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Intelligence and Security - Royal Commission - Reports - 4th Volume II (Appendices)


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Parliamentary Paper No. 249/1977

The Parliament of the Commonwealth of Australia

INTELLIGENCE AND SECURITY

Royal Commission

Fourth Report

Volume II

Presented by Command 25 October 1977 Ordered to be printed 27 October 1977

The Commonwealth Government Printer Canberra 1978

© Commonwealth of Australia 1977

•

Printed by C. J. THOMPSON , Acting 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 tqis 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 meq sures. 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 o r ganizations . 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 2Ql 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 2 35 120

(a) The private sector 236 121

(b) Educational institutions . 242 124

(c) Trade unions . 243 125

(d) The press and other

media 245 127

(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 3 06 153

(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 (Cant)

(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 . 384

(b) ASIO's relations with departments • . 3 93

(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

(ii) Accountability to the public .

(f) Accountability for funds

iv

457

468

472

Volume Page

I

179

183

186

186

187

190

193

197

201

205

:i06

.210

210

214

217

217

222

225

Part

E

F

Para Volume

ASIO's EFFECTIVENESS 478

FINDINGS 657

(a) The need for a security service

in Australia 657

(b) The scope of security

intelligence 661

(c) The functi9ns of ASIO 662

(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 "immigration" 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

662

666

670

674

677

681

685

687

689

698

699

705

III

I

Page

11

229

229

229

231

231

232

234

235

235

236

238

239

239

241

241

242

Part Para Volume Page

F (Cont) I

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

(vi) Accountability for funds . 712 244

(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 245

(a) Amendments to the ASIO Act . 747 245

(b) Other legislation 772 257

(c) Policies and practices to be

followed by the Government and ASIO 775 257

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

(ii) Ministerial control and responsibility . 777 258

(iii) Bipartisan aspects 779 2 59

(iv) Parliamentary responsibility . 781 259

(v) Location of ASIO's office . 782 260

(vi) Office of the

Director-General of Security . 783 260

(vii) Accountability for funds 784 2 60

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

vi

Part G (Cont)

Para Volume Page

(ix) Intrusion into privacy 787

(x) Relations with private intelligence organizations 789

(xi) Relations with departments 790

(xii) Intelligence assessment 794

(xiii) Intelligence dissemination 796

(xiv) ASIO's records 798

(xv) Matters of security vetting 800

(a) Checking for access

(b) "Immigration" checking .

800

804

(xvi) Co-operation with police and in foreign liaison 810

(a) Fo r eign liaison 810

(b) Police

(xvii) Publicity to be given to this report (d) ASIO's effectiveness .

(e) Relations with the police

(f) Overseas liaison

(g) Financial matters

vii

813

814

!U8

838

848

850

I

261

262

262

2 63

2 64

264

264

2 64

2 65

267

2 67

268

268

III 82

III 85

III 87

III 88

APPENDIX Para Volume

4-A

THE 1949 CHARTER OF ASIO II 1

4-B

THE 1950 CHARTER OF ASIO !I 4

4-C

DIFFERENCES BETWEEN ASIO CHARTERS OF 1949 AND 1950 II 8

4-D

AUSTRALIAN SECURITY INTELLIGENCE ORGANIZATION ACT 1956-1976 II 12

4-E

CRIMES ACT 1914-1975 PART VII ESPIONAGE, OFFICIAL SECRETS AND PROHIBITED PLACES II 21

4-F

PROBLEMS RAISED IN PART VII OF CRIMES ACT 1914-1975 II 34

(a) General criticisms . .2 34

(b) Particular criticisms and problems .8 36

4-G

ESPIONAGE AND EXPULSION CASES II 48

4-H

DEFINITIONS OF SUBVERSION II 73

(a) Australia .5 74

(b) United Kingdom . • 6 76

(c) Canada . • 8 77

(d) Malaysia 11 80

viii

APPENDIX Para Volume Page

4-H (Con t) 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-GENERAL, CONCERNING THE DRAFT SUBMISSION TO US HOUSE

OF REPRESENTATIVES COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS ON 11 FEBRUARY 1976 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

165 concerning information 25

(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 "Australian 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

14 6

APPENDIX

4-R

ASIO - PERSONNEL MATTERS

xi

Para Volume

III 170

AC ASIO BfV

c

CIA CJ CLR COIN TEL PRO Crnnd Cont (or

Ctd)

CPA CPA (M/L) CPD Ctd (or

Cont)

DFA DG DOB 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 II 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 Debates 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

PLO PM PM & C

pp (or p)

PSB p t

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-section 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)

APPENDIX 4-A

THE 1949 CHARTER OF ASIO

Reproduced in full in the following

pages is the Prime Minister's memorandum to the

Director-General of Security, being a Directive for

the Establishment and Maintenance of a Security

Service, dated 16 March 1949.

2. The original classification of this

document was Secret. I am advised by ASIO that the

document has now been declassified.

1.

2.

PBTME MINISTER Is MEMOR!NPW4 TO THE DIREQTOR GENERAL OF

SECPRITY. BEIW A DIRECTIVE FOR THE ESTABLISHMENT ANP

MAINTAINANCE OF A SE9URITY SERVICE.

1. You are appointed Director General of Security, and it is

your duty to establish and maintain a Security Service.

2. The Security Service forms part of the Attorney General's

Department, and the Attorney General will be responsible for

it to Parliament. 3. As Director General of Security you will have direct access

to the Prime Minister at all times.

4. It is your responsibility to keep each Minister informed of

all matters affecting security coming to your knowledge and which fall within the scope of his Department.

5. The Security Service is part of the Defence Forces ot the

Commonwealth and save as herein expressed has no concern with

the enforcement or the criminal law. Its task is the defence

ot the Commonwealth trom external and internal dangers arisinl trom attempts at espionage and sabotage, or from actions ot

persons and organizations, whether directed from within or

without the country, which may be judged to be subversive or

the security of the Commonwealth.

6. You will take especial care to ensure that the work ot the Security Service is strictly limited to what is necessary

the purposes of this task and that you are tully aware ot the

extent ot its activities. It is essential that the Security Service should be kept absolutely ·free from any political bias

or influence, and nothing should be done that might lend

colour to any suggestion that it is concerned with the interests

of any particular section of the community, or with any matters other than the defence of the Commonwealth. You will impress on your staff that they have no connection what.ever with any

matters of a party political character and that they must be

scrupulous to avoid any action which could be so construed.

7. No enquiry is to be carried out on behalf of any Government

Department unless you are satisfied that an important public

interest bearing on the defence of the Commonwealth as defined in paragraph 5 is at stake.

- 2 -

8. You and your staff will maintain the well established

convention whereby Ministers do not concern themselves with

the detailed information which may be obtained by the

Security Service in particular cases, but are fUrnished

with such information only as may· be necessary for the

determination or the issue.

9. You are authorised in your discretion to engage and

dismiss staff and to arrange such methods and conditions

of working for your staff as are necessary to ensure

efficiency and secrecy.

10. You will establish a comprehensive set of security

records. In order to do this you will arrange that all

Government Departments and agencies submit to you for

inclusion in your records all information on

security which may be in or come into their possession.

You will also arrange to have such access to the records

ot Government Departments and agencies as you may deem necessary for the purposes !J71your work.

the / b -. day or Varch, #949. I

u11Jf4

3.

4 •

. ..

APPENDIX 4-B

THE 1950 CHARTER OF ASIO

The following pages reproduce in full

the Charter of the Australian Security Intelligence

Organization dated 6 July 1950, issued by the Prime

Minister to Colonel C.C.F. Spry.

2. The orginal classification of this document

was Secret. I am advised by ASIO that the document

has now been declassified.

CHARTER OF THE AG'ST ?.A:Llt\N SECURITY HfrELLIGEtK;E ORGA NI ZA'llQli..

(A directive from the Prime Minister to the Director­ General of Security.)

1. By virtue of your appointment as Director-General of

Security, it is your duty to direct and maintain the

Security Service established under the name of the

Australian Security Intelligence Organization (hereinafter

referred to as "the Or ganization").

2. The Organization part of the Attorney-General 1 s

Department, and the Attorney-General will be responsible

for it to Parliament.

3. As Director-General of Security you will have 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 Goverru:.aent as a whole.

4. It is your responsibility to keep each Minister informed

of all matters affecting security coming to your knowledge

and which fall within the scope of his Department, and to

confer as necessary with the Public Service Board with

regard to matters affecting security in the Public Service

of the Co:nmon','lealth.

5. The Organization is part of t he defence system of the

Commonwealth, and save as herei!l expressed ha s no concern

with the enforcement of the cr i minal law. Its task i s t he

defence of t i:la Commonwealt h a nd its Territories from external

and internal dangers arising froru atter.c.pts at espionage a nd

sabotage, or from actions of pers ons and organizat i ons,

whether directed from withi n or wi t hout the co1.11i try, wh i ch

may be judged to be subve rs ive of the security of Australia.

5.

1,1 I I

6 .

2.

6. You will take especial care to ensure that the work of the Organization is strictly limited to what is

necessary for the purposes of this task, and that you are

fully aware of the extent of its activities. It is

essential that the Organization should be kept absolutely free from any political bias or influence, 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 connexion whatever with any matters of a party political character and that they must be scrupulous

to avoid any action which could be so construed.

7. No enquiry is to be carried out on behalf of any

Government Department unless you are satisfied that an

important public interest bearing on the safety of the

Commonwealth as defined in paragraph 5 is at stake.

8. You and your staff will maintain the well-established convention whereby Ministers do not concern themselves

with the detailed information which may be obtained by the

Organization in particular cases, but are furnished with

such information only as may be necessary for the determination

of the issue.

9. Within the appropriation provided by Parliament, you are authorized in your discretion to appoint and dismiss

staff, determine the establishment of the Organization, and arrange such methods and conditi-:ms of working for

your staff as are necessary to ensure efficiency and secrecy.

The terms and conditions of eElployment of your staff will be

deterllined by agreement between yourself, the Solicitor­

General and Secretary Atto r ney-General's Department, and

the Chairman of the Public Service Board, and in default

of such agreement by direction of the Prime Minister.

3.

10. You will make with the Secretary, Department of the

Treasury, and with the Auditor-General such financial

arrangements as are necessary to preserve the confidential

character or the Organization and its operations.

11. You will establish a comprehensive set of security

records. In order to do this you will arrange that all )

Government Departments and agencies submit to you for

inclusion in your records all information bearing on

security which may be in or come into their possession.

You will also arrange to have such access to the records

or Government Departments and agencies as you may deem

necessary for the purposes of your work.

12. For the purposes of the Organization you will establish

the maximum co-operation with other agencies, whether of

the Commonwealth or of the States, operating in the field

of security (and, where appropriate, in the field of law­

enforcement) in Australia, and will maintain effective

contact with appropriate security agencies in other

countries.

DATED the day of , 1950.

(RoG. Menzies) PRIME MINISTER.

8.

APPENDIX 4-C

DIFFERENCES BETWEEN ASTO CHARTERS OF 1949 AND 1950

Following are the main ooints of variation between

the 1950 Charter and that issued to Mr Justice Reed.

2. The 1949 document was headed "Prime Minister's

memorandum to the Director General of Security, being a

directive for the establishment and maintainance [sic] of a Security Service". The 1950 document was headed "Charter

of the Australian Security Intelligence Organization" and

sub-headed "A directive from the Prime Minister to the

Director-General of Security".

3. In the 1949 Charter the Director-General's

organization was referred to as the "Security Service". [4-C-1]

In para 1 of the 1950 Charter it was referred to as "the

Australian Security Intelligence Organization (hereinafter

referred to as "the Organization")" a11d thereafter as

"the Organization''. [4-C-2]

4.

4-C-l 4-C-2 4-C-3

The 1949 Charter said:

"You aPe appointed Director General of Security , and it is y our duty to e stab Zi sh and maintain

a Security Service". [4-C-3]

Paras 1, 2, 5, 6 a nd 8.

Paras 2, 5, 6, 8 , 9, 10 and 12.

Para l.Emphasis added.

The 1950 Charter said:

5.

"By virtue of your appointment as Director­ General of Security, it is your duty to direct and maintain the Security Service ••. " [4-C-4]

The 1949 Charter gave the Director-General "direct

access to the Prime Minister at all times". [4-C-5]

The 1950 Charter gave the Director-General 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-C-6]

6. The 1950 Charter gave the Director-General

responsibility to keep each Minister informed of matters affecting security in his departments, as the 1949 Charter did, but in addition the Director-General was instructed "to

confer as necessary with the Public Service Board with

regard to matters affecting security in the Public Service

of the Commonwealth': [4-C-7]

7. The 1949 Charter said ASIO was "part of the Defence

Forces of the Commonwealth". [4-C-8] The 1950 Charter used

the expression "defence system". [4-C-9]

4-C-4 4-C-5 4-C-6 4-C-7 4-C-8 4-C-9

Para l. Emphasis Para 3.

Para 3.

1949 Charter, para 4 and 1950 Charter, oara 4. Para 5.

Para 5.

9.

•"Il l r

10.

8. The 1949 Charter used the expressions "defence

of the Commonwealth" and "security of the Commonwealth"

to define the boundaries of ASro•s jurisdiction. I4-C-10]

The 1950 Charter used the expressions "defence of the

Commonwealth and its Territories", "security of Australia",

"safety of Australia" and "safety of the Commonwealth".

[4-C-11]

9. The 1949 Charter said:

"You are authorised in your discretion 'to engage and dismiss staff and to arrange such methods and conditions of working for your staff as are necessary to ensure efficiency

and [4-C-12]

That para was considerably expanded in the 1950 Charter,

to read:

"Within the appropriation provided by Parliament, you are authorized in your discretion to appoint and dismiss staff, determine the establishment of the Organization, and arrange such methods and conditions of working for your staff as are necessary to ensure efficiency and secrecy. The terms and conditions of employment of your staff will be determined by agreement between yourself, the Solicitor-General and Secretary Attorney-General's Department, and

the Chairman of the Public Service Board, and in default of such. agreement by direction of the Prime Minister. 11 [4-C-13]

10. The 1949 Charter had no counterpart to para 10

of the 1950 Charter:

4-C-10 4-C-11 4-C-12 4-C-13

Paras 5, 6 and 7.

Paras 5, 6 and 7.

Para 9. Emphasis added. Para 9. Emphasis added.

11.

"You will make with the Secretary, Department of the Treasury, and with the Auditor-General such financial arrangements as are necessary to preserve the confidential character of the Organization and its operations':

The 1949 Charter had no counterpart to para 12

of the 1950 Charter:

"For the purposes of the Organization you will establish the maximum co-operation with other agencies, whether of the Commonwealth or of the States, operating

in the field of security (and, where appropriate, in the field of law-enforcement) in Australia, and will maintain effective contact with appropriate security agencies

in other

It was inserted to deal with the liaison that ASIO was expected to develop with internal as well as external

security and intelligence agencies. 14-C-14]

4-C-14 Doc Al3, pp 29 and 30.

11.

12.

Short title

Short title amended; No. 32,1918,s.2.

Definitions.

Amended by No. 216,1973,s.3; and No.2,1976, ss.3 and 6.

4-D-1

AUSTRALIAN SECURITY INTELLIGENCE ORGANIZATION ACT 1956 - 1976.

APPENDIX 4-D

An Act relating to the Australian Security

Intelligence Organization.

1. This Act may be cited as the

Austra ?ian Security Intelligence Organization Act

1956 - 1976 [4-D-1]

2. In this Act, unless the contrary intention

appears -"employee" or "employee of the means a person

employed as a temporary or casual employee of the Organization under section 7, and includes a person to whom sub-section (2) of section 10 applies;

"Judge" means a Judge of a court created by the Parliament;

The Austra Zian Security Inte lligene e Organization Act 1956-1976 comprises the Austra Zian Security InteZZigence Organization Act 1956 as amended by the other specified in the following table:

Number Date of Date of

Act and year Assent commencement

Austra No. 113, 15 Nov 13 Dec 1956

Security 1956 1956

In t e Z Zig e nc e Orga niza ti on Act 1956 Statute Law No. 216, 19 Dec 31 Dec 1973

Revision Act 1973 1973 1973

ASIO Act 1976 No. 2, 4 Mar 4 Mar 1976

1976 1976

Extension of . Act to

Territories. .Amended by No. 216,1973,s.3.

Continuance of Australian Security Intelligence Organization,

amended by No.2,1976, s.6.

Functions of the Organization.

3 •

"officer" or "officer of the Organization" means a person employed as an officer of the Organization under section 7, and includes a person to whom

sub-section (1) of section 10 applies; "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;

"the Director-General" means the Director-General of Security holding office under this Act; "the Organization" means the Australian Security Intelligence

Organization.

This Act extends to all the

Territories •

4. (1) The Australian Security Intelligence

Organization, being the Organization established

in pursuance of a directive given by the Prime Minister on 16 1949, is, subject to this

Act, continued in existence.

(2) The Organization shall be under the

control of the Director-General.

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-General, to communicate any such intelligence to

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

13.

14.

Director­ General of Security.

Amended by No.216,1973, s.3.

Sub-section (3) omitted by No.216, 1973,s.3. Appointment

of a Judge as

Director­ General not to affect tenure, &c.

Inserted by No.2,1976, s.4.

(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.

6. (1) There shall be a Director-General of

Security, who shall be appointed by the Governor-General.

(2) The Director-General shall hold office

on such terms and conditions as the Governor-General

determines.

* * * * * * *

6A. The appointment of a Judge as Director-

General, or service of a Judge as Director-General,

does not affect the tenure of his office as a Judge

or his rank, title, status, precedence, salary,

annual or other allowances or other rights or privileges

as the holder of his office as a Judge and, for all

purposes, his service as Director-General shall be taken

Remuneration and allowances of Director­ General.

15.

to be service as the holder of his office as a Judge.

6B. (1) If the Director-General is not a Judge,

he shall be paid such remuneration as·is determined

by the Remuneration Tribunal and such

Inserted by No. as are prescribed. 2, 1976, s.4.

(2) Sub-section (1) has effect subject to the

Remuneration Tribuna Zs Aa t 197 3-197 5.

(3) If the Director-General is a Judge, other

than Chief Judge of the Australian Industrial Court,

and the rate per annum of his salary as a Judge is

less than the rate per annum of the salary applicable to the Chief Judge of the Australian Industrial Court, he shall be paid additional salary at a rate

equal to the difference between the rates of those

salaries, and, if the rate per annum of his annual allowance as a Judge is less than the rate per annum

of the annual allowance applicable to the Chief

Judge of the Australian Industrial Court, he shall be

paid additional annual allowance at a rate equal to

the difference between the rates of those annual

allowances.

(4) Where a Judge, not being the Chief Judge

of the Australian Industrial Court, retires as a

Judge or dies and, immediately before his retirement

or death, he held office as Director-General, the

Judge's Pensions Aat 1968-1974 applies to or in

relation to him as if he had been Chief Judge of the

16.

Employment of officers and employees. Amended by

No.2,1976, s.6.

Designation of offices, &c.

Amended by No.2, 1976r s.6.

Australian Industrial Court immediately before his

retirement or death.

7. (1) Subject to this Act, the Director-General

may, on behalf of the Commonwealth -(a) employ, unqer agreements in writing, such officers of the Organization as he thinks necessary for the

purposes of this Act; and (b) employ such temporary employees and casual employees of the Organization

as he thinks necessary for those purposes.

(2) The Director-General shall not employ a

person as an officer except -(a) in an office the designation and salary or salary range of which have been determined, or are deemed to have been

determined, under sub-section (1) of the next succeeding section; and (b) upon the terms and conditions of employment that are in force under section 9 in

relation to the employment of persons as officers at the date on which that person is so employed.

8. (1) The designations of offices in the

Organization, other than the office of Director-General,

and the salaries or salary ranges applicable to those

offices, shall be such as are determined from time to time by the Chairman of the Public Service Board,

the Secretary to the Attorney-General's Department

and the Director-General.

(2) The designations of offices in the

Organization immediately before the date of commencement

Conditions of 1

employment.

Amended by No.2,1976, s.6.

Special provisions relating to existing employees.

24775/77-2

17.

of this Act, and the salaries or salary ranges

applicable to those offices immediately before that

date, shall be deemed to have been determined under the last preceding sub-section.

9. Officers and employees of the Organization

are not subject to the Public Service Act 1922-1955

but, subject to this Act, the terms and conditions

upon which the Director-General shall employ

persons as officers, and the terms and conditions

of employment applicable to temporary and casual

employees, shall be such as are determined from time

to time by the Chairman of the Public Service Board,

the Secretary to the Attorney-General's Department

and the Director-General.

10. (1) A person who, immediately before the date

of commencement of this Act, was employed in the

Organization under an agreement in writing with the

Commonwealth providing for his services to continue

for a period exceeding one year shall, unless and

until he agrees to accept other terms and conditions, continue to be employed upon the terms and conditions

specified in that agreement. (2) A person, not being a person to whom the

last preceding sub-section applies, who was, immediately before the date of commencement of this

18.

Officers of Public Service to retain rights. Amended by

No.216,1973, s.3; and No.2,1976, s.6.

Employment of Director­ General and officers not

to be

terminable at will.

Act, employed in the Organization shall, until

other terms and conditions applicable to him are

determined under the last preceding section,

continue to be employed upon the terms and

conditions applicable to him immediately before

that date.

11. Where a person appointed as Director-General

under section 6 or a person employed as an officer

under section 7 was, before his

appointment or employment, an officer of the

Australian Public Service, or a person referred to

in sub-section (1) of the last preceding section

was, immediately before the commencement of this

Act, an officer of the Australian Public Service -

12.

(a) he retains his existing and accruing rights. and (b) his sefvice under this Act, or after the commencement of this Act, as the

case requires, shall, for the purpose of determining those rights, be taken into account as if it were service in the Australian Public Service.

The appointment of the Director-General

or the employment of an officer of the Organization

shall not .be terminated except in accordance with a term or condition of his appointment or

employment.

Application of Super­ annuation

Act.

Amended by No.2,1976, s.6.

13. (l) A person employed in the Organization

immediately before the date of commencement of

this Act (including the person holding office as Director-General of Security immediately before

that date) who was, immediately before that date, contributing to the Superannuation Fund or the

Provident Account established by the

Supe r annuati on Act 1922-1956 shall be deemed to

be an employee within the meaning of section 4 of

that Act and, at all times during the period in respect of which he has, while employed in the Organization, been contributing to that Fund or to

that Account -(a) to have been such an employee; and

(b) to have lawfully been contributing to that Fund or to that Account.

(2) Where -

(a) a person, being an employee of the

Organization, is employed on terms tha t require him to give the whole of his time to the duties of his

employment; (b) that person has been employed in the Organization on such terms for a continuous period (being. a period

after, or partly before and partly after, the commencement of this Act) of not less than three years;

and

(c) the Director-General certifies that that person's employment is likely to be continued for a period of

at least seven years, that person shall be deemed to be a n employee

19.

within the meaning of section 4 of the Superannuation

Ac t 1922-1956 from and inc luding the date on which

2 0.

Section 14 repealed by No.216,1973, s.3. Officers,&c.,

to be

Commonwealth officers for purposes of Crimes Act.

Regulations. Inserted by No.2,1976, s.5.

the Director-General so certifies.

(3) For the purposes of sub-section (1)

of section 12 of the Superannuation Act 1922-1956,

the prescribed date, in relation to a person to

whom the last preceding sub-section applies, shall

be deemed to be the date referred to in the last

preceding sub-section or, if that date is not a

pay-day, the next succeeding pay-day after that

date. [4-D-2]

* * * * * *

15. The Director-General and officers and

employees of the organization shall be deemed to

be Commonwealth officers for the purposes of the

Crimes Act 1914-1955.

16. The Governor-General may make regulations,

not inconsistent with this Act, for the purposes

of section 6B of this Act.

4-D-2 The Superannuation Act, 1922, as amended, was superseded by the Superannuation Act, 1976.

Heading substituted by No. 84, 1960,

s .52 .

Interpretation. Substituted by No. 84 , 1960,

s 52.

APPENDIX 4-E

CRIMES ACT 1914-1975

PART VII-ESPIONAGE AND OFFICIAL SECRETS

AND PROHIBITED PLACES

21.

77. (.l) In this Part, unless the contrary intention

appears - "article" includes any thingr substance

or material; "cipher" includes-(a) a code or cryptogram;

(b) a system, method, device or machine

whereby a cipher, code or cryptogram

may be created; and

(c) a code word, password or identification

signal;

"inforrnation 11 means information of any kind whatsoever,

whether true or false and whether in a material form

or not, and includes-(a) an opinion; and

(b) a report of a conversation;

"model" includes design, pattern and specimen;

"plan" includes a written record of a survey of

a bearing or measurement taken for the purpose of

fixing the position of a place; "sketch" includes a representation of a place or

thing; "the Commonwealth" includes the Territories.

(2) In this Part, unless the contrary intention

appears- . (a) expressions referring to obtaining, collecting,

recording, using, having in possession,

22.

communicating, receiving or retaining

include obtaining, collecting, recording,

using, having in possession, communicating,

receiving or retaining in whole or in part,

and whether the thing or information itself,

or only the substance, effect or description

of the thing or information, is obtained,

collected, recorded, used, possessed,

communicated, received or retained;

(b) expressions referring to obtaining or

retaining any sketch, plan, photograph,

model, cipher, note, document, article or

information include copying or causing to

be copied the whole or a part of the sketch,

plan, photograph, model, cipher, note,

document, article or information; and

(c) expressions referring to the communication

of any sketch, plan, photograph, model,

cipher, note, document, article or information

include the transfer or transmission, or

the publishing, of the sketch, plan, photograph,

model, cipher, note, document, article or

infoTimation.

