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Accountability of secret service organisations brought into question following complaints by former officers of ASIS

KERRY O'BRIEN: Last year the Federal Government was rocked by claims that our international spies were out of control, doing work for other countries against Australia's interests. Now a year on and after a major inquiry, Foreign Minister Gareth Evans says Australia's secret intelligence service is in good shape, but must be made more publicly accountable. At the same time, he's signalled tough new laws for anyone revealing information likely to damage Australia's security interests.

GARETH EVANS: We are suggesting that at the end of the day, for breaches obviously of an extremely serious kind, there be a criminal sanction available for anyone who is responsible for a publication.

KERRY O'BRIEN: How far do you go to make government accountable? How far do you go to enforce secrecy in the national interest? That's our story tonight.

Today, Foreign Minister Gareth Evans announced substantial changes to the Australian Secret Intelligence Service. After months of deliberations, Senator Evans agreed to give ASIS a legislative base, make it accountable financially to the Auditor-General and answerable to a parliamentary committee.

While the Government characterised these changes as progressive and timely, it has agreed to them only after being forced to an inquiry assessing the competence and effectiveness of the service. It set up that inquiry after two spies with a range of personal grievances spoke out on national television early last year, claiming ASIS was out of control, spying for and supplying secret business information to nations competing with Australia.

Since then, the Minister has rejected the proposition that any serious problems exist within ASIS. In the Senate today, he tabled an edited 200-page report from the judicial inquiry, which he says broadly vindicates the service. And although he agrees with the finding that two of the disaffected spies and the spouse of one had legitimate grievances against the service, Senator Evans warned that he would introduce tougher laws to stop any future leaks being published.

In just a few moments, we'll talk with the Foreign Minister, his Opposition counterpart, Alexander Downer, and author spy watcher, Brian Toohey. But first, Mark Corcoran details allegations new and old that cast a shadow over our most secret service.

MARK CORCORAN: Last year, two former spies partially emerged from the shadows to make a series of startling allegations on the ABC's Four corners. The pair, former members of Australia's overseas spy service, ASIS, claim the organisation was out of control, beyond the scrutiny of its political masters.

OFFICER 1: In a democracy, when you have an organisation that's exempt from the law to that degree and is not being regularly scrutinised and know it has never been disciplined, that you have in effect the beginnings of a thought police, that that seed has germinated and there's a plant emerging. That's what we're worried about; that's what we're fighting for.

MARK CORCORAN: They claimed ASIS was working against Australia's national interests by spying for Britain, that Australian diplomats had deliberately blown operations in Cairo and New Delhi as part of an ongoing feud with ASIS, and that the service illegally held thousands of files on Australian citizens.

After initial resistance, Foreign Minister Gareth Evans called for an inquiry. Retired New South Wales Judge Gordon Samuels was appointed to probe the claims of five former spies, and the wife of a former officer.

The inquiry's first and only public hearing was held last May. For the next seven months it continued behind closed doors, here at Ian Potter House in Canberra, where 89 witnesses were examined.

When Justice Samuels handed down his three-volume report to the Government in April, only 18 pages were made public. He recommended that compensation be considered for some of the former officers who'd been the victims of smear campaigns; that ASIS be placed on a legislative framework; and that a parliamentary oversight committee be formed. He dismissed allegations about illegal files and found no evidence that ASIS was out of control or unaccountable. The judge was also critical of media reporting of the claims.

But if the inquiry intended to make a judgment about the performance of ASIS, there are now allegations that as the hearings were taking place, our intelligence services were still engaged in some questionable activities.

Intelligence sources have claimed that while the inquiry was probing ASIS, the intelligence services were in turn bugging the two ex-officers who made the initial allegations on Four corners. We've been told of an ASIS document marked 'top secret gamma' that allegedly details a telephone conversation between the two ex-spies, who were identified on Four corners as officers one and two. It's claimed that the bugging took place last October, when officer one, who was on a business trip to China, called officer two in Canberra, to check on the progress of the inquiry.

Last week's claim that bugs were planted in the Chinese Embassy during its construction, served as a timely example of the issues the Samuels inquiry and government have been trying to grapple with.

