by Brian Toohey
Once the leaks gathered pace following the election of the Whitlam Labor government in December 1972, Defence head Arthur Tange’s reaction was dysfunctional. His demands to find the leakers chewed up the time of senior officials who had more important things to do than pursue often inept and always futile investigations. Tange, for example, never satisfactorily completed the task set by Defence Minister Lance Barnard when he publicly announced that the department would undertake the first-ever study of how best to defend Australia. Despite being called the Defence Department, it had never done such a study in its seventy-two years of existence.
Unless otherwise stated, the documents quoted below were generated as part of Tange’s investigations into the leaks during 1973–79.3 They show that approximately 350 files were created in pursuing leaks published by me, including lengthy studies of my modus operandi and motives. Many were kept in Tange’s office. Given the harmless nature of most of the leaks, Tange’s zealotry can be partly be seen as due to his reliance on secrecy to maintain his bureaucratic power.
Initially, many of Tange’s underlings made frenzied efforts to meet his demands. He even asked for evaluations of the damage that could be done if documents that hadn’t leaked did so in future. One senior official, Bob Hamilton, basically told Tange to calm down. When Hamilton was asked to examine several of these supposedly sensitive documents, he concluded, ‘I do not consider the full or partial revelation as seriously or irretrievably damaging to our diplomatic or defence interests or those of our friends and allies, and I consider that further revelations would generally add only marginally to the damage.’4
After assessing the consequences of a leak of a three-volume set of briefing papers handed to the new defence minister, Bill Morrison, in June 1975, Hamilton said, ‘I do not consider that these disclosures would produce unmanageable strains or protracted ones.’ If the Americans expressed concern, he said, the leaking of the Pentagon Papers on the Vietnam War should ‘especially inhibit an emotional and damaging US reaction’. In Hamilton’s assessment, the common interests in Australia’s intelligence relationship with the US would ‘sweep the eddy of the present away’.
The director of defence security, Commodore P.J. Hutson, also gave a dismissive response after Tange asked him to investigate my publication of a leaked copy of his (Tange’s) June 1978 speech detailing cuts to projected defence spending over the following five years.5 Hutson explained in a brisk minute to Tange that the only copy of the speech that ‘has not been fully accounted for’ was from his office.6 He said he did not propose to take the matter any further, as the speech was only classified ‘Restricted’.
Defence investigations always came to the strong conclusion that leaks did not come from within the department or JIO. Foreign Affairs expressed similar faith in its staff. In one case, Tange reacted with his usual horror to a news report that the Japanese were replacing insecure diplomatic codes, which the DSD could easily break, with more secure ones. The article, which I wrote from Tokyo in July 1976, noted that Japan’s lax approach to communications security had some advantages. I said that cables intercepted in 1973 ‘showed genuine concern on the part of the Japanese about Rex Connor’s attitude as Minerals and Energy minister and this helped convince Whitlam he had a problem in this area’.7
In a typical response to a leak, Australia’s ambassador to Tokyo, Mick Shann, sent Tange a letter on 3 August 1976 saying he was ‘completely confident that no one in the embassy could in any way be involved’ and that my disclosures had caused only ‘mild’ interest in official circles. This was also the response of a recent head of the Japanese Foreign Ministry who invited me and another guest to dine at his home while I was in Tokyo. In his letter to Tange, Shann also said that Whitlam, who was in Tokyo at the time, told him, ‘Tange has a fixation about Toohey.’ Given the mild Japanese response to the leak, Whitlam’s comment suggested he had Tange’s ‘fixation’ in perspective.
After telling Tange that he had a ‘possible lead to the source’, Shann fingered Greg Clark, whom he described as a ‘considerable friend’ of mine. Despite Shann’s gratuitous ‘lead’, Clark was not my source. Fluent in Japanese, Russian, Chinese and French, Clark joined Foreign Affairs in 1956 before resigning in 1965 over the Vietnam War and moving to Japan. He briefly joined the Prime Minister’s Department under Whitlam in 1973 before returning to Japan, where he became a respected academic and a prolific commentator. He never felt the need to endear himself to Australian ambassadors.
