Head, Michael --- "ASIO, Secrecy and Lack of Accountability" [2004] MurdochUeJlLaw 31; (2004) 11(4) Murdoch University Electronic Journal of Law

ASIO, Secrecy and Lack of Accountability

Michael Head
University of Western Sydney Law School

Author:	Michael Head B Juris, LLB(Hons), LLM, PhD Senior Lecturer, University of Western Sydney School of Law
Issue:	Volume 11, Number 4 (December 2004)

Contents

• Introduction
• The 'war on terror'
• The anti-terror laws
• ASIO's historical lack of accountability
• The ASIO and ASIS cases
• A veneer of accountability
• Conclusion
• Notes

Introduction

1. This article seeks to place the debate generated by the counter-terrorism legislation enacted in Australia since 2002 and, in particular, the expanded powers afforded to the Australian Security Intelligence Organisation (ASIO) within an historical context. In the author's view, this is essential to fully appreciate what is at stake in the unprecedented measures that have been adopted in the name of prosecuting the 'war on terror'.

2. One aspect of the legislation that requires close attention is the powers granted to ASIO to secretly detain and interrogate people without charge, together with the agency's expanded powers to carry out surveillance. It will be argued that, on the basis of the historical record, there is a danger that these capacities will be exploited for political purposes. It will be suggested that these dangers are heightened by the lack of any effective legal scrutiny of ASIO's assessments of national security.

3. The importance of carefully considering the expansion of the resources and legislative powers of ASIO and the other intelligence agencies in an historical context was underscored in May 2004, when Prime Minister John Howard announced a $232 million boost in their budgets, stating that it was necessary for 'the fight of our lives' against terrorism.[1] ASIO, which gained an additional $131 million, had had its budget doubled since September 11, 2001. The Prime Minister stated that ASIO's personnel level 'will be higher than at anytime since the Cold War'.[2] These references to the Cold War and the 'fight of our lives' invite, and indeed require, an historical review.

   The 'war on terror'

4. It is instructive to examine the official justifications for the recent measures. In an address to the Sydney Institute, delivered in the Mallesons Conference Room on 20 April 2004, Attorney-General Philip Ruddock outlined what he termed a 'new framework' for considering terrorism and the rule of law:

   The war on terror is like no other war in living memory. This is a war which may have no obvious conclusion, no armistice and no treaty. Victory in this war will not necessarily be measured by territory gained or regimes toppled. In this war victories will be measured by disasters averted and democracy strengthened. This war's victories will be measured by citizens feeling safe in their homes. This war's victories will be measured in the steadfastness and resolve of Australians to be cognisant of, but not to fear, a potential terrorist threat…

   Our Constitution, one of the world's oldest and most stable, provides us with a mechanism to protect our country and at the same time protect civil liberties through human security laws. In enacting such laws we are not only preserving traditional notions of civil liberties and the rule of law, but we are recognising that these operate in a different paradigm. If we are to preserve human rights then we must preserve the most fundamental right of all -- the right to human security.[3]

5. While insisting that the government is upholding the Constitution, civil liberties and the rule of law, the minister asserted that these now operate in a new paradigm: the right to human security, which is said to be the most fundamental right of all. Citing remarks by UN Secretary-General Kofi Annan, Mr Ruddock loosely defined 'human security' as encompassing human rights, good governance, access to education and health care and opportunities for individuals to fulfill their potential. All these, the minister asserted, depended upon a secure environment. Thus, in the name of defending civil liberties and the rule of law, they are said to no longer have any independent or absolute existence. Instead, they have been subsumed under another concept, human security. Making 'citizens feel safe in their homes' has become the chief criterion for the unknown duration of the current 'state of war'.

6. Despite the breadth of such claims, much of the debate and analysis in academic circles concerning the 'anti-terrorism' legislation begins with the proposition that a balance must be struck between 'national security' and 'civil liberties'.[4] According to this approach, the only disagreement concerns where the balance should lie. By this measure, some inroads into civil liberties must be accepted. My analysis suggests that this perspective is inadequate to meet the challenge posed by the doctrine enunciated by the Attorney-General.

7. In the first place, for powerful historical reasons, fundamental democratic rights should be regarded as sacrosanct. They embody centuries of deep-going political struggles. In Anglo-Saxon law, civil liberties -- such as habeas corpus, the presumption of innocence, the requirement of proof beyond reasonable doubt for a criminal conviction, freedom of association and free speech -- were substantially forged in the conflict against the absolutist monarchy, from the Magna Carta of 1215 and culminating in the English Civil War of the 1640s and the so-called Glorious Revolution of 1688.[5] Among these fundamental rights is freedom from detention without trial, as the US Supreme Court, by a 6-3 majority, commented in June 2004, in ruling that Guantanamo Bay detainees, including two Australians, David Hicks and Mamdouh Habib, could seek writs of habeas corpus in US courts.[6] The majority judgment, delivered by Stevens J, suggested that at stake were democratic conceptions dating back nearly 800 years to the Magna Carta of 1215:

   Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.[7]

8. Secondly, there is much evidence to suggest that the 'war on terror' has been declared for definite political purposes, both foreign and domestic, rather than to protect the security of ordinary people. It is now widely acknowledged that the claims made to justify the central international operation of the 'war' – the United States-led invasion of Iraq – that is, the claims of 'weapons of mass destruction' and Saddam Hussein's links to terrorism – have collapsed. Moreover, whether or not the Bush administration knew in advance of plans for some kind of terrorist atrocity on September 11 -- and that question still has to be answered[8] -- the outrages in New York and Washington provided the opportunity for the implementation of plans prepared much earlier -- during the 1990s -- for the conquest of Afghanistan and Iraq[9] The Middle East and Central Asia, as is well known, contain the largest proven concentrations of oil and natural gas reserves in the world. The US-led interventions in the region, and the establishment of US military bases throughout Central Asia have added weight to the evidence that Washington's underlying ambition is to secure hegemony over this entire vital expanse.

