Title Australia's security and intelligence agencies - Reports of the Royal Commission (Justice R.M. Hope), dated December 1984 - General Report
Source Both Chambers
Date 22-05-1985
Parliament No. 34
Tabled in House of Reps 22-05-1985
Tabled in Senate 22-05-1985
Parliamentary Paper Year 1985
Parliamentary Paper No. 231
System Id publications/tabledpapers/HPP032016005996


Australia's security and intelligence agencies - Reports of the Royal Commission (Justice R.M. Hope), dated December 1984 - General Report

The Parliament of the Commonwealth of Australia

ROYAL COMMISSION ON

AUSTRALIA 'S SECURITY INTELLIGENCE AGENCIES

General Report

December 1984

Presented 22 Ma y /985 Ordered to be printed 23 Ma y /985

Parliamentary Paper No. 231/1985

" ~ .. " " "

Royal Commission on

;ustralia's Security and Intelligence Agencies

GENERAL REPORT

December 1984

ROYAL COMMISSION ON

AUSTRALIA 'S SECURITY AND INTELLIGENCE AGE NCIES

General Report

Decembe r 1984

Australian Government Publishing Service Canberra 1985

© Commonwealth of Australia 1985

ISBN 0 644 04094 7

Note

Mr Justice Hope's views on publication of this Report are given in paragraph 1 .12. Publication has necessitated minor editing of one paragraph on security grounds.

Other Reports

Report on Term of Reference (c) (December 1983) Report on the Sheraton Hotel incident (February 1984) Report on the Australian Security Intelligence Organization (December 1984) Report on the Office of National Assessments and the Joint Intelligence Organization (December 1984)

Report on the Australian Secret Intelligence Service (December 1984) (not published) Report on the Defence Signals Directorate (December 1984) (not published)

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

GENERAL REPORT

CONTENTS

CHAPTE R 1: INTRODUCTION

CHA PTER 2: CONDUCT AND PERFORMANCE OF THE

AGENC IES

Legality and propriety ASIO

ASIS

DSD

Effectiveness and efficiency ASIO ASIS

DSD

ONA

JIO

Value of intelligence agencies

CH APTER 3: CONTROL AND ACCOUNTABILITY

Control of agencies Inspector-General Parliamentary Oversight

(iii)

1

5

5

5

9

10

11

11

13

14

15

17

18

19

19

23

25

Para.

1.1

2. 2 2.3

2.14 2.17

2 .20

2.21 2 .26

2 .30

2 .33

2 .39

2.43

3.1

3 .19

3 .27

CHAPTER 4: SAFEGUARDING OF INTELLIGENCE

Unauthorised disclosures Investigative measures Classified information in court proceedings Access to Sheraton transcript Public Access to intelligence records

APPENDIXES

Appendix A: Letters Patent

Appendix B: Application by Director of Public Prosecutions for the State of Victoria for transcript of proceedings in relation to the Sheraton Hotel incident

( iv)

26

26

27

31

32

32

35

36

Para.

4 .1

4.8

4.20

4.22

4.25

( l. 3)

( 4. 24)

CHAPTER l

INTRODU CTION

l . l After World \-;Ta r II, Australia's intelli gence and securit y agencies carried on their activities for ma ny years in considerable secrecy. They were accountable, directly or indirectly , to Ministers, who were in turn accountable to the Parliament , but any public knowledge of what they did and

indeed, in some cases, of their existence , was verv limited. Although at times incidents like the defection of the Petrovs and the subsequent Royal Comm ission lifted the curtain to some extent, for the most part they and their activities remained substantially hidden, with the Government rel y ing on what it was

told for most of its know ledge about them.

1 .2 The Royal Commission on Intelligence and Security (RCIS)

was establish ed in August 1974 to inquire int o and report upon the intelligence and security agencies. At that time, the agencies were the Australian Security Intelligence Organization (ASIO), the Australian Secret Intelligence Service (ASIS) , the Defence Signals Divisio n (DSD) and the Joint Intelligence Organization (JIO). In that inquiry , I investioated the activities of those agencies in considerable depth, inclurlin g allegations of ill egal or improper acts. I reporte<'l bv April 1977 upon what was found and made recommendations for the future.

1.3 The present Commission was established

security and in May 1983

primarily to inquire into the agencies , especiall y in the period s ince RCIS ,

intelligence and into the

implementation of Gove rnment decisions made in the light of recommendations of RC IS. The agencies were the same ones I had inquired into in RCIS (Defence Signals Division having been and the Office of National re-named Defence Signals Directorat e) Assessments (ONA) which was establishe d Letters Patent which provided my terms

following RCIS . The of reference are

l.

reproduced at Appendix A. Two matters were added to this inquir y which required special attention, one arising immediately before the Commission was established, the Ivanov/Combe affair, and one arising after its establishment, the Sheraton Hotel incident. I presented my Report on Term of Reference (c) - the Ivanov/Comb e affair - in December 1983 and the Report on the Sheraton Hotel

incident in February 1984.

l. 4 The two

inquiry for special inquiries diverted me from the some months. However, apart from the

general need to

investigate those matters, and the value of so doing, those inquiries were valuable for the purposes of the wider inquiry in throwing light on aspects of the activities of ASIO and ASIS.

1.5 Thus a decade after I first began to investigate

Australia's security and intelligence agencies, I am concluding another review of them and their activities. RCIS commenced its investigations in August 1974, and the final reports were presented in April 1977. The present Commission was established

in May 1983, but for some eight months I was largely occupied in investigating the Ivanov/Combe and the Sheraton Hotel matters. The RCIS inquiry was thus substantially longer, and it had to uncover more new ground, than the present one. In this inquir y , with the background of RCIS, I have been able to focus more

readily on the precise matters calling for investigation.

1.6 The period between the inquiries saw the enactment of a new Act governing ASIO, the establishment by legislation of ONA, the public acknowledgement of ASIS and DSD, the reorganisation of JIO, and the implementation of many RCIS recommendations, or of variations of or substitutes for them. It also saw a growth in

the establishment and activities of several of the agencies, and in their budgets.

1.7 I am setting out in the separate reports on the agencies my findings, conclusions and recommendations in relation to each of

2.

them. I indicate in those reports the way in which I conducted my inquiries.

1 .8 I am also in a position to form a more general view as to

what has happened to Australia's intelligence and securit y

services over the past decade. In Chapter 2 I make some general observations . In Chapter 3 I address questions of oversight ann accountability which are common

address some general questions

intelligence in Chapter 4.

to all of the agencies . I

relevant to safeguardin g of

l. 9 The

agencies

investigation of Australia's security and intelli gence is a large undertaking. I express my appreciati on to those people, from within government and from outside, wh o contributed , by their submissions and in discussions, to my

understanding of the

for consideration. subject and who raised The agencies themselves inquiries throughout. I facilitated assistance

my

which

with me proposals co-operated appreciated and staff s .

and

the

I I received from managements

received a number of complaints related to agencies from members of the public and my inquiries into those complaints helped to

inform me further. I refer in the separate reports, principall y in the Report on ASIO, to my handling of complaints . In a few cases, I have thought it appropriate to report on the outcome of my inquiry into particular complaints.

1.10 I should add

considerable demands that an inquir y of this kind mak es

of time and effort upon the agenc ies

subject to it. I was conscious that, while responding to my various demands , the agencies had also to conduct their normal business. An inquiry such as this can have som ething of an ∑ ∑ ∑se to uncertainties unsettling effect upon an agency, g1v1ng r1 among staff as to what may follow from the eventual report. At

the same time, it has become apparent to me that' regardless of the outcome of my inquiry, the process of the inquiry itself has had positive effects. The very fact of questi oning by an outsider can stimulate an organisation to think again about it s

3.

functions and the way it is carrying them out. I have seen in each of the agencies internal reviews or changes initiat ed as a result, in part at least, of matters to which I have drawn attention.

1.11 Even though I sought to be selective, and I had the

background of RCIS, the present inquir y has involved an immen se amount of work including the reading of innumerable file s a nc'l documents, the interviewing of a great many people, the writin g of endless memoranda and analysis of a mass of material. This task would have been impossible without the assist ance of dedicated, able and intelligent counsel and staff. I express mv deep appreciation and thanks to all who were involved in the

inquiry; Mr D.M. Ryan, Q.C., and Mr J. Rapke, Counsel assisting the Commission, Mr B. C ox and Mr R.A. St. John successive

secretaries of the Commission and the other mem bers of the fairl y small staff. I am greatly indebted to them all.

1.12 I have indicated in the other reports my views in reqarc1 to their possible publication. The nature of the subject matters rules out, on grounds of national security, publication of a great deal of the material. In the case of ASIO, however, there should be scope for publication of a large part of the report. This report has been prepared with a view to its possible publication, should that be the Government's wish, subject to

the possible need for a limited amount of editing on securit y grounds. The report as presented is classified to guard against that need.

4.

CHAPTER 2

CONDUCT AND PERFORMANCE O F THE AGENCI ES

2.1 Th e

attention terms of reference for the inquir y directed my to questi ons, among others, of legalit y and propriety in the acti viti es o f the agencie s and of efficienc y and

effectiveness in their performance. I set out in this chapter some broad observati ons under those heads. My co mm ents do not purport to s ummariz e all that I hav e said on these matters in the separate reports on the agencies.

Legalit y and propriet y

2 " 2 Questions of legality and propriety are rele vant in the

ma in to the three agencies, ASIO, ASIS and DSD, wh ich are

concerned with the collection of intelligence. In theory those q uestions could aris e in respect of ONA and JIO, the

international intelligence assessment agencies, but in practical terms this is unlikel y .

ASIO

2 . 3 Perhaps one of the greatest changes that I have found in

ASIO is in the degree of its concern for compliance with the

requirements of the law and of propriet y. It is not to be inferred from this statement that in 1974 ASIO disreg arded law and propriety. The environment in which the O rganization operated was then significantly diff erent to the environment

today . In 1974 it had little legislati ve or governmental guidance or direction as to what it should or should no t do ∑ A lot of what it did was based on implied powers, or on the vague support of the prerogative. Ministers generall y distanced

themselves from its activities, althou gh at times M iniste rs had misused it or expected too muc h from it.

