Intelligence and Security - Royal Commission - Reports - 1st

Parliamentary Paper No. 246/1977

The Parliament of the Commonwealth of Australia

INTELLIGENCE AND SECURITY

Royal Commission

First Report

Presented by Command 25 October 1977

Ordered to be printed 27 October 1977

'f.he Commonwealth Government Printer

Canberra 197 8

© Commonwealth of Australia 1977

Printed by Authority by the Commonwealth Government Printer

FIRST REPORT

CONTENTS

Part Para

A PROCEDURAL MATTERS . 1

B METHOD OF REPORTING 15

c PUBLICITY TO BE GIVEN TO MY REPORTS 18

APPENDIX 1-A

COPY OF LETTERS PATENT, issued to the Royal Conunission by the Governor- General, on 21 August 1974.

APPENDIX 1-B

24713/77-2

OPENING STATEMENT by the Royal Conunissioner, 5 March 1975.

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FIRST REPORT

A. PROCEDURAL MATTERS

1. The Royal Commission was established by Letters

Patent dated 21 August 1974. A copy of the Terms of

Reference is set out in the Letters Patent which is

Appendix 1-A.

2. The nature of the inquiry directed by the Letters

Patent required a somewhat different procedure to be

adopted to that commonly adopted in the case of Royal

Commissions appointed to inquire into and report upon

issues of fact. This necessity is apparent from the terms

of the Commission itself, but arises particularly because

of the degree of secrecy attached to many of the matters

the subject of the inquiry. Clause 2(g) of the Commission

requires me to make recommendations in respect of the

degree of secrecy which should attach to the intelligence

and security organizations the subject of the inquiry, and

to their work. Until I come to a final conclusion about

the secrecy which should attach to any particular matter,

I have assumed that the same degree of secrecy should

attach to each matter before me as has attached to it heretofore.

3. Consequently, whilst some of the sittings of the

Commission have been held in public, most of them have

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been held in camera. This practice was adopted by me not

only because of the nature of the subject matter of the

evidence or submissions being given or made, but also for

the protection and in the interests of the persons giving

that or making those submissions, or of the persons

to whom they referred. For similar reasons, I have made

many orders pursuant to section 6D(3) of the Royal Commissions

Act 1902-1973, directing that evidence given before the

Commission, or the contents of documents, books or

writings produced at the inquiry, shall not be published.

Before presenting my final report, I shall review all the

orders I have made and reconsider them in the light of my

findings and recommendations and of circumstances prevailing

at the time.

4. Public notification of the appointment of the

Royal Commission and of the general nature of its inquiry,

and requesting any person who desired to place evidence

before or make submissions to the Commission to notify the

Secretary of the Commission, was given by notices published

in all leading Australian newspapers on various dates in 1974. Public sittings of the Commission have taken place

so far in Sydney, Melbourne, Brisbane, Adelaide and Perth.

Public notification of these sittings was given in news­

papers in the relevant State, including many ethnic news­

papers. (This latter course was adopted because I thought

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that some persons who might wish to place evidence before or make submissions to the Commission might read ethnic

newspapers rather than newspapers of general distribution).

Members of the press and of the public attended these

public sittings.

5. The Commission appointed in the US by President

Ford to inquire about matters relating to the CIA faced a

similar situation to that which I encountered. In its

report, it said: "The Commission has been determined from its inception to make a thorough and vigorous investigation. Because of the sensitivity of the CIA's intelligence and counter­

intelligence activities, and their critical relationship to national security, the Commission recognized that it must close its sessions to

the public. But as a consequence it has felt all the more an

obligation to conduct a diligent investigation, assuring the American people that all serious questions of legality and propriety within the area of responsibility

assigned to the Commission have been carefully investigated and analyzed." [1-1]

6. Private sittings of the Commission have been held

at the cities I have already named, and also at Canberra.

1-1 Commission on CIA activities within the United States, Report to the President, June 1975, pp x-xi.

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4.

Public notification of these sittings has not been given,

but the persons concerned with them have been given full

information as to the time and place of the sittings. A

number of persons have made written submissions to the

Commission who have not attended a public or private

sitting of the Commission.

