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Intelligence and Security - Royal Commission - Reports - 4th Volume I


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I

Parliamentary Paper No. 248/1977

The Parliament of the Commonwealth of Australia

INTELLIGENCE AND SECURITY

Royal Con1mission

Fourth Report

Volume I

Presented by Command 25 October 1977

Ordered to be printed 27 October 1977

The Commonwealth Government Printer

Canberra 1978

Printed by C. J. THOMPSON , Commonwealth Government Printer, Canberra

FOURTH REPORT

Para Volume Page

CONTENTS OF REPORT I, II, i - xi

III

Part

A INTRODUCTION 1 I & III 1

(a) The Australian Security Intelligence Organization 2 1

(b) Scope of this report • 7 3

(c) Conduct of this inquiry • 16 5

(d) Publicity to be given to

this report • 24 8

B THE SCOPE OF SECURITY INTELLIGENCE 25 I 10

(a) The Constitutional basis 27 11

(b) Espionage 38 18

(c) Active measures . 42 27

(i) Agents of influence 44 28

{ii) Disinformation and deceptive information 50 31

{iii) Other forms of clandestine or deceptive action 53 33

{d) Subversion 55 34

{e) Sabotage . 84 55

{f) Terrorism 89 58

(g) Domestic activity related to violence and subversion abroad 102 65

(h) Australia's security intelligence needs . 104 67

i

Part Para Volume Page

c FUNCTIONS OF ASIO 105 I 68

(a) General standards to be observed . 114 70

(b) Intelligence collection 125 73

(i) Telephone interception 140 80

(ii) Interception of telegrams and telex and other transmitted messages 144 81

(iii) Listening devices 146 82

(iv) Mail interception 148 84

(v) Access by ASIO to

other records systems . 152 86

(vi) Entry and search of premises 159 89

(vii) Surveillance 167 93

(viii) Human sources 173 96

( ix) Private intelligence organizations 183 100

(c) ASIO's records 188 102

(i) ASIO' s requirements 188 102

(ii) Access to ASIO records by members of the public . 198 106

(d) Assessing intelligence 200 108

(i) The nature of

assessment 2(H 108

(ii) The skills needed 2 08 111

(iii) Credibility and reliability 217 113

(e) Intelligence dissemination 222 114

ii

Part Para Volume Page

c (Cant) I

(i) The discretion to (i) communicate security intelligence 222 114

(ii) Unauthorized or improper disclosure 226 116

(iii) Communication to government 230 118

(iv) Particular cases 235 120

(a) The private sector 236 121

(b) Educational institutions 242 124

(c) Trade unions . 243 125

(d) The press and other

media 245 12 7

(e) State authorities and instrumentalities 256 131

(f) Security checks for access . 261 133

(i) Assessment criteria 2 64 135

(ii) Security checking system 286 144

(g) Security checks in "immigration" cases 297 150

(i) Vetting practice 2 97 150

(ii) Appeals 306 153

(iii) ASIO's immigration posts and liaison . 307 154

D ASIO AND GOVERNMENT 32 0 I 160

(a) Ministerial responsibility 331 163

(i) The Attorney-General and ASIO 336 166

iii

Part Para

D (Cont)

(ii) The Prime Minister and ASIO • 367

(iii) The Prime Minister's advisers • 378

(iv) Other ministers and ASIO • 382

(v) Departmental officials and ASIO • 383

(vi) The office of

Director-General of Security

(b) ASIO's relations with

• 384

departments . • 393

(c) The carrying out or enforcing of measures for security • 403

(i) Departmental security • 414

(ii) Classification of in-formation 423

(iii) Departmental security officers 431

(iv) General security policy and the "Protective Security Handbook" . . 433

(d) Co-operation with the police and in liaison with overseas services (i) ASIO and the police

(ii) Foreign liaison .

440

440

449

(e) Accountability to the Parliament and people . . • . . 457

(i) Parliament 457

(ii) Accountability to the public 468

(f) Accountability for funds 472

iv

Volume Page

I

179

183

186

186

187

190

193

197

201

205

.no :no 214

217

217

222

225

Part

E ASIO's EFFECTIVENESS

F FINDINGS

(a) The need for a security service

in Australia (b) The scope of security

intelligence (c) The functions of ASIO

(i) Standards to be observed by ASIO

(ii) The collection of security intelligence . (iii) ASIO's records (iv) Assessment of

intelligence . (v) Intelligence dissemination

(vi) Security checks for access .

(vii) Security checks in II immigration n cases

(d) ASIO and government

(i) Ministerial responsibility (ii) ASIO's relations with departments

(iii) Carrying out or enforcing measures for security (iv) co-operation with the

police and in liaison with overseas services

v

Para Volume

471:! III

657 I

657

661

662

662

666

670

674

677

681

685

687

689

698

699

705

Page

11

229

229

229

231

231

232

234

235

235

236

238

239

239

241

241

2 42

Part Para Volume Page

F (Cont) I

(v) Accountability to Parliament and people . . 708 243

(vi) Accountability for funds . 712 2 44

(e) ASIO's effectiveness 715 III 75

(f) ASIO and the police 733 III 79

(g) ASIO's overseas liaison 738 III 80

(h) Finance 740 III 80

G RECOMMENDATIONS 744 I 2 45

(a) Amendments to the ASIO Act . 747 245

(b) Other legislation 772 2 57

(c) Policies and practices to be

followed by the Government and ASIO 775 2 57

(i) Administration of the ASIO ACt . 775 2 57

(ii) Ministerial control and responsibility 777 258

(iii) Bipartisan aspects 779 259

(iv) Parliamentary responsibility . 781 2 59

(v) Location of ASIO's office . 782 2 60

(vi) Office of the

Director-General of Security . 783 260

(vii) Accountability for funds . 784 260

(viii) Standards to be observed by ASIO in investigations 786 2 61

vi

Part Para Volume Page

G (Cant) I

(ix) Intrusion into privacy 7B7 261

(x) Relations with private intelligence organizations 7B9 262

(xi) Relations with departments 790 262

(xii) Intelligence assessment 794 263

(xiii) Intelligence dissemination 796 2 64

(xiv) ASIO's records 79B 2 64

(xv) Matters of security vetting BOO 264

(a) Checking for access BOO 2 64

(b) "Immigration" checking . B04 2 65

(xvi) Co-operation with police and in foreign liaison BlO 2 67

(a) Foreign liaison BlO 2 67

(b) Police Bl3 26B

(xvii) Publicity to be given to this report Bl4 26B

(d) ASIO's effectiveness . 81B III B2

(e) Relations with the police B3B III 85

(f) Overseas liaison B4B III B7

(g) Financial matters B50 III BB

vii

APPENDIX Para Volume

4-A

4-B

4-C

4-D

4-E

4-F

4-G

4-H

THE 1949 CHARTER OF ASIO

THE 1950 CHARTER OF ASIO

DIFFERENCES BETWEEN ASIO CHARTERS OF 1949 AND 1950

AUSTRALIAN SECURITY INTELLIGENCE ORGANIZATION ACT 1956-1976

CRIMES ACT 1914-1975 PART VII ESPIONAGE, OFFICIAL SECRETS AND PROHIBITED PLACES

PROBLEMS RAISED IN PART VII OF CRIMES ACT 1914-1975

(a) General criticisms . .2

(b) Particular criticisms and problems .8

ESPIONAGE AND EXPULSION CASES

DEFINITIONS OF SUBVERSION

(a) Australia

(b) United Kingdom .

(c) Canada .

(d) Malaysia

viii

. 5

.6

• 8

11

II

II

II

II

II

II

II

II

1

4

8

12

21

34

34

36

48

73

74

76

77

80

APPENDIX Para Volume Page

4-H (Cent) II

(e) Singapore . 12 80

(f) New Zealand 13 81

(g) United States of America . 14 81

(h) Federal German Republic 17 83

(i) Other non-official views 18 84

4-J

THE DRAFT SUBMISSION OF THE US DEPARTMENT OF JUSTICE I AND TESTIMONY OF HON.EDWARD H. LEVI, THE US ATTORNEY-GENERA!. CONCERNING

THE DRAFT SUBMISSION TO US HOUSE OF REPRESENTATIVES COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS ON

11 FEBRUARY !976 II 100

4-K

QUESTIONS OF LEGALITY ARISING IN RELATION TO CERTAIN INTELLIGENCE COLLECTION OPERATIONS II 149

(a) Telephone interception 1 149

(b) Interception of telegrams and telex and other transmitted messages 6 151

(c) Listening devices 10 155

(d) Mail interception 17 160

(e) Statutory prohibitions concerning information 25 165

(f) Entry and search of premises 34 169

4-L

MATTERS OUTSTANDING FROM THE SECOND REPORT II 176

(a) Matters deferred in second report 2 176

ix

APPENDIX Para Volume

4-L (Cont)

4-M

4-N

4-P

4-Q

(b) ASIO, the Security Appeals Tribunal and employer authorities (i) Original appointment

to public service

(ii) Promotion or transfer of a public servant

(iii) New security checking of a public servant

(iv) Dismissal of a public servant

(v) Persons serving in the Defence Force

(vi) Employees of "defence contractors"

(vii) Other appeals, inquiries or reviews

(c) Cases other than "Austral ian Government employees", "defence contractors'" employees and

3

8

10

12

14

15

16

17

"immigration" cases 21

(d) Indemnification of referees 29

(e) Checking of security assessments 33

SECURITY CHECKS IN "IMMIGRATION" CASES

ASIO AND THE POLICE

ASIO's OVERSEAS LIAISON

ASIO - FINANCIAL ADMINISTRATION

X

II

III

III

III

III

179

183

185

187

188

189

189

190

193

197

198

89

118

135

146

APPENDIX

4-R

ASIO - PERSONNEL MATTERS

xi

Para Volume

III 170

AC ASIO BfV

c

CIA CJ CLR

COIN TEL PRO Cmnd Cont (or

Ctd)

CPA CPA (M/L) CPD Ctd (or

Cont)

DFA DG OOB Doc

edn E.O. ER F

FADG FBI GRU

Hon IDC IRA KGB

MPs MS NATO No NSW NZ NZLR NZSIS

p (or

para

(INT)

pp)

ABBREVIATIONS USED IN VOLUMES I AND I I OF THIS REPORT

Appeal Cases Australian Security Intelligence Organization Bundesamt fur Verfassungsschutz (Federal Office for the Defence of the Constitution) Chapter Central Intelligence Agency (USA)

Chief Justice Commonwealth Law Reports Counter intelligence programme Command Continued

Communist Psrty of Australia Communist Party of Australia (Marxist/Leninist) Commonwealth Parliamentary Oebates Continued

Department of Foreign Affairs Director-General Date of Birth Document. (A document submitted to the

Commission by a department or agency. The prefix identifies the originating agency; eg A ASIO

Edition Executive Order English Reports Folio First Assistant Director-General (Intelligence) Federal Bureau of Investigation Glavnoye Razvedyvatel' noye Upravleniye

(Main (Military) Intelligence Directorate) Honourable Interdepartmental Committee Irish Republican Army Komitet Gosudarstvennoy Bezopasnosti

(State Security Committee) Members of Parliament Manuscript North Atlantic Treaty Organization Number New South Wales New Zealand New Zealand Law Reports New Zealand Security Intelligence Service page or pages paragraph

xi i

PLO PM PM & C

pp (or p)

PSB pt

Qld or (Qld)

RUSI s (or ss)

SA SPA ss (or s)

sub-s UK UKSS USA (or US) u.s. c.

USSR Vol WA WN (NSW)

Palestine Liberation Organization Prime Minister Prime Minister and Cabinet (Department of) pages or page

Public Service Board part Queensland Royal United Service Institute

section or sections South Australia Socialist Party of Australia sections or section

sub-sect ion United Kingdom United Kingdom Security Service United States of America United· States Code Union of Soviet Socialist Republics

Volume Western Australia Weekly Notes (New South Wales)

Xi i i

FOURTH REPORT

A. INTRODUCTION

This report is about the Australian Security

Intelligence Organization (ASIO). ASIO is, and has

been since it was set up in 1949, Australia's internal

security service. It is required b y statute to carry

out certain intelligence and advisory functions for the

protection of the Commonwealth from acts of espionage, sabotage and subversion.

(a) The Australian Security Intelligence Organiza tion

2. "A great increase in Australian security tasks

and responsibilities has made it necessary to re-establish

a separate security service", Mr Chifley said on

2 March 1949, when he announced that Mr Justice Re e d

would "establish and organize an Australian Security

Service". [4-l]

3 . The Governme nt's d e cision to set up ASIO came

in the knowledge that the Commonwealth Investigatio n

Service had been supposed t o fulfil security dutie s.

But it had been found wanting . The UK Security Servi ce

4-l Digest o f Decisions and An nouncement s a nd Imp or tan t Speeches by the Pr ime Mi nis t e r , No 142, Australia, 24 J a nua r y to 6 Ha r ch 1 949 ,

pp Sl-52.

248 18177- 2

l.

2.

had very strongly urged Mr Chifley to set up a new

service and he eventually agreed. [4-2]

4. Mr Justice Reed was given a Charter, which

the Prime Minister signed on 16 March 1949. [ 4-3]

5. The Charter was more a statement of principles

of activity than a document of incorporation or of

authority. It remained, together with relevant minutes

of the Federal Executive Council, the only authority

for ASIO's existence and operations until 13 December

1956, when ASIO was established by statute. [4-4]

4-2 Particulars of these matters will be found in my consultant's report. 4-3 Reproduced in full in Appendix 4-A. The

Australian Charter was based on that given to the UK Security Serv ice (UKSS). In 1950, a further Charter was issued to Colonel Spry by Mr Menzies (as they then were).

It is reproduced in full in Appendix 4-B. The

second Charter differed in some respects from the 1949 Charter; the differences are analysed in Appendix 4-C. I am advised by ASIO that both Charters may now be declassified; at the time of their issue

they were classified Secret. In this report, I sha ll refer to the "1949

Charter", or the "1950 Charter", as appropriate. 4-4 The Aus tralian Security I ntelligence Organization Act 1956-1976 is reproduced in full in Appendix 4-D. I shall refer t o it

as the "ASIO Act".

6. My inquiry is therefore about the organization

established by the Charter and as continued in existence

by the ASIO Act.

(b) Scope of this report

7.

8.

The essential part of my terms of reference is:

"in the light of past experience, and having regard to the security of Australia as a nation, the rights and responsibilities of individual persons and future as well as present needs, to make recommendations on

the intelligence and security services which the nation should have available to it and on the way in which the relevant organizations can most efficiently and effectively serve

the interests of the Australian people and Government ... "

The letters patent als.o specify a number of

particular matters. I shall cover these in the course of this or other reports. I have taken the view that

my terms of reference require me to make an overall

review of ASIO.

9. I have started by considering whether Australia

needs a security service such as ASIO was created to

provide. That leads to a consideration of what is, or

should be, the proper place of a domestic security

service in a liberal democracy like Australia.

10. I have had in mind throughout myinquiries that

a balance between the rights of indiv idual persons and

the preservation of the security of Australia as

3.

4.

a nation is no simple or easy thing to achieve. But, "in

the final analysis, public safety and individual liberty

sustain each other". [4-5]

11. In part B, therefore, I shall begin with a review

of the scope of security, as now laid down by statute.

That examination will show the need for a security service.

I shall make suggestions for better definiti9n of ASIO's

role and for the inclusion of some new activities within

the ASIO Act definition of "security".

12. ASIO's task is the collection of security

intelligence by investigation of people and organizations of security interest and for purposes "relevant to security",

as that expression is used in s 5 of the ASIO Act, and

not otherwise. The results of those investigations are

compiled for communication to those in government or

elsewhere who have the responsibility of acting on matters

within their competence. In part C, therefore, I

e x amine the process of investigation and communication

of security information by ASIO and ancillary matters.

13. ASIO is an organ of the executive government

of the Commonwealth. Although many of its operations must

4-5 Commission on CIA activities within the United

States, Report t o t h e Washington,

June 1975, (the "Rockefeller Report"), p 5 .

be secret, it is nevertheless answerable to ministers,

and through them to the Parliament and the people.

Part D deals with questions of accountability and

makes some suggestions for in present

practices.

14. As an organization, ASIO needs management.

Over a number of years, ASIO's management was not as

good as it should have been. If Australia needs

a security service - and I shall show that it does -

it must be well run. Those working in it must have

high personal qualities.

15. I found that matters of management - definition

of goals, financial affairs, staffing and recruitment,

communication and records procedures - had not had the

attention in ASIO that they needed. In part E (which in my view should not be published) , I examine these

and related matters.

(c) Conduct of this inquiry

16. Public hearings were held in all capital

cities. By far the greater number of witnesses were, however, heard in private. I have interviewed some

hundreds of past and present ASIO members.

5.

.. ;

·'

6.

17. I have had the benefit of talks with senior

officials and some retired officials with responsibilities or experience in security matters. I interviewed former

and present ministers (including prime ministers) with

responsibilities in these matters.

18. I received submissions and information papers

in some number from ASIO. But I must say those

submitted in the early part of my inquiry, on examination,

proved to be of neither the quality nor reliability one

might have wished.

19. Accordingly, I took steps to make it clear to

the management at the time that I had the right and the

duty to inquire into any questionJ to speak with any

witness, to examine any paper, no matter how secret or

sensitive the subject was represented to be. I am satisfied that, in the latter part of my inquiry, the management has understood that point and has co-operated

accordingly. I would like to make it quite clear that

the DG, Mr Justice Woodward, and the previous DG, Mr

F. Mahony, have always given me their full and ready

co-operation.

20. In part on account of the unsatisfactory state

of the submissions and other evidence from ASIO management,

I found that I or my staff had to examine hundreds of

ASIO files. I am bound to record that I found ASIO's

files in such disorder that, in the time that has been

available to me, I have been quite unable to establish

the truth or otherwise of many of the particulars of

matters alleged in evidence, or raised with ASIO as

the result of other inquiries. I have taken the view,

however, that my task is to make recommendations for

the future rather than to seek to track down the

truth or otherwise of past errors or alleged past errors.

21. I found in ASIO a large number of most

capable and intelligent members, many of them of

junior or middle rank, of whom p. large number came to

the Commission with information and advice which I

found most helpful. I should record here that no such

contact was ever made in a way that might have

endangered national security. I and my staff made

special provision to ensure the security and privacy

of such contacts.

22. Finally, I have had the benefit of talks with

senior security intelligence officials overseas. They

gave me the benefit of their knowledge and experience in

the context of much larger security services than ASIO.

But they also spoke to me very frankly about their

perceptions of ASIO, with whom they were in formal liaison.

7.

8.

I am indebted to these officials for their assistance.

Their advice has often supported me in conclusions

I have otherwise reached in regard to ASIO.

23. I have, as I said, had access to many files

and records of ASIO, including matters of internal ASIO

management and operations. I took the view that it was

essential for me to make inquiries on such matters as ASIO modes of internal communications, cover stories,

operating procedures, file and personnel security and

so on. These are not matters to which any outsider

should often or normally have access. They are matters

no government department, specifically including the

Attorney-General's Department, should have access to in

any sustained or regular way. I shall not divulge or

refer to them in this report, save to the extent that the

context may sometimes dictate.

(d) Publicity to be given to this report

24. I shall recommend that part A (in this abridged

form) and parts B, C and D be published, together with

Appendices 4-A to 4-L inclusive. In my view, these

parts and appendices do not disclose any matters which should be kept secret for national security

reasons. The Director-General of Security, whom I

consulted on this point, told me that he was not

conscious of any matter in the section of this

report that I have recommended for publication which,

for national security ' reasons, should not be

published. Part E, and Appendices 4-M to 4-R

inclusive, should not be published for reasons of national security.

9.

10.

B. THE SCOPE OF SECURITY INTELLIGENCE

25. In my second report I stated shortly the

reasons for my conclusion that there was a need for

an organization such as ASIO in Australia. [4-6]

In this part I shall enlarge on those reasons. In

doing so I shall deal with questions relating to subversion

which I left for later.

26. The justification for the existence of a

security organization in a democratic country should

be reflected in its charter and in particular in its

functions as presented by that charter. The present

functions of ASIO are to be found in s 5 of the ASIO

Act with which is to be read the definition of "security"

in s 2. They read:

"2. In this Act, unless the contrary

intention appears 'security' means the protection of the Commonwealth and the Territories from acts of espionage, sabotage or subversion, whether directed from, or intended

to be committed, within the Commonwealth or not". "5. (1) The functions of the Organization are -

(a) to obtain, correlate and evaluate intelligence relevant to security and, at the discretion of the Director-Gener·al, to communicate

any such intelligence to such persons, and in such manner, as the Director-General considers to be in the interests of security;

4-6. Second report, paras 10-19.

(b) to advise Ministers, where the Director-General is satisfied that it is necessary or desirable to do so, in respect of matters

relevant to security, in so far as

those matters relate to Departments of State administered by them or to authorities of the Commonwealth established by or under Acts administered by them;

and

(c) to co-operate with such Departments of State and authorities of the Commonwealth and, so far as is practicable, with such Departments

and authorities of the States and of other countries as are capable of assisting the Organization in the performance of its functions.

(2) It is not a function of the

Organization to carry out or enforce measures for security within a Department of State or authority of the Commonwealth."

(a) The Constitutional basis

27. ASIO is a Commonwealth instrumentality. It was

first established by administrative action. Since 1956 it has operated pursuant to the provisions of the Commonwealth statute. Its functions, whatever they be,

must fall within the scope of the Commonwealth's

constitutional powers. In determining what those functions are now, and in making recommendations as to

what they should be in the future, the constitutional

powers of the Commonwealth must provide the basis, and

mark the outer limit, of its activities.

11.

12.

28. There are various heads of power upon which

the Commonwealth can draw in order to support ASIO's

existence. The principal power is probably in s5l(vL)

of the Constitution:

"The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth".

Section 52 gives the Commonwealth legislative power

with respect inter a Ua to:

29.

" (i) The seat of government of the

Commonwealth, and all places acquired by the Commonwealth for public purposes: (ii) Matters relating to any

department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth ... "

Without being an exhaustive list, other powers

are to be found in the following placita of s51:

(xix.) Naturalization and aliens.

(xxvii.) Immigration and emigration.

(xxix.) External affairs.

(xxxix.) Matters incidental to the execution

of any power vested by this

Constitution in the Parliament or

\

30.

\ in either House thereof, or in the \

Government of the Commonwealth, or \

the Federal Judicature, or in

I

any department or officer of the

commonwealth.

The basic source of executive power is in

s61 of the Constitution, which provides that the

"executive power of the Commonwealth is vested in the

Queen and is exercisable by the Governor-General as

the Queen's representative, and extends to the execution

and maintenance of this Constitution, and of the laws of

the Commonwealth".

31. Another head of power is that implied from

the very existence of the Commonwealth. On one view,

the Commonwealth's powers r elating to subversion arise

from this implied power. Thus Dixon J. (as he then was)

said in the Australian Communist Party case:

"I take the view that the power

to legislate against subversive conduct has a source in principle that is deeper or wider than a

series of combinations of the words of s5l(xxxix.) with those of other constitutional I prefer

the view adopted in the United States,

13.

14.

which is stated in Black's American Constitutional Law (1910), 2nd ed., s 153, p 210, as follows: ' ••• it is

within the necessary power of the federal government to protect its own existence and the unhindered play of its legitimate activities. And to this end, it may provide for the punishment of treason the suppression of insurrection or rebellion and for the putting down of all individual or concerted attempts to obstruct or interfere with the discharge of the proper business of government ••• '"

[4-7]

Other possible views are that they arise from the

Commonwealth's executive power, [4-8] or from the

incidental power ins 51 (xxxix.). [ 4-9]

32. The principal reason for the existence

of ASIO must be a defensive need which is not

otherwise fulfilled. In his report on the Profumo

Affair, Lord Denning said that the cardinal principle of security service operations is that they are to be

used for one purpose, and one purpose only, the Defence

of the Realm. [4-10] Sir Robert Menzies said in 1956

4-7

4-8 4-9

4-10

Austr alian Communist Party v. T he Co mm onweal t h (1950-1951) 83 CLR 1 at 188.

See Constitution s Sl(vi.) and s 61. See, eg, Burns v. Rznsley (1949) 79 CLR 101

at 109-110, per Latham C.J. Lo r d Denning ' s Report., Command 2152, September 1963, (the "Denning Report"), para 230.

that ASIO should be regarded as the nation's fourth arm of def nee. [4-11] This view was emphasised in

the 1949 1950 Charters. They provided respectively

that the orl nization should be part of the "Defence

Forces" and the "defence system" of the Commonwealth.

[4-12] \

33. An organization truly fulfilling such a role

is entitled to the confidence and respect of the nation. It is only in performing such a role that ASIO will be

able to attain a standing comparable with that of the

various defence services. My recommendations will be

directed to this end.

34. Australia's defence system is primarily

directed against armed attack by a foreign power, and

no doubt would be used to defend the Commonwealth of

Australia against an armed revolution or uprising.

But there are many ways, short of war, in which a

foreign power can weaken another, or strengthen itself

4-11 CPD, House of Representatives, 24 October 1956, p 1747. 4-12 1949 Charter, para 5 and 1950

Charter, para 5.

15.

16.

vis-a -vis that other, by clandestine activities in

the latter's territory. There are likewise many ways

in which a country can be weakened and the overthrow

of its government planned and organized by

clandestine activity of a wholly or substantially

domestic origin. The forms of these attacks have

varied over past centuries and will no doubt vary in

the future.

35. At present, I think Australia is open to

attack by these types of activities: Es pionage , which is the covert

collection of intelligence,

generally though not necessarily

secret intelligence. tive mea sur>es ", a general

expression to cover a variety

of activities by which a power

can weaken power, or

strengthen itself vis-a -vis that

other power. These activities

can be conveniently classified in

this way:

(i) the establishment of

"agents of influence";

the dissemination of

"disinformation";

other forms of clandestine or deceptive

action.

Subversion, which is activity whose

purpose is, directly or ultimately,

to overthrow constitutional

government, and in the meantime to

weaken or to undermine it.

S::r. b otage , which is the destruction,

damaging or impairment of buildings,

installations, works, places or things used or held for defence

purposes, or the destruction,

damaging or impairment of which

would be useful to an enemy or a

foreign power.

36. Protection of Australia against these various

activities should be ASIO's principal function. In addition there are two other kinds of activity which

17.

18.

should fall within ASIO's jurisdiction, although they

may not always involve an "attack" on Australia. They

are:

• which is politically

motivated violence, or the threat

of that violence.

• The organization in Australia of,

or of assistance for, violent

poZitiaaZ aativity in foreign

countries.

37. I shall deal with each of these types of

attack in order.

(b) Espionage

38. Espionage is spying. The expanded ambit of

modern espionage was described in the Royal Commission

on Espionage (the "Petrov Commission") as follows:

"In the days when wars were fought by professional armies and when international political affairs centred largely on military alliances, espionage was in the main connected with military aims and objects. But war now involves not only the

armed combatants but the whole political, economic, and social life of the community. The aims of

espionage have likewise expanded, so that no part of the machinery of government, or of the organization of civil life, can be regarded -

The

can

\

\ even in times of peace - as exempt :6rom its attentions." [4-13] main of power under which the Commonwealth espionage is the defence power in s Sl(vi.) of the Constitution, coupled with the incidental power in s Sl(xxxix.). No doubt the executive power in s 61, the external affairs power in s Sl(xxix.) and the implied power I have referred to may provide additional bases of power. 39. Up to 1960, Part VII of the Crimes Act 1914 as amended contained provisions relating, inter to espionage (called "unlawful spying"), official secrets (called "unlawful communications of secret information") and prohibited places. These provisions were substantially amended in 1960, and some have been further amended since then. Part is now entitled "Espionage and Official Secrets" and contains detailed provisions, some of which have been controversial, dealing with these and related matters. Sections 77 (Interpretation), 78 (Espionage) , 79 (Official Secrets) and 80 (Prohibited places) are set out in Appendix 4-E. A statement of the problems which these provisions raise is to be found in Appendix 4-F. I do not regard it as being within my Terms of Reference to make recommendations about the amendment of these sections of the Crimes ActJ although they define the law 4-13 Report of the Royal Co mm ission on Canberra, 1955, (the "Petrov Report"), para 36. 19.

2 0.

applicable to important matters of security concern.

However the contents of Appendix 4-F suggest that they

should be closely looked at by the proper authorities.

40. In my second report I referred shortly to

espionage in Australia and to the need to have some

organization to continue to perform ASIO's present

function to combat it. My subsequent investigations

have strengthened the view which I then expressed.

Much of the material that I have seen cannot be made

public. But since I have heard views expressed by

some Australians that allegations of espionage in

Australia are alarmist and exaggerated, that Australia

is too remote and too unimportant to attract much attention from foreign intelligence services, that it is inconceivable that Australians should be traitors to their country, and that the absence of prosecutions

for espionage confirm these views, I think I should

mention some matters which can be stated publicly and

which I regard as supporting the conclusions I have

come to:

(a) Before the second world war, there

was little foreign official

representation in Australia, and

Australia was less important in the world scene than it is now.

However, as the Pinner Committee

4-14

which was appointed by the Chifley

Government to review the civil

staffing of wartime activities of Commonwealth departments and

instrumentalities, stated in its report, of 13 September 1945, on the Security Service:

"Documents captured from enemy-held territory have confirmed the suspicions that there were in peacetime a not inconsiderable body of enemy espionage agents, German, Japanese and Italian, in this country". [ 4-14]

(b) The Petrov Commission came to the

conclusion that from 1943 up to the

time of Petrov's defection, USSR

intelligence agents had been operating in Australia, and that they had successfully per suaded numbers of

Australians to reveal information

about classified material to which

Committee of Review - Civil Staffing and Wartime Activities (the "Pinner Committee"), - Report on Security Service, para 9 (provided to the Commission as Attachment (v)

to aide memoire on Doc Al3, p 1).

21.

22.

they had access. [4-15]

Independently of those findings, I am

completely satisfied that the USSR

intelligence services were operating in Australia up to the time of Petrov's

defection, and that a number of

Australi ans, some consciously and

some unconsciously, did reveal information

about classified material to USSR

intelligence officers or their agents.

4-15 Petrov Report, op cit, pp 2 96-299. In para 1107.18. of the Petrov Report the Commissioners said inter aZia : "In 1948 information then in the hands of the Crown gave rise to

suspicions that Security measures in Australia, particularly in the Department of Ex ternal Affairs, were inadequate. In consequence, Mr. Chifley , the then Prime Minister,

formed the present Security Service." The Petrov Commission reported that the suspicions held in 1948 were well founded, the information in the hands of the Crown having been confirmed and much amplified by material and evidence before the Petrov Commission

(par a 1107.20.). Ma t e ria l p l aced

bef ore me , both in Austra l ia a nd abroad, h a s s a tisfie d me t hat this finding was

correct.

4-16 4-17

(c) Following Petrov's defection in 1954 the USSR

Embassy in Canberra was withdrawn. Among the

general conclusions of the Petrov Commission,

which reported in 1955, was the finding that

the USSR Embassy papers Petrov brought with

him on defection were "authentic" documents and

" From these documents alone it plainly appears that for many years the Government of the USSR had been using its Embassy at Canberra as a cloak under which to control and operate espionage organizations in Australia". [4-16] The USSR Embassy was reopened in 1959 by

I . F. Skripov.

In February 196 3 , with wide publicity, Skripov

was declared persona non gra ta following a

gov ernment decision to end his clandestine

intelligence activity in Australia. [4-17) (d) Most significant f o reign powers have

intelligence services that operate outside their territorie s. All o f these powers are now represe nted in Australia by

diplomatic missions, by tra de missions,

and in a number of other official and

Report, o p cit, para 110 7. 5.