9. There is equal reason to doubt the domestic side of the war. Since the September [11]2001 attacks, the Howard government has eroded long-standing legal and democratic rights in the name of combatting terrorism. Particularly given the width of the definitions attached to the new raft of terrorism offences, as discussed below, there is good reason to conclude that the array of powers given to ASIO and the police is designed for potential use against political dissent and civil unrest more broadly.[10] Certainly, on the face of it, none of the new measures were necessary to protect ordinary people against terrorism. Many submissions to parliamentary committees inquiring into the proposed legislation, including those of the Law Council of Australia and the Civil Liberties Councils of NSW and Victoria, questioned the need for the entire package.11 As pointed out by a parliamentary library report, any conceivable terrorist activity, such as murder, bombing, hijacking, kidnapping and arson, was already a serious crime under existing law.[12]

10. ASIO also had a vast array of powers to tap phones, instal listening devices in offices and homes, intercept telecommunications, open people's mail, monitor on-line discussion, break into computer files and databases, seize computers and use tracking personal devices.[13] The ASIO Director-General or his delegated officers could already issue emergency search and entry warrants, allowing officers wide scope to conduct operations against political activists and organisations, as well as to infiltrate them.[14] Moreover, ASIO is part of an extensive security and intelligence network, which incorporates the external Australian Secret Intelligence Service (ASIS), the Office of National Assessments (ONA), special State police units (formerly called Special Branches), the military's Joint Intelligence Office (JIO), the Defence Intelligence Organisation (DIO), the Defence Imagery & Geospatial Organisation (DIGO) and an electronic eavesdropping agency, the Defence Signals Directorate (DSD).[15]

    The anti-terror laws

11. Under the government's legislation, 'terrorism'—defined so widely that it covers many traditional forms of political action and protest—has become a crime punishable by life imprisonment; the government has been given executive authority to ban political parties that allegedly support terrorism; and ASIO has been handed previously unthinkable powers, such as detention without trial. It is not possible to review these laws in details here – the author has done so elsewhere.[16] However, a brief outline of the detention provisions is necessary, in order to demonstrate their far-reaching character.

12. ASIO and Federal Police officers can now raid anyone's home or office, at any hour of the day or night, and forcibly take them away, interrogate and strip-search them and hold them incommunicado, effectively indefinitely through the issuing of repeated warrants[17] Detainees did not need to be suspected of a terrorist offence, or any other criminal offence. The Attorney-General can certify that their interrogation would 'substantially assist the collection of intelligence that is important in relation to a terrorism offence,' even if no act of terrorism has occurred.[18] This power can potentially be used to detain journalists and political activists, as well as the children, relatives or acquaintances of supposed terrorism suspects.

13. Those detained have no right to know why they are being hauled off for interrogation. If they resist, force can be used against them. Section 34JB of the ASIO Act permits police officers to use 'such force as is necessary and reasonable' in breaking into premises and taking people into custody. Under the section, police may cause death or 'grievous bodily harm' if they believe it necessary to protect themselves or others from death or injury. In addition, officers may use 'reasonable and necessary' force to conduct strip-searches.[19] If anyone refuses to answer any question or produce any material that ASIO alleges they possess, they face five years jail. In a significant departure from established law, the Act effectively reverses the burden of proof, overturning a basic protection against police frame-up. If ASIO alleges a person has information or material, the onus is on the individual to prove otherwise.

14. If detainees know the name of a lawyer, they can contact them for legal advice, but only if the prescribed detention authority, acting on ASIO's advice, does not object to the lawyer.[20] Even if ASIO accepts a detainee's choice of lawyer, questioning can commence without the lawyer being present. In any case, the lawyer cannot object or intervene during questioning—if they do, they can be ejected for 'unduly disrupting' the questioning.[21] Initial detention can last for up to seven days, including three eight-hour blocks of questioning over three days, but the Attorney-General can approve further seven-day periods. To justify serial extensions, ASIO and the government simply have to claim that 'additional to or materially different' information has come to light.[22] Interrogation must be video-taped[23] and conducted in the presence of a 'prescribed authority,' that is a judge, retired judge or presidential member of the Administrative Appeals Tribunal.[24] Video-taping of questioning, currently required for police questioning in most Australian jurisdictions, is no guarantee against the planting of evidence and extraction of false confessions.[25] And a government can appoint retired judges or tribunal members, with no judicial tenure, who may be amenable to its requirements.

