Australian Intelligence papers released .

Balancing security and privacy: Bob Hawke faced dilemmas familiar today

Then prime minister grappled with the brief and oversight of the Australian Security Intelligence Organisation

Paul Chadwick

Though set in the distant, final days of the cold war, Australian cabinet documents dating from 1986-87 show a government grappling with many of the same dilemmas Edward Snowden’s disclosures currently illuminate.

Released today by the National Archives, some of the documents are redacted on security grounds. But the available material shows that well before smartphones and social media, Australian MPs were wondering how to balance the public interest in a secure and well-administered free society with the fundamental freedoms that should distinguish that society: privacy, freedom of expression and effective checks on the uses of state power.

The issues that Snowden has raised for Americans by disclosing a trove of data from the National Security Agency (NSA) arise equally for citizens of Australia, New Zealand, Canada and the UK, the countrieswhich since the 1940s have gathered and shared intelligence with the US as the so-called “5-Eyes”.

Snowden’s disclosures, supported at least in part by Barack Obama’s own review panel, have exposed weaknesses in the framework of oversight of US security and intelligence agencies which the Congress built in the 1970s in response to revelations of earlier abuses and unlawful activities.

Australia had something similar, and the newly released documents tell part of the story.

In 1974 the Whitlam government appointed Justice Robert Hope to inquire into Australia’s security services. After 23 years in opposition, many in the Labor party viewed the Australian Security and Intelligence Organisation (Asio) with suspicion. In 1973 Whitlam’s attorney general, Lionel Murphy, had personally visited Asio’s offices – the media called it a “raid” – in search of information he believed Asio had withheld from him, the responsible minister.

Hope’s royal commission found a history of ministerial ignorance of security and intelligence issues. He discovered that Asio had provided selected journalists with political briefings, and that there were examples of improper use of security and intelligence information for political purposes.

The next Labor government, Bob Hawke’s, was elected in March 1983 during the final big chill of the cold war led by the then US president Ronald Reagan. Hawke soon had a security crisis to handle. The Labor party’s former federal secretary, David Combe, who had become a lobbyist and had good access to ministers, had developed a social relationship with the first secretary of the Soviet embassy, Valery Ivanov, who was believed by Asio to be a spy.

Asio had bugged Ivanov’s home and concluded that Combe was being cultivated, perhaps with a view to recruitment. The Hawke government expelled Ivanov and closed down Combe’s access to ministers. Hope, as royal commissioner, again investigated and controversially vindicated Asio.

Traces of these events can be found in the 1986-87 cabinet documents because the Hawke government was at that time deciding how to implement various Hope recommendations for reform of the security services: how to improve the standard of background checks of security and intelligence staff, and how to create a scheme for the reporting of contacts between Australian officials and overseas representatives within Australia.

The list of countries from which those overseas representatives came has been redacted from the documents on the grounds that its disclosure “could reasonably be expected to cause damage to the security, defence or international relations of the Commonwealth”.

The same exemption has been cited to deny access entirely to two documents which appear to relate to the Spycatcher case from the same period. The present communications minister, Malcolm Turnbull, was (victorious) counsel for Peter Wright, a former member of Britain’s MI5 security service, and his publisher Heinemann, when the UK government unsuccessfully tried through the courts to prevent publication of Wright’s memoir Spycatcher, which in part alleged that MI5 had overstepped its remit.

The two closed documents are Memorandum 4290 “Proceedings to prevent publication of books about intelligence and security matters” and Memorandum 4433 “Australian intervention by affidavit in UK Attorney-General v Heinemann and Peter Wright”. It is difficult to imagine why these documents would be so sensitive 28 years after the event that suppression could be justified, and Guardian Australia is considering an appeal.

Here is a summary of some of the issues Snowden’s disclosures have raised, followed by material from the 1986-87 Hawke cabinet documents which demonstrate how similar issues recur and require renewed investigation – and, perhaps, fresh reform.

How best can democracies hold their security services accountable when too much transparency could weaken their effectiveness?

Submission 3905 briefed cabinet on what Hawke and his closest advisers had decided to do about Hope’s recommendations. A legislative package would:

• Give a person subject to an adverse Asio assessment an opportunity to be heard (a recommendation expressly stated to arise from the Combe-Ivanov affair)

• Narrow Asio’s brief so that it should not limit the right of persons to engage in lawful advocacy, protest or dissent. The exercise of that right should not, by itself, be regarded as prejudicial to security

• Create a joint parliamentary committee of MPs from different parties to oversee Asio

• Create the role of inspector general of intelligence and security “to assist ministers with oversight and review of the intelligence and security agencies: firstly, their compliance with the law; secondly, the propriety of their activities; thirdly, the effectiveness and appropriateness of their procedures”.

• The inspector general, and not the human rights commission, would consider any complaints about the security services.

The joint parliamentary committee and the inspector general are still in existence in 2014. It remains to be seen whether, as Obama’s review panel has done in the US, they will inquire and report publicly into Snowden revelations that have relevance to Australia.

For example, have Australian intelligence agencies, either alone or with other 5-Eyes members, with or without the co-operation or knowledge of phone and internet service providers, been involved in mass collection and/or use of the phone metadata of Australians or of their email or social media activities? If so, has this been done with or without approval from ministers? Would suspicionless mass surveillance of this kind comply with Australian law? With whom is the data shared? Are the agencies’ procedures effective and appropriate so that the stored personal data is secure from, say, a Chelsea Manning or an Edward Snowden?

When phone metadata is collected, perhaps improperly, can the public interest justify its use anyway?