7. The Royal Commissions Act 1902-1973 empowers Royal

Commissioners to take evidence on oath or. affirmation, and

to issue subpoenas requiring persons to give evidence or to produce books, documents or writings. It is clear, however, that Royal Commissions are not limited in their

inquiries to obtaining information by these means. It is clear also that they are not bound by the rules as to the

admissibility of evidence in judicial proceedings between

parties. These rules are directed to the obtaining of the best evidence to establish any fact. I have, wherever possible or practicable, endeavoured to obtain that evidence

when concerned to elicit the facts concerning any matter

arising in the course of my inquiries. On many occasions, I have felt it necessary to rely upon evidence other than

primary evidence.

8. The nature of the inquiry makes it inappropriate

to request the Attorney-General to appoint a barrister or solicitor generally to assist the Commission and to examine

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or cross-examine persons giving evidence to the Commission .

. This has resulted in the Secretary of the Commission

performing some of the functions that such a barrister or

solicitor would perform in addition to his ordinary duties as secretary, and I wish to acknowledge gratefully the

value of the work he has thus performed and will continue

to perform in the future.

9. It has not so far been necessary to resolve

disputed issues of fact for the purpose of resolving what

recommendations I should make. Although situations have

arisen where different versions of facts have been given

to the Commission, the resolution of the issue thus arising has not been necessary for the purposes of this inquiry.

Indeed, in some cases, it is the existence of the issue

rather than its resolution by me that throws light on the problems I have been asked to consider. I have no

doubt that in some instances it will be necessary for me

to resolve disputed issues of fact and that in some of these cases it will be inappropriate for me or for the

Secretary of the Commission to examine or cross-examine

the relevant witnesses. When such a situation arises, I

shall ask the Attorney-General to consider the appointment of a barrister or solicitor to assist the Commission so

far as may be necessary.

6.

10. At the first public hearings of the Commission in

any city I have read a statement as to the procedure I

propose to adopt in respect of those hearings. A copy of

the statement which I read at the first public hearing of

the Commission, which was held in Sydney on 5 March 1975,

is Appendix 1-B. The procedure adopted at private hearings of submissions or evidence made or tendered by

members of the public has been substantially similar to

that adopted in respect of public hearings.

11. Where it has appeared that derogatory allegations

will be made in respect of the conduct of an identified person by a witness, I have generally asked that the

evidence be given on oath or affirmation. I have not

always adopted this course, for example where there is a

mere statement that an allegation has been made publicly

or on a previous occasion. As explained in Appendix 1-B,

the Commission has power to issue subpoenas both for the

attendance of persons to give evidence and for the

production of documents. Several applications have been

made for the issue of subpoenas directed to the Director­

General of ASIO and certain other senior officers to

enable the applicant to examine or cross-examine those

officers about a security or intelligence organization and its activities. I have so far rejected these

applications. It is the duty of the Commission to obtain

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from these organizations all relevant information about

them and their activities. I and the officers assisting

the Commission have been doing and will continue to do

this in the ways described in the next paragraph. It does not follow that there are no circumstances under which I

shall enable a member of the public to cross-examine an officer of an organization. Thus it may be appropriate, in a particular case, to allow this course to be adopted

where a member of the public makes allegations, supported

by evidence, about the actions of officers of an

organization which, having regard to the terms of reference,

justify investigation by the Commission. In such a case it would be, and has been, the duty of the Commission itself first to examine the relevant officers. The question whether the member of the public making the

allegation should be afforded an opportunity to cross­ examine any of the officers would then have to be decided.

That decision would depend upon many matters including

the nature of the allegation, the nature of the evidence

given by the member of the public and the officer of the

organization, and the issue if any, arising as a result.

12. The Commission has already before it a great deal

of material concerning the organizations the subject of

the inquiry and concerning their work and the effect of

their work. The practice adopted by the Commission in

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relation to the organizations has been to ask them, in the first instance, to make reports, sometimes upon specified matters and sometimes generally in relation to the affairs

of the organization. In some cases further particulars

have been required in writing in respect of matters arising

out of these reports. There have been in these cases, as

well as in those cases where this procedure has not been

adopted, extensive oral discussions and questioning

concerning matters dealt with or arising put of these

reports. These reports have been supplemented by inspections

of files, reports and other documents and of places, and

discussions with and questioning of individual officers of

the organizations.