2. 4 The change that has taken

number of causes. They include

5 .

place s ince RCIS the RC IS inquiries

is due to a

ancl reports

and Government action upon them. Another cause wa s the

leadership of Mr Justice Woodward followed by that of

Mr Barnett. But beyond and probably more important than these

causes has been the effect (common to some extent to all three collection agencies) of ASIO having come out of the cocoon in which it had been hidden. Public and political awareness of ASIO has imposed upon it a greater accountabilit y , and its awareness of this accountabilit y has brought about a deeper considerati on and a greater consciousness on the part of its officers of the limits within which they must or should operate. This tendency has been assisted by the guidance which the Securit y Appeals Tribunal has given it in the cases, relatively few though they have been, which have come before it.

2. 5 ASIO has been concernen to ensure that its operations and actions are within its charter, the Australian Securit y Intelligence Organization Act 1979 (ASIO Act), since that Act came into force, whether in relation to the collection or communication of intelligence or to advice to Ministers and Commonwealth authorities. It has been substantiall y successful

in achieving that goal. The exceptions have been cases such as the inadvertent continuance of the interception of a telephon e for a day after the warrant had expired and compliance with formalities such as delegations and like matters. Mistakes have been made, some bad and unprofessional, but all within the terms of the charter. This stands in contrast with some things that happened in ASIO's earlier period.

2.6

good ASIO's as its

record as to propriety record as to legality. is good, but not quite as It is immeasurably better than it was in earlier years. There have been a few cases where considerations of propriety should have precluded

investigations, or the extent of investigations, which were carried out, but these stand in strong contrast with the bulk of the Organization's activities. In some cases ASIO's concern with propriet y ma y have resulted in undue caution.

6.

2 . 7 Although ASIO's concern for prop ∑ t h h r1e y as t us greatly improved, it has continued, from time to time, to make some quite unprofessional mistakes. ASIO should always take care to avoid making, and have in place systems designed to check for,

when what the

the rights or

possible mistakes. This need is particularly great Organization does ma y impinge upon or affect standing of some person, whether a citizen or not.

2 .8 From time to time incorrect allegations are published about

ASIO 's conduct. The publication of these allegations raises the

question whether there should be some flexibility in regard to

the practice that no comment is made about securit y ma tters. Should the Attorney-General, in selected cases, mak e a stat ement about the true position , he should make it clear at the same time that the statement is not to be taken as an affirmation o r denial of any other allegation which has been or ma y be

published.

2.9 I have concluded that the interests of Australia would be

best served by an adherence to the traditional practice except in very special circumstances, whether the allegation s are correct or incorrect. ASIO may suffer, and its morale mav be affected, by false allegations of misconduct. There is also a public interest in knowing whether allegations are untrue, as

there is in knowing whether allegations are wholly or partl v true, if that is the case. However these considerations are generall y more than outweighed by national secur i tv

considerations. It is not possible, by having a practice of making statements on selected issues, to avoi<'l public disquiet about allegations that are not dealt with, or indeed to avoid a belief by the public that the allegations not dealt with are

true. Again, it would be wrong to have a

statements only for the protection of ASIO . to the rule should be in those special

practi ce of making The only exceptions cases wh ere the

allegations are so serious that to maintain silence would be to prejudice national security itsel f.

7.

2.10 If my recommendations about an Inspector-General are accepted, the public interest in knowing whether ASIO (or indeed any intelligence service) is conforming with the requirement s of the law and of propriet y will be met by that officer's

investigations and reports. The public's curiosity about the facts ma y not be satisfied, but the public will know whether it can have confidence in the integrity of the securit y and intelligence services; and the interests of any individual who might be adversel y affected will be protected.

2 .ll A reason for much of what challenge there is to the

legality or propriety of ASIO's activities is to be found in the belief held by man y people that their telephones are being tapped or that they are otherwise subject to surveillance by ASIO. The sheer logistical problems that would face ASIO if anything like what is claimed were true should suggest that man y of the claims cannot be well founded. In dealing with subversion

in the Report on ASIO, I have recorded some information which gives an indication of the limited extent of ASIO's activities in this area.

2.12 All complaints of telephone interception or surveillance which have been made to me have been checked. I have recorded in the Report on ASIO the results of allegations which received publicity hearings held during the inquiry. Of

the investigation of some arising from the public the people who complained

to me about telephone interception and/or surveillance by ASIO, only one was the subject of telephone interception and surveillance after RCIS, and this interception and surveillance had also existed before RCIS. In one other case, many years before RCIS, there was a short telephone interception, a search of a house, the obtaining of a letter for a short time and the retention of a copy of it, and possibly some personal

surveillance. The surveillance by ASIO in the first case was proper, and the interception was duly authorised by the Attorney-General. The telephone interception in the second case was properl y authorised, but the search and mail activity

8.

occurred long before RCIS and the 1979 legislation, and neither records nor inquiry reveal by what authority, if any, they were effected.

2.13 Apart from these cases none of the complainant s had had their telephones intercepted or were surveilled by ASIO, save that in the case of three people ASIO had collected information so long ago that neither records nor inquiries established their source. The source ma y well have been telephone interception

(before the warrant system was instituted in 1960) and/or surveillance by ASIO.

ASIS

2.14 ASIS exists to collect foreign intellig ence. activities , ASIS has no special

emphasised. ASIS

is requir ed exemption, does not

to comply with Australian as the High Court has

work to de-stabili se

In it s law; it

recentl y foreign

governments nor does it carry on 1 covert action 1 abroad (i.e. action which may involve force or violence for purposes such as the rescue of hostages or sabotage). But, until the Sheraton Hotel incident, ASIS did have a training scheme in operation to give it some limited and contingent capabilit y for this sort of action if required in time of war, or of crisis short of war∑ ASIS does not seek to subvert governm ents, to assist subversive

organisations or to interfere with the general conduct of Australian foreign policy.

2.15 The illegalities involved in the Sheraton Hotel incident, on which I have already reported, were a bad aberration. Firm

and clear steps have been taken to ensure that no such incident

will happen again.

2.16 I should emphasise that the Government Directi ve under k

0

d 1 ∞ gned to ensure close which ASIS is required to wor 1s es control of its activities by the Minister for Foreign Affairs .

9.

The practice

Director-General examination of safeguard did

of

of

the

not

frequent ASIS and the

detail of operate to

communication between the

Minister did not extend to training prevent programs, so

the Sheraton this Hotel

incident. My recommendations about future training procedures and objectives are designed to preclude any repetition of such an incident.

DSD

2.17 DSD has

legality and less occasion propriety than to be

ASIO.

affected It is

by questions of concerned with

information and intelligence from electronic emissions and the security of government communications and electronic emissions. By law only ASIO and the Australian Federal Police are entitled

to obtain intelligence from Telecom communication systems. I have no doubt that DSD complies with the obligations which law imposes upon it. In this regard there has been no change since RCIS.

2.18 Allegations have, however, been made at times in the media attacking DSD for what if true would be serious breaches by it. In the National Times of 20-26 May 1983 it was alleged that DSD had intercepted the telephone calls of Mr Denis Freney,

including calls with Mr Ken Fry, MP, and that these breaches of the law RCIS. This last statement is untrue;

and of some other people, were discovered by me in

and neither in RCIS nor in

this inquiry have I found evidence supporting any of these allegations. I did not report in RCIS that I had found any such evidence. The article in the National Times also contains a number of other inaccurate allegations.

2.19 Mr Freney himself submitted to me that DSD had illegall y tapped his telephone calls and that OTC or Telecom possibl y handed over copies of messages sent by him. I have investigated this submission. DSD did not intercept Mr Freney's telephone calls and it did not obtain copies of his messages from OTC or Telecom. In addition, Mr Ken Fry , at the time the member for

10.

Fraser in the House of Representatives, said in evidence before me on 7 May 1984 that he had:

been given information that the intelligenc e comm unity knew, by intercepting intelligence message traf fic between Timor and Jakarta, that those iournalists (the five Australian journalists who were kill ed in East Timor on 16 October 1975) were going to be treated as

combatants, and they knew that the Indonesians we re about to invade the area where the journalists were , and they did not do a damn thing to protect them.

I have investigated DSD's activities. DSD had no in telligence

that the journalists were going to be treated as com ba tants , and did not know where the journalists were at the relevant ti me . There is no evidence of any improper behaviour on the part of

DSD in respect of any of these matters.

Effectiveness and efficiency 2.20 Effectiveness and efficiency are considerations relevant to all five agencies. The creation of ONA flowed from the RC IS report. Various RCIS recommendations and Go vernment decis ions and measures taken since, have been designed, among other things, to increase the efficiency and effectiveness of the agencies, or to adapt them to the new condition s in wh ich thev had to operate.

ASIO 2.21 Although there is still more to do, a lot of wo rk has been undertaken to restructure and to revitalise ASIO . The chanqe that is still in course of being undertaken is from a smaller service responsive to the issues and Director-General to a larger and

attitu des o f the current service more structured

responsive to predetermined policies. And, moreover, it is a change which is being undertaken in a signi ficantly changinq environment. In the years before RCIS, the greater part of ASIO's efforts were devoted to investigation of subvers ion, anil

wh a t was required to

they reached into radical corners beyond intelligence. The fall in the degree of obtain security attention paid by ASIO to subversive studies is reflected in the

ll.

material in Chapter 4 of the report on that agency . In budgetary terms, between one-sixth intelligence collection allocated to subversion.

and one-seventh of the mone y by ASIO in recent years

This diminution in acti vity

spent on

has been

reflec ted

the diminution in the need for intelligence about subversion , as well as a change in the public attitude as to what ASIO ought to investigate. It is no t irrelevant that the cold war, the Korean war and the Vietnam war spanned the greater part of the earlier

period.

