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Wednesday, 31 October 1956

Dr EVATT (Barton) (Leader of the Opposition) . - The view of the Opposition on this legislation can be made clear, and I think that it can be stated fairly briefly. First of all, there must be, in our opinion, Ministerial responsibility in relation to the Australian Security Intelligence Organization. It cannot be allowed to run itself. The Prime Minister (Mr. Menzies) said in his speech that the relationship between the Prime Minister - or himself as the ministerial officer responsible - and the intelligence organization had not been quite worked out. Apparently it has not been worked out, although the Prime Minister has been in office for many years during the infancy of the organization. That has to be done.

I do not believe that the people of Australia would approve of an organization like this unless it were perfectly clear that there was, at any rate, a political officer responsible for it, in a general way, to the Parliament and the people. By that, 1 do not mean responsible for the detailed working out of all the problems of the organization, or anything of that kind. After all, a very large sum of money is spent on this organization, which has many facets because it brings together organizations under the Department of Defence - for which there is a vote under that department - and organizations under the Prime Minister's Department - for which there is also a vote under that department - and we should see that they are properly co-ordinated, and that there is a chance of finding out the broad nature of the organization. That is simply one of the illustrations of the fact that it is necessary to have people in touch with the responsibilities of this organization, not only to the country, but also to those in relation to whom the organization makes reports from time to time. That is completely essential. I think there is full responsibility in that sense in Great Britain, and although discretions, of course, are given to the organization, that is the first point upon which we insist.

Secondly - andI think that this is extremely important also - we are of the opinion that we must have a top level organization of persons skilled in the assessment of information from the point of view of espionage, sabotage and the like. We cannot do without that in the modern world, and the new organization was designed to provide that cadre of experts which could take into consideration reports coming from many quarters- reports which would come, in the normal course of the activities of the organization, from the Department of Defence or the various departments concerned with the armed services, sent for advice and comment. When the Chifley Government formed this organization in 1949 the intention was as I have described.

There are two further aspects of this matter which are of supreme importance. The first is dealt with by this bill. The bill deals with practically nothing else except security from the point of view of the tenure of office of the personnel of the organization. The bill seeks to give their various contracts statutory endorsement. We do not know the terms of the contracts. They should be looked at by the Minister responsible, so that he can assure the House about their nature. They may be contracts having a currency of two years, or twenty years. They may be contracts providing for a salary that is reasonable or for a salary that might be thought to be completely unreasonable. There must be some check on that aspect of the matter, so that the people who are appointed can do their job, and do it effectively.

I think it is completely wrong that these persons should be. in effect, removed from liability to suspension or dismissal in cases where they have been guilty of misconduct or inefficiency and are no longer really useful to the service. But I also agree that no findings of that kind should be made against persons in the Commonwealth's service, including the officers of this organization, unless they are based on sound evidence, and I think that for that purpose there should be an appeal body of an appropriate character which would assure them against arbitrary or malevolent action. I think that if that were done a sufficient safeguard would be provided for what is the animating force behind this bill - which is clearly that the people in this service want to be sure that they will have what might be called a statutory or Public Service tenure of office, without the necessary or ordinary discipline of the Public Service. So that, if a case arose in which an officer were negligent or were guilty of misconduct or abuse of office, the responsible Minister could initiate action and, equally, the officer concerned could question that action before an appropriate tribunal. It might be a case of such a kind that the tribunal would have to consider some of the matters without all the charges being heard in public. I express no final opinion on that. One wants to have such proceedings as public as can be arranged consistent with the protection of the national security, and the person who should be able to judge whether the national security is affected in such cases is the responsible Minister, because under the Commonwealth Constitution the sole judges of what affects the national security ire, after all, the Ministers of the Crown.

That is the first part of our proposal. I think too much is made of the endorsement of the actual contracts provided for in this bill. That brings me to something else which is as important as the tenure of office of these officers - that is, the protection of the civil liberties of the people against any misfeasance or any negligent mistake. I should like to read, if I may, a few sentences from a leading article which appeared in the " Sydney Morning Herald " on Thursday, 25th October last. The leading article says, inter alia -

The 'Security Service made responsible to some one. The idea of giving it a completely free hand will never be accepted by Australians.