(3) A reference in this Part to a sketch, plan,

photograph, model, cipher, note, document or

article or to information shall be read as including a reference to a copy of, a part of

or a copy of a part of a sketch, plan, photograph,

model, cipher, note, document or article or

Espionage and similar activities. Substituted by No. 84, 1960,

s .52.

23.

information.

(4) For the purposes of this Part, a place that

is occupied by, or a thing that is under the

control of, the Commonwealth shall be deemed to belong to the Commonwealth.

(5) This Part applies to and in relation to a

plan, photograph, model, cipher, note,

document or article by whomsoever it is made and

whatsoever information it contains.

... ..

78. (1) If a person for a purpose intended to

be prejudicial to the safety or defence of the

Commonwealth or a part of the Queen's dominions-(a) makes a sketch, plan, photograph, model,

cipher, note, document or article that is

likely to be, might be or is intended to be

directly or indirectly useful to an enemy or a foreign power;

(b) obtains, collects, records, uses, has in his

possession or communicates to another person

a sketch, plan, photograph, model, cipher,

note, document, article or information that

is likely to be, might be or is intended to

be directly or indirectly useful to an

enemy or a foreign power; or

(c) approaches, is in the neighbourhood of, is

in, enters, inspects or passes over a

prohibited place, .·

24.

he shall be guilty of an indictable offence.

Penalty: Imprisonment for seven years.

(2) On a prosecution under this section-(a) it is not necessary to show that the accused

person was guilty of a particular act tending

to show a purpose intended to be prejudicial

to the safety or defence of the Commonwealth

or a part of the Queen's dominions and,

notwithstanding that such an act is not proved

against him, he may be convicted if, from the

circumstances of the case, from his conduct

or from his known character as proved, it

appears that his purpose was a purpose

intended to be prejudicial to the safety or

defence of the Commonwealth or a part of the

Queen's dominions; and

(b) if any sketch, plan, photograph, model,

cipher, note, document, article or information

relating to or used in a prohibited place, or anything in such a place, was made, obtained,

collected, recorded, used, possessed or

communicated by any person other than a

person acting under lawful authority, it shall,

unless the contrary is proved, be deemed to

have been made, obtained, collected, recorded,

used, possessed or communicated for a purpose

intended to be prejudicial to the safety or

defence of the Commonwealth or a part of the

Queen's dominions.

(3) On a prosecution under this section, evidence

is not admissable by virtue of paragraph (a) of the last preceding sub-section if the Magistrate

exercising jurisdiction with respect to the

examination and commitment for trial of the

defendant, or the Judge presiding at the trial,

as the case may be, is of the opinion that

that if admitted -

(a) would not tend to show that the purpose

of the defendant was a purpose intended

to be prejudicial to the safety or defence

of the Commonwealth or a part of the

Queen's dominions; or

25.

(b) would, having regard to all the circumstances

of the case and notwithstanding the next

succeeding sub-section, prejudice the

fair trial of the defendant.

(4) If evidence referred to in the last preceding

sub-section is admitted at the trial, the Judge

shall direct the jury that the evidence may be taken into account by the jury only on the question

whether the purpose of the defendant was a

purpose intended to be prejudicial to the

safety or defence of the Commonwealth or a part

of the Queen's dominions and must be disregarded

by the jury in relation to any other question.

26.

Official secrets. Substituted by No. 84, 1960,

s.52.

79. (1) For the purpossof this section, a sketch,

plan, photograph, model, cipher, note, document,

or article is a prescibed sketch, plan, photograph,

model, cipher, note, document or article in

relation to a person,and information is prescribed

information in relation to a person, if the

person has it in his possession or c'ontrol and -(a) it has been made or obtained in contravention

of this Part;

(b) it has been entrusted to the person by a

Commonwealth officer or a person holding

office under the Queen or he has made or

obtained it owing to his position as a person -(i) who is or has been a Commonwealth officer;

(ii) who holds or has held office under the

Queen;

(iii) who holds or has held a contract made on behalf of the Queen or the Commonwealth;

(iv) who is or has employed by or

under a person to whom a preceding sub-paragraph of this paragraph applies; or

(v) acting with the permission of a Minister,

and, by reason of its nature or the circumstances

under which it was entrusted to him or it was

made or obtained by him or for any other

reason, it is his duty to treat it as secret; or

(c) it relates to a prohibited place or anything

in a prohibited place and -(i) he knows; or

Amended b y No. 3 3 , 19 7 3,

s. 7.

27.

(ii) by reason of its nature or the

circumstances under which it came

into his possession or control or for any other reason, he ought to know,

that it should not be communicated to a person not authorized to receive· it.

(2) If a person for a purpose intended to be

prejudicial to the safety in defence of the Commonwealth or a part of the Queen's dominions

(a) communicates a prescribed sketch, plan,

photograph, model, cipher, note, document,

or article, or prescribed information, to

a person, other than -

(i) a person to whom he is authorized

to communicate it; or

(ii) a person to whom it is, in the interest

of the Commonwealth or a part of the

Queen's dominions, his duty to

communicate it,

or permits a person, other than a person referred to in sub-paragraph (i) or (ii), to have

access to it;

(b) retains a prescribed sketch, plan, photograph,

model, cipher, note, document. or article in his

possession or control when he has no right

to retain it or when it is contrary to his

duty to retain it; or

...

. "

28.

Amended by No. 33, 1973,

s. 7 0

(c) fails to comply with a direction given by

lawful authority with respect to the retention

or disposal of a prescribed sketch, plan,

photograph, model, cipher, note, document or

article, he shall be guilty of an indictable offence.

Penalty: Imprisonment for seven years.

(3) If a person communicates a prescribed sketch,

plan, photograph, model, cipher, note, document,

or article, or prescribed information to a person,

other than -(a) a person to whom he is authorized to communicate

it; or

(b) a person to whom it is, in the interest of

the Commonwealth or a part of the Queen's

dominions, his duty to communicate it,

or permits a person, other than a person referred

to in paragraph (a) or (b), to have access to it,

he shall be guilty of an offence.

Penalty: Imprisonment for two years.

(4) If a person -

(a) retains a prescribed sketch, plan, photograph,

model, cipher, note, document or article

in his possession or control when he has no

right to retain it or when it is contrary to

his duty to retain it;

Amended by No. 33, 1973,

s.7.

Amended by No. 33, 1973,

s.7.

2 9.

(b) fails to comply with a direction given by

lawful authority with respect to the retention

or disposal or a prescribed sketch, plan,

photograph, model, cipher, note, document

of article; or

(c) fails to take reasonable care of a prescribed

sketch, plan, photograph, model, cipher, note,

document or article, or prescibed information,

or to ensure that it is not communicated to a person not authorized to receive it or so

conducts himself as to endanger its safety,

he shall be guilty of an offence.

Penalty: Imprisonment for six months.

(5) If a person receives any sketch, plan, photograph,

model, cipher, note, document, article or

information, knowing or having reasonable

ground to believe, at the time when he receives

it, that it is communicated to him in contravention of section 78 or sub-section (2) of this

section, he shall be guilty of an indictable offence unless he proves that the communication

was contrary to his desire.

Penalty: Imprisonment for seven years.

(6) If a person receives any sketch, plan, photograph,

model, cipher, note, document, article or information,

knowing, or having reasonable ground to believe,

at the time when he receives it, that it is

communicated to him in contravention of sub-section (3),

30.

Amended by No. 33, 1973,

s. 7.

he shall be guilty of an offence uniess he proves

that the communication was contrary to his desire. Penalty: Imprisonment for two years.

(7) On a prosecution under sub-section (2) it

is not necessary to show that the accused person was guilty of a particular act tending to show

a purpose intended to be prejudicial to the safety

or defence of the Commonwealth or a part of the

Queen's dominions and, notwithstanding that such

an act is not proved against him, he may be

convicted if, from the circumstances of the case,

from his conduct or from his known character as

proved, it appears that his purpose was a purpose

intended to be prejudicial to the safety or

defence of the Commonwealth or a part of the A

Queen's dominions.

(8) On a prosecution under this section, evidence

is not admissible by virtue of the last preceding sub-section Lf the Magistrate exercising

jurisdiction with respect to the examination and commitment for trial of the defendant, or the

Judge presiding at the trial, as the case may be,

is of the opinion that that evidence, if admitted-(a) would not tend to show that the purpose of

the defendant was a purpose intended to b e

prejudicial to the safety or defence of the Commonwealth or a part of the Queen's dominions;

or

..mended by ro. 33, 1973,

; • 7.

31.

(b) would, having regard to all the circumstances

of the case and notwithstanding the next

succeeding sub-section, prejudice the fair

trial of the defendant.

(9) If evidence referred to in the last preceding

sub-section is admitted at the trial, the Judge

shall direct the jury that the evidence may be taken into account by the jury only on the question

whether the purpose of the defendant was a purpose

intended to be prejudicial to the safety or

defence of the Commonwealth or a part of the

Queen's dominions and must be disregarded by the

jury in relation to any other question.

(10) A person charged with an offence against

sub-section (2) may be found guilty of an offence

against sub-section (3) or (4) and a person

charged with an offence against sub-section (5)

may b e found guilty of an offence against sub-section (6).

l?rohibi ted i?laces.

80. The following places shall be prohibited places: -

/\mended by No . 77, 1946,

(a) Any work of defence, arsenal, factory, dockyard ,

s .lo;

No. 8 4, 1960,

ss 53 and 63;

and No . 33, 1973,

s. 7.

aerodrome, camp, ship, aircraft, t elegraph or

signal station, or office, belonging to the

Queen or the Commonwe alth, and any o ther

place t o the Queen o r the

Commonwealth used for the purpose of building ,

32.

repairing, making, obtaining or storing any

ship, aircraft, arms, or materials or

instruments for use in time of war, or any

plans or documents relating thereto;

(aa) Any camp, barracks or place where prisoners

of war, internees or members of the Defence

Force are detained;

(b) Any place not belonging to the Queen or the

Commonwealth where any ship, aircraft, arms,

or materials or instruments of use in time

of war, or any plans of documents relating

thereto, are being made, repaired, obtained,

tested or stored under contract with, or with

any person on behalf of, the Queen or the

Commonwealth;

(c) Any place belonging to the Queen or the

Commonwealth which is for the time being

declared by the Governor-General to be a

prohibited place for the purposes of this

Part on the ground that information with

respect thereto, or damage thereto, would be

useful to an enemy or to a foreign power; and

(d) Any railway, road, way, or channel, or other

means of communication by land or water

(including any works of structures being

part thereof or connected therewith), or any place used for gas, water, electricity works

or other works for purposes of a public

character, or any place where any ship,

aircraft, arms, or materials or instruments of use in time of war, or any plans or documents

relating thereto, are being made, repaired, obtained, tested or stored otherwise than

on behalf of the Queen or the Commonwealth,

which is for the time being declared by the

Governor-General by proclamation to be a

prohibited place for the purposes of this Part, on the ground that information with respect thereto, or the destruction or

obstruction thereof, or interference therewith, would be useful to an enemy or to a foreign

power.

33.

34.

PROBLEMS RAISED IN PART Vll

OF CRIMES ACT 1914-1975

APPENDIX 4-F

The provisions of Part Vll o f t he Cr imes Ac t

1914-1975, and particularly the amendments enacted in

1960, have been much criticized. Many of the criticisms

were made in the debates on the 1960 amendments. Regardless

of that criticism they give rise to a number of problems.

This appendix does not attempt to discuss that criticism

or those problems, in detail. In particular, it is not

intended to support any views and does not contain any

recommendations about them. It is not exhaustive, and

merely attempts to set out the nature of some of the

criticisms and problems.

(a) General criticisms

2. The provisions, in their amended form, were

the product of the cold war and go too far.

3. Whether or not such a conviction would in fact

be procured, they are wide enough to allow the conviction

of a person in respect of an act which had no relation at

all to the protection of the security of the Commonwealth. For example they are said to be wide enough to allow the

conviction of a person who regularly passes Albe rt Park

Barracks St Kilda. [4-F-1]

4-F-1 J. David Fine, Australia's Es p ionage and Official Secrets Law: A Muddled Text in need of Reform, MS copy, p 11. I a m

grateful to Mr Fine, of the University of Melbourne Law School for his letter of 14 April 1976 providing this Commission with a copy of his unpublished article.

4. The absence of prosecutions does not

just ify the retention in the statute book of

prov isions which are too wide and could be used

a r bitrarily or unjustly . As the Franks Committee Report

said about similar British p rov isions, "A catch-all

prov ision is saved from absurdity in operation only by

the s paring exerc ise of the Attorney-General's

discre tion to prosecute". [ 4-F-2]

5. The provisions relating to official secrets

were drafted in an atmosphere of "closed" government

and impose restraints on that freedom of information to

which the public is entitled in e x cess of those restraints

necessary for security or to which the public is in fact

subj e cted in a time of "open" government.

6. The provisions have a vagueness and uncertainty

about them which is inconsistent with general concepts

of criminal justice.

7. The Australian provisions are in some respec ts

inade quate and out of date.

4-F-2 Departmental Committee on Se ction 2 o f the Offi c i a l Secrets Act 1911, Volume 1, Repo r t of the Committee CMND 5104, London, Sep t ember 1972 (the "Fra nks Committee Report"), para 88. In Austra lia while the Attorney-General's consent is r equire d to institute a

prosecution for e spionage or bre ach o f the offi c i al secrets provisions, it is p r o babl y n o t r e quired for a

prosecution for c onsp iracy t o commi t whether under fed e ral or state l a w. {Flne , op c1t ,

pp 15-16) •

35.

36.

(b) Particular criticisms and problems

8. Some respects in which the provisions are

claimed to be vague and uncertain are as follows.

9.

10.

Sections 78 (2) {a) and s 79 (7) seem

"designed to ease the way of the prosecutor who has to prove a particular intention - e.g. a purpose prejudicial to the safety and defence of the

Commonwealth ... as phrased, these provisions could be interpreted so as to save the prosecutor from having to prove any guilty act at all - mere bad

character would be enough. That is almost certainly not the purpose of the provision and not its most probable interpretation." [4-F-3]

The reference to "character" derives from the

provisions of s 7 8 (2) (a) and s 79 (7) which make it

unnecessary to prove a particular act tending to show a

purpose prejudicial to the safety or defence of the

Commonwealth. Such a purpose can be inferred from the

defendant's "known character as proved". It is not clear

what this "character" is, how it is proved or how the purpose

would appear from the proved character, particularly if it

was intended to authorize evidence that a person was a

political radical, eg, a communist. [4-F-4]

4-F-3

4-F-4

Geoffrey Sawyer, "The Crimes Bill", Sydney, 24 September 1960, p 5. See the somewhat critical view about this type of evidence expressed in a joint judgement of the High Court in Cooper v The Queen (1961)

105 CLR 177 at 184.

It is also suggested that the provision might result in conviction by bias, and that this fear is not adequately

met by the provisions of s.78 (3 ) and 79 (7).

11. It is not clear whether the purpose to prejudice

the safety or defence of the Commonwealth which is an

element of the offence of espionage a nd of the offence of

breach of official secrets constituted by s 79 (2) requires

an intention to carry out the relevant acts for such a

purpose. An alternative interpretation is that the

prejudicial purpose is established if the Crown proves that 11 the accused appreciated the nature of his physical act of

c opying a document, repeating information, or whatever".

[4-F-5] Whichever interpretation is correct the further

question arises whether the Crown has to prove that the

defendant in fact prejudiced the safety or defence of the

Commonwealth. In other words whether t he particular

intention i s a necessary e lement or not, can espionage

or a breach of official secrets under s 79 (2) be committed

if the accused does not in fact prejudice the safety or defence of the Commonwealth, or if in fact his action is or

can be of no use to an enemy or a foreign power.

4-F-5 Fine, op cit, p 7. Mr Fine cites the case of

R v Ontario County Court. cf Fine,

op cit, pp 9-10.

37.

-­ ·.

38.

12. It is not clear how the Crown can prove that

the relevant information is likely to be or might be

useful to an enemy or a foreign power or that it is

prejudicial to the safety or defence of the Commonwealth.

Nor is it clear whether these issues are justiciable, or

whether the court would accept the view of the relevant

Ministers of the Crown. [4-F-6]

13. It is unclear whether the offences created by

s 79 (3) and (4) are absolute, or whether some element of

guilty knowledge is required. [ 4-F-7]

14. It is not clear how the Crown can

establish the defendant's duty to keep information secret, [4-F-8] and that he was not authorized or did not have a

right or a duty to deal with it in any particular way.

[4-F-9] How is the defendant to know what his duty,

authority and rights are? Does "secret" connote only material falling on the national security side of the

national security/confidentiality dichotomy drawn at

4-F-6

4-F-7 4-F-8 4-F-9

Ibid, p 4 1 citing Chandler v Director of Public Prosecutions(l964) A.C. 763, for the latter view. See Franks Committee Report, para 20. s 79 (1) (b) and Fine, op cit, p 13. s 79 (1) (2) (3) (4).

para 42 7 of the fourth report? [ 4-F-10] Does it connote

material with a classification not lower than secret or

top secret? In respect of material classified secret or

top secret, could a defendant raise an issue as to

whether the material was duly classified or over classified,

and whether, despite its apparent classification, it

was his duty to treat it as secret? Section 79 (1) (b)

raises very directly the need to define clearly the rules

as to the classification of security matters, and to relate

them to the law about official secrets.

4-F-10 The context seems to suggest so. Cf s 70 which says:

"(1) A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he is authorized to publish or communicate it, any fact or document which comes to his knowledge,

or into his possession, by virtue of his office, and which it is his duty not to disclose, shall be guilty

of an offence. (2) A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him), any

fact or document whi ch came to his knowledge, or into his possession, by virtue of his office, and which, at the time when he ceased to be a Commonwealth officer, it was his duty not to disclose, shall be guilty of an offence.

Penalty: Imprisonment for two years."

39.

4 0.

15. It is not clear whether, ins 80(a), the words

"used for the purpose of building, repairing, making, obtaining or storing any ship, aircraft, arms, or materials or instruments for use

in time of war, or any plans or

documents relating theretd',

qualify the words

work of defence, arsenal, factory,

dockyard, aerodrome, camp, ship, aircraft, telegraph or signal station, or office, belonging to the Queen or the Commonwealth"

as well as the words

"any other place belonging to the Queen or the Commonwealth".

Is, for example, every office owned by the Commonwealth a prohibited place, or only those offices used for any

of the specified purposes.

16. It is not clear whether foreign groups without an

international legal personality, such as the PLO or the IRA, are included within the phrase "an enemy or a foreign power"

in ss 78(1) and 8Q(c) and (d).

17. Some respects in which the provisions are

claimed to go too far [4-F-11] are as follows.

4-F-11 Some of the criticisms are based on the

allegedly ambiguous construction of provisions as set out above.

18. The use of evidence of character in s 78 (2)

and 79 ( 7) •

The reversal in s 78 (2) (b) of the onus of

proof in cases of espionage when the charge concerns

certain acts done without lawful authority relat-ing to or used in a prohibited place or t o anythi ng in

such a place.

20. The definition of prohibited place is said to

be too wide. On one construction, for example, it

includes any Commonwealth office or aerodrome.

21. Section 78(2) (b) does not require the

information to have been abstracted from a prohibited

place, merely that it relate to or be used in such a

place. [4-F-12]

22. The provisions lump together espionage and

crimes relating to official information not requiring

an intent to prejudice national security.

4-F-12 4-F-13 Fine, op cit, p 11.

See Franks Committee Report, para 102.

41.

...

42.

23. An offence requiring a purpose prejudicial to

the safety or defence of the Commonwealth or a part of

the Queen's dominions and the doing of an act intended

to be useful to an enemy or a foreign power could be

committed even though the safety or defence of the

Commonwealth or part of the Queen's domin ion was or could not

be prejudiced by the Act, and the act was or could

not be useful to the enemy or foreign power.

24. Some respects in which the provisions are said

to be inadequate and outdated are below.

2 5. "The nature of the world political system has

changed greatly since the Edwardian era,

4-F-14

when the present Australian espionage law

was drafted. It may no longer be appropriate

for Australian law to punish acts prejudicial

to the safety of, "any part of the Queen's

dominions". It seems strange to punish

someone for obtaining information in

Australia to help overthrow the government of

Barbados (which is still one of the Queen's

dominions), while one similarly acting to

overthrow the government of Jamaica or Pue rto

Rico will go unpunished." [4-F-14]

Fine, op cit, p 21.

26. They fail to reflect Australia's reliance upon

other States for the maintenance of its security. The

gathering in Australia of information, to the prejudice

of countries allied with Australia, might so it is

claimed, be included as a crime. [4-F-lS]

27. In respect of some of the offences under s 78

and s 79, it might be necessary to prove that the relevant

matter is likely to be or might be directly or indirectly

useful to an enemy or a foreign power and/or prejudicial to

the safety or defence of the Commonwealth. There is no

provision to facilitate the proof of this requirement,

or to reverse the onus. In some cases, the matter might

speak for itself. In other c ases, evidence may be

r eadily available, although it might have to be given

in camera pursuant to s 85B. In some cases, however,

proof may be difficult or embarrassing, and in some cases

impossible to procure. El sewhere, as in the UK

Official Secrets Act , 1920, s 2, and the NZ Official Secrets

Act l95l, s4, various acts of communication or

association with a "foreign agent" are constituted prima

facie evidence not only of the prejudicial purpose of

the defendant but also that he has obtaine d o r attempted

to obtain information within the described c a tegor i e s.

The definition of "foreign agents" in the se p r ovi s i on s

4-F-15 Ibid.

43.

44.

is so wide that it would catch any communication with a foreign diplomat. [4-F-16]

4-F-16 s 4 of the NZ Offi c ial S ecre ts Act 1951 says in

part : "(1) In any proceedings against a person for

an offence against section three of this Act, the fact that he has been in communication with, or attempted to communicate with, a foreign agent , whether within or outside New Zealand, shall be evidence that he has, for a purpose

prejudicial to the safety or interests of the State, obtained or attempted to obtain information which is calculated to or might be or is intended to be directly or indirectly useful to an enemy.

(2) For the purpose of this section, but

without prejudice to the generality of the foregoing provision, -(a) A person shall, unless he proves the

contrary, be deemed to have been in communication with a foreign agent if -

(i) He has, either within or outside

New Zealand, visited the address of a foreign agent or consorted or associated with a foreign agent; or

( ii)

(b) The expression 'foreign agent' includes any person who is or has been or is

reasonably suspected of being or having been employed by a foreign Power, either directly or indirectly, for the purpose of committing an act, either within or outside New Zealand, prejudicial to the

safety or interests of the State, or who has or is reasonably suspected of having, either within or outside New Zealand committed or attempted to commit such an act in the interests of a foreign Power."

28. These provisions_ have been criticized as

being too wide. The extent of their width appeared in

R v [4-F-17] where the defendant was charged with

obtaining information which was calculated to be, or

might be, or was intended to be, directly or indirectly

useful to an enemy, under the New Zealand section

equivalent to s 78 (1) (b) of the Crimes Act [4-F-18]

and the Crown placed some reliance on s 4.

29. To prove that the person with whom Dr Sutch

conununicated was a "foreign agent" the Crown called

evidence that he was a diplomat at the Russian Embassy

at Wellington. The trial judge told the jury:

"I direct you, as a matter of law, to take

the ordinary and natural meaning of the two words "foreign agent". I start with the latter. The Oxford Dicti onary defines 'agent', as "one who acts for another, a

representative, an emissary". 'Foreign', ·of course, is one of another country, or an outsider." [4-F-19]

On the one hand this is said to show that the provision

is too wide, while on the other hand the practical

difficulties of proving that a diplomat is in truth an officer of his country's intelligence services are said

to be too great.

4-F-17 4-F-18 4-F-19

( 1 9 7 5) 2 N Z LR 1 •

s 3 (1) (c) of NZ Official Secrets Act.

Summing up, Beattie J. Supreme Court of New zealand, 21 February 1975, Transcript, p 6.

45.

·.

4 6.

3 0. Section 4 of the NZ Official Secrets Act has

been held to relieve the Crown from proving another matter

that the Crown in Australia would not be relieved of.

Whereas in Australia, the Crown would be required to identify

the information that · is the subject of a charge of espionage

under s 78 (1) (b), under the equivalent New Zealand

provisions that is not a requirement.

