The greedy jaws of national security

Dec 14, 2023
Prison communal room jail in sunlight of high security run down immigration detention centre in England with professional CCTV security camera monitoring the room activity

With some honourable exceptions, most of the media and the parliament enthusiastically support almost everything the Director General of the Australian Security Intelligence Organisation Mike Burgess has to say. Although Burgess is not an extreme hardliner in the Australian intelligence world, many of his statements should not go unchallenged.

Earlier this year, Burgess said foreign intelligence services from multiple countries are aggressively seeking Australian secrets about medical advances, academic and think tank research, and key export industries, as well other more obvious targets. Medical advances should always be in the public domain, not kept secret. Sharing new discoveries with researchers around the globe is the best way to make breakthroughs that lead to widespread benefits for humanity. Some pharmaceutical companies impose patents for much longer than required to make a reasonable return on their initial research funding. Keeping that sort of research secret should not be a job for ASIO.

Nor should ASIO prevent collaborative academic research between countries. A statement by the Group of Eight leading research universities says international collaboration is the foundation of most of the world’s major research breakthroughs. “This enables the best minds in each field to collaborate, regardless of nationality or location, in the pursuit of common goals – delivering the best research to solve global problems.”

Yet Australia’s universities have effectively agreed with ASIO to restrict research collaboration with China, although it now has the largest number of citations in scientific journals in the world. While some leading academics pussyfoot around the problem, Monash’s then Vice Chancellor Margaret Gardner responded to the Morrison government’s further intervention in universities by saying she couldn’t think of other universities in advanced democracies that were subject to a similar level of intervention. “It’s the sort of thing you see in authoritarian dictatorships,” Gardner said.

Why foreign intelligence agencies would seek secrets about key Australian export industries is not obvious. Most of this information is already in the public domain as a normal consequence of how markets operate. Otherwise, these wealthy enterprises have sufficient resources to keep their secrets with no need for ASIO to be involved.

The renowned physicist Edward Teller set the benchmark for opposing shackles on research. Although considered the fiercest nuclear hawk of his generation in the 1940s and 50s, Teller was an outspoken opponent of government attempts to impose secrecy on scientific research, including nuclear weapons research. He told a congressional committee in 1974: “Modern science has developed in a spirit of openness that is antithetical to that of alchemistry. When the secrecy and mutual isolation of the alchemists was replaced by openness, this brought about the dawn of modern chemistry.” Teller maintained that “Secrecy is a thoroughly undemocratic measure which makes it difficult for the citizen to fulfil the duty of making up his mind on important public issues”.

ASIO had over 2000 staff and budgetary resourcing of $800 million in 2022-23. How this can be justified is hard to discern. Gareth Evans has said that in the 13 years, he was in Cabinet he found little of stuff from ASIO and the Australian Secret Intelligence Service “added value to our understanding of what was going on, let alone vital to our security”. A former deputy head of defence in charge of strategic analysis, Alan Wrigley, said “none of [the] massive volume of intelligence material that crossed his desk over a 10 year period was of any significant value to policymakers”.

Maybe ASIO has improved. But it is difficult see why it puts so much emphasis on countering foreign operatives supposedly trying to influence Australian policy. Americans are the key ones but are not monitored. Burgess himself says parliament would not be susceptible. There is no reason to believe the judiciary would be any more at risk, nor the military leadership and so on. These people have minds of their own.

Yet Burgess’s predecessor Duncan Lewis warned that Australians would wake up one morning and find they’d been taken over by Chinese influencers. The Nine media journalist Peter Hartcher faithfully reproduced the same theme in a long essay, “Red Flag”.

Many in the media remain wedded to ludicrous claims about Chinese influencers. In one spectacular example, they claimed a Melbourne car dealer Bo Zhao could have won preselection for a Liberal party federal seat in 2019. There was no way this would happen – Zhao had earlier been charged with fraudulent financial dealings, his car dealership was in administration and he was heavily in debt. Zhao died in a motel room in March 2019. Victoria Police stated there were no suspicious circumstances.

China’s harassment of people of Chinese origin in Australia is a serious concern, as is the Indian government’s harassment of Indians living here. Worse, it was reported on November 29 that an unsealed US criminal indictment contains details about an alleged plot connected to the Indian government involving multiple assassinations in North America.

In an unlikely move three years ago, the Morrison government appointed a senior lawyer Grant Donaldson as the Independent National Security Legislation Monitor– the fourth to hold the job. His term ended on 3 December 2023. In November, he released a tough review of the operation and effectiveness of the National Security Information Act. His recommendations highlight the gulf between the laws which once guaranteed Australia was a liberal democracy and those which have since been introduced in the NSI Act and other laws recommended of intelligence bodies. and departments such as Attorney Generals and Home Affairs. The harsh new laws put much less emphasis on individual liberty and a lot more on the requirement to adhere to the constraints of a national security state. Yet they were endorsed by both Labor and the Coalition – something that would’ve been unthinkable under their leaders for most of the post-war period.

