JACK WATERFORD. The silence of public service lambs used by a panicking government. (Canberra Times 16.2.2019)

Feb 18, 2019

But public service leaders of gumption and character are supposed to have defences and protections against such ill-use. The failure of some to invoke them invites questions about their fearlessness and their independence.  

If it were merely a matter of the survival in office of a few unimpressive bureaucrats, it might not matter so much. Better people have been dismissed without good reason on changes of government, particularly by incoming Liberal prime ministers. But the problem is bigger, because it affects the reputation, the capacity to work, and public confidence in important national institutions.

Duncan Lewis, Director-General of ASIO, is one of those regularly co-opted, with little public sign of resistance, by Liberal ministers. Saying no to a prime minister may be hard, but legislation enacted by parliament more than 60 years ago gave the director-general considerable independence and security of tenure to do just that. Predecessors have. A reputation for showing such independence actually enhances public confidence in the agency. ASIO legislation, affecting a body properly legalistic about its functions, is as focused on limiting as enabling it, and it does not harm to show that the agency respects such limits, contrary to any suggestions that it is gung ho.

I can remember a time when the chairman of the public service board, or the secretary of Prime Minister and Cabinet, might have been heard to complain about such ill-use of officials. There’s not a squeak, perhaps for fear of being lynched by some of the more rabid commentators in News Ltd, now scarcely pretending to be anything other than urgers for a renewed conservative government.

It is too early to judge which recent Liberal prime minister was the worst at such abuses. John Howard was mostly careful in the public use he made of the security organisation, even as he was relatively shameless in his employment and selective use of intelligence advice from other bodies, say over the existence of weapons of mass destruction. I expect one reason for his caution was the calibre, and clear independence of mind, of Dennis Richardson, then the director-general. It has been remarked before that one of the reasons a raft of quite intrusive and sometimes coercive surveillance and monitoring powers were given to ASIO was confidence among the political classes that these would not be abused by such a forthright public servant.

Tony Abbott, as prime minister, was awfully fond of dragooning military, security and police figures into partisan public relations stunts, in which officials stood beside him, in front of an ever-increasing number of national flags, looking as if the prime minister was no more than a disinterested channel of their advice and enthusiastic support. Malcolm Turnbull played politics with crime, if not so much national security. Scott Morrison is, these days at least, slightly more circumspect about trying to get officials to nod wisely as he speaks complete tosh, but does not hesitate to verbal officials if it serves his purposes.

Duncan Lewis may well have the same independence of mind as Dennis Richardson, as well as, of course, experience at the sharp and messy end of warfare and intelligence and security operations. He has served in the bureaucracy and diplomacy, if without much increasing his profile. He has spoken up for increased powers for bodies such as his in the modern and difficult national security environment. But he has never seemed to manifest enthusiasm for close checks against possible abuses of power, or overreach by overzealous officials. He is not associated with any such abuse, but no one would call him a champion of minimal interference with personal rights and liberties, including freedom of speech, belief and association.

It is, of course, not his fault ASIO now finds itself as an outrider to a government department that has sought to centralise and co-ordinate the government’s approach to crime, terrorism, and threat, or supposed threats, to national security. ASIO resisted being conscripted, as did its then duty minister, the then-Attorney-General George Brandis. Nor is it Lewis’s fault both his minister, Peter Dutton, and chief bureaucrat Mike Pezzullo, are both of authoritarian bent. Neither of those who regard themselves as Lewis’s master are famous for tolerating dissent or calls for caution or moderation.

Nor is it Lewis’s fault the Australian Federal Police, another agency supposedly independent of government, is under the Home Affairs security blanket. Also independent, at least in part, is the Australian Border Force, a paramilitary and uniformed body of Pezzullo’s creation, comprised of old customs agents and immigration officials and invited now to think its prime and supreme purpose is to defend the nation at its borders. The AFP behaves rather more as a department of state, pathetically anxious to please the government of the day. The department seems to lack internal checks and balances, and sometimes seems to put outcomes ahead of process and sound management, and seems to lack people with the courage to stand against any of the enthusiasms of its secretary.

But it is the combination of all of this, along with the ambitions of the secretary to “co-ordinate” and perhaps homogenise the information going to government, that should cause people to remember some of the reasons why bodies such as ASIO and the AFP were placed outside the bureaucracy, with statutory independence, in the first place.

Astute leaders of such bodies might also appreciate that they do not acquire increased authority and prestige by being enveloped by unaccountable co-ordination bodies, having their opinions shaved into a consensus view before going to the higher councils of government. ASIO, after all, has direct access to the prime minister and sits on official national security committees. It has power of access to officials who need to know security information in the exercise of their duties. Why would it think its functions were better served by being absorbed into a monolithic departmental view at a lower level of the system?

