Law can’t hide hypocrisy, lying and double dealing

Forty years ago, Justice Anthony Mason, later Chief Justice of the High Court, made it clear that mere embarrassment — or the avoidance of being found to be a hypocrite — is not enough to justify the protection of the courts when the government is involved.

Governments, Mason said, did not have private interests. They governed in the public interest, and courts, when asked to protect government information would look at the matter through different spectacles than when protecting the rights or privacy of an individual.

“It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism.

“But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism.

“It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action. Accordingly … unless disclosure is likely to injure the public interest, it will not be protected.”

Against that general principle, of course, is now an array of national security legislation telling judges what to think enacted during the great terror after September 11, 2001. In general, what they should think is what Peter Dutton or Mike Pezzullo, or both, think. The benefit of every doubt goes to secrecy and suppression and the avoidance of transparency, (more or less on the basis that one cannot be careful enough).  Cowed judges have already conducted criminal trials in secret without the public having any idea that a person has been charged, tried and sentenced, without even the charge being known. Even the ACT Attorney-General and the ACT Minister for our prison system were not to know how our courts were being used by the Commonwealth.

It could also involve  discussion of how Australia, like many other countries such as Britain, France and the US, regards as being within the national interest the prosperity and success of big Australian commercial operations abroad. This would be a surprise to many Australians who put matters of commerce in a different basket from the defence of the nation.

Thus there have been scandals in the past when the  intelligence gathering capacity of Britain’s MI5 might be deployed to help a British engineering operation win a dam-building contract in India, a submarine contract in Malaysia, or a defence deal with Israel or Saudi Arabia. The “help” might include bugging officials of the government awarding the contract, or spying on and bugging the conversations and telecommunications of competitors from other countries, such as, say Australia or the US. British government spooks, that is to say, providing regular transcripts of the conversations of buyers or rival companies, including discussions of bottom lines. Of course we and some of the other sophisticates, do the same back, and perhaps cancel these unnatural advantages out.

Some operations by some countries  might even include —  have on occasion been said to include — bribing, compromising or corrupting people involved in the process.

One can see how it can be argued that the contract or desired outcome brings profit and income to the nation domiciled in the relevant country, but others fear how we compromise ourselves when  systems designed for the nation’s ultimate defence are deployed in vulgar commerce, often for the benefit of “Australians” who are less than exemplary international citizens.

In the Collaery and Witness K case, Australia’s spying was rather less than for the national’s foreign affairs or defence interests than for the benefit of Woodside Petroleum, only notionally an Australian company, but the beneficiary of a border line unfairly skewed to Australia’s interest.  All the more unattractive, as some would see it, when the chief negotiator, our Foreign Minister Alexander Downer and his senior adviser, Ashton Calvert soon after leave government and go on to very handsome retainers from Woodside.

It would not surprise me, if most Australians thought that bugging little East Timor was immoral, wrong, and unsporting, and definitely not in Australia’s long-term national interest. All the more so when the existing boundaries had been rigged. Those who think this are not disloyal to Australia — right or wrong. They may reason that behaving decently, particularly to poor countries, is in our long-term interest. Just as a person could have been a loyal Englishmen 150 years ago while thinking that forcing China to buy opium was terribly wrong and short-sighted.

So far Justice Mossop has not had to determine such questions. His focus is on open court or not.  On that he has heard from a former Ambassador to Indonesia (and many other countries) John McCarthy, a former chief of the Defence Force staff, Admiral Chris Barry, and a former foreign minister, Gareth Evans, all called on behalf of Collaery to argue that no damage to the national security will ensue from the facts being recited in open court.

Whether embarrassing disclosures are in breach of national security has also arisen in a case that police have now abandoned. Mike Pezzullo, of Home Affairs, was discussing with senior defence and defence intelligence officials, whether national security powers ought to be extended to increase the amount of monitoring and surveillance of citizens by signals intelligence agencies. Not surprisingly they all agreed that this was a good thing — though government, once it came out, dismissed the proposal out of hand. Going by the vehemence of denials it seems that the officials had ambushed ministers, none of whom (they say) had asked for such a proposal.

