ASIS: THE GOVERNMENT AGENCY YOU PAY TO BREAK THE LAW
‘ASIS exists to conduct espionage against foreign countries … In all cases, espionage is illegal and the clandestine service’s job is to break those laws without being caught.’
Justice Robert Hope1
It is not clear what the Menzies Cabinet thought it had agreed to when it decided in May 1950 to set up the Australian Secret Intelligence Service and appoint a Melbourne establishment figure, Alfred Brooks, to head it.2 Brooks’ patron, External Affairs Minister Dick Casey, wrote in his diary that he’d told the Cabinet meeting about ‘the “dirt” boys’ stuff, bribery, deception, whispering, underground methods generally’. ASIS did not begin operating until 1952. Even then, the External Affairs Department didn’t want to breach international law by providing ‘cover’ for its operatives.
In 1954, the new head of external affairs, Arthur Tange, objected to Casey helping Brooks gain high-level access to senior figures in Washington, such as Secretary of State Foster Dulles, without letting him know what was said. On one occasion, Brooks told Dulles that the US could, in effect, base nuclear weapons in Australia.
ASIS was modelled on its British counterpart, the Secret Intelligence Service (SIS), where secrecy was institutionally ingrained along with a reflex willingness to withhold crucial information from governments. In an audacious rejection of accountability, the SIS in 1956 refused to tell UK Prime Minister Anthony Eden for over a fortnight that a former World War II frogman, Lionel ‘Buster’ Crabb, had died while diving on its instructions around a Soviet warship in Portsmouth Harbour. Eden had invited the new Soviet leaders, Nikita Krushchev and Nikolai Bulganin, to visit Britain on this ship and explicitly ordered that the dive not occur. By 1956, the diminutive 46-year-old Crabb was a chain-smoker, heavy drinker and poor swimmer. While on a drinking spree the night before the dive, he attracted attention for his monocle and personally embossed swordstick and his reported boast that he was going to ‘take a dekko at the Russians’ bottom’.3
Crabb disappeared during the dive on 19 April, most probably from drowning. The SIS and the Admiralty not only withheld the information from the PM but also from the public. Eden still hadn’t been told on 29 April, when the Admiralty released a readily discredited story that Crabb was somewhere else. Amid frenzied media speculation, Eden was finally told on 4 May. Even then, the Foreign Office asked him to lie by saying Crabb was on an unauthorised ‘adventure’ of his own.4 An outraged Eden refused, and on 9 May he told parliament the dive had been undertaken without the government’s knowledge; he later sacked the SIS head.
Like Casey, Brooks had a ‘Boys’ Own’ view of his role. In a note to Casey on 14 March 1955, he said diplomacy was ‘as dead as a dodo’ and a clandestine service could let you ‘find the soft spot on the other chap’s jugular’. A former adviser to the Defence Committee later told me on a non-attributable basis that ‘Under Brooks, we regularly knocked back proposals to assassinate someone.’ But Brooks soon had to defend his own job. Apart from Tange, the CIA wanted him sacked, as did the Australianborn Dick Ellis, an influential member of the British Secret Intelligence Service. On 16 May 1957, ministers and the heads of key departments agreed to disband ASIS. It eventually survived, unlike Brooks: he was the first of three heads to be sacked.
Brooks was replaced by a senior diplomat, Ralph Harry. When he left in 1960, ASIS had only three overseas stations—Jakarta, Tokyo and Dili—and a couple of staff embedded in the UK’s SIS Hong Kong station. Harry established ASIS’s clandestine warfare training centre on Swan Island at Port Phillip Heads as part of its Special Operations role. Officially Special Operations covered ‘raising, directing and supporting indigenous guerrilla movements, and sabotage and small party operations’—tasks better left to the military.
Harry’s replacement, Walter Cawthorne, rejected a CIA request for ASIS to have a military role in Vietnam. As a former major general, he realised ASIS wasn’t up to the job. Instead, he let small teams of Australian military officers train at Swan Island before they were sent to Vietnam from 1962. Some were loosely attached to ASIS; actual ASIS members were later posted to Vietnam solely in an intelligence-gathering role. All their Vietnamese agents (informants) had been killed by the end of the war.
ASIS also conducted operations known as Special Political Actions (SPAs) against Indonesia’s President Sukarno in the early 1960s. Six separate SPAs were undertaken, including covert funding for Sukarno opponents, distributing propaganda, and issuing a fake booklet at a major Communist Party conference. Delegates were so overburdened with literature that none noticed the booklet, which was supposed to split the party.
A joint Foreign Affairs/Joint Intelligence Organisation (JIO) report for the newly elected Labor PM, Gough Whitlam, and another from two senior military officers concluded that ASIS should not have a covert action role. Uncharacteristically, Whitlam took no action on these reports. In early 1973, however, he ordered ASIS to withdraw its operatives from Chile after its director, Bill Robertson, told him they were there against his wishes—because the McMahon Coalition government had agreed to an American request. Robertson argued that no Australian interests were served by ASIS taking over three experienced CIA informants when the US government was trying to destabilise President Salvador Allende’s elected government. The intelligence that had been collected by the Australians fed into the overall pool used by the CIA for its program intended to culminate in the overthrow of the Allende Government. Allende died during the 11 September 1973 coup by General Augusto Pinochet, who went on to run a particularly vicious dictatorship.
