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Edition 41

Contents
Essay

The dark conundrum

TO WRITE ABOUT the Australian Security Intelligence Organisation at length, when it is an agency which shields itself from scrutiny and is licensed to practice deception is a fairly tough assignment – writing about the unknowable – but these difficulties don't stop us. We are able to know some things about ASIO and to conduct some sort of investigation and considering that its budget has been increased to $337 million, its new Central Office costing $600 million is about to open, its workforce is rising to 1,800, and the organisation is seeking wider powers, I think it's timely.

Telling my friends about my essay brought much paranoia humour. I had my own paranoid moment – I was writing the essay in a flat in Brisbane as a fellow at the Centre for Excellence in Policing and Security at Griffith University. Over the last few months my Swiss Army watch had become erratic (that's not like the Swiss, I thought) – and I bought a new battery on the advice of the watchmaker, but it was still erratic, so I took it off and put it in the desk while deciding what to do with my old friend. As I wrote the essay there in the flat my computer begun to play up, flashing on and off, getting lost on the way to a command, a day's work disappeared. Ah, I said, ASIO has tracked me down and the dirty tricks department is giving me some discouragement. Next day, I booted up and the computer seemed to be back to normal. I picked up my watch and found it was telling the right time. Every watch tells the right time twice a day, I said. A few hours later it was still correct and now months later it is working perfectly. What had happened was this: ASIO, while playing tricks with my computer with some sort of electronic beam to send me mad, had unintentionally, collaterally, as they say at ASIO, fixed my watch.

We use black humour to shrug off our impotence at the knowledge that there is an ever-larger secret agency working away around us, spying on us, and sometimes getting it wrong. And sometimes saving Australian lives.

For the first time I am squarely facing what I call the Dark Conundrum – how does a democracy manage a secret agency without losing control of it or without living with an embarrassing part of government which behaves in authorised contradiction to its values?

 

WHEN I LEFT school I encountered the newly formed ASIO and the Cold War and instinctively held that police-like secret agencies are a danger to a free society and that we should work to abolish them, or at least refuse to co-operate with them.

ASIO was established by Labor prime minister Ben Chifley in 1949 to handle the tensions of the Cold War between the Soviet bloc, led by Russia, and the western world, led by the US. For a while it looked as if there would be a nuclear war. ASIO was modelled on the British secret service for domestic matters known as MI5, and the formation of ASIO was supervised by MI5 agents.

Through my continuing political development in the 1950s, and as a cadet journalist, I learned that ASIO was being used by the Liberal-Country Party government to spy on the left and the intellectuals, that is, those people who were members of the Communist Party or sympathetic to the Communist Party or just plain socialists, and on those people active in what ASIO identified as 'communist fronts' which included the Bush Music Club (which I belonged to – we went outback searching for songs and ballads from the colonial days and some of these were recorded on Wattle Records – probably called a communist front), the Housewives' Association, and the International Congress for Peace and Disarmament, a communist-influenced part of the peace movement. It should be remembered that the Australian people in a referendum in 1951 rejected an attempt to ban the Communist Party: it was not illegal to be a member of it or its 'fronts' but this did not stop ASIO or Liberal prime minister Robert Menzies.

During my late teens and early twenties I was also following my core passion to become a fiction writer and had published my first stories. It'd become common knowledge in the 1960s that ASIO was spying on writers. Menzies had instructed ASIO to begin surveillance of those writers who applied for grants from what was known as the Commonwealth Literary Fund and also on those who were referees for those writers. While researching this in the National Archives I came across a note in the margin of the 1952 CLF recommendations for grants signed with the initials RGM. It read: 'In future all names put forward should be investigated by Security [that is, to see if they are communists or leftists].' Nearly every writer in Australia applied for literary grants and the staff of university English departments, established writers, and editors of literary magazines were the most common referees (the editors of the literary magazines also applied for grants). Consequently nearly all the Australian literary community was being spied on and considered as suspect and were, by implication, enemies of Australia.

These days, prime ministers are not supposed to give such instructions to the government's secret agency and seeing that being a communist was not illegal, these files are probably illegal and were illegally used. After thirty years a person can apply for his file and we can apply for copies of the files of others. I hope the National Archives do not destroy them; they are the best history of the writing community that we have from that time. It should be said that a few writers were members of the Communist Party and committed to the overthrow of capitalism and some writers were and are 'mad, bad, and dangerous to know' (which doesn't make them bad writers).

I have read my own file and it reminded me of forgotten meetings that, as a man in his early twenties, I had attended and motions I had moved and demonstrations I had attended. ASIO was also vetting some applicants for university positions. My thirteen-page file is probably a good example of how far ASIO was penetrating Australian life and the crucial role it had in some careers.

For a while, aged twenty-eight, I worked as a reporter for the ABC and in 1969 was assigned to cover a large air-sea-and-land military exercise in the Coral Sea involving the US, the UK, New Zealand and Australia. When briefing me on the assignment, the head of ABC news told me that ASIO had given me a clearance. I cannot remember my reaction. I guess I gloomily accepted that ASIO was ever present. But that a file had been opened by ASIO and contained information which had not been checked by me, meant that ASIO was watching me and could affect my future in ways that I might never know.