Unlike most of the leaks I reported, Defence was untroubled by one quoting from a National Intelligence Committee (NIC) assessment that helped debunk Defence Minister Jim Killen’s extravagant claim on 30 June 1976 that the Soviet Union posed a military threat to Australia. Instead of complaining about the security breach, a JIO minute to Tange merely said that the AFR article contained direct quotes from the NIC report that ‘were accurate’. JIO was clearly tired of Killen’s fact-free rants. The threat didn’t last long, prompting the headline ‘Russia: The Three-Hour Threat’. This was the time it took for Foreign Minister Andrew Peacock to slap Killen down, bluntly stating, ‘We have never been talking about a direct military threat.’8 Killen then issued a press release to ‘amplify’ his previous claim. It was a humiliating backdown in which he acknowledged that the government ‘did not regard the Soviet Union as a direct military threat’. My article also explained that Killen’s initial press conference had been studded with overwrought remarks painting the Soviet Union as bent on world domination through every means at its disposal, ranging from merchant shipping to ‘advanced metaphysics’.
Tange was much less alarmed by leaks when he dealt with US or British officials. During a meeting with the British high commissioner, Tange reassured him that there was ‘nothing sinister’ about anything Clem Lloyd or I had done while on Barnard’s staff before we resigned.9 During a 1976 meeting with the CIA station chief, Corley Wonus, and his military intelligence counterpart, R.C. Nunemaker, Tange said he did not think my ‘motive was one of hostility to the US or attempt to do damage to our international situation or theirs’.10 Although he was trying to smooth the diplomatic waters, that was an accurate statement of my motives, which were about keeping readers informed. At the meeting Tange again stressed that nothing had leaked from his department. Instead, he told the two US intelligence officials that there was a ‘lot of evidence’ (there was none) that I had obtained a good deal of my information from ministerial offices in the Fraser and Whitlam governments.
Perhaps understandably, Tange focused on me as I had worked as private secretary for Barnard for the first seven weeks after the election until I left to join the AFR. With one exception, all the documents subsequently leaked were not even written until after I left, in most cases many years afterwards. The exception was the previous government’s 1971 secret study called The Strategic Basis of Australian Defence Policy. A rival newspaper published a leaked copy in June 1973. Due to Barnard’s casual attitude to handling classified documents, I saw his copy of the 1971 document, which Tange gave him in a secure satchel along with other classified documents. Barnard emptied the contents onto his office settee before leaving one Friday for his Launceston home. Carpenters were working near the settee to install a shower and toilet he’d ordered to rectify what he saw as the previous occupant Doug Anthony’s deplorable neglect of his entitlements. Although the carpenters might have enjoyed some additional weekend reading material, I put the contents in the safe.
Tange was initially convinced that my leaks were coming from Labor ministers and staff and would instantly cease with the arrival of the Fraser Government. They didn’t—they continued for decades—and Tange never identified any leakers. The primary motivation of all my sources was to reveal information they considered the public should know. As far as I could tell, their political sympathies, if any, ranged across the spectrum.
The National Times later reported on other documents that were released under FOI. Those above were deemed
exempt.11 The NT said an August 1976 document showed that Defence had recommended putting my movements under surveillance and monitoring my activities in case I tried to blackmail public servants into leaking. It also said the Fairfax group should be investigated to see if it paid people to leak. I don’t know if these proposals went ahead, but I do know that Fairfax never paid anyone in Defence to leak to me, and I never blackmailed anyone. Apart from the obvious ethical objections, enough sources came forward of their own volition.