31. In R v Sutch the Crown did not specify what

information useful to an enemy Dr Sutch was alleged to have

obtained. Dr Sutch was nevertheless committed for trial,

but brought a motion before Wild CJ in the New Zealand,

Supreme Court that no indictment be presented against him

and that he be discharged, on the ground that the evidence

at the committal proceedings was insufficient to establish a prima facie case. One submission made for Dr Sutch was that

it was incumbent on the prosecution to establish what information Dr Sutch was alleged to have obtained. Wild CJ

rejected the argument. He said:

"As related to the present charge of obtaining information what must first be established is communication with a foreign agent. If that fact is proved it becomes,

by virtue of s 4 (1), evidence that

information was obtained for the purpose and of the character described. It is

significant that, as already pointed out, s 4 (1) applies to one only of the five

acts prohibited by s 3 (1) (c) - the act

of obtaining or attempting to obtain information. The reason for that limitation may be that, unlike the act of obtaining information, the other acts so prohibited may be expected to be reflected in some overt

action of which evidence may be given. However that may be I can find no basis in the statute for

holding that the prosecution is obliged

32.

to establish what information is alleged to have been obtained. Whether evidence is available on that point will depend on the circumstances, and

is a matter for the prosecution: [4-F-20]

The motion was dismissed. Dr Sutch was

subsequently tried before a jury and found not guilty.

Although he was acquitted, the criticism which the

case induced included complaints that particulars of

the information alleged to have been given to the

foreign agent were not required to be included in the

indictment.

4-F-20 Op cit, at p 5.

47.

48.

APPENDIX 4-G

ESPIONAGE AND EXPULSION CASES

PubLicity has been given recently to cases of

espionage and expulsion cases resulting from involvement

in espionage. ASIO has provided details of some

selected cases that have received publicity in the last

few years.

List A contains details, from public sources, of ten selected espionage cases occuring in the last five

years. List B covers the last 10 years and gives

published details of ten selected cases where persons

were expelled on account of their involvement in

intelligence activities prejudiciai to the security of the

host country.

BfV

DPOB -

DST

FRG

GDR

GRU

KGB

MFS

MSW

PNG

RIS

St B

24775177-3

LIST OF ABBREVIATIONS

Bundesamt fur Verfassungsschutz (Federal Office for Defence of the Constitution (Federal Republic of Germany))

Date and Place of Birth

Direction Surveillance du Territoire (Directorate of Surveillance of the National Territory (France))

Federal Republic of Germany (West Germany)

German Democratic Republic (East Germany)

Glavnoye Razvedyvatel'noye Upravleniye Main (Military) Intelligence Directorate (of the Soviet Union))

Komitet Gosudarstvennoy Bezopasnosti (State Security Committee (of the Soviet Union))

Ministerium fur Staatssicherheit (Ministry for State Security (of the German Democratic Republic))

Ministerstwo Spraw (Ministry

of the Interior (Poland) - Intelligence Service)

Persona(e) non grata(e)

Russian Intelligence Service

Statni (State Security (Czech­

oslovak Socialist Republic))

49.

50.

UKSS United Kingdom Security Service

VfK Verwaltung fur Koordinierung

(Department for Co-ordination (within the German Democratic Republic Ministry of Defence))

A. A LIST OF PUBLISHED REFERENCES TO

TEN ESPIONAGE CASES WHICH HAVE

OCCURRED DURING THE LAST FIVE

YEARS

51.

52.

CASE 1

Country of occurrence

Date of disclosure

Principal protagonist

Case name

Country responsible for occurrence

Precis

Principal public source

United Kingdom

August 1971

David James BINGHAM

DPOB: 1940, United Kingdom

"Bingham Case"

USSR

Bingham, while an Acting Sub-Lieutenant in the Royal Navy, was in 1970 recruited by an Assistant Naval at

the Soviet Embassy, London, following an approach by Bingham's wife offering her husband's services for financial return

(the Binghams were in financial straits). During 1970 and 1971 Sub-Lt. Bingham passed classified documents to the RIS. In August

1971, he confessed to Naval authorities and in March 1972 was imprisoned for 21 years following conviction on 12 charges under the Official Secrets Act. His Maureen Grace Bingham

received a sentence of 30 months.

Rept of the (UK) Security May presented

to Parliament by the Prime Minister, July 1973 (London, July 1973).

CASE 2

Country of occurrence

Date of disclosure

Principal protagonist

Case name

Country responsible for occurrence

Precis

Principal public source

Sudan

October 1971

Leonard Michael HINCHL IFFE DPOB: 1932, United Kingdom

"Hinchliffe Case"

USSR

During 1970 HINCHLIFFE, while Head of Registry in the British Embassy, Khartoum (Sudan), was

threatened with blackmail by an RIS officer and

subsequently became the latter's agent, passing classified documents to him. Hinchliffe

confessed to British authorities in October 1971 and was imprisoned for 10 years in April 1972

following conviction on 4 charges under the Official Secrets Act.

Report of the (UK) Seo urity

Canmission, May Z9?3 1 presented to Parliament by the Prime Minister, July 1973 (London, July 1973).

53.

54.

CASE 3

Country of occurrence

Date of disclosure

Principal protagonists

Country responsible for occurrence

Precis

Principal public source

Federal Republic of Germany

May 1973

Gerda SCHROTER DPOB: 15 May 1944, Germany

Herbert SCHROTER DPOB: 22 January 1927, Germany

German Democratic Republic

In May 1973, Gerda Schroter anticipating leniency, confessed to West German authorities that she had since 1965 been supplying the MFS with classified documents

secured by her in her capacity as an employee in the West German Ministry of Foreign Affairs (Bonn; W. German Embassies in Washington (1968), Warsaw (1972-1973)). She

had been recruited in 1965 by her husband Herbert Schroter, an employee of the Krupp firm. At his wife's warning,

just before her confession, he moved into the GDR.

Der Spiegel., (Hamburg), 11 June, 1973;. Le Monde., (Paris), 13 June, 1973.

CASE 4

Country of occurrence

Date of disclosure

Principal protagonists

Case name

Country responsible for occurrence

Precis

Principal public source

Switzerland

September 1973

Hans-Gunter WOLF, also known as Hans-Gunter KALIN DOB: 1922

Ursula KALIN DPOB: (unavailable)

"Eisblumen (Ice Flowers) Case"

German Democratic Republic

On 21 June 1975 the Swiss Federal Tribunal sentenced Kalin and his wife Ursula each to 7 years imprisonment

for espionage. The couple had, since approximately 1967, passed political, military, industrial and economic

information concerning Switzerland to the GDR, via sophisticated communications equipment.

Le Monde, (Paris), 20 December 1973 and 24 June 1975, Daily Telegraph (London), 19 June 1975; J curna l de Geneva,

19 September 1973; La Tribune de Geneve, 19 September 1973; Neue Zeitung,

20 September 1973; Frankfurter A l Zgemeine, 20 September 1973.

55.

56.

CASE 5

Country of occurrence

Date of disclosure

Principal protagonist

Country responsible for occurrence

Precis

Principal public source

Federal Republic of Germany

1974 (month unavailable)

Rudolf GERLACH

USSR

Gerlach was sentenced by an FRG State Court to a suspended 8 months prison term for having , over the

period 1970-1974, delivered (unspecified) intelligence to the Soviet Union on United States Military installations.

International Herald Tribune (Paris), 8 February 1975.

CASE 6

Country of occurrence

Date of disclosure

Principal protagonist

Case name

Country responsible for occurrence

Pre cis

Principal public sources

Federal Republic of Germany

April 1974

Gunther GUILLAUME DPOB: 1927, Germany

"Guillaume Case"

German Democratic Republic

Guillaume entered the FRG in 1956 ostensibly as a refugee, but in fact as an

agent of the MFS. He was also

an officer in the GDR Army. From 1957 Guillaume worked himself into responsible positions within the w. German

Social Democratic Party and was in 1972 appointed by Chancellor Herr Willy Brandt as his personal assistant.

In April 1974 Guillaume, together with his wife Christel a nd 4 others, was arrested by the BfV. In December 1975 Guillaume was convicted of

espionage on behalf of the GDR and received a sentence of 13 years imprisonment.

Kees ing ' s Contempor a r y Are hiv es, (London) 10-16 June 1974, p 26557; New Y ork Times, 26 April 1974;

The Canberra Times , 26 April 1974; The Times (London) 27 and 28

April 1974; .

Interna ti aza l Herald Tr ibune (Paris) 16 December 1975; The Age (Ne lbourne), 16 December 1975.

57.

58.

CASE 7

Country of occurrence

Date of disclosure

Principal Protagonist

Country responsible for occurrence

Precis

Principal public sources

Federal Republic of Germany

May 1974

Dieter GORSDORF DPOB: 1937 Germany

German Democratic Republic

Gorsdorf was sentenced in September 1975 by a court in Lower Saxony, FRG, to years imprisonment.

Gorsdorf admitted to having been an agent of the East

German Ministry of State Security. From 1967 to the time of his arrest in 1974

G6rsdorf had supplied the GDR with technical secrets from West German naval bases at Bremen and Wilhelmshaven. He had earlier joined the FRG Naval Reserve and gave himself to be a Christian Democrat Party supporter.

The Co urier Ma il (Brisbane), 29 May 1974; Daily Telegra p h (London), 17 September 1975.

CASE 8

Country of occurrence

Date of disclosure

Principal protagonist

Country approached

Precis

Principal public reference

Denmark

September 1974

Ove Tommy DAHL DPOB: 1946 (place not available)

Soviet Union

Dahl was arrested by the Danish police intelligence service in September 1974 and charged with having offered military information

to the Soviet Embassy, Copenhagen. The Soviet Embassy had notified Danish authorities of the offer. The

suggestion was that the Embassy feared a provocation attempt. In December 1974, Dahl was sentenced in an

open Danish court.

Berlingske Tidende (Copenhagen), 20 october 1974. Danish press, December 1974.

59.

60.

CASE 9

Country of occurrence

Date of disclosure

Principal protagonist

Case name

Country approached

Precis

Principal public source

United Kingdom

February 1975

Alastair Duncan STEADMAN DPOB: 12 September 1941 United Kingdom

"Steadman Case"

USSR

In February 1975, former Royal Air Force Flight­ Lieutenant A.D. Steadman, seeking monetary gain, visited the Soviet Consulate

in London for some 2 hours.

He spoke to 2nd Secretary, Ralf Bernkhardovich Mikenberg, offering the latter, 'Top Secret' military

information memorized during RAF service. According to Steadman, Mikenberg was not "very keen" on Steadman's possibly "out of date"

information. In September 1975 Steadman was convicted on 4 charges under the UK Official Secrets Act and gaoled for 9 years.

The Guardian (London), 1 October 1975; The Times (London), 24 Sep tember 1975 and 1 October 1975.

CASE 10

Country of occurrence

Date of disclosure

Principal protagonists

Country responsible for occurrence

Precis

Principal public source

France

March 1975

Ladislas KOMAN DPOB: 20 August 1925, France

Marie-Josephine KOMAN (nee DOBESOVA) DPOB: 25 March 1926, Czechoslovakia

Czechoslovak Socialist Republic

Ladislas and Marie-Josephine Koman, French citizens, were sentenced to prison terms by the State Security Court,

Paris, in March 1975 for having passed information concerning the French Embassy in Prague to the StB. From

1960-1975, Ladislas Koman, employed as head clerk and translator in the Prague Embassy, provided the StB with information on internal

Embassy personal relationships and duties; political information; and details of the physical structure of the Embassy. His wife, employed as

a secretary in the Embassy's Cultural Section, fulfilled a similar function for the StB.

State Security Court proceedings reported in L e Fi garo (Paris), 19-20 March, 1975.

61.

62.

B. A LIST OF SELECTED PUBLIC REFERENCES

MADE DURING THE LAST TEN YEARS TO

TEN EXPULSIONS OF PERSONS BECAUSE OF

INTELLIGENCE ACTIVITIES PREJUDICIAL

TO THE SECURITY OF THE HOST COUNTRY.

!\.SE 1

Country from which expelled

Date of expulsion

Number and nationality of expellees

Precis

Principal public source

United Kingdom

24 September 1971

105 Soviet citizens

The expellees, comprising officials under diplomatic, trade, cultural and service covers in Soviet

establishments in the UK, were assessed by the UKSS as having been engaged in espionage activity within

the UK. The expellees included KGB and GRU officers.

Text of a British Government aide memoire of 24 September 1971; Keesing ' s Contempora r y Arc hives,

23-30 October 1971, pp 24885-6; John Barron, KGB. The S ecret

Work of Soviet S ecret Agents , New York, 1974, Appendix D.

63.

' - .

. .... .

I

\:

. .

, •

.,.

64.

CASE 2

Country from which expelled

Date of expulsion

Number and nationality of expellees

Precis

Principal public source

Italy March 1972

2 Bulgarians; 1 Pole; and

1 Czech

The expulsions, following several months of investigations by Italian security service and Defence Ministry personnel, resulted from activities inimical to Italian security on the part of the following:

(i) Dimcho Vavoy, Bulgarian Trade Official;

(ii) Borislav Baltchev, Bulgarian Trade Official;

(iii) Konstanty Janowski, 1st Secretary .and Consul, Polish Embassy, Rome;

(iv) Milos Dispiva, 1st Secre-cary, Czechoslovak Embassy, Rome.

Japan Times (Tokyo), 13 March 1972.

CASE 3

Country from which expelled

Date of expulsion

Number and nationality of expellees

Precis

Principal public source

Bolivia

April 1972

119 Soviet citizens (Bolivian Government ammended this figure to 49)

Following investigations by the Bolivian Ministry of the Interior and accusations of espionage

and contacts with "subversive elements" and "extremists", 119 Soviet citizens based at the

Soviet Embassy in La Paz were ordered to leave Bolivia. The figure included diplomats, employees

and dependants. A lst Secretary, Igor 'Y. Sholokhov, was described as director of espionage within the Embassy.

Keesing 's Contemporary Arc hives, 13-20 May 1972, p 25252; New York Times, 8 April 1972.

65.

66.

CASE 4

Country from which expelled

Date of expulsion

Number and nationality of expellees

Precis

Principal public source

Denmark

1972

3 Soviet citizens

The following Soviet diplomats were expelled for intelligence activities: (i) Anatoliy Aleksandrovich

Lobanov, 1st Secretary Soviet Embassy, Copenhagen;

(ii) Mikhail Kirillovich Makarov, Attache, Soviet Embassy, Copenhagen;

(iii) Anatoliy Nikolayevich Illarionov, 3rd Secretary, Soviet Embassy, Copenhagen.

Illarionov had been engaged in the colledtion of information on Danish industry, in particular electronic and tool industries.

Berlingske Tidende !Copenhagen) 11 January 1976; Barron, op cit, pp 395, 396 and 388.

CASE 5

Country from which expelled

Date of expulsion

Number and nationality of expellees

Precis

Principal public source

Norway

April 1973

2 Soviet citizens

li) Yuriy Vasil'yevich Polyushkin, DPOB: 25 January 1925, USSR, 3rd Secretary, Soviet Embassy, Oslo, was

expelled for having been the contact for a Norwegian employee at the Norwegian Embassy, Moscow who in 1972

had been convicted of espionage for the Soviet Union.

(ii) Valeriy Nikolayevich Yerofeyev, DPOB: 29 August 1941, USSR, Attache, Soviet Embassy, Oslo, was expelled

for having attempted to purchase unclassified documents from a Norwegian citizen who was in fact

operating for the Norwegian police.

La> Ange Zes 28 April 1973;

Barron, op cit, pp 402 and 413.

67 .

6 8.

CASE 6

Country from which expelled

Date of expulsion

Name and nationality of expellee

Precis

Principal public source

France

May 1973

Yevgeniy Nikolayevich MIRONKIN DPOB: 13 January, 1931, Moscow (Soviet official)

Lieutenant-Colonel Mironkin, Deputy Air Attache at the Soviet Military Mission, Paris, was arrested at Le Bourget Airport Air Show on 29 May

1973, having attempted to remove classified aeronautical components on display.

Following questioning by the DST, Mironkin was declared PNG and left France on 1 June 1973.

L e Fi garo (Paris), 1 and 4 June

1973.

CASE 7

Country from which expelled

Date of expulsion

Number and nationality of expellees

Precis

Principal public source

France

May 1974

2 Poles

Henryk Bosak, DPOB: 6 February 1931, Warsaw, Counsellor at the Permanent Polish Mission at the United Nations, Geneva, and Colonel Josef Medrzycki, a Poland-based officer of the MSW, were arrested by the

DST in French territory on 16 May 1974 and expelled the following day on charges of having attempted to infiltrate

the French secret service via an official of the latter.

Bosak was described as an agent of MSW.

T h e Tim e s (London), 18 May 1974; Le F igaro (Paris), 18 May 1974.

69.

70.

CASE 8

Country from which expelled

Date of expulsion

Name and nationality of expellee

Precis

Principal public source

Canada

May 1975

KUO Ching-An, Chinese (People's Republic of China)

Kuo Ching-An, Press Attache at the Embassy of the People's Republic of China in Ottawa, was expelled for involvement

in financial transactions with radical Marxist political groups in Canada.

China Post (Taipei), 3 May 1975;

The Age (Melbourne), 1 May 1975.

CASE 9

Country from which expelled

Date of expulsion

Number and nationality of expellee

Precis

Principal public source

France

July 1975

3 Cubans

As a result of DST investigations, the following 3 Cuban diplomats, each a member of a Cuban

intelligence service, were expelled on 9 July 1975 for contacts with the "Carlos" terrorist network:

(i) Raul Sainz Rodriguez, DOB: 1943, 1st Secretary and Cultural Charge

d'Affaires, Cuban Embassy, Paris;

(ii) Ernesto Herera REYES, DOB: 1943, 2nd Secretary, Cuban Embassy, Paris; and

(iii) Pedro Zamora Larra, DOB: 1942, Cultural Section, Cuban Embassy, Paris.

French Ministry of Interior statement, reported in L e Monde (Paris), 11 July 1975.

71.

72.

CASE 10

Country from which expelled

Date of expulsion

Number and nationality of expellees

Precis

Principal public source

Denmark

September 1975

4 Soviet citizens

The following Soviet officials based in Copenhagen were declared personae non gratae for attempts to recruit Danish businessmen with connections in the electronic and technological (aircraft) trades, and for having sought to procure embargoed goods:

(i) Oleg Vyacheslavovich Yermakov, DPOB: 23 February 1935, Krakow (Poland), non­ diplomatic official at the Soviet Trade Delegation, Copenhagen; (ii) Viktor Niko1ayevich Kedrov,

DPOB: 7 December 1926, Zaraysk, USSR, non-diplomatic official at the Soviet Trade Delegation, Copenhagen; GRU; (iii) Anatoliy Vasil'yevich Sharov,

DPOB: 15 December 1932, Leningrad, 2nd Secretary, Soviet Embassy, Copenhagen; and (iv) Aleksey Nikolayevich Osipov,

DPOB: 15 January 1935, non-diplomatic official of the Soviet Trade Delegation, Copenhagen.

Berlingske Tidende (Copenhagen), 11 Janua:11y and 14 May 1976; Barron., op cit, p 390.

APPENDIX 4-H

DEFINITIONS OF SUBVERSION

"Subversion", "subversive", "subvert" and

related expressions have proved most difficult to define for the purposes of security services.

2. The S ho r te r Oxfor d Engli s h Dictionary

definitions are: Subversion

"1. Overthrow, demolition (of a city,

stronghold, etc.) &

2. The turning (of a thing) upside down

or uprooting it from its position;

overturning, upsetting (of an object) o

3. In immaterial senses: Overthrow, ruin".

Subversive

"Having a tendency to subvert or overthrow;

tending to subversion".

Subvert

"1. To overthrow, raze to the ground (a town o:r:

city, a structure, edifice). 2. To upset, overturn (an object); to

break up (ground).

3. To undermine the character, loyalty, or

faith of, corrupt, pervert (a person). 4. To disturb (the mind, soul); to overturn,

overthrow (a condition or order of things,

a principle, law, etc.).

73.

74.

5. To bring about the overthrow or ruin

of (a person, people, or country,

a dynasty, etc.)". [ 4-H-1·]

3. The Concise Ox fo r d Dictionary defines "subvert"

as:

"Overturn, upset, effect destruction or

overthrow of, {religion, monarchy, t h e

constitution, principles, morality)". [ 4-H-2]

4. Attempts have been made in various countries

to define subversion as it concerns them. Below, grouped

by country of origin, are some of the definitions I have

seen.

(a) Australia

5. Three definitions ASIO has provided to the

Royal Commission are:

(i) "Subversion comprehends all acts and utterances and, although no exhaustive definition of the word "subversive" can be given, it is applicable to:

4-H-1 4-H-2

(a) any attempted invasion by force on the field of executive power of the Australian Government; (b) advocacy or encouragement of the overthrow

of the Australian Constitution by revolution or of the established government of Australia by force or violence;

Third edn, 1974. Sixth edn, 1976.

(c) incitement to the actual use of violence for the purpose of resisting the authority of the Australian Government or effecting a revolutionary change in

the form of government; (d) incitement to the use of violence for the purpose of effecting a change in Australia's constitutional position under the crown or

in relation to the United Kingdom, or in the constituion or form of government in the United Kingdom; (e) conduct reasonably capable of obstructing

the Australian Government in exercising its powers and carrying out its duties of executing and maintaining the Constitution and laws of .Australia; or (f) action or utterances by which the authority

of the Australian Government may be overthrown, thwarted or undermined". [4-H-3]

(ii) "The expression ''subversion'' in relation to the government of the Commonwealth may be

(iii)

4-H-3 4-H-4

taken to mean attempting, inciting, counselling, advocating or encouraging -(a) The overthrow by force of that Government; or

(b) The undermining by unlawful means of the authority of that Government. ("Government" signifies the established system of political rule, the governing power of the country consisting of the executive and the

legislative considered as an organized entity and of the persons of whom it

consists from time to time)." [4-H-4] "Subversive activity" is: "Advocacy or encouragement of, or actions designed to effect:

(i) overthrow of the Constitution by revolution or sabotage;

Doc All, p 8.

Doc A58, para 6.

75.

76.

(ii) overthrow by force or violence of the established government of the Commonwealth or of a State or of any other civilized country or of organized government; or (iii) destruction of Commonwealth property; or

(iv) a seditious purpose which is defined in Sec. 24A of the Crimes Act .••

The abovementioned four points are to be found in Sec. 30A of the Crimes Act as the

grounds on which associations are declared unlawful, but they may be taken as defining what Parliament considers to be subversive activity." [4-H-5]

(b) United Kingdom

6.

7.

Lord Denning said subversion meant to:

"contemplate the overthrow of the Government by unlawful means". [4-H-6]

The UK services use the NATO definition of

"subversion":

4-H-5 4-H-6

4-H-7

"Action designed to undermine:

(a) The political, economic, psychological, morale,or political strength of a nation, and

(b) The loyalty of the subjects". [4-H-7]

Doc A94, para 2.

Lo r d Denning ' s Repo r t , Cmnd 2152, London, September 1963, para 230. Joint Services Sta ff Man ual Glossar y , JSP(AS)lOl, 1970, pt 1, p 218.

(c) Canada

8. The Canadian Royal Commission on Security in

1969 said the area of subversion involves some very subtle

issues:

9.

"the range of activities that may in some circumstances constitute subversion seems to us to be very wide indeed: overt

pressures, clandestine influence, the calculated creation of fear, doubt and despondence physical sabotage or even assassination - all such activities can

be considered subversive in certain circumstances.. Subversive activities need not be instigateq Ly foreign governments or ideological organizations;

they need not necessarily be conspiratorial or violent; they are not always illegal. Again fine lines must be drawn. Overt lobbying or propaganda campaigns aimed

at effecting constitutional or other changes are part of the democratic process; they can however be subversive if their avowed objectives and apparent methods are cloaks for undemocratic intentions and activities. Political or economic

pressures from domestic or foreign sources may be subversive, particularly when they have secret or concealed facets, or when they include attempts to influence government

policies by the recruitment or alienation of those within the government service or by the infiltration of supporters into the service." [4-H-8]

The commissioners found themselves unable

"to devise any satisfactory simple definition of "subversion".

They said that the most that could "usefully be said"was:

4-H-8 canadian Royal Commission's Report, para 6.

77.

78.

"that subversive organizations or individuals usually constitute a threat to the fundamental nature of the state or the stability of

society in its broadest sense, and make use of means which the majority would regard as undemocratic". [4-H-9]

But they reported that:

4-H-9

"The forms of communist subversive activity in Canada are varied, ranging from efforts to develop front organizations to attempts to subvert individuals in government, the mass media, the universities, the trade unions, and ethnic

groups and political parties. Such activities are assisted by the fact that the communists are able to exploit and exaggerate existing elements of social unrest and dissent concerned with a variety of appealing causes. Some facets of these operations are worthy of special mention. First, activities in

universities and trade unions appear at present to be of special significance. Half the population is under twenty-five and activities in the universities will have a considerable effect on

the national climate of opinion in future years. As far as the trade union

movement is concerned, there is a long history of attempts by the Communist Party to assume control at local levels and to take all possible measures to influence national policies; these attempts are usually, but not always,

frustrated. Secondly, efforts to influence immigrants from some Western European countries with large communist parties have recently increased.

Thirdly, certain communist countries which have emigre' groups in Canada have embarked on an extensive programme to

Ibid, para 7.

10.

establish liaison with these communities, a programme in which the intelligence services of the countries concerned appear to be

playing an important role. Fourthly, there has been some resurgence of activity by certain communist front groups; communist influence also

remains significant in a number of non-communist peace groups, and in "friendship" societies linking Canadians with the communist countries.

