Download PDFParliamentary 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
â¢
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 â¢
(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 â¢
. ..
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 â¢â¢. " [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.
â¢"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 ASroâ¢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 â¢
"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 â¢
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) â¢
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) â¢
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 â¢
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.
Rep
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
\:
. .
, â¢
.,.
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 .â¢â¢
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 â¢â¢â¢ 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'nâ¢:::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\â¢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 \â¢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
..
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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 \â¢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 .⢠⢠' â¢
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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.
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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.
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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
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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 ;
139.
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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.
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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)
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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 invesâ¢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.
. . · . .
â¢.··
, '
"'! ' .,-·.:.·· .
' · .
, ., · ....
. .
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) â¢
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) â¢
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.