Only the terminally naive would pretend ASIS wasn’t involved in Chile around that time. Yet a Labor attorney-general, Gareth Evans, told parliament on 29 November 1983: ‘There is no foundation whatsoever for any suggestion that any Australian intelligence agency was engaged in any activity whatsoever in Chile at or around the time of the coup against President Allende.’ Pinochet later told Reuters that the origin of the September 1973 coup dated back to 13 April 1972.5 This was while the ASIS operatives were helping the CIA, which they did until May 1973.
From the start, ASIS faced the problem that its activities were illegal. Bob Hope, the well-regarded NSW Supreme Court judge whom Whitlam appointed to head the RCIS, said, ‘In all cases, espionage is illegal and the clan
destine service’s job is to break those laws without being caught.’6 He did not explain what was so special about information dubbed ‘intelligence’ that makes it acceptable to break the law to get it.
Apart from this inherent problem, Ian Kennison headed ASIS without mishap from 1975 to 1981. He was replaced by a former diplomat John Ryan, established a new Directorate of Covert Action that attracted some thrill-seeking, part-time members. One young part-time recruit, Alexandria Smith, who worked in the Canberra Times advertising department, later wrote about how much she enjoyed the chance to practise offensive driving, board a submarine from a Zodiac, learn unarmed combat, and strap her personal weapon, a Browning .22 pistol, to her leg.7 She said the project’s head told her to buy imported underwear to ensure that during an overseas operation any ‘ill-intentioned searcher would have a tough time working out my origins from French bras, Italian panties and British socks’.
The 30 November 1983 raid on Melbourne’s Sheraton Hotel was designed to enable officers to practise rescuing someone being held overseas or, in this case, in a room at the Sheraton. In some ways, the raid reflected the risk-taking ethos that Hope had urged ASIS to adopt in his top-secret RCIS report.8 After Hope was appointed to examine the raid on the Sheraton, however, he was highly critical of what had happened.9 ASIS didn’t give the hotel or the Victorian police advance warning of the operation. After the trainees ran around the hotel dressed in garish party masks and armed with hypodermic syringes, automatic pistols and silenced submachine guns, the management called the police. The trainees were lucky the police didn’t shoot them.10 The Victorian government wanted to charge them, but Foreign Minister Bill Hayden refused to divulge their identities. There was no need for such protection, as none of them had been posted overseas. Once again, the mystique surrounding intelligence excused criminal behaviour that should have been prosecuted.
In his RCIS report, Hope said he wanted ASIS to adopt an ‘attack’ role to penetrate overseas intelligence services. He listed the Russian, Chinese, Vietnamese and North Korean intelligence services as suitable for penetration, plus others in South-East Asia. For this purpose, he recommended posting ASIS operatives to Pyongyang—a dangerous fantasy that, if implemented, would likely have resulted in the operatives and their agents being detected and jailed. When ASIS tried to infiltrate the KGB in Bangkok in 1984, the operation backfired badly. On 6 April, the Soviet embassy held a press conference revealing the name of the ASIS officer and what he had done. One experienced ASIS official later commented on a non-attributable basis: ‘Why divert resources into a game the Soviets know backwards, when your real job is to find out what is happening in Thailand? That’s hard enough on its own without trying to twist the tail of the KGB.’ Hope also seemed unaware that leaving foreign spies alone can be highly beneficial when they supply reassuring information that alleviates governments’ unfounded fears.
In 1990, my co-author of Oyster, Bill Pinwill, gained access, on a non-attributable basis, to a senior diplomat’s diaries from the 1950s and 60s. They revealed that ASIO was training Indonesians as spycatchers while ASIS spies were trying not to be caught in Jakarta. The diplomat also said that ASIS had attempted to ‘buy elections’ in Asia and recruit Colombo Plan students to spy on their own governments when they returned home.11 Like many diplomats, this man was highly critical of the quality of ASIS reporting. The historian Alan Fewster unearthed a study by former head of Foreign Affairs Keith Waller of the intelligence reporting from Indonesia during two months in the 1970s. Waller concluded, ‘Much of the ASIS reporting was over-classified and given to trivia, or simply retailed gossip that was “endemic” in any capital like Jakarta.’12
In addition to diplomatic cover, ASIS had corporate assistance. AWB (previously the Australian Wheat Board) provided it with cover for a small number of its officers by employing them in difficult locations, including Iraq.13 ASIS’s role there included the period when the Howard Government wanted to maintain wheat exports before and after the overthrow of Saddam Hussein. Although the government denied any knowledge of wrongdoing, it appointed Terence Cole QC to head a commission of inquiry into AWB, which had paid almost $300 million in kickbacks to Saddam.14 The kickbacks were in violation of UN sanctions.
