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Research Brief no. 13 2005–06
Spy versus spy: Government control of sensitive information
Susan
Harris Rimmer
Law and Bills Digest Section
24 March 2006 revised 20 October 2006
The author wishes to highlight that this paper uses information as
publicly reported in order to explore legal issues, without attempting
to make a judgment on what actually transpired. Since the paper was originally
published the Parliamentary Library has received a response from the Attorney-General,
the Hon Philip Ruddock MP. The response contained factual clarifications
and legal opinion regarding the incident. The paper has subsequently been
revised to include key points of the response by the Attorney-General
at Appendix A.
20 October 2006
Contents
Executive Summary
Introduction
Background
The legislative framework
Wilkie’s potential liability
Basis of Government response
Attorney-General’s Department powers
Australian Security Intelligence Organisation powers
Warrant regime
Refusal of warrant
Potential issues
Legal privilege
Freedom of speech
Computer warrant concerns
Accountability of government officials
Conclusion
Endnotes
Appendix A
Executive Summary
From June to September 2004, government officials
‘cleansed’ computers which held copies of an original manuscript by former
ONA analyst Andrew Wilkie. Wilkie had agreed with the Government’s instruction
to remove some passages from the manuscript of the book Axis of Deceit
after a lawyer hired to vet the book for sensitive content handed it over
to the Attorney-General’s Department. Recipients of the draft book allegedly
consented under some pressure to have their computer hard drive ‘cleansed’.
This Brief examines the relevant agency powers and finds the use of consent
in this incident raises several issues of concern, such as agency officials
bypassing the need for search or computer access warrants, restricting
freedom of speech in relation to publishing on security issues, and the
accountability of Australia’s national security officials.
This case raises several interesting issues around the legality of the
incident, and broader policy concerns which arise as a consequence of
the incident. Firstly, it is not clear which agency undertook the actions
and under what legislative authority it acted. The media reported that
the access to computers was undertaken by people identified as officials
from the Attorney-General’s Department. It seems that accessing the computers
of private individuals on the grounds of protecting security is an operational
matter that should not be undertaken by ordinary public servants.
The legal regime governing access to private computers holding information
which may compromise Australia’s national security is clearly covered
by the Australian Security Intelligence Organisation Act 1979 (‘ASIO
Act’) and should be undertaken only under a search or computer access
warrant. If the officials involved were in fact from ASIO, they should
not be operating outside their legislative framework.(1)
Consent by parties should not allow government officials to undertake
action they would not be authorised to do under warrant. It is unclear
in this incident whether the participants could complain that their consent
was only given under duress due to the threat of criminal prosecution
or other action under the ASIO Act.(2)
Finally, there are several broader concerns that arise as a result of
this incident, involving lack of certainty when publishing on matters
of national security, specific concerns over computer warrants, and the
accountability of the government officials involved.
Andrew Wilkie is a former analyst with the Office of National Assessments
(‘ONA’) who resigned in March 2003 over the war in Iraq. Wilkie received
extensive publicity over his resignation.(3) He gave evidence
to Australian and British parliamentary inquiries in June and August 2003
into the intelligence used to justify sending troops to Iraq. Wilkie subsequently
ran as an Australian Greens candidate in the Prime Minister’s seat of
Bennelong in the 2004 Federal election.
Wilkie wrote a book entitled Axis of Deceit, published by Black
Inc. in July 2004, which discusses the intelligence relating to Iraq and
how he felt the intelligence was politicised in Canberra, London, and
Washington.
Earlier in 2004, Black Inc. had retained a university lecturer with an
ONA background, David Wright-Neville, to check the manuscript for any
inadvertent disclosures of national security information. He suggested
several passages be deleted. Black Inc. then retained Captain Martin
Toohey for a second opinion. Toohey was a Navy Reserve military lawyer,
who had previously reviewed the Colonel Lance Collins allegations for
the Government.(4) Morry Schwartz of Black Inc. alleges that
Toohey then handed the manuscript to the Attorney-General’s Department
without the permission of the publisher or the author.(5)
A series of meetings between the publishers and a delegation of Attorney-General’s
Department and ONA staff was held and changes to the manuscript were agreed
upon. Details of what was cut from the book are not able to be revealed
under this written agreement, under threat of a criminal prosecution.(6)
It was reported in the media that the deletions related to technical intelligence
matters, some of which are in the public domain, but which would have
gained credence from Wilkie’s background as a former ONA official.(7)
There is disagreement over whether the cuts were political in nature.