This is still partly true, however, now there is an Appeals Tribunal. The tribunal has power to review an adverse or qualified security assessment that has been made by ASIO. Where ASIO provides a Commonwealth agency with an adverse or qualified security assessment in respect of a person, the Commonwealth agency concerned is generally required to notify the person within fourteen days, give them a copy of the assessment and inform them of their right to apply for a review. There is no provision for those not working for a Commonweath agency.

Now that I have my ASIO file (or at least one volume of it) on the desk before me, I can identify the report that the head of news had received from ASIO. It says, 'Although recorded as a person interested in the Peace Movement there is no evidence at this time that MOORHOUSE would pose a personal security risk.' I don't know what exactly ASIO meant by 'personal security risk'.

The file reveals that either the ABC management was readily giving ASIO information on its staff or that ASIO had an informer in the ABC. A second report reads: 'Attached is a summary of intelligence information in respect to Frank Thomas MOORHOUSE, a Journalist in the News area [the term 'news area', an odd description which seems to indicate it comes from someone who was not working in the 'news room', and we would not have given news a capital letter] MOORHOUSE'S name came to notice as a result of further checking of the staff of the Sydney Office of the ABC.'

Around this time politicians had been urging that ASIO check on the politics of ABC employees.

'MOORHOUSE has given notice of resignation to take effect from 17th January, 1969, as he is writing a book which will take 6 months to finish'. This is a strange note – it sounds as if it was taken from my ABC personnel file but I don't know why I said anything about the time it would take to write the book – my second book, The Americans, Baby). Parts of the file are redacted but seem to be only the names of ABC executives and ASIO agents.

What would have happened if the ASIO report, by mistake or by ASIO assessment, had been negative? My career at the ABC would've been over, maybe my career in journalism. And when I applied for a grant to write my book that too may have been stymied.

The file comes from the National Archives of Australia in a designer presentation jacket which is titled 'Your story, our history.' ASIO and I have a long, mutual history.

 

SOMEWHERE IN MY political development I came to accept the paradox that democracies need secret agencies to secure themselves and I assume that most people have, however reluctantly, adopted this position. Those taking the extreme libertarian position at its mildest argue that the traditional police forces should be able to manage terrorism – murder is murder regardless of motive – and that we do not need a secret agency which can do more damage to people than it gives protection. My most important guide in the writing of this essay is the current Independent National Security Legislation Monitor, Bret Walker SC, and in describing his position (which is also my position), he quotes Dr Greg Carne of the University of Western Australia, School of Law:

Following the tragedies of September 11 and Bali and exposure of al-Qaeda and associates' manifesto of schematically targeting en masse innocent persons, it is obvious that enhanced intelligence-gathering and analysis are essential to the defence of democratic societies and their institutions and practices. However, the choice of methods must both reinforce and reflect critical rule-of-law principles such as restraint, accountability, proportionality, necessity and due process, which are embedded in the institutions and practices of commonly accepted notions of liberal democratic representative and participatory democracy...

Throughout this essay I wonder if that is possible.

Responsibility for the behaviour of ASIO within those laws and the training and recruitment practices lies with the Director-General. At present the Director-General is David Irvine, a career diplomat who has been Ambassador to China. Prior to joining ASIO he was Director-General of the Australian Secret Intelligence Service (2003–2009). ASIS is the secret agency which looks after Australian security overseas while ASIO looks after security within Australia. The Director-General of ASIO is responsible for determining ASIO's subjects for investigation and authorises those investigations.

ASIO was described by Menzies, who succeeded Chifley, as 'the fourth branch of the defence forces'. ASIO gathers information relating to national security from informers in journalism, the universities, and in the general population, newspapers, radio, and television, and also by questioning people, using informants, and with warrants, intercepting communications such as mail and telephones. ASIO can seek a questioning warrant or a questioning and detention warrant under the Australian Security Intelligence Organisation Act 1979. These warrants compel a person to answer questions by threat of jail if they do not (for contempt of court) and in so doing overturn the centuries-old basic right of the citizen to remain silent. The legislative restrictions on these warrants mean they can only be obtained as a last resort with the permission of the Attorney-General and this is reflected in the considerable safeguards on their use and the very small number of questioning warrants issued since 2003 – sixteen – and only one in the past five years. No questioning and detention warrants have been issued since they were introduced in 2003.

ASIO can also seek a control order (CO) although none have been issued since they were introduced in 2003, following the attacks in the US and Bali. Independent Monitor Bret Walker says in his report this year to the government that control orders 'are the most striking part of the counterterrorism laws. They are striking because of their provision for restraints on personal liberty without there being any criminal conviction or even charge… The CO provisions…make the power to restrain personal liberty in a wide variety of ways if the court is satisfied of conditions fundamentally different from the basis of a criminal conviction…'

A control order does not involve detention in a prison; it is more living prison. Walker describes that it can be used to impose all sorts of restrictions including a curfew, a type of house arrest, require reporting to a police station at set times, prohibits leaving Australia, and prohibits communicating with certain named people, and the use of mobile phones and other ways of communicating.

