by Brian Toohey
Federal police were later given powers to take people into ‘preventative detention’ for up to two weeks and subject others to ‘control orders’ that effectively put them under house arrest for up to twelve months. In his 2012 annual report, the independent national security legislation monitor, Bret Walker SC, recommended repealing these detention and control orders as unnecessary to keeping Australians safe. Subsequent governments have ignored his recommendations, although Walker warned that the control orders could continue to restrict a person’s liberty after a prosecutor lost in court. A Sydney lawyer, Michael Bradley, commented, ‘I do not trust the AFP to be a better judge of who should be locked up than our criminal courts. That is the definition of a police state.’12 A joint state–Commonwealth review committee said the law reminded some people of the ‘sudden and unexplained disappearance of citizens … the fearful rule of discredited totalitarian regimes’.13
George Brandis was often disturbingly ignorant about the legislation he introduced while he was attorney-general. When unveiling a thick new terrorism bill in July 2014, he said, ‘The ASIO Act is largely the 1979 Act and is in some respects obsolete—it predates the internet age.’14 The 1979 Telecommunications (Interception) Act has been ‘updated more than 50 separate times in the past two decades’,15 as reported by Melbourne academic Chris Berg. Berg says, ‘The debate over national security powers is always held under a veil of ignorance. The democratic accountability problem is enhanced even further by the fact that—as Edward Snowden’s leaks demonstrate—Western governments have repeatedly lied about their national security actions and have kept hidden evidence of their own wrongdoing.’16 Berg argues that ‘Any proposal by the government to increase its own power should be treated with scepticism. Double that scepticism when the government is vague about why it needs extra powers. Double again when those powers are for law and order. And double again every time the words “national security” are used.’17
Brandis further dismembered essential checks and balances in September 2014 when he introduced a new law making it a criminal offence for anyone to reveal anything about a ‘Special Intelligence Operation’, even though this law allows ASIO and its ‘affiliates’ to commit criminal acts other than murder and serious violent offences. There is no way for journalists, or anyone else, to find out if they might be breaking this law by checking with ASIO about whether a stuff-up was part of an SIO. Yet they could face five to ten years in jail for reporting something the public has every right to know. In a rare admission that a law went too far, the Turnbull Government partially exempted ‘outsiders’, such as journalists, from the law in 2016. But an ‘inside’ whistleblower who reveals that a suspicious death occurred during a botched operation could still face a savage jail sentence.
ASIO behaved impeccably during the AFP’s wrongful arrest and charging of Mohamed Haneef with terrorism offences, telling the government there was no evidence the Gold Coast doctor was involved in terrorism. Shortly afterwards, the Director of Public Prosecutions (DPP) recommended the charges be dropped. But the government stubbornly backed the AFP’s $8.2 million pursuit of Haneef until it admitted after twelve months that he was no longer a suspect. No AFP personnel were disciplined for confusing a gut instinct with evidence.
Nor do NSW counterterrorism police have a reassuring record. A University of NSW student spent a month in a high-security prison after police charged him with serious terrorism offences on 31 August 2018. The next day, the front page of Sydney’s Daily Telegraph featured a photo-shopped image of the young Sri Lankan man wearing an Arab headdress, with the headline ‘Poster boy for terror’. The charges were dropped a month later after two handwriting experts said it was unclear if he had written the note central to the case. The police initially refused to apologise.18 Someone else was later charged.
Successive governments have also failed to protect the right of Australian citizens not to be tortured or wrongly imprisoned by the US. American agents detained Egyptian-Australian citizen Mamdouh Habib in Pakistan in October 2001 and interviewed him in the presence of officials from the AFP and ASIO. The CIA then ‘rendered’ him to Egypt, where he was tortured over several months before being transferred to the US military jail at its Guantánamo Bay naval base—located on territory the US seized from Cuba in a war in 1898 and never gave back. In January 2005, the US released Habib from Guantánamo without charge. The prosecutors explained that they lacked evidence, but this didn’t stop Howard Government ministers continuing to imply that Habib was a terrorist.
In contrast, Stephen Harper’s Conservative Canadian government conducted a thorough review after the CIA kidnapped one of its citizens, Maher Arar, and rendered him to Syria for torture by the government of the US’s then friend President Bashar al-Assad. After the review established that Arar had been the innocent victim of false intelligence, he was awarded AU$11.4 million. In 2010, when Habib sued the Australian government over his detention and torture, the parties eventually agreed to an out-of-court settlement for an undisclosed sum.
The US treatment of a young Australian rural worker, David Hicks, also violated the Magna Carta’s principles. A local warlord captured Hicks in Afghanistan in late 2001 and sold him for US$1000 to US troops, who transferred him to Guantánamo in early January 2002, where he was kept shackled in a cage.19 The then attorney-general, Daryl Williams QC, described Hicks as ‘one of the 10 most dangerous men in the world’.20 The claim was ludicrous. Hicks consistently claimed he had been subjected to extended beatings, long interrogations, sleep deprivation and anal rape—treatment that was widely reported to be commonplace for supposedly dangerous prisoners. In early 2007, the then attorney-general, Philip Ruddock, responded to concerns about Hicks’ deteriorating health by saying people in Australia didn’t claim to be unfit to plead ‘simply because they’ve been detained’.21
In March 2007, over five years after his capture, Hicks entered a pretrial plea to a single charge of providing material support for terrorism. He returned to Australia in May 2007. The US Court of Appeals ruled in October 2012 that the charge was invalid as his offence didn’t exist in law when he allegedly committed it.