Australian spies allegedly leaked details of the embassy operation because they claim the bugging was controlled by the US national security agency. There were claims that the Americans were withholding information that would give them an edge over Australia in trade deals with China. The concerns were dismissed by the Government, which pointed to Australia's membership of the UK-US intelligence sharing club.

But old allies are now economic competitors in the new world order. The man who ran ASIS bugging operations cites an example in Kuwait where ASIS allegedly worked against our national interests by planting bugs for the British.

OFFICER 2: And I understand that in the aftermath of the Iraq war, the British sent teams out to Kuwait to fit up various offices in support of their business initiatives. An Australian technician accompanied these .. one or other of these teams and was instrumental in mounting an operation or operations which secured intelligence in support of British business. The problem was, of course, that Australian businesses were also competing in Kuwait for the same contracts. So there's a clear example where Australian interests were jeopardised.

MARK CORCORAN: But in the post-Cold War world, with the emphasis now on economic intelligence, what should ASIS do when it receives information vital to one of Australia's major companies? We can now reveal claims that in 1988, ASIS learned that an oil exploration venture that BHP was about to sign with India, was allegedly based on falsified Indian drilling records. Officer two claims ASIS didn't tell the big Australian, and that the deal went ahead.

OFFICER 2: BHP, I think from memory, decided to take an oil lease .. an exploration lease on the west coast of India, and I believe that part and parcel of their consideration of the terms of the lease and whether it was worth, in fact, drilling in the first instance, was the fact that Indian Government records showed that there'd been drilling going on in the Kumbay(?) basin and that there'd been, I think from memory, 33 or 34 shows of oil or gas. The fact was that there had been no - to my information, which was good information - was that there was no drilling going on in Kumbay at all, that they hadn't an oil rig within hundreds of miles of Kumbay.

MARK CORCORAN: The issue highlighted by the Chinese Embassy episode was media accountability: which secrets should be retained in the national interest and when does the public have a right to know? ABC Managing Director, Brian Johns, sparked a controversy last Thursday when he pulled the ABC's initial embassy bugging story, because it may have breached what's known as D-notice.

BRIAN JOHNS: That content affected D-notices and it's the ultimate responsibility of the managing director to determine whether or not we should accede to a D-notice or not.

ABC TV NEWS: Tonight, Chinese Embassy eavesdropping; claims we planted the bugs for Washington. Allegations today that the Chinese Embassy in Canberra....

MARK CORCORAN: The next night, Brian Johns allowed the story to be aired. D-notices, which have been largely ignored for the past decade, are voluntary agreements between government and media on security issues that shouldn't be published. These days the Government prefers the power of the courts. The book, Oyster - an unofficial history of ASIS - was temporarily injuncted in the High Court in 1989 when the Government accused the authors of putting operations and lives at risk, while five weeks ago, the Sydney Morning Herald's first embassy bugging story was suppressed by a court order that also included a ban on any mention of that order.

Occasionally the Government tries a more direct approach, as with the ABC last November when ASIS secretly met with then ABC boss, David Hill, in an unsuccessful attempt to prevent the publication of a story.

DAVID HILL: The head of the Department of Foreign Affairs indicated that ASIS wanted to talk to me and other senior ABC managers. And the head of ASIS and three other members of ASIS came up to see us that day, from Canberra.

MARK CORCORAN: And today, Foreign Minister Gareth Evans endorsed the Samuels inquiry by announcing that ASIS would be placed on a legislative base and become more accountable to Parliament. But at the same time, he signalled that there would be far tougher restrictions and penalties for those who disclose intelligence information.

KERRY O'BRIEN: That report from Mark Corcoran. And joining me now in our Canberra studio is Senator Gareth Evans, Government Leader in the Senate, Minister for Foreign Affairs and the Minister responsible for ASIS, the Australian Secret Intelligence Service.

Alexander Downer is Shadow Minister for Foreign Affairs and former Leader of the Opposition. He was a diplomat with the Department of Foreign Affairs from '76 to '82, and also served abroad in that time.

Brian Toohey is a journalist and co-author of Oyster, the story of the Australian Secret Intelligence Service - a book which itself attracted a court action by the Government to suppress some of the detail. In the early years of the Hawke Government, Toohey broke a number of embarrassing stories involving leaks from the Australian intelligence community.