Chapter 14 suggests that as the leaks continued, the deputy head of the PM’s department, Mike Codd, in 1978 was probably the last senior official to refuse a Cabinet request to investigate leaks. Nevertheless, Bill Pritchett, who replaced Tange as department head in 1979, did not have the same appetite as his predecessor for relentless investigations into leaks, nor the same volcanic temper. As one observer put it on Pritchett’s death, ‘Where Tange changed Defence through brains, bile, bluster and bullying, his successor Bill Pritchett did the same job just through the use of his brain.’12
Tange never managed to have anyone charged with leaking. In my case, he settled on trying to get the US embassy to refuse to give me a visa. A senior US diplomat told me he warned Tange that if he persisted in his attempts, the diplomat would personally sign my visa application. Soviet officials invited me and another journalist, Paul Kelly, to their embassy in May 1976 to discuss the possibility of one of us visiting Moscow. They chose Kelly, presumably because they thought he was better suited ideologically.
38
LABOR GOES TO COURT
‘Oyster reveals much which should concern and alarm us.’
Ian Macphee1
After Bob Hawke’s Labor government was elected in 1983, it was far keener to take court action to suppress media reporting than Malcolm Fraser’s government before it had been. The book of documents compiled by Richard Walsh and George Munster in 1980, Documents on Australian Defence and Foreign Policy 1968–1975, was an exception. The Fraser Government succeeded in getting the High Court to prevent Fairfax from publishing extracts, and copies of the book were withdrawn. However, Chief Justice Anthony Mason stated that the court wouldn’t automatically prevent publication if it served the public interest by keeping the community informed. This had to be balanced against a competing public interest that could sometimes constrain publication on national security and other grounds. New legislation thirty-five years later explicitly ruled out a public-interest defence in some cases.
Fraser did not resort to the courts after newspapers published several top-secret documents, including material from the Hope Royal Commission, highly sensitive cables between the CIA and ASIO, and an internal defence study on possible threats to Australia (the Hamilton Report). But Hawke didn’t shrink from tapping phones to try to discover leakers. He even ensnared one of his senior ministers, Peter Walsh. ASIO tapped my home phone not long after the Labor government was elected in March 1983. The tap picked up a call Walsh made to the phone, and Hawke then reprimanded him for speaking to me.
The National Times later published a three-part series called ‘The AUSTEO Papers’,2 which revealed abuses and shortcomings involving Australia’s intelligence agencies, amid some good work. One article revealed that when China made a military incursion into Vietnam in 1979, the US withheld signals intelligence from Australia despite all the solemn assertions about the intimate relationship between the two countries. Another article in the series revealed that Australia had spent millions of dollars on a joint intercept station in Hong Kong that failed to provide useful intelligence. It also quoted Bob Furlonger, head of the Office of National Assessments in 1978, as saying Australia’s intelligence coverage in the South Pacific was limited, but should improve with the installation of a sophisticated phone-intercept system called Reprieve in the Australian High Commission in Port Moresby and the embassy in Jakarta. Another article revealed that ASIO and the CIA regularly met in ‘safe houses’ to exchange often ill-based claims about individual Australians—for example, that certain Labor politicians were ‘communist sympathisers’. ASIO had never told any government about these meetings, and tried unsuccessfully to conceal them from the Hope Royal Commission.4 Another article praised the quality of an ASIO report, under Director-General Justice Woodward, about Middle East terrorism compared to the shoddy work ASIO had done earlier on Croatian terrorists in Australia.
After the first instalment appeared in some early copies of the 6 May 1983 edition of the NT, Hawke announced that the government had obtained a late-night injunction from Chief Justice Harry Gibbs on 5 May prohibiting further publication and ordering the Fairfax group to give the court all classified documents relating to the series. I explained in an affidavit that no one else at Fairfax or elsewhere (other than the government) had copies, and I couldn’t hand them over as I’d destroyed them in the interests of good housekeeping.
The case demonstrated Fairfax’s strong opposition to government censorship during that period. The company retained Melbourne QC Neil McPhee, an officer in the Army Reserve, but he refused to represent me as he thought I should go to jail and Fairfax should apologise. Although the company chairman, James Fairfax, was rarely involved in court cases, on this occasion he made it plain that the company would not apologise and would strongly resist any attempt to jail one of its journalists. I was given a separate QC, who told me he was on a retainer from ASIO. I said this was fine and never heard from him again. A highly skilled junior barrister, Richard Refshauge (later an ACT Supreme Court judge), protected my interests.
