Secret

by Brian Toohey

  There was one final touch to Evans’ reckless allegations. Because they overlapped with another legal action involving Oyster, the government required Pinwill to give a legally binding undertaking not to reveal Z’s name. It feared that I had told Pinwill Z’s name; I hadn’t. Nevertheless, the government told Pinwill the secret of Z’s identity to prevent him revealing a secret he didn’t know until the government told him. On 7 November 1988, a Foreign Affairs officer was dispatched with due solemnity to hand Pinwill a copy of an ambassador’s message that passed on the erroneous gossip that formed the basis of Evans’ High Court affidavit. Pinwill read the message in the Australian Government Solicitor’s office in Sydney, returned it on the spot and signed the undertaking never to reveal his newly acquired government secret. Such are the ways of this mysterious beast called national security.7

  PART 7

  LIBERTY LOST

  41

  DISMANTLING THE MENZIES LEGACY

  ‘A powerful case might be made out for the view that the emotion of fear is the most significant of all the emotions in the field of politics … Nothing sustains a dictatorship as does fear … If we look about us, will we be quite satisfied that fear is not an instrument of policy even in a democracy?’

  Robert Menzies1

  Australia’s longest-serving prime minister, Bob Menzies, did not shrink from exploiting fear during his sixteen years as Coalition prime minister after defeating Labor in the 1949 election. He repeatedly fanned fears about communism, and tarnished Labor in the process. He tried to outlaw the Communist Party in 1951 and introduced conscription for the Vietnam War. Rigid secrecy concealed the damage done by the British nuclear tests. Nevertheless, he usually showed a genuine commitment to the great English legal traditions protecting individual liberty against intrusions by the state—unlike most Australian prime ministers since 2001.

  At the height of the Cold War, Menzies rebuffed attempts in 1952 by his attorney-general, John Spicer, to expand offences relating to espionage and official secrets. In addition to the death penalty for spying, Spicer wanted tough sentences for a wide array of offences, including seven years’ jail for anyone who took meteorological observations prejudicial to national defence.2 Spicer was stymied by Allan McKnight, a member of that near-extinct breed: a fearless official in the Prime Minister’s Department. McKnight wrote to Menzies with uncompromising bluntness: ‘After studying the bill, one feels that every deed is an offence and whether prosecution will follow, or not, is simply a matter of official discretion.’3 He said an airline passenger who tried to take a photo of Sydney’s Harbour Bridge but accidentally photographed a nearby oil-storage facility would commit a prima facie offence attracting the death penalty, and the onus would be on the accused to prove no crime had occurred. The Menzies Cabinet threw out the entire bill. A later attorney-general, Garfield Barwick, managed to toughen the anti-subversion laws in 1961, but not without extensive amendments to his bill.

  Civil society under Menzies was often stultifying. Social norms constrained what was considered acceptable to say or do. The Hope Royal Commission, established by the Whitlam Government in 1974, made damning findings about ASIO’s activities despite its limited formal powers in the 1950s and 60s. Speaking at the release of the declassified versions of Hope’s reports, the royal commission’s secretary, George Brownbill, said, ‘We found a security service that had been badly politicised … The ASIO files disclose numerous cases where gossip and tittle-tattle about people and their so-called “Communist sympathies” was recounted to certain Menzies government figures and then revealed in some cases under parliamentary privilege.’4 A supplement to Hope’s report found that ASIO believed it was entitled to withhold important information from elected governments.5

  In 1960 Menzies legislated to ensure that ASIO was the only body entitled to obtain a warrant to intercept phones. A further safeguard was that it had no executive powers and was confined to collecting and processing information (or misinformation) under the beguiling name of ‘intelligence’. Accountability was also enhanced by the lack of any prohibition on naming an ASIO employee. This changed in 1980. Police can still be named.