A brief description of the Skripov Case appears in Allen Dulles' book, The Cr a ft o f Intellig ence , London, 1963, pp 117-119 . The Australian Press also gave this case wide cover a ge in early 1963.

- - - - --- -----

2 3.

24.

unofficial ways. Some of them now have intelligence officers operating

clandestinely in Australia. The

numbers of these are much

larger than in the 1940s and 1950s, and are growing. For example, the

proportion of USSR intelligence

officers represented in that country's diplomatic mission in Australia is

consistent with overseas estimates

of USSR representation in the USA and NATO countries. [4-18]

4-18 Figures for Soviet and Satellite representation in Australia were provided by ASIO. For US estimates see the US Senate, Final Report of the Select Committee to Study Governmental Ope r ations with r espect to Intelligence Report No

94-755, Washington, 1976, (the "Church Report"), Book 1, Fo r eign and Military pp 163-164. The London Sunday Telegraph of 9 May 1976, in an article entitled "Foreign eyes in Britain", quotes the Chairman of the

Institute for the Study of Conflict, Professor Leonard Shapiro, as saying: "We have estimated that around half of those [Soviets] accredited as diplomats to .NATO

countries are usually engaged in intelligence operations of one kind or another. Russia's policy of detente has, in fact increased, for the Kremlin, the importance of subversion in the West. Apart from

industrial and military spying, the aim is to spread propaganda and sow disinformation . They are out to create a favourable climate of opinion."

4-19

(e) Australia is in possession of a great

mass of classified material, some of

which it shares with its allies, and

some of which it holds itself. The

importance of this material varies,

but some of it is of very great

importance indeed, and much of it is

of considerable significance. It is

crucial that some of this material be kept secret.

(f) The Canadian Royal Commission, appointed

following the defection of the USSR

intelligence officer Igor Gouzenko in September 1945, said in its report:

"Perhaps the most startling single aspect of the entire Fifth Column network is the uncanny success with which the Soviet agents were able to

find Canadians who were willing to betray their country and to supply to agents of a foreign power secret information to which they had access

in the course of their work, despite oaths of allegiance, of office, and of secrecy which they had taken". [4-19]

The Report of the Royal Commission to inv estigate the facts relating to and the circum s tances surrounding the communication _ . by public officials and

othe r pe r sons in positions of trust of

secret and confidential information to agents of a foreign Otta wa, 1946,

p 57.

2 5.

26.

Soviet officers have had similar success in

many other countries, Great Britain

and the United States. They have had this

success in the past in Australia. There is no

reason to think that they and intelligence officers of

other countries are not seeking to achieve a

similar success now.

(g) In response to a request from this. Commission,

ASIO has prepared a statement giving brief

details of (i) Ten espionage cases occurring

during the last five years.

(ii) Ten expulsions of persons for intelligence activities occurring during the last ten years.

This statement appears at Appendix 4-G.

(h) The recent inquiry into the NZ Security Intelligence

Service by the NZ Chief Ombudsman reported

this finding of the NZ SIS:

"There has been evidence of espionage activity in New Zealand. In 1962 two Soviet diplomats were required to leave the country as they were involved in espionage activity. The expulsion of the Soviet spy, Skripov, in Australia in 1963 developed from the cultivation of a person in New Zealand by Soviet diplomats prior to this. It is known

that KGB Officers have been working out of the Soviet Diplomatic Mission in Wellington for many years. One of these was Razgovorov, who left New Zealand in 1974, following the arrest of Dr Sutch. It is estimated

41.

that the number of Intelligence Officers among Soviet Diplomatic Mission staff is seldom below 50 percent and this proportion would be higher if the calculation were

applied only to those with diplomatic status." [4-20]

A large amount of intelligence held by ASIO

which cannot be made further substantiates the

conclusion I have come to. Perhaps the not inconsiderable

amount of classified material leaked to the press in

recent times throws some light on the Commonwealth's need

for protection. If journalists can obtain this amount of

material, what is it likely that a most highly professional

and technically equipped team of intelligence officers,

applying themselves full time to the task, can obtain?

It must be remembered that covert intelligence can add significantly to intelligence obtained overtly through diplomatic, public and other sources. Depending on its

subject-matter it may greatly strengthen the position of

the power acquiring the covert intelligence against the

power from whom it has been acquired, and sometimes against

others. Australia must not be so naive as to think that it has some exemption from clandestine operations, or that it need not take steps to protect itself against them.

(c) Active measures

42. Espionage in its various forms is a serious

4- 20 NZ Security Intelligence Service, Report by Chief Omb u dsman ,We11ington, 1976, (the "NZ Ombudsman's Report"), p 18.

27.

28.

threat, but it may not be the most dangerous clandestine activity carried on by foreign powers in Australia. It may be equally important or more important for an unfriendly

power clandestinely to influence or subvert the policies

of another power, to feed it with false information, or

to take a variety of other clandestine or deceptive

actions to weaken it or confuse its people.

43. These various activities can be conveniently

classified under the general heading of "active measures", which is the translation of a Russian expression first used

to describe them. They are, or are analogous to, espionage

or subversion. The sources of the power of the Common­

wealth to investigate active measures are the same as in the

case of espionage or subversion. [4-21]

(i) Agents of influence

44. One class of active measures is the infiltration

or establishment of "agents of influence", an expression

which is really self-explanatory. The importance and priority

4-21 A significant increase in the use of active measures came to notice not long after the appointment of Alexsandr N. Shelepin as chairman of the KGB in 1958. At the time a high level decision was taken

that the USSR's intelligence services and "assets" abroad should be deployed in more active roles to influence long term trends in the western world, and especially the foreign policies of western countries. Similar policies were adopted, and are being implemented, by other communist intelligence services. See also Ladislav Bittman, The Deception Game : Cz ec h o slova k Intelligence in Soviet Political Syracuse, New York, 1972, pp 16-20.

given to this type of activity is described in a number

of works dealing with the Russian Intelligence Service.

John Barron, in his book KGB; Th e Se c r e t Work s of Soviet

Sec r et Agents says:

45.

"The most insidious and sometimes most dangerous KGB intrigue involves exploitation of what the Russians call agents of influence. Through them .the Soviet Union endeavours to develop its own disguised voices in foreign

governmental, political, journalistic, business, labor, artistic, and academic circles. While agents of influence may incidentally transmit intelligence, their

overriding mission is to alter opinion and policy in the interests of the Soviet Union. No activity of the KGB abroad has higher priority than its efforts to manipulate the

thought and action of other nations by insinuating such agents into positions of power." [ 4-22]

The use of agents of influence is being actively

pursued around the world, and there is every reason to

believe that it is in Australia; nor does the Soviet Union

have a monopoly of its use. It is a subtle policy, for,

in taking protective action against it, fine distinctions may have to be drawn between proper diplomatic activity

and the improper activity of intelligence agents.

46. Again, while some agents o f influence may

be ready traitors, there are no doubt more people who

would reject with contumely the traditional role of

4-22 London, 1974, p 26.

2 9.

30.

a traitor but who nonetheless could be induced to use

their influence, whether they may be politicians, public servants, or other persons in a position to persuade, to

have policies adopted favourable to an iriterested foreign power.

47. A person is not to be regarded as an agent of

influence merely because he does or says things, publicly

or privately, favourable to a particular foreign power

or because he has been persuaded to do so by the available

material about that power. Clandestinity of persuasion

is a hallmark of this type of operation, coupled with secrecy about its success on the part of the "agent".

48. Indeed, the agent may even be unwitting of the

effect or significance of his actions. As Ladislav Bittman, a former Czech intelligence officer, said

about these agents:

49.

"Whether he considers himself an agent or not is not important; a signed agreement or oral pact is not crucial".

What is crucial is that he be dependent upon the

intelligence service. [4-23] In agent of influence operations, ASIO's difficult function is to try to monitor

the activities of the foreign intelligence officers handling

the case for the purpose of forestalling their success.

4-23 Bittman, op cit, p 33.

(ii) Disinformation and deceptive information 50. "Disinformation" is the anglicization of

a Russian word "Dezinformatsiya", first used in the

Soviet Union in the nineteen twenties. It is false,

incomplete or misleading information passed with these

aims:

(a) to influence the political deci sions

of other governments;

(b) to reduce the effectiveness of inimical

governments, parties, organizations or

individuals;

(c) to create a favourable climate in

which to execute specific policies or

to counteract an unfavourable climate

or events.

51. Deceptive information is a term sometimes

used to describe a special branch of disinformation.

It is false information provided to an adversary in the belief and expectation that the adversary will

take action on the basis that the false information

is true. It has been used particularly in relation to war-time and other defence situations. [4-24]

4-24 See Alexander Orlov, Handb oo k of Espionage and Guerilla Warfare , University ot Michigan pp 20-23.

31.

32.

52. There is no limit to the ways in which

disinformation can be used. The information may

be distributed through public or semi-public channels.

It may be passed through a double agent to the intelligence or security service of another power. It may be passed

through an agent of influence. Or it may be passed in

any other way best designed to produce the desired

result. [4-25] Forged documents and faked _photographs may used; slight twists may be given to true facts;

every device may be used to deceive and mislead.

The amount of material which is distributed in this

way throughout the western world and countries of the

third world is immense and the problems of recognizing it for what it is are great indeed. [4-26] It is

presumably a logical extension of war-time propaganda 1 and it can be extremely effective in achieving its

intended purpose.

4-25 Bittman in his book The Deception Game describes in detail the activities of the Czechoslovak Intelligence Service, both on behalf of Czechoslovakia and on behalf of the Soviet Union, in the distribution of disinformation. 4-26 In this connection see the selection of

forgeries prepared during the period 1957-60 in Communist Forgeries , Testimony of Richard Helms in Hearings before the US Senate , Committee on the Judicia r y , Subcommittee to Investigate the Admini s t r at i o n of the Internal Security Act and other Inte r n al Security Laws , Washington, 1961.

(iii) Other forms of clandestine or deceptive action

53. The active measures thus far described have

related to information, opinions, advice, propaganda

and related matters. In appropriate circumstances,

results similar to those achieved by these measures can be achieved by various forms of clandestine and

deceitful action. Some of the activities allegedly

performed by the CIA against governments, parties,

organizations and persons thought to be inimical to

the interests of the US are examples of this type of

action. It can be assumed that the actions of the KGB

and of the intelligence services of other communist

countries at least equal and probably exceed in all

respects the activities attributed to the CIA. [4-27]

4-27

248 18177-3

In its report, the Church Committee said the term "active measures" approximates the American term "covert action", which it defined as:

"Clandestine activity designed to influence foreign governments, events, organizations or persons in support of U.S. foreign policy conducted in such a way that the involvement of the US Go v ernment is not apparent. In

its attempts directly to influence events it is distinguishable from the clandestine intelligence gathering - often referr ed to as espionage."

(Report, Book l, op cit, pp 131 and 559).

A description of certain covert action activities of the CIA appears in part VIII of the Church Report (Book 1, pp 141-161).

33.

34.

54. These various forms of active measures are

matters about which the organization responsible for

Australia's security should collect, assess and communicate intelligence. Countering active measures

should be clearly included within that organization's

charter. Some of them may be now included, but others

seem to fall outside the terms of the definition of

"security" in s2 of the ASIO Act. The Act should be

amended to remove any doubts. The appropriate

amendments are matters for parliamentary draftsmen.

One appropriate form of amendment would be to deem these

measures to be a form of "espionage"; another possibility

is to describe them under a separate heading such as "active measures". Their definition is difficult, but

perhaps an appropriate descriptibn would be

"clandestine or deceptive action taken by or on behalf

of a foreign power to promote the interests of that

power".

(d) Subversion

55. Subversion is difficult to define but is

nonetheless a very real, and may be a very dangerous,

form of activity. In para 35 I described rather than

defined it as an activity whose purpose is, directly or

ultimately, the overthrowing of the constitutional

government, and in the meantime the weakening or

undermining of it. "Overthrowing the government" does

not, of course, refer to the ousting by constitutional

methods of the political party in power for the time

being but the overthrow by unconstitutional methods

of the established constitutional government or system

of government.

56. Alternative views have been expressed as to

the basis of the Commonwealth's power to deal with

subversion. These views are not mutually exclusive.

One view bases the power on a combination of the

incidental power in placitum (xxxix.) of s51 of the Constitution with other appropriate powers, particularly

the power in placitum (vi.) as to "defence ... and the

control of the forces to execute and maintain the laws of the Commonwealth". Another view relies on the

implied power of the Commonwealth "to protect its own

existence and the unhindered play of its legitimate

activities" . [4-28] These powers would support action by the Commonwealth to defend itself against both foreign

and domestic subversion.

4-28 Australian Communist Part y v. Th e Commonweal t h . (1950-1951) 83 CLR 1, 188 per Dixon J.

35.

36.

57. At one limit (which I will call the outer limit)

subversion extends to the mounting of armed revolution;

it is the other limit (which I will call the inner limit)

that creates the difficulty of definition. The ASIO Act avoids the problem by not defining the word. It is defined

by the Shorter Ox for d En g l ish Di ctionary (for relevant

purposes) to mean "overthrow; ruin". [4-29] Some definitions

attempted in other countries appear in Appendix

58. The difficulty about the "inner limit" of

subversion is that it verges on legitimate political

activity, on rights of dissent and of opposition. Intrusion by ASIO into these areas would p rima facie infringe basic

democratic rights. Great care must be taken to achieve

a proper balance between the interest of the nation in1

maintaining these rights and its interest in security.

By such a balance the organization may hope

to avoid the opprobrium of being called a secret

political police force.

59. One answer to the difficulty of defining

subversion is to leave the matter to the judgement of

the security organization and its officers, without

guidance although often with much public criticism.

Until now it has been the response in Australia. There

is a lot to support this approach. The activities of

human beings are infinitelyvarious, and undoubtedly

4-29 Third Edn, Oxford, 1974.

a large degree of flexibility is necessary if a security

organization is to be effective to guard against

potentially subversive action.

60. However I do not think that leaving the matter

to ASIO is adequate in Australia. Here, the nature of our political climate, the importance of our political

and civil rights and liberties, as well as the importance -for its effective working - for ASIO to keep a position of

proper balance, lead me to the conclusion that to the extent

that guidelines are necessary and can be satisfactorily formulated, they should be prescribed by legislation.

61. In deciding whether any , class of subversion

can properly be the subject of guidelines I have been

assisted by asking the same question in respect of espionage. Is it necessary to have guidelines in

respect of the investigation of any class of espionage, not operational guidelines, but guidelines as to what

activities within the class should be, or should not be, investigated by a security organization? The answer is undoubtedly no. The same clear answer cannot be given

in respect of subversion.

62. Except in unlikely circumstances, (as, for

example, a civil war) espionage in Australia would be

undertaken only by or in association with the agents of

a foreign power. On the other hand subversion could be

37.

38.

undertaken by the agents of or for the purposes of, a

foreign power, or it could be of wholly or substantially

domestic origin. As in the investigation by the police

of any crime, particular actions by the security service

in the course of investigating suspected espionage may be

objectionable, but the investigation of espionage in

itself could not be regarded as involving a potential danger to democracy. It could not be so regarded because

of the very nature of espionage, no matter what form the

espionage took. A similar consideration applies to the

investigation of subversion undertaken by the agents of,

or for the purposes of, a foreign power. As with the

investigation of espionage, the surveillance or other

investigation of such foreign agents could not be regarded

as involving a potential danger to democracy, no matter

what form the subversion took. This type of subversion

should be dealt with as espionage is. But, in the case

of subversive activities of domestic origin, there is an

inherent potential danger of intrusion into proper

political activity and the resultant infringement of basic democratic and legal rights. Democracy thrives on non­

violent differences of opinion and attitudes and ASIO must be careful to avoid mistaking mere dissent or

non-conformity for subversion.

63. The distinction between what I call foreign

activities and domestic activities is elided in the

reference, in the definition of "security" in s 2 of the

ASIO Act, to specified acts "whether directed from, or

intended to be committed, within the Commonwealth or not".

The words of this definition, incorporated into s 5 of the

Act, overlook the inherent and important distinction

between these two classes of activity. So a distinction can

and should be made between ASIO's role in respect of

activities which may be prejudicial to Australia's security and which are undertaken by or for a foreign power, and

its role in respect of activities of domestic origin.

64. With domestic activities, great care and

judgement are necessary and legislative guidelines as to

the nature of the activities to be guarded against, are

appropriate and advisable. The need for a balance between

private right and public security provides a basis for the

formulation of guidelines. With foreign activities, care

and judgement are also necessary, but the nature of the

problems involved, the lack of any acceptable basis for

formulating guidelines distinguishing one form of foreign

attack from another, and above all the absence of a potential danger to democracy make strict legislative guidelines

neither appropriate nor necessary.

65. It is important to appreciate that these guide-

lines are related to the nature of subversion and not directly to the times or periods at or during which ASIO

39.

40.

should watch or investigate particular activities. Thus

an organization rejecting Parliamentary democracy may not

be subversive, but it may be appropriate for ASIO to

keep a watch on it if, in the particular case, it is

judged likely that the organization may become subversive.

I shall deal with the level of investigative activities

in which ASIO should engage in the various circumstances

in part C of this report.

66. Little material has been placed before me as to

the form of guidelines for investigations into alleged

subversive activities, but I have had the greatest

assistance from a draft submission of the US Department of

Justice and testimony of the Hon. Edward H. Levi, the US Attorney-General, on it to a US Congressional Committee

of Inquiry. [4-30] In the light of that draft

submission and evidence and of other material before me,

I have come to the conclusion that satisfactory guidelines

can be formulated with respect to domestic security

investigations, and that the ASIO Act should contain these provisions in respect of subversion:

(a) So far as concerns the activities of

individuals or of individuals acting in

concert, directed by, subsidized by or

4-30 See enclosures to letter of 3 March 1976 from Hon. H.R. Tyler, Deputy US Attorney-General to the Commission, The draft submission and testimony are set out in Appendix 4-J.

otherwise undertaken in active collaboration

with a foreign power or a foreign political

organization, the ASIO Act should not

contain a definition of

(b) In respect of the activities of individuals,

or of individuals acting in concert,· not

directed by, subsidized by or otherwise undertaken in active collaboration with

a foreign power or a foreign political

organization, the ASIO Act should contain

a definition of

(c) The activities of the individuals

referred to in para (b) which should be included within the definition of

"subversion" are those activities which

involve, or will involve, or are

intended ultimate ly to involve, the

use of force or violence or other

unlawful acts (whether by themselves

or others) for the purposes of:

(i) overthrowing the constitutional

government of the Commonwealth

of Australia or of a State or

Territory; or

41.

42.

(ii) obstructing, hindering or interfering with the taking of measures by the Commonwealth

Government in the interests

of the secur i ty of Australia.

[4-31]

67. This definition contains the word "security".

The Shorter Oxford Eng lish Dictionar y defines the

word as meaning "'l'he condi tiol'l of being protected from or not

exposed to danger; safety". [4-32] In s 2 of the ASIO Act the

4-31 The draft submission of the US Attorney­ General refers to additional activities to those descriaed in this suggested definition. One is: "depriving persons of their civil rights underfue Constitution, laws or treaties of the United States." Many of these activities would seem to be matters for the attention of a police force rather than of a security organization. However, if an organization had as one of its

purposes the use of violence to deprive any significant number of citizens of, eg, their right to vote, it would be at least

potentially subversive, and, as I understand the e xpression "overthrowing the constitutional government," should be regarded as subversive. Elections are the basis of our constitutional government and preventing by violence the constitutional replacement of a government is not to be distinguished

from using violence to prevent a constitutional government from e x ercizing power. 4-32 Op cit.

word is defined to mean the protection of the Commonwealth

and Territories from acts of espionage, sabotage or sub­

version. In the proposed definition "security" is used

in its dictionary sense and not in the special statutory

sense.

68. I have used the term "activities" to include, as

well as other forms of action, conspiring, planning, organ­

izing, counselling, advising or otherwise advocating or

encouraging the doing of the things described.

69. The activities referred to in para 66(c) "involve"

the use of force or violence or other unlawful acts for

any of the stated purposes when acts within those classes

(ie acts of any of those kinds for any of those purposes)

are being presently used. They "will involve" those classes

of acts when the character of activities which have commenced

and/or the decisions of those carrying them out or organizing

them will cause or result in acts within those classes,

unless the activities are stopped. They "are intended

ultimately to involve" acts within those classes when the character of the activities which have commenced and/or

the decisions of the persons carrying them out or organizing

them will ultimately cause or result in acts within those

classes, unless the acts are stopped or the desired objects are otherwise achieved, and the decisions as to when those

43.

44.

acts will be used have been left to some indefinite time

in the future.

70. An intention to use any of the acts in the stated

classes is to be contrasted with a mere contemplation that they may be used. Mere contemplation exists when persons have a purpose or espouse an ideology in which the

possibility of the use of acts within the stated classes is foreseen or the nature of the purpose or the ideology involves that possibility, but not only the time for their

use but their use at all, even though necessary to achieve

the purpose, has been left for future decision.

71. I use the word "subversion" to describe activities,

including the activities described in para 68 which "involve"

or "will involve" or "are intended ultimately to involve"

the use of force or violence or other unlawful acts for

any of the stated purposes as these expressions are defined

in para 69. Persons and organizations are "subversive" if they are engaged in any of those activities. I use the

expression "potentially subversive" to describe those

persons or organizations who have merely a "contemplation"

in respect of these acts as described in para 70.

72. "Intention" and "contemplation" may shade into

each other. It may be difficult or impossible in practice

to decide into which category activities fall. The

characterization of an act as subversive often depends upon

the motives and intentions of the actor. Thus rifles

may be stolen to be sold to criminals, in which case the

theft is not subversive; or they may be stolen to be

added to a store of arms to be used at some time in

an armed uprising, in which case the theft is subversive. [4-33]

4-33 In criminal law the distinction between motive and intention is a subtle, but important, one. A person intends to commit a crime if he performs the act or

acts that constitute it, deliberately. His motive in committing the crime is some more remote end to which the criminal act was a means. In criminal law, motive is generally less crucial than intention.

Intention is often an essential element of a crime, so that the prosecution would fail if it could not show that the defendant acted intentionally. Evidence of the defendant's motive might then add weight to the case. against him, and might be taken

into account when sentence was being set, if he was convicted. The expression "purpose", used in a number of sections in parts II and VII of the Crimes Act, as

a constituent element of offences against the government, and of espionage, and disclosure of official secrets, is in those contexts, synonymous with "motive". But motive is not often an element that has

to be proved to convict a person of a crime. The

distinction between motive and intention becomes confused where one crime is a constituent part of another crime. So in the example of the stolen rifles, if the thief was tried for theft, the prosecution would need to prove his intention was to steal

the rifles; his motive may have been to make

a profit or promote subversion. The prosecution need not show what it was; but if the charge was that

he was aiding and abetting treachery contrary to ss 5 and 24AA of the Crimes Act, the prosecution must show the thief's intent ion was, say, to overthrow the government of the Commonwealth.

Whether an objective is properly described as an intention or a motive, then, depends on the context. What constitutes a subversive intention in one context can aptly be described as a subversive motive in

another. (See Glanville Williams, Cr iminal the General second edn, London, 1961, pp 48-50).

45.

46.

73. Sometimes the subversive intention may

appear from the nature of the activity itself; sometimes

it is proclaimed; more often than not it is kept a close

secret. If the subversive purpose is a long term

project, the group may appear, on the face of it, to

be a non-subversive organization. Only a small

number of the members may know that the group's

intention is ultimately, for example, to use violent

or unlawful means to take control of the government.

An organization, genuine and non-subversive in

its inception, may become a "front" for a subversive organization. Its take over may be

known generally by its members, or it may be known -apart from its subverters - only to its executive

or sometimes only to a few. [4-34]

74. A "domestic"organization or group of

people with political motives or purposes may be

known to be subversive (in the proposed limited

sense); it may be suspected from what material is

available that it is subversive; its known ideology,

purposes and activities may be such that it is

proper to regard it as potentially subversive; it

4-34 It follows that not all members of a group

that is subversive or potentially subversive are themselves subversive.

may be suspected from the available material that it

is potentially subversive; or it may not fall within any of these categories. [4-35]

4-35 The published views of the Communist Party of Australia, the Socialist Party of Australia and the Communist Party of Australia (Marxist­ Leninist) on how they contemplate the

achievement of their stated objectives will give concrete illustration to some of the matters I have discussed in this section. The aims of the Communist Party are quite

clear and have been reaffirmed as recently as 1972 at the Twenty-Third National Congress. Its Constitution and Rules say: "The Communist Party of Australia (CPA) is

a marxist party which is a voluntary union of people who actively work to achieve a revolutionary transformation of Australia and the establishme nt of a socialist,

independent Australian republic" (Constitution and Rules - dated April 1972, Sydney, pl).

The Constitution goes on to remind members that "a moral and political responsibility" remains with them to act for a socialist society i n

supporting struggles against social oppression whenever they arise (p 2). The Left Challenge for the a policy statement b y the

National Congress in April 1972, emp hasizes mobilization of the working class to oppose capitalism. Strikes, demonstrations, mass rallies and sit-ins are to be regarded as part

of the activity and when "reactionary " opposition is met, force may well follow as a consequence, although it should be avoided if other means are available (Sydney, May 1972, p 26).

The Socialist Party of Australia, in its Constitution adopted b y the foundation Cong r e ss in October 1972, says t h at i s a wo r king cla s s

Party firmly based on the concep t tha t the working class is the main revolutionary forc e within c apita l i st society" and considers that to achieve its aims, revolutionary violence, although not s ought, i s

unlikely to be avoided (p 1). On this point

the Party states: shows that the ruling class never

gives up power voluntarily . It will be

necessary to overwhelm the v arious f orms of

... resistanc e o f

4 7 0

48.

75. The Australian Government requires to have

intelligence about organizations or groups which are subversive, and would normally require to be advised

whether a suspicion that an organization or group

is subversive is well founded or not. In respect of

organizations which are, or are suspected to be,

potentially subversive, the Government should expect that ASIO should look at them and that some watch

4-35 Ctd

resistance of the capitalist forces and to head off their attempt to turn

to armed violence. To the extent that the old ruling class resorts to violence despite all efforts to forestall it, it will have

to be defeated by superior force. It is necessary that the revolutionary movement and the working class use and master all forms of struggle and prepare

the forces in all respects." (Socialist Pro g ram o f the Socialist Party of as adopted by the SPA Second

Congress 13-16 June 1975, Sydney, pp 16-17). In talking of the October Revolution, The Va ngua rd , which expresses the viewpoint of the Communist Party of Australia (Marxist-Leninist) said on 1 November 1973:

"Its chief lesson is that the workers and peasants must smash the existing state and establish their own state. They can only do this by force of arms

which is necessary in order to crush the resistance of the capitalists" (p 1). On the occasion of the lOth Anniversary of the Communist Party of Australia (Marxist-Leninist)

in 1974, its Chairman, Mr E.F. Hill, and a Vice-C ha irrnan ,· Mr N. L . Gallagher, were in China. During a banquet held in their honour the Chinese Premier and Vice President of the CCP, Chou-En-Lai said:

"We are convinced that by holding aloft the banner of Marx ism-Leninism and integrating the universal truth of Marx ism-Leninism with the practice of revolution in Australi a you

[the CPA (M/ L) ] will further dev elop ... " (The

4 April 1974, pp 3-4).

should be kept upon their activities unless it is

judged that there is no real likelihood that the

organization or group is or will become a danger to

Australia's security or unless limitations of resources and the order of priorities make it

impracticable. If there appears to be a likelihood

that the activity of ah organization or group will become a threat prejudicial to Australia's security,

then it is a matter of judgement for the DG to

decide whether, for how long, and to what extent

to continue with the watch, and whether, if continued,

the watch should extend to the deeper process of

investigation. [4-36] ASIO's collection activities in this area will thus fall into three classes:

(a) Looking at a group or person, which

is a non-continuous, but may be a repetitive, activity.

4-36 I have referred earlier to the inference which can be drawn from the activities of an organization to establish its subversive­ ness. These inferences are to be distinguished

from the "likelihood" referred to in this paragraph. I use "likelihood" to refer to the prospect that a potentially subversive organization will become a subversive one.

Since such a change, may, in a particular case, occur at any time, it is a matter of judgement

for the DG whether ASIO should continue to assess whether it is likely to arise. In

practice these logical distinctions may become blurred, but as far _as practicable ASIO should try to keep in mind the distinction between them. See the useful discussion at pp 28-30 of the NZ Ombudsman's Report.

49.

5o.

(b) Watching a group or a person, which is

a continuous activity, but not of great

depth.

(c) Investigating a group or a person, which

is a continuous activity having a considerable depth.

I shall discuss ASIO's collection activities in detail

in part c.

76. The amount of domestic subversive activity

in Australia has varied from time to time. The

material before me does not establish that there is

a very large amount at present. The position seems

to be better now than during the time of the

Vietnam war and of the polarization which it created.

The extreme parties of the left are splintered and

do not seem to be increasing in numbers either at all,

or to any great extent. The so-called "new left" is

dormant, and although other radical groups of the left

have been created, they have not yet created any

significant danger. Likewise the radical parties of the right, although they have sprung up and have

been active from time to time, do not seem to have

made great headway.

77. As against this, the two main communist

parties, the Communist Party of Australia and the Socialist Party of Australia, have strong influence in some unions. They exercize a power greatly in excess

of that which their numbers would justify, among other

reasons because they often strongly support the interests

of trade unionists and put their full force behind

industrial issues. At other times, they make use of industrial disputes for their own political purposes. The Trotskyists and other left radical groups are

active in academic and political areas and are succeeding in establishing themselves in many places of

influence. Right radical groups are still active and the basis for extreme right wing action is certainly

not dormant, and shows its face from time to time.

It may be said that the radical or extreme pot is

simmering but not boiling . [4-37]

78. However the number of people who contemplate

the possible use of violent or illegal action to

achieve political ends has not been negligible in the

past, and is not negligible now. The activities of

4-37 I have received detailed advice on these matters from ASIO in the form of classified reports, recorded in the Commission's series of papers as Doc A51.

51.

52.

these people, who are generally at the extremes,

whether left or right, of the political spectrum,

are often potentially subversive, and sometimes are

subversive, in the special senses I have proposed.

79. It has been submitted to me that ASIO

should not be concerned with subversion; that

nothing which is not a crime should be regarded as

subversion and that the protection of the nation

against subversion should be left to the various

police forces of the Commonwealth and the States,

that is, it should be treated as any other crime.

80. Subversion, both in the limited sense which

I have proposed for domestic activities and in the

general sense, involves an intention, sooner or later,

to commit a criminal offence. An agreement,

undertaking or conspiracy to commit a criminal offence

is itself a criminal offence. [4-38]

4-38 The active measures taken by an

unfriendly power to weaken or "destabilize" a country have taken many forms in recent times. They are often directed ultimately to encouraging the planning and implementation of subversive activities, including what are called in the Crimes Act 1914-1973 "seditious enterprises ".

81. Although subversion both in its planning and

in its implementation, involves a crime, acts of

subversion cannot be treated as ordinary crimes.

Ordinary crime is generally investigated after the crime

has been committed; police are generally concerned with

apprehending those who have committed a crime, not with

preventing those who intend to commit a crime. As in

the case of other activities involving the security of

the nation (for example, espionage) the Commonwealth

Government must be concerned to prevent subversion from

taking place or to be ready to combat it, and to obtain

intelligence which will enable it to do so. It must be

faced that this may involve finding out about and at

times keeping an appropriate watch on the activities of

some political extremists, to ensure that they do not

over-step the boundary between proper political activity

and subversion. It is not sufficient to await the

commission of a crime against the nation's security, and

only then to take action to identify and take proceedings

against the offenders.

82. By its very nature, subversion is clandestine

and deceptive. To say that "ordinary police methods"

suffice to inve-stigate subversion is thus not only to

53.