A ‘Canberra official’ is quoted by the West Australian as saying
the changes did not affect the ‘tenor, force, judgments or shape of the
book’(8) with which the publisher appears to agree, stating
that no changes of a political nature were made.(9) The Canberra
official confirmed that the original book would not have risked the lives
of overseas agents.(10) The publisher recently stated:
There is no doubt that Wilkie’s manuscript was political
dynamite in an election year. Our concern was that the intense interest
in it by the Government was likely to be politically motivated.
This did not turn out to be the case. I can absolutely
state that we weren’t asked to make any changes of a political nature.
The minor deletions were all bona fide and logical. They clearly related
to legitimate security issues and we agreed to them willingly.(11)
Wilkie and Wright-Neville have each stated that the cuts were designed
to intimidate Government critics.(12)
Part of the agreement between Wilkie, Black Inc. and the Government seems
to have covered consent to the complete deletion of the original manuscript,
meaning that any computer hard drive which had held a copy of the text
needed to be ‘cleansed’ or deleted from the hard drive. Public details
of the operation are limited, but it appears that 74 computers were involved.(13)
The computers in the Melbourne offices of Black Inc. were worked on by
a team of four government officials for five days identifying and deleting
the relevant files. As Schwartz describes:
A small team of computer experts was then sent to the
Black Inc office to cleanse the offending material from our computers.
They transferred the data to a hard disk then gave us the option of
having it taken away or destroyed in front of us. We chose the second
option, then watched them do it with a special little disk-breaking
hammer. They graciously followed up this service with a customer satisfaction
form.(14)
People who were emailed drafts of the book—including Wilkie’s sister,
documentary maker Carmel Travers and Professor Robert Manne—also had their
hard drives cleansed around early September 2004, several months after
the amended book had gone on sale.(15)
SBS current affairs programme Dateline alleged in the story ‘Sledgehammer
Politics’, broadcast on 22 June 2005, that all parties concerned apparently
consented to the activities, but were allegedly told that resisting a
warrant was an offence carrying a five-year jail term. The program also
alleges that making the computer incident public by the parties involved
may have also been a crime. This is at odds with the reports that Andrew
Wilkie did not agree to keep the fact that the book had been censored
a secret.(16)
Carmel Travers sought legal advice about her right to privacy and was
advised the Commonwealth officers were acting lawfully and if she did
not comply with the request to access her computer, the officers could
obtain a warrant. Travers alleges that during the cleansing operation,
two of the hard drives of her computers were smashed with a crowbar.(17)
Black Inc. complained to the ACT Law Society about the conduct of Captain
Toohey in handing the manuscript to the Government without consent, on
the grounds that he had breached lawyer-client confidentiality.(18)
The findings by the Law Society were not made public but an extract
was published by Morry Schwartz. On 23 June 2005, the Law Society held
in Captain Toohey’s favour:
His obligations of confidentiality were subject to the
‘public welfare’ exception, which permits disclosure of a confidence
if non-disclosure might jeopardize national interest …
On the available material, it was open for him to so
conclude and it appears that he bona fide held such a belief. In those
circumstances, any breach of confidence involved in disclosing the manuscript
to the Attorney General’s Department was justified in law.(19)
As of July 2005, Black Inc. was considering an appeal.
The question of what offence Wilkie could have committed by the two acts
of emailing or publishing the original manuscript is unclear.
Provisions that could have been engaged if the original manuscript had
been published in its original form include:
- ‘Offences relating to espionage’ under Part 5.2, Division 91 of the
Commonwealth Criminal Code 1995. Among other things, section 91.1 requires
the intent to prejudice the Commonwealth’s security or defence, and
that the person’s act results in Commonwealth security or defence information
being communicated to another country or foreign organisation. Section
91.2 provides a defence if the information is in the public domain with
the authority of the Commonwealth. Intent under sub-section 5.2(3) of
the Code is defined as ‘if he or she means to bring it about or is aware
that it will occur in the ordinary course of events’. The term ‘security
or defence’ of a country is defined in section 90.1 as including ‘the
operations, capabilities and technologies of, and methods and sources
used by, the country’s intelligence or security agencies’, which would
appear to cover technical intelligence matters. The offence attracts
a maximum penalty of a 25-year prison term. It appears unlikely that
by emailing the manuscript to family and colleagues Wilkie committed
an offence against section 91.1 of the Code.
- Section 70, Part VI of the Crimes Act 1914 relating to ‘Offences
by and against public officers’. It is an offence under section 70 for
a current or former Commonwealth officer to publish or communicate to
an unauthorised person any fact or document which comes to his knowledge
or possession by virtue of being a Commonwealth officer and which he
or she has a duty not to disclose.(20) The maximum penalty
is imprisonment for two years. It is not a strict liability offence,
since relevant fault elements, such as intent and recklessness, apply.