Gareth Evans, there seems to be common acknowledgment amongst intelligence specialists internationally that since the end of the Cold War much more emphasis has gone on to the collection of economic, commercial espionage. Is there any reason why one couldn't assume that that changing pattern would apply to Australian intelligence gathering abroad as well?

GARETH EVANS: Well, I don't accept the premise there. I mean, yes, economic intelligence has always been one part of the repertoire, but not especially a greater part. The truth of the matter is there are still strategic interests, defence interests, security interests, political issue-related interests which all governments continue to have in the post-Cold War era. In fact, in many ways, the world is a more fluid, dynamic, less predictable place than it was before, and some of these kinds of intelligence are, if anything, in greater demand than they were before.

KERRY O'BRIEN: But what's also true in the shifting of alliances since the end of the Cold War is that a number of countries, with which we might have had potentially hostile relations, that the kind of emphasis that is now going on broad trading relationships all over the place, and particularly in this region, have cast a different look, if you like, on many alliances. Now, I wonder to what extent that creates a potential conflict, potential problem, raises the possibility of potential embarrassments where some of that .. where there may be releases of information like we've seen in the last few weeks, which then cast tensions.

GARETH EVANS: Well, any disclosures or even purported disclosures, which are quite false about intelligence gathering, has the potential to cause some embarrassment and some difficulty for international relations, and that's true whatever the particular pattern of international relations may be at a particular time. It is the case that our pattern of international relations, as is everybody else's, is much more complex than it used to be. And a lot of the old sort of battle lines no doubt have any applicability at all. But still, every country has its own national interests to pursue, whether they be strategic interests, or economic interests, or other kinds of problem-solving interests, and there will continue to be a need that every country experiences for gathering intelligence by a variety of sources, and this will always, whatever the country, whatever the state of the evolution of the world at the time, will always have the potential to cause difficulty if it gets out of this twilight secret domain.

KERRY O'BRIEN: What about the responsibility of the media in terms of government accountability, in a democracy where the government's foreign intelligence arm might be involved in potentially illegal activities on foreign soil, like blackmail, like bribery, or bugging to get information?

GARETH EVANS: Well, I think the media here, as elsewhere, should have some significant regard to larger questions of national interest. They seem to be willing to embrace those kinds of criteria, those kinds of considerations reasonably cheerfully during the Cold War years. The point I make is those considerations continue to have application. I would infinitely prefer that to be done voluntarily and through a sensible process of consultation between government and the media identifying areas which are very potentially damaging if they get into the public domain, and see if we can't operate on that basis.

KERRY O'BRIEN: What about the moral issues of potential illegality? And I noticed in your press conference today, you were strident in your assertions that ASIS agents are never engaged in illegal operations overseas.

GARETH EVANS: They're never engaged in operations which are illegal as a matter of Australian law. I made that perfectly clear. That continues to be the case, and will be the case as long as I have anything to do with being responsible for them. They don't operate in breach of Australian law.

KERRY O'BRIEN: Okay. Brian Toohey, in your book Oyster, you quote the Hope report .. evidence to the Hope report defining circumstances in which our foreign intelligence activities could break Australian law.

BRIAN TOOHEY: Well, that's a letter to Justice Hope from the department, Gareth Evans' own department, the Department of Foreign Affairs, saying that these technical attacks which he's talking about - bugging of an embassy in Canberra, in which ASIS would be involved, or any other Australian intelligence agency - is illegal and that's illegal under the Diplomatic Privileges and Immunities Act. Now that was the opinion, not of some bush lawyer, as Gareth was talking about at his press conference, but of his own department, and more recently, it's an opinion that's been confirmed by senior counsel acting for the media.

GARETH EVANS: Well, that's simply not the case that that particular statute is the last word on that subject. There are other statutory provisions that govern these things. Beyond that, I don't want to go further. But I'm totally....

KERRY O'BRIEN: So, Foreign Affairs got that wrong in its letter to Justice Hope?

GARETH EVANS: Well, at that time, that may well not have been wrong. But as the law now stands at the moment, as that statute book stands at the moment, I am totally confident and armed with all the advice in the world [...] to the extent that I need it...

KERRY O'BRIEN: So, why don't....

GARETH EVANS: ....to assert that we are not acting in breach of Australian law.

KERRY O'BRIEN: But you don't want to explain....