54.

impose a delay in investigation until a crime has been

committed but is also to give those intending to commit

the crime the advantage of security from surveillance

while plans are being made. In matters of subversion

it is not good enough to wait until society is taken by surprise.

83. If there were no need to have a security

organization for other reasons and if all subversion

were domestic subversion, there might be some weight

in the submission that responsibility for subversive

activities could be better placed with the various police forces. However I am satisfied that it is

proper that it should be included in ASIO's charter.

A security organization is otherwise required, and

subversion often has a foreign nexus. It is also

difficult to separate the investigation of subversion from the other activities of ASIO. Thus, to guard

against espionage, it is necessary for ASIO to give

advice about the people who will have access to the

nation's secrets; and for this purpose it is necessary for it to have intelligence about subversive or

potentially subversive people and organizations. In

addition, justification is to be found in the reasons

that support the creation of 'any separate security organization at all. These reasons include the

desirability that such an organization should be

concerned with intelligence and should have no or

minimal executive powers, and the importance of its

being a highly specialized and professional body. It

is also important that security records and access to them should be strictly controlled, and for this

purpose it is better that they should all be handled

by a separate organization. I would add that the

material before me about police special branches does

not establish that either the nation or its citizens'

liberties would be better provided for if ASIO were not concerned with subversion.

(e) Sabotage

84. Sabotage is the malicious or wanton

destruction or damaging of things. In 1956, when

the ASIO Act became law, the word did not appear

in the Crimes Act 1914 as amended although s 29 made it an offence to destroy or damage property belonging to the Commonwealth. The word did appear in a side note to s 13 of the Defence (Special Undertakings)

Act 1952, which made it an offence wilfully to damage,

destroy, obstruct or interfere with certain

installations, structures, buildings, places, services and articles used or occupied wholly or in part for the

purposes of a declared special defence undertaking.

55.

56.

85. I do not think that it could be suggested

that the sabotage referred to in the definition of "security" in s 2 of the ASIO Act extended to the

whole of the property to which s 29 of the Crimes Act

applied, or was limited to those matters to which

s 13 of the De fence (Sp ecial Undertaki n g s) Act 1952-1973

applies. Its meaning must be taken from its context,

which is one of security and the protection of the

Commonwealth against certain classes of acts.

86. Section 24AB of the Crime s Act 1914-1973,

inserted in 1960, defines an "act of sabotage"

and makes it an offence to carry out such an act.

The expression is defined to mean the destruction,

damaging or impairment, for a pqrpose intended to be

prejudicial to the safety or the defence of the Commonwealth, of any thing, substance or material (in

the section called an "article") used or intended

to be used by the defence force or for certain defence

purposes, or is in or forms part of a place which is

a prohibited place within the meaning of s 80 of the

Act. Section 80 p r ovides that certain places used

for defence purposes shall be prohibited places and

in a ddition authorizes the Governor-General to declare

certain places to be prohibited places where

information with respect thereto or damage thereto, or inf o r mation with respect thereto or the destruction

or obstruction thereof or interference therewith,

would be useful to an enemy or to a foreign power.

I have no doubt that the sabotage referred to in the

definition of "security" in s 2 of the ASIO Act

includes the acts of sabotage referred to by s 24AB but

again I do not think that the meaning of the word is

limited to those acts.

87. The above definition of sabotage (the

destruction, damaging or impairment of buildings, installations, works, places or things used or held for defence purposes, or the destruction, damaging

or impairment of which would be useful to an enemy

or a foreign power), is an adequate definition,

although possibly not exhaustive of the activities

intended to be covered by the word in the ASIO Act.

88. Most acts within the above definition would be

offences under s 24AB of the Crimes Act 1914-1973

but it may be that there are many places in Australia

which could be declared but have not in fact been

declared as prohibited places under s 80. When any

of these places or things are the property of the

Commonwealth or of a Commonwealth authority, there is

no doubt as to the power of the Commonwealth in relation

to their sabotage. But, even if they do not so belong

and their sabotage is not an offence under s 24AB, I think

57.

58.

that there is ample power in the Commonwealth to give ASIO a function of protecting the Commonwealth against

their sabotage. The principal head of power will of course be the defence power ins Sl(vi.) of the

Constitution. Other relevant heads of power are in

s Sl(xxxix.) (the incidental power) and s 52(i . )

(Commonwealth places) and (ii.) (the public service).

The Commonwealth Police will be, and the territorial

and state police may also be, concerned with

acts of sabotage, as may the defence force. However, intelligence about these acts is clearly a proper matter of concern for ASIO.

(f) Terrorism

89. As with subversion, terrorism is difficult

to define precisely. The act or threat of force

designed to terrorize to achieve political ends

needs including in any definition of terrorism. [4-39]

One description combines these elements in this way:

"the threat of violence, individual acts of violence, or a campaign of violence designed primarily to instil fear - to terrorise ... Terrorism is violence for effect, not only, and sometimes not at all, for the effect on the actual victims of the terrorists. In fact, the victim

may be totally unrelated to the terrorist's cause." [4-40]

4-39 Peter Goldsworthy, "some Observations on the Concept of Terror", Australian Journa l o_f Forensic S c ienc es , Vol 7, No 3, March 19/5, p 116.

4-40 Brian M. Jenkins, "International Terrorism: A new mode of Conflict", in David Carlton and Carlo Schaerf (ed.), International Terro r ism and World London, 1975, p 14.

90. Much violent action - including bombing and

shooting - is of course simply criminal in nature, and

is a matter for the appropriate police force. ASIO should be concerned only with politically motivated

terrorism. That is, acts and threats of violence

91.

"more or less organized in an attempt to bring about changes either within the political system, or of the system as a whole, and involving a high level of cost

in terms of damage to property and/or injury to persons". [4-41]

Terrorism may be so widespread as to approach

a state of civil war; it may be isolated or irregular

and have a limited direct effect upon the country in

which it is manifested in violent action. Indeed

terrorism is often politically directed against a

country other than the one in which it is manifested in

violent action. The police, and at times the armed forces and other organizations, all can have a role to

play in combatting terrorism. But the international

ramifications of many forms of modern terrorism, and

particularly of that terrorism which is likely to affect Australia, make it important that Australia has an organization with access to intelligence available in

and from other parts of the world about it and about

identified or possible terrorists. It is general

4-41 Perry Mars, "The .Nature of Political Violence"., Social and Economic Studies., Vol 24, No 2, June 1975, p 228.

59.

60.

international practice for security organizations, as opposed to police or other organizations, to hold and

exchange this intelligence, and it is therefore important

that ASIO should have this role in Australia.

92. ASIO has been actively concerned with

intelligence about terrorism and terrorists for some time, but its power to do so is not beyond argument

in all cases. The power of the Commonwealth to deal with

it can arise in various ways. There are a number of

Commonwealth statutes giving effect to international

conventions concerning aircraft which are often the

subject of acts of terrorism. These statutes include the

Civil Aviation (Offenders on International Aircraft) Act 1970-1973, the Crimes (Hijacking of Aircraft) Act 1972-1973 and

the Crimes (Protection of Aircraft) Act 1973. Another

common type of terrorism involves the seizure of embassies

or consulates, or diplomatic personnel and their families.

There is a Convention on the Prevention and Punishment

of Crimes against Internationally Protected including Diplomatic adopted by the United Nations

General Assembly on 14 December 1973 and signed by

Australia in December 1974 which relates to this matter. The Crimes (Internationally Protected Persons) Bill

was introduced into the House of Representatives on

4 June 1976 to implement provisions in this

Convention. [4-42]

93. The Vienna Convention on Diplomatic Relations

places the Commonwealth Government

94.

"under a special duty to take all

appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity".

[4-43]

That Convention also requires Australia to

"take all appropriate steps to prevent any attack on"

the "person of a diplomatic agent" [4-44] and provides

that

4-42

4-4 3

4-4 4 4-4 5

"The private residence of a diplomatic agent shall enjoy the same .•. protection as the premises of the mission".

CPD, House of Representatives, 4 June 1976, pp 3050-3052. Two associated Bills, the Extradition (Foreign States) Amendment Bill 1976 and the Extradition (Commonwealth Countries) Amendment Bill 1976 were introduced at the same time.

The Vienna Convention on Diplomatic Article 22, para 2.

Article 29. Article 30, para 1.

61.

62.

95. The Vienna Convention on Consular Rela tions

contains similar provisions in relation to consular

premises and officers, but not in relation to the

private premises of consular officers. [4-46] The relevant provisions of the Convention on Diplomatic

Relations have the force of law in Australia. [4-47]

Those of the Convention on Consular Relations were

not included among the provisions of that Convention

given the force of law. [ 4-48]

96. The external affairs power in s 5l(xxix.)

of the Constitution undoubtedly invests the

Commonwealth with power to investigate and deal with

terrorism directed against aircraft and against

diplomatic and consular premises and persons.

is a party to each convention I have referred to,

and each deals with a subject of a proper international

character and concern. Apart from these conventions,

the Commonwealth has a duty under public international

law to protect the safety of diplomatic envoys, members

of their families and suites, their official residences,

their furniture, vehicles and papers. [ 4-49] This

4-4 6 4-4 7

4-4 8

4-4 9

Articles 31(3) and 40. Diplomatic Privileges and Immunities Act 1967-1973, s 7 (1). See Consular Privileges and Immunities Act 1972-1973, s 5(1). L. Oppenheim, International Law - A Treati s e >

aghth edn , London, 1955, pp 789-790.

obligation is to the country the envoy represents

rather than to the envoy personally.

97. At times the purposes of terrorism may be

domestic, and in this case the Commonwealth's power

has the same basis as in the case of subversion. It

follows of course that the Commonwealth's power only

exists where its safety is concerned, or where the safety of a State of the Commonwealth is concerned,

and the circumstances are such that the State seeks

the assistance of the Commonwealth pursuant to the

provisions of s 119 of the Constitution.

98. A class of terrorism that gives rise to

particular difficulty is that which occurs when a group of persons resident in Australia but of foreign

origin attacks another group of Australians likewise of foreign origin but who for historical or political

reasons are inimical to the first group. The

terrorists involved in this class of case are sometimes the same persons as those involved in the organization

of terrorism abroad, and in obtaining intelligence

concerning them for this purpose ASIO may also obtain

intelligence about their other proposed activities. However intelligence concerning terrorist activities

within Australia can only properly fall within the

63.

64.

functions of ASIO if the protection of the Commonwealth

against it or its consequences can be brought within

some relevant head of power. The only relevant head of

power in such a case seems to be the external affairs

power in s Sl(xxix.) of the Constitution. In some

cases the nexus between preventing or eliminating the

terrorist activity in Australia and the maintenance of good relations between Australia and a foreign power

may be sufficiently established to justify action on

the part of the Commonwealth. In other cases the nexus

may be very tenuous or non-existent. However it is

difficult to see how ASIO can determine whether there is such a nexus without first obtaining intelligence about existing or proposed activities. I think that

the Commonwealth is entitled to empower ASIO to obtain

intelligence for this purpose.

99. ASIO's present power to deal with terrorism

is rather obscure. Some aspects of terrorism may be regarded as a form of sabotage but most of it could

not be so regarded. ASIO should act as the intelligence

organization in respect of those forms of terrorism

with which the Commonwealth has authority to deal.

The ASIO Act should be amended to make this clear.

100. The difficulty of defining the terrorist

activities which ASIO should investigate is as great as in the case of subversion. The problem would be

a difficult one for a parliamentary draftsman. It would

not be sufficient to define it as a violent activity

for political purposes, for much of this type of

activity may be a matter for State police only. On the other hand, the word "terrorism" may be too general

a word to be left without definition.

101. Perhaps a suitable definition could be devised

by reference to:

(a) The legislation and international

conventions which I have mentioned.

(b) Acts of violence carried out, or being

planned, in Australia for foreign

political purposes, or carried out elsewhere than in Australia, when the

perpetrators have come, are coming, or may come, to Australia.

(g) Domestic activity related to violence and subversion abroad

102. From time to time, persons have, in Australia,

organized, and sometimes trained, people to take part

in violent subversive activities in foreign countries. This activity is really the planning of and training

24818177-4

65.

66.

for terrorism, and might be dealt with as a branch of

the terrorism discussed in the preceding paragraphs,

its special character being that the acts of terrorism are to take place in a foreign country.

103. This type of activity in Australia may not

affect, in any direct way, Australia's security, but it may have a very prejudicial effect on relations with a foreign power. There may be many other consequential prejudicial effects. While states do not

have a duty to suppress revolutionary or subversive

propaganda on the part of private persons directed

against a foreign they are under a duty

to prevent and suppress "such subversive activity

against foreign as assumes the form of

armed hostile expeditions or attempts to commit common

crimes against life or property". [4-sol It is

necessary for some organization to collect and hold

intelligence about any of these activities in Australia to enable the Commonwealth Government to carry out this duty. The nature of this work is so analogous to other

work carried out by ASIO that it is apparent that ASIO

should do this work for the Commonwealth. Indeed it has

been criticized - wrongly - in the past for not doing it.

In fact it has been doing it for quite a long period,

4-50 Oppenheim, op cit, pp 292-293.

pursuant to what I think is a rather attenuated inter­

pretation of the word "subversion". I shall recommend

that ASIO's functions should expressly include this

function.

(h) Australia's security intelligence needs

104. I find, therefore, that Australia needs

a security intelligence organization like ASIO. The

proper fields for investigation by ASIO should, however,

be more clearly defined than in the present ASIO Act.

They should include:

Espionage.

"Active measures".

Subversion.

Sabotage.

Terrorism (politically motivated viole nce ) .

Domestic activity related to violence and

subversion abroad.

67.

68.

C. FUNCTIONS OF ASIO

105. Section 5(1) of the ASIO Act describes the

organization's "functions".

106. Paras (a) and (b) of s 5(1) authorize the

organization to do three main things:

(i) To "obtain intelligence relevant to

security". (intelligence collection) .

(ii) To "correlate and evaluate intelligence relevant to security". (intelligence

assessment) •

(iii) To "communicate" intelligence relevant to security and to "advise" ministers and

departments on matters relevant to security.

(intelligence dissemination).

107. It is further provided (in para (c) of sub-s (1))

that ASIO can co-operate with Australian and foreign authorities who "are capable of assisting" it in the performance of its functions.

108. Finally, sub-s (2) says that ASIO does not

have executive powers "to carry out or enforce measures

for security".

109. I said in my second report that ASIO's functions

should be limited, as they are now by these provisions,

to the collection, evaluation and dissemination of

security intelligence, the giving of advice relevant to

security, and matters ancillary thereto. [ 4-51]

110. There are two fundamental activities involved

in fulfilling these functions.

111. The first is'investigation of people and

organizations of security interest. Questions arise

as to the methods used, their intensity, and the degree

of their intrusion on citizens' rights, for the

purposes of any such investigations.

112. The second activity is the communication by

ASIO to others - whether in or out of government, and

whether in Australia or overseas - of the results or

assessments of the results of its investigations.

This activity is sometimes called either "giving security

advice", or "communicating security intelligence".

113. In this part I shall examine these activities

and seek to enunciate the standards and principles

which ASIO should conform with or apply in carrying

them out. I shall also shortly examine some aspects of

a third activity, evaluation or assessment, which is

generally a necessary part of the investigation process.

4-51 Second report, para 18.

69.

70.

(a) General standards to be observed

114. There are limitations upon wh a t a security

organization shbuld do in a democrat i c society. Aims,

even of security, do not justify all mean s. What has

to be kept secure is not simply a physic a l e ntity; the

society which exists within Australia is one with

standards and principles which secure r i ghts and freedoms

as well as obligations. That socie t y i s n ot to be

safeguarded by a repudiation of those sta n dards o r those

principles, with the consequent erosion of r ight s and freedoms.

115. In a time of actual o r t hre a tened danger, the

exercize of some rights and freedoms may have t o be

restricted in order that the society on which t hey depend be preserved at all. The degree o f res t r iction which is

justified is determined b y the degr e e of the danger . In time of peace, with no imminent d a n ger, little if any

restriction is justified.

116. With these general precepts in mind, I shall

discuss particular principles of propri e t y, including

legality, to which ASIO should have regar d i n fu l fil l ing its functions.

117. Material before me e stablishes tha t there have

at times been departures by ASIO fr om the se principles. The departures have been of var ying

significance. Their justification has also varied in weight.

Indeed it is somewhat difficult now to determine the precise

weight of particular matters of justification, for it is

not possible to place one's self in the precise context

in which the departure occurred. It must also be

remembered that ASIO has been asked over many years to

carry out its functions without the extensive special

powers that the police have, and without guidelines on

questions of propriety.

118. I do not propose to deal with ASIO's trans-

gressions in detail. This report is concerned with the

future rather than with the past and to point to what should

happen, in the future. Of course the past is relevant to

show what might happen in the future.

119. These considerations do not, however, minimize

the necessity for the organization to have standards,

and to ensure that they are complied with.

120. The first and fundamental principle is that ASIO

must operate within the terms of its statute, and be

concerned only with matters which are relevant to security.

121. The 1949 Charter directed the Director-General

of Security:

"You will take especial care to ensure that the work of the Security Service is strictly limited to what is necessary for the purpose of ... the defence of the Commonwealth from

71.

72.

external and internal dangers arising from attempts at espionage and sabotage, or from actions of persons and organizations, whether directed from within or without the country, which may be judged to be subversive of the

security of the Commonwealth.'' [4-52]

The need for the special care emphasised in the Charter

remains.

122. But, beyond this, ASIO must always comply

with the law. This second principle applies even though

the matter with which ASIO is dealing relates to security.

I have considered whether ASIO needs to operate in areas

where, in the past, its operations were or may have been

in breach of the law. Where it does I shall recommend

changes in the law to confer or clarify the right to

operate in those areas. But my recommendations shall

include safeguards to ensure that ASIO does not exceed I

the recommended powers. [4-53]

123. Beyond compliance with the law, it is important

that ASIO should establish for itself standards of propriety. Basically this third principle means that

ASIO should not intrude upon the rights and freedoms or

upon the privacy of persons except to the extent that

4-5 2

4-5 3

Paras 5 and 6. The 1950 Charter is in

substantially the same terms. Because ASIO's activities are subject to law, ASIO ready and continuous access to

legal advice. ASIO officers should, as part of their training, be instructed about the law as it applies to their work. In particular,

officers whose work concerns foreign diplomats and consular persons should be given guidance about the effect of the Conventions on Diplomatic and Consular Immunities.

the requirements of the nation's security, in the

circumstances of the particular case, justify and the

law allows.

124. The three principles: the need for ASIO to

stay within its charter, legality and propriety, are

related to each other. · Compliance with the law, for example, will satisfy many of these requirements of

propriety. However, that compliance will not cover all

of those requirements. There are many situations,

particularly those involving the privacy of persons, where the law has nothing to say, and where the nature

and extent of any action to be taken by ASIO is a matter

_of judgement, and at times of very difficult judgement.

The difficulty of judgement or the urgency of the case

will, however, hardly ever justify an expedient action inconsistent with these bas ic principles.

(b) Intelligence collection

125. The application of these principles will require

that the manner in which, and the extent to which, ASIO takes its investigations should be directly related to the

importance or seriousness of the security issue. A

proposed investigation should thus require a consideration

first as to whether there is a security issue, and then

as to the extent of the proposed intrusion into the privacy

of a person, and the importance of that intrusion in the

resolution or handling of the security issue.

126. Investigations should begin with the

73.

74.

slightest practicable intrusion. If the issue is not resolved, its seriousness may justify greater intrusion.

Intensive intrusion is justified only where the security

issue is very important and other means of investigation

are not suitable or adequate to resolve it.

127. ASIO's collection activities will fall into

three classes:

(a) Looking at a group or person, which is

a non-continuous, but may be a repetitive,

activity. (b) Watching a group or a person, which is a

continuous activity, but not of great

depth.

(c) a group or a person, which

is a continuous activity having a considerable depth.

128. Which class of collection activity ASIO applies

to a person or group should depend on whether he or it

is presently engaged in activities prejudicial to Australia's security, or is merely a potential threat. In the latter case, the likelihood of that potential

being realized is a relevant factor in deciding the

duration, intensity and depth of ASIO's collection activity.

129. ASIO has no starting po{nt for any security

inquiry until it "obtains" [4-54] some intelligence

about a matter, and it may often have to look at an

organization or person to see if an inquiry should be

commenced. If Australia is to be protected against acts

prejudicial to its security the "look", and indeed the inquiry, will hopefully be commenced before the act

takes place. Intelligence "relevant to security" is

not to be limited to information about prejudicial

acts after they have occurred. It may be interesting, perhaps even important, to investigate these matters then,

but not as helpful as prior knowledge. [4-5 5]

130. At all times the object must be to achieve

a balance between the interests of the person and the

interests of the State. It is also a consideration

that the more resources AS IO deploys in any particular investigation, the greater the cost will be. It is thus

4-54 4-55

ASIO Act, s 5 (1) (a).

The NZ Ombudsman proposed in his report that the NZ SIS Act should provide that "intelligence shall not be obtained regarding any person or body which is not actually engaged in espionage,

sabotager or subversion unless the advice of the Intelligence Council ha·s been obtained" (NZ Ombudsman's Report , pp 29-30. Emphasis added). I am unabl e to accept the proposition implicit

in this recommendation that the security service should general l y wait for a terrorist act or an act of espionage to occur before obtaining intelligence about those likely to carry out

such acts. See a l so para

75.

76.

not only a proper principle to intrude on a person's

privacy as little as possible. It should also, in the

main, be cost-effective for ASIO that it should do so.

131. Much information can be gleaned from published

or otherwise overtly available, sources. Open sources

should not be lightly passed over by ASIO. In an open

society like ours, a lot of people have their say in the

media or are reported by it. A scholarly, routine and

sustained analysis of these materials will yield a great

deal of information relevant to security. Many meetings

and discussions are held quite openly. People of security

interest may take part.

132. My impression is that. ASIO may have made

too little of open sources of information. Research and

collation methods now used in ASIO will need development. Greater attention than hitherto to these obvious and

legitimate sources will pay dividends for the organization.

133. The KGB is said never to believe anything unless

they can obtain the information clandestinely. Some ASIO

officers have made the same kind of mistake. On the other hand much publicly available information may need secretly­

obtained collateral.

134. In the cases of many people or organizations,

it will be enough for ASIO to collect and file overtly

available information. For people and groups who are

assessed as not of the first order or priority, a data

store from overt sources may suffice in case the person

assumes higher priority. The information thus obtained

may often provide clues or stimulate a decision whether

to resort to secret methods of intelligence collection.

Secret sources deployed against other targets may also

throw up information justifying the security service taking

a close look at some target for whom coverage from overt

sources had previously been thought to suffice.

13 5. But it is impossible to lay down detailed rules

or criteria of universal application about these matters.

An example which may illustrate them is the investigation

of the sexual habits of a citizen. It would often be

quite improper to investigate these habits. In particular

it would be improper to investigate them merely because the person involved was a political extremist. This is

because sexual habits would be quite irrelevant to the

security problem in such a case. On the other hand, it

is possible that they may be very relevant to a particular security problem, as the history of espionage has unfortunately all too often shown. [4-5 6] 4-56 The Profumo Affair investigated by Lord Denning

is an example of these propositions. As Lord Denning reported, the sexual relationship between Mr Profumo and Miss Christine Keeler was a private matter with which, in itself, the security service

had no concern and was justified in not investigating. (Report, paras 267-271). On the other hand, if the service had known of the relationship between Miss Keeler and Assistant Russian Naval Attache

Eugene Ivanov before the latter left England it would have been aware of a security risk arising as a result of the relationship between Miss Keeler and Mr Profumo, and should have investigated that

relationship.

77.

78.

136. Judgement, experience and supervision should

help to ensure an understanding by ASIO officers of

the existence and nature of a security issue, of the

importance and extent of that issue, and of the nature

and extent of the investigations which that issue

justifies.

137. There are many sources of

Generally, the DG and his officers will decide which

sources ASIO should use in any particular case.

Commonsense, propriety, legal restraints, the available

resources, all have a bearing on the selection of

sources. But, subject to restraints of this kind,

it is for the organization to decide how best it can carry out its investigation function. ASIO is

entitled to consider and assess any information which it receives or obtains which is relevant to its function.

138. Some intelligence sources involve special

problems, and a number of them raise questions of

legality which must be faced . With the earlier principles in mind, and paying particular attention to questions of legality, I shall now discuss:

(i) Telephone interception.

(ii) Interception of telegrams and telex and other transmitted messages.

(iii) Listening devices. (iv) Interception of mail,

(v) Access by ASIO to other records systems.

(vi) Entry and search of premises.

{vii) Surveillance.

{viii) Human sources.

(ix) Private intelligence organizations.

Some of these matters are considered in detail in

Appendix 4-K. Here I shall set out my views about them.

139. Some of the recommendations which I shall make

in respect of matters of "legality", if put into effect, will or may extend the legal powers exercizable by ASIO. ASIO is empowered by its Act to "obtain ...

intelligence relevant to security". Clearly enough State legislation cannot explicitly restrict the performance by ASIO of this function. However the extent to which

ASIO, as an arm of the executive government of the

Commonwealth, and one whose function is the protection

of the Commonwealth, is bound by general State law,

whether statute or common law, in obtaining that

intelligence, is a matter of some doubt. The present state of the law quite arguably supports an absence of such a restraint. With this background what I am

seeking to do is to clarify those powers and to provide

and to identify the responsibility for their supervision

and control. The circumstances in which these powers

might be exercized are not frequent, but their exercize

79.

80.

is often such an infringement of the ordinary rights of persons that there should be a clear statement as

to, and a strict control of, cases in which they are

exercizable.

(i) Telephone interception

140. Telephone interception is regulated by the

provisions of the Telephonic Communications {Interception)

Act 1960-1975. This Act prohibits the interception of

any telephonic communication in its passage over the

telephone system except (for relevant purposes) by ASIO,

and then only upon warrant issued by the Attorney-General,

or in emergency situations for a period not exceeding

48 hours by the DG of Security.

141. I am satisfied that the provisions of the Act

have been complied with by ASIO and that Attorneys-General have given proper consideration to applications

for the issue of warrants. The number of warrants issued

since the enactment of the legislation has been quite

modest. [4-57] The intelligence yield has often been

extremely valuable.

142. ASIO's practices in preparing the documents

associated with telephone do seem to me to be

over-elaborate and legalistic. The intention of the

legislation is that the Minister should be satisfied that

4-57 Many people have told me of their suspicions that their telephones are being intercepted because of "clicks" or similar noises they have heard. The method of interception used by ASIO does not involve any clicks or other

such noises.

an interception should be undertaken. He does not need

a ten-page memorandum typed up on parchment to do that.

Consideration might be given to more simplified

procedures.

143. Because that Act only applies to the interception

of telephonic communications in their passage over the

telephone system, it possible to record these

communications in various ways without infringing the

provisions of the Act, although no warrant has been

issued. If the Act were to be amended to prohibit any

recording of telephonic communications without warrant,

the Commonwealth might intrude upon the rights of the

States to regulate the use of listening devices, or "bugs",

which may be installed to record any conversations,

whether telephonic or otherwise. Accordingly, although

I consider that the use of listening devices by ASIO

should be contolled, I do not recommend any amendment

of the Telephonic Communications (Interception) Act for

this purpose. (ii) Interception of telegrams and telex and other transm1tted messages

. There seems no relevant valid distinction

between the interception of telephone communications

and the interception of other communications carried

on systems provided by the Government. There are many

such systems, and the mechanism of each of these systems

varies in some greater oi lesser degree. These systems should be protected and should be made accessible to

ASIO for the same reasons and to the same extent as in

the case of telephone communications.

81.

82.

145. Their interception is now prohibited by s 86

of the TeZecommunications Act 1975-1976, and the regulations

under this Act purport to establish a system of

warrants by the Attorney-General or the DG of Security

similar to that established by the TeZephonic

Communications (Interception} Act 1960-1975. By the

Act and regulations the interception authorized by any

such warrant may only be effected for the purpose of

identifying or tracing a person. There are many

problems, including problems of interpretation and

implementation, arising out of these regulations,

and without making any formal recommendation I would

suggest that it would be simpler if the TeZecommunications

Act 1975-1976, the ASIO Act or other relevant legislation were amended to authorize the giving of warrants by

the Attorney-General, or in urgent circumstances, by

the DG of Security, for the interception by ASIO of

information passing over the relevant telecommunications

systems.

(iii} Listening devices 14 6. The Commonwealth Parliament has no power to

enact general legislation regulating the use of

listening devices, or, as they are commonly called, "bugs". However, it has power to regulate their use

by ASIO. Their use by ASIO has not been very

extensive, but it can be of immense value in appropriate

circumstances.

147. The use by ASIO of these devices may be

affected by some State legislation concerning them,

although it is very arguable that those provisions

do not bind ASIO. [4-58] Even when their use and

installation is lawful, they constitute a considerable intrusion into privacy. Their use by ASIO should be

prohibited without warrant by the Minister, or in

urgent circumstances by the DG of Security. For this

purpose the ASIO Act should be amended so to provide.

The Act should provide that, by virtue of the warrant,

ASIO is authorized to do all things necessary for

the purposes of installing the "bug", for using and

maintaining it and for removing it. The effect of the

amendment would be to remove any doubts about the power

of ASIO to use listening devices, notwithstanding the

4-58 The NSW Listening Dev ices Act, 1969 prohibits the use of listening devices except in certain circumstances. These include the case in which the person issuing the device "in

accordance with an authorization given to him by the Minister of the Commonwealth administering any Act of the Commonwealth relating to the security of the Commonwealth ... or ... by a

delegate appointed in writing by any such Minister to give" such authorizations. The general prohibitions in the Victorian Listening DBvices Act 1969 and the Qld Invasion of Privac y

to 1976 are subject to exemptions

which cover the use of listening devices for security purposes by ASIO officers, but the SA Listening Devices Act, 1972 contains no exemption in respect of ASIO. There is no legislation

in WA, Tasmania, or the Commonwealth Territories.

83.

84.

provisions of State legislation, but at the same time

to ensure that their use is properly controlled and

supervised, and that the Minister has the ultimate

responsibility.

(iv) Mail interception

148. Letters are regarded in Australia as a

singularly private form of communications, and opening

them and reading their contents is something which

a security organization should do only as a last resort.

As I have already suggested, the extent of the intrusion

into privacy by ASIO should be correlative to the security issue at stake, and it would need a very

strong security issue to justify mail interception.

However, I find it difficult to distinguish between

duly authorized mail interception and duly authorized

telephonic interception. If a strong enough case is

made, ASIO should be entitled to open mail. It is

the practice of many security organizations in the

democratic world to do so, sometimes without and

sometimes with a ministerial authorization.

The intelligence so obtained has often been invaluable.

149. There is a view that the Crown has a prerogative

right to open and inspect mail. I think, however, that the better view is that this is not the position in Australia. The Post and Telegraph Act 1901-1973

generally prohibited the opening of mail. Although a

form in a schedule to the Act suggested that the

Postmaster-General had a power to give a warrant

authorizing its opening, he probably had no such power.

The present legislation is the Postal Services Act

1975. This Act empowers the Australian Postal Commission

to authorize the opening of mail, but this power seems

to be exercizable only for the purposes of the Postal

Se r v ices Act 1975. There is also provision for the making

of regulations in relation to procedures for the

opening and examination of postal articles by or in the

presence of postal officers. This again would seem to be

for the purposes only of the Postal Services Act 1975.

150. It is the practice for security services, in

certain circumstances, to inspect mail covers, without opening or otherwise tampering with the mail. Depending

on the procedure followed, this practice might be in

breach of s 91, which prohibits officers and employees

of the Commission from wilfully delivering postal

articles sent by post to a person other than the person to whom it is addressed or his authorized agent. Further the giving of access by the Australian Postal

Commission to an officer of ASIO for the purpose of

inspecting mail covers is probably beyond the power

of the Commission as not being for the purposes of the

performance of its functions under the Act.