That comment relates to the necessity of having not only a spokesman for the organization in this House, for an occasional purpose, but also somebody who would be sufficiently intimate with the situation to be able to assure the House about what was happening in the actual administration of the organization. In this context I am referring to it as though it were a separate department. The article continues -

Yet this is a point which the bill does not appear to clarify. Secondly, although security cannot take or institute any executive action, there is ample evidence to show that its advice has remarkably compelling qualities - so compelling that, unless the action taken on the advice is made subject to appeal, the results may be both dangerous and undesirable.

The problem with all modern intelligence systems in the democracies - and this, after all, really should be an intelligence organization related to security - is how to make the work that they do efficient without endangering the ordinary rights of the ordinary people whose interests may be endangered, and who may be defamed and injured in their jobs and otherwise by mistakes made, and, of course, by actions that may occur which may not be mistakes, but which may be worse than mistakes and which would be deserving of punishment if detected. I shall read that again. It says -

Security cannot take or institute any executive action.

That means that it is merely, in principle, an intelligence organization which will advise the departments that can take executive action. But that is not always true. This security service has frequently acted in an executive capacity. It has organized raids in certain cases which have come before the courts. Its officers have been in charge, and that is executive action - police action. But those men were presumed to be intelligence officers who would, in substance, assess the value of what was discovered in certain circumstances. They would assess the value of information which came to them and would not be the people who took the executive action.

This is the gist of the article, which deserves the close attention of the House in order that honorable members may see the solution to the problem -

In actual fact, Security's advice has in the past been decisive on the granting (or refusal) of a job, or on the issue (or refusal) of a passport, though the persons concerned have never been allowed to know the basis for adverse reports.

That is to say, they did not know of the reports. The reports were not shown to them. The persons concerned in these cases did not even know the imputations made against them. In the early days of the war, before Japan came into it, internment cases before appeals tribunals were not public hearings. The person who appeared for the man who had been detained would say, " My client is not guilty of any disloyal conduct. I want to know what is the conduct charged against my client." In case after case the tribunal said, " I cannot tell you what is alleged. You can prove that you are loyal." It was an absurd anomaly that the government authority held information which was placed before a judge or tribunal without the person concerned knowing about it. One of the first things that the Labour government had to do in 1942, after the war with Japan had commenced, was to pass special national security regulations commanding the tribunal to give the substance of what was alleged against the person so that an answer could be given. I am making the point here that those were in the nature of special tribunals which could affirm a case when a person was actually detained or uphold a case in favour of some modified order. The article states -

These alone are reasons why the bill should .be considered with the utmost care.

I think that I have dealt sufficiently with this matter for the moment. The bill will be considered in committee before which specific proposals may be put. I think that I have dealt frankly and clearly with the general position. The Opposition has dealt with the rights of the officers of this service. In our view, before they are dealt with, by way of regrading or dismissal, they are entitled to a proper appeal to an appropriate tribunal so that they would have rights equivalent to any person in the Public Service. I do not deal with the nature of the tribunal. I can understand that it might be a judicial tribunal or a composite tribunal which would include a Public Service member.

The real point of the article to which I have referred is, " What is going to be done to protect the public and what is the system to be devised? ". What has happened? The problem is to enable people to secure redress who have been refused certain privileges or rights, or on whom disabilities may have been imposed without their detailed knowledge. How is that trouble to be cured? How is the individual citizen to have his rights protected? He is just as much entitled to protection as the person who is collecting information and putting it in a file. As the " Sydney Morning Herald " correctly stated, those persons have compelling powers behind them. In all sorts of jobs in Australia, both governmental and non-governmental, one finds that the security report is the decisive factor.

Over and over again, honorable members have had cases in which a security report has been adverse or has been interpreted as adverse by a person whom the individual who is adversely affected never meets and the individual has not had an opportunity of stating his case. Because of that, he has lost his job, or has not received promotion, or has not obtained a passport, or has not obtained the immigration recommendation which is the preliminary to naturalization and he has had no remedy whatever.

I think that this is the only country in the world in which that is the position. The procedures in the United States of America have been often condemned because of action having been taken on the basis of hearsay and because of people having been adversely affected for any of a thousand reasons. The word used to describe that particular system or procedure is " McCarthyism ". But McCarthyism does give to the person concerned the opportunity of dealing with the charge. It may be thinly founded but, finally, he knows his accuser. It might take months, but the accuser is, at some time, present and the person who might be victimized has, at any rate, a chance of having his day in court In Australia, nothing of that kind is possible. The security report is not drawn to the attention of the individual. It leaks out at some time in some way so that he knows what is suggested without knowing precisely what the charge is. That is the problem in connexion with security which concerns the security of the ordinary person.