GARETH EVANS: Later Acts override earlier Acts - as simple as that. But you can look them up for yourselves without me spelling it out.

BRIAN TOOHEY: One of those other Acts was applying then, and the other Act you're talking about, the ASIO Act, is silent on this matter.

GARETH EVANS: I'm not going to get into a detailed discussion about which particular legislation is involved. I mean, as I said today, the fourth estate is full of either lapsed lawyers or failed law students or, failing that, bush lawyers, and between the lot of them I think they can sort out what it is I'm talking about.

KERRY O'BRIEN: Okay. Now, you've been very critical, and you've been quick to highlight those parts of the commission which give the big ticks to ASIS in terms of its performance, and, in fact, the commission and yourself have played down the extent to which ex-ASIS officers had grievances. But the fact, nonetheless, is that an inspector-general of intelligence went sooner than he otherwise would have; a deputy director-general of ASIS was transferred; and the fact is that you have acknowledged that there is a need to apologise to the wife of one of these ASIS officers. You have acknowledged that there may well be some case for further compensation, and you have moved to make ASIS more accountable.

GARETH EVANS: Yes, there were some flaws in the previous processes, but let's keep them in proportion. The documentation as I saw it at the beginning of '94, when all this was in issue, persuaded me that the grievances then in issue had been exhaustively dealt with, indeed, in one case, with a big package of compensation being recommended and the officer in question accepting it.

What subsequently transpired after another 40 days of meticulous hearing before the commissioners....

KERRY O'BRIEN: In secrecy.

GARETH EVANS: ....in secrecy, is that there's a couple of additional areas of process faults that showed up: the treatment of the wife of one of the officers in the course of one of the earlier investigations and the use or misuse of a psychological report. That's really what it basically amounts to, so far as the additional grounds for compensation are concerned, and I think that ought to be kept in perspective.

KERRY O'BRIEN: But the question is: how was it allowed to get that far? How was it allowed to come to this?

GARETH EVANS: Well, basically, I guess, because I as Minister had a statutory arm's length, independent officer that the Opposition agreed should be created for just this purpose, namely an inspector-general of intelligence and security exhaustively dealing with, evaluating over a period of many months, indeed years in one case, these particular grievances. And it is always a matter of difficulty, I think, for a Minister to plunge into, over the top in these sensitive personnel matters, and try and second-guess outcomes that have already been recommended.

In any event .. I mean, the notion that Alexander is pushing around the place that I had some fevered missive from the Director-General of ASIS saying 'For God's sake, you've got to have an inquiry more or less tomorrow to avoid the sky falling in'. I mean, that's simply not the case. I mean, he wrote to me saying 'Look, I think it's about time we actually sort of initiated the inquiry that we've been talking about on and off. What about I get together with Foreign Affairs, PMC and we draft some terms of reference, take it to the officials, and in a few weeks time perhaps announce it'. That wouldn't have been enough to stop the Four corners' matter hitting the waves five days later. So, I was prepared to consider an inquiry, and in all the circumstances, yes, I think it was justified.

KERRY O'BRIEN: Alexander Downer, you've been strongly critical of this.

ALEXANDER DOWNER: Well, he told the Senate he didn't want an inquiry into the grievances, and the point is that the Director-General warned Senator Evans on 10 February, well before the Four corners program, that if there wasn't an inquiry, which obviously by implication was to be inter alia into the grievances, then these people would go public and do great damage.

KERRY O'BRIEN: But they were already going public and the cat was out of the bag.

ALEXANDER DOWNER: Well, they were starting to, and you'd have thought that a Minister who was on top of his portfolio, rather than just swanning around the world to Cuba and places like that, would have been particularly focused....

KERRY O'BRIEN: You, of course, won't be swanning around the world if you become Foreign Minister?

ALEXANDER DOWNER: Well, I'm not trying to become the Secretary-General of the United Nations, learning French, and swanning off to Cuba, no. Can I just make another point, though, that over and above this the Inspector-General himself, back in 1992, told the Minister, or communicated with the Minister, that the grievance procedures needed to be improved, and the fact is that between 1992 and the Four corners program simply nothing was done.