15. These measures represent a radical new approach. ASIO previously had no powers of arrest or interrogation. The State and Federal police can detain people, but only on suspicion of committing a criminal offence and those suspects must be either charged or released within a short period, and generally cannot be detained for interrogation.[26] Police prisoners have the right to legal counsel, who can be present during questioning, and to remain silent.[27] With the notable exception of the detention of asylum seekers, detention without trial is regarded as unconstitutional.[28] A citizen is entitled to decline a request to attend a police station 'to assist police'. Despite the referral of 'terrorism' powers to the Commonwealth by the States and Territories, doubts remains about the constitutional validity of these provisions. In particular, these questions surround the ASIO detention power, which may amount to a usurpation of the judicial power.[29]

16. Concerns about the underlying thrust of the new legislation were heightened by amendments adopted in December 2003, which effectively gag all public protest against, or even reporting of, ASIO's use of its new powers. It became a crime, punishable by up to five years jail, to publicly mention any operation involving ASIO's power to detain and interrogate people, simply on the allegation that they may have information relating to terrorism. Under the amendments to the Australian Security Intelligence Organisation Act 1979 ('ASIO Act'), the very fact that someone has been detained cannot be talked about publicly for up to 28 days, until after the detention warrant expires. No operational information about the detention can be disclosed for two years. The ASIO detention laws, passed earlier in 2003, already prohibited detainees or their lawyers from alerting their families, the media or anyone else that they had been detained. This gag has been broadened to cover all people, not just detainees and lawyers, and extended for the full 28-day period of a warrant.[30] A further two-year prohibition has been imposed on the public disclosure by anyone of 'operational information' that was obtained, directly or indirectly, from the questioning process. 'Operational information' is defined widely. It covers all information that ASIO has or had; sources of ASIO information; and any 'operational capability, method or plan' of ASIO.[31]

17. This legislation represents a grave erosion of political and press freedom. Even if ASIO itself breaks the law, for example by detaining someone for more than seven days without obtaining a new warrant, any journalist who reports the case could be imprisoned. In effect, these measures outlaw political campaigns against arbitrary or illegal detentions. If someone sees a person being hauled away by ASIO or federal police for questioning, they cannot disclose that fact to anyone—not even a family member, friend, civil liberties group, Member of Parliament or political party. If a detainee's family or associates somehow find out about the detention, they cannot publicly comment on it in any way.

18. The government insisted on passing the ASIO secrecy provisions without amendments in December 2003, despite strong protests from civil liberties and media organisations. Liberty Victoria, for example, stated: 'ASIO's activities pursuant to judicially granted investigative warrants are to be covered in a veil of secrecy unprecedented in Australian history... These secrecy offences pose a grave threat to Australia's democracy and could enable the government of the day to impose a 'war of terror' against its political opponents or vulnerable sections of the community.'[32] In a letter to Attorney-General Philip Ruddock, Australia's main media proprietors' groups—Fairfax, News Ltd, SBS, the ABC, the Australian Press Council and Commercial Radio Australia—warned: 'This has the potential to completely remove from public scrutiny all discussion of ASIO's activities in relation to terrorism. Such a measure to address threats of terrorism is capable of being used by the government against Australian citizens while providing little tangible benefit, save for a complete media blackout of those matters that are so important in this political climate.'[33]

19. The legislation adopted in 2003 substantially transformed ASIO from an undercover spying agency into a political police force, combining surveillance and other secret operations with raids, detention and interrogation. At the same time, ASIO remains exempt from the Freedom of Information Act (Cth) 1982, making it impossible to obtain unpublished information about the agency's operations, even its surveillance or security assessment of oneself. (Some declassified information that is more than 30 years old may be accessed under the limited provisions of the Archives Act 1983.) Moreover, the identities of ASIO officers are strictly protected. It is a serious offence, punishable by up to one year's imprisonment, to publicly name or otherwise identify an officer.[34]

20. It is now possible for ASIO to cloak virtually all its operations in secrecy, simply by obtaining a questioning warrant from the Attorney-General. For that reason alone, the latest legislation increases the danger that ASIO's detention powers will be abused. ASIO has a long record in this regard. Since the Chifley Labor government established the intelligence service in 1949, it has been used by successive governments, Labor and conservative alike, to monitor, disrupt and harass a wide range of political opponents, including Labor Party members, trade unionists, anti-war activists, students and socialists.[35]

21. In the past, the High Court has, in effect, refused to call into question ASIO's assessment of what constitutes a threat to security. As discussed below, in 1982, in Church of Scientology v Woodward[36] the court rejected an attempt by the Church of Scientology to challenge ASIO's assessment that the church presented a possible threat to security. A similar result was reached two years later in A v Hayden[37] with regard to the operations of ASIS, ASIO's overseas sister agency.

    ASIO's historical lack of accountability

22. Serious difficulties associated with ASIO's lack of legal accountability have existed since its origins. On 16 March 1949, Labor Prime Minister Ben Chifley issued a Memorandum appointing a Director-General of Security and directing him to establish an, as yet unnamed, Security Service.[38] The Memorandum had no clear legal basis, being in the nature of a prime ministerial decree. It purported to confer vague powers on the Director-General, who was to have 'direct access to the Prime Minister at all times'.

23. There was no accountability, except to 'keep each Minister informed of all matters affecting security'. Ministers were to be furnished only with 'such information as may be necessary for the determination of the issue'. Thus, the agency was substantially shielded from Ministerial oversight. The size of its budget and the sources of its funding were kept secret from the public. The Director-General was instructed to keep the Service free from political bias and strictly limited to what was necessary for its tasks, yet no means of review or redress were provided for a breach of these instructions.

24. As the first Director-General, South Australian Supreme Court Justice Geoffrey Reed, noted, the Service was established without any legal basis, simply by an administrative fiat. Facing legal difficulties in appointing staff, he recommended that the problem be remedied by legislation, but was told that this was politically impossible, because the Chifley government did not want to give ASIO legislative status. Instead, the Governor-General in Council delegated to Reed authority to appoint staff under Section 67 of the Constitution.[39] Reed later wrote: 'It is quite doubtful whether the executive power of the Commonwealth Government can be exercised by the Prime Minister in this manner.' [40]

25. When the Menzies government took office following the December 1949 election, it pledged to outlaw the Communist Party of Australia. Menzies claimed a 'political mandate' to place Australia on a 'semi-war footing' against communism.[41] As part of its efforts, the Menzies government sought to strengthen ASIO. In July 1950, Menzies appointed a new Director-General, Colonel Charles Spry, the Director of Military Intelligence and issued a new directive, entitled 'Charter of the Australian Security Intelligence Organization' (sic). The Charter was similar to Chifley's Memorandum, with several exceptions. ASIO was no longer part of the Defence Forces; instead, it was 'part of the defence system of the Commonwealth'.