- Part VII of the Crimes Act 1914 relating to ‘Official Secrets
and Unlawful Soundings’. It is an offence under subsection 79(2) for
a former Commonwealth officer to communicate ‘prescribed information’(21)
to any unauthorised person with the intention of prejudicing the security
or defence of the Commonwealth. Intent can be inferred from conduct
or known character under subsection 79(7). This offence carries a maximum
seven-year jail term. It is an offence under subsection 79(3) to communicate
prescribed information to an unauthorised person, which carries a maximum
two year jail term.
- Section 73A of the Defence Act 1903 relating to ‘unlawfully
giving or obtaining information as to defences’. It is an offence for
a person who is a member
of the Defence Force or a person appointed or engaged under the Public Service
Act 1999 to communicate to any other person any plan, document,
or information relating to any ‘fort, battery, field work, fortification,
or defence work, or to any defences of the Commonwealth, or to any factory,
or air force aerodrome or establishment or any other naval, military
or air force information’ if the communication is not in the course
of that person's official duty. The penalty set out in section 73F,
if the offence is prosecuted summarily, is a fine not exceeding $200
or imprisonment for six months or both, or if the offence is prosecuted
upon indictment, a fine of any amount or imprisonment for any term,
or both.
It is not clear on the public information available that there would
be a prima facie case against Wilkie under any of these sections. Presumably,
if there had been, a police investigation would have been mounted. However,
an offence under these sections is not a prerequisite for a warrant to
be issued.
The identity of the government officials who carried out the cleansing
operation and the legislative bases for their actions is unclear. For
example, Australian Security Intelligence Organisation (‘ASIO’) officers
acting under warrant are generally accompanied to operations by police
officers. There was no participation by the Australian Federal Police
in any reports of the incident. Government officials did not need to
establish a prima facie case for a warrant to delete the manuscript from
computers because all parties to the matter consented. This raises
some important issues.
Some news reporters note the officials were identified as being from
the Attorney-General’s Department but assume that is ‘shorthand for ASIO’.(22)
The names of ASIO officers are protected under section 92 of the ASIO
Act. As the relevant officers were not acting under warrant, confusion
arose in the public arena as to which organ of the Commonwealth was acting.(23)
This is problematic for three reasons. Firstly, confusion over the identity
of the officers makes it difficult to assess under what legal authority
they were acting. Even with consent of the parties, the actions of Commonwealth
officers must have a legal basis. Secondly, the two agencies have markedly
different powers and accountability mechanisms. Thirdly, the identity
of the officers determines which complaint mechanism may be accessed by
the affected parties.
This brief examines two scenarios - that the officials were Attorney-General’s
Department public servants, and alternatively that the officials were
ASIO staff acting outside the usual warrant regime.
The power for government officials (as opposed to police) to access computers
is set out clearly in the relevant legislation, such as the ASIO Act or
the Customs Act. The strong argument would be that Attorney-General’s
Department officials were outside the boundaries of their duties if accessing
the computers of Australian citizens without a legislative basis for their
actions, regardless of any consent given.
Under the Constitution, the Governor-General, on the advice of the Prime
Minister, appoints Ministers, establishes Departments of State and formally
allocates executive responsibility among Ministers through the Administrative Arrangements
Order (AAO).
The AAO is published in the Commonwealth Gazette. It sets out the matters
dealt with by each Department of State and the legislation administered
by a Minister of State administering a Department. The AAO entry for each
Department of State covers the principal matters and legislation administered
by all agencies (including statutory agencies and executive agencies)
within the relevant portfolio.
The Administrative Arrangements Order for the Attorney-General’s Department
authorises the Department to deal with ‘national security, protective
security policy and co-ordination’.(24)
The Attorney-General's Department
website states:
The Attorney-General's Department serves the people of
Australia by providing essential expert support to the Government in
the maintenance and improvement of Australia's system of law and justice.
The Department is the central policy and coordinating
element of the portfolio, for which the Attorney-General and Minister
for Justice and Customs are responsible.(25)
Section 13 of the Public Service Act 1999 states that, as part
of the APS Code of Conduct, an APS employee when acting in the
course of APS employment, must comply with all applicable Australian laws.
The public expectation regarding Attorney-General’s Department officials
would be that they provide policy advice and coordination, but do not
undertake operational activities relating to national security issues
in the domestic sphere. These activities have been legislated as the
domain of a specific agency, namely ASIO. The activity of accessing the
computers of private Australian citizens on this basis has been designated
by the Australian Parliament as an act which requires a warrant. In other
words, there would appear to be no legal authority for public servants
in the Attorney-General’s Department to undertake such an activity.