So, it seems to me in those two areas: the failure to respond to the warning of the Director-General, and, in fact, the failure to review the grievance procedures as suggested by the Inspector-General a couple of years earlier, leaves Senator Evans exposed. And he's further exposed by the fact that he himself admitted that had reviewed all the documentation in relation to these grievances and had come to the conclusion - to use his words - 'that the matter had been fully and fairly resolved'. And there he was satisfied with all the documentation he had seen. I mean, somebody is at the head of this organisation, and it's Senator Evans. He had the final review and now he says 'Oh, by the way, it's not my fault; it's someone else's fault'.

GARETH EVANS: Well, I will bear with such fortitude as I can command all this vulgar opportunistic political point scoring that's here.

KERRY O'BRIEN: You'd never engage in that.

ALEXANDER DOWNER: Oh no. It's his lifeblood.

GARETH EVANS: And I just draw attention to the fact that Alexander doesn't disagree with me one iota in terms of the substantive response to the issues, which maybe we might get on to. But let me just say that faced with the situation as I confronted it, faced with all the independent assessment that had gone on of these grievances, faced with the kind of recommendation that I had in front of me, without the degree of urgency that is now being retrospectively attached to it, and faced with a situation where we knew we had a potential problem with these characters, but not one that was going to explode around our faces in three or four days time, I don't think Alexander would have acted any differently from the way I did. And even if I had responded to the Director-General's suggestion at the time I did, under the time lines that I've already described, we wouldn't have had an announcement for some three or four weeks anyway.

KERRY O'BRIEN: But the alarm bells were there, weren't they?

GARETH EVANS: Well, of course the alarm bells were building up, but I mean you do operate on the basis that these characters have embraced an oath of confidentiality, that they do know, better than most people in the community, the degree of sensitivity that's attached to this information, or disinformation; they know the damage that it can potentially cause. And you do tend to make some assumptions....

KERRY O'BRIEN: But you also notice....

ALEXANDER DOWNER: Look, hang on.

KERRY O'BRIEN: ....frustration. You also would acknowledge a frustration that might build up from people, and let's say responsible people who have gone from here, to there, to there, to there, and are nursing what they regard as legitimate concerns about what's going on inside that agency.

GARETH EVANS: Yes, look, with the benefit of hindsight, we all have 20/20 vision. All I can say is that Alexander's response hasn't yet been to call for my resignation on this, but I think we'll put this down in the category of venal sins rather than mortal ones.

KERRY O'BRIEN: In the end, were you making assumptions....

ALEXANDER DOWNER: Oh well, if he wishes to resign, I mean, we're welcome to accept his resignation.

KERRY O'BRIEN: In the end, are you making assumptions that the kind of loyalty club, that Justice Samuels refers to in his report, would hold, would bind them?

GARETH EVANS: No, I was making an assumption at that stage that an inquiry was almost certainly going to be necessary. True it is I didn't think then or now that an inquiry needed to revisit all the substantive grievances, and, indeed, the terms of reference of this inquiry didn't cover that, nor did the commissioners do that. What they did review and what I thought it was appropriate for them to review was the grievance resolution process, which necessarily took them into some of the nooks and crannies of these characters' complaints. But this is all that they wanted. This is all that they wanted.

ALEXANDER DOWNER: Hang on. He was advised in 1992 by the Inspector-General to review the grievance process, in 1992, and he didn't do anything about it. And then we have....

KERRY O'BRIEN: Well, let's go to that point.

ALEXANDER DOWNER: And we've had a long period of dissent by these former ASIS officers, which Senator Evans must have been aware of for a matter of years, not just a matter of months.

KERRY O'BRIEN: Were you?

GARETH EVANS: Well, I can't remember getting any specific missive from the Inspector-General inviting or suggesting a full-scale review of the whole process. There was constant complaints by the Inspector-General that he needed more resources to do the job better.

KERRY O'BRIEN: Were you aware on any ongoing basis about the complaints that....

GARETH EVANS: No, I wasn't aware of any of the complaints building up to any degree of difficulty....

ALEXANDER DOWNER: But you knew this was an issue. You knew it was an issue.

GARETH EVANS: ....for the Government until April-May '93.

KERRY O'BRIEN: Should you have been?