The exchanges of correspondence, in letters marked Top Secret by the authors, were leaked. But the AFP raided the house of the relevant journalist, Annika Smethurst, including combing through her underwear cupboards, but, perhaps characteristically had a body warrant. Top cops made it clear that they held media protests about their intrusions in the deepest of contempt.

It is a wonderful conceit and power that an official can come up with an idea without any status, with the no doubt coincidental capacity to increase the size of his bureaucratic empire, can mark it Top Secret, and then can demand that anyone who leaked or publicly discussed it be prosecuted and sent to jail. In such a proceeding, there are only the faintest protections for the public interest in disclosure, and the legislation, drafted from within the club, seeks to foreclose on discussion about whether the proposed activity is in the national security interest.

Michael Pezzullo has a lot of national security expertise and experience. But a good many of his colleagues do not see the world in his apocalyptic way, and do not agree with his ideas — which lean to the extreme and the coercive, and are very impatient with talk of human rights and balances of interests. He is not famous for encouraging debate, or for seeking underlings with views different from his own so as to test his ideas. As he has accumulated power, and imagined for himself a need to coordinate everything, he has created his own intelligence agency inside his department, adding to ASIO, the AFP others already in defence, PM&C.  It is supposed to be focused on border surveillance and drug smuggling, but, absent resistance from outside, is conceived of being able to have an opinion on everything.

The accumulating power of any person in his position ought to be subject to scrutiny and debate. It is not an aim much helped by assumptions that leaking his plans is, prima facie, a crime, likely to rent the national fabric.  It is clear that his minister Dutton has no stake in reining him in. Dutton  is determined to make issues of law and order, border security and national security deeply politicised.

Nor is it clear that rival agencies, even departmental outliers such as ASIO, the AFP, Austrac, the Crime Commission and so on  have the personalities, the leadership or cred to counter him in external or internal debate.

Mike Burgess, formerly at the Australian Signals Directorate, now at ASIO, is a splendid career intelligence officer, slightly leavened by a short period in the private sector. He is well respected by insiders. But the capacity of ASIO to do its job — whether in pursuing spies or terrorists or developing its computer security talents out of Burgess’s expertise — depends a good deal on public confidence in the steadiness, the moderation, common sense, and the breadth of the organisation, particularly its leader.

Over the past few decades ASIO has acquired new resources and powers — including, quite wrongly, executive functions — with a grudging and suspicious public consent mainly based on confidence in the personality of its leader. That usually requires some reputation outside national security. Burgess’s problem is that he has no public reputation other than as a clarion of doom. If he has ever seen a power he doesn’t want, a threat he doesn’t think very serious, a creep of function out of his remit, the public isn’t aware of it.

Twelve years ago, ASIO was given considerable credit for publicly disagreeing with AFP assessments that Dr Mohamed Haneef was a terrorist. It didn’t panic when officers of other agencies failed — in some cases, as the inquiry concluded, losing objectivity. Politicians played by their instincts, which is to say badly. The experience is no guarantee that a similar challenge could not arise again, this time with many more institutional factors commanding panic, over-reaction and misinterpretation. The public has as yet little idea how Burgess would juggle the public interest and the national security interest.

Yet somehow I cannot see Mike Pezzullo or Mike Burgess, or our Attorney-General who is giving impetus to all of these national security prosecutions agitating for the US to deal with John Bolton. First, he’s a politician — a protected species in these matters, especially if politically conservative. Second, in the US where “rights” for white good old boys are taken very seriously, unless you are Julian Assange, it would become quickly a cause celebre of free speech, human rights, and common or garden political payback.  These are not concepts recognised by our law or practice.

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John Waterford AM, better known as Jack Waterford, is an Australian journalist and commentator.

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