26. Under the command of Colonel Spry, ASIO played a central role in the Petrov affair and subsequent Royal Commission, which dominated federal politics from 1954 to 1956.[42] As a result, after the Petrov inquiry concluded, Spry became concerned that a future Labor government might abolish ASIO. He wrote to Menzies, successfully urging him to confirm the organisation's existence by an Act of Parliament.[43] The purpose of the Bill, which was drafted by Spry, who also drafted Menzies' second reading speech, was not to make ASIO more accountable.[44] Instead, the ASIO Act 1956 gave the Director-General broad authority, by virtue of section 4(2), which stated: 'The Organization shall be under the control of the Director-General.' Under section 6, the Director-General was to be employed by the Governor-General on the terms and conditions determined by him. Section 12 specified that the Director-General and other officers were not to be dismissed at will.

27. The Act gave extensive power to the Director-General in three ways. First, 'security' was defined as protecting the Commonwealth from 'acts of espionage, sabotage or subversion'[45] with the latter term being particularly susceptible to political misuse.[46] Second, it couched the Director-General's power to collect and communicate intelligence, and to decide whether to advise Ministers, in broadly discretionary terms, without suggesting any criteria for the exercise of his discretions. Third, the Act was less prescriptive than the previous Prime Ministerial directives. There was no longer any injunction against political bias and influence, or the requirement to strictly limit ASIO's work to that necessary for its tasks.

28. During the 1960s and early 1970s, ASIO's operations expanded, particularly as protests grew against conscription and the Vietnam War and broadened into a movement directed more generally against the political establishment. ASIO bugged and infiltrated the CPA and other left-wing organisations, including the Labor Party's Left faction. It worked closely with prominent media figures, as well as right-wing Labor and trade union leaders.[47] The agency maintained files on many academics[48] and Australia's 800 or so federal and state parliamentarians.[49]

29. Under pressure to rein in the intelligence services after taking office in 1972, the Whitlam Labor government came into some conflict with ASIO. Prime Minister Whitlam initially refused to allow his staff members to undergo the customary ASIO security checks, whereupon ASIO informed the CIA in Washington, which threatened to cut off intelligence information to Australia. Whitlam soon afterward agreed to the security checks.[50] Refused access to ASIO records, Attorney-General Lionel Murphy arrived unannounced at ASIO headquarters in March 1973 and confiscated certain files. In early 1975, the government dismissed the heads of both ASIO and ASIS in separate incidents.[51] The government initiated the Hope Royal Commission into the operations of the intelligence services in 1974. Before Hope's report was completed, however, Governor-General Sir John Kerr dismissed Whitlam as prime minister.

30. In his report, ultimately delivered to the Fraser government in mid-1977, Justice Hope found that there may have been times when ASIO departed from the principles of legality, propriety and staying within its charter.[52] Specifically, he concluded that ASIO was operating with questionable legality in some operations, such as intercepting other forms of telecommunications, opening mail, using listening devices and entering and searching premises.[53] It was also committing errors in security vetting, producing a risk of 'a grave and permanent injustice … to the person the subject of the assessment'.[54]

31. Hope did not reveal any of the transgressions, however, or call for prosecutions. On the contrary, he urged the adoption of measures to legalise ASIO's operations. Following the 1978 Sydney Hilton Hotel bombing, the first major terrorist act recorded in Australia,[55] many of Hope's recommendations were taken up in the ASIO Act of 1979. The ASIO Act's definition of 'security' was effectively widened by replacing the word 'subversion' with the phrases 'politically motivated violence', 'promotion of communal violence' and 'attacks on defence and security'.[56] The Act continued ASIO's lack of operational accountability. Under section 8(1), the agency remained under the Director-General's control. Section 8(2) made the Director-General subject to the general directions of the Minister, but the Minister was not permitted to override the Director-General's opinion on whether the collection or communication of intelligence concerning a particular target could be justified. Section 17A specified that 'lawful advocacy, protest or dissent' should not, by itself, be regarded as prejudicial to security but, in the words of one study, the affect of section 17A 'cannot be confidently stated'.[57]

32. Sections 25-28 provided for the Director-General to obtain warrants to enter and search premises, remove records, use listening devices, and gain access to postal articles. The Director-General need only 'suspect a person of being engaged in, or of being likely to engage in, activities prejudicial to security.' Section 37 included as a function of ASIO the issuance of security assessments to Commonwealth agencies. Section 38 required that ASIO notify an applicant of an adverse assessment and inform the applicant of the right to apply to the Security Appeals Tribunal, but permitted the Director-General to apply to the Attorney-General for permission to withhold the notice if he considered it 'essential to the security of the nation'. Section 94(1) inserted one minimal item of accountability. It required the Director-General to furnish the Minister with an annual report, as soon as practicable after 30 June each year, on the organisation's activities. The section did not specify the contents of that report, however.