There is strong legal and general opposition to the use of control orders but Walker argues that if they are kept a number of changes should be made to the legislation to tighten up the present provision to apply them to terrorist convicts who are shown to have been unsatisfactory in rehab, and who ASIO or the Australian Federal Police consider to be, upon their release, dangerous unless under a degree of surveillance. He points out that intelligence is the kind of knowledge a state needs so that it can identify possible threats. 'ASIO-type people rather looked down on the irksome requirements for admissibility (including fairness) that should attend the gathering and presentation of evidence in a court or tribunal. Intelligence…has an essentially different approach and different standards in relation to reliability from that police investigators, prosecutors and courts have to observe.' COs can be used when the intelligence is not strong enough to withstand a regular trial – or where the intelligence would expose ASIO's methods of collection or sources if presented in a trial.

ASIO and the AFP work together though – through joint operation protocols. For example, the AFP may take a citizen into detention for questioning by ASIO, or it may be asked by ASIO to help gain entry into premises to help minimise the risk to ASIO officers conducting a search. The AFP is ASIO's gun (AFP brings the guns, ASIO brings the sandwiches – intel sandwiches). This vaguely formalised relationship actually creates an informal third police body; we could call it 'ASFED' – ASIO gains de facto policing powers by borrowing those of the AFP. Now ASIO wants to have access to records of our personal use of the internet – emails, social media such as Facebook and Twitter – and to have internet providers keep those records for two years.

The New South Wales Council for Civil Liberties (NSWCCL) led by Professor George Williams AO, a leading constitutional lawyer, has launched a campaign against some of the ASIO powers, namely restrictions on freedom of expression through sedition laws, the banning of organisations by decree, control orders, detention without trial or charge, covert surveillance of non-suspects and warrantless searches of private property.

Perhaps the fact that ASIO has used these powers only once in the past five years may reflect the level of threat, and reservations that the current Director-General and his senior staff may have about the public and official opposition to them. ASIO may not wish to embroil itself in controversy which would further damage its esteem and morale.

Since the first terrorism legislation was enacted in 2003, thirty-eight individuals have been prosecuted for terrorism offences and twenty-six have been convicted. There have not been any actual acts of politically motivated violence in the past ten years but the Director-General told a meeting of the United Services Institute on 9 February 2011, that four terrorist plots were disrupted. Three would have been the work of home-grown groups with little or no contact with al-Qaeda or its affiliates. He told the Institute that of the thirty-eight prosecuted, thirty-seven were Australian citizens and of those, thirty-four were either born here or have lived here since childhood.

What is the story these statistics are telling us? One implication is that most had been led towards terrorism here through their primary groups, via the internet, or on visits abroad.

In the main, the convictions relate to charges such as possessing or creating documents related to terrorist activities, membership of a proscribed organisation, funding of these organisations, threatening harm to public officials or planning and conspiring to cause violence. The sentences range from eight months to twenty years.

'Politically Motivated Violence' is the preferred term used by the intelligence community to describe the category of offences which are central to their work. The expression 'religiously motived violence' could be included which covers most of the violence in the world at present.

The legislation still leaves open the issue of civil disobedience.

'Civil disobedience refers to public, non-violent, conscientious, unlawful conduct which is undertaken with the aim of bringing about a change in government law or policy in the absence of any other effective remedy,' said David Ritter, the chief executive officer of Greenpeace Australia and Pacific, speaking at the Institute of Democracy and Human Rights at Sydney University this year. 'There is a long and rich tradition of civil disobedience in Australian history, occasions when brave men and women have taken a stand against things that they knew in their heads and their guts were just plain wrong.'

A new type of civil disobedience has arisen using the internet – the use of hacking as a way of bringing attention to a political issue, a recent case was the use of falsified statements to the Australian stock exchanges by a green activist. Wikileaks too, is a form of political activism in a category all of its own and is yet to be categorised by law.

The ASIO Act explicitly excludes from its powers and areas of interest the advocacy, protest, dissent or industrial action which is not intended to cause serious harm, endanger a life, or create risk to the health and safety of the public.

 

THIS YEAR, ASIO has its symbolic representation in the form of a new central office in Canberra. It is situated in 'defence row' – a rough crescent from the Royal Military College, Duntroon, and the Australian Defence Forces Academy to the Department of Defence offices, the Anzac Parade entrance to the War Memorial, to ASIO and then to the offices of the AFP. I was amused to see that someone, in a throwback to the Cold War, revealed in a government background release about the building that it had been dubbed 'Lubyanka by the lake'. How many readers would understand this reference? I remembered – just – that it was during the Cold War the name for the headquarters of the KGB, the Soviet secret police in Lubyanka Square in Moscow.

The building will accommodate up to 1,800 people and operate twenty-four hours a day. It is the most conspicuous and symbolic statement of ASIO in its history. The architect of Canberra's Parliament House, Romaldo Giurgola, described the building as a 'monster'. He criticised the headquarters' glass façade on Constitution Avenue for ruining the sight lines from the War Memorial to Parliament House. 'The new building is the wrong shape, in the wrong place,' he said. The Walter Burley Griffin Society called the building 'intrusive' and 'monolithic'. It argued that the building destroyed the design of the Griffin plan by degrading its symmetry and symbolism.

There is much other dinner party criticism of the building in which I detected a hostility to ASIO as much as an architectural critique. The building reflects ASIO's large increase in staff numbers and budget after the national security legislation passed following the World Trade Center attack on 11 September, 2001, in New York. Since the alarm caused by this and other bombings, ASIO's budget has increased by 417 per cent. The current 2013–2014 budget of ASIO is $453.56 million, up about $40 million on last year. For comparison, the Department of Defence budget increased by 101 per cent during this period.