Donaldson said his first objective was to enhance “open justice”. He recommended repealing provisions of the NSI Act, which impose closed court hearings. He also wants to remove mandatory directions in the Act that prohibit judges making principled decisions to prioritise the requirements of a fair trial. He recommends changing the NSI law to ensure the “foundational principles of criminal justice” – the presumption of innocence and the prosecution bearing the burden of proof – are not undermined.

Donaldson said the “secrecy of the Alan Johns case is a shameful tale”. Johns (a pseudonym) was also known also as witness J. He is a former Australian intelligence official who was charged, convicted and jailed in complete secrecy in 2018. Not even his mother could be told he was in jail. To her, he had disappeared as if he were living in a South American dictatorship. Donaldson’s views on the case prompted a strong response from Mike Burgess who claimed “foreign intelligence services would absolutely have an interest in information provided during legal processes that would assist them in identifying our sources, methods, personnel, capabilities, vulnerabilities and intelligence priorities”. The head of the Office of National Intelligence, Andrew Shearer, made a similar argument in a public forum organised by Donaldson on 19 July 2023. Donaldson explained that he was not advocating that intelligence agencies be forced to reveal sources or methods.

The fears of the potential damage if there was any loosening of the secrecy in the John’s case seem exaggerated. After some minimal information was eventually released, it showed that Johns was hardly a candidate for “traitor of the century”. He only served 15 months in prison before being released.

A former NSW Supreme Court judge Anthony Whealy asked if we are now “a totalitarian state where people are prosecuted, convicted and shunted off to prison without they, or the public, having any notion of what happened? He also asked if Johns was “another victim of the greedy jaws of national security”.

Johns was not Donaldson’s only concern. He said, “To many, the prosecutions of Witness K and Mr Collaery, were unjust and, rather than being prosecuted, they should’ve been feted for bring details of the behaviour of the Australian government to public awareness”. ASIO set the ball rolling after it received board ministerial warrants to intercept the phones of Witness K and Bernard Collaery Although the NSI act was used to close the court, Witness K and Collaery were charged under the Intelligence Services Act. The use of this Act was a bold attempt to silence, and jail, the two people who behaved with honour in the whole affair.

The government clearly committed a crime in ordering the Australian Secret Intelligence Service to enter Timor-Leste on false passports and bug the cabinet offices of that impoverished country to gather commercial information to benefit Woodside Petroleum. This act of foreign interference by ASIS contrasts with ASIO’s extensive use of its resources to combat foreign interference.

Donaldson was unable to consider a recent court case where a whistle blower David McBride claimed his oath as a military officer gave him a duty to leak information in the public interest. The court found that his only duty was to follow orders. Unsurprisingly, this drew a response that the judgement nullified the principles underpinning the Nuremberg trials. It could also dishonour decent members of the of the Australian Defence Force who have refused to obey orders where there was a risk of killing children.

The Australian Law Council has made an outstanding contribution to trying to ensure Australia retained some vestiges of a liberal democracy, despite the hurdles. It lost its attempt to prevent the inclusion of reporting and commentary on “economic and political relations with another country” in the definition of a national “national security offence’”.

Donaldson said he shared the view of many who made submissions that the concept of “economic relations with foreign governments, and international organisations should never have been in the definition of national security information. It is far too broad”.

Donaldson pushed hard on an issue of continuing relevance after he found the Home Affairs department had suppressed a report for “operational security reasons” it had commissioned on terrorism risk assessment tools. The report, by Dr Emily Corner, found that the tools the department used for terrorism risk assessment lack. a “strong, empirical foundation, have poor reliability and questionable predictive validity”. Donaldson ordered Home Affairs to give him a copy of the 150 page report, which he read and then released because it did not contain “operationally sensitive information”. Donaldson emphasises the difference between punishing people for crimes they have committed and punishing them for the contentious possibility that they might commit one in future.

After the High Court ruled that nobody could be kept in immigration detention indefinitely, 148 people had to be released. The Home Affairs Minister Clare O’Neil said, “If it were up to me, none of these people would’ve been released from detention, and if I had any legal power, all would be right back in detention”. Never mind that not all of those released were dangerous criminals. She then played a major part in in developing the legislation for new preventative detention laws that recently passed Parliament without debate. The Coalition’s Senate leader Simon Birmingham said its goal is to make all Australians secure for Christmas. How it could do this is hard to fathom, given that Australian-born potential rapists, murderers, and child sex offenders can’t be locked up under the new law. Home Affairs has arrested someone who had allegedly stolen a suitcase at an airport. It is yet to be revealed how his incarceration will make Australians safer for Christmas.

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