The Australian watchdog—the Inspector-General of Intelligence and Security—appears to have done a reasonable job of trying to tackle abuses of power, despite a tiny staff. However, no one scrutinises the quality of the secret reports from intelligence agencies. Many politicians and journalists simply assume that a ‘Top Secret’ stamp always transforms dross into gold. Respected economist Saul Eslake says, ‘When it comes to matters of “security” any idea of close scrutiny or proper appraisal seems to go entirely out the window.’22 The reality is that secrecy often hides incompetence and rewards conformity. Given the history of faulty reasoning and disastrous mistakes by our governments and security agencies, a separate oversight body is essential for maintaining quality control.
43
AUSTRALIA’S OWN NATIONAL SECURITY STATE
‘The fact that the attorney-general of the day has the ultimate discretion about whether to launch a prosecution only adds to the concern.’
Paul Murphy, CEO of the Media, Entertainment and Arts Alliance1
It would be a brave soul who argued that the people of the former Soviet Union gained from the secrecy surrounding its national security agencies. The power of Australia’s national security establishment has grown enormously in recent years, as has its protective wall of secrecy. A succession of new laws is turning Australia into a national security state. Even if parliament moderates a particular bill, the text gives a good guide to what the national security officials will later resurrect.
The Turnbull Coalition government went much further than any predecessor when it introduced two new bills in December 2017—the Espionage and Foreign Interference Bill and the Foreign Influence Transparency Scheme Bill. The first incorporated such a broad definition of espionage that it effectively suppresses public discussion on an unprecedented scale. A joint media organisations subm
ission to the Parliamentary Joint Committee on Intelligence and Security on 22 January 2018 said the bill ‘[would criminalise] all steps of news reporting, from gathering and researching information to publication/communication, and [would apply] criminal risk to journalists, other editorial staff and support staff [who] know of the information that [would now be] an offence to “deal” with, hold and communicate’.2 The submission quoted the bill as saying it could apply to the release and reception of ‘information of any kind, whether true or false and whether in a material form or not, and includes (a) an opinion; and (b) a report of a conversation’.3 When the amended bill became law, it retained this catch-all clause. The bill also made it an offence to leak, receive or publish ‘inherently harmful information’ and says that the prosecution does not have to prove it is national security classified information.4
Another new offence would be to publish anything that could ‘harm or prejudice relations between the Commonwealth and a state or territory’ or cause a ‘loss of confidence or trust’ in a state or Commonwealth government, however justified the loss of trust.5 This would potentially criminalise a vast range of media reporting on everyday politics. The espionage bill provided a fifteen-year jail sentence for a new offence of publishing or broadcasting anything for an Australian audience concerning national security that could be available to a ‘foreign principal’ who read, listened to or watched what was reported. As the media has no control over who reads, sees or hears what it produces, this clause covers just about everything it produces. There would be almost no public interest defence.6 The clause could apply to normal reporting and commentary that exposes stuff-ups by the intelligence services, scandalous behaviour in the defence forces, or the rising cost of weapons acquisitions.
The Law Council of Australia’s submission to the same committee expressed its concern about another clause that would make it a national security offence to cause intangible damage or prejudice to Australia’s international relations, ‘including political, military, and economic relations’.7 This offence is another that shouldn’t exist in an open society—it could apply to criticism of US trade barriers, Indonesia’s destruction of rainforest, or an arms build-up by China or India.
Not long after the harsh new laws to stop critical media reporting on national security issues were introduced, the then chair of the Parliamentary Joint Committee on Intelligence and Security, Coalition MP Andrew Hastie, made a spirited defence of free speech in February 2019. His unusual behaviour was triggered by a court awarding the Chinese-Australian businessman Chau Chak Wing just under $800,000 including costs in a defamation case after Fairfax Media in 2015 accused him of bribing the president of the UN General assembly. The media group, which is now part of the Nine Network, said it would appeal the court’s finding that it had not established its defence that the article was true. Hastie said he was concerned about the impact of the defamation laws: ‘The ability to report freely and fairly on national security is a vital part of our democracy.’ Never mind that he has been one of the most fervent supporters of new national security laws that provide severe jail sentences for journalists even if they report accurately on reprehensible behaviour by the security agencies.8 Hastie seemed unconcerned that the court found serious errors in Garnaut’s article.9 Prime Minister Malcolm Turnbull commissioned Garnaut in 2016 to head a secret ASIO enquiry into Chinese influence in Australia. At the time of writing, the outcome of an appeal is not known and the report remains secret, so it is not possible to assess its overall accuracy.