85.

•. I ...

" I

...

.,

86.

151. ASIO's function to obtain intelligence may

arguably authorize it to open mail. But whether this

is so or not, I have come to the conclusion that, if

special circumstances are established, ASIO should

have power to open mail and to inspect mail covers,

but only under warrant by the Minister. As in the

case of telephonic interceptions, a full report about

the execution of the warrant should be made to the

Minister. I shall strongly recommend that ASIO should

not be authorized to open mail or to inspect mail

covers without warrant •

(v) Access by ASIO to other records systems

152. There are a great many systems of records

in Australia containing information about persons and

events which may be of interest to ASIO.

153. There are a number of statutes which impose

prohibitions on the communication, other than for

the purposes of the statute, of information given to

Commonwealth departments and authorities for the

purposes of those statutes. Sometimes the prohibition

is absolute. Sometimes it is absolute except in respect of nominated persons or bodies. Sometimes it is qualified by a provision empowering the Minister or other officer to authorize the communication of

the information. Examples of these statutory

prohibitions are to be found in the Soc i a l We lfare

Comm issi on Acts 1973, Census and Sta t i stic s Ac t 1905-

1973, Income Tax As sessmen t Ac t 1936-1976, the So c i al

Service s Ac t 1947-1976 and the Health In sur a nc e Act

1974-1976. ASIO is bound by these statutory provisions,

and should strictly comply with them.

154. ASIO frequently requires to obtain the full

name, address and occupation, and for greater certainty,

the date of birth of a person for identification purposes .

Thus its records may contain information about a person

whose surname, initials and approximate age are known

and proper identification requires further particulars.

It would frequently be of great assistance to its inquiries, and in some cases may prevent an injustice,

if it could obtain full identifying particulars from departments which have obtained them under conditions

of absolute or provisional privacy.

155, I do not think that this is appropriate in

those cases where the relevant statute imposes an

absolute prohibition on disclosure, or an absolute

prohibition. except to nominated persons or bodies (not

including ASIO). Examples are taxation and census

returns. Where the prohibition is qualified by a provision empowering the Minister or other officer

to authorize the communication of the information,

87.

88.

in appropriate cases ASIO should be able to take

advantage of the qualification.

156 . Sometimes it is also provided that information

may be divulged to a prescribed authority or person.

In some cases it may be proper to prescribe ASIO as

such an authority in respect only of the information

I have described above, but in deciding whether this

should be done it should always be borne in mind that

there may be a tendency to give additional information

once some access is given to the data which a statutory

authority holds.

157. There are other records systems in respect

of which no such legal prohibition or regulation

applies. Thus records as to births, deaths or marriages,

the ownership of vehicles or of land, particulars

concerning public companies and many other records are

freely available to the public and should be equally accessible to ASIO. There are other systems of records

where, although no law prohibits the disclosure of their

contents, information contained in them should not be

disseminated unless there is a real need so to do.

Thus the various financial credit records systems should

not be available to anybody who does not have a valid

interest in the credit rating of the person, the subject of the record. At times ASIO may have such an

interest, and if it does, and only if it does, it

should have recourse to this type of record. At times

it may be possible for ASIO to seek the consent of a person under investigation to its having access to

records concerning him, and such a course would, if

possible, be very desirable. (Filling in an application

form which plainly discloses the likelihood that inquiries

will be made is to be taken as signifying the subject's

consent).

158. I do not recommend any general legislation

giving ASIO access to identifying information from all

departments or statutory bodies. It should be noted,

however, that in considering any future proposals for

legislative guarantees for privacy of the individual, account should be taken of the position of ASIO.

(vi) Entry and search of premises

1 It has been necessary for security services

throughout the world from time to time to procure the

entry into and the search of premises, particularly for

counter-espionage purposes. Entry and search are e xecutiv e

actions of a kind which it is generally appropriate for a

police force rather than a security service to carry out.

Indeed these powers were amongst those which Lord Denning

instanced in his report as examples of powers which a

security service can get along without having. [4-59]

4-59 Denning Report, para 273.

89.

90.

160. Section 10 of the Crimes Act contains

provisions authorizing the issue of search warrants

in favour of a Commonwealth Police officer or a member of the police force of a State or Territory.

They may only be issued where an offence against a

Commonwealth or territorial law has been committed,

or where there are reasonable grounds for suspecting

that such an offence has been or will be committed. They cannot be used for a search which is a "fishing

expedition". In executing the warrant, the constable

may enter the premises with such assistance as he

thinks necessary.

161. Part VII of the same Act, which deals with

espionage, official secrets and related matters,

contains provisions authorizing the granting of search

warrants to any constable or Commonwealth Officer

(which expression includes an officer of ASIO), [4-60]

where there is reasonable ground for suspecting that

an offence against that Part has been, is being, or

is about to be committed. The person named in the

warrant may execute it with such assistance as he thinks

necessary, and he, and the person who applied for the

warrant, must forward to the Attorney-General a report

of all the circumstances relating to the grant and to the

execution of the warrant respectively. [ 4-61]

4-60 ASIO Act, s 15.

4-61 Cr imes Act 1914-1973, s 82.

162. There are many circumstances in which it is

essential for ASIO to co-operate with, or to seek the

co-operation of, the appropriate police force, and the

entry and search of premises in the circumstances

described in ss 10 and 82 of the Crimes Act is generally

such an occasion. In these cases, assuming that ASIO

is not in a position to enter with the permission of

the person in possession of the premises, it should

generally seek the co-operation of a police force, and

its officers should enter and search premises only as assistants to the constable executing the warrant. ASIO should apply for search warrants under s 82 of the

Crimes Act only in special circumstances, eg, urgency.

If it does obtain such a warrant, it should exercize

the greatest care to see the provisions of the Act are

strictly complied with.

163. There are some special circumstances, other

than those described in ss 10 and 82 of the Crimes Act,

particularly associated with espionage, when it would be proper for ASIO, if it had the power, to search

premises for documents and records. The purpose of such

a search would not be to obtain evidence, but to obtain

intelligence. [4-62] Thus if a person has been seen

4-62 Although collected as intelligence, some material obtained in such a search may later be used as evidence. This possibility points up the need for co-operation in various ways with police,

a need which is discussed in Appendix 4-N.

91.

92.

on numbers of occasions associating with a known member

of an unfriendly foreign intelligence service it may be

quite proper for ASIO to search premises occupied by

that person to see whether there is any document or record which would throw light on the nature of that

relationship. If some document or record is found it may establish that the offence of espionage has already

been committed, and may show what it is the foreign

intelligence officer is seeking. Without going this far it may show that, although the offence of espionage

has not yet been committed, the foreign intelligence

agent has established, or is in the course of

establishing, a relationship with the other person which is likely to result in espionage.

1 6 4. Intelligence of this kind is of vital importance

to security services. It is often difficult or impossible to obtain it without operations involving,

eg, the interception of communications, the "bugging"

of premises, or the searching of premises, or a

combination of these actions. It is arguable that ASIO

has a right to enter and search in order to obtain

intelligence, [4-63] but in any event, I think that,

4-6 3 But see the 18th Century decisions that ended the system of general warrants to enter and search issued by Secretaries of State. (Wilkes v. Wood (1763) Lofft.; 98 E.R. 489;

Entick v. Carrington (1765) 2 Wils. 275; 95 E.R. 807).

in this class of case, ASIO should have limited and

controlled right of examination and search; the right

should be exercizable only upon warrant granted by the

Minister, and only where the Minister has been satisfied

that there are reasonable grounds to believe that

documents or records may be situated on the premises

without which, or without intelligence concerning which,

ASIO's function of collecting security intelligence, in

respect of an important matter under investigation, would

be prejudiced.

165. The right should not be exercizable in relation

to domestic subversion unless the Minister is satisfied

that the person or organization occupying or using the

premises is already engaged in subversive activities.

166. These warrants, which should be exercizable at

any time, should be limited to searching for documents

and records, and should authorize their inspection,

copying or removal. ASIO should be required to make a

report to the Minister concerning the results of any such

entry or search.

(vii) Surveillance

167. Since World War II, a number of western s e curity

services have found it essential to maintain a well trained surveillance capacity to observe the movements,

activities and contacts of persons of security interest.

93.

..

94.

In conjunction with modern technical eavesdropping methods '::,.

and sophisticated agent operations, the practical

product of surveillance - in spite of the resources

::"' it requires - is regarded as a fundamental arm of the

work of security intelligence collection.

168. The principal basis for the collection of security

intelligence is to cover or intercept the targets most vulnerable area of activity, the act of communication

with other persons connected with his objectives. An

intelligence officer or terrorist can and often does avoid technical interception by using premises and

telephones not covered by eavesdropping devices and

.,,

is cautious in his dealings with persons who might possibly be security service a gents. Eventually, however,

a physical meeting or some other type of practical

contact with his must take place.

·,,,

169. Unless a security service has reasonable

'•·''

... resources to cover this link in any espionage, active

measures, sabotage, subv ersive or terrorist undertaking,

it will b e neglecting a v ital are a of security

intelligence collection. There is no substitute for visual e v idence of a n i n t e lligence officer meeting a contact

in clandestine circumstance s or a terrorist conferring with

previously unidenti f i ed persons. [ 4-64 l

4- 6 4 Doc A 101, paras 1.1 - 1.3.

170. The proper performance by ASIO of many of its

functions necessitates the surveillance of individuals,

groups of persons, or of places. According to the

circumstances the surveillance may be static or mobile.

Thus, in performing' its functions concerning espionage,

ASIO officers may frequently have to follow the movements

of a person, and watch the contacts he makes and the places

where he works and lives.

171. In the area of subversion or potential sub-

version difficult problems can arise, and more caution

is required, particularly in distinguishing between the roles of ASIO and the police. Public demonstrations are an example of the problem area. Demonstrations in public

places are primarily a matter for the police. It is

their function to see that violence does not erupt, or that it is quelled or controlled. It is their function to obtain any necessary evidence to support a prosecution.

ASIO is only concerned with a public demonstration if,

from intelligence or from the very nature of the proposed

demonstration, it appears that it is or is likely to be

organized or to be taken advantage of by subversive

4-65. Where it is necessary for a record to be

taken, it is appropriate for photographic equipment to be used overtly or covertly to make that record.

95.

96.

elements for subversive purposes or is otherwise of

security interest. If it does not, and in the event the

demonstration is of security interest, it would be proper

for ASIO to seek any security intelligence about the

demonstration which the police had obtained. But

a public demonstration is not, without more, a matter to

attract the interest of ASIO.

172. Although there are many situations in which it

is proper that ASIO should conduct surveillance operations, there are few situations where it should

be done as a matter of course. To "watch and beset"

a person or a place is a serious intrusion into privacy

and cannot be treated as if it were an ordinary fact of

life. [4-66] While it is difficult to imagine

objections, apart from those based on efficiency, to the

surveillance of an identified intelligence officer of

a foreign power, the surveillance of a person who is not

the agent of a foreign power can only be justified by

necessity, established to the satisfaction of a reasonably

senior ASIO officer.

(viii) Human sources 173. Because of the nature of the functions of

4-66 . "Watching and besetting" premises without legitimate cause may amount to an actionable (and restrainable) wrong: ( .To h... "1 G. Flemmi ng, Law of fourth edn, Sydney , 1971, p 528)

a nd sometimes may , as ma y the following of a

person, be a crime. (See, eg, Crimes Act,

1900-1974 (NSW), s545B).

a security service, people have always been one

of the most important sources, if not the most important

source, of security intelligence. ASIO relies on a

variety of human sources to collect and pass on to it

information concerning the matters within its charter.

174. Some of these 'sources are called "agents",

and are briefed and paid by ASIO to penetrate (if they

have not already done so) organizations or to form

associations with people, and to report to ASIO

any security inuelligence which they obtain. They

are presumed to be under ASIO's control and direction.

175, Some other sources are known as "contacts"

and perform much the same role as "agents'', but without

the degree or continuity of involvement and generally

without the payment that occurs in respect of "agents".

They are not presumed to be under ASIO's control

and direction.

176. Beyond "agents" and "contacts" there are

"informants", members of the public who, from a sense

of duty or for other motives, pass on to ASIO security

information. Some of this information may be reliable;

some may not be. Before use, it would generally have

to be carefully checked. I discuss one such type of

source, private intelligence organizations, in paras

183 and 1B7.

24818177-5

97.

98.

177. There is in Australia some feeling of

antagonism to agents, based I think on the deception

that is involved. An agent has to be accepted by the

persons about whom he is reporting as one of their

number, and as sympathetic to their objectives. In

fact he is not one of their number, and may not be

sympathetic to their objectives. Whatever justification

there may be in this antagonistic attitude, there is no

doubt that a security organization could not perform

its functions adequately without making use of people who are prepared to take on such a role. Perhaps implicit in

these observations is a view that agents are often,

although by no means always, unusual people, and a

security organization must take great care in their

selection and handling.

1 78. Having taken care in the selection and handling

of an agent, it is then necessary for ASIO to continue

to exercize the same care in establishing the credibility of the agent's reports. The same need exists with other sources. Sometimes a source may produce a

record which is impeccable, or as impeccable as the facts

of life allow. Thus he may produce a document, or he may

produce a tape recording of a conversation, which appear

to be authentic. More commonly sources report what has occurred, and the reliability of their report depends upon

their briefing, their own reliability and honesty, their

powers of recollection, and at times 1:heir ability to

understand what is happening and what it is they are

reporting about. [ 4-6 7]

179. Testing the reliability of the source's report is

a matter calling for the exercize of considerable judgement,

as well as careful chec'king with any available collateral

material. The report of the ASIO officer about what the

source has told him itself involves issues of reliability.

It is for this reason that, so far as practicable, any

notes which are provided by sources, or are made by ASIO

officers in respect of sources' reports, should be obtained or retained by ASIO as a check against what the ASIO

officer in due course reports the source has told him.

180. Because agents are of such importance to the

performance of the functions of a security organization,

it is critical to the organization that their identity is protected. This does not mean merely their names should

not be revealed; the contents of an agent's report c ould give

a lead to his identity.

181. If an agent's identity is disclosed his access

to the target organization or person is likely to be

closed. He will be embarrassed if not endangered, and

breach of his confidence with ASIO is likely to cause him

4-6 7 A basic training for intelligence collectors is

skilled interrogation. The need to build up a highly experienced team of interrogators is often neglected by intelligence services. See lecture by John Bruce Lockhart, 21 November 1973, entitled

"The Relationship between Secret Serv ices and Government in a Modern State"; published in the RUSI journal, Vol 19, No 2, June 1974, p 5.

99.

100.

to cut his ties with ASIO even if he could be of

further use to it. Other ASIO sources who learn that an

agent has been blown may cut their ties with ASIO.

Potential sources may be deterred. Apart from agents, any person who supplies information to ASIO in confidence

is likely to be embarrassed, and perhaps prejudiced in other ways, if that fact is disclosed. It is important

that ASIO protects the identities not only of agents, but of all confidential human sources.

182.. In dealing with any human source, it is

important that the organization should not appear to

have any political alignment, that it should not "trade"

information with human sources, that it should not use

blackmail or threats to induce people to co-operate,

and that informality of relationships should not produce

any infringement of the rules of legality or propriety

to which I already have referred.

(ix) Private intelligence organizations

183. I said in para 176 that ASIO is entitled to

consider and assess any information which it receives

and which is relevant to its functions. There is,

however, one source of information to which I should

make special reference.

There have, in the past, been Australian

organizations or groups of people whose object, or one

of whose objects, is the collection of "security

intelligence". They have almost always been concerned

with what they considered to be subversive activities,

and in particular with allegedly subversive activities

by extremists of the political left.

185. If these organizations or groups proffer

intelligence to ASIO, then no doubt it is a matter for

ASIO to decide what should be done with it. If it is

thought appropriate, ASIO is entitled to collate it

with other intelligence, to investigate it further, to

assess it or otherwise to deal with it in the

performance of its functions.

186. It is, however, most important that ASIO

should not use these organizations and groups as if

they were collection agencies for ASIO or otherwise

than as citizens who are offering to give information

to ASIO. Commonly these organizations and groups are

known to the general public, and they are also

generally known to have some particular political

affiliation or leaning.

187. I shall discuss later the importance of ASIO

being, and appearing to be, politically impartial.

Although this does not require that it should not

receive information from political organizations or

101.

102.

their members, it does mean that care should be taken in any dealings with them, and that these should not

be close relationships. If necessary, a DG should

take personal steps to make it clear to such organizations

that he is in no way beholden to them. For similar

reasons, ASIO staff should be advised to be very careful

about their dealings with such organizations lest the

proper of impartiality be lost or appear to be

lost.

(c) ASIO's records

(i) ASIO's requirements

188. ASIO is an intelligence organization and is

required to make assessments based on the information

it collects. Consequently one of its primary require­ ments is to have an adequate records system for the

storage and retrieval of information. Since much of the

information is highly sensitive, both from the point

of view of the nation and of any citizen to whom it may

relate, it is of the greatest importance that its records system, as well as being efficient, is secure,

and that access to the records and to the information

they hold is strictly controlled.

189. The present .records system comprises a

large number of files (in which term I include any

collection of documents or any reports) and of cards

intended to enable the ready retrieval of the information

contained in the files. There is as yet no computer

storage. There have been and still are some serious

deficiencies both in aspects of the existing records

system, and in the control of access to the information

which the system holds. I have been informed that

measures are now in hand to attempt to remedy these

deficiencies.

190. The design and control of the records system,

including the question whether the information it

contains should be computerized, are matters for

management and other experts to decide upon and to plan.

In this report I refer only to some matters to which

regard should be had in the making of any decisions,

and in any planning and designing.

191. Central to any decision and to any planning

and designing should be the fact that the efficiency

and security of the records system are amongst the

most important aspects of carrying on a security

intelligence organization. Accordingly ASIO should get the best available advice to assist it in making

the necessary decisions and in planning and designing

its system. It should devote any necessary resources needed to establish it and to make it function properly.

The system should be controlled and staffed by

experienced and able officers, whose quality should

103.

104.

make it apparent that "Records" is not some Siberia

to which less adept officers are exiled.

192. The security of a records system is not

something which is established once and for all. In

order to be secure, the system must be under continuous

check and audit. Any apparently improper, irregular

or excessive access should be promptly reported. To

help ensure security, records of ASIO's security

intelligence, whether the system used is a card system, computer system or any other system, should be kept

quite separate and distinct from the records of any

other service. Thus if a computer system is used,

ASIO should not record its intelligence in a computer

which is also used by, eg, a police or other law enforce­

ment service, although some degree of sharing with other

Australian intelligence services may be feasible and would

be cost effective.

193. In the control of access to ASIO's records,

the "need to know" principle should be strictly, but

sensibly, applied. The phrase "need to know" is thought

trite by some. They see it as a refuge for the dilatory,

an alibi for the forgetful, a tool to the power seeker,

a comfort to the exclusivist and a hindrance to the

intelligent researcher whose stimulus comes from a wide and varied range of information. The fault has been not

in the "need to know" principle, but in its application.

It is a subjective test. But the phrase "need to know"

expresses, as well as one can shortly, the essential

principle that the dissemination of security intelligence

should be on the basis of need rather than mere curiosity.

194. I have discovered in the course of my inquiry

firstly, that despite control procedures, many ASIO personnel in fact have had access to files, sometimes

without adhering to the ' procedures, and at other times

without any or any sufficient need to know; secondly

that some ASIO personnel have been denied access to

files in cases where, in my view, there has been an adequate need to know. Some of the questions involved

in deciding whether there is a sufficient need to

know to justify access involve matters of policy and

should be decided at the highest level. In all cases

the system of access control should be strictly applied,

and there should be supervision of its operation by

skilled and experienced officers.

195. Not a few members of the public are concerned

that ASIO might have a "file" about them. Being on ASIO's records is not, and should not be seen as, akin

to having a police or criminal record. A very large

number of ASIO's files establish that persons are not

security risks. [4-68] But apart from this at times

4-68 They include people in vetting categories -people in certain Commonwealth Government employment, and immigrants - of whom ASIO almost certainly have a record.

105.

106.

important intelligence, ASIO needs a bank of information.

196. A requirement that ASIO destroy all records about

people whom it has not established to be security risks

is not justified. Such a requirement is based on a

simplistic idea about the nature, and the difficulty, of ASIO's task. Information cannot be assessed until

after it is collected. Apparently innocent information about people might, after the addition of other

information, assume a different appearance. The reverse

can also happen. However ASIO does hold many records

which are not, or are not now, of actual or potential

security relevance. As resources allow, these records

should be destroyed. I have been told by the DG that

a start has already been made.

197. While ASIO's task should be confined to collecting

intelligence relevant to security, it must be given a broad brief to do so, subject to the principles and in

relevant cases the controls that I have previously

discussed.

(ii) Access to ASIO records by members of the public 198. In line with a general trend towards more "open"

government, submissions have been made to me that members

of the public should have access to any records held by

ASIO which relate to them, or at least to information

as to the contents of those records. Sometimes these

submissions have been based upon what is claimed to be

the analogy of the US Freedom of Information Act of

1966, and its amendment in 19.7 4. This American legislation

does make many government records accessible to members

of the public. But there are many qualifications to that

right of access, including records duly classified as

Secret, records which "disclose the identity of a

confidential source", and, in the case of a record compiled

by an agency conducting a lawful national security

intelligence investigation, "confidential information furnished only by the confidential source". It will be

seen that these qualifications would exclude most records,

or the contents of most records, held by ASIO in respect

of particular persons.

199. I have already made recommendations for the

furnishing of information in cases where that information

has been, or is proposed to be, used to the prejudice

of a member of the public, so far as such a disclosure

is consistent with the requirements of security. These recommendations relate to the disclosure of information

where it has been used or is being used in a "vetting"

case. I think that at present this is the limit to which

it can reasonably be expected that disclosure should be made about security intelligence held by ASIO. I do not

consider that a person who thinks that it may be suspected

that he is a spy should be entitled to require ASIO to

show him the records, or to give him the information,

107.

108.

which relate to his case. Nor should such a person, nor

anybody in an analogous position, expect to be told by

ASIO whether they do hold suspicions about him and

consequently hold records concerning him. It may be

that in the future some classes of case will arise which will establish a need to enlarge the circumstances in which information concerning records should be given to

a member of the public or in which a member of the public

should have a right to have a review tribunal set his

record right. No such case has been established in the

course of my inquiry, either by the submissions of any

member of the public, or as a result of my own investigations.

(d) Assessing intelligence

200. ASIO is not only a collection agency. It

also has the job of assessing the intelligence it

obtains. I am not satisfied that it has performed

this duty well enough. I shall, later in this section,

suggest some means of improvement.

(i) The nature of assessment

201. "Intelligence" originates as information which

is processed and - generally - assessed, before it becomes a finished product; in ASIO's case "security

intelligence". Shortly, processing involves the abstracting and collating of the relevant items of

information, and assessment involves an estimate of

credibility and value. [ 4- 6 9]

202. Assessment should an integral part of the

intelligence cycle. Whatever the source of information

ASIO collects, it must be critically evaluated and

4-69. In the trade, people talk of the "intelligence cycle". The Australian Joint Serviaes Staff Manual Glossary, for example, define the cycle this way:

"The steps by which information is assembled, converted into intelligence, and made available to users. These steps are in four phases:

A. Direction Determination of intelligence requirements, preparation of a collection plan, issuance of orders and requests to information

collection agencies, and a continuous check on the productivity of collection agencies.

B. Collection The systematic procurement and selection of information per tinent to a given intelligence problem. c. Processing

The step whereby information becomes intelligence through evaluation, analysis, integration and interpretation.

D. Dissemination The conveyance of intelligence in suitable form (oral, graphic or written) to agencies needing it:' (JSP (AS) 101,

ptl,pl21). This definition illuminates the nature of the process by which intelligence is produced. It also brings out the distinction between so-called

"raw" and "finished" intelligence; (see my third report, paras 14 and 15).

109.

110.

assessed soon after collection. Simply to store it,

or to sort and store it, does not produce intelligence.

It only produces voluminous not very useful records.

203. ASIO cannot stay abreast of developments, and

adequately advise the Government unless it assesses

incoming information and, by extension, the sources of

it, promptly.

204. The process of intelligence production must be

one of distilling what is most relevant from a large

volume of material. In this way, trends are identified

and overall perceptions of the situation develop.

205. One aspect of particular significance in the

assessment of security intelligence is that a lot

of it is assessment of people. Human sources, whether

agents, contacts or informants, are infinitely variable

in their intelligence, judgement, access to information, powers of memory, and so on. The

intelligence assessor must decide how much he can rely on each source and on each piece of information coming

from that source.

2 06. Another aspect of the assessment of people is

in security checking work. A judgement about a person's

security standing is not to be made in the way that,

after so many traffic offences, a person may have his

driving licence withdrawn. There is nothing

automatic about a security assessment. Yet I have

seen ASIC officers' references to "adverse information ..

as if the mere quantity of it were enough to justify

an adverse assessment.

207. The intelligence analyst faces a situation

where his information, coming from different sources

and with widely varying credibility, must be

constantly and sceptically appraised. In security work

nothing can be assessed to be what it seems. The

other side takes advantage of deception and

disinformation which it has developed to a high pitch

of sophistication.

(ii) The skills needed 208. Thus intelligence assessment is no simple or

routine activity but a highly skilled and subtle

task. I must report that I saw little evidence in

ASIC that the qualities of mind and expertise needed

were recognized, or available in any large measure.

209. The intelligence officer needs to be a person

of good education, sound practical sense, and with an

insight into people. He or she must have good research

111.

112.

skills [4-70] and the ability to think and write clearly. He needs to be sensitive to political policy issues before the Government. ASIO needs

to encourage those in the organization who have

manifested these qualities, and to seek vigorously

in the market place for more such. [4-71]

210. But intelligence analysis also needs access

to a range of experts. I shall mention only a few.

211. First, there are people with skills in

information storage and retrieval. The need for

ASIO to attend to this matter is very great.

212. Secondly, people with skills in languages

are needed. ASIO does not have a good record here.

213. Thirdly, ASIO needs people with some expertise

in political science and related disciplines. ASIO should be a place where the study of marxism, in all

its forms and manidestations, is a high academic discipline. Some people in ASIO should have not only graduate, but postgraduate, qualifications in these areas.

4-70

4-71

The Church Report says: "Good research is critical to a good counter­ intelligence effort ... " (Book 1, op cit, p 169).

These problems (in paras 208 and 209) have been recognized. Steps are now being taken to remedy the matter by making full use of the talents that are available and by a programme of recruitment.

214. ' Fourth, since ASIO is so much involved with

looking at people, there ought to be officers with

skills in sociology, psychology and related areas.

215. Fifth, technical and scientific expertise

may be needed more often than is believed. Where

espionage is so often devoted to stealing technical

and scientific secrets, the means of attack may not

always be apparent to a layman.

216. In partE, I make further observations relevant

to this matter.

(iii) Credibility and reliability 217. ASIO should develop processes of evaluation

of sources, independently of the operations area.

It must have the resources to do its job properly. It must have complete access to all material bearing on its task in each case.

218. Each intelligence report should also be read

by the appropriate ASIO intelligence desk officer.

He should be given clearly to understand that it is

his function critically to examine such reports, and

not just to take the information they contain at face

value. If he doubts the accuracy of a report, the

system should ensure that the query is resolved quickly

and objectively.

113.

114.

219. I stress objectivity because there is a

tendency, especially with those running agents, to

think that their agent "must" be reliable. He may

not be. He may be a clever liar. Other information,

from independent sources, is needed to establish

objectively the truth of any and every agent report.

2 20. Assessment and evaluation is also needed to

maintain an effective intelligence collection programme.

Without monitoring incoming intelligence, ASIO could

not gauge whether it adequately covered existing

intelligence targets and properly determined new ones.

221. Without checking information supplied by agents

against independently verified information, and without

having regular assessments made of the agent operations,

I do not see how ASIO can place reliance on its agent

reports. In part E of this report I shall examine

changes in ASIO's structure and working methods needed

to achieve adequate assessment of intelligence.

(e) Intelligence dissemination

(i) The discretion to communicate security intelligence

222. Intelligence is not collected in order to

establish a library. Its collection is only justified by its use. Decisions as to its use are important and

at times difficult. Much intelligence may only be

relevant, or may be primarily relevant, to ASIO itself.

Other intelligence, however, in order to be exploited

in the interests of security, must be communicated to

other persons. Great difficulty lies in determining

when and to whom it is proper to communicate intelligence,

and in establishing proper safeguards to ensure that it

is not communicated othe·rwise.

223. ASIO cannot operate effectively without a broad

data base. It needs a broad brief to collect

intelligence that could be relevant to security but there is no valid case for it to communicate informa­

tion not relevant to security, or to communicate

it otherwise than for the purpo$e of security and through proper channels.

224. The discretion as to what intelligence should

be communicated, and as to the persons to whom it

shall be communicated, is given by s 5(1) (a) of the

ASIO Act to the DG. Any communication is proper only

when the DG considers it to be "in the interests of

security". In this context I think security is to be

construed in the statutory sense specified in s 2 of

the ASIO Act.

2 25. Material before me established that from time

to time there has been improper communication of

115.

\I

116.

intelligence held by ASIO. Often the communication has

not been formally authorized and has been done by an

officer who has had access to files or otherwise has acquired intelligence in the course of his duties. In

some cases the intelligence has been given in exchange

for information, or as part of a relationship involving

an exchange of information. In some cases the officer

making the improper communication has been authorized

to make it. [4-72]

(ii) Unauthorized or improper disclosure 2 26. The Act itself contains no express provisions

prohibiting the unauthorized or improper communication

of intelligence, and imposes no penalties in this

regard. The intelligence held by ASIO about individuals

is often highly prejudicial to them, and its dissemination should be strictly controlled by legislation

4- 72 I have found evidence of cases where MPs have

to Attorneys-General seeking informa-

tion from the minister as to ASIO's knowledge about a person. It is in my view improper for

an MP to ask such questions for remission to ASIO, improper for a minister to transmit them to ASIO in the expectation of a reply and improper for the Director-General to communicate

information on persons by way of reply to the MP's inquiries. It is not, of course, unlawful for the Director-General to do so, given the terms of s 5(1) (a) of the Act, if he is satisfied that it is

"relevant to security'' for him to do so. I can,

however, envisage few cases where a Director­ General should be so satisfied.

as well as by ethical rules. The minimum controls

which should be contained in the legislation are that

the communication may only be made by the DG or by

somebody authorized by him, either generally or in the

particular matter; and that the communication of any

intelligence by an unauthorized person, or otherwise

than for the purposes of 'the Act, should be prohibited.

Persons who infringe these provisions or who authorize

its infringement should be subject to severe penalties.

227. It is true that legislation alone will not

ensure that no-one with access to ASIO's intelligence

speaks out of turn. But the least that must be done -

as is done in other legislation,. as, eg, the Income Tax

legislation - is to prohibit and penalize it.

228. People to whom ASIC disseminates intelligence

should be under an obligation not to disseminate it

117.

further except on a strict need-to-know basis and for the

purpose of implementing security. In appropriate cases, the

person should be required to return to ASIO the document

Gontaining the information after he has used it for the purposes

it was supplied.

229. ASIO should, as a matter of invariable practice,

record all instances of disseminations of security

intelligence, whether made in writing or orally. One form the record could take would be as a sheet on each

118.

ASIO file. On it could be recorded references to all

folios in the file making or evidencing security /

intelligence disseminations. Senior officers should see that whatever system is introduced is observed.