ASIO has to live with a difficult legacy. Its excessive activity about communism in the Cold War days brought it into ridicule among many Australians although it did ultimately reveal a spy network of communist party members in the Department of Foreign Affairs. In retaliation, the Communist Party claimed that it had a typist in ASIO and a friendly postmaster-general technician who did phone tapping work for ASIO. Tit for tat.

The historical image and difficult baggage which ASIO carries also includes the European memories leading up to World War II, especially in sections of the immigrant population who had terrifying experiences with secret police – the better known being the Gestapo and the KGB.

This history joins with ASIO's record here during the Cold War, especially in its treatment of, and relationship with, trade unions, academics, writers and journalists.

As the Cold War ebbed, ASIO had difficulty in realising that the anti-nuclear weapons movements such as Campaign for Nuclear Disarmament and the anti-conscription movement connected with the anti-Vietnam war movements were not extensions of the Communist Party. These movements involved hundreds of thousands of citizens, many of them anti-communist and certainly not advocates of the violent overthrow of the Australian government or political violence, although some may have engaged in civil disobedience against police during demonstrations and in other ways.

With the ending of the Vietnam War in 1975 there followed a period of relative inactivity for ASIO although it has to be remembered that there were bombings and other political violence from the 1970s onwards which were not related to communism or to the terrorism we are experiencing now. The arrival of what we came to know as 'boat people' in the late 1970s gave ASIO the job of vetting these newcomers.

Then came the War on Terror and the rise of al-Qaeda-inspired terrorism, the astounding failure of the US security agencies and the subsequent destruction of the World Trade Center in New York in 2001, then the Bali bombings in 2002 which killed eighty-eight Australians along with a hundred and fourteen others in a night club, the train bombings in Madrid in 2004 (there is still debate over who was responsible for these) and the London bombings in 2005. A pattern of attacks on western countries had emerged.

Former attorney-general in the Howard government Philip Ruddock described the destruction of the twin towers as a wake-up call: 'Well before September 11, we were at war; it's just that we didn't know it.' The word 'war' is sometimes used by politicians to legitimise the behaviour of secret agencies by giving them the rationale of a world-wide emergency which then justifies the exercise of powers and restrictions on citizens normally permitted only within a country engaged in a 'hot war'.

While the older European immigrant experience may be fading, it is now being replaced by the arrival of people from the Middle East, Asia, Africa, China and some South American countries who have seen the harm that secret agencies can do, even in a democracy. The Cold War and ASIO's rather shocking behaviour during that period and the other 'threats' with which it occupied itself during the Vietnam War should be taught to recruits as cautionary tales about the way a security organisation can be led to misbehaviour by governments who wish to create the impression that they are tough and by so doing, politicise ASIO.

This historical memory combines with the public perceptions of espionage which comes from a huge appetite for novels, films and television, whether it be the glamour of James Bond or the horror of Nazi Germany or George Smiley's 'circus'. The negativity in the media towards ASIO remains surprisingly strong. I have brought together a sampling of the tone of commentary about ASIO.

The usually measured and usually astute Richard Ackland, who publishes the law journals Justinian and the Gazette of Law and Journalism and writes a column in the Fairfax papers, wrote in the National Times (4 June 2010):

There's always going to be a bogyman from whom we need to be protected – whether it be Germans, Japanese, commos, terrorists or boat people… History is riddled with false alarms…security agencies have…persuaded successive governments that they need more and more powers to protect us from the hobgoblin… The changes [contained in a government discussion paper seeking greater electronic surveillance powers among other things] will also clarify that ASIO officers can not only use "reasonable force" to kick down your door, but also after they have kicked it down they are permitted to go ferreting through your home.

The speech launching the NSWCCL campaign by Professor Williams contained the strongest language I have come across (19 October 2012). He described ASIO powers as 'rotten to their core'. He said there had been 'a frenzy of lawmaking in the past decade with fifty-four pieces of anti-terrorism legislation introduced – forty-eight of them under the Howard government.' He said there was no need for the new powers being sought by ASIO. 'The new powers are more consistent with the apparatus of a police state, such as General Pinochet's Chile, than the laws of a modern democracy. They have no place in Australia, they should be repealed.'

Philip Dorling in the Sydney Morning Herald (25 September 2012), considering the proposed changes, said that 'the pull of technology and push of security will continue to radically diminish the realm of privacy. In some ways we will be "safer", but privacy will be at the discretion of law enforcement, security and bureaucrats. With that will come a profound, qualitative change in the relationship between citizens and government that is yet to be considered by Parliament or the public.' Dorling formerly worked for the Department of Foreign Affairs and Trade, was a policy advisor to the Labor government, and a one-time visiting fellow at the Defence Force Academy.

Dr Andrew Baker, a fellow at the Centre for Independent Studies, in Sydney, wrote recently: 'The government wants to be your Facebook friend, follow you on Twitter, read your emails and text messages, and know which websites you visit. It then wants to file all that information for up to two years in case you are found to be a terrorist, crime lord or paedophile. The government also wants your computer passwords and might even send you to jail if you refuse. Creepy.' He says it is time to 'de-friend' the government and to repeal some of the ASIO powers (Punch, 19 July 2012).