  The Whitlam, Fraser and Hawke governments mostly held the line against Australia becoming a national security state. The official figures show ASIO was intercepting an average of eighty-five phones a year between 1974 and 1983.6 However, by 2006–07 police and other bodies, including crime and corruption commissions, received 3280 warrants for intercepts.7 In another blow to accountability, ASIO no longer releases details of how many authorisations it receives to intercept phones or access telecommunications data. Nor does it release the number of warrants issued under its contentious questioning and detention powers, or how many Special Intelligence Operations it conducts. Whistleblowers who expose abuses of power during these operations now face severe jail sentences.

  Sixty-three agencies, apart from ASIO, obtained a staggering 333,980 approvals to access stored telecommunications data in 2015–16.8 In many cases, this ‘metadata’ is just as useful as access to the content of a message or phone call. Each agency could self-authorise access to this data provided its intention was to ‘enforce a criminal law, impose a pecuniary penalty, or protect the public revenue’.9 The sixty-three agencies included the RSPCA, the Victorian Taxi Services Commission, the Australian Fisheries Management Commission and some local government authorities.10

  The number of agencies was subsequently cut to twenty, yet 3717 intercept warrants were issued in 2016–17 along with 300,224 approvals to access telecommunications data stored by phone companies.11 Of the 4154 publicly revealed warrants for telephone intercepts issued in 2016–17, only 1.56 per cent related to terrorism offences. Although the 4154 did not include the secret total for ASIO, insiders say the total figure showed just how few of the warrants related to the main national security problem used to justify the huge expansion in phone intercepts since the 1980s, let alone the 1960s.

  In one example, state police intercepted the phone of a washed-up professional tennis player, Nick Lindahl, during a long investigation by New South Wales and Victorian detectives into whether he stood to gain $3800 by betting on a match he intended losing against an unranked junior in a minor tournament in Toowoomba in Queensland in 2013.12 If anyone was silly enough to bet on this game, that was their problem, not cause to use phone intercept powers. The Sydney Morning Herald reported this incident on 29 January 2016 with the page-one headline ‘World tennis in the spotlight as match fixing controversy continues’.

  Despite the government’s claim to have cut the number of agencies allowed to access stored telecommunications data to twenty, journalist Karen Middleton reported in November 2018 that at least eighty were accessing individuals’ data by using loopholes in other laws to request and receive information without a warrant.13

  The pressure for intrusive laws and repressive powers beyond telecommunications had earlier gathered pace under the Keating Government, primarily at the urging of the irascible foreign minister, Gareth Evans, and the defence minister, Robert Ray. Evans had a quick temper and resented foreign diplomats chewing his ear about an adverse media report. In 1995 Ray, an instinctively secretive Labor right-wing-factional boss, tried to gain support for new laws to force newspaper and magazine publishers to submit articles touching on national security issues for vetting before publication. Media executives, quietly supported by senior Defence officials, succeeded in stopping governments from dictating what they printed or broadcast. Whatever his motivation, Evans introduced a bill to suppress publication of foreign affairs, defence and intelligence material that could allegedly harm relations with other countries, no matter how odious the regimes in those countries. Hitler, Stalin and Pol Pot would have approved.

  Both proposals lapsed following the election of the Howard Government in 1996, until revived in various forms after the 11 September 2001 terrorist attacks in the US. Fear was then exploited to justify a massive bipartisan expansion of the pow
ers of the state at the expense of individual liberty, in areas unrelated to terrorism. For example, in April 2008, sixteen police raided the Sunday Times office in Perth after it revealed that the state Labor government was planning to spend $16 million on an advertising campaign that would help it electorally. In July that year, the AFP investigated the phone records of the Nine Network’s Laurie Oakes following leaks about the government’s FuelWatch program.

  More government agencies are now exempt from review by courts and tribunals, removing one of the great checks and balances on executive power. The AFP even presumed in August 2016 that it had the right to raid Parliament House, access its IT systems and seize thousands of documents to find the source and the recipient of leaks that told the National Broadband Network’s ultimate owners—the public—about problems with rising costs and delays.14 In the past, police and intelligence agencies would have never tapped phones in Parliament House, let alone raided an institution at the pinnacle of Australia’s democratic system of government. This meant that for over a century, parliamentarians and their staff were free to receive information without police swooping on their offices.