(iii) Communication to government 2 30. The principal persons or bodies to whom it may

be proper that relevant intelligence held by ASIO

should be communicated are the ministers, departments

and statutory authorities of the Commonwealth. There

is a need both for ASIO to appreciate the of ministers, departments and statutory authorities to

have intelligence which is within ASIO's charter to

provide, and for ministers, departments and statutory

authorities to appreciate the role and capacity of ASIO to collect and provide that intelligence.

231. In the course of my inquiry, it has become

very apparent that there is often far too little

communication and liaison between ASIO and these persons

and bodies. In consequence much intelligence that could

be obtained is not sought, and much intelligence that is

obtained is not used. Often barriers seem to have been

created between ASIO and the persons and bodies it should

provide with intelligence. Much attention must be given

in the future, by both sides, to removing these barriers.

232. It is apparent from the provisions of the ASIO

Act that, in the past, it has been accepted that ASIO's

role should be advisory and not executive. I think

this policy is the right one. It accords with that

recommended by the Canadian Royal Commission on

Security which, when dealing with the vetting of public

servants, said:

2 33 0

"We agree that the final responsibility for decision-making must rest with the departmental authorities; we neverthe-less believe that the Security Service

should have a duty to provide meaningful advice to help with the decision, and that it should do this not only by

providing as full information as possible but also by commenting on the importance and significance of the information it provides and by making formal recommendations concerning clearance". [4-73]

As well as emphasizing the advisory role of the

security service this statement emphasizes that the

persons or bodies making those executive decisions are,

where appropriate, entitled to receive meaningful advice

and full information so that they will have a proper

basis on which they can make their executive decisions.

2 34 0 These decisions are often difficult, sometimes

they are extremely sensitive, and they may have a most

prejudicial effect on individuals. It is therefore

4-73 Report of the Royal Commission on Security (Abridged) , Ottawa, June 196 9, ("Canadian Royal Commission's Report") J para 94.

119.

120.

important that before they are made there has been the

utmost co-operation between the department or authority

and ASIO, and that ASIO has provided all the help it

can. [4-74]

(iv) Particular cases

2 35. To illustrate the criteria which should apply in

determining whether intelligence should be communicated and

the proper channels of dissemination, I shall deal with:

Intelligence concerning persons employed or

wishing to be employed in the private sector.

Intelligence concerning persons employed or

wishing to be employed in an educational

institution. Intelligence concerning the activities of

trade unions and their officials.

Intelligence dissemination to the press and

other media.

Intelligence concerning persons employed by

States and their instrumentalities.

4-74 Sometimes a question of security may arise which involves more than one department or authority. It may be that what has happened within or concerning any one of the departments or authorities may not justify the seeking of assistance or

advice from ASIO, but the combination of them does justify ASIO's intervention. At present there is no machinery to ensure that, in such a case, ASIO is fully informed, and that its assistance or advice is sought. Some co-ordinating authority is necessary. That authority will, I think, be found in the higher intelligence machinery I recommend in my third report.

(a) The private sector

236. ASIO has a function in relation to people in

the private sector which is an extension of its role

in relation to public servants.

237. Sometimes an employer in the private sector

is concerned with classified material, as, eg, where

he is carrying out defence contracts. It is common

and proper practice for employees in private businesses

who will have access to classified material to be

subjected to the same vetting processes as are public

servants with this access.

238. When ASIO vets employees in the private sector

because of proposed access to classified matter, it

should be concerned only with security and not function

as an employment agency or to promote or to ensure

industrial peace per se. In all such cases the security assessment should be communicated tofue sponsoring

department which lets the contract and not to the

private employer.

2 39. In order to justify the communication of

intelligence about an employee otherwise than because of access to classified material, the case would have

to be one where ASIO was satisfied that the employee

was making use, or was likely to make use, of his

121.

122.

employment to carry on activities which would prejudice

the security (in the defined sense) of the Commonwealth.

The most likely type of activity to be considered by

ASIO in such a context is subversion. I have previously

discussed the nature of subversion in some detail, and

industrial disruption, without more, cannot be regarded as subversive. In a time of war, there may be "more".

In times of peace, ASIO may have intelligence which

shows that an organization has a grand subversive

strategy of which industrial disruption is a part.

But it does not follow that every industrial action

in which that organization or its members are involved

is subversive or that the seeking of employment, or the being in employment, of any member of that

organization is a matter of subversion, and hence

a matter relevant to security. It may be that

intelligence is held that a person's employment is part of a subversive scheme, and that intelligence is then,

of itself, relevant to security, and could be communicated

to the appropriate authorities if communication was

seen by the DG as being in the interests of security.

Again, it may be that the employee is, or is seeking

to be, employed in an industry whose proper functioning is vital to the defence of Australia, or whose disruption or dislocation would, at the time, prejudice

Austr'alia' s security, [4-75] In the exercize of his

discretion the DG could then give information about

that likelihood to the appropriate person, who would

normally be the secretary of the Department of Employment

and Industrial Relations. It is, however, only in these

limited and exceptional circumstances that the

communication of this type of intelligence would be

justified.

240. Employers, too, might properly be vetted,

especially in the case of contracts giving access to classified information.

241. But if the established pattern of conduct of

an employer in the industrial sphere is such that he is

likely at any time to have employees on strike, whatever relevance this may have to persons, including Government

4-75 For example, if there were submarines of a

foreign power navigating in Australian waters and the Royal Australian Air Force were surveilling them, the disruption of some industry critical to the continuance of that

surveillance might, at the time, prejudice Australia's security; and the employment in that industry of a person intelligence concerning whom is held by ASIO establishing that he was

likely to organize the disruption of that industry at that time would be a matter with which ASIO could properly be concerned.

123.

124.

departments, who wish to make contracts with that

employer, it would not be a matter of security

concern except in circumstances analogous to those I

have described in relation to employees. It would

only be where the employer's actions are judged by

the DG to be likely to prejudice the defence or

security of Australia that he would be entitled to give information concerning the employer to the

appropriate persons or authorities.

(b) Educational institutions

242. A similar approach is to be made with respect

to persons who are members of the staff, or have applied to become members of the staff, of a university or other educational establishment. The only occasion

to communicate intelligence concerning them arises

where that employment is likely to affect the security

of the nation and the communication will advance the

interests of security. That they hold radical views or may action disrupting the institution's

affairs, are not matters justifying communication. It is only if their activity is, or is likely to induce

others to be, subversive, or is otherwise prejudicial

to the security of Australia, that the DG would be

entitled to communicate intelligence about them. Thus if the DG is satisfied that a member of a university

staff is inducing or is likely to induce his students or his confreres to carry out acts of violence for

subversive purposes, then the DG would presumably consider

it proper, in the interests of security, to communicate intelligence concerning him to the appropriate authorities. [ 4- 7 6] But great care must be exercized in this field, particularly in distinguishing

between fact and theory, and between radical thought

and revolutionary expression. The DG may well

want to consult his minister before taking action in

this area.

(c) Trade unions

243. The third area concerning which difficulties

arise in respect of the communication of intelligence is that of trade unions. ASIO does not, and properly does not, surveil employer o r ganizations or trade

unions as such. However, the surveillance by ASIO of

left-wing radical organizations judged to be subversive

or potentially subversive, and of the members of those

organizations, has led to ASIO obtaining intelligence

concerning the activities of trade unions which are

4- 76 As to who is an appropriate authority, see

paras 256 to 260.

125 '-.

12 6.

controlled by members of those organizations or

which the members of those organizations seek to

control. As in the case of the organizations and of

their members, the communication of this intelligence can only be a matter of concern for ASIO, or

justified, if it is judged to affect or to be in the

interests of security. Activities do not affect security merely because they make for, or do result

in, industrial disruption.

244. However, industrial disruption may affect

security, and thus properly attract the attention of

ASIO. This could be the case in respect of the

disruption of undertakings carrying out defence

contracts, but it could be in other cases as well.

If I may illustrate this point by way of analogy, Australia has a "key points" system in its defence

organization. These "key points" are places the

destruction of or damage to which would affect Australia's

defence and security. They include defence installations,

but they also inclnde essential features or services,

such as water and power services, transportation

facilities and basic industrial sites. Whilst ASIO would only in unusual circumstances be justified in

times of peace in regarding an individual employed in

any such place or service as a threat to security

(except for special defence undertakings or installations)

it may at times be justified in regarding the disruptive industrial activities of a subversive organization, operating through a trade union or otherwise, as

being so extensive or of such significance as to

attract its attention. In this class of case the DG may, in the particular circumstances of a case, be

justified in communicating to the appropriate officer of the Commonwealth department for the time being

dealing with industrial relations, presently called the

Department of Employment and Industrial Relations,

intelligence collected by ASIO about the subversive or potentially subversive activities of that organiza­

tion or its members in the industrial field. What this means in practice -is that there are circumstances when the DG is entitled to communicate to the

Department of Employment and Industrial Relations

intelligence concerning actual or potential industrial disputes, but only when he considers that that communication is advisable for security purposes. The

intelligence which is communicated in those circumstances should be only that intelligence which is relevant for

this purpose. The communication must be part of a security oversight, and not part of an industrial

oversight.

(d) The press and other media

245. Evidence is available to me that satisfies me

127.

12 8.

that ASIO has in the past provided selected people with security intelligence material for publication. [4-77]

246. The material provided was apparently drawn

from information available in the public arena. It

seems to have been ASIO's intention that the material

be not attributed to it.

247. As the NZ Ombudsman reported of similar events

there:

2 .48.

"What was done was done with the intention of combating subversion and/or communism. The intentions were no doubt laudable, but the actions went beyond the proper functions of the Service." [4-78]

It is no part of ASIO's intelligence dissemination function to publicize threats to security. Any DG of

Security who reads s 5(1) (a) of the ASIO Act as authority

to engage in propaganda, however "laudable", embarks on

4-77

4-78

Allegations to this effect were made in public hearings of the Commission. (See evidence of Robert Mayne (Hearings of 14 July 1975, pp 388-396)). ASIO has acknowledged that these papers were produced, compiled or otherwise prepared by it. See also CPD, House of Representatives,

13 December 1973, p 4823, when the Minister representing the Attorney-General told the Parliament that ASIO had taken actions along the lines alleged.

NZ Ombudsman's Report, p 70.

a misconceived enterprise. The likely result is to bring

discredit to ASIO.

24 9. A propaganda activity of this kind crosses

the boundary between provision of information, which

is proper, and the taking of a "measure for security", which is not proper.

250. If warnings about the internal security

situation are to be given publicity - whether attributably or not - that is something for the Government. It can

seek advice from ASIO, or be offered it and publish it.

But the agency of publication should not be ASIO.

Our system of government requires ministers to submit

themselves to questioning in or out of Parliament.

They have the responsibility and not ASIO.

2 51. Something more needs to be said. ASIO

should not provide ministers with security intelligence

for any purpose unless the DG of Security is satisfied

that the intelligence should be provided to the minister, in the interests of security. [4-79]

2 52. ASIO should not otherwise provide security

intelligence, in any form, either directly or indirectly, and whether on an attributable basis or not, to the

press or other media.

4-79

2481 8177- 6

The statements in paras 245-250 are not directed to the making by the DG of public statements about ASIO and its role. cf para 469.

12 9.

130.

253. If ASIC becomes involved directly in the

public dissemination of security intelligence, it is

likely to be accused of taking a partisan political position. It is most important that ASIC be above reproach in that regard. In many respects, its effective-ness depends on it having the confidence of all the

major political parties.

254. ASIC's Special Projects Section was the group

responsible for production of most of the published

papers produced in evidence before me. I have seen, on

an ASIC file, this description of the functions of the

section:

"Functions of 'Special Projects'

To carry out special research as approved by the Director-General and under the direct control of FABG(Int). Such projects refer primarily to counter-subversion problems arising from B and D Branch desk activities, but in some cases as specified by the Director-General or the FADG (Int).

Apart from the above, material was preparedfur (a) covert spoiling activities, (b) counter-propaganda activities, (c) the production of overt papers and studies

for both specific and general purposes, including briefs and guides for agent­ masters and their contacts etc. Finally, a continuing study of political and sociological trends and developments in Australia and overseas was maintained with a view to

identifying trends of actual or potential security significance. Supplementing the above, action was taken to build and maintain liaison with selected contacts

in a variety of fields, including the media."

The section no longer exists.

2 55. These functions, if exercized by ASIO, would be

improper in the extreme. They are all the more so, since, in

the past, ASIO officers have shown a tendency to think of

anyone they chose to call "left wing" as subversive.

These practices, which have not been carried out for

years, must not be allowed to resume.

(e) State authorities and instrumentalities

2 56. Part of the security intelligence which ASIO

obtains concerns the employees of State departments,

statutory bodies and other organizations. At times it is proper for the DG to communicate intelligence of this kind to the appropriate authority, and a decision has

to be made as to which authority is the appropriate one.

2 57. The first consideration is that the communication

should generally be a formal one; that is, a written

communication from the Commonwealth's security intelligence

authority to the appropriate State authority to receive such intelligence. This is not an absolute rule. Various

circumstances, such as the urgency of a terrorist

situation, may require a quicker and less formal communication. But it is a rule which should usually

be applied.

2 58. The second consideration is that the a uthority

which each State has established to collect and hold

this type of intelligence is the special branch

131.

132.

of the State police force. [4-80] Whatever deficiencies

they may have, the special branches have facilities for

the storage and retrieval of this intelligence, they

have experience in its use, and they know to which

State authorities, including their own police force,

it should be communicated. They must be regarded as the principal receiver of this intelligence.

259. The third consideration is a qualification to

the rule that ASIO should communicate such intelligence

to the relevant special branch. The special nature of

the intelligence may suggest a different treatment,

either because of the use to be made of it, the persons

it concerns, its general subject matter, or some other such reason. Thus it may be proper to communicate some

intelligence to the Premier of a State, its further communication being a matter for him. In such a case

it will usually be proper for the DG to communicate the intelligence through the Prime Minister. There may, however, be cases where the DG would be justified in

going directly to a Premier. Again, the staff of

universities and other educational institutions have a special problem. These institutions and their staffs

are not immune from the law, but there is a long

tradition that the police should keep away from them and their affairs until called in. If the DG has security

intelligence about a member of the staff of a university

4-ao As to the State special branches and their

relationship with ASIO, see Appendix 4-N.

which he thinks should be communicated to a State

authority, it may be, depending on the nature of the

intelligence, that the appr.opriate authority is the administration of the Uftiversity.

260. If the is that the staff member

is making a bomb for some subversive purpose, then no doubt ASIO should tell the special branch about it.

But if the intelligence is that the staff member belongs

to a subversive organization and intends to proselytize

and take disruptive action on the campus, the DG, if

he thinks the matter serious enough to justify communica­

tion, should inform the university authorities. Such a case, however, is an exception from the general rule that

ASIO's communications in State cases should be with

the State special branch.

(f) Security checks for access

261. One of ASIO's most time-consuming activities

is the security checking and assessing (vetting) of persons who fall within certain categories. In my

second report I dealt in some detail with various

133.

134.

aspects of this system. [4-81]

2 62 • In that report I deferred for consideration,

or for further consideration, a number of issues.

They are dealt with in this report, [ 4-8 2]

2 63. At present the largest class of persons subjected

to vetting is that applying for appointment to the first,

second or third divisions of the Australian Public Service,

or for appointment to positions in the fourth division

which will or may involve access to classified matter or

areas. In my second report, I recommended that the system

of security checking should be directed only to protecting

the security of the nation, and that persons in, or

applying for appointment to, positions in Commonwealth

Government employment should be subjected to security

4-81

4-82

See my second report for

(a) Security checking statistics (para 85). (b) The security checking procedure (paras 87 to 89 and Appendix 2-C) . (c) Referee interviews (paras 90 to 94).

(d) Character information (paras 76 to 84) . (e) Assessment criteria (paras 109 and 110 and Appendix paras 30 to 33).

(f) Responsibilities of employer authority and ASIO (paras 62 to 70).

For convenience a list of the matters deferred, with references to where they are dealt with in this report, is set out at Appendix 4-L.

checking and assessment only when they will have, or

may reasonably be expected in the near future to have,

access to classified matters or areas. [4-83]

(i) Assessment criteria

264. In my second .report I said:

"I shall also report later whether any criteria should be laid down to be applied in all or in particular classes of cases, and the question whether any criteria

presently applied in making a security assessment should be varied". [4-841

265. I also referred to the general nature of the

criteria which have been applied, [4-85.] and set out details of those criteria [4-86] and statements and documents describing criteria applied in other

countries. [4-87]

266. For organizational reasons it may be necessary,

and it is appropriate, that criteria for security

checking purposes should be formulated. Investigators

need guidance as to what it is they are investigating,

and consistency of approach is important. Three

qualifications must, however, be borne in mind. First, the criteria must be constantly under review. Secondly,

they should normally be applied by, but should not

bind, the DG. Thirdly, they should reflect security,

and not other, considerations.

4-83 4-84 4-85 4-86 4-87

Second report, paras 50 and 202. Para 124. Para 110. Appendix 2-C, paras 30-33. Appendix 2-E.

135.

136.

267. The criteria should not be determined once

and for all. We do not live in a static society, whose

institutions, moral standards, political views and social habits do not change. The criteria must be

reconsidered as the society changes. The need for

constant review involves a necessity for the person

carrying out that task to have access to the fullest

information and advice about an ever-changing scene.

The person having that access is the DG, and it is his

responsibility to determine the criteria his organization should apply.

2 68. But, in making security assessments, the DG

is concerned with human beings, who are so infinitely various in all respects that a rigid system of criteria

to establish loyalty and reliability, allowing no

exceptions, must be unjust. Making security assessments

should involve the exercize of judgement and, except in

special cases, not just the routine application of

criteria. The DG should treat them as guidelines rather than unyielding rules. It follows that the Security

Appeals Tribunal would not be bound by criteria formulated

by ASIO, although no doubt its members would give due

weight to them.

2 6 9. The criteria to be used in making assessments

should be ·determined in the light of the purpose of

vetting. They should indicate acceptability in the

security sense, rather than in the general employment

sense. The criteria must relate to security; ASIO is

only concerned with security as defined in the ASIO Act,

and its vetting criteria must relate to security in that

sense. [4-88] The criteria must be such that the

employer authority can feel satisfied that the classified

material, or place, to which access will be had by the

particular employee or person, has been adequately safeguarded. What is needed to give that satisfaction

will vary according to the importance of keeping secure the classified material or place to which access will

be had.

270. It has been said that in security cases the

nation must be given the benefit of any doubt. This

is language derived from an adversary system where the evidence of one side has to be weighed against evidence

the other side puts forward.

2 71. The system of vetting, whether by ASIO or by

a review tribunal, is an inquisitorial procedure rather

4-88 As to the distinction between "security" as defined in the ASIO Act, and general "confidentiality", see the second report, para 48.

137.

138.

than an adversary procedure, and requires a flexibility

of investigation and judgement which would deny the

general application of such a rule. It may well be

appropriate to a case where access to the nation's

closest secrets is being considered; it may not be appropriate in a case of less vital secrets. These are

only examples, and are not intended to indicate the

areas for the application or non-application of such

a rule. The criteria must be formulated or applied in

a way that safeguards the interests of the nation yet

at the same time satisfies the requirements of humanity and legitimate interests of the citizens of a free

society.

272. I do not propose to recommend detailed

criteria myself. But I shall mention some general matters.

273. Security assessment criteria may relate to loyalty,

or to reliability, or to both. And, although there may

be other matters, for the most part the matters to be

considered are:

(a) Associations and other circumstances which

establish the existence or indicate the likelihood of present disloyalty.

(b) Associations and other circumstances which

may indicate the possibility of present

274.

disloyalty or which may lead to disloyalty. (c) Character and related defects which may lead

to, or may be used to induce, disloyalty. (d) Character and related defects which may

establish or indicate unreliability, but not necessarily disloyalty.

In cases within the first class as, to put an

obvious example, conscious involvement with the members

or operations of the intelligence service of an unfriendly

foreign power, the employer authority would scarcely be

satisfied that a classified material or a classified place would be adequately safeguarded if the person was given

access to it.

275. If the involvement was unconscious, the case

would be in the second clas s and perhaps a judgement would

be more difficult. I have dealt with some of the more

important aspects of the second class when dealing with

subversion.

276. Current membership, or active espousal and

support of the objectives, of what is in truth a

subversive organization should result in an assessment

recommending against access to classified material,

unless the person concerned can show that he is unaware

o f , and does not approve, the subversive objectives of

the organization.

139.

140.

2 77. In cases of past membership or espousal and

support of such an organization or its objectives, a

judgement must be made, taking into account those

circumstances which throw light on present loyalty.

2 78. Cases where the person is not himself a member,

but is associated in some way with a member of such an

association, require the making of a similar judgement.

It would be based, among other things, on the influence which the member and the association has in fact had

upon that person. ASIO's investigations of security

matters will doubtless throw up names of persons and

organizations of relevance in these cases.

2 79. In my second report, I dealt with the question

whether security assessments should include character

information. The answer given there, which I now

repeat, is that they should. [4-89]

2 80. I also pointed out that what in this context is

commonly referred to as "character" is used to cover

a number of matters which may indicate, but may not

directly involve, character, such as a state of indebted­ ness. Sometimes these circumstances may lead to disloyalty

4-89 Second report, para 84.

because, eg, blackmail or other pressures may be brought

upon the person to whom they relate, or other use may

be made of his sense of indebtedness or obligation.

Sometimes they may indicate unreliability not necessarily

involving disloyalty. Thus a person with access to

confidential information may simply have a tendency to talk

too much, or to talk too much when he has drunk alcohol,

or in other circumstances, which may lead to him revealing

classified material without being consciously disloyal. Even these circumstances, in an almost natural progression,

may lead to disloyalty because of threats to reveal what

has already been done. It is in this area in which ASIO

must develop an expertise, and in which it must exercize

j udgement.

281. If I may take the often quoted example of homo-

sexuality, history, indeed quite recent history, has

produced cases of disloyalty induced by blackmail based

on homosexuality. It is difficult to see that blackmail

could succeed in the case of publicly avowed homosexuals.

Whether it is likely to succeed in other cases is a matter

for judgement, the degree of caution to be exercized no

doubt varying with the nature of the access which the

homosexual has.

282. A similar approach has to be adopted with

respect to other so-called "defects". A state of

141.

''

142.

indebtedness or general impecuniosity must be dealt

with in this way. The possible success of offering

money to the impecunious as a lure towards disloyalty

has been amply established, and may now be one of the

most effective lures.

2 83. These "defects" are only one part of the

picture of a person;

picture must be seen,

so far as possible the whole

and it is difficult to appreciate

how this can be done without seeing and talking to the

person under investigation.

2 84. It is not uncommon in Australia for the

picture to be obscured because the subject has spent

time in another country from which Australia cannot

obtain reliable security intelligence. If a person's

background cannot be checked, that must be a factor to

be taken into account in judging whether, in all the

circumstances of the particular case, the employer

authority can be satisfied that the classified material,

or place, to which access will be had, can be adequately

safeguarded. In the past rules of thumb have been

adopted to regulate in part · cases of uncheckable

background. Examples are requirements that the person

be a citizen, perhaps for a certain period. Such rules

are of limited valu e in these cases and need to be

applied cautiously .

285. It has in the past been the practice in

Australia not to make public even the general nature

of the criteria for security checking that ASIO has

adopted. I see no reason why such a degree of secrecy

should be applied to guidelines which affect the lives

of many Australian citizens. There may be good reason

for not making public the full details of the criteria

applied in all cases, but I consider that it would be

for the public good if the Prime Minister, or the

minister administering the ASIO Act, informed the

Parliament of the nature of the criteria generally

applied in the security assessments of ASIO. [4-90]

4-90 In Appendix 2-E to my second report, I set

out some public statements that had been made by US, UK and Canadian authorities which lay down criteria on security assessments.

143.

144.

(ii) Security checking system

2 8 6. In the second report I made recommendations as

to the system of security checking and the review of

security assessments and accompanying information. But

as to the general process I said:

2 87.

"Because of the defects that may arise in the present system, a review of the security checking process is needed. Such a review goes to the functions and role of ASIO more centrally than is my intention in this

report. In the later report I shall deal

with the system of investigation and reporting as a whole." [4-91]

The checking depends upon two main

classes of information. The first is to be found in

records of one kind or another. The second is that

obtained upon an investigation of human sources, the

inquiry being directed to loyalty and reliability.

2 88. As regards records, the investigation commonly

at police records and ASIO's own records. Inquiries

mostly do not go beyond an interview by an ASIO officer

with one or more of the referees named by the subject

of the check, supplemented on occasions by reports of

information provided by the employer authority. This

information will sometimes be made available to ASIO.

4-91 Second report, para 103.

But mostly it has been considered by the employer authority

only.

289. I have said that the present checking system

makes a large call on ASIO's resources, and have

indicated that, with a limitation of the classes of persons

to be checked, a better ' job could and should be done in

respect of those persons who will have access to

important secrets. [4-92] Thus I have concluded that,

whilst ASIO's present assessments may be good enough for

routine security, they are not good enough for the

checking of officers with regular access to top secret

material.

290. The following points emerge from material about

vetting contained in the second report or in this report: (a) The subject of the check is rarely interviewed.

4-92

If ASIO is to deal with character aspects of security checking this is a serious deficiency. (b) The practice of interrogating one or more

referees is almost totally unproductive. It may be useful for ordinary employment purposes, but is not very relevant for

security purposes.

Second paras 95 and 103.

145.

14 6.

(c) Even though, as I recommend in this report,

ASIO's assessment be advisory only, in

making that assessment ASIO should take into

account any available "character" information ,

and including any relevant information held

by employer authorities. If they hold any

such information, either favourable or

unfavourable, ASIO should be given it so

that it can be taken into account. If the

subject has worked in a department for any

time at all, there would have to be some

information.

(d) Depending on resources and the degree of

checking required, ASIO should seek other

sources of information as to the "character"

of the subject.

(e) One of the most relevant matters to be

checked is the financial position of the

subject of the check, for that is now

regarded as one of the most likely weaknesses

of a person to be exploited by an intelligence

agent.

291. One of the principal defects of the present

system is the lack of adequate investigation of a person

when the relevant information is not already on some

record, is not known to the employer authority, or is not

revealed by a referee. The importance of doing something

about this kind of deficiency has long been apparent to

other security services. In addition to interviewing

the subject, the remedy adopted has generally been to

make what are sometimes called "field investigations"

or "full field investigations", that is, inquiries in

some depth. Other services call the process "positive

vetting". In the Canadian Report, this system was thus

described:

"First, an effort is made by means of personal interviews with former employers, associates, school or college teachers or supervisors, neighbours or appropriate

local agencies to check and confirm the details of his past life that an individual has listed on a comprehensive personal history form. Secondly, use is made of

these interviews to elicit information concerning character, habits, morals, reputation or associations, as well as tleadst for further interviews. If adverse information is elicited, further

investigation is concentrated on this particular area in an effort to confirm, deny or expand it." [4-93]

292. This procedure is inevitably subjective.

In many ways it is objectionable. [4-94] Some of the

objectionable aspects of the system - for which no

adequate substitute has yet been devised - would be

4- 93 4- 94 Canadian Royal Commission's Report, para 85(c). A full field inquiry is bound to be a probing

careful affair. It is bound to be intrusive of

privacy. It was put to me by one permanent head

that a positive vetting system would not be intrusive of privacy because people are told beforehand that they would be submitted to such inquiries. I do not accept that view. An

intrusion on privacy is no less so if the subject is aware of it.

14 7.

148.

avoided or diminished if it were made clear to the

subject that this procedure was to be followed, and his

consent to it was obtained. (Filling in an application

form which plainly discloses the likelihood that

inquiries will be made is to be taken as signifying the subject's consent).

293. With ASIO, a further difficulty is the

availability of resources. It is obvious that such a system requires "mature, experienced, sophisticated and

trained officers, working under strict supervision",

[4-95] and all of the officers of ASIO working in this

area cannot be so described. Until enough officers meet

these requirements, it may be necessary to be selective

in applying the procedure. A quota system may have to

be used, with officers who are to be appointed to the

most sensitive posts being investigated in greatest

depth. In due course all officers given regular access

to top secret material should be so checked. So far as

practicable all officers to be given this access should

be personally interviewed in the checking process.

294. In para 68 of the second report I said:

4-95

"The second misapprehension is that a 'clearance', given in respect of access in, for example, one department, is often assumed to be 'portable' to another department when the person concerned moves

to that other department. This assumption is strengthened by the fact that present

Canadian Royal Commission's Report, para 85(c).

2 95.

practice is to make a security check a 'once-for-all' affair. There is no regular system of resubmission of persons for further check."

I am satisfied that "once-for-all" security

checkings are not adequate, at any rate for secret or

top secret access. This is the conclusion to which

the Canadian Royal Commission came. [4-96] It is apparent

as soon as the question is posed. A person who is 22

may have entirely different views, interests and attitudes

and may engage in quite different activities when he is

27, as he may when he is 32, 37 and so on. Again, although

a person may have top secret access in one department,

it may be that a position involving top secret access in another department involves much more sensitive and

important material, and it may be appropriate to recheck

a person whom it is proposed to transfer or promote to

the more sensitive position even though he has been

security checked within the preceding two or three years.

296. I shall accordingly recommend that rechecking

for secret and top secret access be carried out at

regular intervals in all cases, and that upon any

promotion or transfer the relevant employer authority

may require a rechecking if he thinks it proper to do so.

4- 96 Ibid, para 90(d).

14 9.

150.

As regards regular rechecking, I think that so far as

resources allow, it should be done every five years. The

onus should lie upon the employer authority to seek ASIO's

assessment for this purpose, but ASIO itself should have a

record which enables it to see whether such a system has

been carried into effect.

(g) Security checks in "immigration" cases

(i) Vetting practice

297. I have thus far been dealing with the vetting

of persons in, or applying for appointment to,

Commonwealth Government employment and related areas.

From time to time ASIO has also provided a checking or

vetting service to the Commonwealth Governments in

"immigration" cases. That is, in relation to:

Visas and entry permits - (temporary and permanent)

Deportation or being required to leave

Australia

Citizenship

Passports

Irrunigration agents and citizenship agents. Passports are now the responsibility of the Minister for

Foreign Affairs, but I include them with "immigration"cases

because, from the viewpoint of security, the issues of policy

appear to me to be the same.

298. The law relating to those matters and details

of the vetting practice that is and has been followed -including vetting categories, procedure and assessment

criteria, are set out in Appendix 4-M.

299. Here I shall briefly state the more

important conclusions from Appendix 4-M.

300. The system of security checking in "immigration"

cases should be directed to protecting the security

of the nation. The application of that principle in

some classes of "immigration" case may result in

security checking of them being curtailed or abandoned,

or less stringent criteria adopted. [4-97]

301. The categories vetted should be determined

according to the extent and nature of the potential security

threat involved. '!'hose factors should also determine the assessment criteria applied. [4-98] The task of determining

categories and criteria is ASIO's but it should have guidance

from Government on these matters, in the way I outline in

part D of this report.

4-97

4-913

An example is citizenship cases. See Appendix 4-M, generally. The assessment criteria should be so applied whether or not the case

is within a routine security checking category. The criteria will not necessarily be the same as

those applying to Commonwealth Government employees, and they will probably vary as between each class of "immigration" case.

151.

152.

302. As for security checking for employment,

judgement will have to be exercized by ASIO

and authorities responsible for making decisions on

"immigration" cases in applying assessment criteria. In

each class of "immigration" case ASIO's role should be

advisory.

303. But ASIO is and should be treated -as the

Australian Government's specialist on security checking

and assessment. If the Department of Immigration and

Ethnic Affairs or DFA has information about a person in

any of the classes "immigration" cases which it

considers is or may be rele·vant to security, it should

inform ASIO.

304. In providing security assessments about a person,

in "immigration" ca&es, as in other cases, ASIO should

not communicate any information about him or her that

it has not assessed as "relevant to security" as that term is used in s 5 of the ASIO Act. Specifically,

ASIO should indicate, in terms unmistakably clear,

the relevance to security of any information, including

personality and character information, provided by it

about a person in response to a request for security

assessment.