GARETH EVANS: Well, who knows in retrospect. What you have to do when you're a Minister, particularly when you're dealing with a highly sensitive security agency like this, is vest some confidence in the leadership of those agencies and, in particular, vest some confidence in the statutory external review mechanisms that have been established expressly for the purpose of ensuring that they don't blow up as a result of internal grievances or external pressures. The Opposition and we agreed on that external process. It wasn't working; it was incomplete at that stage.

ALEXANDER DOWNER: [...] because he has conceded, which we haven't heard before, that he first knew about these grievances - I've been far too late, frankly, in April, May 1993. That's what you said.

GARETH EVANS: Well, we all knew about....

ALEXANDER DOWNER: So, all right, in April-May 1993 having already, as he's conceded, been advised by the Inspector-General that he was inadequately resourced to do his job in dealing with grievances, but still Senator Evans did nothing, except we know he reviewed the documentation himself and, as he told the Senate, said that the documentation was fine and that these people had had their grievances fully and fairly resolved. His words.

KERRY O'BRIEN: Last word on this.

GARETH EVANS: Okay. Well, in April 1993, one of the complainants accepted that month a large cash settlement which had been recommended by the Inspector-General and which Attorney-General's Department has said was bigger than they would get in the courts. At that same period, another full-scale investigation of the grievance in question, in the case of the second officer, had been initiated, was under way, by Inspector-General, and there wasn't in fact a report on that until December. I knew there was concerns, but I thought they were being properly addressed.

KERRY O'BRIEN: And was the early departure of the Inspector-General and the transfer of the Deputy Director-General coincidental?

GARETH EVANS: I don't want to comment about that. The Inspector-General's term had expired.

ALEXANDER DOWNER: No, it hadn't. He had six months to run.

KERRY O'BRIEN: Did it have any direct bearing on the issues that came before the royal commission?

GARETH EVANS: He chose to leave at that point of time.

ALEXANDER DOWNER: He had six months of his term to run.

GARETH EVANS: Other internal personnel changes are not something I'd care to comment about. I think that's inappropriate so far as the people are concerned. There were some things that left something to be desired in the administration internally of ASIS. Nothing that happened there, I believe, was ill motivated in any way. There was commitment to the organisation.

KERRY O'BRIEN: But apart from anything else, it's directly affected a number of lives, which has led to severe embarrassment.

GARETH EVANS: Yes, but I mean, Kerry, you can't work on the assumption that you have to accommodate in all the ways that people might initially be asking for, every grievance that's articulated. If you did that, the entire public sector would break down because there's a mountain of grievances [...]

KERRY O'BRIEN: Let's move on to the issue of media responsibility. Gareth Evans when you claim national security, I think, going back to the issue before, of whether that would potentially include a situation where disclosure of information might lead to trade tensions between Australia and a trading partner like Japan, China, Malaysia, Indonesia. In even those circumstances, would you support, in the end result, a criminal action against a journalist or news organisation?

GARETH EVANS: Well, what we've said is we're going to define with considerable precision just what kinds of disclosure should be regarded as damaging security disclosures for the purposes of a replacement provision for the existing Crimes Act. I don't want to anticipate how that debate might operate at the moment. What might be more important than the particular nature of the information in question might be, for example, the disclosure of the technique by which that information was obtained. So there might be some larger security issue involved, even though the information itself might simply, to you, be seen to be a basically innocuous piece of commercial information. So, I can't anticipate that debate, but there'll be ample opportunity for the Parliament to do so when we introduce draft legislation.

KERRY O'BRIEN: Brian Toohey, you've written that the protection of ASIS's intelligence sources and methods is the responsibility for ASIS; it should not be shifted on to the media. Are you saying that the media has no responsibility with regard to issue of intelligence disclosure and national security?

BRIAN TOOHEY: I take the same view as a very conservative and famous American journalist who in 1953 said covering the American Central Intelligence Agency is no different, or should be no different than covering the Department of Agriculture. I would think that most journalists would see themselves as having an ethical requirement not to print anything that led to someone being killed, and that would apply, say, in an undercover police operation. But you don't have draconian laws sending people to gaol if they reveal something about a police operation.

I think what's very disturbing about this is the whole national security rubric is supposed to, in the end, be protecting our liberal democracy. One of the things that the Government intends withdrawing in these penal provisions is a defence of public interest. Neither the public servants involved who are alleged to have leaked this material, nor the media that might publish it will have available to it.

GARETH EVANS: No such defence at the moment, Brian.

