Where matters defined under the rubric of national security are concerned, the intelligence agencies of the state demand nothing less than the indulgence to act with unwarranted secrecy – secrecy beyond that which is absolutely essential. Over the last 80 years, as detailed in Part 1, this arrogation and its putative rationale have been explicit especially in the politicised legal casuistry of the Attorney-General. “We, the people” should understand our place as unknowledgeable actors in the drama of governance and desist from dissent; indeed, against an abundance of evidence, we should trust the state – it is the repository of secret information and our guardian. A spelling revision of “citizen” is required: sitizen.
When confronted by the casuistry of those demanding trust from a passive public in the general terms put forward by Defence Minister Harold Thorby in 1938, and Michael Pezzullo in 2018, it is imperative that we ask how they do so with a straight face, especially before an informed and engaged audience.
If that audience has a sense of history it would be aware that, even allowing for the difficulty attending analyses of complex issues and confusing information and data, the acknowledged post-1945 record of Western (and by extension, Australian) intelligence failure is staggering, not least because it frequently involved the betrayal of, first, a genuine intelligence process, and then national security.
Overlaying this were the serial deceits undertaken by the Australian government in respect of the most important decisions it could make. Menzies with Vietnam and Hawke with the Gulf War of 1990-1991 both distrusted the public with a truthful account of the country’s involvement in the respective wars; rather, it took the Whitlam Labor Government and the forensic work of a journalist, respectively, to give the lie to the original accounts. Through the same period, moreover, the government, by obfuscation and dissembling, denied knowledge to the public that, under cover of secrecy, it has agreed to Australia hosting three prime nuclear targets – the euphemistically described “joint facilities” at Pine Gap, Nurrungar and Northwest Cape.
This habit, overall, speaks to an addiction totally inconsistent with democratic principles – namely, a reflexive contempt for the nation by concealing the full nature and likely consequences of developments, decisions and policies which, by their very nature, should be the subject for extensive public discussion and debate.
That this opportunity is so often denied indicates the government’s calculus of the probability that, when the camouflage of the appeal to national security was removed, its actions would quite likely be repudiated and result in not only embarrassment, but its removal from office for serving interests which contradict any sensible definition of the Australian national interest. Withholding from the nation that the national territory would be automatically and intensively targeted by nuclear weapons in any nuclear war between the Soviet Union and the United States conforms with the traditional understandings of treason.
For now, incurability complements addiction, three current symptoms presenting themselves in the familiar vestments noted above.
The first relates to the Government’s declared objective of making Australia a leading arms exporter while, at the same time, the Department of Defence is refusing to provide information on current arms exports. Indeed, a recent report found Defence to be unacceptably evasive in this area: not only refusing to provide answers as to what is being exported, to whom and where, but also claiming – bizarrely – that it does not keep records of current arms export.
The second concerns the so-far effective suppression of two performance audits undertaken by the Australian National Audit Office – one critical of the cost-effectiveness of replacing the Army’s fleet of Land Rovers with Australian-built Hawkeis at a cost of $1.3 billion, and the other critical of the in-service support arrangements for the Department of Home Affairs $330 million fleet of Cape-Class patrol boats. The instrument in question is the little-used clause 37(1) in the Auditor-General Act which permits the withholding of information if it is “contrary to the public interest”.
Accordingly, in both cases the primary justification for suppression appears to be the need to protect the commercial interests of the manufacturer in question, joined with the portmanteau rationale of national security. The latter, however, seems to be unsustainable in the knowledge that the Auditor-General’s report had already been cleared by Defence for any possible threats to national security. By this light, and on the basis of the public record to date, suppression is the consequence of the government seeking to provide benefits to local industry – a laudable objective if it is done equitably and transparently – but in a selective manner and without explanation.
Worse, the inference to be drawn is that the government, through Attorney-General Christian Porter’s resort to 37(1) has, in Richard Mulgan’s reasoned judgement, either capitulated to a multinational defence contractor or simply succumbed to arrogance, or both.
In the process it has undermined both the role of the Auditor-General as an independent officer of the Parliament and the integrity of the office itself. By extension the Attorney-General has also obstructed parliamentary oversight and, the wider record suggests, encouraged other special interests to avail themselves of the cover of 37(1).
Finally, there is the unfolding farce of the impending trial of “Witness K” and his defence lawyer, Bernard Collaery, accused of conspiring to reveal secret information despite there being no evidence that national security has been compromised by their actions. The essential details of the affair are well covered on this site by Ramesh Thakur and Richard Butler, and elsewhere by Mike Seccombe, and need not be reprised; suffice to say that they describe a tawdry affair in which Ministers and officials at the highest level of the Australian government traverse a continuum of behaviour between improper (via stopovers in immoral and unethical) to criminal.
At their heart, the charges amount to a prosecution for making the Government’s crimes public. But in the knowledge that a public trial would only guarantee widespread ridicule and contempt, the government is applying to have the trial heard in secret, even going so far as to deny the defendants the details of the charges against them (as of 7 November), and quite possibly exclude the defence lawyers from being present at the application’s hearing on the grounds, once again, of national security.
This is the surreal stuff of plots commonly associated with Lewis Carroll, Franz Kafka and Joseph Heller but otherwise absurd in jurisprudence deserving of the name since the Spanish Inquisition. What is so striking and startling about it is that it has been the project of a bipartisan cast which includes two Prime Ministers, two Foreign Ministers, three Attorneys-General, and two Directors-General of ASIS (one of whom, Nick Warner, is the current Director-General of National Intelligence).
Of these it is the role of the Attorneys-General that is so disturbing, not least the incumbent, Christian Porter. As this and the other examples cited above indicate, his decision to operate in secret and continue prosecution through the extraordinary powers available to him in the service of covering the government’s original and serious malfeasance conforms to a mode: vindictive if necessary, and on the basis of the evidence to date, designed to serve and protect private commercial gain obtained illegally through the imprimatur and instruments of the state.
From 1982 to 1988, Michael McKinley taught diplomacy, international relations and strategy in the Department of Politics,at UWA. From 1988 to 2014 he taught diplomacy, international relations and strategy at the ANU. He is currently a member of the Emeritus Faculty at the ANU.