305. The security assessment should be quite

unambiguous. A different standard basic form should

be used for each type of security assessment. The

recommendations made in my second report should be

applied mutatis mu tandis to '' immigration" cases .

(ii) Appeals 306. The recommendations in my second report as

to a right of appeal for Commonwealth employees to

a special tribunal should be applied mutatis mutandis

to any person who is the subject of an adverse or

qualified security assessment in relation to an entry

permit, deportation, citizenship, o r p asspor t appl icati on

or is acting as a citize n s hip agent o r i mm i g r a t ion agen t

who is either

an Au s tralian ci.t i ze n o r

153.

154.

a person whose continued presence in

Australia is not subject to any limitation

as to time imposed by law.

Australian citizens and permanent residents should have

a right of appeal whether or not they are in Australia

at the time of the security assessment, the lodging or the hearing of the appeal, or at any of those times.

[4-100] The claim of non-citizens who are not permanent

residents but who are in Australia to be entitled to such

an appeal is difficult to justify, particularly as they

have no general appeal. I shall recommend that they have

no such right.

(iii) ASIO's immigration posts and liaison 307. ASIO representatives at immigration posts

overseas, rather than conducting their own investigations,

have generally been limited to making inquiries with and

through the police and/or security service of the host

4-99 The provisions of s 14 of the Migration Act, providing for a right of appeal in some cases to a Commissioner and those in Part XXll of the schedule to the Administrative Appeals Tribunal Act should be amended accordingly to provide

that where a security issue is involved in either type of appeal, it should be determined by the special tribunal I have recommended. 4-100 In New Zealand only persons ordinarily resident

in New Zealand can make security appeals and the Commissioner for Security Appeals has an unfettered discretion to refuse to entertain the appeal if the appellant is not a New Zealand citizen. (New Zealand Security Intelligence Service Act 1969, ss 17 and 19).

country. In some cases, inquiries with the services

of third countries are also made.

308. There is little that an ASIO representative

on the ground can do at a mission where he has no

liaison with the local security or police service(s).

309. Applicants for entry into Australia must be

interviewed and this is something that Australian

official representatives should do. ASIO liaison officers can also interview applicants and do so where they consider

it necessary to obtain factual information on which to base a security assessment. But the prospects of an interview

being effective to screen out security risks of any

sophistication is slight if the officer's access to collateral information held by the local police and/or security service is limited or non-existent. An interview is especially unlikely to yield profitable information if

the interviewer does not speak the language of the

interviewee. I doubt whether an ASIO presence is necessary

solely for the purpose of interviewing.

310. It is important that these limitations on

the effectiveness of ASIO liaison for migration checking

be realized.

155.

156.

311. The effectiveness of an ASIO officer will

vary, through no fault of his own, depending on his

degree of access to the liaison service, on the quality

of judgement by that service of cases of interest to

Australia, on the criteria they adopt for assessing cases and on the degree of frankness in provision of

information to Australian officials, whether security/

intelligence service officials or not. Therefore, in any consideration of opening or maintaining an ASIO

post overseas for immigration checking purposes, in

whole or in part, ASIO and the Department of Immigration

and Ethnic Affairs should take a hard look at each

post against the criteria mentioned above.

312. Against these criteria, my own view is that

some present posts may be hard to justify.

313. Where advantages to be had from general liaison

representation are also foreseen, the matter becomes one

for consideration by the higher intelligence machinery.

And, in either event, the establishment of formal liaison,

involving representation, should be a matter for approval

by the Minister, under amendments to the ASIO Act I have

recommended.

314. The procedure for checking applicants for

entry provides that, where the ASIO liaison officer

recommends against entry, he is required to inform the

Chief Migration Officer of the reasons, and to report

details promptly to ASIO central office where they are reviewed and re-assessed. If thought appropriate

there might then be further discussions between the

department and ASIO central office.

315. While the number of entry application cases

routinely checked each year is large, the number of security reports obtained from foreign services is not large. The number leading to recommendations against

157.

158.

entry is quite small. [4-101] Standing instructions

permit ASIO representatives to refer difficult cases

to central office and require that cases involving

"a background of intelligence activity or a history

of contact with a foreign security or intelligence

service" be so referred. [4-102]

316. In the light of these factors, arid the

decrease in numbers of migrants Australia is

accepting, consideration should be given to whether

each ASIO migration post is cost effective. My own

view is that many are not. If a post is closed ASIO's

central office may be able to process and make suitable recommendations in all migration cases which involve

security reports. In the case of services of friendly countries, surely much routine checking could

be done by correspondence. The correspondence could

be either direct between ASIO central office and the

local security service or through the Australian mission's migration officials. [4-103]

4-101 Doc Al9, attachments I and J. That the numbers are small does not mean the task should be neglected or abandoned. I do not doubt that it

should remain an essential part of migrant selection. But it might be more cost effective to organize it differently. 4-102Doc A25, paras 22 and 54. 4-103 Ibid, paras 45 and 46. Such arrangements

exist at missions where no ASIO representative is present.

317. An important by-product of ASIO's migration

work has been the development of liaison with many of

the "friendly services" with which ASIO now transacts

business to the mutual advantage of both parties.

Perhaps it was also natural enough for this liaison

to develop, in the way qf trade associations everywhere,

into information exchange arrangements of considerable

advantage to all concerned.

318. The situation has so developed that the

professional intelligence liaison aspect of ASIO's

external representation is at many posts of greater

significance than the "immigration" checking function.

319. In assessing the value of ASIO existing

migration posts, and the potential value of proposals

for posting ASIO officers overseas, a distinction should

be drawn between the migration checking function and

the overall liaison function. The need for a post for

migration work should be judged in the light of the

considerations discussed above. Decisions about

establishing overseas liaison posts and which intelligence

agency should be made according to the principles set out

in appendix 4-P and at paras 449-456 below. Decisions to open or close an ASIO post abroad, for whatever purpose,

should be made by the higher intelligence machinery

recommended in my third report.

159.

160.

D. ASIO AND GOVERNMENT

320. ASIO does not exist in a vacuum. It is,

and should be more, part of the official family of

government departments and agencies who altogether

have responsibility for administration of the

Commonwealth. ASIO has a special place because it

has a high duty for the defence of the realm.

321. Thus ASIO must take its place in government

decision-making. On matters within its competence, it

should be prepared to give advice and, alsq to come

forward with advice even when not asked for it. The

arrangements for co-ordination and control of the

Australian intelligence community which I have

recommended elsewhere were designed, inter alia, to

give proper opportunities to ASIO to discharge its

duties to government.

322. One of those recommendations was that ASIO

central office should move to Canberra as a matter of priority. [4-104] I shall recommend that urgent planning directed to this end begin forthwith.

4-104 Third report, paras 8G and 371·

323. As an integral part of government, ASIO

should not be in a position to pursue its functions

without in any way being accountable to government

and can hardly do so effectively.

324. Difficult issues of policy arise here;

indeed there is a basic dilemma. On the one hand, it

is most important that ASIO should not be, and should

not appear to be, a political tool. On the other

hand, it is no less important that it keeps to its

proper role and that it understands and gives effect

to national security needs and priorities. This is

part of the basic dilemma that arises in respect of

security organizations in any democratic society out

of conflicts between the interests of individual

citizens and their rights, and the interests of the

nation as a whole.

325. The necessity for secrecy in ASIO's

operations means that the normal processes of checks

and balances cannot be applied.

326. Accountability to ministers of the executive

government is thus the 'main method of "control" of

ASIO. I shall deal with it and the nature of the

relationship between ASIO and the executive government

24818177- 7

161.

162.

in other respects in section (a) .

327. It is, of course, the executive government

which has the responsibility of acting on any

information or advice ASIO may give, that is, to

implement measures for carrying out and/or enforcing

measures for security.I shall deal with it in

section (b) .

328. Section (c) relates to ASIO's relationships

with the police and with overseas agencies. These

matters will be further dealt with in Appendix 4-N and

4-P, which, in my view, should not be published.

329. Section (d) will with ASIO's

accountability to the Parliament and people.

330. My terms of reference specifically require me

to report on accountability for funds. I shall deal

generally with this matter in section (e). However,

because much of ASIO's financial arrangements involve

matters secret, and, in my view, rightly secret, I

shall canvass the main issues further in Appendix 4-Q which should not be published.

(a) Ministerial responsibility

331. Important questions arise as to the extent

to which, if at all, ASIO should be subject to

ministerial control, and as to the minister that should

be responsible.

332. The 1949 Charter, which is reproduced in full

in Appendix 4-A, provided inter aZia that

(a) ASIO formed part of the Attorney­

General's Department, and the

Attorney-General would be

responsible for the organization

to Parliament. (b) The Director-General have

direct access to the Prime Minister at all times.

(c) It was the Director-General's

responsibility to keep each minister informed of all matters

affecting security coming to his knowledge which should fall

within the scope of the minister's

department, but no inquiry was to

be carried out on behalf of any

government department unless the

Director-General was satisfied

163.

164.

than an important public interest

bearing on the safety of the

Commonwealth as defined in the

directive was at stake. (d) The Director-General and his staff

would maintain the well established

convention whereby ministers do not

concern themselves with the

detailed information which might be obtained by the organization

in particular cases, but were

furnished with such information

only as might be necessary for

the determination of 11 the issue ...

333. The 1950 Charter, which is reproduced in full

in Appendix 4-B, was very similar in its terms. [4-105] It differed from the above only in that the right of access to the PM was expressed to be

4-105

11

on all matters of moment affecting security which you think should be considered by or on behalf of the Government as a whole ...

The differences between the 1949 and 1950 Charters are analysed in Appendix 4-C.

334. In 1956, ASIO was put on a statutory basis.

Section 4 (1) of the ASIO Act said that ASIO:

"being the Organization established in pursuance of a directive given by the Prime Minister on 16 March 1949 [the 1949 Charter], is, subject

to this Act, continued in existence". That may mean that the Charter continued to be

operative after 1956, except to the extent that it

was inconsistent with the Act. Or it may be that only

the organization continued, the Charter being replaced

by the Act.

335. Since 1956, the ASIO Act has been administered

by the Attorney-General, except for a short period in

1975 during which Mr Whitlam, when he was Prime Minister,

took over its administration. But frequent references

have been made, during the years since 1956, to the

Director-General continuing to have the right he had

under the 1950 charter, of:

"direct access to the Prime Minister on all matters of moment affecting security which you think should be considered by or on behalf of the Government as a whole". [ 4-106]

In his second reading speech on the ASIO Bill, Mr Menzies

(as he then was) said:

4-106

"The Attorney-General is the Minister ordinarily responsible for the security service, and he will administer the

The 1950 Charter, para 3.

165.

166.

Act. The Director-General, however, has, and has had, from the inauguration of the service in 1949, direct access to the Prime Minister in security matters affecting the Government as a whole. [4-107]

{i) The Attorney-General [4-108] and ASIO

336. ASIO's officers are deemed by s 15 of the

ASIO Act to be Commonwealth officers for the purpose of

the Crimes Act. But they are not public servants in their

capacity as ASIO officers. The Officers' Rights Declaration

Act applies only to those ASIO staff who have transferred to

ASIO from the Australian Public Service.

337. Nonetheless ASIO is a part of the executive government,

and it and its Director-General would be subject to

ministerial control save to the.extent that any legislation might otherwise, expressly or impliedly, provide. The disagreement

has been as to whether the ASIO Act does otherwise provide.

Section 4{2) of the ASIO Act provides that

ASIO shall be under the control of the Director-General.

Section 6 provides that the Director-General shall be

appointed by the Governor-General and shall hold office

on such terms and conditions as the Governor-General

4-107

4-108

CPD, House of Representatives, 24 October 1956, p 1747. As minister administering the ASIO Act.

determines. Section 7 provides that the Director­

General may, on behalf of the Commonwealth and under

agreements in writing, employ such officers as he

thinks necessary for the purposes of the Act.

339. None of these provisions would affect the

right of the Minister to give directions to the

Director-General in respect of any matter arising in

the course of the carrying out of his duties under the

Act. However, in s 5 of the Act, the following

provisions appear:

(a) The function of ASIO to obtain, correlate

and evaluate intelligence relative to

security is not expreasly subject to any discretion on the part of the

Director-General but the communication

of that intelligence is expressed to

be at his discretion and the persons to

whom and the manner in which any such

communication is to be made are to be

such as the Director-General considers

to be in the interests of security.

(b) The function of the organization to

advise Ministers in respect of matters

relevant to security is expressed to be

exercizable where the Director-General

167.

168.

is satisfied that it is necessary or desirable to do so.

340. These provisions appear in s 5 of the Act

which is concerned with the functions of ASIO. It is

essentially on this ground that the view has been held that the Minister can give directions to the Director-General as to the performance of all his

duties in relation to ASIO, including those duties in

respect of which the language of s 5 suggests that the

Director-General has a discretion.

341. Section 12 provides that the appointment of

the Director-General or the employment of an officer

of the organization shall not be terminated except tin

accordance with a term or condition of his appointment

or employment. It has been a condition of the

Director-General's appointment that the appointment may

be terminated, inter alia, if he should refuse to obey

a lawful order given to him by the Minister. l4-109]

4-109 On the basis of that condition it has

been argued that the Minister can give binding directions to the Director­ General including about matters that appear from s 5 to depend on the

Director-General's discretion, opinion or satisfaction. I do not find this

argument persuasive. It begs the crucial question whether directions upon such matters would be "lawful" orders.

342. The other view is that the duty of the

Director-General is to control ASIO, and to control

it in the performance and only in the performance of the given to it by the Act. Where the Act

makes the performance of those functions dependent

upon his discretion, opinion or satisfaction, the

Minister has no power to direct him to take a

particular course of action regardless of his discretion,

opinion or

343. It is not uncommon for statutes to provide

that the officer in charge of a department or authority

should be subject to the direction and control of the

Minister, but still make certain matters dependent upon

the opinion or discretion of that officer. In this

class of case it is not competent for the Minister

to direct the officer as to what opinion he should

form. [ 4-110]

344. In such a case it is the duty of the officer

to form his own opinion, and his duty would not be

altered because he was under a contractual obligation to comply with any "lawful direction" by the Minister,

4-110 See, for example Bosnjak ' s Bus Service v.

Co mmissioner f o r Motor Tran s p ort (1970) 92 WN (NSW) 1003 at 1013-1017.

169.

170.

although the Minister could express a view which the

officer could take into account. I believe that, as a matter of legal construction, that is how the ASIO Act should be interpreted.

345. This legal doubt should be removed. Both

Minister and Director-General must be free from doubt

as to whether the Minister can give lawful -directions.

The ASIO Act should be amended to make this position

quite clear. The question to be resolved is the

extent, if any, to which the Director-General should

be subject to ministerial direction.

346. In his second reading speech on the ASIO

Bill, Mr Menzies (as he then was) said:

4-111

"The bill makes no attempt to specify the manner in which, or the degree to which, ministerial authority should be exercised in relation to the service.

It is clearly impossible, and in any event undesirable, for a Minister to exercise in this field the same degree of supervision and authority that he exercises in his own department. The proper course, in the Government's view, is to make the Director-General responsible for the due control of his

service, and to allow the measure of authority of the responsible Minister to be worked out, as in the past, by

convention and in the light of the circumstances of the time." [4-111]

CPD, House of Representatives, 24 October 1956, p 1747.

347w In his speech on the second reading of the Bill,

Dr Evatt, then the Leader of the Opposition said:

"First of all, there must be, in our

opinion, MinLsterial responsibility in relation to the Australian Security Intelligence Organization ... 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 to the Parliament and the people.

By that, I do not mean responsible for the detailed working out of all the problems of the organization, or anything of that kind." [4-112]

348. Dr Evatt in the same speech later said:

"We want ministerial responsibility in a general sense. I do not mean that

we want consideration of

every particular activity of the organization, but there must be a supervisory Minister, responsible to the Parliament and to the people ... "

[4-113]

349. Neither the then Prime Minister nor the then

Leader of the Opposition appear in these statements to

have been conscious of the distinction which I suggest

is to be found in s 5 of the ASIO Act between those

functions in respect of which the Director-General is

subject to ministerial control and those in respect of

4-112

4-113

CPD, House of Representatives, 31 October 1956, p 2010. Emphasis added. Ibid, p 2014.

171.

172.

which he is not subject to that control. The PM took

the view that the matter should be allowed to develop

and be worked out "by convention and in the light of

the circumstances of the time". My inquiries show

that this has not always been a satisfactory way of dealing with this very difficult but important question.

350. By way of illustration, the Director-General

has been required to provide, and has provided,

information to the Minister without any attempt by the

Minister to indicate to the Director-General why, to

do so, would be in the interests of security or would be

necessary or desirable, and without any apparent

consideration by the Director-General of these questions.

It would seem that the information has been required 1 and has been given,on the basis that the Director-General

is subject in all respects to ministerial control.

351. On the other hand, on 22 June 1950, before

the ASIO Act was enacted, Mr Menzies, in answering a

parliamentary question as to whether the Attorney-General or any other minister had directed certain

inquiries to be made, said: "Responsibility for making all inquiries necessary for the preservation of internal security in Australia has been vested in the Director-General of Security, who in this regard is not subject

to any ministerial direction whatever". [4-114]

352. It seems to me that, in general terms, the

Director-General must be subject to proper directions

by the Minister, and that the Minister should be

responsible, "in a general way", to Parliament for

the organization and its activities.

353. The matters in respect of which the Director-

General should not be subject to ministerial direction

are:

4-114

(a) Whether any particular intelligence or

matter is or might be relevant to

security for the purpose of the Act. (b) Whether, to whom, and in what manner

any intelligence h e ld by ASIO should

be communicated.

(c) HavQng been requested by a minister or

directed by the Minister to give advice to a minister in respect of

a matter relevant to security, what

advice should be given to that

minister.

CPO, House of Representatives, 22 June 1950, p 4783.

173.

174.

354. The third exception would entitle any

minister to seek advice on a matter relevant to security

from the Director-General, but would not require the

giving of advice, unless the Attorney-General so

directed, and even then would leave with the

Director-General the decision as to what form that

advice should take.

355. In accordance with the first exception, the

Director-General would have to satisfy himself that

the matter did relate to security.

356 a In order to remove doubts about the

obligation of the Director-General to comply with

ministerial directions, the ASIO Act should be amended to provide that the Director-General shall, in the

performance of his duties and exerciz e of his powers

under the Act, be subject to the direction and control

of the Minister, except in respect of those matters

and to the extent that I have described.

357. It has been said often enough, and I think

it is correct, that the Minister should not be concerned with the details of ASIO's operations and activities.

This is a good general rule, but it should not be

applied inflexibly.

358. Some of the cases in which the Minister will want

detailed information are already provided for by statute

in the TeZephonic Communications (Interception) Act

1960-1·975. There are doubtless other cases where

the sensitivity or difficulty or possible ramifications

of an operations will or may be such that the

Director-General should get ministerial advice or

direction. There has been too great a tendency in the

past for ministers to avoid making decisions in security

matters properly within their spheres. There has also

been too great a reluctance by departments to report

matters of security interest to ASIO and to ask ASIO's

advice upon those matters.

359. In the ordinary course of events, the Minister

will want to have explanations from or discussions with

the Director-General. Likewise the Director-General

will want to make reports to the Minister. [4-115] Although the Minister may from these communications

obtain some general view of ASIO's operations, he would

be in a better position to consider and review the

whole of ASIO's activities if he obtained each year a

report from the Director-General upon these activities.

Such a report would enable the Minister properly to

4-115 See the N Z Ombudsman's Report,

pp 55-56.

175.

176.

exercize his duty of administering the ASIO Act in a way

that a large number of ad hoc communications or reports would not allow.

360. It follows from what I have said about

ministerial control that there are many matters in respect of which the DG is subject to ministerial

direction and control and other matters in respect of which he is not subject to that direction and control, but may

receive comments or suggestions from the Minister.

In conformity with the general principles I have

described in part C, it is important that any act

of direction or control, and any comment or suggestion,

should be based on national rather than partisan

considerations.

361. In respect of matters such as the issuing of

warrants, the Minister will obviously be required to

adopt an entirely non-partisan approach, an approach

which, as Attorney-General, he has to adopt in many of

his other ministerial functions. And although it may

be for other reasons, it is this type of approach he

will have to adopt generally in his actions concerning

ASIO.

362. He must therefore know enough about its

activities to fulfil his responsibility to the Parliament. He must be ready to provide and sometimes

to offer, advice and guidance. He must be ready,

when appropriate, to speak for the organization. But

he must not become involved in the details of

intelligence operations or administration unless his

duties so require, and he must keep himself sufficiently

apart from the organization so that he can see to it

that the interests of the public, both in their

rights and in security,are adequately protected.

363. Assuming that the Director-General is

subject to the direction and control of the Minister to

the extent I have indicated, the Minister, in the

exercize of his powers, would be entitled to enter and

to inspect any premises of ASIO, and to take with him

such persons as he might think necessary to assist

him in any proper inspection, including members of the

Commonwealth police force. [4-116]

364. However, neither the Ministe r nor anybody

on his behalf would be entitled to seize o r to inspect

or otherwise to interfere with ASIO files holding

4-116 I do not suggest that any but the most

extraordinary c i rcumstances would justify such a course.

177.

178.

intelligence except to the extent that the Director­

General1having duly considered the matter, comes to the

conclusion that the intelligence in a particular file

or in particular files should be communicated to

the Minister or to his representatives for a purpose

relevant to security.

365. If the Minister or his representatives

attempted to effect any such seizure or inspection or

interference without the consent of the Director-General,

it would be the right and indeed the duty of the

Director-General to resist it. I think that I should add

that at the time of the so-called "raid" by the

Attorney-General in 1973, the view which was then

accepted and had been acted on for a number of years

was that the Director-General was subject in all

respects to ministerial direction and control.

366. All of the above needs to be read against the

background, which I shall now ASIO

and the Director-General also have a special relationship

with the Prime Minister.

179.

(ii) The Prime Minister and ASIO

367. The analysis in the previous section showed

that the Director-General has, and, in my view, must

continue to have, wide powers and discretions to discharge

his statutory responsibilities. In the political sphere,

however, the Prime Minister has responsibility for security

policy.

368. Whatever the relationship between the

Attorney-General and the organization (and its Director-General)

is or should be, it has always been accepted that matters of security policy are, so far as the Government is

concerned, the responsibility of the Prime Minister. Before

the enactment of the ASIO Act, Sir Robert Menzies said:

"The business of the Australian security service is conducted under the Attorney-General's Department in a technical sense, for administrative purposes, but with direct reference to myself on matters of policy". [4-117]

When he was Prime Minister, the late Mr Holt said:

4-117

"Security has always been a matter for the ministerial responsibility of the Prime Minister, although some of the security functions are

CPO, House of Representatives, 4 August 1954, p 17.

180.

369.

delegated to the [4-118]

Whilst details of administration need not

concern the Prime Minister, I have no doubt general

security policy is a matter for central government

and hence for the head of the Government. It is a

matter which involves a number of departments of state

including PM&C, and the Departments of Defence and

of Foreign Affairs.

370. When Sir Robert Menzies was Prime Minister and

Sir Charles Spry was Director-General, a close personal relationship ensured that the Director-General

and ASIO were fully aware of relevant government policy,

and of the government's view of the national order of

priorities. Thereafter the position changed.

371. More recently, Directors-General have often had

to act or to decide or take action on their own views

4-118 He went on to say:

"I have the assurance of the Attorney­ General that if the question of intercepting the telephone service of a member of Parliament ever did arise ...

he would consult with me as ministerial head of Commonwealth security before carrying out his function under the [Telephonic Communications (Interception) Act ] ". (CPD, House of Representatives, 29 August, 1967, p 499).

as to what national security policy should be, what

were proper targets, and what was the national order

of priority in relation to those targets. In the

result, there has at times been a variance between ASIO's general targetting and order of priorities

and what central government policy, based on an oversight

of Australia's security needs, would otherwise indicate.

372. Decisions as to the extent to which ASIO's

resources should be directed to counter-intelligence

or to the area of subversion, or to the other matters

dealt with in part B, as to whether the activities in Australia of a particular country should be

investigated, and if they should be, as to whether

resources should be allocated to that investigation with

priority over the investigation of the activities of another country, can involve important matters of

national policy outside more limited security

considerations.

373. The Director-General needs, and should have,

guidance and indeed direction from those who are in a

position to give it. This situation has been exacerbated

by limits to ASIO's resources; these have restricted what

it can do. But, regardless of resources, it is a

problem inherent in the nature of national security

functions.

181.

182.

374. The nature of these problems and of the issues

involved strongly support the view taken in the past

that general security policy is a matter for the Prime Minister. It is an attitude that is common to

many countries with whom we share the Westminster

system of government. I shall recommend that this

view should be adhered to in the future, and that any

statutory independence of the Director-General should not preclude the Prime Minister from giving ASIO

general policy directions and guidance. [ 4-119 J

It should be emphasised that "general policy" does not relate to the details of particular

operations, nor is it a matter which would change with

any frequency. Security policy is a matter of

national concern, and should .be based on broad rather

than particular or narrow considerations. Apart from

the authority of the Prime Minister's position, the

nature of the matters which will concern him, and the

level of the advice which will be available to him, will be likely to result in a national approach.

4-119 This right of the PM would not entitle

him to require the DG to do something which the DG considered did not relate to security. This is a question in

respect of which the DG should not be subQect to direction.

376. The Director-General himself can give,and

must assist in giving, advice to the Prime Minister about

general security policy. The Director-General should

report to the Prime Minister as often as required,but at

least once a year,about the general security policy

matters for which the Prime Minister exercizes

responsibility, including general targets and priorities,

budgetting and co-ordination.

377. As well as from the Director-General, the

Prime Minister should, in forming national security

policy, have the assistance of other senior government

officials whose responsibility bears on security policy matters.

(iii) The Prime Minister's advisers 378. There are many matters to be considered in

recommending a structure for the formulation of advice

about these policies, but these are amongst the more

important of those matters.

(a) The persons giving the advice should

be politically non partisan.

(b) The advice should be as authoritative

as possible and should be based on

the fullest available information.

(c) If there is a difference of opinion

amongst those giving the advice, that

183.

184.

difference should not be avoided by

blandness or compromise.

(d) The persons giving the advice will

need the assistance of a small

administrative group which can

identify the issues, obtain from any appropriate source the

available information, and ensure

that advice is given when it

becomes necessary.

(e) ASIO is an important member of the

Australian intelligence community.

The formulation of its general

policy should be regulated in the

same way as the formulation of

other general intelligence policy

and ASIO should play a role in the

formulation of its own and of

other intelligence policy.

Recommendations about an advisory body, its membership

and functions.1are contained in my third report.

379. The advice given to the Prime Minister should

be given by a non political body, but final decisions

must be taken politically, that is, by the Prime Minister.

He may consider it advisable and convenient to have a

small Cabinet committee comprising himself and some

other Ministers to assist him in corning to his

conclusion. The extent to which any such committee is

necessary, or is effective, depends very much upon the

Prime Minister. Neither the non-political committee

nor any Cabinet committee would need to meet very

frequently; a few regular times a year would probably

suffice, together with ad hoc meetings as special

circumstances require. It is important, however,

that any committee should have full and adequate

information when it meets so that it can give a proper

consideration to the issues.

380. I do not recommend that the ASIO Act should

be amended to make provision for either of these

committees. They are essentially bodies to advise the

Prime Minister about matters falling within his

responsibility. Experience may show a need for flexibility and I do not think that legislation would add anything to what administrative action can achieve.

381. The only respect in which it should be

necessary to amend the ASIO Act for the purposes of

this advisory system is to clarify the extent to which the Director-General is subject to ministerial control,

185.

186.

as dealt with above. [4-120]

(iv) Other ministers and ASIO

382. The Director-General should not be accountable

to ministers other than the Prime Minister and the

Minister administering the ASIO Act (presently the

Attorney-General) but he should of course co-operate

with them in respect of matters of security. Because

of the nature of security he has a particular duty to

co-operate with the Ministers for Defence and of

Foreign Affairs.

(v) Departmental o£ficials and ASIO

383. The Director-General should not be subject

to the direction or control of officers (other than

ministers) of the executive government save to the

extent that legislation so provides. Such statutory

provision now exists only in respect of financial

matters, to which I shall return below.

4-120 See paras 352 and 366·

(vi) The office of Director-General of Security

384. The Director-General, as the head of ASIO,

must exercize great discretion and must be the

government's principal adviser on matters of domestic

security. He is also responsible for the efficient

and effective management of a complex organization.

It is, moreover, an organization with the privilege of secrecy from public or parliamentary scrutiny.

385. These considerations demand that the

Director-General should be a person of high capacity

and probity, and be accepted by the public and by

others in government as having those qualities.

386. It is a condition precedent to the

organization's achieving its responsibilities that

the Director-General should possess these qualities.

But that alone cannot guarantee ASIO's effectiveness.

The right policies and procedures also need to be

followed.

387. It was, I imagine, these kinds of

considerations that led the former Government to state

187.

188.

that it took the view that ASIO should be headed by a judge. [4-121] There is much to recommend that

view but it is not one I support unreservedly. A

requirement that ASIO's most senior official should

always come from the judiciary means that he or she

can never be appointed from the ranks of the

organization. That is unfair and removes an incentive

to those interested in making their career in ASIO.

388. I do suggest, however, that the provisions

permitting the appointment of a judge as Director-General should remain in the ASIO Act so that future

appointments of Director-General may be capable of

being made from, inter aZia, the judiciary.

389. I think also that there is much to commend

a principle of appointment to the office of Director-General for a stated period of years, perhaps five or

seven. [4-122] But appointments should be renewable,

at the discretion of the Government.

4-121

4-122

CPO, House of Representatives, 8 October 1975, p 1839. The Royal Commission on Australian Government Administration has proposed that departmental heads be appointed for set terms.

(See Report, Canberra, 1976, para 4.5.17).

390. I have commented elsewhere on the status and

salary of the Director-General. [4-123] The recent

determinations of the Remuneration Tribunal on the salary

of the Director-General appear to me to be based on an

incomplete understanding of the delicacy of

responsibility which the Director-General has to

exercize and which, in my view, are at least as demanding as

those of a Commonwealth departmental head.

391. I shall recommend that steps be taken to

acquaint the tribunal as fully as may be necessary with

the nature of the Director-General's duties so that

it may reach future determinations more in keeping with the duties of the position.

392. Finally, I wish to mention one particular

matter which appears to constitute a gap in the ASIO

Act. At present there is no provision for the

appointment of an acting Director-General. This matter

should be rectified by legislation and I shall so

reconunend.

4-123 Third report, para 82.

189.

190.

(b) ASIO's relations with departments

393. The Director-General should co-operate closely

with officers of the executive government although he

is not accountable to them in any way.

394. The ASIO Act, by its description of the way

in which ASIO should carry out its functions, and by

the very nature of those functions, contemplates a close

relationship between the organization and those

departments and other Commonwealth authorities whose

activities are relevant to security.

395. It is important that ASIO, on the one hand,

and the departments and authorities, on the other hand,

should understand the nature of that relationship, the

need for and importance of it, and the role which each

has to play in carrying it out. These matters have not

been clear in the past, and as a result there has been

no little misunderstanding.

396. The Departments of Defence and of Foreign

Affairs would have proper security interests in much

information coming to the hands of ASIO. The Director­

General should ensure that, unless there is some

countervailing reason, the departments should be made

aware of this intelligence.

397. Although the position is now being remedied,

there has in the past been too great a reluctance on

the part of ASIO to communicate its intelligence to

those government officers and organizations needing

it for security purposes. Similarly there has been too great a reluctance on the part of the departments

to seek intelligence from ASIO.