In fairness, our intelligence professionals are, by convention, unable to answer their critics, which leaves them open to distortions and misunderstandings. Maybe it is time for ASIO to begin engaging with the media and at conferences. There have been changes. Breaking with past practice, David Irvine launched a publicity campaign of his own with a rare interview with the ABC to defend ASIO's proposal to extend its powers to enable it to search phone and internet data and to exclude from prosecution ASIO officers found to be involved in some forms of illegal activities.

Irvine told the ABC's Background Briefing (18 October 2012) that ASIO had experienced intelligence failures because of changing technology. 'Today there are hundreds of different ways of communicating electronically and the law does not cater for those ways in the way it should,' he said.

Anyone who has watched the fine television series The Wire over its five seasons will be familiar with the technological changes which are transforming to a degree the nature of policing and, by extension, security agencies. In The Wire the police 'nerds' develop the idea that tapping mobile phone conversations and text messages is more effective than kicking down doors and roughing up drug dealers. The central objection to the granting of internet investigation powers to ASIO is not that they need these powers to be effective but what, ultimately, is done with the intelligence gleaned without us knowing until it is too late. Email, text, blog and Twitter will be the new dark alleys and shady locations of old-world intelligence gathering. However it has to be kept in mind that old-world intel will still be needed, people will still have to be arrested and questioned, and the arrest and the evidence will have to be tested to ensure, for a start, that the right people have been arrested for the right reasons in the right way and that the evidence garnered from the internet is being interpreted correctly. The New South Wales Independent Commission Against Corruption has these powers and has used them effectively in recent hearings.

But people in the intelligence community hoping to avoid discussion still hide behind the lame reason 'of not commenting on operational matters'. When commenting on the alleged hacking of plans for the new ASIO headquarters by the Chinese, Irvine reassured citizens on 31 May 2013, that security had not been compromised but that he could not comment any further because ASIO does not comment 'on operational matters for reasons which are well known'. I am not sure I understand what an operational matter is, as distinct from the normal activities of ASIO, nor are they well known. Sometimes I sense that the term is used as a 'shut-up' answer and contains a whiff of insolence.

 

THERE IS A lot of oversight of ASIO. A lot. While the rush of counterterrorist legislation after September 11, and then Bali, Madrid and London, reflected the fear about how much we were at threat, so, in turn, does the accumulation of oversight bodies and committees and reviews reflect the healthy and inherent fear of secret agencies – the most recent being Bret Walker's appointment as Independent Monitor.

ASIO reports directly to the Attorney-General. ASIO is obliged to inform the A-G 'in general terms – of all our operations, investigations, and other matters relevant to our functions through written submissions'. ASIO must have the A-G's approval to seek special powers warrants. Each new A-G issues something called The Guidelines. These cannot widen the powers of ASIO but indicate the current security concerns of the government.

Within the government there is a parliamentary joint committee on Intelligence and Security which deals with security concerns but does not initiate policy or investigations by ASIO. It looks at such things as the listing of an organisation as a terrorist organisation under the Criminal Code Act 1995. It reports to the House of Representatives and Senate.

ASIO itself makes a confidential annual report to members of the National Security Committee of Cabinet and to the Leader of the Opposition and a censored version of this annual report is presented to parliament and the public. The National Security Committee focuses on major international security issues of strategic importance to Australia, border protection policy, national responses to developing situations (either domestic or international) and classified matters relating to operations of the Australian intelligence community. It is chaired by the Prime Minister and composed of the Attorney-General, Treasurer, Minister for Foreign Affairs and some other ministers.

There is an Inspector-General of Intelligence and Security, currently Dr Vivienne Thom, who has a staff of twelve and whose role is to provide independent assurance to us and the government that ASIO is acting legally and with propriety. The Inspector-General can also enter any ASIO premises and inspect files without notice. It may inquire into complaints from the public and from time to time it publishes reports on security matters which have caused public concern. This position requires guile and cannot work on the basis of trust.

Walker began his term in 2011 by giving his opinion on the constitutionality of new legislations in an annual report tabled in parliament.

Two major oversight reports came to the parliament this year – one from the Independent Monitor as part of his role and the other from the Council of Australian Governments (COAG) and there is some agreement about the concern over the more extraordinary provisions in the counterterrorism legislation. Numerous detailed changes are recommended in the reports. Most relate to removing those provisions which reduce or block the traditional safeguards of court procedures in English-speaking countries. Most relate to the detention, questioning, and control order provisions of the ASIO Act.

 

I COULD LEARN very little about the crucial matters of recruitment of ASIO staff and their training. These matters are classified and ASIO is exempt from Freedom of Information laws.

I did hear that for quite a time (before the policy of advertising positions – even Mossad advertises for staff) family relationship to an officer was thought to be one quality which would make for a successful applicant for a position in ASIO. Rumours abounded of one case where someone was recruited because his girlfriend's father was in ASIO and he then later recruited his daughter into ASIO. I suppose, like all occupations – journalism, medicine, politics – where dynasties form, the family exercises some oversight over its members in case they stray and each family member is loyal to the other and so to the service.