Amid the proliferation of new offences, it is worth remembering that there has never been a classic espionage operation in which an Australian has divulged military or other governmental secrets of any significance to a foreign intelligence official.10 Instead of spies on the ground, many espionage attempts these days rely on hacking into computers and databases from offshore locations. Encryption and protection of computer systems, not new laws, should prevent hacking of sensitive government information.
In discussing the bill, ministers didn’t explain why espionage is fine when Australian spies do it overseas. Nor did they acknowledge that espionage can help prevent wars by providing information that convinces each side that the other has no aggressive intentions. No Australian politician has ever acknowledged the damage secrecy can cause. President John F. Kennedy, however, admitted he shouldn’t have intervened to prevent the New York Times publishing sensitive details about the imminent invasion of Cuba by CIA-sponsored exiles in April 1961. The failed assault contributed to Cuba’s decision to host Soviet nuclear-armed missiles, almost culminating in a nuclear war with the USSR in 1962. Times executives said Kennedy later told them, ‘If you had printed more about the [CIA] operation, you would have saved us from a colossal mistake.’11
Leaks to the Australian media have never killed anyone. The US relies heavily on secret intelligence from Pine Gap in Central Australia to identify targets for bombing in the Middle East or for drone attacks elsewhere, often resulting in the death of civilians. Well-timed leaks about the phoney intelligence on Iraq’s weapons of mass destruction might have prevented the 2003 invasion and its disastrous consequences. Official secrecy repeatedly conceals the killing of innocent people.
Two academic lawyers make a strong case that the ‘lack of formal protection for free speech and other human rights has allowed Australia’s federal parliament to enact many laws in response to terrorism that would be unthinkable in other [democratic] countries’.12 They also note that the metadata laws requiring telecommunications companies to retain customers’ digital information for two years can expose the identity of sources such as government officials. In late 2017 the government introduced Journalist Information Warrants, which agencies need from an issuing authority comprising lawyers approved by a minister before they access a journalist’s metadata. Journalists can’t contest the validity of a warrant because they are not told about it.
Some journalists find it much easier to toe the official line and stay ‘on the drip’ from ministers and security officials. A low point came when the ABC boasted in late January 2018 that it had received hundreds of highly classified Cabinet documents in a government filing cabinet that had been sold to a second-hand shop. It was an unwelcome gift. The ABC published a small number of bland stories before handing the lot to ASIO, and stressed that it had refused to report anything bearing a national security stamp in case it endangered public safety. Cabinet submissions never contain that sort of detail. If they did, you just don’t report those aspects. In explaining its pathetic behaviour, the ABC implicitly condemned many journalists whose disclosure of highly classified material has served the public interest without hurting national security or any person.
It beggars belief that nothing in the hundreds of classified documents in the filing cabinet, including many below the classification ‘Top Secret’, could have been reported responsibly if the ABC had behaved more like a public broadcaster and less like an East German state broadcaster. A former senior Defence official, Patrick Gourley, said it was a ‘gutless effort’ by the ABC, adding, ‘It is difficult to think of a single instance of a national security leak that has done any great harm.’13
Amendments to the espionage and foreign influence bills modified some of the problems before they became law on 28 June 2018. Maximum sentences for some offences were reduced and the attorney-general had to approve some prosecutions—but this is of scant value if the politician holding the office of attorney-general never rejects any request from intelligence officials that could help his or her party.
The Law Council remains unhappy with several clauses. It criticises the continued inclusion of reporting and commentary on ‘economic and political relations with another country’ in the definition of ‘national security offence’.14 The head of the Media, Entertainment and Arts Alliance, Paul Murphy, said, ‘It took enormous effort by us and other media organisations to get amendments removing some of the [bill’s] worst elements. But the legislat
ion that eventually passed is still quite dangerous. It remains unclear at what point a journalist might cross the line and commit an offence under its provisions.’15 He added, ‘The fact that the attorney-general of the day has the ultimate discretion about whether to launch a prosecution only adds to the concern.’16 Referring to the approval of bugging Timor-Leste’s Cabinet offices for purposes that harmed that struggling country, Murphy said, ‘The attorney-general Christian Porter’s approval of the prosecution of “Witness K” and his lawyer Bernard Collaery is alarming.’17
44
FIGHTING A PHANTOM CALLED FOREIGN INFLUENCE AND THE ENCRYPTION DEMONS
‘A proposal to break the security architecture of the Internet is so blindingly misconceived that the standards body that oversees the whole medium has told the government in writing to shelve it.’
Scott Ludlam1
The cross-fertilisation of ideas and influences from multiple sources, both foreign and local, greatly benefits science, the arts, business and public discussion. Yet Malcolm Turnbull’s government in December 2017 introduced the Foreign Influence Transparency Scheme (FITS) Bill, which threatened these gains. A wide range of Australian people and organisations would potentially commit a crime unless they registered as an ‘agent’. They would have to register if they acted for a foreign government, foreign public enterprise, foreign political organisation or foreign business that seeks to affect the Australian political system and government decisions. The bill’s 1781-paragraph-long explanatory memorandum said failure to register would constitute a new criminal offence punishable by up to seven years’ jail, and the head of the Attorney-General’s Department would decide who should have registered but didn’t.