398. The basis of ASIO's relationship with departments

and authorities is to be found in s 5 of the ASIO Act.

As that section makes clear, ASIO is an intelligence

organization; its first and primary role is to obtain,

correlate and evaluate intelligence relevant to security.

399. But its intelligence is meant to be used,

and the Act goes on to prescribe two ways in which

ASIO is to use it. These are:

(a) Communicating it to such persons as the

DG considers proper in the interests of

security. (b) Advising ministers about security matters

when relevant to their departments or to

Commonwealth authorities established by

191.

192.

or under Acts administered by them. [4-124]

400. Although s 5 contains a special provision about

advising ministers, it is within the competence of the

DG to communicate security intelligence (including

intelligence about measures for security within a department or authority) to any person including any

minister as part of his general "intelligence communication"

function.

401. The Act then describes another function in

the performance of which it may become proper for

ASIO to communicate its intelligence. This is to

co-operate with such Commonwealth departments and

authorities, and so far as is practicable with such departments or authorities of the States and of other

countries as are capable of assisting ASIO in the

performance of its functions.

402. The ASIO Act does not require the Director-

General to await a request from any person for intelligence,

advice or co-operation before he gives or offers it.

He should not wait for any such request before he acts.

In particular, he should communicate intelligence when

it is proper to do so in the interests of security,

4-124 As to ASIO's function of communicating intelligence generally, see paras 222-260.

and he should give ministers and departmental officials

every assistance and advice in respect of the security

of matters falling within their departmental

responsibilities.

(c) The carrying out or enforcing of measures for security

403. The "communicating", "advising" and "co-operating"

functions encompass a number of different activities

on the part of ASIO which can relate to the carrying

out or enforcing of measures for security. However,

the Act prescribes a limitation to the activities which

ASIO may carry out, whether included within the ambit

of those functions or not.

404. ASIO is not to "carry out" or "enforce" measures

of security within a Commonwealth department or

authority. This qualification is not made contingent

upon the consent or request of anyone. If an activity

falls within the words of the proviso, ASIO cannot . carry it out, whether a minister or a permanent head or anyone else has consented to it, or requested it, or not.

405. It is necessary to understand the meaning of

the provisions of s 5(2) and hence the extent of its

limiting effect upon ASIO's function. What falls within

24818177-8

193.

194.

and what falls outside, the words "to carry out or

enforce measures for security within" a department or

authority?

406. "To carry out" means to put into practice.

"To enforce" means to ensure that something is done or

is not done. "Measures for security", in its context, means, in my view, the actions undertaken .to protect

classified matter held by or coming to the knowledge of a department or authority, its officers or employees.

407. Thus a system of allowing access to classified

matter only to officers who the head of the department is

satisfied, after investigation, are reliable is such a measure; as is a decision that a particular

shall or shall not have access. [ 4 -l2 5 ] So is a

system of having police or other officers checking passes

at the entrance to a department building; an audit of classified documents; the installation of locks or alarms; the provision of night watchmen or their equivalent,

and so on.

4-125 I dealt with security checking by ASIO for access to classified security matter in my second report and at paras 261-296 of this report.

408. On the other hand, the inspection of and

reporting and advising upon the physical security of

a department's building by ASIO officers would not

be the carrying out or enforcing of measures for I

security within the department. It might lead to

the carrying out of measures for security, and if it

did, it would precede those measures; it would not be

part of them.

409. Again, if a department asked the police to

check the criminal record of one of its officers, the

checking by the police of that record and the advising

of the department about it would not be the carrying

out of measures for security within the department;

nor would a visit by a policeman to the department to

check the identity of the officer, or the asking of

questions of the officer by the policeman in order to

confirm a suspected record, be -the carrying out of

those measures.

410. Withholding access to classified material

from the officer because of his record would be the

carrying out of a measure for security within the

d_epartment, which the investigation of that record by

the police might assist, and would precede. But the

195.

196.

checking by police or by ASIO of the actions of

officers of a department to see whether an officer or officers in the department should be removed from

the position they hold is not the carrying out of

"measures for security" within the meaning of these

words in their context ins 5(2). It is something

which is different in kind from those measures. It

may follow such a measure or it may precede such a

measure, which could be the removal of the officer or

officers, or a denial to him or them of access.

411. The obtaining, correlating and evaluating of

intelligence is clearly not the carrying out or enforcing of measures for security within a department

or authority. ASIO can receive information deemed

relevant to security from the head, and indeed, so

far as it is concerned, from anyone in a department or authority. And this is so even though the information relates to the measures for security carried out or enforced in the

department or authority, or to the absence of those

measures. Likewise, the DG can communicate intelligence

relevant to security to any department or authority.

This intelligence could be or include intelligence

about measures for security within a department or

authority, and this whether or not he has been asked for

it by that department or authority.

412. The distinction is between the doing of

something within the department which directly

protects, or is intended directly to protect, the

department's security, and the doing of something,

within or outside the department, which may or may

not result in the doing within the department of something

or some additonal thing (a measure for security)

which, of itself, protects the department's security.

The former activity is forbidden to ASIO by s 5(2);

the latter is not. I believe ASIO should continue not

to have authority to carry out or enforce measures

for security.

413. With this general background I will now

discuss the carrying out or enforcing of some particular

measures for security.

(i) Departmental security

414. It is the duty of ministers, departments and

statutory authorities to take proper measures to safeguard classified material held by them. The measures to be taken include steps to ensure the physical security

of places where documents or objects are kept or stored,

4-126 Of course ASIO is responsible for its

own security.

197.

198.

or where work is carried out, and the reliability of

persons who have access to the classified material.

415. Physical security measures can involve

technical skills of a very specialized kind for which

specialized training is necessary. Personnel security

measures require both access to and an evaluation of

intelligence of the kind that it is within · ASIO's charter to obtain, and knowledge about people that working with them and seeing them in their various

activities from day to day will give.

416. Ministers, departments and statutory authorities

should have or be able to obtain knowledge of the

latter kind,and may have people with the specialized skills required for physical security measures. Otherwise they must rely upon ASIO; and indeed, in order to get

proper advice from ASIO, they must in appropriate

cases give the organization relevant information of the

latter kind. [4-127]

4-]27 It is provided in the US National Security

Act that the CIA may have access to records of departments relating to the national security (Sec. 102(e)). I do not think a

similar provision should appear in ASIO's statute. On the other hand, departments must understand that ASIO should be provided with unstinted access when the DG requests

such access in the interests of security, except where statutory prohibitions, as, eg, in the Income Tax laws, would not permit it. (See also part C, paras 152-15&) .

417. There is nothing ins 5(2) to inhibit ASIO

in the investigation of and reporting upon a question

as to the security of a department or authority or

its officers or employees. It could, eg, keep a

surveillance on the activities of an officer; with

a warrant tap his private or, if he had a

phone at the department, that phone (and, in like

situations, install listening devices); get reports

from officers working near or with him about anything

he does relevant to security; indeed take any of the

measures which it could take if he were not a public

servant but employed in the private sector. It could

do all these things on its own initiative and with

due authority and without the or request of

the head of the department or authority, or, indeed,

of any of its officers.

418. Normally, of course, it would act with the

consent of the head, and keep him informed. The

absence of that consent would make it difficult to

enter a department's premises, obtain access to

department files, or otherwise intrude into matters

under the control of the department head.

4-128 See PubZic Service Act 1922-1973, s 25(2): "The Permanent Head of a

Department shall be responsible for its general working, and for all the business thereof ... "

[4-12 8]

199.

200.

419. But it is important to refute a long-standing

heresy that ASIO cannot move until it gets a request

from the relevant head. It is ASIO's special function

to obtain the intelligence necessary to protect Australia

from actions prejudicial to security (see part B). Its

obligation to perform that function is not contingent

upon anyone's request or consent, although courtesy,

commonsense, and a respect for the responsibility of

a permanent head would normally require a DG to consult

with a permanent head before he sought to obtain

intelligence about his department or its officers.

420. It must not be thought from what I have said

that I am encouraging ASIO to stand back from departments and their heads, and to have a policy of going on

frolics of its own. My principal object is to have

ASIO and departments working together, co-operating

to achieve the common goal, and having a mutual trust

in and respect for each other. But, having emphasized this aspect of the relationship, it is still important to understand that A.SIO has its independent function

and responsibility, a responsibility to the nation for

the nation's security.

421. In some unusual cases, it may be inappropriate

for the DG to consult a permanent head; or, having

consulted him, the necessary co-operation or consent

may not be obtained. If the DG decided that he

should proceed, the case would presumably be a serious

one, and in that case the DG could and no doubt would

consult with the higher intelligence machinery and/or

the Prime Minister. Through that machinery, or through

the Prime Minister, or through both, the problems would

be capable of resolution, and should be resolved.

422. The powers of the permanent head under s 25(2)

of the Public Service Act are not unqualified. If the

Government considers that there is a security matter

which should be investigated, it can see to it that

it is. That is, if necessary, ASIO can initiate the

investigation, and with government concurrence can see

that it is carried out.

(ii) Classification of information 423. In the course of my inquiries, I have faced

questions as to what· information should be classified

and who should "classify" it. ·what, in formal or

legal terms is "classification", under present

Australian arrangements? The answer is far from clear.

201.

. .

202.

424. It seems that, in Australia, the originator

of any document decides on its classification. The rubber stamp that person applies truly makes the

document "Secret", "Top Secret" or whatever the marking

says. [4-129] There are no regular processes for

downgrading or review. And anyone who quotes from or

reproduces the original information must give it the

classification originally made.

425. Recently, in many overseas countries there has

been a tightening-up of the rules about who can classify

what and what kinds of material should be classified.

In the US, for example, President Nixon laid down, in

Executive Order 11652, issued on 8 March 1972, rules

about security classification categories, the authority

to classify and declassify, and related matters.

42 6. I have referred elsewhere to the so-called

"official secrets" provisions of the Crimes Act. I understand that there have been no prosecutions under

these sections since the Act was amended in 1960. One

defence that might be available to any person charged

with breaching them is that· the mere appearance on a

document of "Secret" or some such marking was no more

4-129 Replies by departments to Commission questionnaire, sent out on 19 February 1975.

203.

than prima facie evidence that the material concerned

was secret and that it was therefore not his duty to

keep it secret. The lack of clarity and defined

procedures in the classification process makes effective I

enforcement of the security of secret information

something of a matter of chance.

427. In my second report, I drew a distinction

between "national security" or secret information,

which needs protection from espionage; and "in

confidence" or "private" information which needs

protection from leaks. [4-130]

428. Under present arrangements no adequate

distinction is made between national security information

and "in confidence" information. The definitions of

the four classes of classified matter in the Protective

4-130 Second report, para 48.

2 04.

Secur ity Handb oo k obscure this distinction. [ 4-131]

4-131 The definitions of Top Secret, Secret, Confidential and Restricted information are on pp 7-9 of the Pro te c tive Security

Handbook . The authority for the system of classifying documents is the Protective Security Handbook , and practice. It is to be compared with two other legal

bases for the protection of documents and information which the Crown wishes to withhold from publication or communication. One is the raising of what used to be

called "Crown privilege" to justify. the tendering of written or oral evidence in courts of law. This expression has been used to describe what is the duty rather than the privilege of the Crown to seek to prevent the tendering of evidence when it is against the public interest to do so.

The issue is decided by the court but a

statement by the appropriate minister will, normally be acted upon in some cases, including cases involving national security or diplomatic relations cases: Rogers v. Secr etary of State f or the Home De partment

(1973) A.C. 388. The other is the enjoining of publication or communication of documents or information received in confidence. The law protects both public and private documents and

information obtained in confidence. In the case of confidential public documents and information, publication or communication will be restrained if, and so long as, it is in the public interest to

so do: A. G. v. Jona thon Cape (1975)3 All

E.R. 484. The relationship between these rules of law and the classification system is obscure. Presumably the marking of a document with one of the stamps is at

least prima faci e evidence of confidentiality at the time when it was put on. The

classification system and the two legal rules are to be distinguished from the "30-year" rule. This rule is the subject of a Cabinet direction and is a statement as to when the Government is prepared as a matter of practice to allow public access

to its documents. A voluntary system of D Notices exists for the purposes of restricting the publication of official secrets by the media. This system does not seem to have any legal effect except possibly for some purpose under s 79

(Official Secrets) of the Crimes Act.

429. The classification system should be based on

security, as ASIO is, rather than the broader concepts

of public interest or interests of the nation. If

it is necessary also to classify documents on the basis of public interest, it would be preferable to

employ a separate classification system or marking for them.

430. These matters seem to me to need urgent

attention. I shall recommend that early consideration

be given to clarifying all the matters I have referred

to in this section.

(iii) Departmental security officers 431. I have also noted the rather unsatisfactory

nature of present departmental security officer

arrangements. It was put to me that, in several

departments, the security officer was a person of low

status, who lacked access to areas of effective

administrative decision. [4-132] Thus many proposals

were put at the discard for reasons of cost or

inconvenience. Also, many security officers have

tended to lack the necessary measure of sophistication

to fulfil their duties with tact and discretion.

4-132 4-133

See generally Submission No 93. These remarks do not apply to the departmental security arrangements in the Defence and Foreign Affairs departments.

[ 4-133]

2 OS.

206.

432. There would be little point in ASIO's

improving its own capacity for advice to departments

on matters of security if departmental arrangements

continue as before. Thus, although this matter may

also be said to fall somewhat outside my terms of

reference, I shall recommend that the Government

consider directing all departments to review their

departmental security officer arrangements ·in consultation

with ASIO, with a view to their improvement.

(iv) General security policy and the "Protective Security Handbook"

433. Australia needs to develop better security -

consciousness. The rules and procedures need to be

codified and clarified. The administrative arrangements

for enforcing the rules laid down need improvement. I

am concerned that ASIO should advise, positively and

creatively, on these issues, and that it should do so to some purpose. It will not do so if these matters

of policy remain unattended to.

434. I have formed the view that responsibility

for overall security policy and its uniform implementation

have not been adequately exercized anywhere within the

government. There is no overall policy and procedure for

the investigation of leaks. There are no comprehensive

rules relating to the grades of classification of

information of material, who can grade it and how

long the grading (classification) lasts. As I

showed in my second report, procedures for security

assessment of people - the persons to be submitted for

check and department's process granting access to

classified matter - have also been somewhat haphazard.

435. In my third report I made recommendations about

an advisory body which should formulate general security

policy on behalf of central government. [4-134] It

would, of course, have ASIO's assistance and advice.

436. Although not raised directly by my terms of

reference, my attention has been brought to a number of

important questions of implementation of security policy,

which should be considered by appropriate authorities.

The contents of the Protective Security Handbook is

such a matter.

437. The Protective Security Handbook, which

was "Authorised by the Prime Minister's

Department", attempts to formalize some aspects of

4-134 An area in which a common line of approach

has been taken is in measures against the terrorist threat, on which a Special Interdepartmental Committee has been engaged.

207.

208.

security policy for government. It lays down some general guidance about what matter is to be regarded

as classified, and what procedures are to be followed

in the transmission or communication of such matters.

But it is out of date and its prescriptions are

followed less often than they should be.

438. The Protective Security Handbook was last

issued ten years ago. At an early stage in my

inquiries, I was told that ASIO had completed a revised draft of the handbook and wished to discuss

it with interested departments. I indicated that there would be no objections on the part of this

Commission if the proposed interdepartmental discusssions

were to proceed. A copy of the terms of reference of

the relevant interdepartmental committee was supplied to

me in May 1976 by ASIO, in response to an inquiry I

made. These state inter alia that the IDC is to consult

this Conunission. [4-135]

439. I have not received any further information

as to the progress of the work of this group. The work

of the interdepartmental committee should be hastened.

4-135 The full terms of reference are:

II

(i) To revise the 1966 Protective Security Handbook and to recommend to the Prime Minister the publication of a new Handbook; (ii) For this purpose, to consult:

(a) the Royal Commission on Intelligence and Security (b) other Departments (c) Departments in respect

of work done in relation to the Freedom of Information Bill;

(iii) To consider the extent and volume of distribution for the new Handbook;

(iv) To consider what authority can be given to the new Handbook; and

(v) To consider whether there is a continuing requirement for a continuous review of security procedures".

2 09.

210.

(d) Co-operation with the police and in liaison with overseas services (i) ASIO and the police

440. I have earlier said that ASIO's first requirement

is that it should operate within the confines of the ASIO Act. It should not seek to enter or stray into

other fields of activity. It is part of that basic

requirement that the organization should recognize that

its principal function is the collection, collation and dissemination of intelligence; that the activities

of its officers should be directed to these ends; and

that if or as incidental to these activities other types of action are required or are advisable which

it has no legal power or right to carry out, the

assistance or co-operation of other and more appropriate

organizations should be called for.

441. For example, ASIO has not had, and it should

not have in the future, power to make arrests or to take

other similar executive action, as does a police force.

In some countries the security organization is a branch

of the nation's police force. Its officers have all

the rights and powers of police officers. They are

able to question members of the public, make arrests,

and take other forms of executive action. At least since

the war, Australia has chosen to adopt a different approach,

and to have a security organization with no such powers.

It is an approach followed then, and still followed, by the UK.

442. Such an arrangement may create some practical

problems. It may even be found to be an operational

handicap. But, as Lord Denning said in his report,

the absence in the security service of executive powers

is not a deficiency. What would otherwise be deficiency

[ 3-136 ] is made up by co-operation with the police forces.

Close co-operation is needed between the security

organization and the police when action, rather than

advice, is needed, as, eg, when it is proposed to catch

a foreign espionage agent at work, or when a terrorist

group becomes active.

443. The federal character of the political

structure of Australia makes that co-operation more difficult than it is in the UK, even though there are in that country quite a number of police forces. Present

deficiencies in co-operation do not point to a need

to enlarge the powers of ASIO, but rather to a need to

emphasize the importance, and to increase the effectiveness,

of co-operation between ASIO and the various police forces

in Australia.

4-136 The Denning para 273.

211.

212.

444. The problems are, however, more than offset

by the benefits of having a security organization that

can do no more than collect, assess and disseminate

intelligence and give advice. Even these limited activities must be subject to controls. It is important that the security organization should not have the role or powers of a secret political police, and should not

act so as to permit a belief to develop that it has the

character and powers of a secret political police.

445. Another type of liaison and co-operation

arises where assistance is being given to ASIO by the police and not by it.

446. Each of the State police forces has a special

branch which carries out duties which yield intelligence

about matters within ASIO's functions. The Commonwealth

Police Force and the Territorial police forces also

obtain this type of intelligence. Commonly, the police

do this work on their own account but on occasions it

is done in co-operation with ASIO. In either type of situation and where appropriate, intelligence obtained by the police forces is provided to ASIO.

447. Thus far, as regards the police forces of the

States, the relationship has been based on arrangements

of a rather informal kind made between ASIO and each

police force; the arrangements have not been made

between the Commonwealth Government and the relevant

State Government. Sometimes it has appeared that a

State Government is not aware, either of the details

of operations or intelligence collected and communicated

or even the nature of the arrangements made between

ASIO and its own police force. The relationship should

be regulated by proper arrangements made at government

level. Subject to this degree of regulation, I have no

doubt that it is quite proper for ASIO to co-operate

with, and to seek the co-operation of, the police

forces of the Commonwealth and States in respect of

matters falling within its charter.

448. Further aspects of this matter are discussed

in Appendix 4-N. The appendix should not, in my view,

be published.

213.

214.

(ii) Foreign liaison

449. Effective internal security is a highly specialized

and expensive undertaking. Recognising that, ASIO

maintains, and has maintained, active liaison both here

and abroad with the internal security and intelligence

services of several friendly nations. It does so for

these reasons:

(a) To ensure that it is taking full _

advantage of advanced techniques and

methodologies available to friendly

services with common goals.

(b) To take advantage of the information

available to other intelligence and

security services on security threats of common interest. Intelligence about the operations of espionage

services and agents, and about

terrorism and terrorists are

examples.

(c) To ensure that ASIO keeps up to date

with international security

developments of interest to

Australia.

450. In my view, these liaison relationships contribute

significantly to ASIO's overall efficiency. They can

215.

help to minimize the costs involved in accomplishing its

internal security mission. I find that the Australian liaison

efforts of these friendly services are in the national interest.

451. I would only add three points.

452. The first is that ASIO must take special care to

ensure that any information it passes to other services

is carefully scrutinized and checked, not only for accuracy,

but also as to whether it should properly be passed to a

third country.

453. SeaondZy, ASIO should be careful to ensure that

its relationship with any foreign intelligence service is in harmony with the principles of legality and propriety

I have already mentioned. Therefore ASIO must take care

to see that its liaison arrangements accord with the foreign

policies of the government of the day and that its liaison

does not assist any service which does not sufficiently

respect civil rights and freedom.

454. Thirdly, ASIO should not be uncritical of information

obtained from foreign liaison services. It should not be

automatically accepted as correct merely because it has

been so supplied and because to check it is difficult.

455. To this end, I shall recommend that the authority

for ASIO to enter into any formal liaison arrangement with an

intelligence service, contained in s 5 (1) (c) of the

216.

ASIO Act, be subject to the of the ·

[4-137] Decisions to open and close overseas po·sts

should be taken by the higher intelligence machinery

recommended in my third report. . .-

456. Certain aspects of this matter . are not, in

my view, appropriate to be dealt with in a document

intended for publication. These matters are discussed

in Appendix 4-P. [4-138]

4-137

4-138

The present DG has told me: "There will often be cases in which an intelligence link can serve valuable purposes at a time when official relations are strained ••.

there are some cases where close liaison is not contemplated, and perhaps not even wanted, by ASIO, but a door is left ajar by

maintaining some unofficial point of contact." (Letter of 4

November 1976, Annexure A, p 3). It is not suggested that this type of contact should require ministerial approval. The NZ Ombudsman said in his .report (at p 72) that this area

was one which in general it

would not be proper to make any comment. The Church Committee's report (at p 170) is similarly

reticent on this point.

.. , .

(e) Accountability to the Parliament and people

(i) Parliament] ·

457. The problem of the accountability of the

Director-General and of the organization generally

to the Parliament has given me very great trouble but

I have come to the conclusion, as did the Canadian

Royal Commission on Security, that I should not

recommend that there should be a parliamentary

committee to scrutinize or supervise ASIO's activities.

The Canadian Royal Commissioners expressed this view

on the matter:

"We have discarded scrutiny by a Parliamentary committee partly because we think that the Legislature should not be directly involved in these executive matters, and partly

because, if the committee were to carry out its task in a meaningful way, its members would need formal security clearance. On general grounds we think it inappropriate

217.

218.

458.

to subject private Members of Parliament to these procedures, and in addition we forsee great complications if a Member nominated by a political party

were ever deemed unacceptable on security grounds." [4-139]

In some democracies, as for example Sweden

and the Netherlands, a parliamentary committee does

have certain powers of investigation and

There are advantages in such a system, but I have

concluded that they are outweighed by the disadvantages.

459. It must be borne in mind that, under the

recommendations I have made or under the existing

procedures, the following safeguards do or will exist:

(a) The Prime Minister has a supervisory

power in respect of matters of policy

and budgetting. He will be assisted

by a non-political advisory committee.

(b) The Minister has a wide supervisory

power and responsibility.

(c) In respect of many matters where the

rights of individuals are involved, there will be a right of review by

an independent tribunal.

(d) The Auditor-General exercizes the

4-139 Canadian Royal Commission's Report, para 65.

financial supervision given to him

by the Audit Act.

460. The present practice of the Prime Minister

or the Minister in relation to Parliamentary questions

concerning ASIO is not to comment, that is neither to

confirm nor deny any allegations, or presumed

allegations. I think that this practice should

continue except in very special cases.

461. The absence of express Parliamentary supervision

is correlative to a bipartisan approach to security

matters. If security is to be the subject of a partisan

approach, the basis of what I have recommended about

supervision goes. As Rebecca West says in her The New

Meaning of Treason:

"and this [to lift matters out of

party politics] is indeed necessary. Security is literally concerned with security: with safety: with the

survival of this country and, indeed, this globe". [ 4-14 0]

If there is to be a bipartisan approach it is necessary

that the opposition party or parties should be informed

about security matters, and the appropriate way to do

this is by consultation between the Prime Minister and the Leader of the Opposition, and by reports by the

4-140 New York, 1964, pp 367-368.

219.

.·.

..

220.

Director-General of Security to the Leader of the

Opposition. This practice is regarded as basic in

various parts of the democratic world and should be

regarded as basic in Australia. With a truly bipartisan

approach I think that supervision by the executive

and, where appropriate, by a review tribunal, will

protect both the interests of the nation and the interests

of citizens.

462. Proposals have been put to me that ASIO should

make an annual report to Parliament. On the face of it,

this idea seems attractive. But it must be recognized that, with so much of ASIO's work secret, very little of real value to the Parliament, which is a public forum,

could be provided.

463. I have come to the conclusion that no useful

purpose would be served by presentation of an annual

report to Parliament. I shall not recommend the

institution of such a system. I have already proposed the presentation, by ASIO of an annual, classified report

to the Government. It should be shown, under

"Executive Councillor" conditions, to the Leader of the

Opposition, as part of the Prime Minister's arrangements

for consultation with him on matters of intelligence

and security .

464. Although not a matter of accountability, it is

convenient here to comment on the investigation by

ASIO of the activities of members of Parliament. It

should only be in rather extraordinary circumstances

that ASIO should investigate these activities. Our

political structure takes the form of parliamentary

democracy. Whilst members of Parliament are not

sacrosanct, they enjoy special privileges in the

performance of their parliamentary duties. However

if ASIO has reason to believe that a member of Parliament is, outside the Parliament, engaging in activities

prejudical to security, it would be its duty to

investigate that activity.

465. Thus, in the Profumo case, had the British

Security Service known of the relationship between

Captain Ivanov and Miss Keeler, it would have been its

duty to investigate the relationship between Mr Profumo

and Miss Keeler, even though Mr Profumo was a Minister

as well as a member of Parliament.

466, It is obvious that special care must be taken

in any such cases and in particular that special care

must be taken with respect to the records concerning

such an investigation.

221.

222.

467. If any investigation does substantiate that

the member of Parliament is engaging in activity

prejudicial to security, it would normally be

appropriate for the Director-General to report the

matter to the Prime Minister. [4-141]

(ii) to the public

468. Accountability to the public is ·not to be

distinguished in any essential way from accountability

to Parliament. However it is unfortunate that the public

learns of security matters through leaks or from

generally ill-informed sources, and that there has been

no tendency for ministers, including Prime Ministers, to

speak for or in respect of ASIO or its operations.

469. I make no formal recommendations about these

matters but I do suggest that ministers should consider

speaking at times in Parliament about the organization

and its activities, possibly on the basis of the

Director-General's report which I have previously

recommended; and that consideration should be given to

the Director-General speaking in public about ASIO and its

role as the heads of western services have from time to

time.

4-141 See the statement made by Mr Holt as

PM in 1967 quoted in footnote 4-118.

470. One important consideration in the eyes of

the public is whether the security service is believed

to be politically neutral. Of course, it is easy to

say it is a requirement that was laid down in the directives

to ASIO which preceded the ASIO Act. They provided

that it was essential that ASIO should be kept absolutely

free from any political bias or influence and that

nothing should be done that might lend colour to any

suggestion that it was concerned with the interests of

any section of the community or with any matters other

than the security of Australia. The Director-General

was required to impress on his staff that they were to

have no connection with any matters of a party political

character and that they must be scrupulous to avoid any

action which could be so construed. [4-142]

471. These provisions should be complied with in all

respects. They might properly be the subject of a

policy direction by the Prime Minister or even amendment

of the ASIO Act. Directions of this character, and

strict compliance with them by ASIO, must be part of the bipartisan approach to security which is essential to the

4-142 1949 Charter, para 6 and

1950 Charter, para 6.

223.

224.

effectiveness of ASIO. [4-143]

4-143 This requirement was embodied in a directive

to ASIO staff by the Director-General of 18 September 1956:

"1. The maintenance of political impartiality by all members of the staff of ASIO is

demanded in the public interest and confidence in that impartiality is an essential part of the system of Government in this country. Our Organization is currently accused in some quarters of having departed from this principle.

It is needless for me to point out that such

accusations have no basis in fact. In very

truth had such a departure occurred, the position of ASIO would have become and indeed deserved to become precarious.

2. Political activities take many forms but they may be defined as those which cover not only candidature for Parliament, but also the holding of office in a political organization;

speaking in public on controversial matters of party politics; writing letters to the press setting out views on party political matters; or engaging in canvassing for political candidates at Parliamentary elections. 3. Therefore, an officer of ASIO will not

engage in any political activity which would in any way tend to impair his usefulness as a servant of the Crown or which might conflict with the interests of ASIO or be inconsistent with his position as a member of ASIO. He may

not take part in party politics; or in any

public discussions which touch on the public conduct of Ministers or on the policy of the Government.

4. He must not take any open part in political

controversy, even if he does not contemplate standing for Parliament. This does not mean that he may not have private political opinions; that he may not vote at Parliament elections which are of course compulsory; or· even that

... he may not

(f) Accountability for funds

472. In my view much of what I wish to report on

this matter should not be published. _ I shall therefore

4-143 Ctd

248 18177 - 9

he may not belong to a political party; but it does mean that he must not do

anything which · might cause the general public to doubt his impartiality as a servant of the Crown. It makes no difference, of

course, to which democratic political party a member of ASIO adheres; the party which forms the Government to-day may be in opposition next week or next year and if a member of ASIO's loyalty to the

Government is not doubted now it may be doubted then, if he does not observe publicly at all times a position of strict neutrality in all political activities.

5. I also wish to draw the attention of all

members of ASIO to an extract from the directive under which this Organization was established and now operates and which refers to this general matter -

"It is essential that the Organization should be kept absolutely free from any political b i as or i n fluence, and nothing

should be done that might lend colour to any suggestion that it is concerned with the interest of any particular section of the

community, or with any matters other than the safety of Australia. You will impress on your staff that they have no connection whatever with any matters of a party

politi cal character and that they must be scrupulous to avoid any action, which could be so construed."

6. I rely on the loyalty and good sense of

each and every member of the staff of AS I O to continue to give effect to the terms of

this instructio n." ... Similar instructions

225.

226.

deal only with a few general points in this section.

It should be read in conjunction with Appendix 4-Q, which should not be published.

473. In a submission to me, the Treasury suggested

some changes in ASIO's financial arrangements. First3

in regard to appropriation, they suggested that Parliament

might be given "under broad headings" some further

information. I do not consider this suggestion could

be adopted with security, for reasons already dealt with

above.

474. Seaond 3 Treasury suggested that consideration might be given to inclusion by the Auditor-General in

his annual reports to Parliament of a reference to his

audit of ASIO's accounts. Subject to what I say in

Appendix 4-Q, I think there might be some value in his

doing so. As Treasury points out, it is, of course,

a matter for the Auditor-General's own judgement.

4-143 Ctd

4-144

Similar instructions have been issued frequently. The instructions were most recently upheld in a memorandum to staff on 18 July 1974, following the repeal of Public Service Regulation 34(b), which prohibited public servants for commenting publicly "upon any administrative action or

upon the administration of any Department" ( See Doc A9 7 ) .

See paras 462-463.

475. Third, the Treasury proposed "a possible

statutory basis for accounting and auditing". This is

the proposal:

4-145

"The Australian Security Intelligence Organization Act 1956-73 contains no financial provisions. That is why the Audit Act 1901-1973 governs the accounting

and auditing arrangements of the Organization. As will be noted from the foregoing, special procedures have had to be devised to relate the Organization's working requirements to

the statutory provisions of the Audit Act.