Another QC, Tom Hughes, was called in after McPhee objected to my argument in a proposed article that the government’s plan to use the defence minister’s regulatory powers to let the DSD intercept phone calls would be illegal, as only ASIO could lawfully intercept phones. If my argument was valid, it would bolster Fairfax’s claim that it was in the public interest to reveal a planned illegal act by a government, and if McPhee, retained by Fairfax, prevailed on this point, it would have weakened the company’s defence. To resolve the issue, a meeting was held in Hughes’ chambers at 8 a.m. on the Saturday. Hughes said that as a former attorney-general he was familiar with the law applying to phone intercepts. He briskly explained to his Melbourne counterpart why he was wrong: in 1983 only ASIO could legally intercept phones, and it needed a warrant issued by the attorney-general.
Further costs were incurred in moving to Canberra for lively negotiations with the government’s lawyers. I had spoken over the years with each of the public servants who had now sworn an affidavit that publication would breach national security. By Sunday evening, a settlement was reached with the government, which agreed to allow publication of the other proposed articles in the series after relatively minor changes. Refshauge objected vigorously to a last-minute attempt by McPhee to put me on the stand before the settlement was formalised in court the next morning. The case began on the Friday morning and was basically settled by the Monday morning, but not before Fairfax had spent tens of thousands of dollars.
The Hawke Government later tried to suppress parts of the book Oyster: The Story of the Australian Secret Intelligence Service, co-authored by Bill Pinwill and me. The government took action in the Federal Court after receiving draft copies of eight chapters in highly unusual circumstances that involved fellow journalists. In mid-1988, Pinwill had posted drafts of the chapters to the publisher, who subsequently mailed annotated copies to my address in October. I never received them.
I set out my understanding of what had happened in an affidavit to the court on 28 November 1988.5 The affidavit said that Channel 10’s news editor in Sydney, Des McWilliam, had phoned me on 22 November to say he wanted to hand over some property belonging to me and Bill—namely, the draft chapters. I then got a call from Kerry O’Brien, who worked for Network Ten in Canberra, who said words to the effect of ‘I know you had a phone call from Des McWilliam. Why don’t you ring him back? You really should do something about this today.’ I then met McWilli
am, who said a Ten journalist had obtained the material approximately two weeks earlier; he didn’t say how. He said there was strong pressure at the station to film the handover of the material to me, but he was resisting.
My affidavit stated that McWilliam then said words to the effect of ‘I gave it to Kerry last weekend. He has assured me he hasn’t talked about this to anyone. We have photographed some pages on video, but it has been treated as confidential within the station.’ He rang later and said words to the effect of ‘We will have to go to air with the story. Gareth Evans knows we have something called Oyster which appears to be part of a manuscript produced by you and Bill Pinwill. He knows we have handed it over to you.’
The affidavit says that on 24 November 1988 I spoke to Evans, who was responsible for ASIS as the foreign minister, and then voluntarily gave computer discs and printouts of the proposed book to the court after Evans agreed that publication of the book would be negotiated between senior officials and Pinwill and me. Evans said that I would be pleasantly surprised at how little ASIS wanted to cut. After the dust settled, I got a call from a senior journalist at Ten who told me on a non-attributable basis that he’d discovered one of Ten’s news staff had given the draft copies to the government. My understanding is that they were given to Evans or Kim Beazley. I am completely confident O’Brien did not hand them over.
After the court hearing began, the government’s QC launched into a flamboyant accusation about how we should have produced the draft copies under the discovery process. We didn’t include these notated copies in what we handed to the court for the simple reason that we had never received them from the publisher. The government, which had been handed this material, had not produced it, but the QC apparently wasn’t aware of this as he attempted to ensnare us. Solicitor-General Tom Sherman, who was sitting alongside him, saw the problem and pulled at the QC by his coat-tails, saying in a stage whisper, ‘Sit down, man!’