Let me refer to an article in the " London Times " of 6th September which is headed " Security Hearings in the U.S.". It deals with certain cases and points out that a security check was made in the civil service on 2,300,000 employees of the federal government for the two years ended last March. Then it deals with an estimate that there are 10,000,000 people in the United States of America - civil servants, members of the armed services, employees of private industry engaged on government contracts and others - on whom security reports are made. We could get to a stage at which practically everybody in the community is reporting on his neighbour. These activities could reach great dimensions. These figures suggest that no responsible head of a service could assure himself, or could put his hand on his heart and say of all those people, " 1 am reasonably certain that justice has been obtained for them ". It is impossible under those conditions. There is no guarantee that any individual will get justice if he does not know the substance of the charge against him. There may not even be a charge. There may be only a letter of a defamatory character which has been taken from some file or other source and has become a part of a security file. That may not be brought to the attention of the individual concerned and it may not be used until he is an applicant for promotion, or. perhaps, an applicant for naturalization. What is to be done in these cases? What does the Prime Minister propose to do about it? He is letting it go on.

Some of the cases dealt with in the United States were grotesque. For instance, a typewriter operator in the United States Signal Corps was required to meet charges like these - and I mention them only by way of illustration -

(1)   You are closely associated with .your father who reportedly . . .

Six allegations of Communist association followed -

(2)   Your father and mother were: (a) .in 1953 on the mailing list of the Tom Paine School of Social Science in Philadelphia. . . . (b) associated with a group of persons who promoted the policies of the Communist party. . . .

Some of these cases appear perfectly ridiculous, but at least one can say in their favour that the accusation was brought to the notice of the person concerned. Nothing like that happens here. In the case I have mentioned the crime was close association with his father and mother, who were on the mailing list of an organization, the Tom Paine School of Social Science, which was not very well liked. We cannot laugh at the United States simply because of that extreme case. In this country there is no procedure by which a person who may be permanently prejudiced in his employment and his social life is made aware of the cause - the security report. He may be an applicant for a position or for a passport, and be rejected because something has been said against him on some occasion by some one whom he does not know, and of whom the inquiring officer knows nothing.

I have quoted from the " Washington Post ", a very well-known liberal organ - and by that I mean " liberal " spelt with a small " 1 " - liberal in the true sense. A cartoon points out that the resources of the security agencies are directed at two groups of people, men accused of association with their mothers and men accused of association with their fathers. That ridiculous exaggeration is not so far removed from some things that have gone on in this country. At least it can be said of the American system that the things of which one is accused are finally brought to one's notice. The absurdity of an accusation can very often be demonstrated if it is brought to light.

What is to happen when this bill become: law? No one wishes to be dismissed unfairly, and if a case can be made out an appeal should lie to a judicial or semijudicial tribunal. What about the rights of the ordinary people? The " Sydney Morning Herald " said that in the past the advice of the security service on the granting or refusal of a job or the issue of a passport had been decisive. We must devise a system in which this advice will not be final. Perhaps it will not always be possible to have public hearings, because that may react to the prejudice of all concerned, but an approximation to the truth, at least, could be obtained by appropriate officers who had at heart the interests of the accused Surely, in any reasonable case, the report that is damaging a man in his employment and social life should be removed from the security file. A judicial officer should be able to say, " It is rubbish and of no value ". Such a file ought not to be used again in security. That is our point of view. Many cases of a similar nature in connexion with these departments have been referred to me by honorable members. No doubt, they can be cited at a later stage, for, I understand, the debate is to be adjourned.

The system can be altered only by political action. The security service appoints its own officers and is practically an arbitrary authority. Its advice, though not legally binding, is not refused and influences every branch of public employment. All sorts of things may have to be considered before a man is appointed, but promotion in the Public Service depends, over and over again, on this decisive factor of security. The individual is adversely affected by the secret document which he never sees. The result, in almost every case, is manifest injustice in procedure and, so far as the substance is concerned, undoubted miscarriage of justice. Surely, this procedure can be reviewed in the light of experience.

During the war, as honorable members will recall, in case after case civil rights were involved. The Curtin Government had to deal with this matter of internments in 1942. I can give honorable members an illustration of the type of thing that can happen with a service which has a sense of loyalty to its officers, and is not concerned about public and civil rights. The procedure of internment was to pass a recommendation from the officers of military intelligence to the Minister for the Army. Those recommendations were for detention, restriction or internment. No doubt, some of those cases are still in the files. Occasionally, the Minister for the Army would seek the advice of the AttorneyGeneral's Department. Some of these recommendations were completely outrageous. They were not based on any evidence and were rejected, but, in 1942, no fewer than 7,500 persons were detained on the advice of military intelligence.