  The AFP claimed in this case that commonplace commercial documents were secret, even if not classified as such. They relied on a section of the revised Crimes Act that refers only to disclosure of official secrets by Commonwealth officials, not to employees of an independent corporation such as the NBN. The parliament should have found the AFP in contempt and repealed the new laws that criminalise the disclosure of information of public importance. It did neither.15 Instead, the Turnbull Government introduced legislation in 2018 to make it a potential criminal offence to leak or receive a much wider range of documents, classified or not.

  No major political party is offering to restore the values of the earlier era, when habeas corpus prevailed, the onus of proof was on the prosecution, the accused was allowed to see the evidence relied on by the Crown, and ASIO officials could not legally kidnap people, or raid a lawyer’s offices and seize documents in a commercial case in which the government was a part of the opposing side.16 The Morrison Coalition government in December 2018 even boasted that a new law made Australia the first country in the world to force tech companies to help the state access encrypted messages on mobile phones and other personal devices and install various forms of malware.

  Many supporters of these new laws call themselves ‘conservatives’—but conservatives once prided themselves on their opposition to the growth of the state’s power over the individual. It was Lord John Acton, a conservative, who famously warned that ‘power tends to corrupt and absolute power corrupts absolutely’.17 Some recent Coalition politicians, who embrace the shift in power to the state, shamelessly claim to support the same freedoms as Menzies championed. Malcolm Turnbull, who strongly endorsed the expansion of government powers while prime minister, gave an address to the Menzies Research Centre on 22 May 2017 in which he quoted Menzies as saying, ‘The greatest tragedy that could overcome a country would be for it to fight a successful war in defence of liberty and lose its own in the process.’

  42

  SEVENTY-FIVE NEW LAWS AGAINST MURDER

  ‘I’m old enough to remember that one of the reasons why we could be sure during the Cold War that the Soviets were the “bad guys” was because they were the ones who tapped their citizens’ phones and read their mail, who could arrest their citizens without charge and detain them indefinitely without needing to prove them guilty of any crime—and “we”, by contrast, did not do any of those things … Now we do.’

  Saul Eslake1

  Terrorism has been used to justify many of Australia’s repressive new laws. Murdering people has long been a crime; so has conspiracy to murder and failing to tell the police what you know about a crime. These existing laws applied to terrorism (politically motivated violence) before new legislation made being murdered by a terrorist much more important than being murdered by anyone else.

  Before the attacks in the US on 11 September 2001, terrorism was more prevalent than is now commonly realised, but politicians saw no reason to respond with draconian new laws. Nor did they exploit fears of terrorism. George Williams, the dean of law at the University of New South Wales, says the federal parliament has introduced seventy-five new terrorism laws since September 2001.2 That number is far greater if state and territory parliaments are included.3

  A list compiled from official and semi-official sources shows that there were 154 acts of politically motivated violence in Australia between June 1966 and September 2001, including bombings, stabbings and shootings.4 The targets included American, Yugoslav, Soviet, Mexican, Indian, Italian, Iranian, French, Turkish, Israeli, Indonesian, South African and Vietnamese diplomatic premises. Other targets included Serbian Orthodox churches, synagogues and mosques. Terrorists assassinated a Coptic Christian leader, a Church of Christ minister and a Turkish consul general. In July 2001, an anti-abortionist campaigner killed a security guard outside a Melbourne family planning clinic. Croatians attacked Serbian people and property, and vice versa. Croatian expatriates mounted armed incursions into Yugoslavia to try to spark a rebellion in 1963 and 1972.5

  The absence of explicit anti-terrorism laws did not stop ASIO or the police from gathering intelligence on dangerous groups or individuals before an attack occurred. Police could lay conspiracy charges before a crime occurred. ASIO could have given more help if it had allocated fewer resources to building files on large numbers of harmless Australians. Some modest changes to the law might also have helped.