    The ASIO and ASIS cases

33. The extent to which the ASIO Act, as amended in 1979, continued to shield the agency from legal scrutiny was demonstrated in 1982. In Church of Scientology v Woodward,[58] the Church of Scientology challenged ASIO's assessment of it as a security risk. The High Court dismissed the notion that ASIO could act lawfully beyond the limits set by the Act, in purported exercise of the Commonwealth's executive power. But it was divided on whether, in practice, it could review ASIO's security assessment decisions.

34. Only Gibbs CJ argued that the Act impliedly excluded the courts from reviewing such decisions. In interpreting the Act, particularly Section 8 (2), he concluded that Parliament's implied intention was that ASIO decisions (at least concerning security assessments) should not be reviewable by the courts. Gibbs CJ qualified his judgment by stating that such ASIO decisions should only be immune from legal challenge if 'individual rights and bad faith are not involved'.[59]

35. Mason J, who concurred with Gibbs CJ, said section 17(1) of the Act contained an exclusive and comprehensive list of the activities ASIO was authorised, and unauthorised, to engage in.[60] Yet, in so far as those functions were required to be relevant to 'security,' it would be difficult for a plaintiff to challenge ASIO's decision-making. Mason J described security as a 'fluctuating concept, relying on circumstances as they exist from time to time--not unlike the issue of defence'.[61] Moreover, it was inevitable that some intelligence gathered would ultimately be classified as not constituting a security threat, 'but this does not mean that the intelligence which ASIO obtained was not relevant to security'… Intelligence is relevant to security if it establishes… that a person suspected of being a security risk is, or is not such a risk.'[62] The onus was on the plaintiff to establish that there was 'no reasonable basis to conclude that the actions in question have a real connection with security'.[63] While not, in theory, ruling out judicial review of ASIO operations, Mason J described the satisfaction of the test as a 'formidable task'. This was in part due to the severe challenges facing an applicant in satisfying a court that ASIO erred in its decisions as to national security. One such obstacle was the exclusion of material relied upon by the plaintiff by virtue of Crown privilege.[64]

36. Murphy and Brennan JJ, who dissented, also maintained that, in theory, no exercise of Commonwealth power could be excluded from judicial review, at least not without clear and express words. But in practice, they too considered that applicants would face almost insuperable difficulties in introducing evidence and convincing a court that ASIO's judgments on national security were erroneous. Brennan J, for example, asked: 'How can the gravity of a security risk be evaluated by a court?' A plaintiff would not be able to force the disclosure of ASIO documents as evidence for a challenge. 'Discovery would not be given against the Director-General save in a most exceptional case,' he stated. 'The public interest in national security will seldom yield to the public interest in the administration of civil justice.'[65] Brennan J concluded: 'There are thus large obstacles in the path of a plaintiff who seeks to restrain an alleged activity of the Organization on the ground that it does not lie within the functions assigned to it by s. 17.'[66]

37. A similar result was reached two years later in A v Hayden[67] with regard to the operations of ASIS, the Commonwealth's counter-espionage agency. One difference between the Hayden and Church of Scientology cases is that ASIS operated without any legislative basis, as an exercise of the executive power of the Commonwealth under s 61 of the Constitution. But a broadly similar approach was taken to the issues of national security that arguably arose. Some texts have described the decision as asserting the subordination of the intelligence agencies to the rule of law. According to one interpretation, 'the High Court declaimed forcefully that security intelligence authorities had no right to breach the criminal law'.[68] A closer examination suggests otherwise.

38. The case arose out of a 1983 ASIS training operation at Melbourne's Sheraton Hotel, in which the masked and heavily-armed participants smashed open a door, engaged in a fight in an elevator and terrified guests and staff as they ran through a lobby to a waiting car. The incident attracted media headlines and an inquiry conducted by Justice Hope concluded that the participants had possibly committed 21 serious criminal offences. However, the Minister responsible for ASIS, Foreign Minister Bill Hayden, was absolved of responsibility for the agent's misconduct. Hope concluded that Hayden had no duty to inquire into specific details of ASIS training programs, and the Acting Director-General had no duty to inform him.[69]

39. Alleged participants in the incident sought an injunction prohibiting the Commonwealth from disclosing their identities to the Victorian chief police commissioner for the purpose of investigating whether they had committed criminal offences. The plaintiffs argued that, as they worked with ASIS, their identification would endanger national security and breach confidentiality agreements in their contracts of employment with the Commonwealth.

40. Members of the court made apparently strong statements to the effect that ASIS and other security agencies must operate within the law. Mason J, for example, declared: 'For the future, the point needs to be made loudly and clearly that if counter-espionage activities involve breaches of the law they are liable to attract the consequences that ordinarily follow from breaches of the law'.[70] Other justices described the incapacity of the executive to dispense its servants from obedience to legislation as 'the cornerstone of parliamentary democracy'[71] and essential to the 'rule of law'.[72]

41. However, the case was unusual because the federal government opposed the plaintiffs, denying that national security would be threatened. (An agreement had been reached with the Victorian government and specific legislation introduced to prevent public disclosure of the plaintiffs' identities and provide for in camera trials of any a criminal charges). Thus, the court did not have to decide whether a government claim of national security would have protected the ASIS officers.[73]

42. Moreover, the majority of the court refused to rule out the possibility that, under certain circumstances, the interests of 'national security' could override those of 'the administration of justice'. Wilson and Dawson JJ stated: 'The administration of justice, important though it is, may on occasions have to give way to an even more compelling public interest. In a proper case, national security may well satisfy that description.'[74] They indicated that the government's view of national security would always 'carry great weight'. 'The consequence of a decision of a court on a matter of national security which is contrary to the considered view of the government could be very serious indeed.'[75]

43. In addition, the judges accepted that the Commonwealth itself was immune from criminal prosecution, even though senior officials had initiated the training exercise.[76] In other words, individual intelligence operatives might be criminally liable, but not their superior officers or members of the government. Finally, Brennan J opined that, at least during wartime, legislation could be passed exempting ASIS officers from other laws. He stated: 'The Commonwealth Parliament has made no law granting to ASIS officers exemption from any law; it is unnecessary to consider whether its constitutional powers could support such a law in times of peace.'[77] This suggestion could take on new meaning in the light of the ongoing 'war on terrorism'.