BRIAN TOOHEY: There is in the courts. They balance all the time public interest in making it available versus public interest in maintaining [...]

GARETH EVANS: That's for injunctive relief and not for a criminal proceeding under the Crimes Act. You know that as well as I do. Stop making it up.

BRIAN TOOHEY: [...] [...] as you well know, doesn't work at the moment, incidentally.

GARETH EVANS: Okay. Well, don't change the ground in midstream.

BRIAN TOOHEY: All right. I'll bring the grounds back to the Samuels report. The Samuels report recommended out of public interest. So, you are tougher and more draconian than Samuels.

GARETH EVANS: Not quite, because the Samuels report also recommended that a number of the offences should be ones of strict liability in the sense that no damage had to be proven by the Government. We've said that's nonsense. The Government ought to be required to prove damage in all such cases before a prosecution can be sustained. We've also said the defence of illegality will prevail if someone can establish that the Act that they're referring to was illegal under Australian law, they won't be convicted.

KERRY O'BRIEN: So does that reassure you, Brian?

BRIAN TOOHEY: No. Can I give you a substantive, but it will need to be hypothetical so Gareth doesn't slap me in irons, or whatever. We often exchange intelligence information with other regimes which have less robust concern for civil liberties than Gareth. A most obvious example would be that intelligence information that we supply to the United States or Britain in accordance with very long-standing arrangements could be played back to Indonesia, say, by the British wanting to sell some military equipment and sweetening the pot by saying 'Well, we'll throw in this intelligence data on the whereabouts of someone in Fretilin or whatever, so you can go and kill them.

So, in terms of keeping things secret, far more people have been killed by keeping intelligence secret around the world....

KERRY O'BRIEN: You assume.

BRIAN TOOHEY: I not only assume, I mean, I think there's ample documentary evidence that there are repressive regimes around the world which use intelligence information to kill people. I don't think that's in dispute. And it is quite possible that we could supply - not with us the intention of that occurring - we could supply that information that led to that sort of thing. Now, under the proposed new laws, that's the sort of thing that would involve an intelligence activity or an intelligence exchange that you, the journalist, and the public servant who supplied that information could face if the Gibbs report is followed, up to seven years gaol. And I don't think in a liberal democracy exposing that sort of thing really deserves a gaol sentence.

KERRY O'BRIEN: Now, let's say, for the sake of this argument, that the hypothetical case that he's presented might possibly happen three, or four, or five years from now?

GARETH EVANS: Well, I'm glad he emphasised it was hypothetical, but I mean....

KERRY O'BRIEN: Well, the point is saying that a journalist coming across a story like that has no right or moral obligation to air it?

GARETH EVANS: Not necessarily, and it's a matter of fine judgment in a lot of these cases, and I mean, there's no automaticity about the applicability of criminal provisions in these cases, and there's always prosecutorial discretion that is relevant and, no doubt, in that kind of very extreme case would be applied. But let's not over-focus on the criminal sanction; that's the hard end of the process which none of us hope will ever be reached.

KERRY O'BRIEN: It does tend to catch the attention. It's got me focused.

GARETH EVANS: Well, it wouldn't even need to catch the attention if people behaved a little bit more responsibly under the voluntary....

KERRY O'BRIEN: By your definition.

GARETH EVANS: [...] under the national interest definition. Under the D-notice regime as it applies at the moment.

KERRY O'BRIEN: National interest or national security?

GARETH EVANS: And indeed, if people who possessed these secrets in the first place behaved a bit more responsibly, and that's why it's terribly important to focus on these managerial reforms.

KERRY O'BRIEN: You see, if you're widening national security to national interest, national interest is just endless.

GARETH EVANS: No, I'm saying there's a national interest in certain national security data. That's all I'm saying.

BRIAN TOOHEY: I'll give you an example. When the Gibbs report was on, your department, Foreign Affairs, and ASIS put in submissions saying that any release of economic information that damaged the economy should be a matter which would attract a gaol sentence. To his great credit, the then head of the Treasury, Tony Cole, came forward and said that's utter nonsense. It's a natural thing for officials to want to broaden this net as far as possible. You, for example, rang the editor of the Sunday Age on the 10th anniversary of that mad ASIS raid on the Sheraton Hotel in Melbourne where they ran around with silenced machine guns and all the rest of it, and said this was a breach of the D-notice. Now effectively you're asking, which it wasn't, effectively you're asking if....