13. Information concerning the organizations and their

work has also come from persons not presently officers of

the organizations, including persons who have previously

been officers of the organizations, from departments,

statutory corporations and organizations, and persons affected by or concerned with the organizations and their work. In many cases this evidence or these submissions

have thrown fresh light on the activities of the

organizations and the value of their work, leading to

further inquiries and investigations.

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14. The organizations with which the Commission is

concerned have been at some pains to place material

before the Commission, and I should like to thank them

for their work. The response of the general pubLic,

including organizations whose purposes would seem to

relate to the matters the subject of the inquiry, has not been as widespread as might have been expec ted. There

are important issues of general public concern involved

in the matters into which I am inquiring, and the public

response in respect of those matters has not so far

thrown as much light upon them as I would have wished.

However, some persons and organizations have gone to

:onsiderable trouble to assist the Commission, and I

dlso express my thanks to them. A statement of the persons

and organizations who made submissions to the Commission

will be included in a later report.

B. METHOD OF REPORTING

15. The Letters Patent require that I inquire into and

report upon the history of the intelligence and security

services of the Australian Government, and that, in the

light of past experience and having regard to the security of Australia as a nation, the rights and responsibilities

of persons and future, as well as present needs, I make

recommendations on the intelligence and security services

which the nation should have available to it and on the way

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in which the relevant organizations can most efficiently

and effectively serve the interests of the Australian

people and Government. I am also asked to report and

make recommendations upon a number of particular matters,

all of which might be regarded as falling within these general matters.

16. It will be seen at once that the execution of the

duties imposed upon me by the Commission will require a

very wide and detailed investigation and that the completion

of the whole of that investigation may take a considerable

time. In a sense, all the matters which I will be required

to deal with are related to each other in some way, but I

am satisfied that it is possible to deal with a number of

matters arising out of the terms of the Commission in

separate and distinct reports. Some of the matters into

which I have to inquire will take a longer time to

investigate than others, and the investigation of some matters will be completed before the conclusion of the

whole of the inquiry. In respect of some matters the

investigations which I have made so far enable me to make a report containing recommendations to which I think

effect should be given before, and pending the completion of, my inquiry, and in respect of some of which it may be

that a later or final report will contain fuller and possibly somewhat different recommendations.

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17. Interim recommendations of this kind are of course

only possible if their implementation will not prejudice

any final recommendations I might make. On the other hand,

I may be satisfied that I am able to make final recommen­

dations upon a special subject matter and make those

recommendations in a separate report before my final report

is ready. It will be necessary for me to make clear, and

I shall make clear, whether any recommendations made by

me are of an interim or of a final nature.

C. PUBLICITY TO BE GIVEN TO MY REPORTS

18. The matters discussed and the recommendations made

in a report may be such that I consider that the whole

report should be made public, or should not be made public,

or should in part be made public and in part not be made

public. I shall clearly indicate my recommendation in

this regard in respect of each report. In those cases where I consider that part of the report should be public

and part not public, each part will be contained in a

separate document. In respect of some matters, the materials

dealt with will be of a highly secret nature and in respect of any report dealing with them it will be necessary to

recommend a very restricted distribution only.

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19. I have referred to my conclusion that it is

appropriate that I should make a number of reports about

particular matters. This is the first of the series. I

am, at the same time, submitting my second report.

20. In my view, it will be necessary in respect of

each report for me to recommend first of all whether it

should be made public or regarded as classified. The

decision as to publication or not is not _mine. I shall

make it a practice, however, to classify my reports or

parts of them in accordance with the procedures and rules

now in force within the Australian Government. The

decision as to declassification or reclassification is

also not mine.

21. In respect of the first and second reports, I

recommend publication, except for certain Appendices to

the second report.

22. The recommendations I shall make in the second

and later reports may be in part final and in part

interim, pending the making of a final report on these

matters. In each case I shall indicate the nature of

the particular recommendation. I am satisfied that the

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matters dealt with in the second report can properly be

dealt with separately from other matters the subjects of the inquiry. I am also satisfied that, for reasons

stated therein, it is appropriate to deal with them now rather than later.