Fifthly, although the Trotskyist movement in Canada is very small in size, its militancy and skill give it greater potential influence than

its strength would indicate." [4-H-10]

The Canadian Off icial Secr ets Ac t allows the

issue of a warrant to intercept or seize communications

inter alia for the prevention or detection of subversive

activity directed against Canada or detrimental to the security of Canada. It defines "subversive activity" as:

4-H-10 4-H-11

"(a) espionage or sabotage; (b) foreign intelligence activities directed toward gathering intelligence information relating to Canada;

(c) activities directed toward accomplishing governmental change within Canada or elsewhere by force or violence or any criminal means; (d) activities by a foreign power directed

toward actual or potential attack or other hostile acts against Canada; or (e) activities of a foreign terrorist group directed toward the commission

of terrorist acts in or against Canada". [4-H-11]

Ibid, para 18. RS, c0-3, sl6(2) and (3). Section 16 was

added to the Off icial Secrets Act in 1974 by the

Protection of Pr i v acy Act , RS, c50, s 6, p22.

79.

80.

(d) Malaysia

ll. The Malaysian Internal Security Act , 1960,

prohibits possession of subversive documents, which it defines as:

"any document having in part or in whole a tendency -(a) to excite organized violence against persons or property in Malaysia;

(b) to support, propagate or advocate any act prejudicial to the security of Malaysia or the maintenance or restoration of public order therein or inciting to violence therein or counselling disobedience to the law

thereof or to any lawful order therein; or

(c) to invite, request or demand support for or on account of any collection, subscription, contribution or donation, whether in money or in kind, for the

direct or indirect benefit or use of persons who intend to act or are about to act, or have acted, in a manner

prejudicial to the security of Malaysia or to the maintenance of public order therein, or who incite to violence therein or counsel disobedience to the law thereof or any lawful order therein". [4-H-12]

(e) Singapore

12. There is a provision in the Singapore Internal

Security Ac t which is identical to the Malaysian provision,

except that, of course, "Singapore" is substituted for

"Malaysia" wherever appearing, and in the Singapore Act,

4-H-12 s 29 (3).

the word "or" appears at the end of clause (a). [4-H-13]

(f) New Zealand

13 . The New Ze a land Security Intelligence Act 1969

defines "subversion" as meaning:

"attempting, inciting, counselling, advocating or encouraging -(a) The overthrow by force of the Government of New Zealand; or

(b) The undermining by unlawful means of the authority of the State in New Zealand". [4-H-14]

This definition was approved by the NZ Chief Ombudsman

in his 1976 report on the NZ SIS.[4-H-l5]

(g) United States of America

14. The FBI says "subversive activities" are:

"activities which are aimed at overthrowing, destroy ing or undermining the Government of the United States or any of its political subdivisions by illegal means prohibited by

statutes".

It defines " e xtremist activites" as:

4-H-13

4-H-14 4-H-15 4-H-16

24775177- 4

"Activities aimed at overthrowing, destroy ing or undermining the Government of the United States or any of its political subdiv isions by illegal means or deny ing the rights of

individuals under . the Constitution prohibited by statutes". [4-H-16]

Inte r nal Security Act, Republic of Singapore , (edition of 1970), chapter 115, section 27(3). s 2.

NZ Ombudsman's Re port, p 26. As quoted in US Comptroller General's Report to the House Committee on the Judiciary , FBI Domestic Intelligence Operations -

Their Purpose and Scope: Issues that Need to be Resolved , issued by US Genera l Accounting Office, 24 February 1976, p 4.

Bl.

82.

15.

as:

16.

The Church Report glossary defines "subversion"

"Actions designed to undermine the military, economic, political, psychological, or moral strength of a nation or entity. It can also

apply to an undermining of a person's loyalty to a government or entity." [4-H-17]

The US Joint Services definition for "subversive

political action" and "subversion" are those adopted by SEATO and used by the Australian Joint Services:

(i) "Subversive Political Action A planned series of activities designed to accomplish political objectives by influencing, dominating, or displacing

individuals or groups who are so placed as to affect the decisions a n d actions of ano the r Government".

(ii) "Subversion: Action designed to undermine the military, economic, psychological, morale, or political strength of a regime". [ 4-H-18]

4-fi- 1 7 Book 1, op cit, p 629.

4-H-18 Joint S e r vice s Sta ff Ma n ual Glossar y , op cit,

pp 1-218 and 1-219.

(h) Federal German Republic

17. The Federal German Republic passed a new law

relating to the Bundesamt fur Verfassungsschutz (BfV)

in August 1972. While not specifically defining

"subversion" or derivative terms, it gave the BfV the

following task under the heading - "New Functions":

4-H-19

"the collection and evaluation of information, intelligence and other evidence concerning:

1. Activities .which are directed against the free democratic good order, stability and security of the Federation or of a State, or which are aimed

at an illegal impairment of the administrative functions of members of constitutional bodies of the Federation or of

a State.

2. Activities endagering security, or secret service activities for a foreign power in the

Federal German Republic.

3. Activities in the Federal German Republic, which, by the use of force or by preparatory measures to this end, endanger the

external interests of the Federal German Republic." [4-H-19]

Law for the amendment to the law concerning co-operation between the Federation and the States in matters of the defence of the constitution, Federal German Law Ga zett e

1972, Series pt 1, 7 August 1972, p 1382.

Translation provided by ASIO.

83.

84.

(i) Other non-official views

18. In a special report, entitled The Peacetime

Strategy of the Soviet Union 3 a Study Group of the Institute for the Study of Conflict discussed the nature of subversion. I quote the relevant

full.

"A. Subversion and Penetration The obsession with security, combined with the commitment of the Soviet and other Communist leaders to revolution and their experience as conspiratorial parties in non-Communist societies, leads them to attach major importance to subversion as an instrument for furthering their policies against the outside world. This policy is especially effective against the industrial democracies of the West, both because they make up an area against which war seems impracticable, and also because their societies are singularly vulnerable to it. It is therefore not surprising

that, although so many aspects of Soviet policy have changed since the initial heady years of the Revolution, the use of subversive techniques against the outside world has remained and developed.

In speaking of subversion, it is important to make certain distinctions. The great strength of industrial democratic societies, which offsets their many weaknesses, is the ability of the dissatisfied citizens to advocate change and the willingness of the regimes to adjust to it. In every Western society, many citizens work openly for a change of government; some for a change of

constitution or regime; and some others for a change in the outlook and mores of

society. This activity is a basic feature of Western political and social life, and is not necessarily subversive. There may be subversion, however, where

it can be shown that there is a systematic

attempt to undermine a society: by

attempting to provoke a failure of nerve by the rulers of the country, institutions and government; or by provoking a breakdown of law and

order with the ultimate aim of bringing about a total collapse of the State. When an organised group is engaged in such activities, it qualifies itself for the designation of "subversive".

Although this study is concerned primarily with the subversive activities of groups that maintain links with a foreign and potentially

hostile power that intends to weaken or or overthrow a regime or a society for purposes of its own, it cannot ignore groups that have no such links, but whose activities may lend themselves

to foreign exploitation or be of ultimate benefit to the foreign policy of a hostile power, especially the Soviet Union.

Subversion fr om ou tside may serve an illegitimate and imperial purpose even the rulers of the foreign

state deeply believe i n the ideology or creed of the groups to which they are giving subversive aid. Subversion becomes even more sinister when the

subverting power supports movements and causes in wh ich it d oes not

and wh ich i t suppr esse s a t · but

which it uses like weakening diseases in order to distintegrate the capacity to resist of its opponents. For instance, Hitler subsidised pacifist movements in the West, the imperial

Japanese government encouraged opium in China, and the Soviet government today finances and encourages a wide range of activities such as pacifism, hostility to the armed forces and the

police, industrial unrest, opposition to technological innovation, and particularly civil violence, all of which it opposes with particular

sterness and determined propaganda in territories under its control . ..

85.

86.

Two guiding principles may help to distinguish subversion from legitimate advocacy of change: the and the organization. Intent

is intangible and hard to prove; but the more open a society is, the less

clandestine are the activities of revolutionary groups and the easier it is to detect subversive intent in the sense described above, even if formal proof is lacking. Organizational links are harder to trace. The more effective the para-military discipline of a radical organization is, the more subversive the aims of its leaders are likely to be. Here it is useful to ask

whether the programme of a group consistently serves the policy and objectives of a foreign power; is regularly praised or supported by that power's propaganda media; or, of course, whether the group has organizational

links to the foreign power and receives money, arms, or training from it.

In the context of Soviet strategy towards the West, it should be noted that in recent years, the Soviet KGB has been providing clandestine support

- with money, arms or training - for

extremist groups which the Soviet media denounce in their propaganda.

The simplest form of subversion is the organization of amounts to the ability to disrupt the essential industries in communications and other facilities of a modern state. The Soviet Union, which claims to be the champion and spokesman of the

industrial working class of all the world, is well placed to organise groups of sympathisers capable of carrying out such acts of sabotage. The evidence

that such acts are carried out in present conditions is small. Even in time of war (e.g. against the totalitarian regimes like Nazi Germany and Imperial Japan) sabotage organised by the Soviet government seems to have been relatively ineffective.

It should be recalled, however, that at the time of the expulsion of 105 Soviet agents from Britain, in September 1971, the KGB defector Oleg Lyalin brought with him documentary evidence that included

"plans for the infiltration of agents for the purpose of sabotage". Although the relevant official statement, issued on 24 September, said no more than that, further details were published abroad, notably in the French press. The sabotage plans were in the

event of contingencies that have never been satisfactorily explained; but they were remarkably precise and provided, according to various reports,

for the destruction of the nuclear early warning radar system at Fylingdales in Yorkshire, and of the long-range communications establishment at Orfordness in Suffolk, and even for

the poisoning of London's water supplies.

The second form of subversion is deliberate infliction of economic damage (especially iriflation and loss of production) by means of industrial

unrest. This aspect of subversion has given rise to so much emotional argument that it is difficult to establish an objective view. Certainly

a substantial proportion of the industrial unrest in Western countries is fomented and managed by Communists who have established themselves in

key places in workers' organizations; and these activities are not always designed to improve the benefits derived by individual groups of working men under the present system, but are

seen by their instigators as part of a strategic campaign to overthrow the economic system existing in Western countries and to replace it by a Communist one. It is also clear that

Communist and near-Communist leaders in Western industrial democracies maintain close links with the Soviet authorities through their national

Communist parties, and by other means.

87.

88.

The need to take measures against Soviet-inspired subversion does not require proof that industrial unrest and the economic and social damage it causes in Western societies is the result of a complex and detailed conspiracy by the Soviet government against the industrial democracies. The point is that the activities of Communist groups in Western industries

further ends common to all Communist parties in that they weaken "capitalism" and "imperialism", which Marxist­ Leninists regard as historically inevitable. The same is equally true of the activities of Trotskyists, Maoists and Anarchists, even though they do not acknowledge loyalty to Moscow, and are positively hostile to Soviet directives.

Similarly, there is no doubt that the Soviet government encourages disruptive influencesin hostile societies, as the counterpart of its own totalitarian measures to immunise the population which it governs from outside influences.

This encouragement makes ideological subversion rather more effective; but the evidence is that a community can be effectively influenced only by its own members, and Soviet activities in this

field are essentially concerned with support for indigenous organizations. Outside help is more necessary in the organization of minor political violence

and breaches of the law than in ideological subversion. The technically trained and highly disciplined organization necessary for major political

violence in the form of terrorism and guerrilla warfare is unlikely to be effective at all unless it receives arms, money, training facilities and other

specific forms of help from outside. Here the activity of the Soviet government, and particularly the KGB, is impressive and continuous.

Corresponding to the organization of sabotage and civil violence directed against the forces of law and order is the penetration

and disruption of those forces themselves. The most familiar form of such penetration is espionage. Most governments maintain some

intelligence organization, and espionage network, in hostile and potentially hostile countries. There is much evidence of Soviet penetration of government and armed forces for

this purpose. Soviet spies are recruited by blackmailing and for material as well as on the basis

of ideological loyalty. The Soviet authorities have also developed, perhaps beyond a level of other powers today, the penetration of such services, as well as the police, communications and other essential services for the purpdse of disruptive action in a crisis.

People in key positions who are prepared to act or refuse to act in the interests

of a government hostile to their own when a crisis occurs must in practice be recruited on an ideological basis. Thus they are dedicated and consequently more difficult to detect. In present

circumstances in Western Europe, internal security forces are probably more important as targets for Soviet penetration than exterior defence forces,

because the Soviet government considers a conventional international war in Europe unlikely and threats to internal order probable.

For many years the Soviet government has been aware of the great advantages that its external policy can derive from the participation of

Communists in both at the

local and the national level. When local Communist parties were more under the direct control of the Kremlin than they are today, they frequently received

instructions to form temporary alliances with other parties in order to obtain a foothold in governments. As Soviet control has weakened, and the Western

89.

90.

Communist parties are inclined to go their own way, the desire of Western Communist leaders for office has become clearer. Even if such

leaders no longer take orders, and at times and on certain issues openly oppose the policy of the Soviet government, their occupation of positions of authority will in general be of great use to the Soviets. Not

only will they be able to influence the decision-making processes of Western governments, in most cases in directions favourable to the Soviet Union, but will also be able to protect and perhaps facilitate other Soviet activities of a more directly subversive kind.

Against this must be set the argument of revolutionary groups to the left of the Communist parties, wh9 argue that in order to make themselves

"ministrables" the Communist leaders either "betray the revolution", or at least give respectability to bourgeois governments which they ought only to discredit, and that the process of winning electoral votes involves the righting of grievances and the

improvement of the material conditions of the working class so that they become less revolutionary. Moreover, the participation in government usually requires a temporary· alliance with parties and fractions to the right of the Communist Party - the strategy of the popular front.

Temporary alliance with revolutionary groups to the left have proved much more difficult (the Chilean coalition is uneasy and the Communist

leaders are already denouncing the policy of the extremists and negotiating with the Christian Democrats for a more manageable temporary alliance).

In Soviet eyes the temporary alliances between Western Communist parties and fractions to the right of

them, correspond to the Soviet practice of t e mp or ary a lliances with non-Communist governments at the international level. India, Egypt,

and are familiar examples.

Soviet writings on foreign policy indicate the hope that one day it will be possible to establish "co-operation" with Italy and France. On the other hand , Soviet spokesmen

increasingly admit the extreme difficulty of working arrangements with governments to the left of them, particularly that of

Communist China.

The fact to note about the

Communist theory of temporary alliances, both in the domestic political field and internationally, is that they are regarded only as expedients to

further the advance of the "working class movement", interpreted in the narrow sense of the Soviet Communist Party and its affiliates. No

obligation or loyalty is felt towards a temporary ally, whatever promises are made; it would be a betrayal of

"the working class movement" to put the interests or needs of a temporary ally above their own. Though the Soviet government finds

it difficult to make satisfactory arrangements with organizations more revolutionary than i tself, it nevertheless cannot afford to ignore

ideological competitors for the loyalty of the working class and of others who wish to promote revolution. The Soviet Union has therefore developed techniques of clandestine

penetration of left wing organizations:

(a) to obtain information about their activities; (b) in the hope of exercising some control and canalising

their disruptive effect in directions which are tactically useful;

91.

92.

19.

(c) to prevent Chinese control of individual organizations, and to hinder the general tarnishing of the Soviet Communist image; (d) because a degree of extremist

violence can be useful to the Soviet Union by disrupting the economy and society of a "bourgeois" state. (Local Communist parties usually oppose "anarchist violence"

in favour of "law and order" and "disciplined socialism" and thereby strengthen their appeal to moderate progressives.)"

[4-H-20]

In another special report, entitled New

Dimensions of Security in the Study Groups of

the Institute for the Study of Conflict discussed

subversion:

4-H-20

"Subversion may be defined as a systematic attempt to undermine a society. The ultimate objectives are to bring about a total collapse of the State, and of existing society. These objectives are not necessarily achieved, but they constitute the guiding motives of those who practise subversion, and indeed these motives distinguish subversion from legitimate dissent. With the ultimate objects

in mind, the aims of subversive groups include any or all of the

following: to bring a regime into

disrepute; to cause a loss of

confidence on the part of the ruling establishment, institutions and governments; to provoke a breakdown of law and order. Subversion becomes

London, 1973, pp 11-14.

20.

definable as such when it is clear that an organised group is engaged in activities the objects of which include any or all of those specified

in this paragraph." [4-H-21]

Under the heading "Sources of Subversion - The

Soviet Bloc" the report says:

4-H-21 4-H-22

"The KGB and GRU, in addition to their normal function of espionage, are busy, however, in the recruitment of "agents of

influence", to whom at least as much importance is attached as to "spies". The purpose of agents of

influence, who may be found in governments, parliaments, the civil service, the media, education or wherever their work might be considered useful are:

to influence the policies of parties and governments; to spread demoralisation (for example by systematic denigration of existing

institutions, or by literary or dramatic works calling in question the present or past achievements of national "heroes"); the disinformation of governments and public opinion

about the true nature of Soviet policies (for instance, about "detente"); in general, dissatisfaction with current political leadership and policies.

In a variety of other ways the

KGB and GRU involve themselves in disinformation (for instance, by the circulation of unfounded rumours); the gathering of biographical details

that can be used for blackmailing of potential recruits; and the penetration and disruption from within of rival intelligence organizations and other government

departments." [4-H-22]

London, 1975, p 24.

Ibid, pp 26 and 27.

93.

··. ··

94.

21.

22.

Of "detente" it says:

"In this context, the overriding purpose of Soviet and Eastern bloc subversion is the disarmament of the West: p s y c hologi ca l ly , politically and, in time, militari ly as well. To

this end, the overt propaganda resources of the bloc (such as the radio programmes beamed to Western European countries in their own languages) are concentrated, in line with the public statements of politicians. These efforts are, however, supplemented in a variety of clandestine ways." [4-H-23]

Examples of subversive actions given by the

report include:

4-H-23 4-H-24

"political strikes in factories, sit-ins, demonstrations and lock-outs in public places or in educational establishments .... revolutionary agitation in penal institutions

(especially in the United States, but also in Northern Ireland); the systematic discrediting of penal processes, and the fostering of the notion that ordinary crimes committed

for alleged political objectives turn the perpetrator, whe n captured, into a "political prisoner", whose plight will be ascribed to victimisation by a corrupt government, and so forth; the disparagement of national flags and other symbols; the manipulation of church groups, to persuade them

to contribute to revolutionary causes; pro- and anti-war propaganda, according to whether the war in question is to considered one of

"liberation" or "repression"." [4-H-24]

Ibid, p 28.

Ibid, pp 30 anC. 31.

2 3. Of "The Problems of Counter-Action" the

report says:

"The following questions may help - to decide whether a subversive process is occurring:

Are speakers, writers, broadcasters, and producers of films for television or the cinema, members of political groups committed to revolutionary activism, and do they in fact abuse

their positions to promote revolutionary activies? Are such people present in disproportionate numbers?

Are applicants for or holders of teaching posts revolutionary activists? On appointment, do they indoctrinate rather than teach, and do they incite

their colleagues and students to take part in subversive activities? Are strike-leaders or the organisers of mobile pickets members of an activist

revolutionary group? Are there cases of strike action which appear to have no meaning unless they are aimed at crippling industry and creating

unemployment or forcing a State take-over?

Does the published programme of a group, movement or party consistently serve the policy objectives of a hostile foreign Power?

Is the group regularly praised in the press or radio of a hostile

foreign Power? Is there any evidence that members of a group have received money, arms or training from a foreign Power, or have

gone abroad to receive such training?

Is there evidence of clandestine action, e.g. the unexplained or unconvincingly explained disappearance for an appreciable period of a man from his place of work, or a student from

his place of study?

95.

96.

2 4.

4-H-25

Is there evidence of the organization of revolutionary groups into cells?

Are there thefts of arms and ammunition or evidence of raids on banks by members of a politically motivated group? (This last question

is more directly applicable to counter-insurgency or counter-terrorism than to counter-subversion, but is included here because terrorism, as explained, is an extreme form of

subversion.)

It must be admitted that although such questions are relevant to the problem, they do not provide an infallible guide. There is, for instance, nothing to stop revolutionaries from leaving a group clearly labelled as subversive and

joining a "respectable" political party, and many have done so, thereafter working from within to propagate their revolutionary or subversive ideas." [4-H-25]

And as to "Levels of Subversion" it says:

"Subversion may or may not be part of an escalating process the latter stages of which involve high-level violence requiring the intervention of the armed

forces. The following classification of phases or levels of the escalating process is necessarily theoretical and arbitrary, but may have the merit of drawing attention

to the dangers of letting the process follow its own course, untreated.

Level Z: Selective target subversion, e.g. in industry, the universities, parliaments or assemblies and other institutions, publishing, the media. The object is to multiply the effectiveness of numerically small groups, by penetration or infiltration of larger ones, which can then be used,

Ibid, p 3 2.

against the wishes of the majority, for revolutionary ends. Over a period, a climate of demoralisation and discontent is created. The objective is a dual one:

demoralisation contributes to what the Communist side in the recent Indo-China war expressively termed the de mobi Zi s a t i on des esprits; discontent, however, is used to

fuel protest and revolutionary activism. In other words, the objectives are to bring about a loss of will on the part of the

government and a loss of confidence in the government by the governed. Le vel 2: Minor political violence and breaches of the law; intimidation of moderates; violent protest marches; provocation of the police.

Level 3; Major political violence; terrorism, urban guerrilla warfare.

Le v e l 4; General breakdown of the

State; revolutionary anarchy; danger of civil war; possible cou p either by revolutionaries

or by those who wish to prevent a

revolutionary coup.

It should be clearly understood, of course, that in real life subversion is not necessarily escalated strictly in this fashion. Levels 1 and 2 do

not necessarily vanish because Level 3 is reached. Nor for that matter is

Level 4 fatally or historically inevitable, except in revolutionary manuals. But it should be clear

that if Level 3 is reached, the risks

of escalation to Level 4 are multiplied. The overriding aim of counter-subversion must be to prevent escalation to Level 3 .

... Against the background of the subversive process, however, military intervention from the outside must be seen as a possible device to consolidate a revolutionary government or to protect

it from overthrow by, say, a section of the armed forces. Any such intervention

97.

98.

25.

would be presented by the invading force (which could only be Soviet or Soviet-controlled, in the period covered by this Report) not in international terms as an act of war, but as the fraternal response of a

socialist republic to the appeal of a beleaguered workers' government." [4-H-26]

On the distinction between dissent and

subversion, Lord Chalfont said in the House of Lords:

4-H-26

"It is ••• perfectly permissible for anyone in a democracy to dissent from the policies of the Government, of whatever political complexion they may be, and to attempt to change

those policies, or even to change the Government, through the normal political process. To go further, it is equally permissible to dissent from the system of Government itself and to try to change that by persuading a majority of the people that it

should be changed; but here it is important to distinguish between dissent and subversion. This is not an easy matter. It has preoccupied philosophers and political scientists from Hobbes and Machiavelli through to the 20th century and Marcuse and Fanon.

For the purpose of this analysis it might be useful to take as a

point of departure the familiar proposition that the distinction between dissent and subversion lies in the dividing line between the use and the abuse of the instruments of democracy. In many cases, of

course, the question of use or abuse will be largely subjective and will depend on the political viewpoint of the individual. But there is one

Ibid, p 33.

4-H-27

factor in this argument which seems to me to be unmistakable and to carry a special significance; that is, the factor of violence. Here again, I

think that we must attempt a definition of the terms, because revolutionaries claim that violent disruption and even armed

confrontation are justified on the grounds that the State itself uses force, both in making war and in preserving its own internal

security. But this betrays a serious confusion between the concepts or force and violence, and for the purpose of the present argument I rely upon a simple, but, I think serviceable and, indeed,

incontrovertible proposition; namely, that violence is the illegal or immoral use of force." [4-H-27]

Parliamentary Debates, Lords. Vol. 357, 26 February 1975, columns 821-822.

99.

100.

APPENDIX 4-J

The draft submission of the US Department

of Justice, and testimony of Hon. Edward H. Levi,

the US Attorney-General, concerning draft

submission to the US House of Representatives

Committee on the Judiciary, Subcommittee on Civil

and Constitutional Rights on 11 February 1976.

I wish to thank the Hon. Edward H. Levi

for permission to reproduce them here.

DRAFT

DOMESTIC SECURITY INVESTIGATIONS

I. BASES OF INVESTIGATION

A. Domestic security investigations shall be limited to the activities of individuals and groups not directed by, subsidized by or otherwise undertaken in active collaboration with a foreign power or foreign political

organization.

B. Domestic security investigations are conducted, when authorized under Section II ( q or II (I), to ascertain information on the activities of individuals, or individuals acting in concert, which involves or will

involve the use of force or violence and the violation of federal law, for the purpose of:

(1) overthrowing the government of the United States or the government of a State;

(2) interfering, in the United States, with the activities of a foreign government or its authorized representatives; (3) impairing for the purpose of influencing U.S.

government policies or decisions:

(a) the functioning of the government of the United States;

(b) the functioning of the government of a State;

or

interstate commerce.

(4) depriving persons of their civil rig hts unde r the Constitution, laws, or treaties of the United States; or (5) engaging in domestic violence or rioting when such

violence or rioting is likely to require t he us e

of federal militia or other armed forc e s. C. Domestic security investigations may also be autho rized by the Attorney General, wh e n there is a clea r a nd

immediate threat of dome stic violence or rio ting whic h is likely to result in a request b y the governor o r

legislature of a state under 10 U.S.C. 331 for t h e us e

of federal militia or other fede r a l arme d force s as a

counter-measure. Investigations may be authorized for

101.