I would be interested, for example, to know what impact the work of deception and prevarication has on the person who does it in a somewhat hostile population? Pretending that you are someone you are not? Not being able to share work pressures and difficulties with intimates? False pretences? Of living in a pond of paranoia? How does the officers' ethical and moral framework suffer from the work? I suppose all work has its negative impact on our personalities.

I think that the Australian legacy of ASIO must affect the political nature of, and quality of, its recruits, although as the national advertisements for new staff demonstrate, the pool of potential candidates is now drawn more widely.

 

FOR ALL ITS faults, there are cases in which it seems that ASIO got it right. To refresh our minds, I found it useful to look at two relatively recent national security cases where ASIO seems to have made the correct assessment (the Haneef Case) and another where ASIO seems to have mishandled the matter (the Ul-Haque Case).

On 2 July 2007, about two days after a failed attempt to bomb Glasgow Airport in Scotland, an Indian doctor, Mohamed Haneef, who had been working at the Gold Coast Hospital on a 457 visa, was arrested by the Australian Federal Police at Brisbane airport on suspicion of involvement in the bombing.

Haneef was of interest because UK police thought that a mobile phone SIM card registered in his name may have been used by his second cousin to plan the Glasgow attack and had alerted the AFP. This turned out to be incorrect. The AFP held him for twelve days for questioning before charging him with the offence of 'recklessly providing support to a terrorist organisation' and then Dr Haneef was held in custody until the charge was dropped on 27 July 2007. He was in custody for twenty-five days.

In March 2008, Hon. John Clarke, QC, chaired an inquiry into the arrest, detention, charging, and prosecution of Haneef. At the Clarke inquiry, the then Director-General of ASIO, Paul O'Sullivan, said ASIO had told the government and the AFP that there were no grounds to believe Haneef was linked to, or even knew about, the June car bombings in England.

In his submission to the inquiry, O'Sullivan said: 'In written advice issued to the Government and various agencies on 11 July 2007, ASIO reported that, while it continued to progress its inquiries, it did not have information to indicate Dr Haneef had any involvement in, or foreknowledge of, the UK terror acts… ASIO's consistent advice…was that, based on available information, ASIO did not consider Dr Haneef a threat to national security.'

Clarke found that the Australian Federal Police's counterterrorism chief 'lost objectivity' when assessing the case against Mohamed Haneef, ignoring or cynically interpreting evidence that strongly pointed to his innocence.

Clarke said that it was troubling that Philip Ruddock did not seek to reconcile the conflicting assessments of Haneef by the AFP and ASIO, despite both agencies falling under his ministerial responsibility.

Worse, the then minister for immigration Kevin Andrews cancelled Haneef's visa on 16 July 2007, making him an unlawful non-citizen and subject to immigration detention. The cancellation of his visa was overturned by the Federal Court on 21 August 2007. The Federal Government made a payment to Haneef for an undisclosed sum and the Gold Coast hospital offered him his job back. He declined.

The Izhar Ul-Haque case did not capture the public interest to the same degree. I thought it worthwhile to recount it in some detail because it gives a rare glimpse of ASIO field agents in action. It also illustrates the role of Customs and the Inspector-General of Intelligence and Security.

In January 2003, Izhar Ul-Haque, a twenty-one-year-old medical student at the University of New South Wales, when returning from a visit to Pakistan, had his baggage searched by customs who seized diaries and thirty books from his luggage, and passed them on to ASIO.

Ul-Haque went on with his studies. We can imagine that he and his family were probably bewildered and filled with anxiety about what was happening to the seized books and diaries and how it would affect them.

Eleven months later on 6 November 2003, Ul-Haque and his seventeen-year-old brother were met by two ASIO agents (known in the subsequent New South Wales Supreme Court case as B15 and B16) around 7.10 pm at a car park near the Blacktown railway station. In his later evidence to the New South Wales Supreme Court Ul-Haque described to Justice Adams what happened:

As I was walking to the car park, two men approached me and one of them said, 'I'm an ASIO officer', or, 'I'm from ASIO' or something like that and he showed me a badge. I was really shocked and I took one or two steps in the direction I was walking and then that person, whom I later found out to be [B15], came in front of me and looked into my face and said, 'You're in serious trouble', and he was just a few breaths away from me, in front of me.

'You're in serious trouble. You need to talk to us and you need to talk to us now,' he said, 'We are doing a very serious terrorism-related investigation and we require your full co-operation and it's in your own benefit to talk to us.'

And at that time, I was with my brother and he was being talked to by the other person, [B16] I believe, and [B15] said, 'We need to have a discussion with you and we need to have it right now and you need to come with us' and I was really frightened. I didn't know what was happening and I just mumbled 'yes', I nodded trying to understand what they are saying. Then B15 said, 'Would you come into the car with us?' Then on his orders I got into the car and I was sitting in the middle and I'm not sure who was on the right or left, but I was sitting in the middle in between [B15 and B16] in the back seat and they said, 'We are taking you somewhere to have a private discussion and to talk to you.'

At that time really I didn't know where I was being taken. In my mind a lot of things were going on, you know, am I being taken to a secret location or some secret ASIO interrogation room? I didn't know what was going to happen to me and then they took me to a park near the Blacktown Railway Station. I think it's Francis Park, and when we got to the park, officer [B15] told me to get out of the car.