Successive governments deployed far more ASIS officers to the war in Afghanistan than to any other part of the globe. Their precise role is not publicly known, but they provided intelligence to Australian special forces there. Apparently, this intelligence was passed on by the USA. Accurate intelligence is notoriously difficult to obtain in Afghanistan because enterprising locals are sometimes rewarded for falsely claiming that a traditional enemy is a Taliban insurgent. The contribution of false intelligence to the killing of innocent people by Australian and other Western special forces has helped strengthen support for the Taliban.15
The annual average growth in funding for ASIS in the ten years up to 2017–18 was 10.5 per cent.16 The annual average for all government spending, including on schools, hospitals and age pensions, was under 3.5 per cent.
In July 2017, two ABC journalists, Dan Oakes and Sam Clark, published a detailed seven-part series about behavioural problems in Australian special forces in Afghanistan. In one case, they reported that a Special Air Service (SAS) soldier had pulled a loaded Glock pistol on a female ASIS officer after a large amount of alcohol was consumed on 7 December 2013. The incident occurred at covert premises in Kabul where twelve SAS troopers were guarding several ASIS officers.17
ASIS’s biggest recent blunder involves the decision by the then foreign minister, Alexander Downer, to authorise it to bug government offices in Dili in 2004 so the government could eavesdrop on Timorese Cabinet discussions about negotiations with Australia over petroleum leases and royalties in the Timor Sea. Australia then won a resources boundary well beyond the normal median line between it and its impoverished neighbour. The bugging operation followed the Howard Government’s decision to withdraw from the binding application of the Law of the Sea’s territorial dispute settlement procedures two months before Timor-Leste gained independence in 2002. (This cynical move didn’t stop the Turnbull Government from warning China to obey the Law of the Sea in its territorial disputes in the South China Sea.) All went smoothly until Timor-Leste found out about the bugging and took action in the International Court of Justice in The Hague in 2013, arguing that Australia had gained an improper negotiating advantage in the dispute over the petroleum leases.
I asked Mark Dreyfus, Labor’s attorney-general before the change of government in 2013, if he had authorised warrants to intercept the phones of the ASIS whistleblower who was in charge of the bugging and his lawyer, Bernard Collaery, who had acted for Timor-Leste. Dreyfus replied that he ‘never comments on intelligence matters’.18 He would be an exception—many ministers in the national security arena barely manage to talk about anything else.
The new Coalition attorney-general, George Brandis, authorised ASIO to raid Collaery’s Canberra office on 3 December 2013. The raid was ordered by ASIO head David Irvine—the same man who had headed ASIS during the 2004 bugging in Dili. During the raid, officials seized documents, including an affidavit from the ASIS whistleblower (later called Witness K). ASIO also took Witness K’s passport, thus preventing him from giving oral evidence in The Hague that Collaery had foreshadowed in the normal exchange of information in commercial litigation. There is no precedent for ASIO’s seizure of the plaintiff’s documents in a commercial case with the government as the defendant. The operation had nothing to do with national security and everything to do with helping Woodside Petroleum gain access to more natural gas.
Collaery said Witness K came forward after learning that Downer had become an adviser to Woodside. Woodside’s board already included Ashton Calvert, a former head of the Foreign Affairs Department. Witness K’s affidavit reportedly said he considered the bugging was immoral because it was in the interests of a petroleum company, not the nation.19 After setbacks in The Hague, Australia agr
eed in March 2018 to give Timor-Leste a more equitable revenue share from the gas fields.
A former intelligence analyst, Andrew Wilkie, then revealed in parliament on 28 June 2018 that the government had approved the prosecution of Witness K and Collaery for allegedly breaching the Intelligence Services Act by revealing the information they had obtained from ASIS. Collaery told a press conference later that day that Witness K had received approval from the inspector-general of intelligence to approach him over the bugging. He also told the media that the government had used the anti-terrorism laws as the basis for the original raids on his office and Witness K’s home. Wilkie told parliament that rather than engaging in terrorism, the two defendants were exposing a crime the Howard Government had committed in Dili. The trial will be secret. ASIS must be relieved that Timor-Leste dropped the idea of charging the dozen or more Australians involved in the Dili bugging, who had no indemnity from criminal prosecution for breaching that country’s laws.
This episode exposed governmental hypocrisy on two fronts. First, Woodside, with the benefit of ASIS’s bugging, was technically ‘innocent’ of any wrongdoing—any other company using industrial espionage would have been viewed as having committed a serious criminal offence. Second, the government has enacted laws savagely penalising anyone involved in foreign interference in Australia, yet defends its own grubby act of foreign interference in Timor-Leste.
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ASD/NSA: THE FIVE EYES CLUB SHOWS THE STASI HOW IT’S DONE
‘The National Security Agency is authorised to spy upon the citizens of America’s closest allies including Britain [and Australia] … The NSA can go it alone if permission is not forthcoming—or if the US chooses not to ask.’