  Despite the scale of politically motivated violence before 2001, political parties did not compete on who was toughest on terrorism. In February 1978 a bomb killed two garbage collectors and a policeman and injured eleven people after exploding in a garbage truck’s compactor. The bomb had been placed in a garbage bin at Sydney’s Hilton Hotel where a Commonwealth Heads of Government Meeting was being held. Despite the presence of twelve foreign leaders, the Fraser Government did not introduce special terrorism legislation after the incident.6

  Murderers with no political, religious or ideological motivation also terrorise people, sometimes on a horrific scale. In April 1996, a mentally disturbed Hobart man, Martin Bryant, killed thirty-five people and wounded another twenty-three with a semi-automatic rifle at the historic convict jail Port Arthur. The Howard Government tightened gun-control laws, but did not start monitoring the mentally ill as potential criminals.

  Terrorism should not be ignored, but much more could be done to reduce the large number of avoidable deaths from road accidents, domestic violence and other causes. One quarter of all homicides in Australia are committed by a current or former partner of the victim—the latest available report from the Australian Institute of Health and Welfare records 512 victims in the two years from 1 July 2012 to 30 June 2014. Many of these domestic violence incidents had multiple victims.7 Since 2001, annual spending on ASIO has grown by a staggering 10.7 per cent; ASIS by 10.6 per cent; the AFP by 4.2 per cent; and Defence by 3.7 per cent—higher in every case than the average increase by governments on their other responsibilities.8

  Compared with Bryant’s horrendous toll in a few hours and the domestic violence toll of around 260 deaths a year, terrorists killed eight people between 1966 and September 2001 and injured at least thirty-five others. At the time of writing, terrorists had killed three people in Australia since September 2001;9 no one was seriously injured in these incidents. More might have died if ASIO and the police had not prevented other planned attacks occurring.

  Highlighting the heinous nature of terrorist violence and imposing heavy jail terms is meant to act as a deterrent, but governments and the media often promote a sensationalist treatment of terrorism that can have a perverse appeal for potential perpetrators. This is one reason intelligence officials such as former MI5 head Dame Eliza Manningham-Buller object strongly to US references to ‘waging a war’ on terrorism. Manningham-Buller said in her Reith Lectures, ‘I have
never thought it helpful to refer to a “war” on terror, any more than to a war on drugs. For one thing that legitimises the terrorists as warriors … What happened was a crime and needs to be thought of as such.’10

  Terrorism doesn’t pose an existential threat to Australia. Unlike an occupying military power, terrorists cannot take over and run the country. Nor can they kill more than a tiny proportion of the population. World War II killed 70 million people. A nuclear war could kill hundreds of millions. A serious breach of the quarantine safeguards could do more harm than terrorists.

  The Howard Government went much further than was justified when it introduced a bill in 2002 to give ASIO detention and questioning powers that let it hold people in secret custody, including those who were not suspected of committing a crime. Detainees could be held incommunicado for seven days, couldn’t contact their families or employers, couldn’t be told why they were being held, could be denied normal access to lawyers, and could face five years’ jail if they refused to answer questions or told anyone what happened for up to two years after their release. Amendments incorporated in the 2003 ASIO (Terrorism) Act softened some aspects of these powers. Innocent detainees can now have limited contact with their families and a lawyer, but their ‘captors’ decide when this occurs. Detainees can still be asked to reveal the location of an overseas acquaintance. If they do, they can reasonably fear that the information will be used to kill people if shared, as commonly occurs, with Australia’s intelligence partners who engage in extrajudicial executions. No one should be required to answer such a question in these circumstances. Three legal scholars say the 2003 Act ‘remains unique in the Western democratic world in that it establishes a system … whereby an intelligence agency may coercively question and detain a non-suspect citizen’.11 Yet John Howard signed up to George W. Bush’s 2003 invasion of Iraq, ‘Operation Enduring Freedom’, while simultaneously curtailing freedom in Australia.