The Attorney-General is empowered to administer the ASIO Act. The functions
of ASIO are set out in section 17 of the ASIO Act, and include the function
‘to obtain, correlate and evaluate intelligence relevant to security’.
The ASIO website summarises these functions as follows:
ASIO’s main role is to gather information and produce
intelligence that will enable it to warn the government about activities
or situations that might endanger Australia’s national security. The
ASIO Act defines ‘security’ as the protection of Australia and its people
from espionage, sabotage, politically motivated violence, the promotion
of communal violence, attacks on Australia’s defence system, and acts
of foreign interference.(26)
If the officials were ASIO staff, two hypothetical questions arise:
- whether ASIO can delete data from a computer even with consent; and
- whether they could have obtained a search or computer access warrant
under sections 25(5) or 25A of the ASIO Act.
The test for a general search warrant under the ASIO Act is if the Minister
is satisfied that there are reasonable grounds for believing that access
by the Organisation to records or other things on particular premises
will substantially assist the collection of intelligence in accordance
with the ASIO Act in respect of a matter that is important in relation
to security (subsection 25(2).
Under the general search warrant power contained in paragraph 25(4)(d),
ASIO can remove and retain records for the purposes of making copies or
inspecting the records.
Under subsection 25(5), if the Minister considers it appropriate in the
circumstances, he or she can specify in a warrant any of the following
things:
- where there is reasonable cause to believe that data
relevant to the security matter may be accessible by using a computer
or other electronic equipment found on the subject premises—using
the computer
or other electronic equipment for the purpose of obtaining access to
any such data
and, if necessary to achieve that purpose, adding, deleting or altering
other data in the computer
or other electronic equipment;
- using the computer or other electronic equipment to do any of the
following:
- inspecting and examining any data to which access has been obtained;
- converting any data to which access has been obtained, that appears
to be relevant to the collection of intelligence by the Organisation
in accordance with this Act, into documentary form and removing
any such document;
- copying any data to which access has been
obtained, that appears to be relevant to the collection of intelligence
by the Organisation in accordance with this Act, to a storage device
and removing the storage device;
- any thing reasonably necessary to conceal the fact that any thing
has been done under the warrant;
- any other thing reasonably incidental to any of the
above. (Emphasis added)
Paragraph 25(5)(a) enables data to be deleted only for the purpose of
accessing the computer. Under subsection 25(6), these warrants will not
authorise:
the addition, deletion or alteration of data, or the
doing of any thing, that interferes with, interrupts or obstructs the
lawful use of the computer or other electronic equipment by other persons,
or that causes any loss or damage to other persons lawfully using the
computer or other electronic equipment.
It is unclear what would constitute an unlawful use of the computer which
would merit the deletion of data, and at what point in the process the
lawfulness of the conduct would be assessed. As the functions of ASIO
relate to the purpose of obtaining, correlating and evaluating intelligence
relevant to security as set out in section 17 of the ASIO Act, it is not
clear that this function also includes the destruction of such information.
Under paragraph 25(7)(a) a search warrant must authorise the use of any
force that is necessary and reasonable to do the things specified in the
warrant.
The specific computer access warrant in section 25A of the ASIO Act enables
ASIO to gain remote access to computers and is framed in similar terms
to section 25:
The Minister is only to issue the warrant if he or she
is satisfied that there are reasonable grounds for believing that access
by the Organisation to data held in a particular computer (the target
computer) will substantially assist the collection of intelligence
in accordance with this Act in respect of a matter (the security
matter) that is important in relation to security.
The Minister can authorise in the computer access warrant a range of
things appropriate to the circumstance of the case under subsection 25A(4):
- using:
- a computer; or
- a telecommunications facility operated or provided by the Commonwealth
or a carrier; or
- any other electronic equipment;
- for the purpose of obtaining access to data that is relevant to
the security matter and is stored in the target computer and, if necessary
to achieve that purpose, adding, deleting or altering other data in
the target computer;
- copying any data to which access has been obtained, that appears to
be relevant to the collection of intelligence by the Organisation in
accordance with this Act;
- any thing reasonably necessary to conceal the fact that any thing
has been done under the warrant;
- any other thing reasonably incidental to any of the above.
Again, subsection 25A(5) states that these warrants do not authorise
the addition, deletion or alteration of data, or the doing of any thing,
that interferes with, interrupts or obstructs the lawful use of the target
computer by other persons, or that causes any loss or damage to other
persons lawfully using the target computer.
The incidental power under paragraph 25(5)(d) would also not seem to
authorise the destruction of the hard drive of a computer as Carmel Travers
alleged.
