Title | Intelligence and Security - Royal Commission - Reports - 1st |
Source | Both Chambers |
Date | 25-10-1977 |
Parliament No. | 30 |
Tabled in House of Reps | 25-10-1977 |
Tabled in Senate | 25-10-1977 |
Parliamentary Paper Year | 1977 |
Parliamentary Paper No. | 246 |
System Id | publications/tabledpapers/HPP052016002231 |
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.
1
9
11
14
18
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
2.
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 newsÂ
papers in the relevant State, including many ethnic newsÂ
papers. (This latter course was adopted because I thought
3.
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 counterÂ
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.
24773177- 3
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
5.
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 DirectorÂ
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
7.
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
24773177-4
8.
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.
9.
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
10.
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.
11.
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 recommenÂ
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.
12.
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
13.
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
18.
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 concernÂ
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.
19 ..
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
20.
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 \â¢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.
21.
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 examÂ
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.
24773/77-L R77/2Sl