44. Finally, it must be noted that no prosecutions resulted. Public and private requests by the Commonwealth government not to proceed prevailed. Officially, the Chief Commissioner of Police, on the advice of the state Director of Public Prosecutions, announced that matters would not proceed. It was maintained that as the suspects had worn masks, it was not possible to determine who had done precisely what, and that lack of evidence precluded the laying of specific charges. Instead, the hotel management received $259,000 in exemplary damages from the government, while employees received undisclosed payments.[78]

45. There is another aspect to the lack of legal accountability afforded to the intelligence agencies. Claims of public interest immunity may be invoked to prevent access to documents relating to any allegedly unlawful activities. In Alister v R[79] by a three-to-two majority, the High Court held that, for the purpose of an appeal against a conviction for conspiracy to murder, it should inspect ASIO documents subpoenaed by the defence, despite a ministerial certificate claiming public interest immunity on national security grounds. The documents concerned the activities of an ASIO agent, Richard Seary, who was involved in the alleged conspiracy. The majority said a higher standard of “public interest” was required where the information requested related to a criminal conviction. Again, strong statements of principle were made. Brennan J, for example, said:

    It is of the essence of a free society that a balance is struck between the security that is desirable to protect society as a whole and the safeguards that are necessary to ensure individual liberty. But in the long run the safety of a democracy rests upon the common commitment of its citizens to the safeguarding of each man's liberty, and the balance must tilt that way.[80]

46. Upon inspection, however, a differently-constituted majority (with only Murphy J dissenting) held that, since none of the documents was relevant to the issues at the trial, the public interest in their non-production outweighed any contrary public interest. Given that the court's examination of the documents was conducted in secret, it is difficult to assess this conclusion. It remains of concern, however, the Attorney-General, on ASIO's advice, can readily claim public interest immunity and that the 'balance' to be struck with civil liberties remains substantially hidden from public scrutiny.

    A veneer of accountability

47. Fresh concerns about ASIO's role arose as a result of the 1983-84 Combe-Ivanov affair. After the Hawke government took office in 1983 ASIO conducted an operation against former ALP national secretary David Combe for establishing relations with an alleged KGB officer, Soviet diplomat Valeriy Ivanov.[81] After the treatment of Combe provoked considerable public disquiet, the government appointed Justice Hope to prepare a second Royal Commission report. Hope ultimately cleared Combe of any charge of spying for the Soviet Union but endorsed ASIO's actions and recommended further strengthening of its work, including the transfer of its headquarters from Melbourne to more sophisticated premises in Canberra.[82]

48. Hope proposed that ASIO be subjected to a limited degree of public accountability. Accordingly, the Inspector-General of Intelligence and Security (IGIS) was established by the Inspector-General of Intelligence and Security Act 1986 (Cth) as a monitoring and complaints handling agency, with powers to conduct inquiries and make recommendations to the government. However, it is a small agency of five people, including the Inspector-General, which depends on the Prime Minister's Department for Department of the Prime Minister and Cabinet for assistance and resources.[83]

49. The ASIO Act was also amended to allow the Attorney-General to give written guidelines to the Director-General, to be observed 'in the performance by the organisation of its functions or the exercise of its powers'.[84] But guidelines issued in 1992 encouraged a generous view of 'activities relevant to security' and did little to suggest any restraint, apart from providing general injunctions against unduly intruding into individual privacy or offending ethnic sensitivities.[85]

50. There is evidence that ASIO and police agencies continued to maintain surveillance on many political activists during the 1980 and 1990s. In 1998, the NSW Police Integrity Commission revealed that the state's Police Special Branch, which worked closely with ASIO, kept more than 10,000 in-depth 'dirt' files and 60,000 index card entries on the activities, personal lives, movements and associates of all known members, supporters and sympathisers of left-wing organisations.[86]

51. The Intelligence Services Act 2001 (Cth) provided some further accountability for ASIO and other intelligence agencies. It gave statutory recognition to ASIS and DSD and defined their functions for the first time, but only in sweeping terms. Section 6 empowered ASIS to 'undertake such other activities as the responsible Minister directs relating to the capabilities, intentions or activities of people or organisations outside Australia'. The Act also established the Parliamentary Joint Committee on ASIO, ASIS and DSD, with limited powers to review the administration and expenditure of the three agencies.

    Conclusion

52. Despite these measures, the historical record demonstrates that there is a distinct danger that under the counter-terrorism legislation, ASIO will effectively operate as a law unto itself, armed with greater powers than ever before in Australian history. In summary, this author's concerns are that the 'war on terror' – based substantially on false premises – has become a vehicle for measures that dramatically expand the already considerable and substantially unregulated powers of the security agencies, at the expense of basic democratic rights. Serious and constitutionally dubious inroads have been made into long-standing principles such as no detention without trial, the presumption of innocence and freedom of speech and association.