According to SBS TV’s Dateline, if a warrant had been obtained,
refusing to comply with the warrant would carry a five-year penalty, and
disclosing anything about the computer searches would also attract a five-year
penalty.(27) The Part III amendments to the ASIO Act relating
to anti-terrorism passed in 2003 did create an offence carrying a five-year
penalty under section 34VAA, which requires a person not to disclose any
details about the warrant or operation.(28) Further, under
subsection 34G(6) of the ASIO Act, a person must produce ‘any record or
thing’ requested in accordance with the warrant. Refusal to comply carries
a penalty of five years imprisonment.
However, these sections only apply to warrants obtained under section
34D, that is, warrants allowing a person to be taken in for questioning
or detention under the new terrorism powers in Part III, Division 3. The
secrecy requirements were reported in a confusing manner regarding the
ASIO raids in June 2005.(29) Attorney-General Ruddock clarified
the secrecy provisions as not relating to ordinary search warrants, leaving
the people affected by the raids free to speak publicly.(30)
As Waleed Aly, Melbourne lawyer and member of the Islamic Council of Victoria
executive later pointed out in response to Ruddock’s June 2005 statement:
I believe Ruddock is telling the truth. But the problem
is that if he isn’t, we would have no way of knowing.(31)
There are no such secrecy provisions in relation to the ordinary search
or computer access warrant powers. Paragraphs 25(5)(c) and 25A(4)(c) both
contain the ambiguous phrase that ASIO can do ‘any thing reasonably necessary
to conceal the fact that any thing has been done under the warrant’.
However, the Explanatory Memorandum for the Australian Security
Intelligence Organisation Legislation Amendment Bill 1999
seems to confirm that this wording relates to technical issues, not imposing
secrecy obligations on the person concerned:
The computer provisions permit the Minister to authorise
ASIO to add, delete or alter data for the purpose of gaining access
to data in a target computer and to do things that are reasonably necessary
to conceal that any thing has been done under the warrant. This would
include modifying access control and encryption systems.(32)
The proper interpretation of this wording has not yet been determined
by a court.
The questions that therefore arise if the officials were ASIO agents
are: what if the primary action by Wilkie would not have been able to
sustain the granting of a warrant in the first place? What if the computer
owners involved only gave their consent under duress at the threat of
a criminal prosecution or other action under the ASIO Act that was not
in fact justified?
There are several issues that arise as a result of this incident, involving
freedom of speech, specific concerns over computer warrants, and the accountability
of the government officials involved.
The implications of the Toohey finding of lawyer-client privilege require
urgent clarification. This might prove difficult for publishers to ‘legal’
books which contain controversial material about intelligence issues,
especially if lawyers can avail themselves of the public-welfare exception
to client privilege by handing manuscripts straight to the Government.
Dr David Neal of the Victorian Bar Society told Dateline:
The great difficulty is that if lawyers breach that confidence,
that if lawyers, either individually or as a group, show that they can’t
be trusted to retain confidential information, then people who are wanting
to find out whether they can lawfully do something, might be inhibited
from doing that and they might just simply take their chances.(33)
Or as publisher Morry Schwartz expressed it:
What is a publisher to do if there is a possible breach
of national security in a manuscript? Does he go straight to the Attorney
General? This doesn’t feel right. It opens the gates of unfettered power
to Government, diminishing open society. So to whom do we go?(34)
He urges the Government and the Law Council of Australia to nominate
a list of independent experts that could negotiate between the intelligence
agencies and publishers.
The converse is also a concern: that legitimate analysis and information
relating to security issues might be self-censored by authors or publishers.
Admittedly, Wilkie is an unusual case, in the sense that he is an ex-ONA
official writing about the issue he resigned over, but the implications
for ex-public servants, academics and analysts could be wider. The implied
right of political communication under the Constitution as laid down by
the High Court could also potentially be infringed.(35)
Some of these fundamental issues were revisited in a different context
when Major Clinton Fernandes complained in October 2005 that the Army
inappropriately invoked national security laws against him to prevent
the publication of his thesis on East Timor because it was critical of
Government policy.(36) The book was published under the title
Reluctant Saviour in October 2004.
Whether it is a fair assessment or not, it is clear that at least two
of the affected persons in the Wilkie case viewed the Government’s actions
as intimidatory, even though the publisher felt the textual amendments
to the draft book were fair. Wilkie’s response was:
I think a lot of it was just theatre meant to put pressure
on people, almost to bully them. I think it was intended to send a very
clear signal to the media, to the publishing industry, to me that they
needed to be very, very careful about criticising the Government.