102.

DRAF'I'

- 2 -

a period of 30 days under this paragraph but may be renewed in writing by the Attorney General for subse­ quent periods of 30 days. Investigations under this paragraph may be instituted for the limited purpo se of

ascertaining information upon which a decision whethe r to use federal forces may be made and information necessary to implement an order calling for the use of federal troops. Techniques a'lailable in a full investigation, authorized as otherwise required under these guidelines, may be used in investigations unde r

this paragraph.

I I . INI TIATION AND SCOPE OF INVESTIGATIONS

A. Domestic security investigations are conducted at t wo levels--preliminary investigations and full tions--differing in scope and in investigative techniques which may be used.

B. All preliminary and full investigations undertaken through these guidelines shall be designed and conducted so as not to limit the full exercise of rights protected by the - constitution and laws of the United States.

Preliminary Investigations

C. Preliminary investigations may be undertaken on the basis of allegations or other information that an individual, or individuals acting in concert, may be engaged in activities described in paragraph IB. These investigations shall be confined to determining if there is a factual basis for a full investigation. D. Information gathered by the FBI during preliminary

invesiigations shall be pertinent to verifying or refuting the allegations or information concerning activities described in pcragraph IB. E. FBI field offices may, on their own initiative, under­

take preliminary investigations limited to inquiries of: (1) FBI indices and files;

(2) public records and other public sources of informa­ tion; (3) federal, state, and local records; and

(4) existing informants and information.

DRAFT

- 3 -

F. Physical surveillance or interviews of oersons other than those mentioned in paragraph E may be used

in preliminary subject to the limita­

tions set forth below, only when use of the investigative techniques authorized in paragraph E is inadequate to meet the objectives of preliminary investigation.

(1) field agents may undertake physical surveillance and interviews, for the limited purpose of identifying the subject of the investigation;

(2) no other surveillance or interviews may be undertaken except upon the express written authorization of the Special Agent in Charge or FBI Headquarters;

(3) written authorizations for surveillance and inter­ views shall be reported, as provided in YA(l) of these guidelines, and shall include a statement setting forth the circumstances justifying such

investigative steps. G. Techniques such as r ecruitment or placement of informants in groups, "mail covers," or electronic s urve illance, may not be used as part of a preliminary investigation.

H. All preliminary investigations shall be closed within

103.

90 days of the date upon which it was initiated . However,

FBI headquarters may autho ri ze in writing one 90-day extension of a preliminary investigation when facts or information obtained in the original period justify such an extension. The authorization shall include a

statement of the circumstances justifying the extension.

Full Investigation I. Full investigations musf be authorized by FBI head­ quarters. They may only be authorized on the basis of specific and .articulable facts giving reason to

that an individual, or individuals acting in concert, are or may be engaged in activities which involve or will involve the use of force or violence and the viol :· -· tion of federal law for one or more of the purposes

enumerated in IB(l)-IB(S). In addition the following factors must be considered in determining whether a full investigation should be undertaken: (1) the magnitude of the threatened harm;

(2) the likelihood it will occur;

104.

(3)

- 4 -

the immediacy of the threat; and

trw dc.tl:J<:::r l ·.) p 1. ivacy and free expression pcseo by a full invest.tgation.

J Vlhe'n•:::ver use of the follo11ing techniques for su.rve>tll at tce is permitted by tnese guide lines, they shall be imrle­ :: .i:!nted as limited herein:

(1) use of informants LO gather information, when approved by FBI headqua rters, and subject to at ninety (90) day intervals; provided, (a) when persons have been arrested or chargee

with a crime, and criminal proceedings still pend.tng, informants shall not be used to gather information concerning tha t crime from the persori(s) cha rge d; and

(b) informants shall not be used to obtain

privileged information; and whe re such info r­ mation is obtained by an informan t on his own initiative no record or use shall be made of the information.

(2) ''m ail covers," pursuant to postal regulations, when approved by the Attorn ey Ge ner a l o r hi s designee, initially or upon request for exte nsio n; and

(3) electronic surveillance in accordance with the requirement of Title III of the Omnibus Crime Control and Safe Stree ts Act of 1968.

Provided that whenever it becomes known tha t person(s) under surveillance are engaged in privileged conversatio n (e .g., with their attorney) interception equipment shall b e imme diate ly shut off and the Justice Department advise d as soon as practicable. Where such a conversation is recorded it shall not be transcribe d, and a Department attorney shall determinL if such conversation is p rivilege d.

NOTE:

DI\AFT

- 5 -

These t echniques have been the subject of strong concern. The committee is not yet satisfied that all sensitive areas have been covered (e.g., inquiries made under

"pretext;" "trash covers," photog raphic br other surveillance techniques .) ·

II. TERMINATI NG INVESTI GAT IONS A. Preliminary and full investigations may be t e rmina ted at any time by the Attorney General, his designee , or FBI headqua rters .

B. FBI headquarter s shall review the results

of full investigations, and at such time as it appears that the standard for a full investigation under II (I) can no longer be satisfied and a ll log ica l l eads have

been exhausted or are not to be productive , FBI

headquarters shal l terminate the f ull investigat ion.

C. The Department of Justice shall review the results of full domestic intelligence investigations at l east annually, and determine i f continued investigation is warranted . Full investigations shall not continue

beyond one year without the written approval of the Department . ·

IV. PREVENTIVE ACTION

A. Upon authorization of the Attorney General, the FBI

105.

may undertake non-violent emergency mea sures to obstruct or prevent the use of forc e o r violence in violation of

federal l aw only when t here is probable cau se to beli eve :

(l) that an individual, or individuals icting in concert, i s preparing to use force or violence for purposes d e scribed i n paragraph IB or IC; and

(2) such force and violence poses a real and i mmediate

threat to life, or to property the impairment of which would interfere substantial l y with the essentia l functioning of governmen t as described in paragraph IB or IC. And such non-violent, emergency measures are necessa r y

to minimize the dange r to life o r property .

B. In the course of domestic security investiga tions preventive by the FBI may include objectives

such as:

106.

DRAFT

- 6 -

(1) disrupting plans for using force or violence; or

(2) preventing access to, or rendering inoperative weapons, expiosives, or other instrumental1ties of planned violence.

C. Preventive actions shall not include:

(1) committing or instigacing criminal acts;

(2) disseminating information for the purpose of holding an individual or group up to scorn, ridicule, or disgrace; (3) disseminating information anonymously or under a

false identity; (4) inciting violence.

D. Preventive action by the FBI, short of prosecution, to obstruct the use of force or violence shall:

(1) be undertaken only with the express written approval of the Attorney General, based upon a written request describing the force or violence to be prevented, the preventive action to be undertaken (which shall be the minimum necessary

to obstruct the force and violence), and the justification for the preventive action; provided that, in circumstances of immediate danger, pre­ ventive action may be taken by the FBI upon the

oral approval of the Attorney General or his designee for a period of 24 hours, within which period written justification must be submitted to the Attorney General, and provided further that the preventive action shall be discontinued immediately upon declination by the Attorney General, or discontinued after 24 hours if written authorization is not 6btained.

(2) not be authorized for any period longer than is

necessary to achieve the objective of the authori­ zation, nor in any case longer than thirty days. Extensions of an authorization may be granted by the Attorney General for an additional thirty (30) days, when he deems it necessary to achieve the purposes for which the original authorization was granted.

DAAFT

- 7 -

(3) be designed and conducted so as not to limit the

full exercise of rights protected by the Constitu­ tion and laws of the United States. V. REPORTING, DISSEMINATION, AND RETENTION

A. Reporting

(1) Preliminary investigations which involve a 90-day extension under IIH,or interviews or surveillance under shall be reported periodically to

the Department of Justice. Reports of preliminary investigations include the identity of

subject of the investigation, the identity of the person interviewed or the person or place surveilled, and shall indicate which preliminary inve stigations involved a 90-day extension. FBI headquar t ers shall maintain, and provide to the Department of Justice

upon request, statistics on the number of prelimina ry investigations instituted by each field office, the number of preliminary investigations which involved interviews or surveillance under IIF(2),

the number of preliminary investiga tions that involved 90-day extensions under IIH, and the number of preliminary investigations that resulted in the opening of a full

(2) upon opening a full domestic security investigation the FBI shall, within one (l) we ek, advise the

Attorney General or his designee thereof, setting forth the basis for undertaking the investigatio n. (3) the FBI shall report the results of full domestic

security investigations to the Depa rtme nt o f Justice not later than ninety ( 90) d a y s afte r the

initiation thereof, and at the end of each year the investigation continues.

(4) where the identity of the source of information is not disclosed in a domestic security report, an assessment of the reliability of the source shall be provided. (5) the FBI shall promptly notify the i ttorney General

when preventive action is undertaken, and sha ll report the results thereof within thirty (30) days of initiation, or earlier as required by the Attorney General.

107.

108.

I'W\F'T

- 8 -

(6) the Attorney General shall report to Congress, at least annually , on the use of preventive action by the FBI.

B. DLssemination

(1) Other Federal Authorities

The FBI may 'disseminate facts or information relevant to activities described in paragrap h IB to federal authorities when such information:

(a) falls within investigative jurisdiction;

(b) may assist in preventing the use of force or

violence; or

(c) may be required by statute, interagency agree­ ment approved by the Attorney General, or Presidential directive. All such agreements and directives shall be ptiblished in the Federal Register.

(2) When information relating to matters not covered by paragraph IB is obtained during a domestic security investigation, the FBI shall promptly refer the information to the appropriate federal authoritie s if it is within their civil or criminal

jurisdiction. (3) State and Local Authorities

The FBI may disseminate facts or information rela­ tive to activities described in paragraph IB to state and local law enforcement authorities when such information:

(a) falls within their investigative jurisdiction;

(b) may assist in preventing the use of force or

violence; or

(c) may protect the integrity of a law enforcement agency.

DRAFT

- 9 -

(4) when information relating to serious crimes not covered by paragraph IB or IC is obtained during a domestic security investigation, the FBI shall promptly refer the information to the appropriate

lawful authorities if it is within the jurisdiction of state and local agencies.

(5) nothing in these guidelines shall limit the authority of the FBI to inform any individual(s) whose safety or property is directly threatened by planned force or violence, so that they may

take appropriate protective safeguards.

(6' the FBI shall maintain records, as require d by

law, of all disseminations made outside the Department of Justice, of information obtained during domestic security investigations.

C. Retention

(1) the FBI shall, in accordance with a Records

Retention Plan approved by the National Archives and Records Service, within years after closing domestic service investigations, d e stroy all information obtained during the investigation,

as well as all index references t hereto , or transfer all information and index to the

National Archives and Records Service.

NOTE:

NOTE:

We are not yet certain whether empirical data exists to help d e fine a p e riod of

retention f or information gathe r ed in p re­ liminary or full investigations. Wh a teve r period is determined should t ake int o account the retention period fo r o t he r categories of information (e . g ., ge neral

criminal, crime, and backg r o und

checks); since we have not y e t consi dered these areas we cannot fi x a pe riod fo r

retention at this time. It may also be possible to establi s h a

sealing proce dure to preserve invest i ga­ tive records for an interim period pr ior to destruction. Afte r being s ea l ed , a c cess

would be permitted only under controlle d conditions.

109.

110. - 10 -

(2} information relating to activities not covered by paragraph IB or IC, obtained during domestic security investigations, which may be maintained by the FBI under other parts of these guidelines, shall be retained in accordance with such other provisions.

(3 ) the provisions of paragraphs one (1), and two (2)

above apply to all domestic security investigations completed after the promulgation of these guide­ and apply to investigations completed prior

to promulgation of these guidelines when use of these _files serves t0 identify them as subject to destruction or transter to the National Archives and Records Service.

(4) when an individual's request pursuant to law for access to FBI records identifies the records as being subject to destruction or transfer under paragraph one (1), the individual shall be furnished all information to which he is entitled prior to destruction or transfer.

HANDLING DISSEHINATION OF UNSOLICITED INFOru·tl\TION

I. CO LLE CTION OF INFOR}ffiTION

A. Initiation

1. Unso l i.ci ted information of many kinds is sent to the FBI including:

a. inforrrtation per-taining to matters within the FBI's investigative jurisdiction.

b. information pertaining to matters within the investigative jurisdiction of anoth2r federal agency, or of a state or local

agency.

c. accusations of wrongdoing or immoral conclu.ct not amounting to a violation of la\·1, against elected and appointed officials, public e mployees, and prjvate citizons.

2. Such unsolicited information is received from several sources:

a. it is volunteered by citizens who are being

intervie\•Jed during investigations conc2rnin::; an unrelated subject matter.

b. it is vol un teercd in telephonic and vn::- it ten comn1unica tions frmn indi viduuls and organizations.

111.

c. it is received from FBI confjdenti Rl informants.

NOTE: Arrest and fingerprint info rmation forwarJed to the FBI's Identif i cation Di vision is not included in these guidel ines .

112.

--·2-

II. RETENTION AND DISSEr·1INATION OF INFORMATION A. FBI Jurisdiction

1. Unsolicited i n formation relating to matters within the FBI's jurisdiction shall be retained in accordance with the FBI's Records Retention Plan. Such information may be indexed to in its

subsequent'retrieval. B. Other Federal Agencies

1. When unsolicited information relating to matters within the civil or criminal jurisdiction of another federal agency is received the FBI shall:

a. promptly refer the information to the appropriate federal agency;

b. where practicable, advise the individual providing information of the referral unless such notification would likely with investigation of the matter alleged;

c. re·tain such information in accorda nce its Records Retention Plan, along \vith a record of the dissemination.

2. tfuen unsolicited information alleging wrongdoing or immoral conduct, not amounting to a viola tion of law, by elected or appointe d or

public employees is received the FBI shall:

a. inform the information

that the FBI has no appare nt juris diction in the matte r and the refor e tuke any

investigative action; b. advise the individual providing inf ormat i o n that the y may conta ct some othe r app ropr i a t e agency if the y so choose ;

c. dest roy such info rTilCl tio n a fter n i n c=t y ( 9 0)

days without recording i t in the gene ra l indices.

NOTE : This section is not c onsi stent with

prov i sions of EO 10450 as now a ppl i ed

by th e; F.3I .

-3-

C. State and Local Agencies

24775177-5

1. When unsolicited information relating to serious crimes Hithin the jurisdiction of state or local agencies is received the FBI shall:

a. promptly refer the information to the appropriate lawful authority;

b. where practicable, advise the individual providing information of the referral unless such notification would likely interfere with investigation of the matter

alleged;

c. retain such information in accordance \•li th its Records Retention Plan, along with a record of the dissemination.

2. vmen unsolicited information relating to non­ serious crimes and law violations* within the jurisdiction of state or local agencies is received the FBI shall:

a. inform ·the individual providing information that the FBI has no apparent jurisdiction in the matter and therefore cannot take any investigative action; b. advise the individual providing informa tion

that they may contact some other appropriate agency if they so choose;

c. destroy such information after nine ty (90) days without recording it in the general indices. NOTE: *e.g., drunkenne ss, vagra n c y, loite ring

disturbing the pea ce, di s o r d erly con d nct , adultery, fornica.tion,and consen sua l homosexua l acts, false fire a lar m, non­ specific charges of suspicio n o r investi ­

gation, traffic violations, a nd j u v e nile delinquency.

113.

114.

-4-

D. Other Allegations

All accusations of wrongdoing or immoral conduct received by the FBI which are not otherwise provided for in these guidelines shall be destroyed within ninety (90) days without being recorded in the general indices.

E. Ap p licability

These guidelines are effective as of the date of their promulgation except that, the pro­ v{sions of paragraphs B 2(c) and C 2(c) apply to information received prior to the promul­ gation of these guidelines \·lhen use of FBI files serves to identify them as subject to destruction.

INVESTIGATIONS FOR THE HOUSE

I. COLLECTION OF INFORL'-1ATION

A. Initiation of Investigation

1. White House investigations involving file reviews or full field investigations conducted by the FBI shall be initiated only to ascertain facts and information relevant to the suitability of persons

being considered for Presidential appointmeni; staff of the Executive Office; clearance for access to classified information; or service at the White House or other places under the protection of the

U.S. Secret Service in connection with its duties to protect the President and the Vice President of the United States. ·

2. White House investigations involving file reviews or full field investigations shall be initiated as follOVJS:

a. the President of the United States, and the Counsel or Associate Counsel President may initiate directly with the FBI. b. the head of an Executive Department or a

designee may request the FBI to conduc·t \"Thi te House inves Ligations \vhen by

agreements with the Attorney Th e se

agree:nen·ts shall designate by title all authorized to request House inquiries ,

shall be consistent with the provisions of

115.

116.

-2-

these guidelines, and are to be published in the Federal Re gister.

3. Reque sts for White House investigations involving r e views shall be made or confirmed in writing;

the official initiating the request;

identify the person under investigation for appointment, clearance or s e rvice; and the purpose of the investigation.

4. Reque sts for h'hi te House investigations involving full field investigations shall be or confirmed

in \vriting; specify the official initiating the investigation; identify person under investi­ gation for appointment, clearance, or service; and contain an assurance that such person has con­ sented to the investigation with the knowledge tha·t facts or informa·tion gathered shall be retained consistent with these guidelines.

1. White House inves tigations involving file reviews or full field investigations must be thorough, precise , and fair.

2. Persons interviewed during White House full field investigations shall be toJ.d that the individual under investigation is being conside red for a position of trust involving the Government. Th e name of the or agency initiating the

i nvesti.gation 1 or the position for Hhich t he individual is b e ing considered s hall not b e dis­ closed unless spe cifically by the

reques ting official.

3. Subj eeL to the Free dom of Infonn ::t tion l\ct CJ. nd Privacy Act of 1974, persons intervic\'/Cd during I·Jhj_tc Hous e full f i c ld inve st igo. Lions mety b e th 21. t, t:o

the ex t e nt p e rmitted b y l a \·.' , infocma tion i d <.2 nli.fyin g

such p e r::;on s \·Till kopt confide. nti ::t l.

-3-

4. Wh e re a person is the s ubject of a subs equent

\\"hi te Hous e full field investigation, infoma-tion c o n t a ine d in the e a rlier r e port reflecting

advers e ly on the person shall be re-investigated, where such inquiry is likely to yield information releva nt to the current investigation and where such inquiry is practicable.

C. Re porting

1. Information obtained during White House file reviews or full _field inves tigations shall be furnished to the initiating authority and/or the White House. The FBI shall retain a record of persons to \vhc_n such information is furnishe d.

2. Any investigative efforts to determine the truth or falsity of reported derogatory _allegations or information shall be describe d.

3. Where the identity of the source of information is not reported in a White House file review or full field investigation, an a ssessment shall be provided of reliability of such sour c e .

II. DISSEMINATION &1\JD RETENTION OF INFORi'LZ\TION

A. Retrieval

1. The FBI shall retain a record o f all i n forr:w.t ior-t

gathe red during the course of White House investigation s consis tent wi t. h these guide l ines .

2. Information obtained during thsse i nves t i g a t i ons may be indexed in such a as to in

its subseque nt retrie val . B. Access

1. The Dire ctor of the FBI, !:';h ul l ins u re' that

117.

to vth i te Hons8 investiga t ive fi l cs under his c ont r o l

is r e st.ricte cl, C1!1 c1 th

tai!1e d over s u c h f i l e s l imitin g t h 2i r usc to

pur p ose. Such c o ntro l s s ha l l j nc l udc r ecord of the

118 0

-4-

identity and organizational unit of officials using \'lhite House investigative files, as \·Jell as the dates these files are issued and returned.

2. Officia ls to whom White House file review and full field investigations reports are furnished sha l l insure that internal access thereto is res t ricted to persons directly involved in making Pres idential appo i ntments; determining Executive Office staffing; granting clearance to clas sified

information; or approving service at the White House or other place under the protection of the U.S. Secret Service as described in these guide lines. A record shall be maintained of the identity and

organizational unit of officials reque sting access to White House investigative files, as \'lell as the dates these files are issued atid returned.

C. Dissemination

1. Where during the course of a White House full

field investigation the FBI finds some indication tha·t the per.son under investigation may h a ve corTh --rli tted a crime or other violation of la'.·l the FBI shall notify the initiating official thereof; and either investigate the crime if within its

jurisdiction or refer the facts or information of the possible violation to appropriate lawful authorities for determination.

2. No subsequent di s semination sha ll b e made . by the FBI of the results of Hhit.e Hous e full field

investigations or file r eviews, conducted f or the incumbent Administration, or of p e rsons in the Administration, without the e xpress approva l of the President, Counse l, or Associate Counsel to

the Pr e s ident.

3. E x e c u t i vc r e ceiving F DI r e por t D

of White House file revie\·Js or full fi e ld inv es­ tigu t i ons shull not reproduce o r disse minate these mutcrials o u tside the D:;partmen t the: exp r ess consent of FHI. Suc h

mu s t be p redi c ated u pon th ::.' of an officia l

aut.ho:. izcd b y these guidelines to i ni t i.atc u

Wh ite House inves t i g ation, a n d on l y f o r a

-5-

authorized by these guidelines.

4. The FBI and Executive Departments receiving reports of White House file reviews or full field investi­ gations shall maintain a record of all dissemination of these materials to other agencies.

NOTE: We may want to request the FBI (through technical means) to disseminate reports in a form which will inhibit unauthorized reproduction and/or further dissemination.

D. Retention of Information

1. Information obtained during White House file reviews or full field investigations shall be retained at FBI headquarters and at _FBI field offices as prescribed by the FBI Records Retention Plan.

2. Results of White House investigations maintained by the FBI shall be destroyed years after _

completion of the investigation subject to the following conditions:

a. Files and information dete rmined by the Archivist of the United States to be of historic interest shall be transferred to the custody of the National Arch i ves and Re cords

Service investigation. years af·ter ·the comple tion of the

b. Files and information relat ing to perso ns wh o have been reinvestigated ma y b e r e taine d _ years from the date of the l atest

investigation.

3. Department receiving FBI r eport s o f Whi.t e

House file reviews or full fi e l d invest i gati ons s hall destroy such reports within ninety (90) day s a f t er receiving them, unles s notice in WTi tin g is g iven to the FBI that an additiona l p e riod o f t ime , not

exce eding ninety (90) d a y s , is ne eded t o

a d e ci s ion relating t o t h e \-Jhite House invc :.3ti c_; ation.

119.

" ":·. ·

120.

-6-

4. The provisions of paragraphs two (2) and three (3)

above apply to all inquiries completed after the promulgation of these guidelines. The provisions of paragraph two (2) apply to inquiries completed prior to promulgation of these guidelines when use of these files serves to identify them as subject

to destruction or transfer to the National Archives and Records Service.

5. When an request pursuant to law

for access to files pertaining to him identifies files as being subject to destruction or transfer under paragraph two (2), he shall be furnished all to which he is entitled prior to de­

struction or transfer.

NOTE: The primary reference of "pursuant to laH" in this paragraph is to the Privacy Act of 1974, which specifically authorizes access to background investigation files.

INVES'.C'ICA'l':LONS FOR CONGEt-:SSIONAL AND JUDICIAL* STAFF

I. COLLECT I 0.? INFO?]·J."\TIO"U

A. of Investigation

1. File reviews and full field investigations conducted the FBI, regarding congressional and judicial staff personnel, shall be initiated only to ascertain facts and

relevant to the suitability of

persons being considered for staff appointments or for access to classified infonnJtion.

2. Pn_ rsuo.nt to formal agreements 1:1i·th th2 A·tt.orney General, the FBI may be requeste0 to conduct file revie,;.;s and· full field invest:'._ga·tions by the of the Appropriations and Judiciary

Comsi ttees of thE! House of :Represcntat.i vcs, ·the Appropriations, Armed Forces, Foreign Relations, anc1 Jl.,_diciary Com.--nittecs of the Sena·te, the Joint. CorcY>ni tt.·.ec on A·tomic Eners;y, and other

commit of t.he aut.hor izcd by

resolution, as· 'dell as the Director of the Aclmini::--:trativc Office of the U.S. Court:s. Agreer:<:.:nts nnde \·Ji th ·the Z\ttorncy C2nero.l sha.l:L be \·/5_th provi::-;io_;ls of

Regjstc:r.

3. HC.C]Lcc:::;·L:::..; fo:r file by U1 C.c FBI

con} res s ·Lon.::.:.l a n-:.1 judi c :i.al s taf :l' b e;

or confirm-::cl in ccnc.l sL._dl s c: t .L o rl.:.i1

the of

* Ir1c;]_ t-..CJ.c j _ t i ort s uc i't c.l s LJ r1 i S -: .-_cl·L -.c, i l- r ;_l

FcCtc-::rc.:l c :i!: I F 0- ( :_ c·>j ' c1 l

Court Zlnci P r ob:tLi0;1 Of'f jcc:<. .

121.

....

-2-

4. Requests for full field investigiltions by the FBI shall be made or confirmed in ting,

and shall contain an assurance that the person under investigation has consented thereto with the knowledge that facts or information gathered shall be retained consistent with these guidelines.

NOTE: We may want the initiating agency to notify the person under 6onsideration that an investigation is being conducted.