Then [B15] then said, 'Izhar, you need to be honest because we have a lot of information about you and we need your full answers. You should know why we are here.' I was really hesitant in what was going on and I said, 'Is it because of the training I've done in January 2003?' They said, 'No, we know about that. We're not concerned with that. There are lots of other things you need to tell us about.'

I could not come up with the answers immediately and they said, 'Look Izhar, we can do this the easy way or we can do this the hard way. Either you should co-operate with us or there'll be consequences for you, and it's in your own benefit that you keep talking to us.' Then they said, 'Do you know Mr Lodhi?' I said, 'Yes, I know Mr Lodhi.' Then they showed me a few pictures and I recognised Mr Lodhi and then they discussed where and how and when I had met Mr Lodhi and what I talked – what I was told in the discussions with him and they were saying words to the effect that whenever I would give an answer, they would say, 'Look, you're not being honest with us. We already have a lot of information about you and if you don't co-operate, things will get worse for you.'

I was really afraid of what's going to happen to me. This went on for about, I would say, thirty minutes or forty-five minutes. Then they said, 'We are going to your house now and they are raiding your house right now at the moment', and I was really afraid what's going to happen to my family at the house. Because I didn't know until they told me that my house was being raided. Then they told me to get into the car and I sat in between [B16] and [B15] and they drove me back to my house.

Once I got to the house I then went up to my family who was sitting in the lounge and I saw about twenty or thirty people doing a house search and lots of cars around the house.

While the house was searched by ASIO and AFP officers, Ul-Haque was again interviewed, this time over three hours and forty minutes, although there were four breaks so the interview itself was a little over an hour. The interview concluded in the early morning at 3.45 am and the ASIO and police officers left the residence at 4.30 am, taking with them family notes, computers and the family passports.

On 9 January 2004, the AFP interviewed Ul-Haque again. From evidence from various sources it seems that the AFP wanted Ul-Haque to inform against another member of the Muslim community, Lodhi, but he refused saying, 'I cannot have a double face and, I'm sorry, I won't be able to do this for you.'

An AFP agent, Jennifer Hurst, at some time was recorded as saying'…we are hoping to use Ul-Haque against Lodhi, although he is not co-operating at the moment. We believe when he is charged he may change his mind.'

Three months later on 15 April, Ul-Haque was arrested and taken by AFP to Goulburn jail in New South Wales and the AFP officers spent two hours interrogating Ul-Haque in a cell and he was charged with an offence under s102.5 (1) of the Criminal Code. That is, 'in Pakistan, he did receive training with respect to combat and the use of arms from a terrorist organisation, namely Leshkar-e-Taiba…knowing that the said organisation was a terrorist organisation.' At this time Leshkar-e-Taiba was not a named terrorist organisation and Ul-Haque said that he was training as a young Pakistani so that he could protect his country against India. He had decided he was not a 'fighter' and had returned to Australia to complete his medical studies.

The next day Ul-Haque was taken back to Goulburn jail and placed in solitary confinement in a nine-square-metre cell. Goulburn is a maximum security prison. So a year after his return from Pakistan, Ul-Haque was in solitary confinement in jail, the first person in Australia to be charged with the training offence under the new counter-terrorism laws. At a bail hearing on 30 April at Sydney's Central Court, Ul-Haque's counsel, Ian Barker, QC, argued for him to be released on bail. Barker said it was a scandal that his client was being housed in solitary confinement at the maximum security jail and said he was being held there for political purposes. He described it as 'our version of Guantánamo Bay'.

The magistrate denied bail. Another bail hearing was heard over a month later and before granting bail, Justice Peter Hidden said he was concerned at the manner in which Ul-Haque had been held in isolation. He released Ul-Haque on bail of $200,000. After the decision was announced, Philip Ruddock said he was 'disappointed' by the release of Ul-Haque.

When the matter came to trial seven months later Justice Michael Adams found that Ul-Haque's evidence was inadmissible because of 'oppressive conduct towards him by ASIO and AFP officers', and that one or both officers had committed offence of false imprisonment, kidnap and trespass. The prosecution then withdrew the case.

Jennifer Cooke in the Sydney Morning Herald, (31 December 2007) wrote about the day Ul-Haque graduated as a doctor. 'He completed his study – interrupted by arrest, interrogation and incarceration in the high-risk management unit, or Supermax, at Goulburn jail…after repeating a year of the six-year course. Two weeks ago Dr Ul-Haque, 24, was among 208 graduands from the University of NSW faculty of medicine to whom the Premier, Morris Iemma, gave the occasional address. Its main theme was compassion… As Dr UI-Haque rose to be presented with his degree, a BSc (Med) MBBS, the John Clancy Auditorium erupted into sustained applause.'

I record the graduation day as an example of what I detect as latent disapproval of ASIO. There had been a demonstration of about a hundred, most fellow students from North Sydney Boys' High and the University of New South Wales outside the court on the day of Ul-Haque's bail hearing which, given their scant knowledge of the case, I suspect to be a protest about ASIO as well as being an expression of support for Ul-Haque.

Following the hearing and judgment of Justice Adams the matter was referred to the Inspector-General of Intelligence and Security, then Ian Carnell. He contested all of the judge's findings and exonerated the ASIO officers. He said that he was therefore unable to consider the matter of compensation to Ul-Haque. Because the matter never went to trial we do not know whether Ul-Haque was a potential terrorist.