2.22 As the attention ASIO gave to subversion declined, the

attention it gave to terrorism grew. Fortunatel y even now Australia has been spared the grosser forms of terror ism from

which many other countries have suffered. Nonetheless terrori sm has arrived here. It has created real and significant problems and a need for the intelligence required to meet them. While various bodies have been established to organise or co-ordinate protective measures, such as the Protective Serv ices Co-ordination Centre, and State and Federal police collec t rel evant intelligence and carry out counter-terrori s t operations, ASIO has an important role to play .

2.23 The threat from espionage and other forms of forei gn interference has remained at much the same general level, risin g or falling from time to time by reason of circumstanc es

generall y outside Australia's control. ASIO trie s to keep these activities in check.

2.24 Morale is an important factor in achieving effecti veness and efficiency. ASIO's morale is not high at the present time. There are several reasons for this. One of the more important reasons is the battering (in my opinion quite unjustified, except in relation to a limited number of mistakes which it ma de

in its reports of facts) which it took from the media at the time of the inquir y into the Ivanov/Combe affair. Time will heal that scar, but it is incumbent on those responsible for leading the Organization to restore the firm belief which it s offic ers

12.

must have in ASIO's purpose, and in the importance of that

purpose to the nation.

2.25 Mr Justice Woodward took the Organization a long wa y along the path out of the wilderness, but not the whole wav .

Mr Barnett has been endeavouring to follow the same course.

Action by ASIO is now needed to define its goals and to

re-examine its policies in the light of today 's problems and environment, and to tighten its structures and procedures to

make more assured the achievement of those goals and the

implementation of those policies. Action is now being taken, and it is to be hoped that further action will be taken, after decisions are made in the light of this report, which will further these ends and will help to assure the Australian public

that ASIO is properly doing the job that is expected o f it. My recommendations are designed in part to focus ASIO's att ention on those of its functions which have most significanc e for the security of the nation.

ASIS

2.26 Apart from the Sheraton Hotel debacle and its aftermath, ASIS's effectiveness and efficiency appear to have been growing , albeit rather slowly, over the decade. One of the problems wh ich it faced in 1974 was in its relationship to other areas of government. I am glad to report that the relati onsh ip between ASIS and the relevant areas of government has greatl y improved .

No longer is ASIS regarded as a remote,

body, hidden away and with its officers with the people it had to serve.

integrate ASIS more closely into structure.

Steps the

cocooned and obscure hav ing lit tle contact have been taken to

general intelli gence

2 .27 ASIS has been organising and re-organising over the last

decade achieve its goals. Its success in doing so has not

to

been dramatic, but it has been good. It has proved that it is a

valuable part of Australia's intelligence system .

l3.

2.28 With the closer relationship with other areas of government which it now has, I feel assured that ASIS will overcome the serious blow to its morale and confidence which it suffered from the Sheraton Hotel incident and that it s effectiveness and efficiency, and its contribution to Australia's intelligence, will continue to grow. I should emphasise again that the Sheraton incident was not

representative of the qualit y or professionalism exhibited by

ASIS in performing its principal tasks.

2.29 Because of the difficulties he had to face and the success

he has had in overcoming them, I would like to record that

valuable work has been done by the present actin g

Director-General of ASIS, Mr J. Furner, who was previousl y Director of JIO and was asked to take. over the leadership o f ASIS upon the resignation of the previous actin q

Director-General, Mr J. Ryan. In difficult circumstance s Mr Furner has done much to restore ASIS's confidence.

DSD

2.30 In 1974 DSD was impressive by any Australian standards and is impressive now. At the time of the RCIS I and others had some fear that the loss by retirement of a number of senior officers who had been with the organisation since its inception would

adversel y affect it. They retired, but there was no adverse effect. New people with the same dedication and the same capacity came forward to take their places and I have no doubt that this will continue to be the position.

2.31 DSD is an outrider organisation of the Defence Department, responsible not directl y to the Minister, but to the Department. This situation has advantages as well as disadvantages, but it produces a number of problems if only by reason of the fact that DSD is required to service the whole Government, as well as the

Defence organisation .

14.

2.32 DSD's activities have expanded since 1974, and its skills and technology have thus far substantially kept up with this expansion. I have made a number of recommendations about the co-ordination of DSD's activities, its relations with the Department of Defence and the Defence Force and the need to

maintain and develop appropriate capabilities. These recommendations should not be regarded in any way as a criticism of DSD's effectiveness and efficienc y . I think that their implementation should increase the value of the service DSD already gives, for they are essentially attempts to provide some additional guidance both general, and in relation to the service

it provides to the national intelligence community and the Defence Force.

ONA

2.33 ONA was established by legislation in 1977. ONA is an independent body whose principal activit y is to report upon and to assess intelligence. It is also responsible for the additional function of reviewing and reporting upon the co-ordination of the activities of the various agencies dealing with foreign intelligence.

2.34 Although it is a relativel y small body , ONA has been able to establish its independence quality of the and

work authorit y , and it has done

this by the

there are still some

which it

problems to be solved, produces. Although it has been able to

fulfil much of the purpose for which it was established. My inquiries have established the high regard in which it is held.

2.35 The ONA legislation provides that the functions of the organisation are to assemble and correlate information relating to international matters that are of political strategi c or economic significance to Australia and to prepare reports in relation to such of those matters as are of current

significance, and from time to time as circumstances require to make assessments in relation to such of those matters as are of

national importance. For the purpose of the assessments

15.

procedure, two Boards were established, a National Assessments Board and an Economic Assessments Board, whose members comprise the Director-General of ONA and specified officers of the Departments primarily concerned. The national assessments produced by ONA are considered by the relevant Board. Reports in relation to matters of current significance are issued without reference to either of the Boards, although in practice there is

informal consultation.

2.36 The national assessments which ONA has produced have been of high quality. ONA also produces valuable reports on matters of current significance in a number of forms. In recent years its product has tended to be more in the form of these reports rather than national assessments. In my report on ONA I discuss whether more emphasis should be given to the making of national assessments and to bringing the departments, particularly the economic ones, more into the assessment activity.

2.37 ONA must and does work in close collaboration with JIO. Both ONA and JIO share a responsibility for the making of strategic assessments. JIO's role is directed essentially to meeting the needs of the Defence Department and the Defence Force. ONA is concerned with broader national interests.

2.38 I have given consideration to the effectiveness of the two separate Assessment Boards, the National Assessment Board and the Economic Assessment Board. I have come to the conclusion that it would be better to coalesce these two Boards into one Board which I suggest should be called the National Intelligence Committee (NIC). As well as dealing with national assessments in

the way the existing Boards do, it should have programming and similar functions designed assistance in responding to to give ONA across the board

the needs of government. The

proposed committee is not designed in any way t-o reduce the independence of ONA, but rather to give departments a closer involvement in the intelligence assessment system.

16.

JIO

2.39 The recommendations of the RCIS which were accepted by the

Government involved a reorganisation of JIO, for some of its functions were taken over by ONA. JIO's principal function is to provide intelligence assessment to the Defence Department and the Defence Force, but it has as well an important role in co-operating with ONA in defence-related matters, and to some extent with the rest of government.

2. 40 JIO has adjusted well to the changes it had to make, and it handles a vast amount of intelligence and issues assessments and reports many of which are of a high standard. Its produc t is well regarded by those who receive it.

2.41 A lot of JIO's work is encyclopaedic, that is, the collection of information, at times in considerable detail, on matters a knowledge of which could be of importance to th e Defence Force. It also has an important assessment role designen primarily to meet the needs of the Defence Department and of the Defence Force. In respect of strategic assessment s , J IO 's

function overlaps to some extent that of ONA, but it is intenden to be more sharply directed to defence rather than nati onal needs. The assessments

removal of

has enabled its

JIO

function of to concentrate making national more closely on

defence requirements and, although it is somewhat difficult to make a comparison, the quality of its work in this regard is

certainly as high as and I think rather higher than it was ten years ago.

2.42 JIO must produce intelligence not only for the purpose o f Defence Department planning, but also to satisf y the needs of the Defence Force. It is important that Defence make s clear what those needs are and that, so far as it can, JIO sati sfies them . My inquiries have shown some gaps in identif ying and meeting the

Defence Force's needs, but steps are now being taken to fill those gaps and JIO for its part is full y conscious of the neecl

17.

to pursue this course further. I propose a Defence Intellig ence Committee to give structured advice of requirements.

Value of intelligence services 2.43 In RCIS I reported that Australia needs intelligence of quality, timeliness and relevance, and that for this purpose it requires to have a highly professional system of intelligence

and security services. These needs are as important now as they were a decade ago, and indeed the matters in respect of which Australia requires intelligence have expanded considerabl y .

2.44 The product of Australia's intelligence services is of great value to the nation. No doubt there will always be room for improvement, and no doubt their need for resources will always have to be measured against the proper claims of other national interests. I am satisfied, however, that Australia's investment in its intelligence services is well justified, and that governments should continue to ensure that they are able to fulfil the important roles they play in helping to advise and protect Australia's national interests.

18.

CHAPTER 3

CONTR OL AND ACC O UNTA B ILITY

Control of agenc ies

3 .1

the

The Direct ors-General of ONA and conduct o f their agencies, in AS IO are responsible for accordance with their statutor y chart ers, to the Attorney-General respecti vely.

Prime ASIS is

M in ister and

not constitut ed the

by

legislation but operates under a ministerial Directive, and the Director-General is responsible direct to the Minister for Foreign Affairs. DSD and JIO are Defence and their Directors

elements of the Department of are responsibl e through the

Secretar y of that Department (and the Chief of the Defence Force in the case of JIO) to the Minister for Defence .

