No politician has the spine to stand up to Australia’s intelligence state

Jan 4, 2018

It’s standard in an end-of-year piece to attempt to identify some unifying theme in the events of an arbitrarily selected period of time. Sometimes themes and commonalities really do emerge. Other times, they’re the author’s confection.

I’m going to skip that this year and write instead about a matter that illustrates something is deeply wrong — evil, even — within our government, within its most secretive areas.

This month marks four years since the former senior ASIS officer known as Witness K, and his lawyer Bernard Collaery, were raided by ASIO; in the case of Collaery, ASIO had waited until he was out of the country to raid his offices, meaning he was unable to vet their warrant and prevent them from taking documents beyond its scope (Collaery’s practice handles a number of sensitive intelligence matters, matters into which both domestic and foreign intelligence services would value an insight). At the time of the raid, K’s passport was seized and he still has not had it returned; it was originally seized to prevent him from travelling overseas to give evidence in East Timor’s suit against Australia in relation to the Timor Sea Treaty.

For those who came in late: K and Collaery were raided at the instruction of then-ASIO head David Irvine. Irvine had been ASIS head in 2004, when ASIS bugged the cabinet rooms of the East Timorese government to secure Australia an advantage in the commercial negotiations with East Timor that followed the treaty. The resources company Woodside was also a prime beneficiary of those negotiations. The minister who ordered the bugging, Alexander Downer, later took a job as an adviser to Woodside, and the secretary of Downer’s department, the late Ashton Calvert, later took a director’s position at Woodside.

The bugging was, under any sensible reading, a clear breach of Australian law. Those responsible have never faced prosecution or even questioning.

Duncan Lewis has since replaced Irvine at ASIO, and has indicated ASIO has no concerns about K having his passport returned. The East Timorese suit has long since been abandoned in favour of negotiations between the two countries. But the return of K’s passport was been vetoed by ASIS and our unctuous Foreign Minister Julie Bishop, without any explanation or justification. Collaery continues to be surveiled by intelligence officers. Indeed, at one stage, Attorney-General George Brandis, that overpromoted solicitor with the schoolboy Latin and kindergarten political judgment, claimed in parliament that Collaery may have broken the law. As with so many of his smears, Brandis was unwilling, or more correctly unable, to produce any evidence to back that up.

It’s important to note that Witness K was not a whistleblower (as media reports, including my own early ones, referred to him), although he is perhaps motivated by similar concerns to whistleblowers. ASIS mistreated K because, he believes, of his concerns about the illegal bugging operation. Consulting the Inspector General of Intelligence and Security, as was appropriate for an intelligence officer, K was advised to raise his concerns in a legal forum. He did so, and has been subjected to constant harassment since.

Illegal actions under the Howard government against a microstate, persecution of K and his lawyer by the Abbott government — surely Labor has pursued this matter? In fact Labor has firmly aligned itself with the Liberals on this, and has done and said precisely nothing about it. This is part of a deeply toxic, bipartisan unwillingness in Australia to discuss national security issues in the manner that the US and British parliaments are willing to — and as part of Labor’s comprehensive cowardice on national security under Bill Shorten. The only parliamentary scrutiny in relation to K and Collaery has been from Nick Xenophon and the Greens, who endeavoured to use the almost negligible scope of parliamentary committee scrutiny to get at what was being done to them and why.

This is consistent with the broader problem of national security in Australia. Our spies operate with virtually no public parliamentary scrutiny. We are blithely assured by politicians that we have the world’s best counter-terrorist and counter-espionage agencies, despite their racking up major failures — Man Haron Monis, the near-thing attempt to bring down an airliner out of Sydney about which our agencies knew nothing, major cybersecurity lapses. But we have weak mechanisms for politicians – publicly or in-camera – to hold them to account.

Overlay on that Labor’s craven capitulation to the Liberals on national security and we have a de facto national security state in which intelligence officials do what they like without fear of parliamentary or executive check. Indeed, to see Duncan Lewis scolding Pauline Hanson about the non-threat posed by Australian Muslims is to realise that, if anything, our security officials now act as a check on elected politicians, not the other way around.

As a community we’re thus infantilized: unlike the Brits or the Americans, our politicians refuse to debate national security issues beyond name-calling and accusations of being soft on it; the “adults in the room” are the very people who should be being rigorously scrutinized by politicians and the media.

Neither has there been any change in the circumstances of K with the replacement of Tony Abbott by Malcolm Turnbull — a man who is now the very shadow self of Spycatcher Malcolm, the principles of genuine liberalism he promised on the night of his becoming Prime Minister as distant a memory as his commitment to climate action.

Nor has the media given the plight of Witness K the attention it deserves. The ABC reported strongly on the story in 2013 and 2014. Since then, there has been little coverage. But it’s difficult for journalists: there are few new hooks or angles on this story. The government simply continues to bully and harass K by withholding his passport and maintaining the pressure on his lawyer; there is nothing new to report. And by virtue of his legislatively enforced anonymity – you will go to jail if you reveal the identity of K or any other ASIS officer – there is no “human angle”.

Recently, Julie Bishop paused from her polo, partying and intra-cabinet power plays to issue a media release. “Today the Australian Secret Intelligence Service (ASIS) launches an innovative recruitment campaign to attract the next generation of Intelligence Officers to serve Australia’s interests,” she said, “which will identify those smart, perceptive, empathetic individuals with the ‘human intelligence’ to work for ASIS.”

“Human intelligence.”

Missing, of course, is what the Witness K case makes clear is the ultimate “human intelligence” prerequisite for anyone seeking to work for ASIS: a surrender of morality. The purpose of K’s harassment – and the reason why it has been so open and obvious – is to deter any intelligence official from undertaking similar, entirely legal, activity to defend their own rights, and to deter any lawyers who may be inclined to offer them advice and representation.

Just to emphasise the point, the government’s new National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017, under the cover of expanding laws to address foreign interference, has radically expanded the capacity of the government to prosecute officials who reveal even unclassified information, under the pretence that it could be “espionage”. If this frightening bill becomes law, even the revelation of the most anodyne information will be treated as spying by the government, incurring long jail sentences. And anyone deemed to have “solicited” or “procured” such information — whether lawyer, or journalist, or even politician — will also be jailed.

For anyone foolish enough to seek employment within the dark recesses of the Australian security state, it is important to know that if ASIS undertakes an illegal, immoral activity that has a result of benefiting a corporation for which key officials will go on to work, they need to stay silent. Do not go to the Inspector-General of Intelligence and Security. Do not approach a lawyer. Do not seek to defend your basic rights. Above all, do not tell the truth. Maintain the darkness within which this bureaucratic banality — and perhaps venality — of evil thrives.

That’s your Australia at the end of 2017.

Bernard Keane is the political editor of Crikey.  This article first appeared in Crikey on 21 December 2017

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