APPENDIX 1-A

AUSTRALIA

ELIZABETH THE SECOND, by the Grace of God Queen of

Australia and Her other Realms and Territories, Head

of Commonwealth:

TO -

THE HONOURABLE ROBERT MARSDEN HOPE Judge of the Supreme Court of New South Wales

GREETING:

WE DO BY these Our Letters Patent issued in Our

name by Our Governor-General on , the advice of Our

Executive Council and pursuant to the Constitution of

Australia, the Royal Commissions Act 1902-1973 and other

enabling powers, appoint you to be a Commissioner to make

the following inquiries, reports and recommendations,

including inquiries and reports on all matters relevant

to the making of those recommendations:-1. To inquire into and report upon the history of the

intelligence and security services of the Australian Government, with particular reference to -(a) purpose, functions, administration and staffing

(including recruiting) of each organization7

(b) the general co-ordination, control and direction

of the services taken as a whole7

(c) the use made by the Australian Government and

its agencies of the information provided by the organizations.

2. In the light of past experience, and having regard to the

security of Australia as a nation, the rights and responsibilities of individual persons and future as well as present needs, to make recommendations on the

intelligence and security services which the nation

should have available to it and on the way in which

the relevant organizations can most efficiently and

effectively serve the interests of the Australian people and Government, with particular reference to -(a) the scale of operations;

(b) the number of separate organizations to be

involved, and their purpose, functions,

staffing (including recruiting and terms and conditions of service) and administrative

(c) the nature and scope of the intelligence which

the relevant organizations should seek to

acquire from Australian sources or from sources

outside Australia, including the intelligence

services of other countries;

(d) arrangements for co-ordinating and evaluating

the available intelligence; (e) the distribution and use of the intelligence

material available;

(f) the relationship between the intelligence

organizations, between those organizations and

the Australian and State law enforcement

agencies and between those organizations and

Departments and authorities of the Australian

(g) the degree of secrecy which should attach to

the organizations and their and

(h) the proper safeguarding of intelligence material

and sources and the channel through which advice

on such matters should be provided.

3. To make recommendations as to the procedures which

should be introduced to permit review of administrative

decisions affecting citizens, migrants and visitors which

were or may have been based on, or influenced by,

reports or information of an adverse kind furnished

by the security intelligence services of the Australian

Government.

4. To review the machinery for Ministerial and

official control, direction and co-ordination of the activities of the intelligence and security services and make recormnendations on any changes desirable, in

particular to ensure that there are clear lines of responsibility and proper arrangements for accountability for funds. 5. To make recommendations on any other matters in

relation to intelligence and security services 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 your inquiries and to report the results of your

inquiries and your recommendations to Our Governor-General

of Australia.

WITNESS HIS EXCELLENCY THE HONOURABLE SIR JOHN

ROBERT KERR, Knight Commander of the Most Distinguished

Order of Saint Michael and Saint George, Knight of the

Most Venerable Order of the Hospital of Saint John of

Jerusalem, Governor-General of Australi a,

By His Excellency' s Command,

P,ay of 1974.

/ /:

( j/?y

/ .

r overnor-General

·------

Prime Minister

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APPENDIX 1-B

ROYAL COI-1MISS ION ON SECURITY AND INTELLIGENCE

OPENING STATEMENT

This is the first public hearing of this Commission. As sole Commissioner, my task is to inquire the matters set out in the Letters Patent concern­

ing 'the intelligence and security services of the Aust­ ralian Government, and to report results of those

inquiries and. to make such recommendations as I conclude are warranted.

Necessarily, much of the work of the Commission must be conducted in camera and much of the evidence given cannot be publicly disclosed. There are a number of reasons for this. One important reason is to protect

the privacy of individuals and groups \'lho give evidence before the Commission in confidence. The Commission wishes to encourage all individuals and groups who have submissions to make and evidence to put before the

Commission to do so, and advertisements inviting them have been· published. The confidentiality of this material and the privacy of those who provide it will be preserved. I mn given adequate powers to preserve it under the Royal Commissions Act 1902-1973.

Another important reason is that I am required by clause 2(g) of the Letters Patent to consider "the degree of secrecy which should attach to the organisations and their \·.rork". To alter, during the course of the

inquiry, the degree of secrecy which is now attached to those organizations and their work would be t6 prejudge this rna tter. Where considerations of personal privacy, the

needs of the intelligence and security services and the public intere st do not necessitate secrecy, hearings of the Commission, such as this one, Hill be open, and material put before the Commission will be made public.