3 ∑ 2 In the Report on ASIO I have recommen ded changes in the

ASIO Act affecting both the functions and powers of ASIO and

also the Minister's power of directi on. I have recommended some changes in the Office of National Assessments Act 1977 to

establish a single National Intelli gence Com m ittee in

the two present assessment boards (these groups are only). The intention is to involve departments

place of advisor y in the

intelligence process, but no t to imp inge on the

Director-General's independence. I have also recommended certain

changes in the ASIS Directiv e and, in the case of DSD , in the

Directive issued by the Secretary of the Department of Defence .

I have not seen the need to propose the enactment of legislati on

to constitute and regulate ASIS, DSD and JIO . They operate under

executive directives which should be, and are , revieweCl from time to time.

3 .3 The essence of existing oversight of the agencies lie s

arrangements for the control ancl in the direct minister ial control

of ASIS and, subject to legislat ive qualifications ,

ONA . DSD and JIO, while they enjoy a degree of

of ASIO and

autonomy in

19 .

operating terms, are very much part of the Defence organisati on and, through the Secretary, are subject to the Minister 's control.

3.4 I have stressed in the reports on ASIO and ASIS the

importance of the personal control exercised by the Minister, and the need for such control to be maintained and if possible strengthened. I have made proposals to strengthen the abilit y of the Attorney-General to exercise control in relation to ASIO.

3.5 In RCIS I found that the Australian intelligence community was fragmented and poorly co-ordinated and organised. Following RCIS, a special committee of Ministers was formed to set overall policy and oversee the work of the intelligence community. It was also decided that the ministerial committee should be

supported by a committee of Department Secretaries to advise the ministerial committee on matters of concern to it.

3.6 The relevant ministerial committee at present is the Security Committee (until very recently known as the National and International Security Commit tee) of the Cabinet. The members are the Prime Minister, the Attorney-General, the Special Minister of State, the Minister for Foreign Affairs, the Minister for Resources and Energy and the Minister for Defence. The Committee is supported by the Secretaries Committee∑ on Intelligence and Security (SCIS) which is made up of:

Secretary, Prime Minist~r and Cabinet Secretary, Department of Foreign Affairs Secretary, Department of Defence Secretary, Department of Finance, Chief of the Defence Force Director-General of Security Director-General of the Office of National Assessments

3.7 The way in which the Cabinet system operates is of course very much a matter for Ministers to determine. I am inclined to

20.

the view that one cannot expect a committee of ministers to exercise close oversight of the intelligenc e comm un ity on a continuing basis. Ov ersight of that kind necessaril y fall s more on the partic ular Minister responsible for an agency . The

imp ortant thing about a Cabinet committee is tha t it provides a

forum to which a Minister can take parti cular issues for deliberation or decision. And it has an important role in considering the budget for the intelligenc e comm unit y .

3.8 In my report on ONA and JIO I recomme nd that efforts be

ma de to

annually a ensure that summar y of

Securit y Committee Min ister s receive int ellig ence communi ty performance and

issues affecting it. This would prov ide background against wh ich the Commi ttee can consider parti cular issues, and may prov ide

the opportunit y fo r issues to be raised for discussi on by M inisters who are no t direc tly responsible for an agency .

3 .9 The Secretaries Committee (SC IS) likewise cannot be

expected to exercis e detailed oversi ght. What it can do is provide polic y guidance to co-ordinate the handling agencies on

of issues particular issues and requiring ministerial

consideration. SCIS considers the budget estimates of the agencies and makes recommendations to Ministers on them .

3 .10 The present membership mak es SC IS someth ing of a hybrid ∑

It includes several department heads, and the Chief of the Defence Force, who are all a step removed from the intell igence

agencies for which they are provid ing guidance. In additi on , the

Direc tors-General o f ASIO and ONA are members .

3 .11 The Directors of ASI S , DSD and J IO att end only by

invitation when an issue of particula r relevance to them is be discussed, or when their budget bids are being cons idered.

to

3 .12 There has over a period been dissatisfaction on the part

of ASIS , in particular, that its Director-General is no t a me mber. (DSD and JIO, as elements of the Defence Department' are

21.

in a somewhat different position, as the Secretary of the ir Department is a member).

3.13 In my view SCIS could with advantage be re-constituted to make it more clearl y a committee of department heads rather than agency heads. This would fit in better with the notion of it as a committee which provides oversight and guidance to the

agencies from a broader polic y perspecti ve than that in which

the agencies operate.

3 .14 In the Report on ASIO I argued that the Attorney-General's

Department should play a more active role in support of the Attorney-General in his oversight of ASIO. I propose now that the Secretar y to that Department should be a regular member o f SCIS, and not just attend on occasions where particular legal issues are on the agenda.

3.15 I consider also that the Director-General of ASIO, and the Director-General of ASIS, should be entitled to attend meetings of SCIS, but in the formal capacity of observers. They would be able to speak on issues in which they had an interest but would not be full members. This position would fit more comfortably with SCIS's role in reviewing the budget bids of the agencies.

3.16 The Director-General of ONA is in a somewhat different position given his statutory responsibilit y for co-ordination of inte rnational intelligence activities. I would suggest that he remain a member of SCIS.

3.17 In the Report on ONA and JIO I have proposed the

establishment of a new consultative committee a National Intelligence Committee (NIC) to be chaired by the

Director-General of ONA. NIC would among other things provide a regular forum for discussions at a senior level between the intelligence agencies and relevant departments. NIC's proposed role is more that of a senior working-level committee than that of providing broader polic y guidance and oversight as SCIS does .

22.

3.18 I recommend consideration of the reconstitu tion of SC IS as discussed above.

Inspector -General 3.19 In the Report on ASIO (Chapter 16), I recommend the

establishment of an office of Inspector-General with powe r to inquire into and to report upon ASIO' s compliance with the law

and with propriety, and the appropriateness and effectiven ess of its internal procedures. This recommendation is not intended to divert or to

Attorney-General intrude upon the responsibilit y of the or of the Director-General of Securit y but to provide an independent oversight of ASIO's activities, to give

" .

the public a greater assurance that those acti vitie s are proper ones, and to clear ASIO, or to bring it to task, as the case mav be, if allegations of improper conduct are made against it.

3.20 Both ASIS and DSD have to operate with in the law of

Australia , and at times (although less often than in the case of ASIO) questions of propriety affect their acti viti es. Although

the occasions have been infrequent, allegati ons of mi sconduct have been made against each of those servic es. If any official statement is made about such allegations, it is lia ble to be

challenged (rightl y or wrongly ) as being based on a response by the service itself.

3. 21 There is thus a case for the Inspector-Ge neral to check, as occasion requires, the legalit y and propriety of the activities of each of these services as well as of ASIO . Since

the rights or standing of ∑Australi an citizens would rarely be

involved, this responsibilit y should no t be onerous but it woulo

be valuable in providing an assurance for the Minister and the

public, as well as a protection for the serv ices, if allegations

of misconduct are made against them.

3 .22 The involvement of an Inspector -General in reviewing the

appropriateness and effecti veness of the internal procedures of

ASIS and DSD involves somewhat different consideratio ns than in

23 .

the case of ASIO. ASIO is a truly domestic body, and it s

internal procedures can have a direct bearing on the rights and liberties of Australian citizens. The other two services do not have the

problems same impact on

can arise from Australians . Nonetheless, time to time which could

particula r call for

independent would be

review. I

at

of

inv--estigation, and some within the competence have concluded that the

least of these problems an Inspector-General to Inspector-General should

investigate the appropriateness and effectiveness of particula r internal procedures if so required by the relevant Minister, the Minister for Foreign Affairs in the case of ASIS and the

Minister for Defence in the case of DSD.

3.23 The Inspector-General would report upon his investigation s to the Minister for Foreign Affairs, as regards ASIS, and to the Minister for Defence as regards DSD . As in the case of ASIO, it is not intended that the powers conferred upon the

Inspector-General should affect or intrude upon the present responsibility of Ministers , Departments or Directors in respect of those services. His role would be that of an independent watchdog assisting the Minister in looking after the public

interest in the proper functioning of the intelligence services.

3.24 There is little occasion for the involvement of an Inspector-General in the case of ONA or JIO. As I indicate in respect of those agencies (Chapter l), issues of legalit y an<'l ,... propriety can rarely arise. These services report upon or assess

intelligence collected by others. However, there have been occasions when matters within these organisations have had to be investigated. I have concluded that the Inspector - G~neral should not have any general role in respect of them, but that he should be able to investigate and report upon any particular matters referred to him by the Minister responsible for the particular service, the Prime Minister in the case of ONA and the Minister for Defence in the case of JIO. I would not expect this to

happen often; but the facilit y of resorting to the

Inspector-General could be useful from time to time.

24.

I I

3.25 If the office of Inspector-General ∑ 1s creat ed and he is g i v en r e s pons i b i l i t i e s o u t s ide AS I 0 , 1∑ t 1 d b wou e appropriate

that he be called the Inspector-General f o Intelli gence and Securit y .

3.26 I recommend that an offic e of Inspector-Gen eral of

Intelligence and Securit y be establish ed , wit h functions and powers in relation to ASIO as recommended in that report on that agency and, in respect of ASIS, DSD, JIO and ONA , as proposed

above.

Parliamentar y oversight 3.27 Each of the agencies Minister. is

I

accountable to Parliament through refer to other aspects of this its responsibl e accountabilit y to Parliament, includin g arrangements for briefing the Leader of the Opposition, in the separate reports on the agencies.

3 .28 There have been proposals for the establishm ent of a new

committee or com mittee s of the Parli ame n t to oversee

the

intelligence agencies. detail in relation to

I have add ressed th is questi on in some

ASIO in the report on tha t agencv. As

stated there, it is of course a matte r for the Parliament as to what committees it sees fit to establi sh. I have pointed to some issues that would need to be conside red carefull y in relation to conferring on a Parliamentar y committee any pow er to require the

production of information from an prefer red approach is to suggest wa ys

intellig ence aaency . My in which the capacity of of

hy

Ministers to int elligence means of the

account agencies role of

to

could the

Parli ament fo r be strengthened

the _a-ctivities

for example,

proposed Inspec to r-General rather

than to propose separate new lin es of accountabi lit y .