I think the Government’s behaviour was intended very clearly to send
a signal to my former colleagues that, you know, you don’t cross them,
you don’t resign, you don’t speak out.(37)
There are also privacy concerns, specific to computer access warrants,
which will not be allayed by this incident. Prior to the commencement
of the new search warrant provisions concerning computers (sections 25
and 25A), the Australian Privacy Charter Council noted its concerns to
the Joint Committee on ASIO in 1999:
However well intentioned, empowering ASIO to add, delete
or alter data, and to modify access control and encryption systems (even
if technically feasible) fatally undermines this trust and confidence.
It is difficult to see how the supposed limitations on this power—not
obstructing lawful use or causing loss or damage—would work in practice,
and in any case they would not restore the confidence which, once lost,
is gone forever.(38)
The Joint Committee report noted at paragraph 3.51 that the submission
by the Attorney-General’s Department in relation to the computer access
amendments emphasised:
that ‘in gaining entry to a target computer ASIO is not
permitted to cause damage to either computer or data.’
It went on to make the point that it would, in fact, be:
… in ASIO’s interests to go to extreme lengths to ensure
that it did not cause damage that might compromise its operations.(39)
What none of the submissions in 1999 envisaged was Commonwealth officials,
ASIO or otherwise, accessing the computers of private citizens obtained
by consent under threat of other legal action.
It is unclear whether citizens are adequately informed and protected
by ordinary accountability mechanisms when officials from the Attorney-General’s
Department or ASIO act outside the warrant regime under a consensual arrangement,
but exceed their own legislated powers or appropriate conduct whilst doing
so.
The subject of possible complaints based on the publicly available information
could include any damage to the computers during the cleansing process,
particularly that sustained by being hit with a crowbar, and potentially
the behaviour reported by Carmel Travers as ‘bullying’.(40)
What is less clear is whether the participants could complain that their
consent was only given under duress due to the threat of criminal prosecution.
The officials may have acted beyond lawful authority if the action by
Wilkie would not have been able to sustain the granting of a warrant.(41)
There is no publicly available information regarding whether any of the
people who had their computers accessed made a complaint. If the officials
were from ASIO, there is a complaint mechanism to the Inspector-General
of Intelligence and Security (‘IGIS’). The IGIS has the power under the
Inspector-General of Intelligence and Security Act 1986 to take
complaints from the public or initiate an inquiry of his or her own motion.
The IGIS can also recommend in a report to the relevant agency that compensation
is required if a person has been ‘adversely affected’ by action taken
by an agency under section 22(2). The IGIS Annual Report 2003–04 notes
that a complaint about a computer damaged after it was seized by ASIO
under a search warrant was successful, and compensation was paid by ASIO
in July 2003.
The accountability regime for ASIO departs from other organs of government,
in that:
- decisions are exempt from the Administrative Decisions (Judicial
Review) Act 1977 (including decisions by the Minister to grant warrants
targeting individuals for search or surveillance)
- the Freedom of Information Act 1982 does not apply to an agency
in relation to documents which originated with ASIO, and ASIO itself
is an exempt organisation for the purposes of that Act
- human rights complaints about ASIO cannot be investigated by the Human
Rights and Equal Opportunity Commission - discrimination complaints
are re-directed to the IGIS; and
- ASIO is legislatively exempt from the requirements to handle personal
information in accordance with the Privacy Act 1988.(42)
If the officials were from the Attorney-General’s Department,
all these avenues above would apply, and a complaint could be made to
the Commonwealth Ombudsman.
From a security point of view, if the information was a potential breach
of the Crimes Act or Criminal Code Act, it is curious why the cleansing
occurred three months after the agreement between the publisher, author
and the Commonwealth to edit parts of the book.(43)
The more fundamental problem is that if citizens feel forced to consent
to activities under threat of warrants and penalties, this raises the
issue of duress.(44) It means that the relevant government
agency need never prove that a prima facie offence had been committed
or that the original test was made out under the ASIO Act in order to
obtain the relevant warrant. Any caveats or limitations that may have
been placed on the relevant warrant are avoided. The warrant regime also
allows for some data to be reported to the IGIS and the Joint Committee
on Intelligence and Security. Travers reported that an officer ‘boasted’
to her that he had wiped computers 70 to 73 times.(45) An
interesting question is how these activities would be recorded by the
Commonwealth agencies if at all.
One interpretation of the incident is that an unintended effect of the
new terrorism powers is that even when it is not an ASIO operation or
ASIO is not acting under the powers, it has created uncertainty and trepidation
about what the Commonwealth can do in relation to national security issues
and what people can say publicly about it. It is interesting that despite
the high-profile, vocal people concerned, such as Wilkie, Carmel Travers
and Robert Manne, there was very little media reporting on the issue.