53. Moreover, the historical experience suggests that ASIO has been used for political purposes, particularly against left-wing opponents of government. The legislative and judicial record indicates a lack of any effective political or legal scrutiny or check on ASIO's activities. These dangers have been heightened by the 'veil of secrecy' thrown over ASIO's operations, notably the exercise of its unprecedented power to detain and question people without charge.

---

Notes

[1] 'PM gives $232m for the 'fight of our lives', The Age, 6 May 2004.

[2] John Howard, Speech at the opening of the National Threat Assessment Centre, 5 May 2004, http://www.pm.gov.au/news/speeches/speech844.html (accessed 6 May 2004)

[3] R. Ruddock, 'A New Framework: Counter Terrorism and the Rule of Law', Address to the Sydney Institute, 20 April 2004 <http://152.91.12/www/MinisterRuddockHome.nsf/Alldocs/RWPB046617DB0869> (accessed 29 June 2004).

[4] Thus, in the January 2003 National Press Club Australia Day address, entitled 'Australian Values and the War against Terrorism', Professor George Williams stated: 'New laws must strike a balance between defence and national security on the one hand, and important public values and fundamental democratic rights on the other'. http://www.unsw.edu.au/news/adv/articles/2003/jan/George_Williams_National_Press_Club.html (accessed 15 September 2004).

[5] W. Blackstone, Commentaries 3:129-137 and the Habeas Corpus Act 1679 (UK).

[6] Rasul v Bush; Al Odah v United States (2004) 542 U.S. (Cases no. 03-343, 03-334)

[7] Quoting Jackson J in Shaughnessy v. United States ex rel. Mezei, [1953] USSC 38; 345 U.S. 206, 218—219 (1953) (dissenting opinion).

[8] B. Graham & J. Nussbaum, Intelligence Matters: The CIA, the FBI, Saudi Arabia, and the Failure of America's War on Terror, Random House 2004; C. Unger, House of Saud, House of Bush: The Secret Relationship Between the World's Two Most Powerful Dynasties, Scribner, 2004. The report of the US national commission investigating the terrorist attacks of September 11 was filled with criticisms of the Bush and Clinton administrations and the performance of the government agencies responsible for intelligence, national security and emergency response. But the commission attributed all of these failures to incompetence, mismanagement, or 'failure of imagination.' The fundamental premise of its investigation was that the CIA, the FBI, the US military and the Bush White House all acted in good faith. The report thus excluded, a priori, the most important question raised by the events of 9/11: did US government agencies deliberately permit—or actively assist—the carrying out of this terrorist atrocity, in order to provide the Bush administration with the necessary pretext to carry out its program of war in Central Asia and the Middle East and a huge buildup of the forces of state repression at home. See The 9/11 Commission Report, Government Printing Office, Washington, 2004.

[9] A. Bacevich, American Empire: The Realities and Consequences of US Diplomacy, Harvard University Press, 2002; N. Beams, 'The political economy of American militarism', World Socialist Web Site, 10 July 2003 <http://www.wsws.org/articles/2003/jul2003/nb1-j10.shtml> (accessed 21 September 2004).

[10] M Head, ''Counter-terrorism' laws: a threat to political freedom, civil liberties and constitutional rights', (2002) 26 Melbourne University Law Review 266; M. Head, 'Another threat to democratic rights: ASIO detentions cloaked in secrecy' (2004) 29 Alternative Law Journal 127.

[11] Submissions to the Senate Legal and Constitutional Committee for the Committee's Inquiry into the Security Legislation Amendment (Terrorism) Bill and Related Bills, Vol. 1, pp. 157-65 and Commonwealth, Parliamentary Debates, Senate Legal and Constitutional Committee, Reference: Security Legislation Amendment (Terrorism) Bill and related bills, 17 April 2002, pp. 82ff and 18 April 2002, pp. 95ff.

[12] N. Hancock, Terrorism and the Law in Australia: Legislation, Commentary and Constraints, Parliament of Australia, Department of Parliamentary Library, Research Paper No.

[12] 2001-2002.

[13] See generally, Australian Security Intelligence Organisation Act 1979 (Cth).

[14] J. Hocking, Beyond Terrorism, The Development of the Australian Security State, Allen & Unwin, Sydney 1993, Chapter 8.

[15] H. Lee, P. Hanks, V. Morabito, In the Name of National Security, The Legal Dimensions, LBC, Sydney, 1995, Chapter Three.

[16] M Head, op cit, n 10.

[17] Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act) ss. 34A to 34Y.

[18] ASIO Act s. 34C.

[19] ASIO Act s. 34L.

[20] ASIO Act s. 34TA.

[21] ASIO Act ss. 34TB, 34U.

[22] ASIO Act s. 34C.

[23] ASIO Act s. 34K.

[24] ASIO Act ss. 34B and 34DA.

[25] M. Chaaya, 'The Right to Silence Reignited: Vulnerable Suspects, Police Questioning and Law and Order in NSW,' (1998) 22 Criminal Law Journal 82. On police 'verballing' and video-taping in general see Brown, Neal, Farrier & Weisbrot, Criminal Laws, Sydney, The Federation Press, 2nd ed, 1996, 203-34.

[26] Williams v R [1986] HCA 88; (1986) 66 ALR 385.

[27] S. Bronitt and M. Ayers, 'Criminal law and human rights,' in D Kinley (ed), Human Rights in Australian Law, Sydney, The Federation Press, 1998.

[28] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.

[29] M Head, ''Counter-terrorism' laws: a threat to political freedom, civil liberties and constitutional rights', (2002) 26 Melbourne University Law Review 266.