GARETH EVANS: Now that's a nonsense story, Brian. Absolute nonsense story. I might have rung the Age editor on one occasion about a particular subset of a story that we knew was about to be run. It certainly wasn't anything to do with the Sheraton raid, which was out and about in the public domain, and so it should have been.

BRIAN TOOHEY: Well, Bruce Guthrie, the Sunday editor Age has told me in detail about this conversation. Maybe you've forgotten it. He hasn't.

GARETH EVANS: Maybe I've got a better record of it than he has; not because I was taping it, I hasten to add.

KERRY O'BRIEN: In any event, can we .. it's clear, is it not, that there are a number of shifting alliances, there's far greater emphasis by Australia on its relationships with its near Asian neighbours. Does that mean that inevitably there are also going to be changing intelligence relationships with countries like Indonesia, Malaysia, so on, Japan?

GARETH EVANS: Well, there's already significant dialogue that does occur with a number of these countries through intelligence liaison channels, perhaps much more than you or your viewers would believe. Because everybody to some extent is in the same business in this post-war, Cold War world of trying to understand the environment we're in.

KERRY O'BRIEN: You're also all spying on each other, apparently.

GARETH EVANS: Oh well, I'm not going to be drawn into any comment on any matter....

KERRY O'BRIEN: It's a bizarre world, I have to say.

GARETH EVANS: [...] of that kind, but I mean there is a sense in which there's a great deal more interdependence in the world as we now know it than there was. But there's still....

KERRY O'BRIEN: But there's also a greater potential for conflict of interest in what you trade here with Britain or the United States, what you trade there with Indonesia or Malaysia or so on, or Japan.

BRIAN TOOHEY: But isn't that where the pressure comes, from the Indonesians. If you want to swap this stuff, they'll want stuff on East Timorese dissidents within Australia, and it would be only natural....

KERRY O'BRIEN: Presumably Australia can always say no.

BRIAN TOOHEY: We can always say no, and then it makes the relationship harder. They say we won't swap this .. we're trying to build a relationship.

KERRY O'BRIEN: But what's your alternative?

BRIAN TOOHEY: Not to do it. Not....

KERRY O'BRIEN: Not to have any intelligence gathering at all?

BRIAN TOOHEY: No, no, no. To just say point blank, we will not get into any swaps of intelligence which can put anyone at risk, and where the cost - and there will be costs in that; they'll be annoyed about it.

KERRY O'BRIEN: Does that happen now?

GARETH EVANS: Well, I'm not at liberty to comment on what happens now. But, I mean, Brian keeps inventing fanciful extreme examples to shore up a pretty shoddy old case.

The truth of the matter is that we do need to continue to have sources of intelligence from a whole variety of avenues. We're going to go on pursing that. Some of that will involve co-operative activity with other countries, other agencies, including those with which we've been traditionally associated. But for God's sake give us some credit for some applicability of civilised values in these matters. I mean, governments do have a responsibility and they exercise it.

KERRY O'BRIEN: Very briefly. To the extent that you've got the ultimate responsibility on the yea or nay of intelligence operations, how often do you find yourself as Foreign Minister making judgments about giving approval or disapproval to foreign intelligence operations?

GARETH EVANS: Reasonably often, because I try and keep a close watch on....

KERRY O'BRIEN: On the watchers.

GARETH EVANS: ....what ASIS is actually doing. I mean, I think that's very much part of my responsibility.

KERRY O'BRIEN: So how often do you find yourself knocking operations back?

GARETH EVANS: Beyond that, Kerry, I'm not going to comment. I mean, I watch very closely what they do and any operation of any particular significance, it does require my personal approval.

KERRY O'BRIEN: But I'm not asking you to give away specific secrets here. How often do you find yourself knocking something back?

GARETH EVANS: Well, I'm just not going to comment on that because it's not helpful to do so.

KERRY O'BRIEN: Alexander Downer, I haven't involved you in this because I know that broadly your view is of a bipa rtisan nature on the issue of accountability and media responsibility. We're out of time. I'm afraid we're going to have to leave it there. But thanks very much to the three of you for joining us.