25 .

CHAPTER 4

SAFEGUARDING OF INTELLIGENCE

Unauthorised disclosures 4.1 Leaks of documents and information held under varying degrees of confidentialit y by Australian government authorities have become too common. Immediately before the establishment of

this Commission, a newspaper discussed the contents of some of what were alleged to be 10,000 classified documents which its editor claimed he held or had access to. While the problem is not exclusive to Australia, its dimensions have been such as to give rise to serious concern, particularly in regard to the security of information classified on national security qrounds.

4.2 My terms of reference direct my attention , in the context of my examination of the security and intelligence agencies, to the question whether any changes in existing law and practices are required or feasible:

to provide for proper safeguarding, including safeguarding against unauthorised publication, of intelligence, including information provided by foreign governments in confidence.

4.3 The interests of national security demand that the material handled by the intelligence agencies be given the highest level of protection. Unfortunately leaks of material in recent years have included serious leaks of intelligence related material. There is no indication that the agencies I am inquiring into have been the source of the leaks. There is, as there must be, a high degree of

important that security consciousness in the agencies. It is they remain vigilant and do not take their own security for granted.

4.4 A good deal of intelligence related material handled by the intelligence agencies, or for which they have a responsibilit y , is also distributed to departments and other government

26.

authorities . The issue becomes a wider one of protective security arrangements within the government for the protection of classified national securit y information.

4.5 In m y Report on ASIO I have examined a number of aspects of protective security including arrangements for securit y checking of officials requiring access to classified material ann the provision of advice to departments on other aspects such as physical and administrative security. I have made

recommendations where I consider that more could be done, or arrangements could be co-ordinated better, in regard to the preventative aspects of security.

4.6 There is of course a cost, sometimes considerable, with protective security measures, whether in terms of mone y , efficiency or personal intrusion. While some such measures are required throughout government administration, it is important

that material and national security possible.

areas requiring reasons, should more string ent measures, for be identified as clearl y as

4.7 I am no advocate of an oppressive campaign to supervise ann regulate the activities of officials. That would be an over-reaction. On the other hand, at any rate in the national security area, it is important that the Government shoulc1 be able adequately to control the secret and confidential material which it holds. No business enterprise , including the businesses

of newspapers effectively if was 1 iable to

and other forms of media, could be carried on every piece of confidential information be leaked. To deny a similar right to

it holds maintain

essential confidentiality to the Government is unsustainable.

Investigative measures

be had to

the leakers thus far to

4.8 If protectives measures fail, resort must investigative measures. These ma y be taken against of information, or against the publishers. Attempts I discussed this

identify leakers have had minimal success.

27.

problem in the Protective Security Review, identified problems and suggested remedies. I do not propose to repeat here what was said in that report. However, among other things I pointed out that it is not for ASIO to play the role of a policeman, that there is some reluctance on the part of Department Secretaries to call in police forces to investigate their departments, and that the

departmental protective security officers lack generally be capable

departments.

necessary experience effectively and

leaks skills from to

their

of

investigating I

suggested the establishment of a specialist group which might he called the Inter -Departmental Protective Security Group (!PSG) . This recommendation was not accepted by the then Government.

4.9 It

measures leak of

has to

may not

classified

be admitted that even stringent protective be able to stop a determined leaker. When a national security material does occur, it is important that appropriate procedures should he in place to allow decisions to be taken quickly on investigative steps or other measures in response. As inaicated in the ASIO report, I remain of the view that investigation of leaks where espionage or subversion is not at issue is not an appropriate role for ASIO.

4.10 The Protective Security Manual (PSM) provides advice to departments on the handling of breaches of securitv including leaks of classified information (11.3 (i)). It is said to be 'the responsibility of departments to institute immediate investigation' . ASIO is to be informed without delay if there is

'any indication of espionage or deliberate subversion' (ll.3(ii)).

4 .ll The Department Secretary is to decide on inquiries, if any, to seek to trace the source of the leak. The Secretary, Department of the Prime Minister ana Cabinet ana the Secretary, Attorney-General's Department are to be kept informed of action proposed and the outcome; if classified information

also the Director-General of Security is involved. An Australian Feaeral

28.

Police inquir y is identified as one approval of the Minister, or the departments have received the leaked

option, subject to the Prime Ministe r if other information. The PSM draws

attention to other matters relevant to investigat ions.

4.12 Normally the department in which the breach occurs is to be responsible for the investigation, but in some cases it may be appropriate for the originating department to investigate (11.2(i)). There is to be close co-operation between each

departmental investigation officer (Annex E.l.l).

4 .l3 If it is decided, as a matter of policy, that action

should be taken in appropriate cases, it would be helpful for the Government to have at its disposal a specially trained and expert group to trace the source of any leak. I again put forward the concept of an !PSG, but failing that it would seem

to be necessary to have a special group of the Australian

Federal Pol ice who have the appropriate skills and a knowledge of the public service which would enable them to have greater success in identifying leakers than they have had so far. Whilst

Department Secretaries " res pons ibil it ies must be respected, I would see advantages in one central body being involved in investigation of at least all serious leaks.

4 .14 I canvass in the ASIO report the possibilit y of a role for

the Special Minister of State (SMOS) in protective security policy and co-ordination (effectivel y the !PSG role). As part of that role it might develop a small team of investigator s. They would need to work closely with the Australian Federal Police and call them in if a serious breach of the Crimes Act arises .

4.15 While the main objective will be to find the

responsible for the leak, if the leaker is found, there option of dealing with the matter by adm inistrative action

person is an

or by

criminal prosecution. Firm effective in some cases. This the removal, by dismissal or

administrative action may he action should normally result in transfer, of the guilty officer

29.

from any position where he has access to classified material. But in serious cases at any rate, criminal action should be considered.

4.16 The responsibility of the Government, as opposed to the media, for the classification or publication of documents as well as the justification for the taking of action against public servants who leak classified documents, are well described by Sir John Donaldson M.R. in Secretary of State for Defence v. Guardian Newspapers Limited (1984) 1 Ch. 156; aff'd.

(1984) 3 W.L.R. 986. In answer to a submission by counsel for

the defendant - a newspaper against whom the British Government was seeking interim relief in respect of a leaked document that the publication of the contents of the document had given potential enemies of Britain no information which would be of any assistance to them, the Master of the Rolls said, at p. 165:

The Crown case is that it has in its employment a servant or servants who have access to classified information and who are prepared, for reasons which seem good to them, to betra y the trust which is reposed in them. Whether or not any harm has been done on this occasion, the next may be different. It is no answer to this threat that the editor of

The Guardian is a patriotic and responsible citizen. The respons1b1l1ty for deciding what information shall be treated as classified and what shall be released into the public domain is not his or that of an individual civil servant applying his own criteria. It is that of ministers who are answerable to the nation through Parliament. The maintenance of national security requires that untrustworthy servants in a position to mishandle highly classified documents passing from the Secretary of State for Defence to other ministers shall be identified at the earliest possible moment and removed from their positions. This is blindingl y obvious and would not become any less obvious at any trial.

4.17 The present legislative provisions creating offences in respect of the leaking of documents or the publishing of leaked

documents are to be found in ss.70, 77 and 79 of the Crimes Act 1914. If

identified, the public servant who leaks s. 70 is adequate to deal with

30.

a document can be

the position, save

that, on one view, the technicalities that can be raised in respect of the concept of possession could be removed by appropriate amendments.

4.18 The other option is to consider action against the publisher of the information whose identit y will be apparent .

4 .19 If

publisher,

inadequate. in power,

it is des ired to take proceedings against the

s . 79 (which is the most relevant provision) is quite

It ma y be government polic y , no ma tter what party is not to prosecute the publish ers of classified material. However, if it were desired to have an effecti ve law for this purpose, s.79 would have to be amended. Th is section is one of a group of sections in Part VII of the Crimes Ac t which

were discussed in RCIS (4:2, 34-47). The Cr imes Ac t is now being reviewed for the Commonwealth Go vernment with a view to its

general amendment or re-enactment. I think that any am endments of s. 79 should be considered in conjunction with amendm ents to the other sections in Part VII and not in isola tion.

Accordingly, I do not make any specific recomm endation as to how s.79 should be amended.

Classified information in court proceedings 4.20 On a few occasions in recent years, issues have arisen in court proceedings in Australia about the treatment of information claimed by the Commonwealth Gov ernm ent to require protection on the grounds that it is classifi ed for reasons of national security. A related instance was the need seen,

following the Sheraton Hotel incident, for the Victorian and the Commonwealth Parliaments to enact legislation to enable a court to protect, on national security grounds, information that might be used in criminal proceedings.

4.21 I have not considered this q uestion in any detail . I note, however, that in the United States, following difficulties experienced in relation to possible criminal prosecutions , new legislation the Classified Information Procedures Ac t

was

31.

passed in 1980. That legislation facilitates the informed judgments about the extent to which it making might

of

be

necessar y for classified information to be disclosed in the course, for example, of a prosecution for espionage. I suggest that consideration be given to the need for legislation in Australia to assist the Commonwealth in coping with problems of

that kind should they arise.

Access to Sheraton transcript 4.22 My report on the Sheraton Hotel incident was made

following hearings which were held in camera, and at which the individuals involved in the incident were required to give evidence on oath. There were at the time of the hearings media reports of statements by members of the Victorian Government and the Victorian Police Force that the State was proposing to bring criminal prosecutions against the participants or some of them. I required the participants to give evidence, but I made orders

under s.6D of the Royal Commissions Act 1902 to the effect that their evidence was not to be published to any person.

4.23 On 7 November 1984, I received an application on behalf of the Director of Public Prosecutions for the State of Victoria for a copy of the transcript of the Sheraton hearings. Access to the transcripts was sought 'for the identification of the charges that ma y be laid by the Victorian authorities'.