In fact, most media reporting was in June 2005, when Travers’ documentary
on Iraq intelligence aired, rather than in September 2004 when the events
took place.(46)
This paper has examined legal issues that arise from accessing the computers
of private individuals, even with consent. The examination suggests that
it may be preferable that any action of this nature is undertaken by the
agency which has properly conferred legislative authority, and is done
under warrant.(47)
Response by Attorney-General
The Attorney-General has advised the Parliamentary Library that:
“…[n]o ASIO officers were involved in the computer cleansing
activity”.
“The facts of this matter are that the Commonwealth took
appropriate and lawful action to protect Australia’s national security.
Upon receiving a draft manuscript of Mr Wilkie’s book, The Commonwealth
sought expert advice from relevant agencies which indicated that certain
parts of the manuscript was likely to prejudice Australia’s national
security. The Commonwealth considered that publication would also be
in breach of legal, equitable and statutory duties of confidence owed
by Mr Wilkie to the Commonwealth. Having obtained legal advice as to
the options open to it (including by way of legal proceedings), the
Commonwealth then negotiated, in a professional and appropriate way,
with the relevant parties regarding certain aspects of the manuscript.
As noted in the Brief, the publisher has publicly acknowledged that
a small number of deletions agreed to during this process were bona
fide and logical and clearly related to legitimate security issues.
By prior arrangement, steps were taken to fully safeguard
the personal information, property and privacy of the individuals involved.
Importantly, no person’s computer hard drive was damaged or destroyed,
nor did anybody have any of their personal information taken or destroyed.
Commonwealth officers only removed sensitive national security information
from computers. Commonwealth-supplied hardware used to back-up information
(to guard against accidental loss of information during the process)
was then destroyed or erased following the completion of the process
in the individual’s presence so they could be sure that the Commonwealth
did not retain any of their personal material. The visit by all Commonwealth
officers to all premises for the purposes of removing sensitive security
information occurred by prior arrangement and at a mutually agreed time
and place.
…
One of the key suggested propositions [of the Research
Brief] is that consent should not allow government officials to undertake
actions that they would not otherwise be authorised to do under warrant
(that is, compulsorily). This is quite ridiculous and manifestly wrong
at law. People lawfully consent all the time to the taking of executive
action even though the executive might not be able to take such action
pursuant to the executive powers of compulsion. For example, people
consent to supplying information even though there may not be a power
to compel.
Another suggested proposition is that consent in this
case may have been vitiated by duress. During discussions on this matter,
persons were notified that if they did not agree to the course of action
proposed by the Commonwealth, proceedings would be commenced in the
Federal Court to obtain orders to protect the Commonwealth’s legitimate
interests. It is quite wrong to suggest that notification of the possible
vindication of legal rights by civil action amounts to duress. Indeed,
forewarning relevant persons of the Commonwealth’s intention to institute
legal proceedings (if the matter could not be resolved by agreement)
was entirely consonant with the Commonwealth’s obligations to act as
a model litigant. In the particular circumstances the Federal Court
would have expected the Commonwealth to give such notice (rather than
proceed ex parte) and giving notice enabled those concerned to make
an informed decision as to whether to cooperate or not. I note that
those most closely involved in the publication of the manuscript and
the subsequent media coverage given to the Commonwealth’s actions were
legally represented in their dealings with the Commonwealth.”
- Note the clarification on this point provided by the Attorney-General
at Appendix A.
- Note the opinion provided by the Attorney-General on this point in
Appendix A.
- See L. Oakes, ‘The Insider’, The Bulletin with Newsweek, v.
121 (6364), 18 March 2003, pp. 22-24.
- In April 2004, Colonel Lance Collins made allegations to the Prime
Minister that an undue influence of the pro-Jakarta lobby had endangered
Australia’s national security in relation to East Timor. His concerns
centred around three issues: the diligence with which some Australian
officials attended to Indonesian foreign policy aims during the East
Timor crisis, the conduct of the Mervyn Jenkins case, and the performance
of the strategic intelligence system during the East Timor crisis. See
further: Peter Cronau, ‘Intelligence
Wars: Behind the Lance Collins Affair’, Background Briefing,
ABC Radio National, 30 May 2004.
- See generally M. Schwartz, ‘Commentary: Black Inc. and the Attorney-General’,
Australian Book Review, August 2004, p. 8.
- T. Cookes, ‘Sledgehammer Politics’, Dateline, SBS TV, 22 June
2005. Transcript online: http://news.sbs.com.au/dateline/,
accessed on 29 June 2005.
- B. Toohey, ‘Censors go easy on spy book’, West Australian,
14 June 2004, p. 15.
- ibid.
- Schwartz, loc. cit.
- Toohey, loc. cit.
- M. Schwartz, ‘A Balancing Act: The rightful place of defamation law
in open society’, 2005 Redmond Barry Lecture, State Library of Victoria,
5 July 2005.
- Cookes, op. cit.