It would be much more appropriate if the legislation relating to the Organization were to contain financial and auditing provisions somewhat similar to th0se that

are now regularly inserted into much statutory authority legislation. These provisions would aut horise the operation of separate banking accounts; would

impose a responsibility on the Organization to keep proper books of account and would require the Auditor-General to carry out an audit. The provisions of

the Audit Act would thus be supers:eded and statutory recognition given to the need for some flexibility in the accounting and auditing arrangements. Although some changes to the standard financial clauses

frequently used in statutory authority legislation would be desirable, there is much to be said for the adoption of the

statutory authority approach given an appropriate opportunity." [4-1451

Treasury, Submission No 83, 20-21.

227.

228.

476. I think there is much merit in the Treasury

suggestion and shall so recommend. This matter is also

more fully dealt with in Appendix 4-Q.

477. I wish finally to refer to ASIO's financial

procedures. This is essentially a matter of management.

I think I should report, however, that my preliminary

investigations have revealed that ASIO's financial procedures are capable of some improvement. I shall

recommend, therefore, that consideration be given by

ASIO to the engagement or appointment of appropriate

experts to review the entire system of accounts and

to recommend what improvements should be made.

F. FINDINGS

(a) The need for a security service in Australia

657. My basic finding is that Australia needs and

should have a security intelligence service to investigate ! •

and intelligence about threats to the internal

security of the nation.

658. The authority for the existence of a security

organization is found in the defence and some other

related heads of power in the Constitution. (paras 28-31)

659. An organization truly fulfilling such a role in

the defence of Australia is entitled to the confidence

and respect of the as the Defence Force is.

(para 33)

660. The essential conception of as an

and not is right for our

national circumstances.

(b) The scope of security intelligence

661, Most of the evidence available to me must remain

secret. But on the basis of what has been submitted or

provided to I find that Australia and has faced

or may threats to its internal security fr om the s e

kinds of and tha t ASIO should investigate them :

22 9.

230.

which is the covert

colrection of (generally secret)

intelligence.

"Active a general

expression to cover a variety

of activities by which a power can weaken another or

strengthen itself vis-a-vis· that

other including:

(i) the establishment of

"agents of influence";

(ii) the dissemination of "dis information";

(iii) other forms of

clandestine or deceptive

action.

which is activity whose

purpose directly or

to overthrow constitutional

and in the meantime to

weaken or to undermine it.

Sabotage, which is the destruction,

damaging or impairment of defence

installations, etc, which would be useful to an enemy or a foreign

powero (para 35)

T'/.Jo further kinds of activity should be investigated by

ASIO, although they may not always involve a direct

attack on Australia.

Terrorism, which is politically

motivated violence, or the threat

of that violence. The organization in Australia of,

or of assistance for, violent

political activity in foreign countries. (para 36)

(c) The functions of ASIO

(i) Standards to be observed by ASIO

662. ASIO should observe standards in its activities

7.Jhich reflect the limitations on what a security

organization should do in a democratic society. Such a

society cannot be safeguarded by a repudiation of those

standards, with the consequent erosion of our rights and

freedoms. (para 114)

Thus ASIO must -

2 31.

232.

(i) Ope rate wi thin the terms

of its s tatute and be

concer ned only with matters

relevant to security . (para 120)

(ii) Co mp ly generally with t he

law . (para 122)

(iii) Beyond compliance with the

establish for itself

s tandar ds o f pr opriety . (para 123)

664. There have at t ime s been departur es by ASIO

from t hese with varying degrees of justifi c ation .

(para 117)

665. The various mode s of investigation available to

ASIO r ais e q uestions of legality and p r opriety . These

questions mu st be fac ed i f t he nation is to ex pect the

security service to be effec tive in the discharge of its

functions . (para 138)

(ii) The collection of security intelligence

666. The collection of security intelligence should

begin with the slightest p r acticable intrusion into

civil liberties . If the issue is not its

seriousness may justify greater intrusion . (para 126)

667. The proper performance by ASIO of its functions

requires it to make use of various forms of intelligence

coUec tion. The following means can_, and_, subject to

the law _, should_, be used:

(i)

(ii)

(iii) (iv)

(v)

(vi)

(vii)

(viii)

Telephonic Interception

(paras 140-143)

Interception of other forms of

telecommunication (paras 144-145)

Listening devices (paras 146-147)

Mail interception (paras 148-151)

Access by ASIO to other records

systems (paras 152-158)

Entry and search of premises

(paras 159-166)

Surveillance of persons

(paras 16 7-172)

Use of human sources (informants

and agents) (para 173-182)

668. I am satisfied that ASIO has complied with the

provisions of the Telephonic Communications (Interception)

Act. (para 14 0)

669. There have_, in the past _, been Australian

organizations or groups of people whose object _, or one

of whose objects_, is the collection of "security

233.

234.

intelligence". They have almost always been concerned

with what they considered to be subversive activities,

and in particular with allegedly subversive activities

by extremists of the political left. ASIO should be

circumspect in any dealings with such groups.

183-187)

(iii) ASIO's records

(paras

670. The efficiency and security of its records

system are amongst the moat important aspects of carrying

on a security intelligence organization. But there have

been, and still are, deficiencies both aspects of

ASIO's existing system. (paras 188-194,)

671. Some people are concerned that ASIO might have

a "file" about them. That of itself is not derogatory,

and should not be seen as akin to having a police or

criminal record. A very large number of ASIO's files

exist only for the purpose of establishing that persons are not security ria ks. (para 195)

672. While ASIO's task should be confined to

collecting intelligence relevant to security, it must be

given a broad brief to do so. (para 197)

673. No case has b een established for the public to

have aaaess to information held by ASIO, either about

them or, still less, about others. (para 199)

(iv) Assessment of intelligence

674. I am not satisfied that ASIO has done its job

of assessing security intelligence well enough.

(paras 200-207.)

675. Intelligence assessment is no simple or routine

activity but a highly skilled and subtle task. But

I saw little evidence in ASIO that the qualities of mind

and expertise needed were recognized, or available in any

large measure. (para 208)

676.. ASIO shoul-d devel-op processes of eval-uation of

souraes, independently of the operations area. (para 217)

(v) Intelligence dissemination

677. In order to be of use, much intell-igence

aolleated by ASIO must be communicated to others. But

although ASIO needs a broad brief to col-lect intelligence

relevant to security, there is no valid case for it t o

communicate information not rel-evant t o security, or t o

communicate it otherwise than for the purpose of seauri t y

and through proper channels. (paras 222-223)

235.

23 6.

678. Material before me has e stablished from

time to there has been improper communication of

intelligence held by ASIO . (para 22 5)

679. On the other I found often there was too

little communication between ASIO and government depart ­ ments of security intelligence of potential value to

either par t y . In much intelligence that

could be obtained is not and much intelligence

that is obtained is not used. (para 231)

680 .. The re is evidence to show that ASIO has in

the past provided selected people with security

intelligence material for publication. The material provided was apparently drawn from information

in the public arena . It seems to have been ASIO's

intention that the material be not attributed to it .

A propaganda activity of this kind by ASI O is a

mi sconceived enterprise. It crosses the boundary between

provision of which is and the taking

of a " measure for which is not proper.

(paras 245-249)

(vi)

681.

Security checks for access

Criteria for security checking cannot be absolute

and they canno t be because security assessments

relate to human beings who are infinitely various. (paras 268-269)

682. Security assessments may relate t o loyalty or

to reliability or both. The main matters to be

considered are:

Associations and other circumstances which

establish the existence or indicate the likelihood of .present disloyalty.

{b) Associations and other circumstances which

may indicate the possibility of present

disloyalty or which may lead to disloya l t y . (c) Character and related defects which may

lead to 3 or may be used to induce 3

dis loyalty.

(d) Character and related defects which may

establish or indicate unreliability 3 but not necessarily disloyalty. (para 273)

683. It has been the practice not to ma ke publ ic even

the general nature of the criteria for security chec k i ng

that ASIO has adopted. There is no reason wh y such a

degree of secrecy should be applied to gu idel i ne s whic h

affect the lives of many Australian citizens. (para 285)

684. One of the principa l d efects o f t he p r e s ent

security checking system is t h e l ack of ad eq uate

investigation of a person when the r e l e v ant in f ormation

is not already on some record 3 is n o t k n own to the

employer authority 3 or is not revealed by a r eferee . (paras 2 91-2 95)

237.

238.

(vii) Security checks in "immigration" cases

685. The system of security checking in these cases

should be directed to protecting the security of the

nation. The categories vetted and criteria applied

should be determined according to the extent and nature

of the potential security threat involved3 but in many cases judgement will have to be exercized in their

application. (paras 300-303)

686. ASIO's overseas representatives have been limited

to inquiring with the local police and/or security services

of the host country. The effectiveness of an ASIO officer may vary3 through no fault of his oWn 3 on several factors.

Therefore ASI O and the Department of Immigration and Ethnic

Affairs should critically assess the value of any liaison

post established by ASIO for immigration checking purposes.

Some present posts are hard to justify. (paras 311-312)

(d) ASIC and government

687. ASIO is, and should be more, part of the official

family of government. ASIO has a special place because

it has a high duty for the defence of the realm. (para 320)

688. As an integral . part of government, ASIO should

not be in position to pursue its functions without in

any way being accountable to government. It can hardly

do so effectively. But the necessity for secrecy means

that the normal processes of checks and bal ances cannot be applied. (paras 323-324)

(i) Ministerial responsibility

689. ASIO and the Director-General would be subject

to ministerial control save to the extent that any

legislation provides otherwise. There has been uncertainty as to the extent that the ASIO Act does provide o th erw i se.

The Act should be amended to make t he pos i t ion c lear.

(paras

690. In general terms, the Director-Ge n eral mus t be

subject to proper directions by the Min i ster, and th e

Minister should be responsible, in a genera l way , to

Parliament for the organization and its activi t e s. (para 352)

691. The Minister should not be conc ern ed with t he

details of ASIO's operations and activi t i es. Bu t on s ome

239.

,:, ···

240.

matters, for example, in the issue of warrants, he needs

detailed information . And the Director- General will want

to make r epor t s r egul arly to the Minister . The Ministe r

should, in the exercize of his control , base his actions

on national r ather than partisan considerations .

(paras 357-362)

692. Although the Mini s ter would be entitled to enter

ASIO premises , he would not be entitled to inspec t or

othe r wise interfe r e with ASIO ' s files , unless the

Di r ector- Gene r al considers that the info r mation should be

c ommunicated to the Minister for a purpose r elevant to

s ec urity . (paras 363-365)

693. I n the political sphere, the Prime Minister has

r esponsibility for security policy , although the

Attor ney-Gener al administer s the ASIO Act . (paras 367-369)

694. Decisions as to the direction of ASIO ' s resources

involve q u estions of national policy outside mo r e limited

security considerations . Th u s the Director- General needs

and should have guidance from government ; in the last

analysis , from the Prime Minister . (paras 37 2 -375)

695. The Prim e Minister shou l d h ave t he he lp o f a

n on - p ar t is a n group o f s e nio r o fficia l s to adv i s e him o n

security policy. That group should also advise the Prime

Minister on intelligence matters generally. (paras 378-381)

696. The Director-General should not be accountable to

ministers other than the Prime Minister and the Attorney­

General, but he should co-operate with them. (para 382)

697. Because the Director-General has to exercize

great discretion and judgement, the person filling the

off ice should have high capacity and probity and be so

accepted by the public and others in government.

(paras 384-392)

( ii) AS IO' s relations with departments

698. The Director-General should co-operate with

departments although he is not accountable to them in

any way. He should make sure that departments with an

interest in ASIO's intelligence get it. He is not required

t o await a request before acting. (paras 393-402.)

(iii) carrying out or enforcing measures for security 699. The distincti o n b e t ween "c o mmunicating ", " advis ing "

and "c o -operating" and carrying o r enforci n g mea s u r e s

f or security need s to be u nderstood b oth by ASIO and by

departments and aut hori t ies. Wh i le t he fo r me r are p r oper

functions o f ASIO, t h e l a t ter are not . (para 403-413)

24818177 - 10

241.

242.

700. In the performance of its functions, ASIO is not

dependent on the request or consent of any department

and it has a duty to carry out those functions. But

courtesy, commonsense and respect for permanent heads'

responsibilities would normally indicate consultation. (paras 417-422)

701. There is uncertainty in as to who

has power to classify information. There are no regular

processes for downgrading or review. The definitions of

the four classes of classified matter in the Protective

Security Handbook do not distinguish between "national

security" and "in confidence" information. (paras 42 3-43 0)

702. Departmental security officer arrangements are

unsatisfactory. (paras 431-432)

703. Responsibility for overall security policy and

its uniform application have not been adequately exeroized anywhere within the government. (paras 433-437)

704. The Protective Security Handbook is out of date and

needs revision. (par as 4 3 8-4 3 9 )

(iv) Co-operation with the police and in liaison with overseas serv1ces

ASIO has not had, and should not have, police

powers, even though the lack of them may create problems,

sometimes exacerbated by a federal system of government.

(paras 44 0-4 44)

706. There are several ways in which ASIO and the

police should co-operate. (paras 445-448; Appendix 4-N)

707. ASIO maintains active liaison both here and

abroad with the internal security services of several

friendly nations. These relationships contribute

significantly to ASIO's overall efficiency. (paras 449-456; Appendix 4-P}I

(v) Accountability to Parli,ament and people

708. Although in some democracies there are

committees for the supervision of the security service,

such an arrangement would be inappropriate in Australia.

For similar reasons, the idea of an annual report to

Parliament is not supported. (paras 458-463)

709. A bipartisan approach to security requires that

the opposition be informed about security matters, by

discussion between the Prime Minister and Leader of the

Opposition and by briefings of the latter b y the Di rec tor ­

General of Security. (para 461)

243.

244.

710. If a member of Parliament outside the

engaging in activities prejudical to

ASIO has a duty to investigate. (paras 462-467)

711. It is important that the public believes ASIO

to be politically neutral. The Director-General of

Security should take special steps to ensure that ASIO

is kept absolutely free from any political bias or influence and that nothing should be done that might lend

colour to any suggestion that it was concerned with

the interests of any section of the community or with

any matters other than the security of Australia.

(paras 468-4 71)

(vi) Accountability for funds

712. A suggestion that ASIO's estimates be published

"under broad headings" could not be adopted with security.

(para 473)

713. ASIO's financial procedures are capable of some

improvement. (para 477; Appendix 4-Q)

714. The findings in paras 715-743 are the subjects

of a recommendation that they be not published.

G. RECOMMENDATIONS

744. In the light of my findings, and of the

evidence before me, I make recommendations concerning

(a) Amendments to the ASIC Act.

(b) Other legislation.

(c) Policies and practices to be

followed by the Government

and ASIC.

(d) Matters not dealt with in the parts of this

report not intended for publication.

745. In recommending changes in legislation, I have

not attempted to draw precise clauses but rather to

outline the general intent of each proposed amendment.

746. I make the following recommendations:

(a) Amendments to the ASIC Act

Section 2

747. That the definition of "security" be varied to

include activities of the six kinds listed in para

and as defined in part B generally. (para 104 and paras

before. )

245.

246.

Section 4

748. That the section be amended to provide that:

(1) The organization shall be under the

control of the Director-General.

(2) The Director-General in the

performance of his duties and exercize

of his powers under the be subject

to the direction and control of the

Minister except in the following respects:

(a) Whether any particular intelligence

or matter is or might be relevant

to security for the purpose of the

Act.

(b) to and in what

manner any intelligence held by

ASIO should be communicated.

(c) Having been requested by a

minister or directed by the

Minister to give advice to a

minister in respect of a

matter relevant to

what advice should be given

to that minister. (paras 345 , 353 and 356 )

Section 5

749. That section 5 (l}(c) be amended to read:

Section 6

"(c) to co-operate with such Departments

of State and authorities of the Commonwealth and3 so far as

practicable 3 with such Departments and authorities of the States as

are capable of assisting the

Organization in the performance

of its functions. (d) to co-operate with such authorities

of other countries as the Minister approves as being capable of

assisting the Organization in · the performance of its functions."

(para 455; Appendix 4-P, para 9)

750. That the ASIO Act be amended to provide that the

Director-General shall be appointed by the Governor-General 3 and shall be paid salary and allowances as determined by

the Remuneration TribunaZ 3 and shall hold office under terms and conditions stated in the Act3 and not in an

instrument made by the Governor-General.

247.

248.

751. That the sta ndard provision s r elating to the

terms and conditions of statutor y o f fice-holders be

taken as a guide in dr a f ting the appropriate clauses

of the Act relating to the Di r ector- General .

752. That the Di rector- Gene r al be appointed f or a

stated period of year s (five or seven ) . (para 389)

753. That appropriate clauses be included in the

Act t o allow for the appoin t ment of an Acting Direc t or­

who shall have all the powe rs f or the time

being of the Director including in r espect of

warrants . (para 392. )

Sections 6A and 6B

754. That s ections 6A and 6B of the ASIO or

similar be retained . (para 388)

Section 7

755. That section 7 be repealed and replaced by

to be worked out in detail between ASIO

and the Public Service relating to the empl o yment

of ASIO officers "under " the Public Servic e t o

the extent that that course is consistent with the

organization ' s need fo r secre cy of oper ations . (para 648)

Sections 8, 9, 10, 11, 12, 13 and 15

756. That sections 8, 9_, 10_, 11_, 12_, 13 and 15 of

the ASIO Act be retained_, subject to any changes

to meet the changes recommended above in

respect of s 7. (para 648.)

Section 16

757. That the regulation-making power be more

generally drawn_, to allow the Governor-General to make

regulations 1"e lating to ASIO staff's terms and conditions

of service_, and other matters that may be appropriate.

(para 648)

New provisions

758. That the following new provisions be inserted

in the ASIO Act:

Definitions

759. Definition of "active measures" as "clandestine

or deceptive action taken by or on behalf of a foreign

power to promote the interests of that power". (para 54)

760. Prescription of guidelines relating to the

investigation of subversion_, a0 follows: (a) So far as concerns the activities of

individuals or of individuals acting in

concert_, directed by_, subsidized by or

249.

250.

otherwise undertaken in active

collaboration with a foreign

power or a foreign political

organization, the ASIO Act

should not contain a definition

of "subversion". (b) In respect of the activities of

individuals, or of individuals

acting in concert, not directed

by, subsidized by or otherwise

undertaken in active collaboration

with a foreign power or a foreign

political organization, the ASIO Act should contain a definition

of "subversion". (c) The activities of the individuals

referred to in para (b) which

should be included within the

definition of "subversion" are those activities which involve,

or will involve, or are intended

ultimately to involve, the use

of force or violence or other unlawful acts (whether by themselves

or other) for the purposes of:

(i) overthrowing the constitutional

government of the Commonwealth

Il l

of Australia or of a State

or Territory; or

(ii) hindering or

interfering with the taking of measures by the

Commonwealth Government

in the interests of the

security of Australia. (paras 60-80)

761. Definition of "terrorism" by reference to -

(a) The legislation and international

conventions mentioned in paras 92-97

(b) Acts of violence carried out 3 or being

in Australia for foreign

political purposes 3 or carried out elsewhere than in when

the perpetrators have come 3 are coming 3 or may come 3 to Australia. (para 10L)

762. Definition of "domestic activity related to

violence and subversion abroad" as a function for ASIO.

(paras 102 and 103)

251.

252.

Warrants

763. Insertion of to authorize the

giving of warrants by the under conditions

similar to those prescribed in the Telephonic

Communications (Interception) to permit the

for purposes relevant to of

telegrams and telex and other transmitted messages.

(paras 144 and 145; Appendix 4-K, para 9) ·

764. Insertion of to authorize the

giving of warrants by the under conditions

similar to those prescribed in the Telephonic

Communications (Interception) to permit the

maintenance and removal of listening

devices and to do all things necessary for those

for purposes relevant to security. (paras

146 and 147; Appendix 4-K, para 16)

765._ Insertion of to authorize the

giving of warrants by the under conditions

similar to those prescribed in the Telephonic Communications

(Interception) to permit the interception of mail

and the inspection of mail covers for purposes relevant

to security. (paras 148-151; Appendix 4-K, para 24)

II

766. Insertion of provisionsj to authorize the

giving of warrants by the under conditions

similar to those prescribed in the Telephonic

Communicat ions (Interception) to permit ASIO to

en ter and search for purposes relevant to

security and subject to provisions:

(a) The Minister should be satisfied

that documents or records may be

situated on the premises without

or without intelligence

concerning ASIO's function

of collecting security intelligence would be seriously prejudiced.

(b) A warrant will not issue in

relation to domestic subversion unless the Minister is satisfied

that the person or organization occupying or using the premises

is already engaged in subversive activities as defined above. (c) The warrant should be limited

to allowing the searching for

documents and and sh ould

authorize their

copying or remo val.

253.

254.

(d) The warrant should apply to one

occasion only.

(paras 159-166; Appendix 4-K, para 43)

767. Insertion of provisions, to prohibit the

interception of telegrams, telex and other transmitted

messages; the use, maintenance and

removal of listening devices; the interception of mail

and the inspection of mail covers; and the entry and

search of premises, except in pursuance of a warrant.

(paras 144 1 147 1 151 and 164; Appendix 4-K 1 paras

6 1 16 1 2 4 and 4 3. J

Dissemination of security intelligence

768. Insertion of provisions to control the

dissemination of security intelligence3 and prohibit improper or unlawful communication of such information3

inaluding provisions that -(a) The of intelligence

shall be made only by the Director­

General or by someone authorized by

him.

(b) The communication shall not be

made except for a purpose relevant

to security.

(c) The communication of any intelligence

by an unauthorized person shall be

prohibited.

(d) Infringement of these provisions

to be subject to severe penalties.

(para 226)

Annual report

769. Insertion of a provision to require the

Direator-General to report annualZy3 in writing3 to

the Minister. (para 359)

255.

256 .

Requirement to observe propriety

Insertion of a provision to require the

Director-General to take all reasonable steps to

ensure that :

(a ) The work o f the organization i s

strictly limited to what is necessary for the purposes of

the discharge o f its functions .

(b) The organization is kept absolutely

free from any politic al bias o r

and nothing is done that

might lend colour to any suggestion

that it is conce r ned wi t h the

interests of any particular section of the or with any matters

other than the discharge o f its

functions . (paras 12 2 and 4 7 0 )

Financial provisions

771. Insertion of provisions relating to financial

and auditing arran gements somewhat similar to those now

regularly inserted into such statutory authority

legislation . The provisions to include : (a ) Authority for ASIO to operate

bank accounts .

(b) A requirement for ASIO to keep

proper accounts and records.

{c) A requirement for the Auditor-General to carry out an audit,

subject to the preservation of

secrecy in of operational

matters. (para 475; Appendix 4-Q)

(b) Other legislation

772 .. That the Telephonic Communications (Interception)

Act be amended to allow an Acting Director-General of

Security to request and act upon warrants. (para 392.)

773. That the Telecommunications Act and Postal

Services Act be amended if necessary, in accordance with

the views expressed in Appendix 4-K.

774. That, when legislation relating to access by

the public, or by authorities, to the records of

Commonwealth authorities, is under consideration, the

position and interests of ASIO should be taken into

account. (Appendix 4-K, para 33)

(c) Policies and practices to be followed by the Government and ASIO

(i) Administration of the ASIO Act

775. That the ASIO Act be administered by the

Attorney-General but t hat the Directo r-Ge nera l sh o uld

257.

258.

continue to have direct access to the Prime Minister

in security matters affecting the Government as a

whole. (paras 336-366)

776. notwithstanding the responsibility of

the Minister to administer the ASIO the Prime

Minister should continue to exercize general responsibility

for security matters affecting the Government as a whole.

(paras 367-377)

(ii) Ministerial control and responsibility 777. That the Prime Minister receive advice on

matters of as on matters of from

the senior permanent heads' Intelligence and Security

recommended in my third report.

(paras 378-381)

778. in the exercize of his direction and

control of

(a) The Minister should not be concerned with

the details of ASIO's operations and

except to the extent that he

may need such information for the

exercize of his statutory for

in the issue of warrants.

(paras 357 and 358)

(b) The Minister should base his direction

or control, comment or suggestion on

national rather than partisan

considerations. (paras 360 and 361)

(iii) Bipartisan aspects

779. That -

(a) The Government of the day ensure that

the opposition party or parties is

informed about security matters.

(b) The Prime Minister consult the

Leader of the Opposition from

time to time on security matters.

(c) The Director-General of Security

report to the Leader of the Opposition

from time to time for the purpose

of briefing him on security matters. (para 461)

780. That the annual report of the

recommended in para 769, be shown to the Leader of the

Opposition under "Executive Councillor" conditions.

(para 463)

(iv) Parliamentary responsibility

781. That the present practice, whereby the Prime

Minister and the Minister administering the ASIO Act do

259.

260.

not confirm or deny any allegations 3 or presumed allegations 3 in respect of ASI0 3 continue in force. (para 460)

(v) Location of ASIO's office

782. That ASIO's central office should move to

Canberra as a matter of priority and that urgent

planning directed to that end begin forthwith. (para 322)

(vi) Office of the Director-General of Security

783. That the Government take steps to acquaint

the Remuneration Tribunal as fully as may be necessary

with the nature of the Director-General's duties so

that it may reach future determinations more in keeping

with the duties of the position. (para 3 91 )

(vii) Accountability for funds

784. That the Auditor-General be invited to consider

inclusion in his annual reports to Parliament of a

reference to his audit of ASIO's accounts.

(para 4 74..; Appendix 4-Q)

785. That consideration be given by ASIO to the

engagement or appointment of appropriate experts to

review the e ntire system of accounts and to recommend

improvements. (para 4 77 )

(viii) Standards to be observed by ASIO in investigations

786. That ASIO should carefully observe these

principles:

(a} That it operates within the terms

of its statute and is aonaerned only with matters reievant to security.

(para 120 )

(b) That it always complies vith

the law. (para 122 )

(a} That it observes standards of

propriety by not intruding upon

the rights and freedoms or

privacy of persons exaept to the

extent that the requirements

of the nation's security and the law allows. (para 12 J)

(ix)Intrusion into privacy

787. in investigating any ASIO should

begin with the slightest praatiaable intrusion into

rights and freedoms. Only if the issue is not thereby

resolved would its seriousness justify greater intrusion.

(para 126)

261.

2 62.

'788 .. That ASIO adopt differing degrees of intensity

of investigation depending upon whether a person or organization is presently engaged on activities

prejudicial to Australia's security, or is merely a

potential threat. (para 128)

(x) Relations with private intelligence organizations

789. That ASIO ensure that it is in no way beholden

to, or develops any kind of special relationship with,

private intelligence organizations. (paras 183-187)

(xi) Relations with departments

790. That the Director-General should co-operate

closely with officers of the executive government although he is not accountable to them in any way and does not

require their consent or agreement to institute

investigations of matters relevant to security. (para 383. and 393)

791. That the principles and procedures relating to

the classification of documents, information, and material

be reviewed, in particular to ensure that -(a) Due authority to classify is conferred

on appropriate officials.

(b) A distinction is drawn between

"national security" information

and "in confidence" or "private"

information, on the basis that,

if revealed, the former damages the security of the nation; the

latter embarrasses or inconveniences the government.

(c) Provision is made for the

declassification or downgrading

of material in some regular way. (paras 423-430)

792. That the Protective Security Handbook be

reviewed as quickly as possible. (paras 4 33-439)

793. That consideration be given to directing all

departments to review their departmental security officer

arrangements in consultation with ASIO, with a view to

their improvement. (para 432)

(xii) Intelligence assessment

794r That ASIO take steps to ensure that it has

available persons capable of carrying out intelligence

assessment as a highly skilled and subtle task.

(paras 2 08-216)

2 63.

264.

795- That ASIO develop processes of evaluation of

independently of the operations to

promote objectivity . (paras 217-221 )

(xiii) Intelligence dissemination 796. as a matter of invariable ASIO

record all instances of disseminations of security

whether made in writing or orally. (para 2 2 9)

797. That ASIO should not provide security

in any either directly or and whether

on an attributable basis or to the press or other

media . (paras 2 45-2 55)

(xiv) ASIO's records

798. That ASIO take steps to ensure that its system

of records is efficient and secure . (paras 188-197)

799. That ASIO review its records and take action to

destroy any which are or are not of actual

or potential security relevance . (para

(x v) Matters of security vetting

(a) Checking for access

800 . That matters deferred in my second report for

later consideration be the subjects o f recommendations

as s et out in Appendix 4-L . (para 2 62)

801. That consideration be given to the Prime

Minister or Minister administering the ASIO Act informing

the Parliament of the natur e of the criteria generally

applied in the security assessments of ASIO . (para 2 85)

802 . for checks fo r access to the highe r grades

of classified ASIO should institute a system

of positive vetting going beyond present investigations .

(para 2 91)

803. That rechecking f o r secret and top s ec r et

access be carried out at regular intervals (probably each

five years) in all and upon any promotion or

the relevant employer authority may require a

rechecking i f he thinks it p r ope r to do so . (para 296 )

(b) "Irmnigration" checking

8 04. That the system of security checking in "immigration "

cases should be directed to protecting the security of

the nation . (para 300)

805. That categories vetted and the assessment criteria

applied to them should be determined according to the

extent and nature of the potential security threat involved .

(paras 301-302)

265.

266.

806. That, in eaah alass of "immigration" aase, ASIO's

role should be advisory. If the Department of Immigration

and Ethnia Affairs or DFA has information about a person

in any of the alasses of "immigration" aases whiah it

aonsiders is or may be relevant to seaurity, it should

inform ASIO. ASIO is and should be treated as the

Australian Government's speaialist on seaurity aheaking

and assessment. (para 303 )

807 . That, in providing security assessments about a

person, in "immigration" aases, as in other aases, ASIO

should not aommuniaate any information about him or her

that it has not assessed as "relevant to seaurity" as

that term is used in s 5 of the ASIO Aat. Speaifiaally,

ASIO should indiaate, in terms unmistakably alear, the

relevanae to seaurity of any information, inaluding

personality and aharaater information, provided by it

about a person in response to a request for seaurity

assessment. (para 304.)

808. That reaommendations made in my seaond report

be applied mutatis mutandis to "immigration" aases.

(para 305 )

809. That the reaommendations in my seaond report as

to a right of appeal for Commonwealth employees to a

speaial tribunal should be applied mutatis mutandis

to any person who is the subject of an adverse or

quatified security assessment in relation to an entry

permit, deportation, citizenship, or passport application

or is acting as a citizenship agent or immigration agent

who is either

an Australian citizen or

a person whose continued presence in

Australia is not subject to any

limitation as to time imposed by law. (para 306 )

(xvi) Co-operation with police and in foreign liaison

(a) Foreign liaison

810. That ASIO take special care to ensure that any

information it passes to overseas services with whom it

is in liaison, be carefully scrutinized and checked, not onty for accuracy, but also as to whether it should

properly be passed to a third country. (para 452 )

811. That ASIO take care to see that its liaison

arrangements accord with the foreign policies of the

government of the day. (para 453. )

812. That the Minister, in approving liaison proposats

pursuant to para 749 above, ensure that each proposal

accords with the foreign policy of the government of the

day and that the liaison will not assist any service which

2 67.

2 68.

does not sufficiently respect civil rights and freedom.

(para 4.53 )

(b) Police

813. That arrangements for co-operation between ASIO

and State police forces be regulated by proper arrangements

at government Zevel. (para 44T)

(xvii) Publicity to be given to this report

814.. That this report be published, except for:

(a) Part E

(b) Appendices 4-M, 4-N, 4-P, 4-Q and 4-R.

(c) Those parts of the findings (part F) and

recommendations (part G) relating to (a)

and (b) above.

815. That this report be shown in its entirety to

the Leader of the Opposition under "Executive Councillor"

conditions.

816. These recommendations are final. They need

implementation by

(a) Legislation.

(b) Government decision.

(c) Action by departments and authorities

and by ASIO.

817. The recommendations in paras 818-853 are the

subjects of a recommendation that they be not published.

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