4. 24 On 15 November

Public Prosecutions 1984, that I I wrote informing the

had decided against Director of granting his

request. I subsequently provided the DPP, and the solicitors for the other interested parties, with a statement of my reasons. That statement is set out at Appendix B.

Public access to intelligence records 4.25 In my report on ASIO (Chapter 7), I discuss that

Organization's concerns at the impact of the Archives Act 1983, including the requirement that Commonwealth records that are 30 years or more old be made available for public access (s. 31). I

32.

noted that there is provision for the exemption of records containing information, the disclosure of which could reasonablv be expected to cause damage to the security of the Commonwealth, or information communicated in confidence by or on behalf of a foreign government.

4. 26 I also noted that the grounds for can be reviewed by the Administrative claiming such exemption Appeals Tribunal. The

relevant minister can issue a conclusive certificat e in respect of a claim for exemption on these grounds. The Tribunal can then review the question whether there are reasonabl e grounds for the exemption claim and, if it finds there are not, the minister has

the option to revoke the certificate or publis h reasons for his claim. The Tribunal cannot override the minister's decision to issue a certificate.

4.27 Other intelligence agencies share ASIO's concerns that the 30 year limit is insufficient for many of their records as

release then could still reveal sources, modus operandi and other damaging information. It appears that the intelli gence community as a whole failed to press its concerns effectively during the long period during which the archives legislation was

in preparation. But it seems that there is a community wide problem which merits consideration even at this stage.

4.28 JIO indicates that it has records datin g back longer than the other agencies, to 1947, and that there has been an

essential continuity of interest which gives detail of earlier activities a continuing relevance to the present . It submits that the legislative requirement requiring a formal ∑ ble 1'n view of the justification of exemption 1s unreasona

∑ t staff to examine the detailed research required for appropr1a e records document by document. It puts forward proposals for intelligence agencies to have discretion on release up to say 50 years, with the public access rules only then applying.

33.

4.29 JIO also mentions the Freedom of Information Act 1982 , noting the special provisions for intelligence agencies. It indicates some continuing concern in relation to intelligen ce contained in documents prepared outside the intelli gence community but acknowledges that the risk has been minimised by paragraph classification procedures. I indicated in the ASIO report that I regarded the exemptions under this Act as appropriate (7.66). JIO does not submit a case for change.

4.30 In the ASIO report I recommended consideration of

legislative amendments to remove ASIO's operational records from the requirement to hand records to Archives and from the 30 year public access rule, whilst allowing the Director-General a discretion to hand records 30 years or more old over to Archives for public access consistently with the interests of securit y

(and personal privac y).

4.31 I recommend that the Government considers legislation along similar lines to records of intelligence remove operational (not administrative )

agencies generally from the mandatory

requirements of handover to Archives and public access after 30 years, leaving discretion with the agency heads to hand over records when appropriate.

34.

APPENDIX A

LETTERS PATENT

CO MMO~~EALTH OF AUSTRALIA

ELIZABETH THE SECOND, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealt h :

To:

THE HONOURABLE MR JUSTICE ROBERT MARSDEN HOPE, C.M.G., Judge

of Appeal, Supreme Court of New South Wales

GREETING: WHEREAS it is desired to have a judicial review of the

activities of Australia's security and intelligence agencies, namely, the Australian Security Intelligence Organizati on , the Australian Secret Intelligence Service, the Defence Signals Directorate, the Joint Intelligence Organisation and the Office of National Assessments (hereinafter called "the agencies "):

NOW THEREFORE We do by these Our Letters Patent issued in Our name by Our Governor-General of the Commonwealth of Au strali a on the advice of the Federal Executive Council and in pursuance of the Constitution of the Commonwealth of Australia, the Royal Commiss ions Act 1902 and other enabling powers, appoint you to

be a Comm1ss1oner to inquire into, and in relation to -(a) the activities of the agencies, especiall y since the completion of the inquiry made by the Ro yal Co mm ission appointed on 21 August 1974 to inquire into matters

relating to the intelligence and securit y services of the Australian Government (hereinafter call ed the Royal Commission on Intelligence and Securit y), with particular reference to - Government

the Roy al

and of the

( i) the progress made in implementing

decisions on the recommendations of Commission on Intelligence and Securit y Protective Security Review; (ii) whether the agencies have efficientl y , effectivel y

and properly served the interests of the

Australian people and Gov e rn me n~, including

whether effective arrangements ex1st for the establishment of policie s and prioriti es, for the co-ordination of their activities and for the oversight of their work; (iii) whether any changes in existing law and practices

are required or desirable - . (A) to ensure that the agenc 1es are properly

accountable to M inisters and the Parliament; (B) in relation to keeping the Leader c;>f the

Opposition informe d on matters relat1ng to security and intellig ence;

35.

(C) to provide for proper safeguarding, including safeguarding against unauthorised publication, of intelligence, including information provided by foreign governments in confidence; (iv) whether there is adequate provision for effective

redress for any persons who may be unjustifiabl y disadvantaged by actions of the agencies; (v) whether existing law enables effective oversight by the Auditor-General of the A us tr al ian Security

Intelligence Organization and the Australian Secret Intelligence Service in financial matters; (b) whether the activities of the Australian Securit y Intelligence Organization, especially since the

completion of the inquiry made by the Royal Commission on Intelligence and Security, have been carried out in compliance with the law, in particular the Australian Security Intelligence Organization Act 1956, the Australian Security Intelligence Organization Act 1979, the Telephonic Communications (Interception) Act 1960 and the Telecommunications (Interception) Act 1979; (c) further to the inquiry in relation to paragraphs (a) and

(b) above, all the circumstances, including the actions of the Government, surrounding the expulsion from Australia of Mr Valeriy Nikolayevich Ivanov, First Secretary, Embassy of the Union of Soviet Socialist Republics, and the involvement of Mr Harvey David Mathew Combe in those circumstances; and (d) any other related matters to which the attention of the

Commission is directed by the Prime Minister in the course of the inquiry:

AND We require you as expeditiously as possible to make Governor-General of your the inquiry and to furnish to Our Commonwealth of Australia -

(e)

(f)

(L. S.)

*

first and as soon as possible, a report of the results of your inquiry and recommendations in relation to the matters specified in paragraph (c) ; and a report or reports as soon as possible, and in any event not later than 30 June 1984,* of the results of your inquiry and recommendations in relation to the matters specified, or referred to, in paragraphs (a),

(b) and (d).

WITNESS His Excellency the Right Honourable Sir Ninian Martin Stephen, a member of Her Maiesty's Most

Honourable Privy Council, Knight of the Order of

Australia, Knight Grand Cross of The Most Distinguishen Order of Saint Michael and Saint George, Knight Grand

Extended to 31 December 1984 by Letters Patent issued on 18 May 1984

36.

Cross of The Royal Victorian Order, Knight Commander of The Most Excellent Order of the British Empire, Knight of the Most Venerable Order of the Hospital of Saint John of Jerusalem, Governor-General of the Commonwealth

of Australia and Commander-in-Chief of the Defence Force.

Dated this seventeenth day of May 1983.

By His Excellency's Command, BOB HAWKE

Prime Minister

37.

N.M. STEPHEN, Governor-General

APPENDIX B

APPLICATION BY DIRECTOR OF PUBLIC PROSECUTIONS FOR

THE STATE OF VICTORIA FOR TRANSCRIPT OF PROCEEDINGS

IN RELATION TO THE SHERATON HOTEL INCIDENT

l. On 17 May 1983 I was appointed Ro yal Commissioner for the

purpose, inter alia, of inquiring into and reporting to the Commonwealth Government upon the activities of the Austral ian Secret Intelligence Service (ASIS).

2. On l December 1983 I was asked to inquire, within the

existing Terms of Reference, into an incident which had occurred on the evening of 30 November 1983 at the Sheraton Hotel,

Melbourne, in the course of an exercise conducted by ASIS.

3 . Inquiries into the circumstances of and surrounoing the

incident were immediately set in train. In oue course evidence was taken from witnesses on oath or affirmation , the witnesses being represented by counsel. The Commonwealth Government was also represented by counsel.

4. The hearings were conducted in camera, and a transcript was taken of most although not all of the oral evidence. My report on the incident was presented to the Governor-General in February 1984 for transmission to the Commonwealth Government.

5. A request was made on 6 November 1984 to the Commission on

behalf of the Director of Public Prosecutions for the State of Victoria ('the DPP') for 'a full copy of the transcript' of the inquiry conducted by the Commission which led to its Report on the Sheraton Hotel Incident. It was stated in support of the request that 'an examination of the transcript is necessary for the identification of the charges that may be lai d by the Victorian authorities'.

38.

6. Section 6P(l) of the Royal Commissions Act 1902 provioes:

Where , in

Commission relate , to the course of inquiring into a matter, a

commission of a State

opinion of communicate

obtains information that relates, or that mav the commission of an offence, or evidence of the of an offence, against a law of the Commonwealth, or of a Territory, the Commission may, if in the

the Commission it is appropriate so to do, the information or furnish the evidence, as the case ma y be, to -(a) the Attorney-General ... of a Stat e ... '

or

(e) the authorit y o r person responsible

administration or enforcement of that law. for the

7. The request of

after a favourable the Victor ian OPP can only be compl ieo with exercise of the discretion conferred by s. 6P . I have accordingly, for the purposes of exercisinq that

discretion, reviewed all of the information and evidence obtained in the course of the inquirv into the Sheraton Hotel incident.

8. Before deciding to accede to the request for the transcript, it would also be necessary to vary or revoke orders maoe bv me in respect of the evidence of all relevant witnesses (save the evidence of three employees of the Sheraton Hotel, Messrs. Rice , Sezgin and Swift) pursuant to the provisions of s . 60 of the Royal Commissions Act. Section 60(3), (4) and (5) provide as

follows:

(3) The Commission may direct that -

( 4)

(a) any evidence given before it; (b) the contents of any document, any thing, produced before, or

or a description oeliverec'l to,

Commission; or (c) any information that might enable a person before the commi ssion who

to

given evidence identified,

of

the

has

be

shall not be published, or except in such manner, and

Commission specifies.

shall not be published, to such persons , as the

A person who makes any publication. in contravention gl∑ven un"'er sub-sect1on (3) is quilty any direction u

39.

of

of

9.