At the initiative of Mr. Curtin, the whole of the jurisdiction over internment was taken away from military intelligence and given to a civil organization. The Commissioner of Police for New South Wales was appointed Director-General of Security. Subsequently, the then government appointed a committee to go through all these cases of internment. The committee comprised, as chairman, the honorable member for Melbourne (Mr. Calwell), who is now Deputy Leader of the Opposition. On the committee were, also, two lawyers who are now distinguished judges, and

Senator Cooperand Mr. Cutler, who is now an ambassador abroad. Where it was possible, they saw the persons concerned, and, in twelve months, reduced the number from 7,500 to approximately 500. The decisions of the committee were never queried, nor did any of those who were released subsequently offend against security. That means that 7,000 people, were needlessly interned, at enormous expense to the community. The percentage of internment among persons of enemy origin was enormously greater than the percentage in countries like Great Britain, which were much closer to the seat of war.

On the whole, the inference was clear that the beautiful recommendations in lovely red ink, which were made by military intelligence as administered in those conditions, and which the Minister had only to sign, were not to be relied upon, and that was a lesson in the value of the written document on which the recommendation was built. Sometimes it was of some value, but very often it was worthless. The same kind of thing is necessarily going on in any security intelligence organization such as this, but this is a time when the matter can be reviewed. We want it reviewed on this occasion by Parliament.

I have stated the view of the Opposition. We want ministerial responsibility in a general sense. I do not mean that we want detailed consideration of every particular activity of the organization, but there must be a supervisory Minister responsible to the Parliament and to the people, because, knowing something of the history of this organization, as I and one or two others assisted in its formation originally in 1949, I estimate that there must be in existence in Australia 250,000 security files to which reference could be made. If that be true, the percentage of files to population in the United States of America would be far less. In those files dealing with persons, there is material which is gleaned from sources which in some instances is reliable and in others is not. This is a cause of grave injustice and dissatisfaction in the community. When public resentment reaches such a level as to attract a leading article in a newspaper of the kind I have mentioned, I think it is fair that the Parliament should treat the matter seriously and solve the problem.

We suggest, not a detailed solution, but a general solution along these lines: First, there must be ministerial responsibility. Secondly, of course, the organization must be retained as an intelligence organization and not as a secret political police force. It is tending to become the latter, as indeed it must do if its operations are kept secret and there is no way of appealing against its recommendations or the contents of its files. It is secret and it is all political. I do not mean that it is party-political, but some persons would regard non-conformity and criticism of institutions as signs of disloyalty or subversion, although others would regard them quite differently. On that matter it is absolutely essential that there should be a system of review. I do not suggest a name for the tribunal. I see the difficulty inherent in its establishment, but we have a great body of what might be called jurisprudence of a type in the United States of America which may be unsatisfactory in many respects - I think it is - but at all events in that country there is a chance of putting a case forward. In this country, there is no such chance. That is what we are fighting for in this connexion.

We must keep a system of intelligence, but it must be free from politics in the sense of there being a secret political police force. That is the danger in our present organization. There have been instances where this body has taken actions which were not merely of an intelligence character, such as organizing prosecutions and raiding premises, not for the purpose of getting evidence in a particular case but for some other purpose. Instances of that kind which have occurred can be cited. Probably they must occur when we have a secret organization. We must introduce appropriate safeguards. The first safeguard should be ministerial responsibility. The second should be the right of an officer to know that he will not be arbitrarily dismissed or suspended but will be given a fair trial or the opportunity to state his case in the event of misconduct on his part being alleged. The third, and most important, safeguard should be the protection of the right of the ordinary person, the man in the street who, having the qualifications and applying for a job, finds that somehow a security veto is applied to him. Under the present system he has not access to the matters alleged against him, and he can do nothing to rebut them. He should have rights which have been defined properly by the Parliament or by regulation. I ask the Minister for Primary Industry (Mr. McMahon), who is at the table representing the Government, to consider these suggestions by the Opposition, because what I have said represents, in general, the Opposition's view. Our attitude is that provisions making appropriate safeguards not having been included in the bill, the bill should not be accepted. Unless radical alterations of the kind I have suggested are made in the legislation, we shall oppose it.

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