 

THIS YEAR, BRET Walker reported to parliament that ASIO, AFP and the DPP had carried out their duties and had been effective in the sense that no terrorist offences had resulted in violence and that prosecutions had been well-conducted and that convictions had been secured. There is no room in this essay to detail Walker's detailed comparative and historical analysis of anti-terrorism legislation, but some of his key recommendations are as follows.

Chapter II concludes that control orders in their present form are not effective, appropriate or necessary. He suggests that it might be regarded as necessary in the case of persons already convicted of terrorist offences whose dangerousness at the expiry of their sentences of imprisonment can be shown.

Chapter III concludes the preventative detention orders are not effective, appropriate or necessary. They should be abolished.

Chapter IV concludes that questioning warrants are sufficiently effective to be appropriate, and in a relevant sense more readily available than the current legislation provides. He rejected the criticism that questioning warrants are an unjustified infringement of liberty.

All of which leads to some important questions. How should it be? What could change? I wonder if it would be useful if the Director-General of ASIO and Inspector-General of Intelligence and Security should, before appointment, be subjected to public questioning in the manner of the US Senate hearings of important presidential appointments.

The knowledge of the workings of our secret agencies among my friends and associates and strangers I talked to while writing this essay is that ASIO is an uncomfortable presence in the room about which they have a hazy understanding. Often we have a guilty ignorance, which expresses itself in the attitude 'but hey, what can you do about it?' ASIO is a fearful symbol of those things in politics which cause the young and the weary to drift into nihilistic attitudes – 'everything is screwed, who can you believe?' They barrack for WikiLeaks. They side with hackers. A moody feeling of having lost faith and trust in government pervades. It may be a correct reading of reality?

 

THE IDEA OF professionalising ASIO officers (at least at higher levels) was explored at a recent conference on Human Rights and Policing organised by Griffith University's Centre of Excellence in Policing and Security in April 2013. Professionalising would mean that through qualifications, training and commitment, ASIO officers would come to see themselves, and be given, the same esteem as lawyers, doctors, accountants and the other professions.

There continues to be movement towards the internationalisation of policing and security agencies through Interpol and various international courts. Security agencies exchange intelligence and training. In conversation, Walker suggested the International Covenant on Civil and Political Rights and its codes, to which the Australian government is a signatory, would be an ethical basis for a security agent's 'Hippocratic Oath'.

Professionalism brings a serious other commitment to those in that profession – that is, their primary commitment is not to their employer but to a set of values and practices. But in some dark reality the rogue cop (Dirty Harry-style) who works outside the codes may be always the other attractive model to which agents are pulled and in which there may be some value ultimately to the greater good – referred to in the business as 'noble cause corruption', where the worse the crime is or the greater the good cause, the more one can ignore the rules, old-school policing which sees human rights as something to be 'got around', 'what can we get away with?' But in high professionalism the good agent is one who has the intelligence and talents to be wholly effective within the code. Professionalism also creates a working and social atmosphere where dissent is an honourable thing.

Whistleblowing is also another important safeguard and becomes more likely when the officers of the agency see themselves as professionals with a commitment to a code of professional ethics. Public interest disclosure, or 'whistleblowing', is 'the disclosure by members of an organisation (former or current) of illegal, immoral or illegitimate practices. The most relevant case in recent history is that of Andrew Wilkie, who said he increasingly encountered ethical conflict between his duty as an intelligence officer and his respect for the truth. On 11 March 2003, he resigned from the Office of National Assessment and published Axis of Deceit (Black Inc, 2004), where he described his views on the nature of intelligence agencies and analysts' work, the history of the Iraq War and the attempts to suppress the truth by both politicians and executive staff at ONA. Wilkie is now an independent member of the House of Representatives.

Section 16 of the Public Service Act provides that an agency must not victimise or discriminate against an employee who reports breaches of the Public Service Code to an authorised person. At present legislation excludes intelligence agencies and whistleblowers are effectively not given protection. Whistleblowers in ASIO need a special kind of courage.

Leaks (another form of whistleblowing) played a part in both the Haneef and Ul-Haque cases and I came across it in about five other instances while researching this piece, including a leak from AFP and perhaps a leak from ASIO itself. Whistleblowing, when not handled within the organisation's chain of command, has to be taken up by lawyers and reporters. Hedley Thomas, who won a Gold Walkley for his investigative reporting of the Haneef case, is an example of a reporter who will worry and persist until the story comes out. These are, at the bottom line, our best safeguards.

The fact of life is that the spies themselves have to be spied upon. ASIO should see itself as a working team of good minds – a commission of experts – it is after all, really a heavily financed and resourced research centre looking into the nature of our political reality with the aim of protecting a country of good civilised standards from serious dangers and by finding those dangers by legal, humane methods and analysing their threat and then communicating it to the government of the day and the public. It would be good if they wrote papers on their work, keeping in mind, of course, that it could not be about 'operational matters'.

A final recommendation: download the Australian Muslim Civil Rights Advocacy Network's guide Anti-terrorism laws: ASIO, the police and you. You do not have to be a Muslim to need it. We still live with a dark conundrum which could one day come to our front door. I smile at the bravery of their first piece of advice: Remain calm.


From Griffith Review Edition 41: Now We are Ten © Copyright Griffith University & the author.

Griffith Review