( 5)

an offence punishable , upon fine not exceeding $2,000 or not exceeding 12 months.

summary conviction , imprisonment for a

This section shall he read as in aid of and derogation of the Commission's general powers that any evidence may be taken in private. not

t:o

by a

period

as in

order

Some information and evidence obtained in or for the

purposes of the Royal Commission's inquiry could not conceivabl y relate to the commission of an offence. That information and evidence has been put to one side. The published Report of the Royal Commission sets out the general effect of the remaining

information and evidence which was obtained in the course of the Commission's inquiry. That information and evidence fell into the following broad categories:

(a) Statements made or furnished to officers of the Commission by ASIS personal and other witnesses before those witnesses

gave evidence to the Commission and before they had ohtainecl legal advice.

(b) Documentary evidence tendered to the Commission including material emanating from ASIS before and after the Sheraton Hotel incident and contemporaneous notes and memora nda .

(c) Objects tendered as evidence before the Royal Commission such as weapons and implements used in the incident .

(d) Transcript of oral evidence given by ASIS agents and other witnesses in the course of the Commission 's inquiry.

10. I have considered each of these categories of information and evidence and the circumstances in respect of them relevant to the determination of the question whether it is appropriate

to comply with the request which has been made .

11. Statements of witnesses These statements fall into two classes. The first consists of statements made to officers of

40.

the Commission by persons participating or involved in the ASIS exercise within 48 hours of the happening of the Sheraton Hotel incident . No warnings of any kinct were given before those statements were made . Indeed, the persons making them were

expressly assured that anything which they said in the course of those interviews would be used solel y for the purposes of the Roya l Co mmis s ion and would not he passed to the polic e or

otherwise used 1n connection with any charges that might be brought. Statements specifically with evidence-in -chief of

in the second class were pre par en

a view to

the makers of

being adopted as

the statements. Each the

such

statement was made with the benefit of advice from the maker's ow n legal adviser. It was then adopted unchanged as part of the

maker's evidence-in-chief.

12 . Before the evidence of the relevant ._.,i tnesses (other than

the three hotel employees previously referred to) was q iven, an orcter was made under s. 60 of the Royal Commissions Act in terms of which the following is an example:

In respect of the evidence given by ..... " ... I order that

any evidence given by him, the contents of any document or the description of anything produced before or delivered to the Commission by him or any information that might enable him to be identifi ed as a witness qiving evidence before this Commision, be not published e-xcept to Counsel ann solicitors and to their clients to the extent that is necessary to obtain instructions.

13 . I later extended the form of orders made under s. 60 in

these terms:

I add to the Orders that I have alrea dy made in respect of particular witnesses as to the publicati on of their evidence and of their names these Orders: That the contents of any document or the de~cription of any thing prod~ced befor~ or

delivered to the Commi -ssion, or any information that ~Ight ∑ b 'd t 'fi 'ed not be published enable any such w1 tness to e I en I ' . otherwise than to Counsel and solicitors who have ?een ~lven ∑ ∑ and to their cl1ents leave to appear before the Commission . . . to the extent that is necessary to obtain Instructions . In respect of any documents or things . produced beforeh or d 1 ∑ d to the commission otherwise than by t ose

w~t~~:~:s I mak e an order that those contents or

41.

descriptions shall not be published except to Counsel and solicitors for the persons represented and to their clients insofar as is necessary to obtain instructions. I may add that is to cover all types of Orders that Section 6D, sub-section (3) authorises.

14. At the time when the inquiries were first being made by the Commission, and at the time when the hearing began, public statements were being made by the Premier of the State of Victoria about the possible prosecution by the police of persons

involved in the incident for offences they may have committed, and the names of the persons involved (the Victorian Police had the names of only five of the men) were being sought from the Commonwealth Government. Action was being taken by the Victorian

Police Force to investigate those offences. Evidence of these matters and of the likelihood and indeed of the imminence of prosecutions was tendered before the application was made for the adjournment rate as regards the evidence of any

Commission, ** and an

of the hearing, at any person who might be

prosecuted. Among other things it was submitted that function of the Commission to compel witnesses

it was no

to make

self-incriminating statements to facilitate the institution and prosecution of the threatened proceedings.

15. Concurrently proceedings were instituted in the High Court by a number of persons against the Honourable Bill Hayden, M.P., Minister for Foreign Affairs and the Minister responsible for ASIS, and others seeking injunctions restraining the disclosure to the Chief Commissioner of Police of the State of Victoria the

[** Thus it was reported in the 'Australian' on 5 December 1983 that the police were determined to press ahead with criminal charges against at least five of the men involved, and hoped to complete a preliminary report recommending charges to he laid at

the end of the week. The 'Age' reported on 15 December 1983 that State Government sources expected charges to be laid against the five late that week or early in the next week, and on

16 December that the Acting Premier, Mr. Fordham, had said he believed that police had sufficient information to proceed with charges against the five)

42.

names, addresses and occupations of. the plaintiffs who were participants in the exercise or any other particular identifying or likely to identify them as persons who had worked for ASIS, or any act or thing done by them in the course of their work for ASIS . This information was sought by the Chief Commissioner so

that he m ight conduct investigations with a view to enforcing the criminal law against the plaintiffs. Interim injunct ions were granted and the matter was referred to the Pull High Court. The Court gave its decision on 6 November 1984 and dismissed the proceedings.

16. It is appropriate to refer shortly to the legislative background of the Royal Commissions Act 1902 in relation to the course which I took. Before the Act was amended in 1982, s. 6DD provided:

A statement or disclosure made by any witness in answer to any question put to him by a Royal Commission or any of the Commissioners shall not (except in proceedings for an offence against this Act) be admissible in eviclence against

him in any civil or criminal proceedings in any Commonwealth or State Court or any Court of any Territory of the

Commonwealth .

In Sorby v . The Commonwealth (1983) 57 A.L.J.R. 248, it was held that notwithstanding not be compelled to

the provisions of s. 6DD, a witness coul<'l which answer might incriminate him. In any question the answer

dealing in the same case

to

with a

similar provision in s. 14 (2) of the Queendland Commissions of Inquir y Act 1950, Mason, Wilson, and Dawson, JJ. in their ioint judgment pointed out at p. 260:

Section 14(2) provides some protection to a witness who may incriminate himself in answer to a question by rendering his answer, subject to limited exceptions~ . inadmissible; in evidence against him in any civil or cr 1m1na~ p~oceerhngs ∑

. ". As Gibbs C.J. has demonstrated, s. 14(2) 1n 1tself does not provide a protection to the witness whic~ .is coextensi~e with the protection given to him by the pr1v1lege. Th1s 1s because the privilege protects the witness not only from

incriminating himself direct ly under a c<;>mpulsory process, but also from making a disclosure wh1ch ~ay lead to

incrimination or to the discovery of real ev1dence of an incriminating character.

43.

Gibbs, C.J. said at p. 253:

If a witness is compelled to answer questions which ma y show that he has committed a crime with which he may be charqeo, his answers may place him in real and appreciable danger of conviction, notwithstanding that the answers themselves ma y not be given in evidence. The traditional objection that exists to allowing the executive to compel a man to convict himself out of his own mouth applies even when the words of the witness may not be used as an admission.

His Honour referred, inter alia, to a passage in the juogment of Lord Wilberforce in Rank Film Ltd. v. Video Information Centre (1982) A.C. 380 at p. 443, where his Lordship said:

Moreover, whatever direct use may or may not be made of

information given, or material disclosed, under the compulsory process of the court, it must not be overlooken that, quite apart from that, its provision or disclosure ma y set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an

incriminating character. . " " The party from whom I disclosure is asked is entitled, on established law, to be protected from these consequences.

17. Following this decision the Royal Commissions Amennment Act 1982 was enacted which replaced s. 600, but by a provision in a substantially similar form, and substituted for the existing s. 6A a new section which provided in ss. (2) and (3) the following:

6A (2) A person is not entitled to refuse or fail to answer a question that he is required to answer by a member of the Commission on the ground that the answer to the question may tend to incriminate him.

(3) This section does not apply where the offence in respect of which the production of a document or other thing or the answer to a question might tend to incriminate a person is an offence with which the person has been charged and the charge has not been finally dealt with by a court or otherwise finally disposed of.

In Sorby the High Court held that s. 6A(2) deprives a witness of the right to refuse or fail to answer a question on the grounn of self-incriminat~on.

44.

18. No application was made by any Victor ian authority to the Commission before the Report on the inc iilent was pres en teo for any information or evidence which it had obtained an<'l, apart from an informal discussion about the matter some time aft e r I

had reported upon the incident , in which it was agreec'l that further consideration of the matter should await the Hiqh Court d ecision , the first request made to the Commission was the one

referred to in paragraph 5 . The Commission's role in

investigating the incident was of course to report to the Co mmonwealth Government upon the activities of a Co mm onwealt h

agency . The Prime Minister's letter asking me to inquire into

the incident asked me to explore, among among other aspects, whether any breach of the law was committed by anyone carry ing out or authorizing the exercise . It inquiry to obtain statements from

exercise which would assist police

was not the purpose o f participants in the or other authorities in

the

ASIS

anv

prosecution against them. The information which was being souah t by the Victorian Chief Comm issioner of Police in Dec ember 1983 , and wh ich was the subject of the proceedings in the High Court, was information in the hands of the Commonwealth Gov ernm ent

otherwise than from the proceedings of the Commission .