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No barrister solicitor has been appointed by the Attorney-General to assist this Royal Commission. There is a member of the Conm1ission staff who is admitted as · a barrister and solicitor in thP- Australian Capital Terri tory and as a solicitor in New South Wales vlhom I may wish to have assist me and who is available to assjst

any person who requires assistance in the preparation and presentation of submissions and evidence.

The question of representation of any person by another barrist.er or solicitor is one which I shall decide if such representation is sought.

I am entitled to inform myself in respect of any matter falling within the scope of my Commis..sion, subject to the Royal Commissions Act, from any source and in any manner I think proper. I have already spent

some months inquiring in private about a number of such from many persons including officers of the

and security services. I intend to

continue \vith this procedure in all casE!s in \·lhich I think that course is justified.

People who do not hold present responsibility for the affairs of an organizatj_on which employs them cannot speak for the organization. Hovmver, where I consider that a person, \-lhether an officer or employee

of an organization or not, has or may . have, something to contribute I shall ensure that he is given an opportunity to be heard.

As regards the public hearings, I propose first to read or hear submissions from those persons authorised by me to -appear. I propose to hear in public the

evidence of any witnesses whom any sucJ1 person \· .. d. shes to call in relation to those matters vlhich can appropriately be dealt with in public. It is not my intention, as at present advised, to require any witness called in relation to those matters to take an oath or make an affirmation but I shall of coursa hear

any submissions which any person vlishes to make about this procedure. The question whether cross-examination of a witness at a public hearing will be permitted will

be considered if and when any request for cross-examin­ ation i$ made and in respect of that witness; but with­ out any particular case I may say that I

consider that adversary procedures are not suitable for most, if not all, parts of this iaquiry.

I am empO\·Jered by the Royal Co;.Jnissions Act to issue a summons to a person to give evidence or to

produce documents in his custody or control. I do not

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propose to issue summonses as a matter of course. I propose to adopt the following practice. Any a.pplica:... tion for a suuunons must be supported by an affidavit which sets out what efforts have been made to obtain

the attendance of the person or the production of the documents involved without a sur:unons, and the result of thosG efforts. Further, the affidavit must set out that the deponent believes the evidence of the witness

to be material and must outLine the evidence he proposes to adduce from that person, so that I can judge Hhether it is a case in which it is advisable that a

should issue, ·and whether it should ' be returnable a·t a public or -at a private hearing of this com1nission. -If, in the course of a .public hearing, it is

sought to make submissions or to tender evidence which I consider should be done in private, I shall adjourn the. proceedings to a time and place \-lhere the submiss­ ion! or evidence can be heard in private, or make any other appropriate order. ·

It may be that some people who \'Jish to do so

are not in a position to seek leave to appear, make submissions or tender eviderice· at this present hearing. Public notices have already described the procedu;;:-e that people wishing to make submissions should follow and

that procedure is as follows: Any person ·or organisation l'lho intends to make a submission about any matter \vi thin the terms of reference should write to the

Commission as soon as possible, saying -

• .

\'I hat the submission will dea.l with;

how soon it will be ready;

whether he \'Jould like to add to his written submission by appearing before the in person, and if so,

whether in public or in private.

The particular persons to be heard Bnd the con­ ditions under \•lhich they may be heard' including whether in public or in private, \vill be determined at my dis­ cretion.

Anyone who wants to refer in his submission to information in his possession and which it is his duty to treat as secret must inform the secretary of the Royal Conrnission in advance. Employees and former employees of the Australian Government are particularly asked to note this important requirement.

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Any person referring to the activities of the in­ telligence services . should assume that investigation of what they say may involve referral to the relevant organisation. If he does not want that to be done he

must say so plainly in his submission.

Requests to present submissions which are wholly oral submissions \

ing my agreement with the request.

Further hearings will be held in Sydney and in other convenient places as necessary. A transcript of these proceedings is being taken and copies can be obtained.

I will now hear applications for leave to appear. As at present advised, any such leave will be limited to the making of submissions in respect ot the matters the subject of the inquiry, and the exam­

ining of \'17itnesses to support those submissions. Leave to appear for other purposes, including cross-examination, will be dealt with if and vlhen the occasion arise-s.

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