B. Investigation

1. Congressional and judicial staff investigations involving file reviews or full field ·investigations must be through, precise, and fair.

2. Persons interviewed during . congressional and judicial staff full field investigations shall be told that the individual under investigation is being considered for a position of trust involving

the government. The name of ·the officia l the investigation, or the position for which the individual is being considered shall not be disclosed unless specifically authorized by the official.

3. Subject to the Freedom of Information Act and Privacy Ac-t of 1974 1 persons interviewed dur ing congressional and judicial staff full field investigations may bs assured that to the ezt cnt. permitted by laH information.

identifying such persons Hill be kept confidential.

4. \'lh e rc a person is the subject of u

congressional or judicia l stilff full field inves tiga­ tion, informa-tion contained .in the report

reflecting on the E:> h a ll b e

gatcd, \·?her e such insuir.y Jikc ly to .Yield

relcv<:mt to the current such

inC]u:i.ry is practic

123.

C. ting_

1. Information obtained during or

judicial staff file reviews or full field iw,restigations shnll be furnished to the :i.nit.iat:ino authority. The FBI shall retain a record of persons to whom such information is furnished.

2. Any investigative efforts to determine .the truth or falsity of reported derogatory information or allegations shall be described.

3. Where the identity of the source of information is not reported in a congressional or judicial staff file review or full field investigation, an assessment shall be provided of the reliability

of such source.

II. AND RETENTION OF INFORI·1Ar.i.'ION

A. Retrieval

1. The FBI shall retain a record of all information

gathered during the course of congressional and judicial s·taff uith

these guidelines.

2. Informa tion obtained during the se may be indexed in such a manner as to in

its subsequent retrieval. B.

1. rl'he Direct.or of the FDI, i11SU"CC th.:J.L:

to and judicia J. staf f

fil <.:.:s cont.rol r est.ric ::·.e:d, e:-.. nc1 ·th 21 t

s ·tri!:1q2n t. 0.r2 !!\c1in l: .::.i.nc: ci o v c·r :files

lim i. tin

sh

and orguniza.t·.ion< '-1. unit. o C offj :n::: ;_{u <:::;t.ing to ·the:sc fi l e:s , a. :; i ·ii": l.l (1::> the

..

124.

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2.. Cor:Lt:ni ttee Chairman of the Congress, and the D:i. ::::e ctc.r of the Administrative Office of the U.S. Courts, to staff file review and full f ield invc s ti­

g 2tion reports are furnished, shall insure that internal access thereto is restricted to persons d i rectly involved in making congressional and judicial staff appointments. Information ih staff

file review and full field investigation repor ts may be made available f?y Corruni ttee Chairme n to per­ sons directly involved in granting clearance for access to classified information to staffs of

Congressional Corr.mittees. A record shall b e maintaine d of the identity and organizational unit of officials requesting access to congressional and judicial staff investigative files, as well

as dates such files are issued and returned .

C. Dissemination

1. Where during the course of a congressional or judicial staff full field investigation, the . FBI finds some indication that the person under investigation may have comnLi. ·tted a crime or some other violation of law the FBI shall notify the

initiating authority thereof; and e ither investi­ gate the crime if Hithi:n its jurisdiction , or rc£ c c the facts or informet.tion of possibl8 violation t o appropriate lawful authorities for determinaton.

2. Chairmen of the Congress rec e iving

staff file revie w and full field reports, shall no t reproduce or C.e st: c h

repo:c ts outside c omc!littcc 1 ·7 _i. ·t.:.hont the;

of th:? FBI. Suc:ll b e

prec15ca. tea upo;l of an o ff ic:i al au thor izec1

by 9'-

judicial staff invcstiydtion, and only fo r a purpo s e aut L oci zec1 by the s 2 gu i c!.eJ

3. The Dircctoc of th e l\Clntin .i t- :co. C.ivc 0 r .lee o f: tl1 2

u.s. Courts Jll<.cy f i. l r' cc . .r ic··.: .:. 1n d

full fic1d i.JY\/ C·_ ; i_. i. <:_; . c t :i o;I :o :> p() r:L::-; Lo d i. r c ct1 '/

-5-

involved i:n judicial sb ""l ff appointments.

No further dissemination o£ such reports shull h :c; made \•li thout the express cons ent of the FBI.

4. The FBI 1 Com.mi tlee Chairmen of tll.e Congress, t1, . ..::,

Director of the Administrative Office of the U.S. Cou:r-ts shall maintain a record of all dissemination of staff file review and full field investigation reports maJe pursuant to para graphs two (2) and

three (3) above.

D. Retention of Information

1. Information obtained during- congressiona l and judicial staff file and full field

investigations shall be retainBd at FBI headquarters and FBI field offices as prcs6ribcd by the FBI Records Retention PJan.

2. Results of congressional. a.nd judicial st.c-.:.f£ investigations maint2ined by thc :?BI shall b2 destroyed [-period of time] after completi on of the investigdtion subject to the following condi­

a. Files and informntion d e termined by th2 Archivist of the Unite d Sta t es to b 2 of

historic interest shall b 2 t r ans f erred to the cus·tody o£ the rZu.ti o na l l\rc h i. vcs a nd

Records Service [-period o:E t i me ] c-,£ ce:r t h 2 completion of the invc s tig a tio r1,

b. Files anc1 ir:forn1.::-tt.io::1 r c l a t.1.ng ·to employed by the Cove: rnL:..::nt ( C O!lSJ _i

s ta f £) , ';·:ho hoJc1 cl E-.:d r a r;c::.:: s tor a.cc·:.: to

classifie·-] i n Eo :cn .::.Uon, Ftc:y r ..::c L:. .:J5.:,:·c1 beyond I - p ..:' _-ci. o :l. (J r in -:; J :; () l O:F; C! ; ; t. r'

TI-:OT E :

ernploym:::- n t ctnd 0. c c 0s:j c c1D t. :i _;: nte;;. notice t hat a c owr: :l Llcc

t erm:i.n rtLccJ C i il l1luytt:2T! l-:. o r ll1e: F'BT

sh :.::.l.1 i:.i.!.c:::...:: - ... -iLh i l "1. ni.nC':y (9 0 )

d a y ::;, 1.m l css [-pc:1: i.e> d c,f" L.i; :(.'] ll c: V(.• nc:1L

f , C] l - C Il l_· t .t·l t l! ... t· r _) -,_ · !} (.; l! ., }_J

L l "( : .. i."() L.t : ['[) r

125.

126.

-6-

of termin2.tion of staff employment or access to classified information.

3. 'l'ne Administrative Office of the U.S. COiJrts, 2.nd of Commi ·ttees v1ho receive

FBI file reviews or full field investigation reports on prospective staff personnel, shall such reports ,.d. ·thin ninety (90} days after

them, unlE?ss no·tice in \·Triting is givQn

to the FBI that an additional period of tiwe, not exceeding ninGty {90) days, is needed to complete a decision relating to the appointment or clearance.

4.. provisions of paragraphs tHo { 2) and three ( 3)

above apply to all inquiries completed after the promulgation of these guidelines. The provisions of paragraph tHo (2) apply to inquiries prior to promulgation of these guidelines when use of these files serves to identify them as s!Xbject

to destruction or transfer to the Natior1al Arch:i ves and Record Service.

When an individual's request pursuant to law for

access .. to files pertaining to him identifies files ·as being subject to destruction or transfer under paragraph t\·:o ( 2), he sh2.ll be furnished all information to \·:hich he en titled prior to

destruction of transfer.

NOTE: The prlma.r_y reference of "pursu2nt t .o Ja\·.'" in this section is to the Privacy Act of

1974, -.;·;hich sp0c.i.fically to

bacb]round inve::;tigation f:i.J cs.

TESTIMONY

OF

THE HONORABLE EDWARD H. LEVI ATTORNEY GENERAL OF THE UNITED STATES

BEFORE

THE SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES

9:30A.M.

WEDNESDAY, FEBRUARY 11, 1976 WASHINGTON, D. C.

J '

127.

I .• • ' •

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128.

I welcome the opportunity to talk again with this

Subcorrnnittee. During the months since I last testified

here there has been much discussion about various incidents

which I described to you last February 27 involving the

Federal Bureau of Investigation.

The FBI's domestic security investigations have

received the most attention. And much of it has centered on

COINTELPRO, which was revealed to this Subcommittee before I

arrived at the Department of Justice and about which I

provided further details by letter on May 17, 1975, when they

came to my attention.

From the be8inning, this Subcommittee has been interested

in the FBI's domestic security -investigations. But it has

also been concerned with the whole range of FBI practices.

During my last appearance before this Subcommittee I promised

to start work preparing guidelines to govern FBI practices in

the future. The preparation of those has been slow

and difficult--much slower and more difficult than I had

realized. The problems are complex and important--as important as any now facing the Department of Justice. I had hoped when

I first appeared before this Subcommittee that I would be

able to present to you at my next appearance a complete set

- 2 -

of guidelines. This has proven impossible. But progress

has been made in drafting guidelines in several areas. You

have been provided with the most recent drafts of proposed

guidelines covering White H6use inquiries, investigations for

congressional staff and judicial staff appointments, the handling

of unsolicited mail, and domestic security investigations.

These draft guidelines cover many of the areas that have been

of greatest concern to this Subcommittee.

Because the statutory base for the operation of the

FBI is not satisfactory, I know the members of this Subcommittee

have been considering what changes it should enact. The

guidelines may be helpful in these deliberations. Before

discussing briefly each of the draft guidelines you have

I would like to make a few points about the question of

statutory changes .

seen,

The basic statutory provision concerning the FBI is

28 U.S.C. 533 which provides that the Attorney General may

appoint officials "(1) to detect and prosecute crimes against

the United States; (2) to assist in the protection of the

President; and (3) to conduct such investigations regarding

official matters under the control of the Department of Justice and the Department of State as may be directed by the Attorney

General." In addition, 28 U.S.C. 531 declares that the Federal

Bureau of Investigation is in the Department of Justice . There

129.

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. ' .

.

130.

- 3 -

are other statutes, such as the Congressional Assassination,

Kidnapping and Assault Act, which vest in the Bureau certain

special responsibilities to investigate particular criminal

violations. There are also Executive Orders and Presidential statements and directives placing investigatory responsibility

upon ·the Bureau .

In some areas--such as domestic security--the simple

statutory base I have just described is overlai4 with a

series of executive orders (for example, Executive Order 10450 concerning the federal loyalty program) and directives dating

back decades. The simplicity of the statute vanishes when

placed in this setting. Moreover, the authorized work of the

Bureau in terms of crime detection must be seen in the context

of statutes passed by Congress such as the Smith Act, 18 U.S.C.

2385, the seditious conspiracy law, 18 U.S . C. 2384, and the

rebellion and insurrection statute, 18 U.S.C. 2383. I would like to begin the discussion today by suggesting a few considerations that should be taken into account in deciding

what statutory changes should be made to define more clearly

the areas of the Bureau's jurisdiction and the means and

methods which the Bureau is permitted to use in carrying out

its assigned tasks. First, there is a temptation to resort to having the

courts make many difficult day-to-day decisions about investigations.

When a Fourth Amendment search or seizure is involved, of

- 4 -

course, recourse to a court for a judicial warrant is in most

circumstances required. But the temptation is to extend the use

of warrants into areas where warrants are not constitutionally

required. For example, as you know it has been suggested

that the FBI ought to obtain a warrant before using an informant.

Extending the warrant requirement in this way would be a major

step toward an alteration in the basic nature of the criminal

justice system in America. It would be a step toward the inquisitorial system in which judges, and not members of the executive, actually control the investigation of crimes. This

is the system used in some European countries and elsewhere,

but our system of justice keeps the investigation and

prosecution of crime separate from the adjudication of criminal

charges. The separation is important to the neutrality of the

judiciary, a neutrality which our system takes pains to protect.

There is another, related consideration. To require

judges to decide whether particular informants may be used in

particular cases would bring the judiciary into the most important and least definable part of the investigative process.

Even disregarding the problem of delay to investigations and

the burden that would be placed upon courts, we must ask our­

selves whether the control of human sources of information--which involves subtle, day-to-day judgments about credibility

and personality--is something judges ought to be asked to

undertake. It would place an enormous responsibility upon courts

which either would be handled perfunctorily or, if handled with

care, would place a tremendous burden of work on federal judges.

131.

. ) ..

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132.

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In drafting statutory changes, it must be remembered

that rigid directions governing every step in the investigative

process could sacrifice the flexibility that is necessary if

an investigative agency is to adapt to the diverse factual

situations it must face. Rigid statutory provisions would invite litigation at every step in the investigative process. Such litigation could very well be used by clever individuals

to frustrate legitimate law enforcement efforts without

achieving the measure of control for which the statutes were

enacted. As Lord Devlin has said, "As soon as anything has

been codified, there is a lawyer-like--but sometimes unfortunate-­

tendency to treat the written word as if it were the last

word on the subject and to deal with each case according to

whether it falls on one side or the other of what may be a

finely drawn boundary." These considerations do not in any way mean that Congress

ought not act to clarify the FBI's statutory base. I want

to emphasize my belief that Congress should do so. The

problems I have mentioned are surmountable. The Department of

Justice is ready to work with Congress in drafting statutes that will meet the issues that have been raised about the responsibilities of the FBI. The proposed guidelines are part of our effort to

cooperate with Congress in meeting its l egislative responsibility.

Some of what has been proposed in the guidelines may be useful

- 6 -

in drafting statutes. Other parts of the guidelines may

best be left to regulations or Executive Orders. As I said

in my earlier testimony before this Subcommittee, consultation with you and with other Congressional committees is an

important part of the process by which these guidelines can

be ¥erfected. There will not be complete agreement about what

has been proposed--indeed, within the Department of Justice

there is some disagreement about some provisions--but this is

inevitable and is a necessary part of the road we must travel. We welcome discussion, which is also essential. Let me then

briefly describe the four proposed guidelines that have been substantially completed and have been provided to you. Others-­ which will cover criminal investigations, use of informants,

counter-intelligence investigations and other areas--are

currently being drafted by a committee within the Department

chaired by Mary Lawton, Deputy Assistant Attorney General in

the Office of Legal Counsel, and composed of representatives

of the Civil Rights and Criminal Divisions, the Office of

Policy and Planning, the Federal Bureau of Investigation, and

the Attorney General's Office. As new guidelines are drafted

in these areas they, too, will be made available to you.

When I testified before this Subcommittee last

February I described a number of incidents which occurred

in a period dating back more than a decade in which the

FBI was misused for political purposes. I noted that in

most cases we discovered where the White House was involved

133.

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134.

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the initiation of an improper request was made by a White

House staff member--acting in the President's name--to a

counterpart in the FBI. These requests were often made

orally. House staff members in a number of different

positions were involved .

As you know, the FBI conducts background investigations

of persons being considered for appointment by the President

either to positions in government departments or agencies or to the White House staff. The FBI also checks it files and

sometimes conducts further investigations of persons who will

be in contact with the President or who will be given access

to classified information. The guideline concerning White

House inquiries sets up a is already

substantially being followed--which requires that requests for all such investigations be made in writing by the President

or the Counsel or Associate Counsel to the President. Under

the proposed guidelines the request for an investigation would

have to certify that the person to be investigated has

consented to the investigation with the knowledge that information

gathered in the investigation would be retained by the FBI.

The consent provision is important as a mechanism for preventing

investigations in fact sought for political or other purposes

from being initiated in the use of background investigations.

It is also important as a protection of the privacy interests of persons to be investigated . There are provisions requiring

- 8 -

that access to information provided to the White House be strictly limited to those directly involved in the matter for which the investigation was initiated. Custodians of

the files in the White House would be required to keep a

list of all persons who were given access . The proposed guidelines concerning congressional staff and judicial staff

appointments take the same basic approach as the guidelines

concerning White House inquiries.

In addition the White House has been following the

practice, which perhaps should be embodied in the guidelines, of directing through the Attorney General's Office all requests

for investigation or for material from Bureau files except

routine background checks. This was not the policy in the

past. It reflects the Attorney General's role, which I

described to you last year, as a lightning rod to deflect

improper requests.

The proposed guidel ines on the White House inquiries

and on other matters accept the proposition that FBI files

should be destroyed after a reasonable period of time. The

deadlines for destruction of files have not yet been specified,

however, because for administrative reasons these deadlines

must be coordinated throughout the FBI file system.

The last time I appeared before this Subcommittee many

members were concerned about the handling of unsolicited

derogatory information received by the FBI . Unsolicited

135.

I .

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136.

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information can be very valuable in law enforcement, as you

know, but the concern has been that allegations about the

private lives and habits of individuals have found their way

into FBI files where they may remain for great lengths of

time as a silent but troublesome invasion of individual

privacy. In my testimony of last February 27, I suggested

that on balance it would be desirable to devise some procedure under which some information in Bureau files would be destroyed.

The guidelines concerning unsolicited information set up a

procedure for the early destruction of such information when

it does not relate to matters within the jurisdiction of the federal government or does not make an allegation of a serious

crime within the jurisdiction of state or local police agencies.

The draft guidelines provide for destruction of such unsolicited

information within 90 days. The period after which other files

would be required to be destroyed may vary. Information collected

in background investigations might be retained long enough to avoid the need to repeat investigative steps as an individual

moves from job to job within government or out of government

and later back in. On the other hand, destruction of files

developed in preliminary domestic security investigations may

be required quite quickly if information indicating criminal

conduct is not developed.

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Finally I come to the proposed guidelines concerning the controversial area of domestic security investigations.

I have already testified about these guidelines before the

Senate Select Committee on Intelligence . Since that testimony,

several changes have been made in the draft. You have been

provided with the latest draft of these guidelines. There

are several important features I would like to describe.

First, the proposed domestic security guidelines proceed from the proposition that government monitoring of

individuals or groups because they hold unpopular or controversial

political views is intolerable in our society . This is the meaning of the warning issued by former Attorney General

Harlan Fiske Stone, as I read it. Stone said, "There is always

the possibility that a secret police may become a menace to

free government and free institutions, because it carries with

it the possibility of abuses of power which are not always quickly apprehended or understood. .It is important that

its activities be strictly limited to the performance of those functions for which it was created and that its agents themselves

be not above the law or beyond its reach. .The Bureau of

Investigation is not concerned with political or other opinions

of individuals. It is concerned only with their conduct and

then only with such conduct as is forbidden by the laws of

the United States. When a police system passes beyond these

limits, it is dangerous to the proper administration of justice and to human liberty, which it should be our first concern to

cherish."

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The proposed guidelines tie domestic security

investigations closely to the violation of federal law.

I realize there is an argument as to whether the guidelines

tie domestic security investigations closely enough or too closely to the detection of criminal misconduct. But the

main thing in my opinion is that the purpose of the investigation

must be the detection of unlawful conduct and not merely the

monitoring of disfavored or troublesome activities and surely

not of unpopular views. This is accomplished in the guidelines

by requiring some showing that the activities under investigation

involve or will involve the use of force or violence and the

violation of federal law. I must admit there is a problem--

in part a drafting problem but perhaps more than that--of how

to describe or set forth a standard which further specifies what

.is meant by "some showing.''

Because investigations into criminal conduct in the

domestic security area may raise significant First Amendment

issues,the proposed provide for compendious reporting

on such investigations to the Department of Justice. In general

the guidelines provide for a much greater involvement by the

rest of the Department of Justice and the Attorney General in reviewing FBI domestic security investigations. The emphasis

upon departmental and congressional review is important, but

it must be recognized that the Bureau must have primary responsibility for controlling itself. The guidelines attempt to strike an appropriate balance. Periodic reports by the

Bureau of preliminary investigations would be required . All

- 12 -

full investigations would have to be reported to the Attorney General or his designee within one week of their opening. The

Attorney General or his designee could close any investigation.

FBI Headquarters would be required to review the results of

full investigations periodically and to close any when it appears that the standard for opening a full investigation is

not satisfied and all logical leads have been exhausted or are

not likely to be productive. Each open case would be reviewed

annually in the Department of Justice and would be closed if

no longer justified under the standards. The personal approval

of the Attorney General would be required when such sensitive

techniques as Title III electronic surveillance or preventive

action are to be used, and the Attorney General would be

required to report to Congress periodically on the instances,

if any, in which preventive action was taken. Preliminary investigations--which would not involve

the infiltration of informants into organizations or groups

or such techniques as electronic surveillance or couers-­ would be authorized only on the basis of information or

allegations that an individual, or individuals acting in concert, may be engaged in activities which involve or will

involve the use of force or violence and the violation of federal

law for one of five designated purposes. Those criminal

purposes are:

(1) overthrowing the government of

the United States or the government

of a State ;

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(2) interfering, in the United States,

with the activities of a foreign

government or its authorized represen­

tatives; (3) impairing .for the purpose of

influencing U.S. government policies

or decisions:

(a) the functioning of the

government of the United States;

(b) the functioning of the

government of a State; or

(c) interstate commerce.

(4) depriving persons of their civil

rights under the Constitution, laws, or treaties of the United States ; or

(5) engaging in domestic violence or

rioting when such violence or rioting is likely to require the use of the

federal militia or other armed forces.

Preliminary investigations would be limited to inquiries of

public record and other public sources; FBI files and indices ;

federal, state and local records; and existing informants

and sources. Interviews and physical surveillance undertaken

for the limited purpose of identifying the subject of the

investigation would be allowed, but interviews or surveillance

for any other purpose would require the written authorization of the Special Agent in Charge of the appropriate Bureau field office.

- 14 -

The draft guidelines provide that such intrusive

investigative techniques as infiltration of informants into organizations and use of electronic surveillance and mail

covers may only be initiated as a part of full investigations.

The guidelines set out the following standard for the opening

of a full investigation:

"Full investigations must be

authorized by the FBI Headquarters.

They may only be authorized on the

basis of specific and articulable facts giving reason to believe that an individual or individuals acting

in concert are or may be engaged in

activities which involve or will involve the use of force or violence

and the violation of federal law for

one or more" of the five purposes I

mentioned earlier.

A provision is also included to allow the FBI to

investigate for limited periods of time in situations in which

domestic violence or rioting not violating federal law is

likely to result in a request by a governor or legislature of a state under 10 U.S.C. 331 for the use of federal troops.

You will recogriize that the standard for opening a

full investigation proposed in the guidelines is the equivalent of the standard for a street stop and frisk enunciated by

,: • ...

141.

.. " ... .

''

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the Supreme Court in Terry v. Ohio. There the Supreme Court

wrote that in justifying a street search a police officer "must

be able to point to articulable facts which,

when taken together with rational inferences from those facts,

reasonably warrant the intrusion." In his summation of the

holding of the Court, Chief Justice Warren wrote:

We ... hold today that where a police

officer observes unusual conduct which leads him reasonably to conclude in light of his

experience that criminal activity may be

afoot and that persons with whom he is

dealing may be armed and presently dangerous,

where in the course of investigating this

behavior he identifies himself as a police­

man and makes reasonable inquiries, and

where nothing in the initial stages of the

encounter serves to dispel his reasonable

fear for his own or others' safety, he is

entitled for the protection of himself and others in the area to cortduct a

carefully limited search of the outer clothing of such persons in an attempt to

discover weapons which might be used to

assault him . (emphasis added) (392 U.S. 1, 30)

- 16 -

This standard was adopted because it requires a

strong showing of criminal conduct before a full investigation

is authorized. I should point out that a change was made

in this part of the guidelines since my testimony before the Senate Select Committee. Originally the standard had

required a showing of specific and articulable facts giving

reason to believe that the subjects of the investigation are

engaged in activities that involve or will involve force and

violence and the violation of federal law. The change to the

phrase "are or may be" brings the formulation of the

standard more closely in line with the Terry standard. The

previous language of the guidelines proved to be too close

to the arrest standard--that is, too restrictive as a

standard for the opening of an investigation. The close

correspondence of the revised draft's standard with the Terry

language gives the guidelines' formulation a foundation in the

Supreme Court's analysis of an analagous constitutional problem

which, while it involves a different area of law enforcement,

does provide a definition for the standard which is to control

Bureau activities.

The proposed guidelines go on to require an additional

consideration before a full investigation is opened. The

guidelines state:

[T]he following factors must be

considered in determining whether a

full inves•tigation should be undertaken: (1) the magnitude of the threatened

harm;

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(2) the likelihood it will occur;

(3) the immediacy of the threat;

and

(4) the danger to privacy and free

expression posed by a full investi­

gation.

This listing of factors, which has been added in the latest

draft,gives the standard a dimension and explicitness it

did not have in earlier drafts. For example, the _balancing

of the factors would require officials of the FBI and the

Department of Justice to close any full investigation even

if there is clear threat of a violation of federal law if

the threatened harm is de minimus or unlikely or remote in

time.

Finally, the draft guidelines provide a procedure to

be followed in emergency situations when action by the FBI 1to

intervene to prevent the use of illegal force and violence

may be required. This section of the proposed guidelines

has proven to be controversial, in part for fear that it

seeks to allow the FBI to engage in activities of the sort

that were involved in COINTELPRO. As I have said many times

before, the activities that went under the name COINTELPRO

were either foolish or outrageous, and the preventive action

section of the guidelines was not intended to leg itimize

such activities, nor would it do so. It was included in the

draft guidelines in. the recognition that emergency situations may arise in which human life or the essential functioning

- 18 -

of government may be threatened, In such situations law

enforcement .officials would be expected to act to save life

or protect the functioning of government. Indeed, law

enforcement officials would be condemned if they did not act.