Lewis has been Director-General for nearly five years. During his term, official histories of the organisation, commissioned by a predecessor, have been published. These have made it clear that during ASIO’s first 25 years its efficiency and effectiveness were seriously compromised by popular perceptions, particularly on the Labor side of politics, that it was an organ of the Liberal Party. This was a perception that was initially unfair but, the official history concedes, tended to become true as officers became embittered by its reputation and institutionally hostile to Labor.

It took the organisation another decade to become reasonably relaxed and comfortable with Labor governments, but a degree of mutual suspicion remains. In Australia, if not everywhere else, suspicion of powerful security agencies and strong civil liberties perspectives, tend to come from the left of politics. A steady pattern of abuse of ASIO information, and public perceptions that it has been willingly used to bag or discredit leading Labor figures, could easily bring back party and public distrust.

The ASIO of today is a quite different body from the organisation of cold warriors, but its capacity to perform its functions necessarily depends on public confidence in its integrity – not only within government but also within the communities of Australia among which it must do its work. Even when ASIO is carrying out its proper functions with efficiency, integrity and discretion, its reputation and capacity to do its job can be adversely affected when its advice is leaked for purely partisan purposes, and subsequently declassified to amplify a message that the agency is entirely at one with Liberal ministers and appalled by the approach of the Labor Party.

It is notable that Pezzullo asked the AFP to investigate the leak, particularly when it was obvious that the leaker was not a million miles from the office of his minister, Peter Dutton. It was consistent with what Pezzullo has done when there have been leaks before, even when they have been convenient to the government of the day. It may also have followed a prompt from ASIO, alarmed at the way the government was enlisting its advice for purely political purposes. But if so, it might have been better had ASIO itself protested, loudly and publicly.

Pezzullo, of course, manifested a touching faith in the ability and the will of the AFP to find, let alone prosecute a leak. Its record is not good in this regard, even when the source has seemed fairly obvious, and even when an investigation has seemed to involve the application of considerable resources, budget and time. Time that has suited the government, since it has invited the public to forget.

Even beyond the leaking of ASIO and Home Affairs classified advice this week, was the spectre of ministerial officers answering questions about leaks to the media about AFP raids on the Australian Workers Union. We are yet to discover if the failure of the matter to proceed was a consequence of caution and lack of will inside the office of the director of public prosecutions, or the failure of detectives to establish all the pathways by which confidential information reached the public domain.

If I were in ASIO, I would have extra reasons for alarm about its material entering the public domain. It is by no means clear that the entry into Australian waters of asylum seekers is always, prima facie, a matter of national security interest, thus engaging ASIO’s duties and responsibilities. It is true the definition of security was amended to include “the protection of Australia’s territorial and border integrity from serious threats”. But, various apocalyptic statements by Pezzullo over the years notwithstanding, it is not clear that the nation’s sovereign veil is rent whenever there is an unwanted visitor, let alone ones with a perfect right to approach us in search of our protection.

Nor is it clear (and ASIO has not responded to my question on the matter) what the difference between a “serious threat” and “a threat” is. Perhaps organised expeditions by the dreaded people smugglers could be a serious threat, if one accepted all of the chains of logic by which it seemed to be apparent to Lewis and Pezzullo (and no doubt General Angus Campbell were it not an “on water” matter) that any relaxation in the oppressiveness of conditions on Manus and Nauru would “send a message” to the people smugglers. The bill was not about relaxing, in any significant degree, the odious regime of denying Australia as a place of refuge to people fleeing oppression. It was about allowing such people access to medical care. If the agencies were exercised about the subtleties of underlying messages, they should not have lent themselves to the hysteria generated by Morrison and Dutton.

It is not to be assumed the government is on a winner by the re-demonisation of asylum seekers as rapists, murderers and likely terrorists – an impression for which Home Affairs and ASIO can share the blame, even if they said no such thing. It is simply that the government is desperate for an issue – any issue – that it can take to an election. Nothing else seems to have worked so far, but there is little evidence the population is still capable of being galvanised around fear of “invasion” by unassimilable hordes. To the contrary, recent evidence has suggested public disgust at the shamelessness, lack of decency, and lack of restraint of some of those seeking to invoke prejudice to excuse ill treatment of refugees.

A time will come when the veil will be lifted over Australian actions and policies in relation to the 21st century boat people. The reckoning and the judgments may well be on the politicians. But, even allowing that public servants and military folk were giving expression to the government’s will, there will also be searching and critical scrutiny of the role of officials, particularly those whose involvement went beyond following orders to provide the cover that enabled the politicians to conceive this dark chapter of our history. I see few of our institutions covered with honour in this regard.

Jack Waterford is a former editor of The Canberra Times

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