- P. Kalina, ‘Truth falls to Iraq war of lies’, The Age, 16 June
2005, p. 15.
- Schwartz, 2005, loc. cit.
- T. Cookes, ‘Sledgehammer Politics’, op. cit.
- Kalina, op. cit.
- Cookes, op. cit. Note the clarification provided by the Attorney-General
on this point in Appendix A.
- F. Shiel, ‘Lawyer cleared over whistleblower book’, The Age,
23 June 2005, p. 9.
- Quoted in Schwartz, 2005, op. cit. ACT Law Society findings are made
available only to the parties concerned.
- The circumstances where a legal duty not to disclose might arise were
recently discussed in the Federal Court case of Bennett v
President HREOC [2003] FCA 1433. See further
Ian Holland and Peter Prince, ‘Public
Servants Speaking Publicly: The Bennett Case’, Research Note,
no. 31, Parliamentary Library, 2003–04.
- Section 77 of the Crimes Act 1914 defines ‘information’ means
information of any kind whatsoever, whether true or false and whether
in a material form or not, and includes: (a) an opinion; and (b) a report
of a conversation.
- J. Coxsedge, ‘Truth, Lies and Intelligence’, The Guardian,
29 June 2005, http://www.cpa.org.au/garchve05/1234coxsedge.html
accessed 4 July 2005.
- Note the clarification provided by the Attorney-General on this point
in Appendix A.
- Administrative
Arrangements Order, 16 December 2004.
- www.ag.gov.au, accessed
15 February 2006.
- www.asio.gov.au, accessed
15 February 2006.
- Cookes, op. cit.
- ASIO Legislation Amendment Act 2003.
- I. Munro, ‘ASIO should lose some powers says Fraser’, The Age,
29 June 2005, p. 7. See further SBS TV Dateline interview with
Rob Stary, 29 June 2005.
- W. Aly, ‘ASIO raids risk eroding our trust in justice,’ The Age,
1 July 2005, p. 15.
- ibid.
- Explanatory Memorandum, Australian
Security Intelligence Organisation Legislation Amendment Bill
1999, Bill No. 99051, 24 March 1999, p. 8.
- Cookes, op. cit.
- Schwartz, 2005, op. cit.
- Mason CJ described the freedom of political communication as follows
in the High Court decision Australian Capital Television Pty Ltd
v Commonwealth (1992) 177 CLR 106, at 138.
The point is that the representatives who are members
of Parliament and Ministers of State are not only chosen by the people
but exercise their legislative and executive powers as representatives
of the people. And in the exercise of those powers the representatives
of necessity are accountable to the people for what they do and have
a responsibility to take account of the views of the people on whose
behalf they act... Indispensable to that accountability and that responsibility
is freedom of communication, at least in relation to public affairs
and political discussion. Only by exercising that freedom can the
citizen communicate his or her views on the wide range of matters
that may call for, or are relevant to, political action or decision.
Only by exercising that freedom can the citizen criticise government
decisions and actions, seek to bring about change, call for action
where none has been taken and in this way influence the elected representatives.
- Eleanor Hall, ‘The World Today’, ABC Radio, 13 October 2005.
- Cookes, op. cit.
- Australian Privacy Charter Council, Submission to the Parliamentary
Joint Committee on the Australian Security Intelligence Organization,
Inquiry into the Australian Security Intelligence Organisation Legislation
Amendment Bill 1999, Submission No. 11, p. 4.
- Attorney-General, Submission to the Parliamentary Joint Committee
on the Australian Security Intelligence Organization, Inquiry into the
Australian Security Intelligence Organisation Legislation Amendment
Bill 1999, Submission No. 9, p. 3.
- Kalina, op. cit.
- Note the opinion provided by the Attorney-General on this point in
Appendix A.
- M. Head, ‘ASIO, Secrecy and Lack of Accountability’, E-Law: Murdoch
University Electronic Journal of Law, vol. 11, No.
4, December 2004, http://www.murdoch.edu.au/elaw/issues/v11n4/head114nf.html,
accessed on 4 July 2005.
- D. Snow, ‘Big Brother sends in the hit squads to clean up national
security threat’, Sydney Morning Herald, 18 September 2004, p.
3.
- Note the opinion provided by the Attorney-General on this point in
Appendix A.
- Cookes, op. cit.
- Noted by both P. Kalina, ‘Truth falls to Iraq war of lies’, The
Age, 16 June 2005, p. 15, and J. Coxsedge, ‘Truth, Lies and Intelligence’,
The Guardian, 29 June 2005.
- Note the opinion provided by the Attorney-General on this point in
Appendix A.
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