19. On 14 December 1983 I deci<'led that I would not q ran t the

adiournment which had been sought, and stat ed that the reason for taking that course was that the orders made by me un<'ler s . 60 would preclude the giving to the polic e of anv of the

evidence tendered before the Commissio n covered bv the orc1ers, or information coming from that evidence. I also said that, was wrong in that view, I would grant the adiournment souqht.

if I

20 . O n the following day, 15 December 1983 ,

following statement in amplification of wha t I preceding day:

I ma

sairl on the

I want to clarif y something that migh t be a bit mislea

making the .orders under Secti on ~ D (3) tha t I have rna e .

The essential and primary and qulte ln

4 5.

national security concerning ASIS ' s operations , its method, its training, personnel involved and so on. That as I say 1s the primary and independent ground for making those orders. I also had in mind other grounds in relation to the giving of publicity to the evidence of persons who may be liable to be prosecuted but that's an entirely independent matter from

the basic and original ground upon which I primarily founned for the making of the orders. I would also add that since yesterday I have had the opportunity of reading again the decisions of the High Court in Hammond v. The Commonwealth and Sorby v. The Commonwealth and it does appear from those decisions that the pr1v1lege against self -incrimination extends not only to testimonial privilege but also to what may be called investigatory privilege . And the reason that I gave yesterday for not allowing the adjournment is in line with the reasoning. Assuming the construction of the effect of the orders under Section 6 (D) that I have made is

correct, the evidence cannot be made available for anv purpose to anyone other than the persons I nominated, and jn particular, cannot he made available for the purposes of enquiry for police or others in relation to any possible offences. If it could be so mane available then I woulc'l certainly sympathetically consider an adjournment. The only other thing I want to point out, although it is not material

to the present matter, or it may not be material, in due course I shall have to make a report which will in the

ordinary course be handed to the Governor-General, handed by the Governor-General to the Prime Minister, and that will contain recommendations as to publication but I myself have no power whatsoever in relation to the carrying out of the recommendations. It is entirely a matter for the Government to make up its mind and its not a matter in respect in which I have any legal power as opposed to the right to make

recommendations.

21. I have concluded that of the DPP to give him a

hearings or to communicate

I should not comply with the request

full copy of the transcript of the to the Victorian Attorney-General

information which was obtained by the Commission from ASIS personnel or as a result of information made available by ASIS. I will set out the principal considerations which have led me to

adopt this view. In arriving at my view I have hac1 the benefit of hav ing submissions from counsel assisting the Commission but not from other counsel. I would add that, if I was minded to vary or rescind the orders which I made under s.6D, I would

regard it as necessary to hear the persons at whose request those orders were made, or their counsel.

46.

22. Having regard to the comprehensive nature of the orders which I made under s. 60 of the Royal Commissions Act and the

circumstances in which the orders were made including my reasons for rejecting the applications for adjournment, those orders should only be revoked or varied if compelling fact ors raising an overriding public interest in their revocation or variation have emerged since the orders were made. I accept that it ma y be

that without access to some of the information and evidence the Victorian authorities ma y be unable to formulate or to substantiate charges in respect o f some, at least, of the offences which may have been committed in the course of the

Sheraton Hotel incident. I have also had regard to and of course accept the views expressed in the judgmen ts in A. & Ors. v.

Hayden & Ors. (unreported, High Court of Australia, 6 Nove mber 1984) as to the 'powerful public interest in the enforcement of the criminal law as an important element in the administration of justice'. I have however concluded in the light of all the circumstances that although I would not be precluded from

revoking or varying the s. 60 orders, I should not do so, and should not exercise my discretion under s.6P by acceding to the request for access to the evidence. As I have indica ted if I were minded to revoke or vary the s. 60 orders, I would have to hear from the parties affected before doing so.

23. Some of the information contained in the statements qoes to the identification of ASIS personnel and to a description of some of ASIS's operational methods and training techniques.

Considerations of national security argue against its disclosure, but, of course, those consideration s would not preclude communication of the whole of the informati on now under examination. In addition, some protection could be afforded to

the public interest in preserving national security by the Royal Commission seeking to impose string ent restrictions pursuant to

s. 60 (3) on the extent to wh ich the Victorian OPP or

∑ t th 1. nformation to others, or Attorne y-General could commun1 ca e e on the use which could be made of the informati on .

47.

24. A related consideration is of the information to be found that the communication of in the material statements

some will

involve the identificati on , as witnesses of matters relevant to the Sheraton Hotel incident, of persons who are themselves not conceivably liable to prosecution for any criminal offence. Those persons could be severely embarrassed and the usefulness of some of them in the future service of the Commonwealth could be gravely impaired if they were to be inentified to Victor ian police officers and interviewed with the object of obtainin g evidence in support of charges to be preferred against ASIS personnel. I accept that these considerations could not of themselves preclude the communication of all of the relevant

information to the Victorian DPP or Attorney-General. I also accept that some appropriate protection might be afforded to the witnesses concerned by communicating the information on terms which prohibited their identification or prevented them from being interviewed by members of the Victorian police force. However , restrictions of that kind could well frustrate, to some extent at least, the achievement of the purpose contemplated by s. 6P of the Royal Commissions Act.

25. A most cogent factor supporting the v iew that the

Commission should not communicate to the Victorian DPP or Attorney-General the information contained in statements obtained from ASIS personnel, is the consideration that much of that information (ana in some respects more) is in the

possession of the Executive Government of the Commonwealth which is responsible for ASIS and to which ASIS, as we ll as this

Commission, has made a report on the Sheraton Hotel incident. That the Executive Government, no less than this Commission, is required bona fide to make an assessment of the extent to which it should provide information to the Victorian authorities is made clear by the following passage from the judgment of Brennan

J in A & Ors. v. Ha yden & Ors. (supra) at p.62:

48.

No agency of the Executive Government is beyond the rule of law. ASIS must obey the law and, if its officers do not , the Executive Government must be free to do what it thinks right in the public interest in the circumstance s as they occur.

It makes no difference that the Executive Government of the Common wealt h is not charged with the execution of the

criminal laws of Victoria; it is incapable of prom is ing AS IS officers that it will not assist the C row n in riqht of Victoria from executing those laws when AS IS off ice~s are involved in what are reasonably suspected to be crim inal

offences and the Executive Government thinks that it is in the public interest to assist.

His Honour went on at p. 64, to spell out how the Executive

Government should exercise its discretion in the instant case, saying:

In the absence of a binding contract, the Executive

Government was at libert y to exercise it s own judgment as to whether it should disclose the plaintiffs' identiti es to the Victor ian Police Commissioner or whether cons iderati ons of national security justified a refusal to do so. Th at was a matter for executive discretion, not for judic ial decision.

The confidentialit y of ASIS officers' identi ties can rest on no more certain a foundation than executi ve judgment exercised honestl y having regard to considerations of national securit y and to the public interest in the

enforcement of the law.

26. The orders made under s. 6D and the circumstances in which they were made place

pos i tim1 to that of consideration to one

the Commiss ion in a somewhat different

the Commonwealt h Government. Putting that side, if the Executive Government of the Commonwealth exercises its discr etion by deciding to communicate a limited amount of information to the V ictorian authorities,

such as the names and addresses of personnel involved in the Sheraton Hotel incident, it would not be appropriate for this Commission to exercise it s own discr eti on on substantia lly the same facts to arri ve at a diffe rent result. It is not fanciful

to assume that the Executive Government is much better placed than the Commission to know and assess all the facts to be taken

into account in exercising that discretion . In addition , as noted above, this Commission is charged by its Letters Patent to make inquir y into and report to the Commonwealth Government on certain enumerated matt ers . What is required here, as the second

49 .

passage from the judgment of Brennan J already quoted, makes clear, is 'executive judgment exercised honestly having regard to considerations of national security and to the public interest in the enforcement of the law.' The exercise of that

judgment should not be pre-empted by a body from which the

Executive has sought a report such as this Commission.

27. It will be apparent that none of the considerations I have referred to has any application to information contained in statements made by the employees of the Sheraton Hotel, Messrs Rice, Sezgin and Swift. Those statements were adopted in the course of evidence, were not regarded as raising national security issues, and were not subject to any order under s.6D of the Royal Commissions Act. As presently advised, the Commission refrains from communicating that information to the Victorian DPP or Attorney-General solely on the ground that members of the

Victoria Police, as was indicated in evidence before the Commission, have already obtained statements from Messrs Rice, Sezgin and Swift. Should this ground be misconceived, or should other reasons be advanced by the Victorian authorities for making that information available, the Commission will reconsider this part of its decision.

28. Other documents tendered as exhibits before the Royal --------~~~~~~~~~--~--~------------------------~-

Commission The only documents in this category which relate, or may relate, to the commission of an offence are contemporaneous

notes and memoranda made by ASIS personnel. For the reasons indicated in respect of the documents in category (a), the Commission has concluded that it should not form the opinion that it is appropriate to communicate the information in those documents to the Victor ian DPP or Attorney-General. (The original of one internal ASIS document, a handwritten 'Warning Order' is already in the possession of the Victoria Police.)

29. Objects tendered as Evidence With the exception of a night stick used by Mr Rice and presumably the property of the

Sheraton Hotel, these exhibits comprised firearms, ammunition, a

50.

bag and two masks. The firearms and ammunition are no longer in the custody of the Commission. It is proposed to make the night stick available to the Victor ian DPP or Attorney-General if so requested. The remaining objects are presumably the property of the Commonwealth or the ASIS personnel who used them. For the reasons indicated in respect of the documents in categor y (a),

it is not proposed to make any further information concerning those objects available to the Victorian DPP or Attorney-General or to deliver to either of them the bag or the masks.

30. Transcript of oral evidence It necessaril y follows from the conclusion reached in (a) above, that I am of the opinion that I should not communicate to the Victor ian DPP or

Attorney-General any of the information contained in the transcript other than of evidence given by ASIS personnel or witnesses

Messrs Rice, Sezgin and Swift. The Commission's respect of the transcript of the evidence of the witnesses is the same as that set out in

response in latter three paragraph 27.

51.