The preventive action section of the guidelines was designed

to provide a procedure for the Attorney General to authorize

and report to Congress such activities. It was designed to

set up an orderly and careful procedure to be followed in

the case of emergency. It could be supplemented by further

rules developed by the Attorney General. Under the proposed

guidelines the Attorney General could authorize a preventive

action only when there is probable cause to believe that

illegal force or violence will be used and that it threatens life or the essential functioning of government. The Attorney General could authorize preventive action only when it is

necessary to minimize the danger, that is, when other techniques

will not work. In the latest draft of the guidelines several

specific prohibitions were included to make clear that new COINTELPRO are not to be sanctioned. Prohibited are the

commission or instigation by the FBI of criminal acts; the

dissemination of information for the purpose of holding an

individual or group up to scorn, ridicule, or disgrace; the

dissemination of information anonymously or under false

identity; and the incitement of violence. It may be that Congress will choose to prohibit any FBI efforts to intervene to prevent force or violence. But

to do so carries with it a risk and a responsibility.

24775/77-6

145.

. . ·.

... · • ,

·.

: . ... ··.

14 6.

- 19 -

The guidelines are still in the process of

revision. They are tentative. As the guidelines have

been developed they have been shown to the Chairman of this

Subcommittee. We must enunciate the differences among us

about the best words to use and then seek to resolve those

differences. But the main thrust of the guidelines is surely

the most important thing, their recognition of the need for a

program for destruction of files in the interest of privacy,

their requirement of consent from the subject of background investigations, their requirement of progressively higher

standards and higher levels of review for more intrusive

investigative techniques, their requirement that domestic security investigations be tied closely -v1ith the detection

of crime, and their safeguards against investigations of

activities that are merely troublesome or unpopular. Upon these main themes I hope we all agree.

The Department of Justice has undertaken other steps

to meet some of the issues of concern to this Subcommittee.

We have created an Office of Professional Responsibility to

investigate allegations of improper conduct by Department

personnel and to review the investigations done by internal

inspection units of agencies within the Department. We have

been trying to work out a legislative proposal to bring

national security wiretapping and microphone surveillance

under a judicial warrant procedure. On June 24, 1975, I

- 20 -

provided the Chairman of the House Judiciary Committee with

statistics concerning the use of national security electronic surveillance instituted without prior judicial approval.

Before the Church Committee I recounted the history of

national security electronic surveillance since 1940, revealing

a year-by-year count of the number of telephone and microphone

surveillances. The latest figures in this area show that in

1975 a total of 122 telephone wiretaps and 24 microphone

devices were used to overhear conversations.

We have tried to be with this and other

committees of Congress about other aspects of the past history

of the FBI and other agencies within the Department. We have

tried to reveal as much as possible about the past out of a

sense of comity and a feeling that the past problems must be

discussed in the process of creating new policy. But we have

tried also to recognize that the past is not always the best

guide to the future. As we review recent history we ma y be so

overwhelmed by it--and by our failure of memory about the social

and political forces that shaped recent history--that we will

read its lessons more broadly than we ought to. If there was

a lack of humility in the past about the perfection of our

vision of what was proper, I hope we cannot fail to recog nize

the flaws in our vision about the past and the future today.

147.

. . · . .

•.··

, '

"'! ' .,-·.:.·· .

' · .

, ., · ....

. .

148.

- 21 -

It is a challenging and interesting time, and I hope

together we can prepare ourselves wisely for the future. We

cannot escape from the responsibility of looking at the problems

we face today and are likely to face in the future.

When I testified almost one year ago I stated to this

committee--and I want to emphasize most strongly again today--that I have both a personal and official concern for the issues which face us in this area. Those issues are close to the basic

duties of the Attorney General to protect the society--its

values, and the safety of its members. I am sure that

Director Kelley will agree with me that we must clarify for

the present and for the future the kind of course to be

followed, meticulously and candidly. I believe we have already

made considerable progress in this regard. Together with

Congress legislation can be worked out and wise policy achieved .

14 9.

APPENDIX 4-K

QUESTIONS OF LEGALITY ARISING IN RELATION TO CERTAIN

INTELLIGENCE COLLECTION OPERATIONS

(a) Telephone interception

Since 1960 telephone interception has been

regulated by the provisions of the Telephonic Communication s

(Int erception ) A c t 1960-1975. This Act prohibits the

interception of any telephonic communication in its passage

over the telephone system. l 4-K-l] Subject to the

exceptions set out ins 4(2), "interception" consists of

listening to or recording, by any means, a communication passing over the telephone system, in its passage over

that system, without the knowledge of the person making the communication. [4-K-2] Exceptions from the general

prohibition are made for interception by Telecommunications

Commission officers for or in connection with certain

activities relating to installation, operation and maintenance of the telephone system and tracing certain

calls [4-K-3] or by ASIO. [4-K-4] The interception by ASIO may be carried out only pursuant to a warrant issued

by the Attorney-General, [4-K-5] or in emergency

circumstances, for a period not exceeding 48 hours, b y

the Director-General of Security himself.

4-K-1 4-K-2 4-K-3 4-K-4

4-K-5 4-K-6

s 5 (1).

s 4 (1).

s 5 (2) (a).

s 5 ( 2) (b) •

s 6 (1).

s 7 (1).

[4-K-6]

150.

2. Interceptions by Telecommunications Commission

officers, under s 5 (2) (a), are carried out with great frequency, but the number of telephone interceptions

carried out by ASIO since 1960 has not been v ery large.

ASIO appears to have complied with the provisions of the

Telephonic Communications (Intercep tion) Act, and Attorneys­

General have given proper consideration to app lications for

the issue or extension of warrants.

3. The effect of the limitation of the prohibition

to interception of a telephonic communication "in · its

passage over the telephone system" [4- K-7] not entirely

clear. It has generally been taken to mean that only interceptions from the "system" itself, in the sense of

the wires and other material working parts, are prohibited.

Thus the provisions of the Act would not be infringed by

listening, without warrant, to a communication b y means of a "bug" planted near a telephone, or by intercepting a

radio transmission of a communication between two parts of

the "system". There may be other technical methods of

interception already existing, and it may be that new

forms of inte rcep tion will be devis e d in the future, which

will not come within the present provisions of the Telephonic Communications (Interce ption) Act.

4-K-7 s 4 (1).

4. Views have been expressed that the interception

of any telephonic communication, whether in the course

of its passage over the telephbne system or not, should

be controlled. For the purpose of my inquiry, I am

concerned with this issue only as it affects Australia's

intelligence and security agencies. I have concluded that controls like the Telephonic Communications (Interception)

Act's warrant procedure should apply to interceptions by

ASIO of telephonic communications generally, whether made

during their passage over the telephone system or not.

5. This result can most readily be achieved b y

amendment of the ASIO Act. Accordingly, I shall make

no recommendations for the amendment of the Telephonic

Communications (Interception) Act.

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

6. There are numbers of modes of communications

besides telephonic ones which can be carried over systems

provided by the Commonwealth. The need to protect the

interception of them is the same as in the case of telephone

communications. Their accessibility to ASIO should be

permitted and controlled as are those communications.

Control of their interception and provision for some

accessibility by ASIO is now provided by the Tele c ommunication s Act 1975-1976 and by the regulations

made under that Act.

151.

152.

7. Section 86(1) of the Telecommunications Act

provides that a person shall not intercept, or authorize,

suffer or permit another person to intercept, or do an act or thing that will enable him or another person to intercept information passing over a telecommunications system. The expression "telecommunications system" means

a system controlled by the Australian Telecommunications

Commission, other than a telephone system as defined in

the Telephonic Communications (Interception) Act. [4-K-8]

"Telecommunications service" means a service for transmitting,

by means of electric or electro-magnetic sounds,

including speech and music, visual images, signals for the

communication of any matter otherwise than in the form of

sounds or visual images, or signals for the actuation or

control of machinery or apparatus or a service for receiving

any such soundsi images or signals by similar means. [4-K-9]

"Interception" of information consists of listening to or

recording, by any means, information in its passage over

the telecommunications system without the knowledge of the

person for whom that information is being transmitted. [ 4-K -10]

Sub-section (2) of s 86 provides that sub-s (1) does not

apply to or in relation to any act or thing done by an

officer or employee in the course of his duties for or in

4-K-8 4-K-9 4-K-10

ss 3 (1) and 8 6 ( 6) .

s 3 (1).

s 86 (4).

connection with the installation of a line, apparatus

or equipment or the operation or the maintenance of a

telecommunications system, or the identifying or tracing

of any in circumstances prescribed by the regulations.

Sub-section (3) provides that, except in the course of

his duties as an officer or an employee, an officer or

employee shall not divulge or communicate to any person,

or make use of or record, information that has been

intercepted in its passage over a telecommunications system.

8. Regulations have been made prescribing the

circumstances in which an interception may be effected, a uthorized or facilitated fo the purposes of identifying

or tracing a person. For present purposes, the relevant

regulation is 36(c) which provides that amongst the

prescribed circumstances are "the identifying or tracing

of a person under the authority of a warrant issued by

the Attorney-General or the Director-General of Security

under regulation 37". Reg 37 provides:

24775177- 7

"37. (1) Subject to sub-regulation (2), for the purposes of paragraph 36(c), the Attorney-General or the Director-General of Security may, by warrant under his hand,

authorize a person to intercept information passing over a telecommunications system for the purpose of identifying or tracing a person.

(2) The Attorney-General or the Director-General of Security shall not issue a warrant under sub-regulation (1) except -

(a) in circumstances in which, if the telecommunications system were the telephone system, he would have issued a warrant under section 6 or 7 ,

153.

154.

9.

as the case may be, of the

Telephonic Communications (Interception) Act 1960-1975; and

(b) in accordance with the conditions prescribed by that Act in relation to the issue of a warrant under

whichever of those sections is applicable.

(3) In this regulation -'Director-General of Security' means the Director-General of Security holding office under the Australian

Security Intelligence Organization Act 1956-1973; 'telecommunications system' does not include the telephone system;

'telephone system' has the same meaning as in the Telephonic Communications (Interception) Act 1960-1975."

This regulation gives rise to problems of

construction, as well as problems relating to its

operation in practice. Section 86(2) (b), which is the

statutory provision authorizing the making of the regulation, relates only to the identifying or tracing of a person (and not otherwise to the content of a communication), and

only to the doing of something by an officer or employee of

the Commission. I suggest that the obvious problems

concerning the regulation and its use would be overcome

if the Telecommunications Act, the ASIO Act or other relevant legislation expressly authorized the giving of

warrants by the Attorney-General or, in urgent circumstances,

by the DG of Security, to intercept information passing

over the relevant telecommunications system in terms similar

to those concerning the interception of telephone

communications to be found in the Telephonic Communications

(Interception} Act, and controlled the use of that

information in a similar way. I favour that course.

(c) Listening devices

10. The Commonwealth Parliament has power to make

laws with respect to the interception of telephonic

and other communications over systems which it controls.

[4- X-11] It has no general power to make laws with

respect to the interception of communications by listening

devices or "bugs", except in relation to their use in

respect of the Commonwealth's communications sytems. The

Commonwealth may, however, enact legislation regulating

the use of listening devices by ASIO. There is at present

no such Commonwealth legislation.

11. The State Parliaments have a general power to

make laws with respect to listening devices. The

Parliaments of four States have exercized this power. In

three cases special provision has been made for the use

of these devices for Commonwealth security purposes -(a} In NSW the Listening Devices Act, 1969 contains

4-K-11 4- K-12

a prohibition against the use of devices

to hear, record or listen to a private

conversabion. [4-K-12] This prohibition

s 5l(v) of the Constitution. s 4 (l}.

155.

156.

4-K -13 4-K -14 4-K -15

does not apply in certain specified

cases, including cases where the

person using the device does so 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

given to him by a delegate appointed

in writing by any such Minister to give

authorizations to use such devices.

[4-K-13]

(b) The Victorian Listeni ng Devices Act 1969

likewise contains a general prohibition

against the use of listening devices,

subject to certain exemptions. [4-K-14]

The relevant exemption is where the

person using the device is employed in

connection with the security of the

Commonwealth and is acting in the

performance of his duty under an Act

passed by the Parliament of the

Commonwealth relating to the security

of the Commonwealth. [4-K-15]

s 4 (2).

s 4 (l) (a).

s 4 (3) (a) (iii).

(c) The Queensland Invasion of Privacy Act, 1971

to 1976 contains a general prohibition and

an exemption in relation to persons using

the listening device in the performance of

their duty under a Commonwealth Act relating to the security of the Conuuonwealth, in

terms identical with those contained in the

Victorian Act. [ 4-K-16]

(d) The South Australian Listening Devices Act,

1972 contains a general prohibition against

the use of listening devices. [4-K-17] The

only exception to this prohibition is to

their use by or at the direction of a

member of the police force acting in the

performance of his duty. [ 4 -K -18 ] The

Commissioner of Police is required to report

to the Minister at intervals of not more

than one month in respect of each use of a

listening device. [4-K-19] (e) There is no legislation in WA, Tasmania or

4-K-16 4-K-17 4-K-18 4-K-19

the Commonwealth Territories.

ss 43 (1) and 43 (2) (c) (iii) respectively.

s 4.

s 6 (1) •

s 6 (2).

15 7.

158.

12. The application of the NSW and SA legislation

to the use of listening devices by ASIO officers for

the purposes of the security of the Commonwealth is not

clear. But undoubtedly if there were Commonwealth legislation authorizing the use of these devices by ASIO, the Commonwealth legislation would prevail over the

State legislation to the extent that there was any

inconsistency. The general power given to ASIO to

"obtain intelligence relevant to security" may be

sufficient for this purpose, but if it is not, ASIO may still be exempt from the restraints of the State legislation. [4-K-20]

13. Listening devices may be used to intercept

telephone conversations in a way not regulated by the

Telephonic Communications (Interception) Act. They

may also be used to record other conversations. ASIO

has made use of listening devices, but the extent of

their use has been limited.

4-K-20 See Pirrie v. McFarlane (1925) 36 CLR 170; The Commonwealth v. Pty Ltd (1962)

108 CLR 372; "The Australian Constitution 1951-1976"by Leslie Zines, 7 Federal Law Review 89 at 93-96.

14. I have already described the gap in the

Telephonic Communications (Interception) Act which,

as regards ASIO, should be filled by regulating the

use by ASIO of listening devices to record telephone

conversations. I think that their use for recording

conversations other than telephone conversations should

also be controlled. The use of listening devices is

an intrusion into privacy which should only take place

in very special circumstances. It is for this reason

that the State legislation I have referred to was

enacted. Furthermore, although installation and removal

of listening devices can at times be effected lawfully,

at other times it can only be effected by an unlawful

trespass into premises.

15. ASIO should, in appropriate circumstances, be

entitled to install,use and maintain listening devices, and should be able to install,use and maintain them

lawfully. However their use should be controlled according

to the same principles as is the interception of telephonic

communications.

16. I shall accordingly recommend that the use of

listening devices by ASIO should be prohibited except pursuant to a warrant issued by the Minister, or in

urgent circumstances, by the DG of Security. For this

purpose the ASIO Act should be amended. The Act should

159.

160.

also control the use of information obtained by this

means in the same way as does the Telephonic

Communications (Interception) Act, and it should also

provide that by virtue of the warrant, ASIO is authorized

to do all things necessary for the purposes of installing,

using and maintaining the listening device and for

subsequently removing it. The effect of this legislation

inter alia resolve any problems that might arise

as a result of State legislation controlling the use

of listening devices and not making special or adequate

provision for their use, and for control of their use,

by ASIO. It would also place the ultimate responsibility

for their use with the Minister.

(d) Mail interception

17. Letters are regarded in Australia as a singularly

private form of communication. Opening them and reading their contents by a security organization is something which should only be done as a very last resort. As I

have already suggested, the extent of the intrusion into

privacy by ASIO should inter alia be correlative to the

security issue involved, and it would need a very serious security issue to justify mail interception. [4-K-21] However, I find it difficult to distinguish between duly

4-K-21 See part C of this report.

authorized mail interception and duly authorized telephonic

interception. Therefore I think that, if a sufficiently

strong case is made out, ASIO should be entitled to open

mail. It is the practice of many security organizations

in the democratic world to do so, sometimes with and

sometimes without a ministerial or other authorization.

In practice the intelligence so obtained has often been

invaluable.

18. The view has been expressed that the Crown has

a right, said to be part of the prerogative, to open and

inspect mail. [4-K-22] Whether or not this view is

correct in England, I do not think that it is correct

in Australia. In this country, particularly having regard

to the federal organization of power, the question whether

the Crown in right of the Commonwealth has a right to

open mail would appear to depend upon the provisions of

the relevant statutes.

19. The provisions of ss 115 and 116 of the Post and

Telegraph Act 1901-1973 prohibited the opening of mail

in certain circumstances. Form A in Schedule 2 to the Act

assumed that the Postmaster General had authority to give

an express warrant authorizing postal officers to open

mail. I am concerned here of course with opening mail

4-K-22 Report of the Committee of Privy Councillors appointed to inquire into the interception of communications, Cmnd 283, London, 1957, para 38.

161.

162.

otherwise than for the purposes of the Act; no doubt

there was power to open mail if it was believed or

suspected that it might contain, for example, explosive

material. However although the form in the schedule

assumed a power in the Postmaster General to give a

warrant authorizing the opening of mail, there was no

provision in the Act in respect of these warrants, and

the correct view may be that there was no such power,

except for the purposes of the Act. This would not

include the opening of mail for security purposes, unless

it was thought that the mail contained explosive_ or the like material.

20. The matter is now regulated by the Po sta l Services

Act 1975. By s 8, the Minister may, after consultation

with the Australian Postal Commission, give the Commission,

in writing, such directions with respect to the performance

of its functions and the exercize of its powers as appear 1

to the Minister to .be necessary in the public interest. A

copy of any such direction is by s 8(2) required to be

laid before each House of the Parliament. By s 9, the

Commission has power to do all things necessary or

convenient to be done for or in connection with, or as

incidental to, the performance of its functions under the

Act. Its functions are set out ins 6. Section 93(a)

provides that a person shall not open any mail or any postal

article in the course of the post unless he is authorized to do so by the Commission or by the addressee. Section 115

authorizes the Commission to make by-laws, not inconsistent

with the Act or the regulations, prescribing all matters

which are required or permitted to be prescribed by the

by-laws, and, making provision for or with respect to,

i nter the receipt, transmission and delivery of postal

articles and the terms and conditions governing their receipt, transmission and delivery of postal articles. Section 116 authorizes the Governor-General to make

regulations, not inconsistent with the Act, prescribing

all matters which by the Act are required or permitted to be prescribed by the regulations, or which are

necessary or convenient to be prescribed by the

regulations for carrying out or giving effect to the Act

and for making provision for and in relation to the opening

and examination of postal articles by or in the presence of

officers. "Officer" means a person who is appointed to +-he bustralian Postal Commission Service under the Act or deemed to have been appointed to it under the provisions

of the Postal and Telecommunications Commission (Transiti(nal

Provisions) Act 1975. [4-K-23]

4-K-2 3 s 3 (1).

163.

164.

21. It is doubtful whether any of these provisions

authorizes the Commission to open mail for the purposes of

ASIO, or allows ASIO to open any mail, or authorizes the

making of by-laws or regulations for the opening of mail

for the purposes of ASIO, except in those cases where

the sending of the particular contents by mail is

prohibited by the Postal Services Act or by regulation.

[4-K-24 ] Likewise it is doubtful whether there is any

power to make by-laws or regulations prohibiting or

regulating the sending of mail on general security grounds.

22. It is the practice for some security services,

in certain circumstances, to inspect mail covers, without

opening or otherwise tampering with the mail. This practice

does not seem to be prohibited by the Postal Services Act,

and if it be regarded as a form of tampering with mail,

it would only be an offence if there were an intent to defraud. However the giving of access by the Commission

to an officer of ASIO for the purpose of inspecting mail

covers may not be an action for the purposes of the

performance of the Commission's functions under the Postal

4-K-24 See, eg s 100, which regulates the

sending by post of articles that enclose or contain an explosive, dangerous or deleterious substance.

Services Act, and may well be beyond power. It would

also probably 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.

23. ASIO's function to obtain intelligence relevant

to security may give it powers in respect of mail, but

I conclude that ASIO cannot safely act on the basis that

it has power to open mail, or can be authorized by the

Australian Postal Commission to do so, or to inspect

mail covers. However, I think that ASIO should have

these powers if special circumstances are established,

and that it should only do so under warrant by the Minister.

24. Legislation giving ASIO powers in respect of

mail should be in terms similar to those relating to the

interception of telephonic communication, and should

require a full report about the execution of any warrant

to 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.

(e) Statutory prohibitions concerning information

25. There are a number of statutes which impose

prohibitions on the communication, other than for the

165.

166.

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 e x cept 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.

26. Section 21 of the Social Welfare Commission

Acts 1973 prohibits a Commissioner or other officer,

except for the purpose of the Act, from divulging or

communicating information concerning the affairs of

another person acquired by him by reason of his office

or employment under or for the purpose of the Act. There

are no exceptions or e xemptions. In the same category is

s 24 of the Census and Statistics Act 1905-1973.

27. Section 16 of the Income Tax Assessment Act

1936-1976 contains a prohibition on the communication

of information respecting the affairs of a person

disclosed or obta ined under the provisions o f t he Act except to certain identified persons or bodies.

Communications to ASIO, or its officers,are no t inc lude d.

28. By s 17 of the Social Services Act 1947-1976,

an officer is prohibited, except in the performance of his

duties , or in the exercize of his powers or functions,

under the Act, from divulging or communicating

information with respect to the affairs of a person

acquired by him in the performance of his duties or in

the exercize of his powers and functions under the Act.

But if the Minister or Director-General of the Department

o f Social Security certifies that it is necessary in

the public interest that any such information should be

divulged, the officer may divulge it to such person as

the Minister or Director-General directs. He may also

divulge it to any prescribed authority or person, or to

any person who, in the opinion of the Director-General,

is expressly or impliedly authorized, by the person to whom the information relates, to obtain it. Section 130

of the Health Insurance Act 1973-1976 contains a provision

in similar terms, save that it is only the Minister who

can certify that it is necessary in the public interest

for the information to be divulged to the person he directs,

and the Minister's opinion is required as to whether a

person is expressly or impliedly authorized to obtain

information by the person to whom that information relates.

29. ASIO is bound by statutory provisions of

these kinds and should strictly comply with them.

167.

168.

30. 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

where surname, initials and approximate age are known

but 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.

31. 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, in appropriate cases ASIO should be

able to take advantage of the qualification.

32. 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

169.

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.

33. 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

legislation guaranteeing privacy of the individual, '

account should be taken of ASIO's proper requirements.

(f) Entry and search of premises

34. 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-intelligence purposes. It may not be

necessary to do this very frequently in Australia, but

if it is done, it should only be done lawfully. It

would be lawful if done with the authority of the person

in possession of the relevant premises or goods. But often that authority will not be available.

24 775177- 8

170.

35. An entry may be desired to be made into

premises for the purposes of installing a listening

device, and it is the intention of my earlier recommendation

about warrants in such cases that the Minister should

authorize not only the installation of the device but

any entry necessary for the purpose of installing,

using, maintaining and removing it.

36. However an entry may be desired for the purposes

of searching premises for incriminating evidence and

particularly for incriminating documents or it may be desired for the purpose of obtaining intelligence which

may or may not be used as evidence.

37. Section 10 of the Commonwealth Crimes Act

1914-1975 authorizes the issue of search warrants where

a justice of the peace is satisfied by information on

oath that there are reasonable grounds for suspecting

that there is in any house, vessel or place -

(a) anything with respect to which any

offence against any law of the

Commonwealth or of a Territory has

been, or is suspected on reasonable

grounds to have been, committed;

(b) anything as to which there are

reasonable grounds for believing

that it will afford evidence as to the commission of any such offence; or

(c) anything as to which there is

reasonable ground for believing that

it is intended to be used for the

purpose of committing any such offence.

38. This section does not authorize an entry and

search which is a purely "fishing expedition", but I

think that it describes the proper limits of a general

entry and search power. The section can be used in respect

of any offence under the law of the Commonwealth or a

territory the character of which brings it within the scope of ASIO's functions. However it is only in favour

of a constable that the search warrant can be issued.

[4-K-25] It seems to me that this is an appropriate

procedure to be used in many cases when ASIO wishes to

have premises searched.

4-K-25 In executing the warrant, the constable may enter any premises "with such assistance as he thinks necessary". "Constable" means a Commonwealth police officer or a member of

the police force of a State or Territory; (Crimes Act,ss 13 and 10).

171.

172.

39. 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 latter

expression includes an officer of ASIO), where there

is reasonable ground for suspecting that an offence against that Part has 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 Part and to the execution of the warrant respectively.

40. As was pointed out by Lord Denning, the searching

of premises is an executive action which it is appropriate

for a police force, rather than a security service, to

carry out. As Lord Denning also pointed out, it is one

of those cases where co-operation between the security

service and the relevant police force is required, and I

think it is that co-operation which should generally be

relied on by ASIO if it wishes premises to be searched. [4-K-27]

4-K-26 4-K-27 Ibid, s 82.