[30] The ASIO Amendment Legislation Act 2003 repealed the relevant provisions of the ASIO Act—s. 34U (7), (8), (9), (10) and (11) and s. 34V (4), (5) and (6)—and replaced them by s. 34VAA.

[31] ASIO Act s. 34VAA (5).

[32] Ibid.

[33] 'Claims ASIO bill will gag the press', The Age, 3 December 2003.

[34] ASIO Act s. 92(1).

[35] This record has been documented in several works and official inquiries. See, for example, D McKnight, Australia's Spies and their Secrets, Allen & Unwin, Sydney, 1994, R Hall, The Secret State, Cassell Australia, Sydney, 1978, F. Cain, The Origins of Political Surveillance in Australia, Angus & Robertson, Sydney, 1983, F Cain, ASIO, an Unofficial History, Melbourne, Spectrum, 1994, J Hocking, Beyond Terrorism, The Development of the Australian Security State, Allen & Unwin, Sydney 1993, Commonwealth of Australia, Royal Commission on Intelligence and Security: Fourth Report, volumes 1 and 2, AGPS, Canberra, 1977.

[36] [1982] HCA 78; [1982] 154 CLR 25.

[37] [1984] HCA 67; (1984) 156 CLR 532.

[38] Lee, Hanks, Morabito, op cit, pp. 36-39. For the text of the Memorandum, see 'About ASIO' on the ASIO web site, http://www.asio.gov.au [accessed 8 November 2002]

[39] Cain, op cit, p. 59.

[40] McKnight, op cit, p.19.

[41] K. Lindsay, The Australian Constitution in Context, LBC, Sydney, 1999, p.72-76. For the political and social context of the Communist Party case, see G. Winterton, 'The Significance of the Communist Party Case,' (1992) 18 Melbourne University Law Review, pp. 630-58.

[42] McKnight, op cit, p. 63.

[43] Ibid, pp. 60, 88.

[44] Cain, op cit, pp. 252-56.

[45] ASIO Act 1956, section 2.

[46] Lee et al, op cit, pp. 22-28.

[47] McKnight, op cit, p.

[48] Cain, op cit, pp. 107-8.

[49] R. Hope, Royal Commission on Australia's Security and Intelligence Agencies, Report on the Australian Security Intelligence Organization, December 1984, AGPS, Canberra, 1985, para. 7.39.

[50] Hall, op cit, p. 2.

[51] W. Blum, Killing Hope, US Military and CIA Interventions Since World War II, Common Courage, Monroe, Maine, 1995, pp. 244-249.

[52] R. Hope, The Royal Commissioner, Intelligence and Security, Fourth Report, Canberra, AGPS, 1977, Vol 1, pp. 70-71.

[53] Ibid, Volume II pp. 150-174.

[54] Ibid, Second Report, pp. 22-61.

[55] For a history of alleged terrorist acts in Australia, see Hocking, op cit.

[56] ASIO Act 1979, Section 4.

[57] Lee et al, op cit, p. 32.

[58] [1982] HCA 78; [1982] 154 CLR 25.

[59] [1982] HCA 78; 154 CLR 25, 53.

[60] [1982] HCA 78; 154 CLR 25, 57.

[61] [1982] HCA 78; 154 CLR 25, 60.

[62] Ibid.

[63] [1982] HCA 78; 154 CLR 25, 61.

[64] Ibid.

[65] [1982] HCA 78; 154 CLR 25, 76.

[66] [1982] HCA 78; 154 CLR 25, 76.

[67] [1984] HCA 67; (1984) 156 CLR 532.

[68] J. McMillan and N. Williams, 'Administrative Law and Human Rights' in D. Kinley (ed) Human Rights in Australian Law, Federation Press, Sydney, 1998, p. 79.

[69] Royal Commission on Australia's Security and Intelligence Agencies: Report on the Sheraton Hotel Incident, Mr Justice Hope, Royal Commissioner, Australian Government Publishing Service, Canberra, 1984, p. 18.

[70] [1984] HCA 67; (1984) 156 CLR 532, at para. 2.

[71] [1984] HCA 67; (1984) 156 CLR 532, per Brennan J at para. 6.

[72] [1984] HCA 67; (1984) 156 CLR 532, per Murphy J at para. 3.

[73] [1984] HCA 67; (1984) 156 CLR 532, per Gibbs CJ at para. 18.

[74] [1984] HCA 67; (1984) 156 CLR 532, at para. 16.

[75] [1984] HCA 67; (1984) 156 CLR 532, at para. 19.

[76] [1984] HCA 67; (1984) 156 CLR 532, per Mason J at para. 1.

[77] [1984] HCA 67; (1984) 156 CLR 532, per Brennan J at para. 8.

[78] P. Grabosky, Wayward Governance: Illegality and its Control in the Public Sector, Canberra, Australian Institute of Criminology, 1989, Chapter 8.

[79] [1984] HCA 85; (1984) 58 ALJR 97; (1984) 154 CLR 412.

[80] 154 CLR 412 at 456.

[81] D. Marr, The Ivanov Trail, Nelson, Melbourne, 1984.

[82] Royal Commission on Australia's Security and Intelligence Agencies, Report on Terms of Reference (C), pp. 104, 212.

[83] IGIS Annual Report 2003-2004, para. 477 http://www.igis.gov.au/fs_igis_ar.html [accessed 9 November 2004].

[84] ASIO Act, Section 8A(1).

[85] Lee et al, op cit, pp. 46-48.

[86] Police Integrity Commission, Report to Parliament Regarding the Former Special Branch of the New South Wales Police Service, June 1998.