In 1987 in Queensland Tony Fitzgerald, QC, was in the midst of his landmark inquiry into corruption in that state’s public administration, especially its police. Cabinet Memorandum 5404 records the Hawke government’s agreement to Fitzgerald’s urgent request for Commonwealth legislation to enable access for Fitzgerald to phone metadata. The third paragraph says:

“The [Fitzgerald] commission has become aware of the existence in the hands of Telecom [now Telstra], and an officer of Telecom, of information which could considerably assist the commission and is regarded as essential to criminal law enforcement. This information will disclose the fact that various calls have been made or attempted between various telephone numbers, but not the contents of conversations. The information was obtained as a result of ‘interceptions’, some of which may have been in contravention of the Telecommunications (Interception) Act.”

The memorandum indicates the Australian Taxation Office would be empowered to provide “tax-sourced information” to Fitzgerald. It notes the ATO had been given access by the Fitzgerald inquiry to a transcript index and to information sourced from financial institutions and had been able to issue increased tax assessments.

Material disclosed by Snowden, or in response to his leaks, indicates both the importance of appropriate data sharing by government agencies to achieve legitimate ends and the likelihood that when large amounts of the public’s data is collected for a particular purpose there is a tendency to want to use it for other purposes which may have been unforeseen when collection was authorised and may be unrelated to the purpose of collection.

In the information age, to what extent ought government agencies compulsorily collect and use the personal information of citizens, the better to identify and govern them?

In 1986 and 1987 the Hawke government announced its intention to introduce an identity card. The Australia Card proposal met considerable public resistance, essentially on privacy grounds. The year 1984, of the famous Orwell novel’s title, had recently passed, and the implications of data-matching with computers were becoming better appreciated.

The documents show that cabinet considered both the civil liberties issues and a cost-benefit analysis. Cabinet Submission 3510, on civil liberties, emphasises the proposed safeguards, including an independent watchdog to be known as the data protection agency. Submission 3507 noted that while some uses were unquantifiable, the cost effectiveness was $3.20 of benefits for every dollar of costs. Benefits envisaged included reduced tax evasion, better welfare administration and improved census data. The Defence Department is reported to have seen potential secondary uses for the card, but these are unspecified in the cabinet submission.

The government tried to tough out the resistance, and in August 1987 the cabinet decided to push the legislation through a joint sitting of parliament if necessary. Cabinet records show that ministers were formally urged to get behind the government’s position.

But resistance to the Australia Card continued, legal difficulties also emerged and in late September, the cabinet decided to abandon it. The upshot, which endures today, included the tax file number,Commonwealth Privacy Act and office of the privacy commissioner.

The Snowden disclosures – and the reviews, agitation and litigation surrounding them – have the side-effect of demonstrating to the public both the amount of personal information that is generated by commonly used devices and routine activities, and the level of government interest in collecting and using that data.

In that sense, the Snowden story may amount to the most prominent opportunity in this country since the Australia Card debate for reconsideration of the acceptable trade-offs between privacy and government data collection. Whether the same degree of party political combat, public concern or proffered safeguards results in Australia in 2014 as occurred in 1986-87 is yet to be seen.

When is a whistleblower a traitor, and how much should sovereign nations assist the US to impede the international travels of a person who reveals the workings of US intelligence agencies?

The newly released archives show that in May 1987 the Hawke cabinet decided to refuse a visa to visit Australia to Philip Agee.

Agee was a CIA officer who in the 1970s had left the agency and in his book Inside the Company: CIA Diary disclosed details of CIA agents’ identities and activities in which he participated or had knowledge. They included activities seemingly beyond the agency’s proper functions. His passport was revoked and he was expelled from several countries at the request of the US.

Cabinet Minute 9604 does not give reasons for the refusal other than to say that “any public statement about this decision should make the point that both the Callaghan government in Britain and the Mitterrand government in France had refused entry to Agee, referring in particular to the statement made at the time by the Callaghan government which publicised Agee’s hostile intelligence connections”.

The parallels with recent events involving Snowden and David Miranda are not exact. For instance, a Soviet defector was to claim that Agee had offered his services to Soviet intelligence and, although rejected as a plant, Agee had assisted Cuban intelligence.

Agee was simply denied a visa by Australia. By contrast, Miranda was detained and searched by UK authorities; and several European countries denied access to their airspace to the Bolivian president’s plane when it was thought to be carrying Snowden away from Russia.

However there are similarities enough to indicate that when faced with a person making public disclosures about its intelligence agencies, the US has for many years had a long reach. It has been able to obtain the assistance of governments which in other circumstances might place greater weight on freedom of expression and of association.

Five months before its decision on Agee, the Hawke cabinet had adopted a revised “controversial visitor policy” and agreed the primary criteria to be adopted in deciding whether to accept or reject a visa application from such a visitor. The minister for immigration summarised the policy as involving “some liberalisation of present policy in terms of freedom of speech and in the equality of treatment”.

The criteria focused mainly on whether the visa applicant had undertaken or promoted violence. The revision seems mainly to have been concerned with distinguishing visits by Palestinians, which were to be allowed (unless they did not otherwise meet the criteria), from visits by PLO representatives, which were not. The policy is expressed in generic language to apply to any visa applicant. Attached guidelines state in part that “the mere likelihood of the visit giving rise to discussions or debates that go on in a democratic society is not to be considered sufficient to designate the applicant as a likely controversial visitor”.

http://www.theguardian.com/world/2013/dec/31/balancing-security-and-privacy-bob-hawke-faced-dilemmas-familiar-today