Denning Report, paras 273 and 274.

41. There are some 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 section 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 ASIO's

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 exercise the greatest care to

see the provisions of the Act are strictly complied with.

42. There are some special circumstances, other than

those described in sections 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 be to obtain intelligence rather than evidence,

although material may be discovered which could be used

as evidence. The type of intelligence which might be

173.

174.

obtained by such a search is described in the report.

[4-K-28] In some cases (including counter-intelligence

cases, where ASIO wants to find out about an unfriendly

intelligence service rather than to counter its

activities) these searches can be a critical part of an effective operation. Without them, ASIO's capacity

to perform its defensive role may be too circumscribed

for the adequate protection of Australia's security.

The risks involved in a security service having such a

power, particularly in the area of domestic subversion,

are obvious. However I have concluded that given adequate

safeguards, ASIO should have the power to make these

searches.

43. As in the case of other forms of intelligence

collection, it is arguable that ASIO has such a power.

If it has, the power is subject to no special safeguards. I accordingly recommend that the ASIO Act should be amended

to give ASIO an express power to make these searches but only

pursuant to a warrant granted by the Minister, who must

be satisfied that ASIO's function of collecting security

intelligence would be seriously prejudiced if the warrant were not granted. The 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. Warrants should not be

4-K-28 Fourth para 163.

granted in relation to domestic subversion unless the

Minister is satisfied that the person or organization

occupying or owing the premises is already engaged

in subversive activities. ASIO should be required to

make a report to the Minister concerning the results

of the search.

175.

176.

APPENDIX 4-L

MATTERS OUTSTANDING FROM THE SECOND REPORT

In my second report I made recommendations about

security checking and assessments and the establishment

of a security appeals system. In the course of that report

I deferred some questions for . further consideration. They

dealt with in this appendix.

2. Where relevant, I direct attention to the appropriate

parts of this report. The succeeding parts 6f this appendix deal with certain specific aspects of those questions.

(a) Matters deferred in second report

Matters not with finally in

second report

2 and 103

How and where dealt with in this report

This report deals only with reports Part c on the

and information in the nature of collection, assessment

security assessments provided by and dissemination of

ASIO. I said I would deal in a intelligence by ASIO.

later report with the system of security investigation and reporting as a whole, including that for the security checking process.

4, 6 and 217

I decided not to deal with

"immigration' cases as I had not then completed my inquiries about the policies and procedures that apply to them. The recommendations about security checking and appeals would be capable of later application, mutatis mutandis, to

Paras 297-315, and Appendix 4-M.

"immigration" cases, but I did not recommend that course then.

5, 6 and 217

I said I would deal in a later report

with the question whether there are any persons in state or local government employment or in employment in the general workforce directly or indirectly

affected by Australian Government security checking or security information. The recommendations about security checking and appeals would be capable of later

application, mutatis mutandis, to them, but I did not recommend that course then.

8

I said I would deal in detail with the

security intelligence service which the nation should have available to it in a later report. 15

I said I would consider ASIO's function in relation to subversion in a later report. 17

My recommendations would be directed to mitigating the risks posed by the existence of a "security" organization.

18 and 30

I would make recommendations in a later report as to the nature of

the security functions ASIO should perform, and generally in relation to ASIO and its operations.

139, 171 and 215(v)

I said I would deal in a later report

with the issue whether a system of binding security assessments should be instituted, if given by an appeals tribunal, or whether given by ASIO or an appeals tribunal.

177.

Paras 236-242, 256-260 and part b(vi) and (c) hereunder.

Parts C,· D and E .

Paras 25, 35 and

55-83.

Parts C and D.

Parts B and C and

this report

Part (b) hereunder.

178.

35

I did not describe th8 events which led See my consultant's to decisions in 1948-49 to set up ASIO report (seventh and to give it the task of security report).

checking public servants and others.

48

I said I would return to the question

whether "the interests of the nation" by which the security classifications are to be judged is a somewhat wider

concept than the "security" with which ASIO is concerned.

75

I said that I was not prepared at

that stage to recommend whether the existence of an appeals tribunal should clear the way for a permanent head to transfer an officer to another department compulsorily if the permanent head reached a decision on

security grounds that he should do so.

81

I said I would recommend further on the inquiries ASIO should make to find whether there are such security factors as unreliability because of carelessness or indiscretion.

83

I said further attention was necessary on whether ASIO might need to increase its capacity in the area of personality questions by, for instance, recruiting psychologists and additional investigatory staff.

94

I said I would consider further whether someone who acts as a referee for ASIO purposes should be indemnified in relation to anything derogatory he may say.

Paras 427-430,

See part (b) here­ under, paras 10, 11 and 17-20.

Paras 273, 280, 283, 287-293.

Para 214.

See part (d) hereunder.

109, 124 and 145

I said I would report later on

security assessment criteria.

123

I said yet ready to report on

the poss1b1l1ty of appointing a person to check ASIO security assessments before they are communicated to the employer authority .

193

I said I would consider in a later

report the proper role of an ombudsman in the affairs of a security

intelligence service.

Paras 264-285.

See part (e) hereunder,

I have decided not to

deal further with this matter.

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

3 0 In my second report I described the system of

security checking carried out by ASIO and the security assessments and accompanying information provided by

ASIO to "employer authorities". [ 4-L-1] In para

117 of the report I stated:

" ASIO's security assessments are advisory. Employer can accept or reject the

advice they contain. They can take account of or ignore the i nformation that supports it."

Amongst my recommendations in the second report were that

a Security Appeals Tribunal be established by the

4-L-1 For "employer authorities", see oara 2 of the second report.

179.

180.

Australian Government, [4-L-2] and that until I should

report finally on the matter, the tribunal's findings

should not be binding but, like ASIO's security assess-ments, its function should be to advise and give

information relevant to security. [ 4-L- 3] In the

body of the report I said;

4.

"In a later report I shall deal with the

issue whether a system of binding security assessments should be instituted, if given by an appeals tribunal, or whether given by ASIO or an appeals tribunal". [ 4-L- 4]

Since I wrote the second report I had

the opportunity of reviewing further material on

these matters, discussing them with other interested

parties, and considering them further in the light of these additional materials and discussions.

5. I have come to the conclusion that ASIO's

assessments, and any accompanying information, should generally

remain advisory only and not binding. To give them

a binding effect would mvolve substantial amendments

of the Public Service Act 1922-1975, the Defence Act

1903-1975 and other relevant legislation. This in itself

would not be a sufficient justification for not making

the appropriate changes if they were otherwise iustified,

4-L- 2 4-L- 3 4-L- 4

Para 215 (i). Para 215(v). Para 139.

but I do not think that they are. The public service,

the Defence Force and the relevant statutory bodies are

so structured that responsibility for personnel security

rests, with other responsibility, in the permanent

heads of departments, the Naval, Military and Air commanders,

and the chairmen or other principal officers of the

statutory bodies. Subject to a qualification I shall

refer to later, it is their duty to see that this

responsibility is properly carried out, and although they should have the best available advice to assist them in

doing so, the final decision must rest with them. ASIO's

essential functions are, for relevant purposes, to communicate intelligence and to give advice. Although its advice is

commonly followed, it is inherent in the character of

the organization as I have described it in this

report that it should not be responsible for making final

decisions in respect of personnel matters within

departments, the Defence Force or statutory bodies.

6. Subject to a qualification which conforms with

a long-established precedent within the public service,

the effect of any findings of a Security Appeals

Tribunal should be the same as that of ASIO's security

assessment, that is, the effect of the findings should be

to advise and give information relevant to security and not to bind the person or body advised to make anv

181.

182.

particular decision or to take any particular action. The exception arises in those cases where under an

appeal or review system provided by statute or regulation,

a decision relating to Australian Government employees can be

reversed or varied, by the appeal or review body and that reversal

or variation is binding upon the employer authority. In this class of case, insofar as the anpeal or review raises a security issue, that issue should be decided by a Security

Appeals Tribunal, and its findings should be as binding

upon the employer authority as the determination of the

other issues by the ordinary appeal or review tribunal.

7. I will illustrate (but not exhaustively) the way

in which these recommendations should operate in the

following circumstances:

(i) Uoon the original appointment of a person

to the public service;

(ii) Upon the promotion or transfer of a public

servant;

(iii)

(iv)

(v)

(vi)

Following a new security checking of a public

servant;

Upon the dismissal of a public servant;

In respect of oersons applying to serve in,

or serving in, the Defence Force;

In respect of persons apolying to work for,

or working for, contractors for the

Commonwealth Government and who are reauired

to be checked for security purposes;

(vii) In respect of other appeals, inquiries or

reviews.

(i) Original appointment· to :ouhlic· s ·ervice

8. There are various ways in which a person

can be appointed to the public service but I shall take

for the purposes of my illustration the usual case of

an officer appointed to the second, third or fourth

division. The PSB ("the board") is authorized to appoint

a person to the public service as an officer of any of

these divisions. r 4-L- sJ A person is not eligible for

appointment unless the board is satisfied that he is

a fit and proper person to be an officer of the

service. [4-L-6] If my recommendations as to

restricted security checking of appointees to the public service is adopted, then only those persons who, as

a result of their appointment, will have, or may be

reasonably expected in the near future to have, access

to classified security matter or to security areas will

be security checked. The board may from time to time

b y notice published in the Gazette invite persons to

apply for appointment to the service, and that advertisement

could state, where it is the case, that any appointee will

be required to be security checked. [4-L-7] Appointments

to the service are generally, in the first instance, on

4-L-s 4-L-6 4-L-7

Public Serv ice Act 1922-1975, s 33 (1). Ibid, s 34 (c).

Ibid, s 46.

183.

184.

probation and the board may, after the expiration of

six months probation, confirm the appointment, annul the

appointment, or require the continuance of the

probation. [4-L-8]

9. In determining whether the proposed appointee

is a fit and proper person to be an officer of the

service, and in deciding whether to confirm the appointment

of a probationer, the board could, where the appointment

is to a position requiring security checking, take into account the assessment and any accompanying information

provided by ASIO as to the security of the applicant

or probationer. If an appeals system is instituted,

the board would likewise consider the findings of a

Security Appeals Tribunal, assuming ASIO had provided

an adverse or a qualified assessment in respect of the

applicant and he had appealed to the appeals tribunal.

However the responsibility for the decision as to what

action should be taken would be a matter for the board

in the light of all the material before it, including

the assessment and information provided by ASIO or the

findings of the appeals tribunal. It would not be bound

to take any particular course of action because of that

assessment and information, or those findings.

4-L-8 Ibid, s 47.

(ii) Promotion or transfer of a public servant 10. Where a vacancy exists in an office in any

division of the public service other than the first

division, the permanent head of the de?artment in which the vacancy exists may transfer or promote an officer to

fill the vacancy. In some cases the approval of the

board is required. [4-L-9] The approval of the board

is also required where the officer whom it is proposed to transfer is an officer of a department other than that in which the vacancy exists. 14-L-10] Any promotion

is provisional in the first instance and is subject to a right of appeal. [4-L-11] Provision is made for

a Promotions Appeal Committee, and in respect of those

cases where the parties to the appeal proceedings do not

all perform their duties in one State, for a Central Promotions Appeal Committee. Officers who consider

themselves to be more entitled to promotion to the vacant

office than the officer provisionally promoted on the ground of superior efficiency or equal efficiency and

seniority are entitled to appeal. [ 4-L-12] The appeals are

heard in the first instance by a Promotions Appeal Committee

and in some cases are determined by that committee. In some

cases they are determined by a Central Promotions Appeal

Committee, and in some cases must go to the board for

4-L-9

4-L-10 4-L-11 4-L-12

Ibid, s 50(1).

supplemented by the Act. Ibid, s 50 (2).

Ibid, s 50(5).

Ibid, s 50(6).

These provisions are now the provisions of s SOA of

185.

186.

final determination. [ 4-L-13] If an appeal is allowed the board cancels the provisional promotion and promotes

the appellant to the vacant office. [4-L-14] If there

is no appeal, the permanent head confirms the provisional promotion, and if an appeal has been made but is disallowed

or becomes inoperative, the board confirms the provisional

promotion. [4-L-15]

11. The result of these provisions is that a

permanent head's decision as to a promotion may be

overruled, and another person promoted in accordance

with the determination of an appeal committee or of

the board. Any security issue raised in an appeal will

be dealt with by a Security Appeals Tribunal. The

findings of this tribunal upon the security issue should

be as binding on the permanent head as the decision

of the Promotions Appeal Committee or board in respect of

other issues. If there is a security issue and a non-security

issue involved in an appeal, then there should in effect be two

appeals. The "efficiency" ins 50(6) of the Public Service Act

is defined in s 50(4) to mean "special qualifications and aptitude for the discharge of the duties of the office

to be filled, together with merit, diligence and good conduct".

4-L-13 4-L-14 4-L-15

Ibid, s 50 (8).

Ibid I . s 50 ( 9) .

Ibid, s 50(10).

If the vacant position is one requiring access to

classified material, the sedurity of the person filling the vacancy is obviously a special qualification

required to be held. The findings of the Security A?peals

Tribunal as to the security of the appellant should be

binding upon what I will call the general appeals

tribunal, whether it be a Promotions Aopeal Committee or the board, and the relevant committee or the board would

have to act on the basis that it had come itself to

the conclusion arrived at by the Security Appeals

Tribunal.

(iii) New security checking of a public servant 12. I have recommended in this report that

rechecking for secret and top secret access be carried

out in all cases, so far as resources allow at regular

intervals of five years.

13. If upon a rechecking the employer authority,

as a result of ASIO's assessment and information or

otherwise, comes to the conclusion that the officer should

no longer have the access which he has enjoyed, there

are various courses which can be adopted. If an officer

appears to the board or the Chief Officer, whose powers

may be exercized by the permanent head [4-L-16], to be

unfit to discharge the duties of his office efficiently,

4-L-16 Ibid, s 25 (3).

187.

188.

the board mav, after report from the Chief Officer, and

after investigation into the circumstances, retire the officer from the service, or may transfer him to some other office. [4-L-17] Under this provision the responsibility rests with the board, and the assessment and information provided by ASIO and the findings of an

appeals tribunal would be advisory only. Again, if the

board, after inquiry, reports to the Governor-General

that, in its opinion, the continuance of any oerson as an officer or an employee is detrimental to the

public safety or the defence of Australia, the Governor-General may dismiss the person from office or

employment. [ 4-L-18] Here again the assessment or

information provided by ASIO or the findings of an appeal

tribunal would be advisory only, the responsibility for any decision being placed by the Act on the board.

(iv) Dismissal of a oublid servant

14. The same position applies to the dismissal of

a public servant on security grounds as applies to cases

of new security checks of public servants. Action can be

taken under s 67(1) or s 94(2) of the Public Service Act,

and the assessment or information p rovided by ASIO or the

findings of any appeals tribunal as to the security issue

would be advisory only .

4-L-1 7 4-L-18 I b id, s 6 7 ( 1) .

Ibid, s 94 (2).

(v} Persons serving· ·in the Defence Force

15. The Defence Act proviaes that a l?erson shall

not be permitted to serve in the Defence Force if the

service of that person in the Defence Force might, in

the opinion of the Chief of Naval Staff, the Chief of

General Staff or the Chief of Air Staff, as the case

requires, be prejudicial to the security of Australia.

The Act places the responsibility of determining whether

the service of the person is prejudicial to the security

of the Commonwealth upon the relevant Chief of Staff,

and the assessment and information l?rovided by ASIO

and the findings of any al?oeals tribunal in respect of

[ 4-L-1 9 ]

the security issue would be advisory only. It would be

for the al?propriate Chief of Staff to determine the issues

upon which the matter del?ends.

(vi)

16.

Employees of "defence contractors"

Contractors carrying out work or undertakings

involving classified matter are commonly required to have

employees who will have access to that classified matter

security checked. The obligation upon the contractor

to have employees who will have such access security

checked may be found in his contract, and it may b e that

the obligation results from the necessity for the employ ee

4-L-19 De f ence Act 1903-1975, s l23F(l) (b).

189.

190.

to have a permit under s 11 of the Defence (S p e cial

Und erta kings) Act 1952-1973. The necess·ity for a

security check may arise in a number of other ways.

The effect of any assessmerit or information provided by

ASIO or of the findings of a Security Appeals Tribunal

would depend upon the terms of the instrument creating

the necessity for the security checkinq. That instrument

could make the assessment or findings binding, as in

the case of a contractual condition requiring employees

with access to classified material to have a satisfactory

security assessment provided by ASIO; or it may be

advisory only, as it would be in respect of the decision

of the minister to grant or deny a permit under s 11

of the Defence (Special Undertakings) Act. The findings

of any Security Appeals Tribunal in such a case would

be substituted for and have the same effect as the

assessment and information provided by ASIO.

(vii) Other appeals, inquiries or reviews

17. There are a number of other ways under the

Public Service Act and Regulations in which appeals,

inquiries or reviews of personnel decisions affecting members of the public service may arise. They are

described in para 126 and Appendix 2-G of the second

report. In these as in other cases, the effect of any

assessment or information provided by ASIO or of any

findings by a Security Appeals Tribunal will depend in

part upon the relevant provisions of the Public Service

Act and Regulations and in part upon the functions of

ASIO as described in the ASIO Act and the terms of any

legislation establishing the Security Appeals Tribunal. I do not propose to deal with each of these matters in

detail. The problem will generally resolve itself, as I think I have illustrated above. It may be wished to change

the responsibility for the making of particular decisions,

and if that is so then the appropriate legislative

changes can be effected.

18. The question is often one of public service

policy, or of government policy in respect of the

public service. Thus in para 75 of the second renort

I said:

19.

"The existence of an appeals tribunal should clear the way for a permanent head to move an officer within a department compulsorily if the permanent head reaches a decision on sec.uri ty grounds that he should do so. Whether a similar power should be available with regard to inter-departmental transfers

is a matter on which I am not prepared to make

a recommendation at this stage."

I have already referred in this appendix to s 67(1)

of the Public Service Act which enables the PSB, inter alia ,

to transfer to some other office an officer who appears

to the board or to the Chief Officer (including the permanent

head) to be unfit to discharge the duties of his office

191.

192.

efficiently. This section would enable the board to transfer an officer to a "safe't position in the same department, or to a nsafe" position in another

department, if th_ e board or the Chief Officer thought

that the officer did not have the appropriate security qualifications to carry out the duties of an office involving access to classified material, and particularly

to secret or top secret material. Again a permanent head may transfer an officer to fill a vacancy in his

own department or, with the approval of the board, in

another department. I4-L-20.] The board may perm_it

any officer to decline an offer of transfer, I4-L-21] but

an officer may not refuse compliance with an order of

the board directing his removal from one office to

another of equal or higher status. [4-L-22]

20. Thus although the permanent head can initiate

the transfer of an officer with whose security he is

not satisfied, the approval of the board is necessary

if the transfer is to be effected without the consent of all relevant parties. Such an approval would seem

to be necessary at any rate where it is desired to

transfer an officer to a department whose permanent head is unwilling to receive him, but whether this is so, and

4-L-20 4-L-21 4-L-22

Public Service Act, s 50(1) and (2).

Ibid, s 52 (1).

Ibid, s 52 (2).

whether the board or the permanent head should be the

determining authority in all or any of these cases, is

a matter of policy of or in res:oect of the public service

concerning which I do not think it proper that I should

make any recommendations.

(c) Cases other than "Australian Government employees", contractors'" employees and "1.nunigra t1.on" cases

21. In my second report, I made recommendations

as to the security checking and the establishment of

an appeal tribunal in respect of "Australian Government

employees". [4-L-23] Various classes of persons were

included within this description, of whom the largest

were the Australian Public Service and the Defence

Force. In this report I have made recommendations

concerning immigrants, persons applying for Australian

citizenship, persons applying for passports, and immigration and citizenship agents. [4-L-24]

22. There is left a number of people, quite small

compared with those encompassed within my recommendations,

concerning whom ASIO, for varying purposes, communicates

security intelligence. These people include:

(a)

(b)

4-L-23 4- L-24

Some State public servants;

Some local government employees;

Second report, para 20. Paras 297-315 and Appendix 4-M.

193.

194.

23.

(c) Some other "key point" employees;

(d) Some university and other educational

staff members; (e) Some officers and members of trade

unions;

(f) Some other persons employed in the

private sector.

In addition to the persons concerning whom ASIO

communicates security intelligence, there are persons

concerning whom it obtains security intelligence. These

include persons such as members of organizations or

groups regarded as subversive or potentially subversive,

and persons who have contacts with the members of

unfriendly intelligence services.

24. The purpose of the communication of intelligence

in these cases may be operational; it may relate to access to classified matter or otherwise affect the

employment of the relevant person; it may be to give

a police special branch background data which it is

appropriate it should have; it may be for any number

of reasons. The collection of the intelligence which is

not communicated is likewise for a variety of purposes

including operational purposes, and the building up of

a data bank to enable ASIO properly to advise the

Australian Government on security matters.

25. I have given a great deal of thought to the

question whether I should recommend that a right of

appeal should be given to the Australian citizens or

residents concerning whom security intelligence is thus

collected or communicated. I have found the matter beset with problems. It is difficult to see how

intelligence collecting, used or communicated primarily for operational purposes could, without more, be the

subject of an appeal. Again, intelligence could be

communicated, eg, to a special branch, for operational

purposes, but later, and quite properly, communicated

by the special branch for a purpose related to

employment without ASIO's knowledge.

26. If, non-operational, or "finished" intelligence

is communicated to the relevant special branch for transmission to state authorities and instrumentalities, rather than

direct to those authorities and instrumentalities, [4-L-25] the special branch may deal with it in a number

of ways; it may decide not to use the intelligence;

it may add to it, or alter it, or make a different

assessment, or otherwise change its character in greater

or less degree. In other words what is communicated by ASIO is simply part of the data which the special branch

will use to decide what course it will take. The position has some analogy to security checking by ASIO which

4-L-2 5 see paras 256-260, where I said that the special

branches must be regarded as the principal receiver of this intelligence.

195.

196.

involves the use of intelligence received from a foreign

security organization. In such a case, in the event

of an appeal by the person the subject of the check,

what is appealed against is what ASIO has done, not

what the foreign security organization has done, although

the latter's intelligence will no doubt be involved

in the review.

27. There is not a large number of people involved in

cases of communication of intelligence by ASIO to

state authorities and instrumentalities, but that is not a proper ground for denying them a right of appeal.

However the problems, jurisdictional and otherwise, are such

that I do not recommend any right of appeal be provided at this time. If an appeal system is instituted in the cases

recommended in the second report, and is extended to cases

recommended in this report, the position should be reviewed

after some years experience in the light of that system. It may then appear that it is both proper and practicable

to provide art appeal in some of the other cases I have mentioned.

It is better now to try to ensure the success of the

appeal proposals in the areas where large numbers of

people are directly affected, and to extend it to the

residual, difficult and sometimes peripheral cases when

the dust has settled.

28. In the meanwhile, it seems proper that the states

should consider whether it is appropriate to establish a

review system of the security checking carried out by

their special branches.

(d) Indemnification of referees

29. I referred in the second report to submissions

that referees should be indemnified by ASIO in respect

of anything derogatory they might say, whether about

the person being checked or about a third person. I

left the question for a later report. [4-L-26]

30. A referee would not be liable in a defamation

action for anything he said relevant to security which

was derogatory of the person being checked unless he was

guilty of malice, for the invitation implicit in the nomination of him as a referee would give him a

"qualified privilege". [4-L-27]

31. If the derogatory remarks are about a third

person, there is no invitation by that person, but for

different reasons the same qualified privilege applies.

4-L-2 6 4-L-2 7

Second report, para 94. The position is the same whether the relevant law is based on the so-called "code", or the common law. See John G. Fleming, The

Law of fourth edn, Sydney

1972, pp 497, 500 and 501.

197

198.

A referee, being asked by an ASIO officer to give, and

giving, his honest opinion about a person's loyalty

and reliability, may be obliged to speak about third

persons who are associated with and may have an

adverse influence on the person the subject of the

check. He would not be liable in defamation as a result

of any derogatory remarks so made unless he was guilty

of . malice. [4-L-28]

32. No need for an indemnity seems to arise. If

he is not guilty of malice, there is nothing to· indemnify;

if he is, there is no reason why ASIO should indemnify him. Accordingly I do not recommend that ASIO should

offer indemnities to referees.

(e) Checking of security assess_ments

33. When writing my second report I considered

whether it would be appropriate to have someone standing

between ASIO and the employer authority, checking

security assessments and if necessary remitting them for further consideration, before they are communicated to an employer authority. I reserved this question for a

later report. [4-L-29] I have come to the conclusion

4-L- 2 8

4-L- 2 9

Ibid,pp 494, 495, 498, 500 and 501.

Second report, para 123.

that it would not be appropriate to appoint such a .

person. The DG of Security has a statutory responsibility

for the due performance of its functions by ASIO, and

the principal employer authorities (the PSB, permanent

heads of statutory authorities and the chiefs of the

respective of the defence forces) likewise have

their statutory responsibilities in respect of personnel.

The implementation of the recommendations I have made

in my second report and in this report should I think,

ensure that the risk of persons being adversely affected

by wrong security assessments is red uced to a minimum.

R77 / 251

199.