Opinion

Frank Moorhouse
Rethinking ASIO’s role with a Citizen’s Compact

The publication in 2014 of the first volume of The Official History of ASIO covering the years 1949-1963, by David Horner, and the second volume by John Blaxland last year, covering the years 1963-1975, show us how security agencies in democracies, while mainly working within the constitution and their legislative powers, are inherently prone to misconduct and “noble cause” corruption among other tendencies (as if we needed showing).

In his volume, Horner says, “Many Australians quite understandably resented this intrusive snooping” and that “ASIO conducted ‘spoiling operations’ that seemed to go beyond its charter…” Horner concludes that “it is now clear that ASIO’s surveillance of academics, intellectuals, writers and artists and its gathering of information into voluminous files, was a massive waste of time and resources … the activity had a corrosive effect within the ASIO, whose officers came to believe that leftist dissent – and the advocacy of what became relatively mainstream views about feminism, social welfare, and indigenous Australians – indicated potential disloyalty.”

Blaxland, in his conclusions, says of the period covered by his book, “Socially, ASIO found it hard to adjust to society’s liberalisation, the student protest movement, and associated aspects of the baby boomer phenomenon.”

In my study of ASIO, Australia Under Surveillance, I conclude that these tendencies are still present. Since the writing of that book two years ago, a new director-general has been appointed and over the past few years, extensive recruiting has increased the size of ASIO to 1700 staff, which may cause some refreshment of thinking within ASIO and new awarenesses about its role.

 Now might be a good time to lay out a compact between us, as citizens, and ASIO. Call it a Citizen’s Compact with ASIO, or call it wishful thinking:

1.    That ASIO reconceive of itself as a commission of experts, in part a think tank, and recruit people of the highest calibre in its related areas of activity. ASIO is, after all, a heavily financed and resourced research centre with unique tools of inquiry – allowing them to look into the nature of our political reality with the aim of protecting the nation from serious dangers, and, in finding those dangers, ideally – repeat, ideally – by using legal and humane methods, and then communicating its findings to the government of the day, to the relevant police and, with new trust and vigour, also to the public. We would expect intelligence officers to be wily, shrewd, and at times cunning. Qualities we look for in the best of our journalists, and inquiring academics, and independent researchers.

2.   While identifying and preventing threats to the safety of the citizens it should serve the constitution and should, equally, see its role as being a protector of traditional civil liberties in the domestic political scene and in its own behaviour – which is the flip side of the role of protecting us from those within the community who are threatening those liberties with violence.

3.   This compact would require, by the agreement of both the government and the opposition parties perhaps following a form of legal review, the deletion of those objectionable parts of the national security legislation which have, on retrospective review, diluted the safeguards of the legal process or unnecessarily reduced civil liberties.

4.   What is almost as damaging to civil society as random and irrational or organised acts of violence is the hounding and persecution, jailing, the bending of the law against innocent people (especially now that it very much affects one ethnic group) which ASIO has done historically and which has been established as happening more recently in various ways.

5.   The compact would require a significant enlargement of the office of the Inspector-General of Intelligence and Security to a size and with refreshed powers and a secure independence with leadership that is sophisticated, relentless and penetrating. This would help restore public confidence. Currently the IGIS has a staff of 13 to oversee six security organisations.

6.   The strengthening of the warrant system rather than a diluting that has happened under the present Coalition government. (Warrants are issued to ASIO to question, to detain, among other things, and now to monitor the internet and personal computers; a warrant to question or detain has to be issued by a federal judge or federal magistrate. The new, contentious legislation, giving ASIO access to the internet and computers, empowers the attorney-general, alone, to issue a warrant for these purposes.) Less should be done by executive action and guile by the agencies authorised not by our representatives but by some gung-ho “noble cause”. There should be a re-examination of the use of clandestine executive “disruption” or “spoiling” tactics in the lives of citizens.

7.   Politicians of all parties should use the muscle of the Joint Committee on Intelligence, and increase the use of national security specialists as advisers.

8.   The role of the Independent National Security Legislation Monitor should be strengthened.

9.   ASIO’s relationship with the National Archives of Australia should be reformed. The integrity and management of the NAA is a vital and urgent concern – it is in no way acceptable, that a former deputy director-general of ASIO should become director-general of the NAA as is the case at present, with David Fricker, nor that his former boss, David Irvine, now retired as director-general of ASIO, should sit on the NAA council. ASIO must not be the final controller of its own records, nor of the records of any other government department. ASIO has also, behind the scenes, vetting privileges with the NAA on public access. These records are a critical part of our national political history, our national memory, and a source of evidence for the redress of wrongs committed by ASIO.

10. There should be a strengthening of the protection, and the reward, of whistleblowers in all parts of the society – both public and private, but also within ASIO – while recognising the need for the customary integrity testing of whistleblowers, using the existing protocols, protections, and procedures used by, say, the Commonwealth Public Service.

11.  At the same time, there should be increased and very solid protection of investigative journalists and writers and their sources, and lawyers and their clients and for civil liberty organisations.

12. There should be a reconsidering of foreign fighter legislation. Preventing Australian-born possible recruits from travelling is probably unconstitutional – or should be – and although it is difficult to establish whether returning citizens have engaged in a violent jihad or other forms of holy war after a period overseas, fundamentally, the security agencies and police and the attorney-general should have to establish whether a law has been broken, a crime committed, before they can interfere with the liberties of a citizen. The agencies and police must test their allegations through the courts.

13. Citizenship once granted must be sacrosanct. Depriving a returned fighter of citizenship would seem to be unjust and may deprive local agencies of valuable intelligence to be gained from interrogation, and sabotage humane rehabilitation.

14. While the first and second volumes of the Official History go some way to being an acknowledgment of the past failings of national security organisations and the dangers inherent and perpetual in such organisations, it would perhaps be useful, in the course of a re-establishing of its relationship and role through any grand compact, for ASIO or the government of the day, to make an official statement of recognition of these past failings and the related damaging practices. This might allow us to put this legacy into history without forgetting its lessons.

15. Consideration should be given to changing the name of ASIO to reflect more strongly its responsibilities for the protection of our civil liberties; to sever it from its negative, past culture; and to dramatically demark a new beginning.

16. While we are at it, the new headquarters of ASIO cost $680 million. The telecommunication plans of which were, it seems, stolen by China, leading to it not being occupied for more than two years. The headquarters themselves are far too imposing and intimidating for ASIO and should, instead, become the Ministry of the Arts, perhaps, with working spaces for practising artists.

There is no harm in asking.

This article was first published in the print edition of The Saturday Paper on Jan 23, 2016 as "Rethinking intelligence". Subscribe here.

Frank Moorhouse
is a writer. His book Australia Under Surveillance was published in 2014.